Philadelphia Co. v. Stimson, 223 U.S. 605 (1912)

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Filed: 1912-03-04Precedential Status: PrecedentialCitations: 223 U.S. 605Docket: 70

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223 U.S. 605
32 S.Ct. 340
56 L.Ed. 570

PHILADELPHIA COMPANY, Appt.,
v.
HENRY L. STIMSON, Secretary of War.
No. 70.
Argued November 16, 1911.
Decided March 4, 1912.

[Argument of Counsel from pages 605-607 intentionally omitted]
Messrs. William L. Marbury, Morgan H. Beach, W. Graham Bowdoin,
and Samuel McClay for appellant.
[Argument of Counsel from pages 607-611 intentionally omitted]
Assistant Attorney General Knaebel for appellee.
[Argument of Counsel from page 611 intentionally omitted]
[Argument of Counsel from pages 611-613 intentionally omitted]
Mr. Justice Hughes delivered the opinion of the court:

1

This suit was brought in the supreme court of the District of Columbia to set
aside certain harbor lines in the harbor of Pittsburg, Pennsylvania, so far as they
encroached upon land owned by the complainant, and to restrain the Secretary
of War from causing criminal proceedings to be instituted against the
complainant because of the reclamation and occupation of its land outside the
prescribed limits. The court of appeals of the District affirmed a decree
sustaining a demurrer to the bill, and the complainant appeals.

2

The allegations of the bill, in substance, are as follows:

3

The complainant, a corporation of the commonwealth of Pennsylvania, is the
owner in fee of 'Brunot's island,' formerly Chartier's or Hamilton's island, in the
Ohio river, in Allegheny county, Pennsylvania. In 1858, a statute was enacted
in Pennsylvania, providing for the appointment of commissioners to ascertain
and mark the lines of ordinary high and low water in the Allegheny,
Monongahela, and Ohio rivers in the vicinity of Pittsburg. The act recited that
the lines of land along the shores of the rivers had not been clearly ascertained,
and it was important to all persons interested that their several rights and
privileges should be defined. After the commissioners' surveys had been
completed and the lines located, opportunity was to be afforded in the court by
which they were appointed, for any needed corrections; and the map or plan
finally determined upon was to be recorded. The statute declared that 'the lines
so approved shall forever after be deemed, adjudged, and taken firm and stable
for the purposes aforesaid.' Proceedings were had accordingly and the high- and
low-water lines along the shore of Brunot's island were definitely fixed. In
consequence the bill asserts that all the land, whether or not under water, inside
of the commissioners' lines, became the property of the owners of Brunot's
island; and that by virtue of the statute, and the action of the commissioners
under it in fixing the high-water line as a permanent boundary, the right of the
owners of the island to accretions beyond that line was taken away, while at the
same time they were no longer subject to loss or diminution of their land by
reason of its submergence 'through the avulsion of floods or freshets or through
gradual erosion.'

4

Subsequent to the establishment, in 1865, of the state commissioners' line, a
considerable portion of the shore of the island, 'on the so-called back channel,
within the said high-water mark,' was washed away from time to time by heavy
floods and freshets, so that a large part of the upland was slightly submerged,
but not to an extent sufficient to permit of navigation. Some years ago, the
United States government, in order to increase the depth of water in the harbor
of Pittsburg, caused a dam to be constructed across the Ohio river a short
distance below Brunot's island, known as the Davis island dam. And the effect
of this dam, says the bill, by the increase of the depth of water in the channel,
was to submerge Brunot's island to a far greater extent, and to make the water
over the complainant's land navigable 'at certain times, and for certain
purposes,' where it was not navigable before.

5

In 1895, the Secretary of War, claiming to act under the authority of § 12 of the
act of Congress of September 19, 1890 [26 Stat. at L. 455, chap. 907], and
knowing that the shore of Brunot's island had been washed away by floods and
freshets, established a harbor line which ran across the complainant's land
within the line of the state commissioners. It is further alleged that although the
submerged land was generally covered by water, 'it was not ordinarily
navigable water,' and 'has never constituted, nor does it now constitute, a part of
the public navigable waters of the United States;' that no authority was
conferred by the act of Congress upon the Secretary of War to regulate or
interfere with the use of the complainant's land by the establishment of harbor
lines upon the same; and that, even if the water over this land was in fact part of
the public navigable waters of the United States, without being rendered thus
navigable by the construction of the dam, still the Secretary of War had no right
so to run the harbor line over the land in question as to deprive the complainant
of its use and enjoyment. It was the right of the complainant, the bill avers, to
repair the damage caused by floods and freshets, and to reclaim the submerged
portion by filling in or wharfing, 'keeping at all times within the lines of the
part that had been torn away by the violence of the waters.'

6

In 1907, the Secretary of War, claiming authority under § 11 of the act of
Congress of March 3, 1899 [30 Stat. at L. 1151, chap. 425, U. S. Comp. Stat.
1901, p. 3541], against the complainant's protest, changed the harbor line. The
report of the United States engineer at Pittsburg stated that the conditions of
high and low water had not changed since 1895, but as, along a part of the
shore of the island, the harbor line of 1895 ran several hundred feet outside
high-water mark as it then existed, it seemed advisable to change it so as to
coincide with the actual high-water mark. A copy of the report with the order of
the Secretary of War, dated February 23, 1907, was annexed to the bill and
made a part of it. In this it is stated that the location of the proposed harbor
lines was within the bed of the stream as it existed as a physical fact.

7

The bill further shows that to facilitate the delivery of coal for the operation of
its power house on the island, the complainant desired to reclaim a part of it
which had been submerged by establishing a coal wharf on the back channel,
where both the harbor line of 1895 and that of 1907 'ran some distance
landward of the said state commissioners' high-water line.' According to the
proposed plans, the wharf or pier was to extend over the complainant's land and
to cross both of the harbor lines to the state commissioners' line. While these
plans were being perfected, the Secretary of War, through his representative,
the United States engineer officer at Pittsburg, declared to the complainant that
it had no right to build upon its land across either of the harbor lines, and he
refused to permit the complainant to reclaim its land or to build its wharf
thereon outside the harbor line of 1907. He threatened that if it undertook to do
so, he would prevent it and cause the complainant and its employees 'to be
prosecuted and fined by the authorities of the Federal government' for
violations of the acts of Congress of September 19, 1890, and March 3, 1899. It
was further charged that if the Secretary of War had authority to fix the original
harbor line of 1895, that his power was exhausted by what was then done, and
that the harbor line of 1907 was wholly unauthorized.

