In the absence of legislation by Congress, a state has full
power to improve its lands and promote the general health by
authorizing dams across interior streams, although previously
navigable to the sea.
Nothing in the existing Constitution of South Carolina
interferes with the common law powers of the state over its
navigable waters.
The interdiction of statutes impairing the obligation of
contracts does not prevent a state from properly exercising its
police powers for the public good notwithstanding contracts
previously entered into between individuals may be affected.
While the police power of a state is subject to limitations,
there is a wide discretion as to its exercise in the legislature,
with whose determination as to what is and what is not necessary
the courts ordinarily will not interfere.
Except where property is taken for which compensation must be
made, private interests are subservient to the exercise of the
police power, and must give way to general schemes for the public
health.
Courts may take judicial notice that the public health is
greatly affected by the existence of swamp lands and the
reclamation of such lands is a proper exercise of the police
powers.
Where there is a practical destruction or material impairment of
value of lands by overflowing them as the result of construction of
dams, there is a taking within the meaning of the federal
Constitution which demands compensation, but otherwise when the
owner is merely put, as in this case, to additional expense in
warding off the consequences of the overflow.
A court of equity is not bound to enjoin a public work
authorized by statute until compensation is paid where no property
is directly appropriated, especially where it is difficult to
ascertain the damage, if any, and the statute contains reasonable
provisions for compensation.
Although a river may, for purposes of transit and travel, be a
highway, in the prohibition in the Constitution of South Carolina
against special legislation in regard to highways, that word is
used in its ordinary sense, and the prohibition is inapplicable to
water highways.
A general law enacted by a legislature may be repealed, amended,
or disregarded by a subsequent legislature, and a special act is
not necessarily invalid because the legislature dispensed with
certain formalities required by a general law in regard to the
passage of such act.
This was a bill in equity filed March 4, 1903, by Manigault
Page 199 U. S. 474
to enjoin the damming or otherwise obstructing Kinloch Creek in
the County of Georgetown, South Carolina. A demurrer to the bill
was sustained, and the bill subsequently dismissed.
See
123 F. 707.
It seems that, in 1898, the plaintiff and the two defendants,
Springs and Lachicotte, together with one Ford, were adjoining
riparian owners on the Santee River at the mouth of Kinloch Creek.
The creek furnished access as a highway to all the proprietors on
its banks. At that time, the defendants constructed a dam across
the creek for their own purposes. Objection was made to this by
plaintiff and by Ford as an interference with their rights of
passage and irrigation. Plaintiff also complained that the effect
was to compel him to raise the dikes around his lands. As a result
of long negotiations, a compromise was effected and a contract
entered into in August, 1898, between defendants under the name of
S. M. Ward & Company, of the first part, and plaintiff and
Ford, of the second part, whereby it was agreed that the
obstructions should continue until December 31 of that year, when
they should be removed, so as to give the parties complaining a
clear passage through the creek.
This removal was effected, and matters allowed to remain as they
were until 1903, when the general assembly of the state passed an
act reciting the necessity of draining the lowlands on the Santee
River, whereby their taxable value would be greatly enhanced.
Authority was given to the defendants by name to erect and maintain
a dam across Kinloch Creek, with a proviso that they should be
liable for all such damages as might be established in any court of
competent jurisdiction by any landowner claiming that his land had
been damaged by reason of the erection of the dam.
Page 199 U. S. 477
MR. JUSTICE BROWN delivered the opinion of the Court.
The gravamen of the bill is the alleged impairment by the
statute of 1903 of the contract entered into in 1898, by which
defendants agreed to remove the dam then existing, and to allow
such creek to remain open and unobstructed.
It was also charged that the Constitution of South Carolina,
declaring that all navigable waters should forever remain public
highways, was a privilege annexed to and constituting a part of the
value of the lands, and that the damming of the creek, except for
the purpose of the public health, welfare, and safety and without
due compensation therefor, was a destruction of the property of the
plaintiff and a deprivation thereof without due process of law.
