218, 18 Am. Rep. 470, it was held that while | Ind. 545, 11 N. E. 469, the supreme court of the owner of a wharf upon a tide-water creek Indiana said: cannot maintain an action for an illegal ob- "Whatever may be the rule of decision struction to the creek, that being a common elsewhere, nothing is better settled in this damage to all who use it, yet for an obstruc-state than that the owners of lots abutting tion adjoining the wharf, which prevents on a street may have a peculiar and distinct vessels from lying in it in the accustomed interest in the easement in the street in front manner, this being a particular damage, he of their lots. This interest includes the right can maintain an action. to have the street kept open and free from any obstruction which prevents or materially interferes with the ordinary means of ingress to and egress from the lots. It is distinguished from the interest of the general public, in that it becomes a right appendant, and In Delaplaine v. Chicago & N. W. R. Co. 42 Wis. 214, 24 Am. Rep. 386, the supreme court of Wisconsin held that "While the riparian proprietor only takes to the water line, it by no means follows, nor are we willing to admit, that he can be de-legally adhering, to the contiguous grounds prived of his riparian rights without compensation. As proprietor of the adjoining land, and as connected with it, he has the right of exclusive access to and from the waters of the lake at that particular place; he has the right to build piers and wharves in front of his land out to navigable waters, in aid of navigation, not interfering with the public use. These are private rights incident to the ownership of the shore, which he possesses distinct from the rest of the public. "It is evident from the nature of the case that these rights of user and of exclusion are connected with the land itself, grow out of its location, and cannot be materially abridged or destroyed without inflicting an injury upon the owner which the law should redress. It seems unnecessary to add the remark that these riparian rights are not common to the citizens at large, but exist as incidents to the right of the soil itself adjacent to the water. In other words, according to the uniform doctrine of the best authorities, the foundation of riparian rights, ex vi termini, is the ownership of the bank These riparian rights are undoubted elements in the value of property thus situated. If destroyed, can anyone seriously claim that the plaintiffs have not suffered a special damage in respect to their property, different both in degree and kind from that sustained by the general public? or shore. It seems to us not." In Brisbine v. St. Paul & S. C. R. Co. 23 Minn. 114, it was held by the supreme court of Minnesota that the state could not give a railroad company the right to occupy a riparian front without making compensation for the injury to riparian rights. The court, after citing cases in this court, said: "According to the doctrine of these decisions the plaintiff possessed the right to enjoy free communication between his abutting premises and the navigable channel of the river, to build and maintain, for his own and the public use, suitable landing places, wharves, etc. The rights which thus belonged to him as riparian owner of the abutting premises were valuable property rights, of which he could not be devested without consent, except by due process of law, and, if for public purposes, upon just compensation." In Indiana, B. & W. R. Co. v. Eberle, 110 and the improvements thereon as the owner may have adapted them to the street. To the extent that the street is a necessary and convenient means of access to the lot, it is as much a valuable property right as the lot itself. It cannot, therefore, be perverted from the uses to which it was originally dedicated, nor devoted to uses inconsistent with street purposes, without the abutting lotowner's consent, until due compensation be first made according to law for any injury and damage which may directly result from such interference." This right of the owner of a lot abutting on a street to free access to and from the street, which right is analogous to the one we are here considering, has been frequently considered by the state courts, and some of the conclusions reached are thus stated in 2 Dillon's Municipal Corporations, 4th ed. § 656: It has been "The full conception of the true nature of a public street in a city, as respects the rights of the public on the one hand, and the rights of the adjoining owner on the other, has been slowly evolved from experience. only at a recent period . . that these their relations to each other, come to be untwo distinct rights have, separately and in derstood and defined with precision. The injustice to the abutting owner arising from the exercise of unrestrained legislative power ter necessarily sought legal redress, and the discussion thence ensuing led to a more careful ascertainment of the nature of streets, and of the rights of the adjoining owner in respect thereof. It was seen that he had, in common with the rest of the public, a right of passage. But it was further seen that he had rights not shared by the public at large, special and peculiar to himself, and which arose out of the very relation of his lot to the street in front of it; and that these rights, whether the bare fee of the streets was in the lotowner or in the city, were rights of property, and as such ought to be, and were, as sacred from legislative invasion as his right to the lot itself. In cities the abutting owner's property is essentially dependent upon sewer, gas, and water connections; for these such owner has to pay or contribute out of his own purse. He has also to pay or contribute towards the cost of sidewalks and pavements. These expenditures, as well as the relations of his lot to the street, give him over streets in cities was such that the abut •174 a special