8

In consequence of the severe penalties prescribed by the acts of Congress for
the construction of buildings, piers, or wharves outside any harbor line
established by the Secretary of War, and by reason of the defendant's threats of
prosecution in case the complainant carried out its plan of reclamation and the
construction of its wharf, the bill avers that the complainant is prevented from
making use of its property; that the defendant's action constitutes a taking of its
property for public use without just compensation; that it is subjected in its
endeavor, so long as the harbor line remains unmodified, to a multiplicity of
criminal prosecutions; and that the harbor line is a cloud upon its title.

9

The provisions of the acts of Congress, referred to in the bill, are set forth in the
margin.

10

Section 12 of the act of September 19, 1890 (chap. 907, 26 Stat. at L. 426,
455), provided:

11

'Sec. 12. That section twelve of the river and harbor act of August eleventh,
eighteen hundred and eighty-eight [25 Stat. at L. 425, chap. 860, U. S. Comp.
Stat. 1901, p. 3526], be amended and re-enacted so as to read as follows:

12

'Where it is made manifest to the Secretary of War that the establishment of
harbor lines is essential to the preservation and protection of harbors, he may,
and is hereby authorized to, cause such lines to be established, beyond which no
piers, wharves, bulkheads, or other works shall be extended or deposits made,
except under such regulations as may be prescribed from time to time by him;
and any person who shall wilfully violate the provisions of this section, or any
rule or regulation made by the Secretary of War in pursuance of this section,
shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be
punished by a fine not exceeding one thousand dollars, or imprisonment not
exceeding one year, at the discretion of the court, for each offense.'

13

Sections 11, 12, and 17 of the act of March 3, 1899 (chap. 425, 30 Stat. at L.
1121, 1151-1153, U. S. Comp. Stat. 1901, pp. 3541, 3542, 3544), are as
follows:

14

'Sec. 11. That where it is made manifest to the Secretary of War that the
establishment of harbor lines is essential to the preservation and protection of
harbors, he may, and is hereby authorized to, cause such lines to be established,
beyond which no piers, wharves, bulkheads, or other works shall be extended or
deposits made, except under such regulations as may be prescribed from time to
time by him; Provided, prescribed from time to time by him: Provided, grants to
any person or persons permission to extend piers, wharves, bulkheads, or other
works, or to make deposits in any tidal harbor or river of the United States
beyond any harbor lines established under authority of the United States, he
shall cause to be ascertained the amount of tide water displaced by any such
structure or by any such deposits, and he shall, if he deem it necessary, require
the parties to whom the permission is given to make compensation for such
displacement, either by excavating in some part of the harbor, including tidewater channels between high- and low-water mark, to such an extent as to
create a basin for as much tide water as may be displaced by such structure or
by such deposits, or in any other mode that may be satisfactory to him.

15

'Sec. 12. That every person and every corporation that shall violate any In
demurring to the bill the defendant asserted that it was bad in substance, and
also specially assigned the following grounds:

16

'1. This proceeding is virtually a suit against the United States.

17

'2. This court has no jurisdiction to restrain the enforcement of a penalty or
prosecution for violation of law.

18

'3. This court has no jurisdiction to restrain the defendant from instituting
criminal proceedings against complainant.

19

'4. This court has no jurisdiction to declare or define harbor lines or boundary
lines of land outside the District of Columbia and in the state of Pennsylvania.

20

'5. There is no jurisdiction in this court to base any decree removing cloud upon
an alleged title of complainants in realty in the state of Pennsylvania, nor to
accomplish the same by declaring the harbor lines referred to in the bill null
and void.'

21

First. If the conduct of the defendant constitutes an unwarrantable interference
with property of the complainant, its resort to equity for protection is not to be
defeated upon the ground that the suit is one against the United States. The
exemption of the United States from suit does not protect its officers from
personal liability to persons whose rights of property they have wrongfully
invaded. Little v. Barreme, 2 Cranch, 170, 2 L. ed. 243; United States v. Lee,
106 U. S. 196, 220, 221, 27 L. ed. 171, 181, 182, 1 Sup. Ct. Rep. 240; Belknap
v. Schild, 161 U. S. 10, 18, 40 L. ed. 599, 601, 16 Sup. Ct. Rep. 443; Tindal v.
Wesley, 167 U. S. 204, 42 L. ed. 137, 17 Sup. Ct. Rep. 770; Scranton v.
Wheeler, 179 U. S. 141, 152, 45 L. ed. 126, 133, 21 Sup. Ct. Rep. 48. And in
case of an injury threatened by his illegal action, the officer cannot claim
immunity from injunction process. The principle has frequently been applied
with respect to state officers seeking to enforce unconstitutional enactments.
Osborn v. Bank of United States, 9 Wheat. 738, 843, 868, 6 L. ed. 204, 229,
235; Davis v. Gray, 16 Wall. 203, 21 L. ed. 447; Pennoyer v. McConnaughy,
140 U. S. 1, 10, 35 L. ed. 363, 365, 11 Sup. Ct. Rep. 699; Scott v. Donald, 165
U. S. 107, 112, 41 L. ed. 648, 653, 17 Sup. Ct. Rep. 262; Smyth v. Ames, 169
U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418; Ex parte Young, 209 U. S. 123,
159, 160, 52 L. ed. 714, 728, 729, 13 L.R.A.(N.S.) 932, 28 Sup. Ct. Rep. 441,
14 A. & E. Ann. Cas. 764; Ludwig v. Western U. Teleg. Co. 216 U. S. 146, 54
L. ed. 423, 30 Sup. Ct. Rep. 280; Herndon v. Chicago, R. I. & P. R. Co. 218 U.
S. 135, 155, 54 L. ed. 970, 976, 30 Sup. Ct. Rep. 633; Hopkins v. Clemson
Agri. College, 221 U. S. 636, 643-645, 55 L. ed. 890, 894, 895, 35 L.R.A.
(N.S.) 243, 31 Sup. Ct. Rep. 654. And it is equally applicable to a Federal
officer acting in excess of his authority or under an authority not validly
conferred. Noble v. Union River Logging R. Co. 147 U. S. 165, 171, 172, 37 L.
ed. 123, 125, 126, 13 Sup. Ct. Rep. 271; American School v. McAnnulty, 187
U. S. 94, 47 L. ed. 90, 23 Sup. Ct. Rep. 33.