The specific injury complained of is that the plaintiff is the
owner of a rice plantation on the North Santee River, bordering on
Minim Creek, a tributary of the Santee, and lying in part just
opposite the mouth or entrance of Kinloch Creek; that, relying on
the agreement of the defendants, he had also purchased a mill site
on the Santee, which could be used for a rice mill or a sawmill,
the chief element of value of which was the water connection by
means of a canal with Bluff Back Creek, accessible only through
Kinloch Creek, and the consequent necessity of keeping Kinloch
Creek open and unobstructed; that Kinloch Creek is a water highway,
navigable by vessels into the Santee River and thence into the
ocean; that the erection and retention of a dam across Kinloch
Creek would not only interrupt his use of Kinloch Creek and Bluff
Back Creek by preventing access to the public landing on the state
road from his plantation on Kinloch Creek, but would obstruct the
inflow of the tide of the Santee River through Minim Creek, causing
the water from the river to flow back upon the banks to the
plantation opposite the mouth of Kinloch
Page 199 U. S. 478
Creek, and would thus compel him to raise and strengthen his
banks.
1. The first question considered by the court below was whether
Kinloch Creek was a navigable water of the United States, as
defined in the case of
The Montello,
11 Wall. 411, or navigable, as navigable streams are defined by the
Constitution and the laws of South Carolina. The court was of
opinion, based apparently upon affidavits not sent up with the
record, that the creek was not a navigable stream under these
definitions.
But the bill alleges that "Kinloch Creek is a navigable stream
or water highway," and the cause was determined upon demurrer to
the bill, which admits the allegation of the bill that the creek
was navigable. As an original proposition we have repeatedly held
that, in the absence of legislation by Congress, as state has power
to improve its lands and promote the general health by authorizing
a dam to be built across its interior streams, though they were
previously navigable to the sea by vessels engaged in the coastwise
trade. This was decided in
Willson v. Black Bird Creek
Marsh Co., 2 Pet. 245, in a brief but cogent
opinion by Mr. Chief Justice Marshall. An act of the State of
Delaware gave the defendant the right to build a dam across the
Black Bird Marsh Creek, the constitutionality of which act was
attacked as an abridgment of the rights of those who had been
accustomed to use it for the purposes of navigation. "But this
abridgment," said the Court (p.
27 U. S.
251),
"unless it comes in conflict with the Constitution or a law of
the United States, is an affair between the government of Delaware
and its citizens, of which this Court can take no cognizance."
The act was sustained.
See also Pound v. Turck,
95 U. S. 459;
Gilman v.
Philadelphia, 3 Wall. 732;
Huse v. Glover,
119 U. S. 543.
We do not think the provision of the Constitution of South
Carolina interferes with these common law powers of the state over
its navigable waters. In
Escanaba Company v. Chicago,
107 U. S. 678,
107 U. S. 688,
it was held that the right of bridging navigable
Page 199 U. S. 479
streams extended to the State of Illinois, notwithstanding that
the ordinance of 1787, for the government of the Northwest
territory, contained a clause declaring that "the navigable waters
leading into the Mississippi and St. Lawrence, and the carrying
places between them, shall be common highways and forever free."
The power to span these rivers by bridges was put partly upon the
theory that the limitations upon the power of the state whilst in a
territorial condition ceased to have any operative force except as
voluntarily adopted by her after she became a state of the Union,
and partly upon the theory, as said Mr. Justice Field, page
107 U. S. 689,
that
"all highways, whether by land or water, are subject to such
crossings as the public necessities and convenience may require,
and their character as such is not changed if the crossings are
allowed under reasonable conditions, and not so as to needlessly
obstruct the use of the highways."
So also in
Cardwell v. American River Bridge Co.,
113 U. S. 205, a
provision in the act admitting California, that "all the navigable
waters within the said state shall be common highways and forever
free," was held not to deprive the state of the power possessed by
it to authorize the erection of bridges over navigable waters. Said
the Court, page
113 U. S.
211,
"the clause, therefore, in the act admitting California, quoted
above, upon which the complainant relies, must be considered,
according to these decisions, as in no way impairing the power
which the state could exercise over the subject if the clause had
no existence."
To the same effect,
Willamette Iron Bridge Co. v.
Hatch, 125 U. S. 1;
Hamilton v. Vicksburg &c. R. Co., 119 U.
S. 280,
119 U. S.
284.
In
Lake Shore &c. R. Co. v. Ohio, 165 U.
S. 365, it was held that the Act of September 19, 1890,
conferring upon the Secretary of War the authority to direct the
alteration of such bridges so as to render navigation easy and
unobstructed, did not deprive the states of authority to bridge
such streams.
While all of these cases turned upon the power of the state to
authorize the erection of bridges, the same principle applies where
the legislature deems it necessary to the public welfare
Page 199 U. S. 480
to make other improvements for the reclamation of swampy and
overflowed lands, though certain individual proprietors may thereby
be subjected to expense. The question whether Kinloch Creek could
be obstructed without the permission of the Secretary of War does
not arise in this case, and is specially disclaimed by the
plaintiff.
