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vious notice to the persons or corporations to the exercise of an undoubted function of owning or controlling the bridge, specifying the United States, when exerting, through the changes recommended by the Chief of Congress, its power to regulate commerce Engineers, and allowing a reasonable time among the states, and therefore navigation in which to make them. If, at the end of upon the water ways on and over which such time, the required alterations have not such commerce is conducted. been made, then the Secretary is required It would seem clear that this issue has to bring the matter to the attention of the likewise been determined by the principles United States district attorney in order announced in the previous cases of this that criminal proceedings may be instituted court. Let us see whether such be the fact. to enforce the act of Congress. In the pres- A leading case upon this subject is Gibent case all the provisions of the statute son v. United States, 166 U. S. 269, 271, 41 were complied with. The parties concerned L. ed. 996, 998, 17 Sup. Ct. Rep. 578, 579, et were duly notified and were fully heard. seq. Congress, by the river and harbor acts of Nor is there any reason to say that the 1884 and 1886 (23 Stat. at L. 133, 147, chap. Secretary of War was not entirely justi- 229, U. S. Comp. Stat. 1901, p. 3524, 24 fied, if not compelled, by the evidence, in Stat. at L. 316, 327, chap. 929), authorized finding that the bridge in question was an and directed the improvement of the Ohio unreasonable obstruction to commerce and river, and made appropriations to effect navigation as now conducted.
that object. Under the authority of the We are of opinion that the act in ques- Secretary of War, and the Engineer Corps tion is not unconstitutional as conferring of the Army, a dike was constructed in upon the Secretary of War powers of such that river for the purpose of concentrating nature that they could not be delegated to the water-flow in the main channel of the him by Congress.
river, near Neville island. The dike began The next principal contention of the at a certain point on the island. Its conBridge Company is that the act of 1899 is struction substantially destroyed the land. unconstitutional, in that it makes no pro- ing on and in front of a farm, owned by vision, and the United States has not of- Mrs. Gibson, on that island, preventing, fered, to compensate it for the sum that will during most of the year, free egress and necessarily be expended in order to make ingress from and to such farm to the main the alterations or changes required by the or navigable channel of the river. At the order of the Secretary of War. In other time of the construction of the dike that words, the defendant insists that what the farm was in a high state of cultivation, well United States requires to be done in re- improved, with a dwelling house, barn, and spect of defendant's bridge is a taking of outbuildings. It had a frontage of a thouprivate property for public use, which the sand feet on the main navigable channel, government is forbidden by the Constitution and the owner had a landing there which to do without making just compensation to, was used in the shipping of products from or without making provision to justly com- and supplies to her farm, and was the only pensate, the owner. Stating the question one from which such products and supplies in another way, the contention is, in effect, could be shipped. Before the construction that even if the United States did not ex- of the dike the farm, by reason of the use pressly assent to the construction of this to which it was put, was worth $600 per bridge as it is, and even if the bridge has acre. The obstruction caused by the dike become an unreasonable obstruction to the reduced its value to $150 or $200 per acre, free navigation of the water way in ques resulting in damages to the owner in excess tion, the exertion of the power of the United of $3,000. Suit was brought against the States to regulate commerce among the United States in the court of claims to restates is subject to the fundamental condi- cover such damages. That court found, as tion that it cannot require the defendant, a conclusion of law, that the owner was whose bridge was lawfully constructed, to not entitled to recover. make any alterations, however necessary to The Chief Justice of this court, deliversecure free navigation, without paying oring its unanimous judgment, said: “All securing to it compensation for the reason navigable waters are under the control of able cost of such alterations.