22

The complainant did not ask the court to interfere with the official discretion of
the Secretary of War, but challenged his authority to do the things of which
complaint was made. The suit rests upon the charge of abuse of power, and its
merits must be determined accordingly; it is not a suit against the United States.

23

Second. The second and third grounds of demurrer, specially stated, raise the
question as to the jurisdiction of the court to restrain the defendant from
instituting criminal proceedings.

24

A court of equity, said this court in Re Sawyer, 124 U. S. 200, 210, 31 L. ed.
402, 405, 8 Sup. Ct. Rep. 482, 'has no jurisdiction over the prosecution, the
punishment, or the pardon of crimes or misdemeanors. . . . To assume such a
jurisdiction, or to sustain a bill in equity to restrain or relieve against
proceedings for the punishment of offenses, . . . is to invade THE DOMAIN OF
THE COURTS OF COMMON LAW, Or of the executive and administrative
department of the government.' Harkrader v. Wadley, 172 U. S. 148, 170, 43 L.
ed. 399, 406, 19 Sup. Ct. Rep. 119; Fitts v. McGhee, 172 U. S. 516, 531, 43 L.
ed. 535, 542, 19 Sup. Ct. Rep. 269; 2 Story, Eq. Jur. § 893. But a distinction
obtains when it is found to be essential to the protection of the property rights,
as to which the jurisdiction of a court of equity has been invoked, that it should
restrain the defendant from instituting criminal actions involving the same legal
questions. This is illustrated in the decisions of this court in which officers have
been enjoined from bringing criminal proceedings to compel obedience to
unconstitutional requirements. Davis & F. Mfg. Co. v. Los Angeles, 189 U. S.
207, 217, 218, 47 L. ed. 778, 780, 781, 23 Sup. Ct. Rep. 498; Dobbins v. Los
Angeles, 195 U. S. 223, 241, 49 L. ed. 169, 177, 25 Sup. Ct. Rep. 18; Ex parte
Young, 209 U. S. 123, 161, 162, 52 L. ed. 714, 729, 730, 13 L.R.A.(N.S.) 932,
28 Sup. Ct. Rep. 441, 14 A. & E. Ann. Cas. 764; Western U. Teleg. Co. v.
Andrews, 216 U. S. 165, 54 L. ed. 430, 30 Sup. Ct. Rep. 286. In this, there is
no attempt to restrain a court from trying persons charged with crime, or the
grand jury from the exercise of its functions, but the injunction binds the
defendant not to resort to criminal procedure to enforce illegal demands.

25

It is urged that the statute authorizing the Secretary of War to prevent
encroachments upon navigable streams is a valid one, and that the decisions
cited do not apply. The validity of the statute is not attacked, because of the
assumption that it is not to be construed to contemplate or authorize the alleged
deprivation of property. Where the officer is proceeding under an
unconstitutional act, its invalidity suffices to show that he is without authority,
and it is this absence of lawful power and his abuse of authority in imposing or
enforcing, in the name of the state, unwarrantable exactions or restrictions, to
the irreparable loss of the complainant, which is the basis of the decree. Ex
parte Young, 209 U. S. p. 159, 52 L. ed. 728, 13 L.R.A. (n.s.) 932, 28 Sup. Ct.
Rep. 441, 14 A. & E. Ann. Cas. 764. And a similar injury may be inflicted, and
there may exist ground for equitable relief, when an officer, insisting that he
has the warrant of the statute, is transcending its bounds, and thus unlawfully
assuming to exercise the power of government against the individual owner, is
guilty of an invasion of private property.

26

By § 12 of the act of March 3, 1899, it was provided that every person and
every corporation which should violate any provision of § 11, relating to the
observance of harbor lines, or any rule or regulation made by the Secretary of
War in pursuance of that section, should be guilty of a misdemeanor and
punished by fine or imprisonment. By § 17 it was made the duty of district
attorneys of the United States to prosecute all offenders whenever requested by
the Secretary of War. If the complainant's rights, as against the defendant, were
as claimed, it was entitled to adequate protection. And, in such case, the
remedy might properly embrace the restraining of unfounded prosecutions.

27

Third. The fourth and fifth special grounds of demurrer assert that the supreme
court of the District of Columbia had no jurisdiction to define boundaries in the
state of Pennsylvania, or to remove a cloud upon title to land in that state.

28

In dealing with these objections, it is important to observe the precise nature of
the suit. It was not to determine a controversy as between conflicting claimants
under the local law. It was not to restrain trespass. Northern Indiana R. Co. v.
Michigan C. R. Co. 15 How. 233, 14 L. ed. 674; Ellenwood v. Marietta Chair
Co. 158 U. S. 105, 39 L. ed. 913, 15 Sup. Ct. Rep. 771. It was not brought to
try the naked question of the title to the land. Massie v. Watts, 6 Cranch, 148,
158, 3 L. ed. 181, 185. While the complainant's title lay at the foundation of the
suit, and it would be necessary for the complainant to prove it, if denied, still, if
its title to the land under water were established or admitted to be as alleged,
the question would remain whether the defendant, in imposing restrictions upon
the use of the property, was acting by virtue of authority validly conferred by a
general act of Congress. This was the principal question which the complainant
sought to have determined. The defendant is within the District, amenable to
the process of the court. There is no ground upon which it may be denied
jurisdiction to decide whether he should be restrained from continuing his
opposition to the complainant's plan of improvement. Rather should it be said
that the case falls within the general rule sustaining the jurisdiction of a court
of equity which has control of the person of the defendant and may compel
obedience to its decree. Phelps v. McDonald, 99 U. S. 298, 308, 25 L. ed. 473,
476.

29

Fourth. Assuming that the court had jurisdiction, we are brought to a
consideration of the equity of the bill.