See Lake Shore &c. Railroad Co. v. Ohio,
165 U. S. 365;
Leovy v. United States, 177 U. S. 621,
177 U. S. 633;
Cummings v. Chicago, 188 U. S. 410;
Montgomery v. Portland, 190 U. S. 89.
The main argument was addressed to the question whether the
contract of August, 1898, providing for the removal of the
obstruction on December 31 and the free ingress and egress through
the creek thereafter, was impaired by the act of the general
assembly of 1903, permitting the defendants by name to construct
and maintain the dam in question.
It is the settled law of this Court that the interdiction of
statutes impairing the obligation of contracts does not prevent the
state from exercising such powers as are vested in it for the
promotion of the common weal, or are necessary for the general good
of the public, though contracts previously entered into between
individuals may thereby be affected. This power, which in its
various ramifications is known as the police power, is an exercise
of the sovereign right of the government to protect the lives,
health, morals, comfort, and general welfare of the people, and is
paramount to any rights under contracts between individuals.
Familiar instances of this are where parties enter into contracts,
perfectly lawful at the time, to sell liquor, operate a brewery or
distillery, or carry on a lottery, all of which are subject to
impairment by a change of policy on the part of the state
prohibiting the establishment or continuance of such traffic -- in
other words, that parties, by entering into contracts, may not
estop the legislature from enacting laws intended for the public
good.
While this power is subject to limitations in certain cases,
there is wide discretion on the part of the legislature in
determining what is and what is not necessary -- a discretion
which
Page 199 U. S. 481
courts ordinarily will not interfere with. The leading case upon
this point is that of
Charles River Bridge v. Warren
Bridge, 11 Pet. 420, in which a franchise to
maintain a ferry between Cambridge and Boston, under which a bridge
was subsequently erected, was held to be subject to the power of
the legislature to establish a parallel bridge between the same
points. In
Stone v. Mississippi, 101 U.
S. 814, a charter to a lottery company for twenty-five
years was held to be subject to the power of the state to abolish
lotteries altogether. Similar cases announcing the same principle
are
Boyd v. Alabama, 94 U. S. 645;
Beer Company v. Massachusetts, 97 U. S.
25;
Butchers' Union Co. v. Crescent City Co.,
111 U. S. 746;
New Orleans Gas Light Co. v. Louisiana Light Co.,
115 U. S. 650,
115 U. S. 672;
Mugler v. Kansas, 123 U. S. 623,
123 U. S. 665;
Chicago &c. R. Co. v. Chicago, 166 U.
S. 226.
It only remains to consider, in connection with this branch of
the case, whether the act of the general assembly of 1903 was a
proper exercise of the police power of the state. Of this we have
no doubt. Although it was not an exercise of that power in its
ordinarily accepted sense of protecting the health, lives, and
morals of the community, it is defensible in its broader meaning of
providing for the general welfare of the people by the reclamation
of swampy, overflowed, and infertile lands and the erection of
dams, levees, and dikes for that purpose. We have often held that
private interests are subservient to that right except where
property is taken for which compensation must be paid, and must
give way to any general scheme for the reclamation or improvement
of such lands.
Indeed, this seems to have been within the contemplation of
Congress in its Act of September 28, 1850, 9 Stat. 519, to enable
the states to reclaim the swamp lands within their limits, the
first section of which enacts that,
"to enable the State of Arkansas to construct the necessary
levees and drains to reclaim the swamp and overflowed lands
therein, the whole of those swamp and overflowed lands made unfit
thereby for cultivation . . . shall be, and the same are hereby,
granted
Page 199 U. S. 482
to said state."
Section 4 extends this provision to the other states. Although
the act has no direct bearing on this case, it recognizes an intent
on the part of Congress to allow the states to regulate the
disposal of overflowed lands as the legislature shall deem best for
the public interests. That the act of the general assembly in
question was passed upon this theory is indicated by its recitals
that,
"by reason of the drainage and protection of said lands from
overflow, their taxable value will be greatly enhanced and, without
the dam provided for in this bill, a large part of the land
bordering on said creek will eventually become abandoned and
valueless, as some portions of it now are,"
and that this "is the only feasible and practicable scheme for
the drainage of said lands." This was the reason given for the
passage of the act of the general assembly of Delaware in the
Black Bird Creek case, already cited. Chief Justice
Marshall observed (p.