the United States for the purpose of reguThe propositions are combated by the lating and improving navigation, and algovernment, which contends that the alter- though the title to the shore and submerged ations or changes required to secure navi- soil is in the various states and individual gation against an unreasonable obstruction owners under them, it is always subject to is not a taking of private property for pub- the servitude in respect of navigation crelic use within the meaning of the Constituated in favor of the Federal government by tion, and that the cost of such alterations the Constitution. South Carolina v. Georor changes is to be deemed incidental only gia, 93 U. S. 4, 23 L. ed. 782; Shively v. Bowlby, 152 U. S. 1, 38 L. ed. 331, 14 Sup. I which her property had always been subCt. Rep. 548; Eldridge v. Trezevant, 160 ject.” U. S. 452, 40 L. ed. 490, 16 Sup. Ct. Rep. The Gibson Case was referred to with 345.” After referring to several adjudged approval in Scranton v. Wheeler, 179 U. S. cases the court proceeded: “The 5th Amend. 141, 153, 162, 45 L. ed. 126, 133, 137, 21 Sup. ment to the Constitution of the United Ct. Rep. 48, 53, 57. The latter case involved States provides that private property shall the question whether the owner of land on not be taken for public use without just the St. Mary's river, in Michigan, was encompensation.' Here, however, the damage titled, under the Constitution of the United of which Mrs. Gibson complained was not States, to be compensated for the injury or the result of the taking of any part of her damage done him, as a riparian owner, by property, whether upland or submerged, or certain work done in that river under the a direct invasion thereof, but the incidental authority of the United States. The conconsequence of the lawful and proper exer- trolling question was whether the prohibicise of a governmental power. The applica- tion in the Constitution of the United States ble principle is expounded in Northern of the taking of private property for pubTransp. Co. v. Chicago, 99 U. S. 635, 25 L. lic use without just compensation has any ed. 336. In that case, plaintiff, being an application to the case of an owner of land owner of land situated at the intersection bordering on a public navigable river whose of La Salle street in Chicago, with the Chi- access from his land to navigability is percago river, upon which it had valuable dock manently lost by reason of the construction and warehouse accommodations, with a of a pier resting on submerged lands in numerous line of steamers accustomed to front of his upland, and which pier was land at that dock, was interrupted in his erected by the United States for the puruse thereof by the building of a tunnel un- pose only of improving the navigation of der the Chicago river by authority of the such river. After observing that when that state legislature, in accomplishing which which is done amounts, within the meaning work it was necessary to tear up La Salle of the Constitution, to a taking of private street, which precluded plaintiff from ac- property for public use, and that Congress cess to his property for a considerable time; may not, in the exercise of its power to also to build a coffer dam in the Chicago regulate commerce, override the provision river, which excluded his vessels from access for just compensation when private propto his docks; and such an injury was held erty is so taken, the court entered upon a to be damnum absque injuria. The court review of some of the adjudged cases. said, again speaking through Mr. Justice Among other things it said: “All the cases Strong: 'But acts done in the proper exer- concur in holding that the power of Concise of governmental powers, and not di- gress to regulate commerce, and therefore rectly encroaching upon private property, navigation, is paramount, and is unrestrictthough their consequences may impair its ed except by the limitations upon its auuse, are universally held not to be a taking thority by the Constitution. Of course, within the meaning of the constitutional every part of the Constitution is as binding provision. They do not entitle the owner of upon Congress as upon the people. The such property to compensation from the guaranties prescribed by it for the secu. state or its agents, or give him any right of rity of private property must be respected action. This is supported by an immense by all. But whether navigation upon waters weight of authority.' . . . Moreover, ripar-over which Congress may exert its authorian ownership is subject to the obligation to ity requires improvement at all, or improvesuffer the consequences of the improvement ment in a particular way, are matters wholof navigation in the exercise of the dominantly within its discretion; and the judiciary right of the government in that regard. The is without power to control or defeat the legislative authority for these works con. the government does not transcend the lim
will of Congress, so long as that branch of sisted simply in an appropriation for their its established by the supreme law of the construction, but this was an assertion of land. Is the broad power with which Cona right belonging to the government, to gress is invested burdened with the condiwhich riparian property was subject, and tion that a riparian owner whose land bornot of a right to appropriate private prop ders upon a navigable water of the United erty, not burdened with such servitude, to States shall be compensated for his right public purposes. In short, the damage re- of access to navigability whenever such sulting from the prosecution of this im- right ceases to be of value solely in conseprovement of a navigable highway for the quence of the improvement of navigation public good was not the result of a taking by means of piers resting upon submerged of appellant's property, and was merely in lands away from the shore line? We cidental to the exercise of a servitude to I think not.” “The primary use," the court
said, “of the waters and the lands under of international and interstate commerce.” them is for purposes of navigation, and the The court further said: “In our opinion, erection of piers in them to improve navi- it was not intended that the paramount gation for the public is entirely consistent authority of Congress to improve the navwith such use, and infringes no right of the igation of the public navigable waters of riparian owner. Whatever the nature of the United States should be *crippled by the interest of a riparian owner in the sub-compelling the government to make commerged lands in front of his upland border- pensation for the injury to a riparian owning on a public navigable water, his title er's right of access to navigability that is not as full and complete as his title to might incidentally result from an improvefast land which has no direct connection ment ordered by Congress. The subject with with the navigation of such water. It is a which Congress dealt was navigation. That qualified title, a bare technical title, not at which was sought to be accomplished was his absolute disposal, as is his upland, but simply to improve navigation on the waters to be held at all times subordinate to such in question so as to meet the wants of the
of the submerged lands and of the vast commerce passing and to pass over waters flowing over them as may be con- them. Consequently the agents designated sistent with or demanded by the public to perform the work ordered or authorized right of navigation. In Lornian v. Benson, by Congress had the right to proceed in all 8 Mich. 18, 22, 77 Am. Dec. 435, the supreme proper ways without taking into account court of Michigan, speakiny by Justice the injury that might possibly or indirectly Campbell, declared the right of navigation result from such work to the right of acto be one to which all others were sub-cess by riparian owners to navigability. servient.