interest in the street in front of him, Leaving the decisions of the state courts, distinct from that of the public at large. He let us turn to those of this court,—and Í may make, as of right, all proper uses of the shall not consider it necessary to advert to street, subject to the paramount right of the the earlier decisions, because they are republic for all street uses proper, and subject ferred to and considered in the later ones. also to reasonable and proper municipal and police regulation. Such rights, being property rights, are, like other property rights, under the protection of the Constitution." The courts of New York, which formerly took another view, now hold that right of access is a valuable property right and entitled to constitutional protection as such. Steers v. Brooklyn, 101 Ñ. Y. 51, 4 N. E. 7; Langdon v. New York, 93 N. Y. 129. It is true that, in the later case of Sage V. New York, 154 N. Y. 62, 38 L. R. A. 606, 47 N. E. 1096, it was held that the riparian rights of the owner of lots abutting on the Harlem river, a tide-water stream, are subordinate to the right of the city of New York, under its ancient charters supplemented by constitutional legislation and state grants, to fill in and make improvements, such as an exterior street, docks, and bulkheads, from the high-water mark in front of his upland to and below low-water mark, essential to navigation and commerce, without compensation. But the opinion shows that the decision was put wholly upon the law of the state of New York as declared in the authorities cited. Thus, the language of Gerard in his work on Titles to Real Estate is adopted: St. Paul & P. R. Co. v. Schurmeir, 7 Wall 272, 19 L. ed. 74, was a case involving the right of the complainant, Schurmeir, to enjoin the St. Paul & P. Railway Company from taking possession and building its railroad upon certain ground in the city of St. Paul, Minnesota, bordering on the Mississippi river, and lying between lots of the complainant and that river. The railroad company claimed to own the land in fee under a congressional land grant of May 22, 1857. The supreme court of Minnesota held that the complainant was entitled to a decree as prayed for; and this court, on appeal, affirmed the judgment of the supreme court of Minnesota, holding that, under the case of Dutton v. Shirey, 1 Black, 23, 17 L. ed. 29, although riparian owners are limited to the stream, still they also have the same right to construct suitable landings and wharves, for the convenience of commerce and navigation, as is accorded riparian properties bordering on navigable waters affected by the ebb and flow of the tide; and, speaking of the contention, on behalf of the railroad company, that the complainant had dedicated the premises to the public as a street, and had thus parted with his title to the same, this court said: "Suppose the construction of that provi sion, as assumed by the respondents, is correct, it is no defense to the suit, because it is nevertheless true that the municipal corporation took the title in trust, impliedly, if not expressly, designated by the acts of the party making the dedication. They could not, nor could the state, convey to the re "It has been established in this state [New York] by judicial decision that the legislature of the state has an inherent right to control and regulate the navigable waters within the state. . . . The individual right of the riparian owner was considered as subject to the right of the state to abridge or destroy it at pleasure by a construction or filling in beyond his outer line, and that, too, without compensation made.spondents any right to disregard the trust, And again, the court says: "In other states, some of the authorities are in accord, while others are opposed to the rule adopted in this state. The want of harmony is probably owing to the difference in the rule as to the ownership of the tideway, which is held in some jurisdictions to belong to the state, and in others to the riparian proprietors. This also accounts for the want of harmony in the Federal courts, as they follow the courts of the state where the case arose, unless some question arises under an act of Congress." This case, therefore, must be regarded as an adjudication that, in the state of New York, the nature and extent of riparian rights are to be determined by the law of the state, and that the Federal courts, in passing upon such rights, follow that law. In Backus v. Detroit, 49 Mich. 110, 13 N. W. 380, it was held by the supreme court of Michigan, per Cooley, J., that the better and more sensible doctrine is that the land under the water in front of a riparian proprietor, though beyond the line of private ownership, cannot be taken and appropriated to a public use by a railway company under its right of eminent domain without making compensation to the riparian proprietor. or to appropriate the premises to any purpose which would render valueless the adjoining real estate of the complainant." In Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 984, on appeal from the circuit court of the district of Wisconsin, it was held that the owner of land bounded by a navigable river has certain riparian rights, whether his title extend to the middle of the stream or not; that among these are free access to the navigable part of the stream, and the right to make a landing, wharf, or pier, for his own use, or for the use of the public; that those rights are valuable, and are property, and can be taken for the public good only when due compensation is made. In the opinion, per Miller, J., it was said: "Whether the title of the owner of such a lot extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a nav. igable stream; and among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf, or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those *179 may be. This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It is a