27 U. S.
251):
"The value of the property on its banks must be enhanced by
excluding the water from the marsh, and the health of the
inhabitants probably improved. Measures calculated to produce these
objects, provided they do not come into collision with the powers
of the general government, are undoubtedly within those which are
reserved to the states."
Several subsequent decisions have confirmed the power of the
state to deal, in the absence of congressional legislation, with
their rivers, for the purposes of their internal improvement, such
as
Withers v.
Buckley, 20 How. 84, wherein the right of
Mississippi to change the channels or courses of rivers within the
state for the purpose of improvement was sustained, and
Atkinson v. Philadelphia &c. R. Co., 2 Fed.Cas. 105,
Case 615, a decision by Mr. Justice Baldwin of this Court.
The whole subject was recently discussed in the case of
Leovy v. United States, 177 U. S. 621,
wherein was vindicated the right of the State of Louisiana to
authorize the construction and maintenance of levees, drains, and
other structures necessary and suitable to reclaim swamp and
overflowed lands, although there was evidence that the stream there
concerned
Page 199 U. S. 483
(Red Pass) was useful for some minor purposes of interstate
commerce. There was testimony that luggers or yawls chiefly used by
fishermen to carry oysters to and from their beds sometimes went
through this pass, but it was not shown that passengers ever went
through it, or that freight destined for any other state was ever
carried through it.
In delivering an exhaustive opinion in this case, Mr. Justice
Shiras observed (p.
177 U. S.
636):
"We think that the trial court might well take judicial notice
that the public health is deeply concerned in the reclamation of
swamp and overflowed lands. If there is any fact which may be
supposed to be known by everybody, and therefore by courts, it is
that swamps and stagnant waters are the cause of malarial and
malignant fevers, and that the police power is never more
legitimately exercised than in removing such nuisances."
While, as already observed, there is a general allegation in the
bill that Kinloch Creek was a navigable stream and was capable of
navigation by vessels in the Santee River and thence into the
ocean, there is no allegation that it was ever used for that
purpose, and the opinion of the court was that it certainly was not
a navigable water of the United States, or a public highway under
the laws of South Carolina. But, however this may be, we are of
opinion that the state had full power, in the absence of
legislation by Congress, to authorize the construction of this dam
for the avowed purposes of this act.
2. The second assignment of error, that the plaintiff was
deprived of his property without compensation, and hence without
due process of law, is also unsound.
The only allegation of the bill in that connection is that the
construction of the dam was not only a destruction of plaintiff's
right of navigation and of his access to his lands through Kinloch
Creek, but has caused the water to fall back to some extent on the
plantation on Minim Creek, just opposite the mouth of Kinloch, so
as to compel the plaintiff to raise his dikes. We do not think the
overflow to the minor extent indicated constitutes a taking of
property within the meaning of
Page 199 U. S. 484
the law, when the damage can be prevented by raising the banks,
or that, if the damage stated did in fact result, that it would
justify the interposition of a court of equity.
The question whether the overflow of lands constitutes "a
taking" within the constitutional provision has been discussed in
several cases in this Court.
Pumpelly v. Green Bay
Co., 13 Wall. 166;
Transportation Company v.
Chicago, 99 U. S. 635;
Gibson v. United States, 106 U. S. 269;
Scranton v. Wheeler, 179 U. S. 141;
Atwater v. Canandaigua, 124 N.Y. 602.
A recent case is that of
United States v. Lynah,
188 U. S. 445,
wherein it was held that, where the government had placed dams and
other obstructions in the Savannah River in such manner as to
hinder its natural flow, and to raise the water so as to overflow
plaintiff's lands and to cause a total destruction of their value,
the proceeding must be regarded as an actual appropriation of the
land, and created an obligation upon the government to make
compensation for the land. The case was distinguished from that of
Mills v. United States, 46 F. 738, wherein the damage
consisted in obliging the plaintiff to raise the levees around his
rice fields to prevent the flooding of the fields in high water.
"Obviously," said the court, in commenting upon that case,
"there was no taking of the plaintiff's lands, but simply an
injury which could be remedied at an expense, as alleged, of
$10,000, and the action was one to recover the amount of this
consequential injury. The court rightfully held that it could not
be sustained."
A still more recent case is that of
Bedford v. United
States, 192 U. S. 217, in
which it is held that damages to lands by flooding as a result of
revetments erected by the United States along the banks of the
Mississippi River to prevent erosion of the banks from natural
causes are consequential, and do not constitute a taking of the
lands flooded within the meaning of the Constitution.