30

It has been held that the establishment of a general system of harbor lines, for
the protection of commerce and navigation, is not of itself an injury to property
and cannot be restrained. Yesler v. Washington Harbor Line, 146 U. S. 646,
656, 36 L. ed. 1119, 13 Sup. Ct. Rep. 190; Prosser v. Northern P. R. Co. 152 U.
S. 59, 64, 65, 38 L. ed. 352, 355, 356, 14 Sup. Ct. Rep. 528. But it has also
been recognized that a different question arises when active measures are taken
against an individual proprietor to maintain a location of limits in alleged
violation of his private rights, and thus to prevent him from enjoying what is
asserted to be the lawful use of his property. Prosser v. Northern P. R. Co.
supra.

31

The complainant starts with the lines as laid down, in 1865, by the state
commissioners. These lines are averred to be 'exactly in accordance with the
then-existing actual ordinary high-and low-water marks.' The argument is (1)
that, independently of the effect of the statute of Pennsylvania, the washing
away of the banks, and the submergence of a portion of the island, during the
subsequent years, worked no loss of title, but that it remained absolute,
including the right of reclamation and improvement of the submerged land
inside the former line of high water; and (2) that, by virtue of the statute, the
boundary was permanently fixed by the state commissioners' high-water line,
and no subsequent encroachment of the water could affect the rights of the
owner.

32

(1) It is the established rule that a riparian proprietor of land bounded by a
stream, the banks of which are changed by the gradual and imperceptible
process of accretion or erosion, continues to hold to the stream as his boundary;
if his land is increased, he is not accountable for the gain, and if it is
diminished he has no recourse for the loss. But where a stream suddenly and
perceptibly abandons its old channel, the title is not affected, and the boundary
remains at the former line. Rex v. Yarborough, 3 Barn. & C. 91; S. C. 2 Bligh,
N. R. 147, 4 Dowl. & R. 790, 27 Revised Rep. 292, 1 Dow. & C. 178, 1 Eng.
Rul. Cas. 458, sub nom. Gifford v. Yarborough, 5 Bing. 163; New Orleans v.
United States, 10 Pet. 662, 717, 9 L. ed. 573, 594; Banks v. Ogden, 2 Wall. 57,
17 L. ed. 818; St. Clair County v. Lovingston, 23 Wall. 46, 67, 68, 23 L. ed. 59,
63, 64; Jefferis v. East Omaha Land Co. 134 U. S. 178, 190-193, 33 L. ed. 872,
876-878, 10 Sup. Ct. Rep. 518; St. Louis v. Rutz, 138 U. S. 226, 245, 34 L. ed.
941, 949, 11 Sup. Ct. Rep. 337; Nebraska v. Iowa, 143 U. S. 359, 36 L. ed. 186,
12 Sup. Ct. Rep. 396; Shively v. Bowlby, 152 U. S. 1, 35, 38 L. ed. 331, 344,
14 Sup. Ct. Rep. 548; Hale, De Jure Maris, chaps. 1, 4, 6; Hargrave's Law
Tracts; Mulry v. Norton, 100 N. Y. 424, 53 Am. Rep. 206, 3 N. E. 581. The
doctrine that the owner takes the risk of the increase or diminution of his land
by the action of the water applies as well to rivers that are strong and swift, to
those that overflow their banks, and whether or not dykes and other defenses
are necessary to keep the water within its proper limits. It is when the change in
the stream is sudden, or violent, and visible, that the title remains the same. It is
not enough that the change may be discerned by comparison at two distinct
points of time. It must be perceptible when it takes place. 'The test as to what is
gradual and imperceptible in the sense of the rule is, that though the witnesses
may see from time to time that progress has been made, they could not perceive
it while the process was going on.' St. Clair County v. Lovingston, 23 Wall. 46,
67, 68, 23 L. ed. 59, 63, 64.

33

We are confined to the allegations of the bill. We have not the advantage of
proof and findings, or even of a particularized description in the bill itself, as to
the precise character of the alterations in the banks of Brunot's island which
took place during the long period to which the bill refers. It is alleged 'that
subsequent to the establishment in 1865 by said commissioners of the line of
high-water mark, as aforesaid, a considerable amount of the soil of the shore of
said Brunot's island on the so-called back channel, within the said high-water
mark, was washed away from time to time by heavy floods and freshets, so that
a large part of the upland of the island, that is, the land above high-water mark,
became and was overflowed and slightly submerged by water, but said land
was not submerged to an extent sufficient to permit of navigation of any kind
thereover.' There is no other statement on the point save that the bill asserts that
the complainant was entitled to reclaim, 'keeping at all times within the lines of
the part that had been torn away by the violence of the waters.'

34

It is manifest that these allegations are inadequate to support the complainant's
contention. The determining words are that the land was 'washed away from
time to time by heavy floods and freshets,' and the reference is to what occurred
in many years. This is far from a statement that at any particular time there was
such a sudden, violent, and visible change as to justify a departure from the
ordinary rule which governs accretion and diminution, albeit the stream suffer
wide fluctuations in volume, the current be swift, and the banks afford slight
resistance to encroachment.