right of which, when once vested, the owner can only be deprived in accordance with established law, and, if necessary that it be taken for the public good, upon due compensation." the case cited the court held that this ripar ian right was property and valuable; and, though it must be enjoyed in due subjection to the rights of the public, it could not be arbitrarily or capriciously impaired." In Eldridge v. Trezevant, 160 U. S. 452, 40 L. ed. 490, 16 Sup. Ct. Rep. 345, it was again held by this court, following Hardin v. Jordan, 140 U. S. 384, 35 L. ed. 434, 11 Sup. Ct. Rep. 808, 838, and Shively v. Bowlby, 152 U. S. 1, 58, 38 L. ed. 331, 14 Sup. Ct. Rep. 548, that the nature and legal incidents of land Accordingly this court reversed the decree of the circuit court, and instructed it "to enter a decree enjoining [the city of Milwau-abutting on navigable streams were declared kee] the defendants below from interfering with plaintiff's wharf, reserving, however, the right of the city to remove or change it so far as may be necessary in the actual improvement of the navigability of the river, and upon due compensation made." The opinion in Yates v. Milwaukee, like that of the majority in the present case, may be liable to the criticism made upon it in Shively v. Bowlby, 152 U. S. 1, 36, 38 L. ed. 331, 14 Sup. Ct. Rep. 548, as having gone too far in saying that the owner of land adjoining any navigable water, whether within or above the ebb and flow of the tide, has, independently of local law, a right of property in the soil below high-water mark, and the right to build out wharves so far, at least, as to reach water really navigable. But, so corrected, it is a direct authority for the proposition we are now considering, namely, that riparian rights, when recognized as existing by the law of the state, are a valuable property, and the subject of compensation when taken for public use. In the case of Weber v. State Harbor Comrs. 18 Wall. 64, 21 L. ed. 801, it is said: "It is unnecessary for the disposition of this case to question the doctrine that a riparian proprietor whose land is bounded by a navigable stream has the right of access to the navigable part of the stream in front of his land, and to construct a wharf or pier projecting into the stream for his own use, or the use of others, subject to such general rules and regulations as the legislature may prescribe for the protection of the public, as was held in Yates v. Milwaukee. On the contrary, we recognize the correctness of the doctrine as stated and affirmed in that case." In Potomac S. B. Co. v. Upper Potomac S. B. Co. 109 U. S. 682, 27 L. ed. 1073, 3 Sup. Ct. Rep. 445, 4 Sup. Rep. 15, Mr. Justice Matthews, delivering the opinion of this court, quoted with approval the definition of a riparian owner and of his right of access to a navigable river in front of his lot, given by Mr. Justice Miller in Yates v. Milwaukee, In Illinois C. R. Co. v. Illinois, 146 U. S. 445, 36 L. ed. 1039, 13 Sup. Ct. Rep. 110, this court said: "The riparian proprietor is entitled, among other rights, as held in Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 984, to access to the navigable part of the water on the front of which lies his land, and for that purpose to make a landing, wharf, or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may prescribe for the protection of the rights of the public. In by the law of the state wherein the land was situated. A bill was filed in the circuit court of the United States for the western district of Louisiana by Eldridge, a citizen of Mississippi, against the board of engineers of the state of Louisiana and one Trezevant, who had been employed by that board to construct a public levee through a plantation belonging to the complainant and situated in Carroll township, state of Louisiana, in pursuance of an act of the general assembly of the state. The circuit court dismissed the bill, and an appeal was taken to this court. It appeared, and indeed was conceded by the appellant, that under the law and constitution of the state, and under French law existing before the transfer of the territory to the United States, land for the construction of a public levee on the Mississippi river could be taken, without compensation, by reason of a servitude on such lands for such a purpose. But it was contended on behalf of the appellant that, because he was a citizen of another state, and because he derived his title through a patent of the United States, that whatever may have been the condition of the ancient grants, no such condition attached to his ownership, and that the lands bordering on a navigable stream were as much within the protection of the constitutional principle awarding compensation as other property. After reviewing the provisions of the Constitution and laws of the state and the deci sions of the state court construing them, and citing the Federal decisions, this court said: "These decisions not only dispose of the proposition that lands situated within a state, but whose title is derived from the United States, are entitled to be exempted from local regulations admitted to be applicable to lands held by grant from the state, but also of the other proposition that the provisions of the 14th Amendment extend to and override public rights existing in the form of servitudes or easements, held by the courts of a state to be valid under the Constitution and laws of such state. "The subject-matter of such rights and regulations falls within the control of the states, and the provisions of the 14th Amendment of the Constitution of the United States are satisfied if, in cases like the present one, the state law, with its benefits and its obliga tions, is impartially administered. v. Sauvinet, 92 U. S. 90, 23 L. ed. 678; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Missouri v. Lewis, 101 U. S. 22, Walker *182 state law, and not a servitude created by Federal