We think the rule to be gathered from these cases is that, where
there is a practical destruction or material impairment of the
value of plaintiff's lands, there is a taking which demands
Page 199 U. S. 485
compensation; but otherwise where, as in this case, plaintiff is
merely put to some extra expense in warding off the consequences of
the overflow.
The damage claimed by the plaintiff in the interruption of
access to his lands and the impairment of his right to navigate the
creek does not demand separate consideration. We have repeatedly
held that, where the government of the United States has, for the
purposes of improving the navigation of a river, erected piers or
other structures by which access to plaintiff's land is rendered
more difficult, there is no claim for compensation.
Gibson v.
United States, 166 U. S. 269;
Scranton v. Wheeler, 179 U. S. 141. We
see no reason why the same principle should not apply to cases
where the state legislature, exercising its police power, directs a
certain dam to be built, and thereby incidentally impairs access to
lands above the dam. In both cases, the sovereign is exercising its
constitutional right -- in one case in improving the navigation of
the river, and in the other in draining its lowlands, and thereby
enhancing their value for agricultural purposes.
It is suggested that the agreement of 1898 created an easement
of access to plaintiff's land.
Ladd v. Boston, 151 Mass.
585;
Hogan v. Barry, 143 Mass. 538, and that the statute
of South Carolina must be construed as overriding private rights of
property, and not merely as putting an end to the rights of the
public, and as giving to plaintiff a claim for damages for the
taking of the easement. But it does not necessarily follow that an
injunction should issue. Apparently this covenant did not apply to
the mill site, since this was purchased after the covenant was
made; but, however this may be, a court of equity is not bound to
enjoin a public work authorized by statute, until compensation is
paid, where no property is directly appropriated. This is
particularly true where the damage is difficult of ascertainment at
the time, and a reasonable provision is made by the law for
compensation.
Sweet v. Rechel, 159 U.
S. 380;
Backus v. Fort Street Union Depot Co.,
169 U. S. 557;
Cherokee Nation
v.
Page 199 U. S. 486
Southern Kansas R. Co., 135 U.
S. 641;
Beasley v. Texas & Pacific Ry. Co.,
191 U. S. 492;
Haverhill Bridge v. Essex County, 103 Mass. 120;
Parker v. Catholic Bishop, 146 Ill. 158. The state cases
are numerous on this point.
In view of the incidental character of the damage probably
resulting to plaintiff's land from the erection of this dam, and
the careful provision of the act that the defendants shall be
liable for such damage, we do not think at least, in the absence of
an allegation that the defendants are financially irresponsible,
that a court of equity would be authorized to enjoin the erection
until the damages, which, if they exist at all, must be very
difficult of ascertainment, shall be paid.
3. It is also assigned as error that the act of 1903 is
obnoxious to the following provisions of the Constitution of South
Carolina, Article III, Section 34, that
"the General Assembly of this state shall not enact local or
special laws concerning any of the following subjects, or for any
of the following purposes, to-wit: . . . II. To lay out, open,
alter, or work roads or highways."
As the case comes from a federal court, the question is properly
before us.
Admitting that, for the purposes of transit and travel, a river
may be considered a highway -- and that seems to have been adjudged
by the Supreme Court of South Carolina,
Heyward v.
Chisolm, 11 Rich. L. 253 -- we think that, in connection with
the words "to lay out, open, alter, or work roads," the word
"highway" is used in its ordinary sense, and as an equivalent to a
public road. The power given by this section is evidently
inapplicable to water highways, which are neither laid out, opened,
altered, or worked in the ordinary sense of these words.
4. It is also urged that the act was passed without the
formality required by the Revised Statutes of South Carolina of
1893, in which it is declared that no bill for the granting of any
privilege or immunity, or for any other private purpose
Page 199 U. S. 487
whatsoever, shall be introduced or entertained in either house
of the general assembly except by petition, to be signed by the
persons desiring such privileges, of which sixty days notice shall
be given to all person interested, and be published in the
newspaper having the largest circulation in the county where such
privilege is to be enjoyed, once a week for three weeks, etc.
As this is not a constitutional provision, but a general law
enacted by the legislature, it may be repealed, amended, or
disregarded by the legislature which enacted it. This law was
doubtless intended as a guide to persons desiring to petition the
legislature for special privileges, and it would be a good answer
to any petition for the granting of such privileges that the
required notice had not been given; but it is not binding upon any
subsequent legislature, nor does a noncompliance with it impair or
nullify the provisions of an act passed without the requirement of
such notice.
There was no error in the action of the court below, and its
judgment is therefore
Affirmed.