35

For example, the general principle of accretion, which has that of diminution as
its correlative, applies to such rivers as the Mississippi and the Missouri,
notwithstanding the extent and rapidity of the changes constantly effected.
Jefferis v. East Omaha Land Co. 134 U. S. 178, 190-193, 33 L. ed. 872, 876878, 10 Sup. Ct. Rep. 518; Jones v. Soulard, 24 How. 41, 16 L. ed. 604; Saulet
v. Shepherd, 4 Wall. 502, 18 L. ed. 442; St. Clair County v. Lovingston, supra;
St. Louis v. Rutz, 138 U. S. 226, 245, 34 L. ed. 941, 949, 11 Sup. Ct. Rep. 337.
In Nebraska v. Iowa, 143 U. S. 359, 36 L. ed. 186, 12 Sup. Ct. Rep. 396, the
question concerned the boundary between the two states, which, by the acts of
admission, was the middle of the main channel of the Missouri river. Between
1851 and 1877, in the vicinity of Omaha, there were marked changes in the
course of this channel, so that in the latter year it occupied a very different bed
from that through which it flowed in the former year. The opinion of the court
describes in detail the physical conditions along the river. The court said (pp.
368-370): 'The current is rapid, far above the average of ordinary rivers; and by
reason of the snows in the mountains there are two well-known rises in the
volume of its waters, known as the April and June rises. The large volume of
water pouring down at the time of these rises, with the rapidity of its current,
has great and rapid action upon the loose soil of its banks. . . . The only thing
which distinguishes this river from other streams, in the matter of accretion, is
in the rapidity of the change caused by the velocity of the current; and this, in
itself, in the very nature of things, works no change in the principle underlying
the rule of law in respect thereto. Our conclusions are that, notwithstanding the
rapidity of the changes in the course of the channel, and the washing from the
one side and onto the other, the law of accretion controls on the Missouri river,
as elsewhere; and that not only in respect to the rights of individual landowners,
but also in respect to the boundary lines between states. The boundary,
therefore, between Iowa and Nebraska, is a varying line, so far as affected by
these changes of diminution and accretion in the mere washing of the waters of
the stream.' And, in the same case, the decision clearly points the distinction
between the losses and gains thus described, and an abrupt, visible change
where at one place, at a particular time, the river having 'pursued a course in
the nature of an ox-bow, suddenly cut through the neck of the bow, and made
for itself a new channel.' (P. 370.)

36

The present case falls within the category first mentioned, and according to
general principles of law the owner would bear the losses caused by the
washings of the river.

37

The bill also alleges that 'some years ago the United States government, in the
interest of navigation, and in order to increase the depth of water in the harbor
of Pittsburg, caused a dam to be constructed across the Ohio river a short
distance below said Brunot's island, known as the Davis island dam. The effect
of this dam was to very decidedly increase the depth of the water in the channel
back of Brunot's island, and to cause the water of the river to flow higher upon
the land of your orator, and to submerge same to a far greater extent, and in fact
to make said water which submerged your orator's land navigable at certain
times, and for certain purposes, which was not navigable before the
construction of said dam.'

38

It will be observed that it is said that the United States caused the erection of
the dam in the interest of navigation. The complainant purchased the island
subsequently, in the year 1896. And we are not concerned here with the
question whether there was any appropriation of land of the former owner by
the United States, and a cause of action arose to recover its value. Gibson v.
United States, 166 U. S. 269, 41 L. ed. 996, 17 Sup. Ct. Rep. 578; United States
v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349; Bedford v.
United States, 192 U. S. 217, 48 L. ed. 414, 24 Sup. Ct. Rep. 238; Manigault v.
Springs, 199 U. S. 473, 50 L. ed. 274, 26 Sup. Ct. Rep. 127; Chicago, B. & Q.
R. Co. v. Illinois, 200 U. S. 561, 583, 584, 50 L. ed. 596, 605, 606, 26 Sup. Ct.
Rep. 341, 4 A. & E. Ann. Cas. 1175. So far as the bill shows, the dam was
lawfully built, and the allegations with respect to it wholly fail to state any case
entitling the complainant to relief by reason of its construction.

39

(2) The complainant, however, insists that the effect of the Pennsylvania statute
was to fix the boundary of the island permanently manently at the state
commissioners' high-water line, and hence that within that line it was entitled to
make the desired reclamation and improvement.

40

This statute (act of 16th April, 1858) provided that the commissioners' lines
approved by the court should 'forever after be deemed, adjudged, and taken
firm and stable for the purposes aforesaid.' The supreme court of Pennsylvania
has held that the purpose of the act was to regulate the rights of the public in
respect to navigation, and to prevent private rights from being exercised to the
prejudice of the public interest. Wainwright v. McCullough, 63 Pa. 66; Zug v.
Com. 70 Pa. 138, 142; Poor v. McClure, 77 Pa. 214, 219; Allegheny City v.
Moorehead, 80 Pa. 118, 139, 140. In Wainwright v. McCullough (1869) supra,
that court, holding that the statute was not applicable to disputed boundaries
between private owners, considered the navigable character of the rivers to
which it related, the extent of riparian rights under the law of the state, and the
meaning of the act in the light of the mischief which it was intended to correct.
The court said:

41

'In order to arrive at the legal effect of the lines established by the
commissioners under that act, we must ascertain its true purpose; and to reach
this, it becomes necessary to examine the navigable character of the rivers
Allegheny, Monongahela, and Ohio, and the rights of the riparian proprietors
upon their banks. These rivers are among the largest in the state; larger than the
Schuylkill and Lehigh, recognized as navigable in the early history of the
province, and have been repeatedly held by name to be rivers naturally
navigable, and therefore classed with the Delaware and Susquehanna. Carson v.
Blazer, 2 Binn. 478, 4 Am. Dec. 463; Shrunk v. Schuylkill Nav. Co. 14 Serg. &
R. 79, 80; Hunter v. Howard, 10 Serg. & R. 244. Many acts have been passed
declaring tributaries of these rivers navigable. But an act perhaps most pertinent
to this controversy is that of 8th April, 1785, 2 Smith, Laws, 317 regulating the
taking up of lands within the new purchase, of which the 13th section expressly
excepts islands in the Ohio, Allegheny, and Delaware.

42

* * * * *

43

'This being the navigable character of the stream, the rights of the riparian
owners are settled by numerous decisions, a few of which may be referred to:
Carson v. Blazer, 2 Binn. 478; Shrunk v. Schuylkill Nav. Co. 14 Serg. & R. 79,
80; Ball v. Slack, 2 Whart. 508, 30 Am. Dec. 278; Zimmerman v. Union Canal
Co. 1 Watts. & S. 346; Bailey v. Miltenberger, 31 Pa. 37; McKeen v. Delaware
Div. Canal Co. 49 Pa. 424; Tinicum Fishing Co. v. Carter, 61 Pa. 21, 100 Am.
Dec. 597, opinion by Sharswood, J., decided last winter at Philadelphia. From
these and other cases, it will appear that the absolute title of the riparian
proprietor extends to high-water mark only, and that between ordinary high and
ordinary low water mark, his title to the soil is qualified, it being subject to the
public rights of navigation over it, and of improvement of the stream as a
highway. He cannot occupy to the prejudice of navigation, or cause
obstructions to be placed upon the shore between these lines, without express
authority of the state.