But the contention is that We are of opinion that the court becompensation must be made for the loss of low correctly held that the plaintiff had no the plaintiff's access from his upland to such right of property in the submerged navigability incidentally resulting from the lands on which the pier in question rests occupancy of the submerged lands, even if as entitles him, under the Constitution, to the construction and maintenance of a pier be compensated for any loss of access from resting upon them be necessary or valua- his upland to navigability resulting from ble in the proper improvement of naviga- the erection and maintenance of such pier tion. We cannot assent to this view. If by the United States in order to iraprove, the riparian owner cannot enjoy access to and which manifestly did improve, the navnavigability because of the improvement of igation of a public navigable water.” navigation by the construction away from In New Orleans Gaslight Co. v. Drainage the shore line of works in a public naviga- Commission, 197 U. S. 453, 461, 462, 49 L. ed. ble river or water, and if such right of ac- 831, 835, 25 Sup. Ct. Rep. 471, 473, 474, it cess ceases alone for that reason to be of appeared that, under contract with the city value, there is not, within the meaning of of New Orleans, and at its own expense, the Constitution, a taking of private prop- the gaslight company had lawfully laid its erty for public use, but only a consequen- pipes at certain places in the public ways tial injury to a right which must be en- and streets of that city. Subsequently, the joyed, as was said in Yates v. Milwaukee, drainage commission of New Orleans adopt10 Wall. 497, 504, 505, 19 L. ed. 984, 986, ed a plan for the drainage of the city, which 987, 'in due subjection to the rights of the made it necessary to change the location in public,'—an injury resulting incidentally some places of the mains and pipes theretofrom the exercise of a governmental power fore laid by the gaslight company. That for the benefit of the general public, and company contended that to require such from which no duty arises to make or se changes was a taking of its property for cure compensation to the riparian owner. public use, for which it was entitled, under The riparian owner acquired the right of the Constitution, to compensation. That access to navigability subject to the con- view was rejected by this court. We said: tingency that such right might become val. “The gas company did not acquire any speueless in consequence of the erection under cific location in the streets; it was content competent authority of structures on the with the general right to use them, and submerged lands in front of his property when it located its pipes it was at the for the purpose of improving navigation. risk that they might be, at some future When erecting the pier in question, the time, disturbed, when the state might regovernment had no object in view except, quire, for a necessary public use, that in the interest of the public, to improve changes in location be made.
