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of steamboats, can be within the jurisdiction of the national government, because of the provisions of the Constitution granting to Congress of the United States authority to regulate interstate commerce. Strict construction of the latter section would mean that no supervision or legislation could be had unless the act or matter supervised was actually at that time a part of a transaction constituting interstate commerce. That this is not the true interpretation the many cases cited in this opinion plainly show, and it seems to follow as plainly that the jurisdiction of Congress in enacting the law of 1888 and its amendatory provisions can be sustained both under the provision relating to interstate commerce, and also that relating to admiralty and maritime jurisdiction, and that the limits of legislation in this regard are not confined to either of these provisions as distinguished and separate from the other. “It is not questioned, that whatever may be necessary to the full and unlimited exercise of admiralty and maritime jurisdiction is in the government of the Union. Congress may pass all laws which are necessary and proper for giving the most complete effect to this power.” United States v. Beavans, 16 U. S. 387, 4 L. Ed. 404.
Originally, admiralty jurisdiction extended over all matters on the sea, and as far as the tide rose and fell to low-water mark; the space between high and low water coming within the admiralty jurisdiction when covered by the ocean, and again partaking of the character of the land as the ocean receded. On the continent of Europe, under the civil law, admiralty jurisdiction has always preserved its wide scope. In England, however, the courts of common law claimed jurisdiction over matters occurring "within the realm,” and by St. 13 Rich. III, c. 5, the admirals and their deputies were restricted to things done “on the sea.” By St. 15 Rich. II, c. 3, admiralty jurisdiction and common-law jurisdiction were more closely defined, and ultimately all offenses were placed under certain courts, and the entire admiralty jurisdiction regulated by St. 28 Hen. VIII, c. 15, St. 4 & 5 Wm. IV, c. 36, and St. 7 & 8 Vict, c. 2. See, Queen v. Keyn, 2 Ex. Div. L. R. 66. The admiralty jurisdiction in England, therefore, at the time of the adoption of a Constitution by the various states of the American commonwealth was much narrowed in scope. “Admiralty jurisdiction, as exercised in the federal courts, is not restricted to the subjects cognizable in the English courts of admiralty at the date of the Revolution, nor is it as extensive as that exercised by the continental courts, organized under, and governed by, the principles of the civil law”– citing Bags of Linseed, 1 Black, 108, 17 L. Ed. 35; The Belfast, 74 U. S. 636, 19 L. Ed. 266. Bodies of water subject to the ebb and flow of the tide were at common law “deemed to be navigable and were held to be royal rivers, or the property of the crown. They were placed on the same footing as the sea, and regarded as public highways. This rule of the common law became a part of the fundamental law of this state by the adoption of the original Constitution of 17177." This rule “governs in cases where the rights of riparian owners to waters subjected to tidal influences are in question. To the rights of the crown the people of this state succeeded, upon their separation.” Roberts v. Baumgarten et al., 110 N. Y. 380, 18 N. E. 96; also, State of Pennsylvania v. Wheeling and Belmont Bridge Co., supra.
All the powers, however, of sovereign states and of constitutional jurisdiction were acquired by and vested in the states formed out of the American colonies when their independence was recognized and their separate existence permanently established. In the adoption of the American Constitution, the staies delegated this admiralty and maritime jurisdiction to the courts of the federal government, by the phrase "all admiralty and maritime jurisdiction.” Article 3, § 2, supra. Also, by article 1, § 8, subsec. 18 of the Constitution, Congress was given power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." And, as above stated, by article 1, § 8, subsec. 3, Congress was empowered to "regulate commerce with foreign nations and among the several states.” Upon these provisions depend the authority of Congress to improve and supervise highways and waters for the purposes of navigation, and to control the use of those waters for interstate commerce. Congress, therefore, had authority at the time of the passage of the various acts (Act Sept. 19, 1890, c. 907, 26 Stat. 452 [U. S. Comp. St. 1901, p. 3527], Act July 13, 1892, c. 158, 27 Stat. 111 [U. S. Comp. St. 1901, p. 3527], Act March 3, 1899, c. 425, 30 Stat. 1151 [U. S. Comp. St. 1901, p. 3540], and Act Feb. 20, 1900, c. 23, 31 Stat. 31) to legislate with reference to obstructions to navigation, where that navigation came within the provisions of interstate commerce, or within the admiralty and maritime jurisdiction of the United States.
It has been frequently held that the admiralty jurisdiction of the United States attaches to all such bodies of water as the bays, indentations, and streams in which the tide ebbs and flows along the south shore of Long Island, and this admiralty jurisdiction can be lost only when the particular water loses the character of a stream capable of carrying on interstate commerce or of navigation in and out from the ocean for pleasure and business purposes. Under this construction, Far Rockaway Bay, unless it has so lost the character of navigability as to be outside of the admiralty and maritime jurisdiction of the United States courts, is subject to the provisions and regulations of the act of 1890, as amended by the acts of 1892, 1899, and 1900. The United States having jurisdiction in the matter of improving navigable channels and regulating and controlling such channels for commerce, it would seem to follow that if an inlet leads directly from the ocean to a greater or smaller body of tidal water, through which is located a channel which is capable of being navigated, this whole body of water would be under the direct control of the government in the exercise of its jurisdiction. A large portion of the water might be shoal and utterly unfit for navigation of any sort, in its natural condition; but the filling in or altering of the locality outside of low-water mark would have a material effect upon the currents and tides, and directly bear upon the maintenance and improvement or deterioration of the channel itself.