law. In the states which originally formed this Union, or in those admitted since, it has sub nom. Bowman v. Lewis, 25 L. ed. 989; | Hallinger v. Davis, 146 U. Ś. 314, 36 L. ed. 986, 13 Sup. Ct. Rep. 105. The plaintiff in error is, indeed, not a citizen of Louisiana, but he concedes that, as respects his prop-never been held that the United States, erty in that state, he has received the same measure of right as that awarded to its citizens, and we are unable to see, in the light of the Federal Constitution, that he has been deprived of his property without due process of law, or been denied the equal protection of the laws." The case of Gibson v. United States, 166 U. S. 269, 41 L. ed. 996, 17 Sup. Ct. Rep. 578, is cited and relied on in the majority opinion. In that case the owner of a farm fronting on the Ohio river filed a petition in the court of claims complaining of the construction by the United States of a dyke in the bed of the river, and which the plaintiff alleged to interfere with her landing. The principal finding of the court of claims was as follows: "Claimant's access to the navigable portion of the stream was not entirely cut off; at a 9-foot stage of the water, which frequently occurs during November, December, March, April, and May, she could get into her dock in any manner; that from a 3-foot stage she could communicate with the navigable channel through the chute; that at any time she could haul out to the channel by wagon." The only injury suffered, therefore, by the plaintiff was the inconvenience of having to haul her produce by wagon over and across the dike in such portions of the year when the water was below a 3-foot stage, and when, at that part of the Ohio river, navigation was almost wholly suspended. At other times, and when the stage of the water permitted navigation, the plaintiff had the use of her dock. The court of claims dismissed the petition, and its decree was affirmed by this court. There was no pretense that the dike in question touched the plaintiff's land at any point. The Chief Justice, in the opinion, put the judgment chiefly on the decisions of the state court. He said: "By the established law of Pennsylvania, as observed by Mr. Justice Gray in Shively v. Bowlby, 'the owner of lands bounded by navigable water has the title in the soil between high and low water mark, subject to the public right of navigation and to the authority of the legislature to make public improvements upon it, and to regulate his use of it."" And after citing several Pennsylvania cases, the Chief Justice concluded his opinion by saying: "In short, the damage resulting from the prose cution of this improvement of a navigable highway, for the public good, was not the result of a taking of the appellant's property, and was merely incidental to the exercise of a servitude to which her property had always been subject." It is obvious, therefore, that in this case the court applied the doctrine of Eldridge v. Trezevant, which was cited in the opinion, and that the servitude to which the plaintiff's lands were said to be subject was a servitude existing under the through any of their departments, could impose servitudes upon the lands owned by the states or by their grantees. The cases are all the other way. New Orleans v. United States, 10 Pet. 736, 9 L. ed. 602; Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224; Van Brocklin v. Tennessee, 117 U. S. 151, 168, sub nom. Van Brocklin v. Anderson, 29 L. ed. 845, 851, 6 Sup. Ct. Rep. 670; Shively v. Bowlby, 152 U. S. 1, 38 L. ed. 331, 14 Sup. Ct. Rep. 548. In the recent case of Morris v. United States, 174 U. S. 196, 43 L. ed. 946, 19 Sup. Ct. Rep. 649, the question of the nature and extent of riparian rights on the Potomac river in front of the city of Washington was involved. The majority of the court held that, under the evidence, the titles of the owners of lots in the city plans were bounded by Water street, and that, therefore, such owners possessed no riparian rights entitled to compensation by the United States in carrying out a scheme of improvement of the waters of the river. The opinion of the court proceeded on the assumption, as matter of law, that owners of land abutting on the river would be possessed of riparian rights, and entitled, therefore, to compensation if such rights were impaired or destroyed by the improvements proposed by the government, but held, as a conclusion from the evidence, that, as matter of fact, the owners of lots under the city plans did not have titles extending to the river, but that their lots were bounded by Water street, the title to which was in the city, and therefore no compensation for ex-* clusion from the river could be enforced. The case, therefore, may be properly regarded as an authority for the proposition that the owners of lots abutting on a navigable river are entitled to compensation if their riparian right of access is taken from them by improvements made by the government to promote the navigability of the Potomac river. The long investigation by court and counsel was, indeed, labor in vain if, at last, riparian rights possessed by the lotowners should be decided not to be private property within the protection of the Constitution. If, then, by the law of the state in which the land is situated, the right of access to navigable streams is one of the incidents of abutting land, if such rights are held to be property and valuable as such, can the United States, under the incidental power arising out of their jurisdiction over interstate commerce, destroy such right of access without making compensation? I think that this question may well be answered in the words of Gould in his work on Waters, 2d ed. § 151: "When it is conceded that riparian rights are property, the question as to the right to take them without compensation would appear to be at an end." The argument against the right of com 184 pensation in such a case