The navigation. It was not designed arbitrarily need of occupation of the soil beneath the or capriciously to destroy rights belonging streets in cities is constantly increasing, for to any riparian owner. What was done was the supply of water and light and the conmanifestly necessary to meet the demands / struction of systems of sewerage and drainage, and every reason of public policy re- and a greater opening made under the bridge quires that grants of rights in such sub- for the passage of the increased amount of surface shall be held subject to such rea- water caused by the deepening an, enlarsonable regulation as the public health and ging of the bed of the creek. The railway safety may require. There is nothing in company was required, at its own cost, to the grant to the gas company, even if it construct such a bridge over the creek as. could legally be done, undertaking to limit would meet the necessities of the situation the right of the state to establish a system as it was or would be under the drainage of drainage in the streets. We think what- plan of the commissioners. The company ever right the gas company acquired was refused to obey the order. The contention subject, in so far as the location of its pipes of the railway company was that, as the was concerned, to such future regulations as bridge was lawfully constructed under its might be required in the interest of the general corporate powers, and as the depth public health and welfare. These views are and width of the channel under it was sufamply sustained by the authorities. Na- ficient, at the time, to carry off the water tional Waterworks Co. v. Kansas City, 28 of the creek as it then and subsequently Fed. 921, in which the opinion was deliv- flowed, the foundation of the bridge could ered by Mr. Justice Brewer, then circuit not be removed and its use of the bridge judge; Columbus Gaslight & Coke Co. v. disturbed, unless compensation be first Columbus, 50 Ohio St. 65, 19 L.R.A. 510, made or secured to the company in such 40 Am. St. Rep. 648, 33 N. E. 292; Jamaica amount as would be sufficient to meet the Pond Aqueduct Corp. v. Brookline, 121 Mass. expense of removing the timbers and stones 5; Re Deering, 93 N. Y. 361; Chicago, B. & from the creek and of constructing a new Q. R. Co. v. Chicago, 166 U. S. 226, 254, bridge of such length and with such open41 L. ed. 979, 990, 17 Sup. Ct. Rep. 581. In ing under it as the plan of the commissionthe latter case it was held that uncompen-ers would make necessary. The company sated obedience to a regulation enacted for insisted that to require it to meet these exthe public safety under the police power penses out of its own funds would be, withof the state was not taking property with in the meaning of the Constitution, a taking out due compensation. In our view, that of its property for public use without comis all there is to this case. The gas compensation, and, therefore, without due procpany, by its grant from the city, acquired ess of law. The court, after a review of no exclusive right to the location of its pipes authorities, said: "The constitutional rein the streets, as chosen by it, under a gen- quirement of due process of law, which emeral grant of authority to use the streets. braces compensation for private property The city made no contract that the gas taken for public use, applies in every case company should not be disturbed in the of the exertion of governmental power. If, location chosen. In the exercise of the po- in the execution of any power, no matter lice power of the state, for a purpose highly what it is, the government, Federal or state, necessary in the promotion of the public finds it necessary to take private property health, it has become necessary to change for public use, it must obey the constituthe location of the pipes of the gas company tional injunction to make or secure just so as to accommodate them to the new pub- compensation to the owner. Cherokee Nalic work. In complying with this require- tion v. Southern Kansas R. Co. 135 U. S. ment at its own expense none of the prop- 641, 659, 34 L. ed. 295, 303, 10 Sup. Ct. Rep. erty of the gas company has been taken, 965; Sweet v. Rechel, 159 U. S. 380, 399, and the injury sustained is damnum absque 402, 40 L. ed. 188, 196, 197, 16 Sup. Ct. Rep. injuria.”