44

'The case of Bailey v. Miltenberger, 31 Pa. 37, decided in 1856, doubtless had
something to do in turning public attention to the shores of the streams
surrounding the city of Pittsburg, which led to the passage of the act of 1858,
for the purpose of defining the low- and high-water lines. It referred to the
mistaken idea entertained by some proprietors of making ground for their mills
by depositing cinders on the shore between low-and high-water marks. 'The
Allegheny and many other navigable rivers' (says the opinion) 'do not, at the
time of low water, occupy over one third of their bed; and it would be most
disastrous to allow every owner to fill out his land to low-water mark.' This
state of affairs, for these rivers had been seriously encroached upon at and
opposite Pittsburg, no doubt led to the act of 16th April, 1858, Pamph. L. 326.
It begins by a recital: 'Whereas, the lines of lands on and along the shores at the
rivers at and near the city of Pittsburg, in the county of Allegheny, have never
yet been clearly ascertained, and as it is important to the owners of such lands,
the persons navigating the waters of, and the corporations adjacent to, such
rivers, and to all parties interested, to know and to have their several rights and
privileges in extension and limitation ascertained and defined; therefore,' etc.
The first impression arising from this language might seem to be that the law
was intended to ascertain and fix these high-and low-water lines to end all
controversies, private as well as public. But a careful consideration of its
purpose and provisions shows that it is not applicable to disputed boundaries
between private owners, but was intended to regulate the respective rights of the
public and the landowners, over whose property the right of navigation extends
between high- and low-water lines.

45

* * * * *

46

'The effect of the lines as established is thus stated: 'The lines so approved shall
forever after be deemed, adjudged, and taken, firm and stable for purposes
aforesaid.' If we seek for the 'aforesaid' purposes, the act discloses none but
those relating to the public interest and that of the riparian owner. Then if we
advert to the power of the state over navigable streams, as stated in the
authorities cited, we discover that it is plenary over the subject of navigation
and the improvement of these natural channels of commerce, while the
ownership of the riparian proprietor is qualified between the lines of low and
high water. The legislature may, therefore, with great propriety, define the
bounds of high and low water, by means of a suitable commission, for the
purpose of regulating the public right, so as not to conflict with private interests,
and to prevent private rights from being exercised to the prejudice of public
interests; for example, to prevent the shores from being filled up with great
banks of cinders.'

47

In Allegheny City v. Moorehead (1875) 80 Pa. 118, 139, 140, the question was
presented whether, by the fixing of water lines under the act of 1858, title had
been vested in the city of Allegheny or lot owners, so as to defeat the claim of
the plaintiff Moorehead under a subsequent patent from the state. The court
said: 'Nor can the operation of the act of 1858 be extended by the act of the
commissioners in running out the low-water line of the northern shore of the
river to include a part of what was Killbuck island. It was not the purpose of the
commissioners to transfer titles, but to mark the boundaries of riparian rights,
so as to make them certain and permanent in their extent. So it was not the
intention of the framers of the act of 1858 to pass titles to lands, or to ascertain
boundaries between individuals; but it was their purpose to regulate the right of
navigation along the shores of these rivers by establishing high-and low-water
lines, which would definitely ascertain and fix the extent to which the right
could be exercised; and the extent to which the owners of the land could
exercise their own rights under the law of the state.'

48

It is contended for the complainant that the effect of the statute was to secure to
riparian owners complete protection against any loss of their land, or of the
right to build upon it, by reason of the gradual washing away of the banks of
the river; that the state chose to resign to the riparian proprietors its right to
such additions from the moving landward of the low-water mark, and required
the owner at the same time to surrender, in the interest of navigation, his right
to alluvion. In support, the complainant cites the opinion of the court of
common pleas No. 2 of Allegheny county in Briggs v. Pheil (1894) 42 Pittsb.
L. J. p. 18, in which it is said with respect to the same statute: 'At the passage of
this act the riparian owner owned absolutely to high-water mark, and had a
qualified property to low-water mark, and outside of the low-water mark the
title to the soil was in the state. It seems to us there can be no doubt that the
state had power to enact that thereafter the legal limits of the property should
remain unchanged, either by gradual accretions or by gradual cutting away.
This, in our opinion, was intended to be done and was done by the act of
assembly and the proceedings thereunder. . . . It seems to us that the
establishing of these lines, at least, as between the state and riparian owners,
fixed the lines for the future. If the river washes in beyond the high-water line
the owner may fill up and reclaim the lost land, and, on the other hand,
accretions belong to the state or the municipalities.'

49

The established doctrine is invoked that the title to the soil under navigable
waters within their territorial limits, and the extent of riparian rights, are
governed by the laws of the several states, subject to the authority of Congress
under the Constitution of the United States. Martin v. Waddell, 16 Pet. 367, 10
L. ed. 997; Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Weber v. State
Harbor, 18 Wall. 57, 21 L. ed. 798; Barney v. Keokuk, 94 U. S. 324, 338, 24 L.
ed. 224, 228; Packer v. Bird, 137 U. S. 661, 669, 34 L. ed. 819, 820, 11 Sup.
Ct. Rep. 210; St. Louis v. Rutz, 138 U. S. 226, 242, 34 L. ed. 941, 947, 11 Sup.
Ct. Rep. 337; Hardin v. Jordan, 140 U. S. 371, 382, 402, 35 L. ed. 428, 433,
440, 11 Sup. Ct. Rep. 808, 838; Illinois C. R. Co. v. Illinois, 146 U. S. 387,
435, 452, 36 L. ed. 1018, 1036, 1042, 13 Sup. Ct. Rep. 110; Shively v. Bowlby,
152 U. S. 40, 47, 38 L. ed. 331, 346-348, 14 Sup. Ct. Rep. 548; St. Anthony
Falls Water Power Co. v. St. Paul Water Comrs. 168 U. S. 349, 365, 42 L. ed.
497, 503, 18 Sup. Ct. Rep. 157. Let it be assumed that the Pennsylvania statute,
in its regulation of rights, established the commissioners' high-water line as the
permanent boundary of the island, and conferred upon the riparian owner, so far
as it was within the competency of the state to confer it, the right to fill in and
to erect structures to the limit of this line, regardless of subsequent changes in
the actual high-water line caused by the washing away of the banks of the river.
What, then, was the power of Congress with respect to the river, and what was
the extent of the authority conferred upon the Secretary of War?