seems to be based upon an assumption that because the government has the power to make improvements in navigable waters it follows that it can do so without making compensation to the owners of private property destroyed by the improvements. But this assumption is, as I think, entirely without foundation, and, if permitted by the courts to be made practically applicable, would amount to a disre gard of the express mandate of the Constitution that private property shall not be taken for public uses without just compensation. supreme control over the regulation of commerce, but if, in exercising that supreme control, it deems it necessary to take private property, then it must proceed subject to the limitations imposed by this 5th Amendment, and can take only on payment of just compensation." "The power to regulate commerce is not given in any broader terms than that to establish postoffices and post roads; but if Congress wishes to take private property upon which to build a postoffice, it must either agree upon the price with the owner, or in condemnation pay just compensation therefor. And that which is true in respect to a condemnation of property for a postoffice is equally true when condemnation is sought for the purpose of improving a natural highway." As already remarked, the power of the government to control and regulate naviga ble streams, and to carry into effect schemes for their improvement, is not directly given by the Constitution, but is only recognized by the courts as an incident to the power expressly given to regulate commerce between the states and with foreign nations. "The power to establish postoffices and to create courts within the states was conferred upon the Federal government; included in it was authority to obtain sites for such of fices and for courthouses, and to obtain them by such means as were known and appropriate. The right of eminent domain was one of those means well known when the Constitution was adopted, and employed to obtain land for public uses. Its existence, therefore, in the grantee of that power, ought not to be questioned. The Constitution itself contains an implied recognition of it beyond what may justly be implied from the express Now, if it be held that Congress has powgrants. The 5th Amendment contains a er to take or destroy private property lying provision that private property shall not be under or adjacent to navigable streams, taken for public use without just compensa- without compensating their owners, because tion. What is that but an implied asser- it is done in the exercise of the power to regtion that, on making just compensation, itulate commerce, then it must follow that may be taken?" Kohl v. United States, 91 U. S. 374, 23 L. ed. 452. Accordingly in that case, a proceeding instituted by the United States to appropriate a parcel of land in the city of Cincinnati as a site for a postoffice and other public uses was upheld, but those proceedings contemplated compensation, and Congress, in the act authorizing the proceedings, appropriated money for the purpose. the same unlimited power can be exercised with respect to private property not in nor bounded by water. The power of Congress to regulate commerce is not restricted to commerce carried on in lakes and rivers, but equally extends to commerce carried on by land. If Congress, yielding to a loud and increasing popular demand that it should take possession and control of the railroads of the country, or should undertake the construction of new railroads as arteries of commerce, this novel notion, that the exist ence of the right to regulate commerce creates of itself, and independently of the law of the state, a Federal servitude on all property to be affected by the exercise of that right, would apply to all kinds of private property wherever situated. But it may be asked why, if the question as to riparian rights is one of state law, the decision of the supreme court of Michigan in the present case, denying the claim of the abutting owner for compensation for the loss of his access to the river, is not conclusive? Now if, in order to render valid an appropriation of private property for the use of the government in the erection of postoffices and courthouses, compensation must be made, what is the difference in principle if the government is appropriating private property for the purpose of improving the navigation of a navigable stream? This question has been already put and answered by this court in Monongahela Nav. Co. v. United States, 148 U. S. 312, 37 L. ed. 463, 13 Sup. Ct. Rep. 622, where it was said: "It cannot be doubted that Congress has the power in its discretion to compel the removal of this lock and dam as ob- *The answer to this question will be found structions to the navigation of the river, or in the opinion of that court. Instead of asto condemn and take them for the purpose of certaining and applying, or professing to ap promoting its navigability. In other words, ply, the law of the state in respect to ripariit is within the competency of Congress to an rights, the supreme court of Michigan make such provision respecting the improve-treated the question as one under Federal ment of the Monongahela river as in its judgment the public interests demand. Its dominion is supreme. "But, like other powers granted to Congress by the Constitution, the power to regulate commerce is subject to all the limitations imposed by such instrument, and among them is that of the 5th Amendment we have heretofore quoted. Congress has 21 S. C.-5. law, and, following what it understood to be the doctrine laid down by several Federal circuit court decisions as obligatory, held that it was competent for the government of the United States, in the exercise of its power to regulate commerce between the states, to deprive abutting owners of their right of access to navigable streams without compensating them for their loss. The cases |