43; Monongahela Nav. Co. v. United States, In Chicago, B. & Q. R. Co. v. Illinois, 200 148 U. S. 312, 336, 37 L. ed. 463, 471, 13 Sup. U. S. 561, 582, 593-595, 50 L. ed. 596, 605, Ct. Rep. 622; United States v. Lynah, 188 609, 610, 26 Sup. Ct. Rep. 341, 345, 350, 351, U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. the above cases were cited with approval, 349. If the means employed have no real and the principles announced in them were substantial relation to public objects which applied against a railway company owning government may legally accomplish,-if a bridge that had been lawfully constructed they are arbitrary and unreasonable, beby it over a non-navigable creek running yond the necessities of the case,—the judithrough certain swamp or slough landsciary will disregard mere forms, and interwhich the drainage commissioners were refere for the protection of rights injuriously quired by statute to drain in order to make affected by such illegal action. The authorthem tillable and fit for cultivation. The ity of the courts to interfere in such casescommissioners, in executing the work of is beyond all doubt. Minnesota v. Barber, draining, found it necessary that the creek 136 U. S. 313, 320, 34 L. ed. 455, 458, 3 Inover which the railway bridge was con- ters. Com. Rep. 185, 10 Sup. Ct. Rep. 862, structed should be deepened and enlarged. I Upon the general subject there is no real conflict among the adjudged cases. What-is under a duty to comply with the demand ever conflict there is arises upon the ques- made upon it to remove, at its own ex: tion whether there has been or will be, in pense, the obstruction which itself has crethe particular case, within the true mean ated and maintains. If the obstruction caning of the Constitution, a 'taking of pri- not be removed except by lowering the tunvate property for public use. If the injury nel to the required depth and (if a tunnel complained of is only incidental to the le- is to be maintained) providing one that gitimate exercise of governmental powers will not interrupt navigation, then the cost for the public good, then there is no taking attendant upon such work must be met by of property for the public use, and a the company. The city asks nothing more right to compensation, on account of such than that the railroad company shall do injury, does not attach under the Constitu- what is necessary to free navigation from tion. Such is the present case.” The opin- an obstruction for which it is responsible, ion concluded: “Without further discus- and (if it intends not to abandon its right sion we hold it to be the duty of the rail- to maintain a tunnel at or near Van Buren way company, at its own expense, to re- street) that it shall itself provide a new move from the creek the present bridge, cul- tunnel with the necessary depth of water vert, timbers, and stones placed there by above it.” Again: "In the case before us it, and also (unless it abandons or surren- the public demands nothing to be done by ders its right to cross the creek at or in the railroad company except to remove the the vicinity of the present crossing) to obstruction which itself placed and mainerect, at its own expense, and maintain, a tains in the river under the condition that new bridge for crossing that will conform navigation should not at any time be thereto the regulations established by the drain- l by interrupted. The removal of such obage commissioners, under the authority of struction is all that is needed to protect the state; and such a requirement, if en navigation. So that whatever cost attends forced, will not amount to a taking of pri- the removal of the obstruction must be vate property for public use within the borne by the railroad company. The condimeaning of the Constitution, nor to a de- tion under which the company placed its nial of the equal protection of the laws." tunnel in the river being met by the com
The latest adjudication by this court was pany, the public has no further demands in West Chicago Street R. Co. v. Chicago, upon it. This cannot be deemed a taking 201 U. S. 506, 524, 50 L. ed. 845, 852, 26 of private property for public use, or a deSup. Ct. Rep. 518, 523. In that case the nial of the equal protection of laws within principal question related to the duty of a the meaning of the Constitution, but is only street railroad company, which had lawfully the result of the lawful exercise of a govconstructed a tunnel under the Chicago ernmental power for the common good. river, to obey an ordinance of the city, re. This appears from the authorities cited in quiring the company, at its own cost and Chicago, B. & Q. R. Co. v. Illinois, supra, expense, to lower its tunnel, so as to pro- just decided. The state court has well said vide for a certain depth under it, which had that to maintain the navigable character been ascertained by competent Federal and of the stream in a lawful way is not, withlocal authority to be necessary for the in- in the meaning of the law, the taking of creased demands of navigation. This court private property or any property right of held, upon the adjudged cases, that the the owner of the soil under the river, such rights of the company, as the owner of the ownership being subject to the right of free fee of the land on either side of the river and unobstructed navigation. People ex rel. or in its bed, were subject to the paramount Chicago v. West Chicago Street R. Co. 203 right of navigation over the waters of the Ill. 551, 557, 68 N. E. 78. What the city river. It said: “If, then, the right of the asks, and all that it asks, is that the rail. railroad company to have and maintain a road company be required, in the exercise tunnel under the Chicago river is subject to of its rights and in the use of its property, the paramount public right of navigation; to respect the public needs as declared if its right to maintain a tunnel in the by competent authority, upon reasonable river is a qualified one, because subject to grounds, to exist. This is not an arbitrary the specific condition in the act of 1874 that or unreasonable demand. It does not, in no tunnel should interrupt navigation; if any legal sense, take or appropriate the the present tunnel is an obstruction to nav- company's property for the public benefit, igation, as, upon this record, we must take but only insists that the company shall it to be; and if the city, as representing not use its property so as to interrupt navi. the state and public, may rightfully insist gation.” that such obstruction shall not longer re- Do the principles announced in the above main in the way of free navigation,-it nec- cases require us to hold, in the present case, essarily follows that the railway company that the making of the alterations of its