50

When the Secretary of War, in 1895, fixed harbor lines, he dealt with the
stream as it then existed. Whatever right the owner of the island may have had
under the state law to reclaim the submerged land within the former line of high
water had not been exercised. The bill, in alleging that the new harbor line ran
across the complainant's land, must be taken to refer to the submerged land
already described. This is the import of its allegations, and is shown by the
record of the War Department annexed to the bill. In establishing this line, the
Secretary of War followed quite closely the actual line of high water as it
existed in 1895, except in the back channel of Brunot's island, where it ran
several hundred feet outside the then high-water mark. The change of the
harbor line at this point, in 1907, was for the purpose of making the line
coincide with the actual high-water mark; and in the report of the United States
engineer who advised the change it was said that the lines as previously
established had 'not been filled out to, and the river bed on the Brunot island
side, and in the bend referred to,' was in 'essentially the same condition' as at
the time the harbor lines of 1895 were fixed. He added:

51

'Pittsburg suffers annually from floods, and in my opinion any material
contraction of the channel immediately below the city would result in general
injury and would produce conditions detrimental to navigation and to
harborage; and it is respectfully recommended that the changes in the
established harbor lines shown and described on the map inclosed herewith be
made, such changes being necessary in preserving and protecting the harbor of
Pittsburg.

52

'The location of the proposed harbor lines recommended in this communication
is within the bed of the stream as it exists as a physical fact.' To this stream, as
a highway of commerce, the power of Congress extended,—a power which
'acknowledges no limitations other than are prescribed in the Constitution.'
Gibbons v. Ogden, 9 Wheat. 1, 196, 6 L. ed. 23, 70. The exercise of this power
could not be fettered by any grant made by the state of the soil which formed
the bed of the river, or by any authority conferred by the state for the creation
of obstructions to its navigation. 'Commerce includes navigation. The power to
regulate commerce comprehends the control for that purpose, and to the extent
necessary, of all the navigable waters of the United States which are accessible
from a state other than those in which they lie. For this purpose they are the
public property of the nation, and subject to all the requisite legislation by
Congress. This necessarily includes the power to keep them open and free from
any obstructions to their navigation, interposed by the states or otherwise; to
remove such obstructions when they exist; and to provide, by such sanctions as
they may deem proper, against the occurrence of the evil and for the
punishment of offenders. For these purposes, Congress possesses all the powers
which existed in the states before the adoption of the national Constitution, and
which have always existed in the Parliament in England.' Gilman v.
Philadelphia, 3 Wall. 713, 725, 18 L. ed. 96, 99.

53

Nor is the authority of Congress limited to so much of the water of the river as
flows over the bed of forty years ago. The alterations produced in the course of
years by the action of the water do not restrict the exercise of Federal control in
the regulation of commerce. Its bed may vary and its banks may change, but the
Federal power remains paramount over the stream, and this control may not be
defeated by the action of the state in restricting the public right of navigation
within the river's ancient lines. The public right of navigation follows the
stream (Rolle's Abr. 390; Carlisle v. Graham, L. R. 4 Exch. 361, 367, 368, L. J.
Exch. N. S. 226, 21 L. T. N. S. 133, 18 Week. Rep. 318), and the authority of
Congress goes with it. When the state of Pennsylvania established harbor lines
and thus undertook to regulate the rights of navigation, its action, however
effective as between the state and the riparian proprietors, was necessarily
subject to the paramount power of Congress. The state lines can be conceded no
permanent force, as against the will of Congress, without substituting for its
constitutional authority the supremacy of the state with respect to navigable
waters.

54

It is for Congress to decide what shall or shall not be deemed in judgment of
law an obstruction of navigation. Pennsylvania v. Wheeling & B. Bridge Co. 18
How. 421, 15 L. ed. 435. And in its regulation of commerce it may establish
harbor lines or limits beyond which deposits shall not be made or structures
built in the navigable waters. The principles applicable to this case have been
repeatedly stated in recent decisions of this court. Gibson v. United States, 166
U. S. 269, 41 L. ed. 996, 17 Sup. Ct. Rep. 578; Scranton v. Wheeler, 179 U. S.
141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48; Chicago, B. & Q. R. Co. v. Illinois,
200 U. S. 561, 50 L. ed. 596, 26 Sup. Ct. Rep. 341, 4 A. & E. Ann. Cas. 1175;
West Chicago Street R. Co. v. Illinois, 201 U. S. 506, 50 L. ed. 845, 26 Sup. Ct.
Rep. 518; Union 51 L. ed. 523, 27 Sup. Ct. Rep. 367; Monongahela 51 L. ed.
523, 27 Sup. Ct Rep. 367; Monongahela Bridge Co. v. United States, 216 U. S.
177, 54 L. ed. 435, 30 Sup. Ct. Rep. 356; Hannibal Bridge Co. v. United States,
221 U. S. 194, 55 L. ed. 699, 31 Sup. Ct. Rep. 603.

55

In Gibson v. United States, supra, the construction of a dyke in the Ohio river
under the authority of the Secretary of War had substantially destroyed the
landing on and in front of a farm owned by Mrs. Gibson 'by preventing the free
egress and ingress to and from said landing' to 'the main or navigable channel'
of the river. The court said (pp. 271, 272, 275): 'All navigable waters are under
the control of the United States for the purpose of regulating and improving
navigation, and although the title to the shore and submerged soil is in the
various states and individual owners under them, it is always subject to the
servitude in respect of navigation created in favor of the Federal government by
the Constitution. South Carolina v. Georgia, 93 U. S. 4, 23 L. ed. 782; Shively
v. Bowlby, 152 U. S. 1, 38 L. ed. 331, 14 Sup. Ct. Rep. 548; Eldridge v.
Trezevant, 160 U. S. 452, 40 L. ed. 490, 16 Sup. Ct. Rep. 345. . . . The 5th
Amendment to the Constitution of the United States provides that private
property shall not 'be taken for public use without just compensation.' Here,
however, the damage of which Mrs. Gibson complained was not the result of
the taking of any part of her property, whether upland or submerged, or a direct
invasion thereof, but the incidental consequence of the lawful and proper
exercise of a governmental power.'

56

Again, in Scranton v. Wheeler, 179 U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep.
48, the question arose with respect to the riparian owner whose access from his
land to navigability was permanently lost by reason of the construction by the
United States of a pier resting on submerged lands in front of his upland. The
court said in its opinion (p. 163): 'The primary use of the waters and the lands
under them is for purposes of navigation, and the erection of piers in them to
improve navigation for the public is entirely consistent with such use, and
infringes no right of the riparian owner. Whatever the nature of the interest of a
riparian owner in the submerged lands in front of his upland bordering on a
public navigable water, his title is not as full and complete as his title to fast
land which has no direct connection with the navigation of such water. It is a
qualified title, a bare technical title, not at his absolute disposal, as is his
upland, but to be held at all times subordinate to such use of the submerged
lands and of the waters flowing over them as may be consistent with or
demanded by the public right of navigation.'

57

In Union Bridge Co. v. United States, 204 U. S. 364, 51 L. ed. 523, 27 Sup. Ct.
Rep. 367, the Secretary of War found a bridge to be an unreasonable
obstruction to the free navigation of the Allegheny river, and required the
bridge company to make certain changes which it was insisted it could not be
compelled to make without compensation. The court, after reviewing the
authorities, said (pp. 400, 401): 'Although the bridge, when erected under the
authority of a Pennsylvania charter, may have been a lawful structure, and
although it may not have been an unreasonable obstruction to commerce and
navigation as then carried on, it must be taken, under the cases cited, and upon
principle, not only that the company, when exerting the power conferred upon
it by the state, did so with knowledge of the paramount authority of Congress to
regulate commerce among the states, but that it erected the bridge subject to the
possibility that Congress might, at some future time, when the public interest
demanded, exert its power by appropriate legislation to protect navigation
against unreasonable obstructions. Even if the bridge, in its original form, was
an unreasonable obstruction to navigation, the mere failure of the United States,
at the time, to intervene by its officers or by legislation and prevent its erection,
could not create an obligation on the part of the government to make
compensation to the company, if, at a subsequent time, and for public reasons,
Congress should forbid the maintenance of bridges that had become
unreasonable obstructions to navigation. It is for Congress to determine when it
will exert its power to regulate interstate commerce. Its mere silence or inaction
when individuals or corporations, under the authority of a state, place
unreasonable obstructions in the water ways of the United States, cannot have
the effect to cast upon the government an obligation not to exert its
constitutional power to regulate interstate commerce except subject to the
condition that compensation be made or secured to the individuals or
corporation who may be incidentally affected by the exercise of such power.
The principle for which the bridge company contends would seriously impair
the exercise of the beneficent power of the government to secure the free and
unobstructed navigation of the water ways of the United States. We cannot
give our assent to that principle. In conformity with the adjudged cases, and in
order that the constitutional power of Congress may have full operation, we
must adjudge that Congress has power to protect navigation on all water ways
of the United States against unreasonable obstructions, even those created under
the sanction of a state; and that an order to so alter a bridge over a water way of
the United States that it will cease to be an unreasonable obstruction to
navigation will not amount to a taking of a private property for public use for
which compensation need be made.'

58

It must be concluded, therfore, that it was competent for Congress to provide
for the establishment of the harbor lines in question for the protection of the
harbor of Pittsburg. It acted within its constitutional power in authorizing the
Secretary of War to fix the lines. Union Bridge Co. v. United States, supra (pp.
385-388); Monongahela Bridge Co. v. United States, 216 U. S. (p. 192) 54 L.
ed. 441, 30 Sup. Ct. Rep. 356. That officer did not exhaust his authority in
laying the lines first established in 1895, but was entitled to change them, as he
did change them in 1907, in order more fully to preserve the river from
obstruction. And, in none of the acts complained of, did he exceed the power
which had been conferred.

59

The bill failed to show any ground upon which the complainant was entitled to
relief, and it was properly dismissed.

60

Decree affirmed.

of the provisions of sections nine, ten, and eleven of this act, or any rule or
regulation made by the Secretary of War in pursuance of the provisions of
the said section fourteen, shall be deemed guilty of a misdemeanor, and on
conviction thereof shall be punished by a fine not exceeding twenty-five
hundred dollars nor less than five hundred dollars, or by imprisonment (in
the case of a natural person) not exceeding one year, or by both such
punishments, in the discretion of the court. And further, the removal of
any structures or parts of structures erected in violation of the provisions of
the said sections may be enforced by the injunction of any circuit court
exercising jurisdiction in any district in which such structures may exist,
and proper proceedings to this end may be instituted under the direction of
the Attorney General of the United States.
'Sec. 17. That the Department of Justice shall conduct the legal
proceedings necessary to enforce the foregoing provisions of sections nine
to sixteen, inclusive, of this act; and it shall be the duty of the district
attorneys of the United States to vigorously prosecute all offenders against
the same whenever requested to do so by the Secretary of War or by any of
the officials hereinafter designated, and it shall furthermore be the duty of
said district attorneys to report to the Attorney General of the United
States the action taken by him against offenders so reported, and a
transcript of such reports shall be transmitted to the Secretary of War by
the Attorney General; and for the better enforcement of the said provisions
and to facilitate the detection and bringing to punishment of such
offenders, the officers and agents of the United States in charge of river
and harbor improvements, and the assistant engineers and inspectors
employed under them by authority of the Secretary of War, and the United
States collectors of customs and other revenue officers, shall have power
and authority to swear out process, and to arrest and take into custody,
with or without process, any person or persons who may commit any of
the acts or offenses prohibited by the aforesaid sections of this act, or who
may violate any of the provisions of the same: Provided, That no person
shall be arrested without process for any offense not committed in the
presence of some one of the aforesaid officials: And provided further,
That whenever any arrest is made under the provisions of this act, the
person so arrested shall be brought forthwith before a commissioner,
judge, or court of the United States for examination of the offenses alleged
against him; and such commissioner, judge, or court shall proceed in
respect thereto as authorized by law in case of crimes against the United
States.'

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