In the case at bar, the permit formerly issued by the War Department to build a bridge on trestle work, with a comparatively narrow draw, would indicate that the use of the entire bay for purposes of
navigation was not deemed necessary and that a comparatively narrow channel leading up from the inlet would serve all reasonable necessities of the persons using the bay; but it undoubtedly follows that control over this narrow channel, as before stated, includes discretion as to any artificial alteration of the entire body of water directly adjoining or affecting the narrow channel. The inlet itself, at some times much deeper, sometimes, perhaps, almost entirely filled in for a short period, is a channel of the sort which the government of the United States could improve and keep in a condition fit for such use as might seem necessary. The right to make such improvements and to control the narrow channel, the adjoining shallow bay, and the inlet affording access thereto, must therefore necessarily vest in the United States government until the navigable character or possibility has been actually lost.
As has been said before, each of the cases in which an interpretation of the statute, under present consideration, has been made, has arisen from a criminal prosecution, and the question of the jurisdiction of the United States has been made to depend upon questions of navigability, and treated as a question of fact.
Upon a motion for a preliminary injunction pending the trial of an action in a suit brought in equity, in which the sole relief asked is a permanent injunction and the removal of a structure alleged to offend against the statute, it is extremely difficult to distinguish between the issue of fact upon which the entire case depends and a prima facie case on which the application for a temporary injunction may be heard, and it is necessary to remember that the evidence taken upon the trial might materially vary from that appearing by the affidavits upon this motion, and substantially change the whole situation.
It is evident that if the water of Far Rockaway Bay has possessed the elements of navigability bringing it within the authority of the United States, and governed by the Constitution and by the acts of Congress, the character of the bay may be changed by storms, or by illegal use, until such time as the navigable capacity has been entirely lost, and until the effect of the illegal structures has deprived the United States of the possibility of restoring the navigable character of the water by the removal of the structures. It is akin to the situation that frequently arises in equity, where the test is whether the parties can be restored to their original situation. In the present case, affidavits are filed on behalf of a large proportion of the property owners and inhabitants around Far Rockaway Bay, stating that they do not consider the bay navigable water, and that they intend to fill in and improve their properties by doing away with the bay, if permitted so to do. Especially if the present line of piling across the mouth of the inlet should be allowed to stand for a sufficient period, and if no severe storm
should wash away the entire beach at this point, it seems evident that Far Rockaway Bay would become merely a sewer or stagnant pool unless filled in and made dry land. If the temporary injunction is not continued, it is difficult to see how there would be any rights to litigate, if the case is not brought to a very speedy trial. Such a result would appear to be irreparable damage, especially in view of the apparent disregard for the provisions of the United States statutes by the persons erecting and maintaining the various bridges without permits across the bay, and in the driving of the original piling.
By the provisions of the statute, the War Department, if it considers the water navigable, and if it deems a bridge a material obstruction to navigation or to the navigable capacity of this bay, may order, after a public hearing, the removal of the offending structure, or its change by the insertion of draws of some form which will meet with the approval of the Secretary of War. In the present situation, the facts that the War Department has heretofore issued permits for a bridge and for the pumping of sand, and has made the present application for an injunction, show that it considers Far Rockaway Bay to be navigable water. The issuing of the permit for a bridge erected on piles, with a draw, indicates that the Secretary of War has exercised, and might again exercise, his discretion in allowing the bay to be bridged, or to be filled in outside of the preservation of a suitable channel. With reference to the structures already erected across the bay, a public meeting, such as is provided by the statute, and a suitable examination on the part of the War Department, would probably result in a solution of this question which would do justice to all concerned.
By the affidavit of Maximilian Morgenthau, verified March 15, 1907, it appears that a second or artificial inlet has been or is being made to furnish a safe and stable or permanent outlet and inlet to the bay, some distance west of the inlet which the defendants attempted to close by the line of piling. So long as the new inlet did not affect the navigable character of any of the waters, and so long as its excavation did not cause the washing out of sand or other material into the bay, its construction would not be affected by the provisions of the statute. But if such an inlet should be created, upon its completion it might constitute navigable water, and as such pass under the jurisdiction of the government, even though created through private property. The War Department could approve of the location and construction of such an inlet, and could authorize the closing of the present inlet, if the new one, in the opinion of the Secretary of War, would more certainly answer the requirements of the situation. The very fact that such discretion is vested in the Secretary of War, and that no application has been made to him, and the impossibility of justly deciding upon
the whole situation with reference to the question as to whether Far Rockaway Bay has at the present time lost all of the elements of navigable waters of the United States, illustrates the necessity of securing a continuation of conditions in their present state pending the determination of the matter.
The owners of the shore front have a right to take such steps as they may see fit upon their own land to prevent the change in location by the present inlet, or to prevent erosion along its banks or upon the beach proper. But unless the discretion of the War Department is exercised in their favor, or until a final decision can be had determining the ultimate character of the bay, the property owners should be restrained from closing the channel of the inlet itself, or from so using their property as to effect the closing of the channel by causing the deposit of sand and other material therein.
From all of the foregoing, therefore, it would seem that, without deciding at this time the issue of fact as to whether Far Rockaway Bay at the present moment has lost the character of navigable water, it seems necessary to continue the temporary injunction pending the determination of the trial.
The granting of such temporary injunction cannot carry with it the removal of the alleged illegal structure in so far as it has been already erected, nor can this action furnish relief with reference to the various bridges if changes should be desired with relation to them. The other provisions of the statute must be invoked if the War Department or any of the parties interested in the situation deem it proper to test those questions. The trial of the action should be facilitated in every way in order that as little opportunity as possible for damage by storm should result, and an order may be presented continuing the temporary injunction pending the determination of the action.
NEWTON V. GAGE et al.
NORTHERN COUNTIES INV. TRUST, Limited, v. GAGE et al.
No. 1,211. 1. COURTS-JURISDICTION OF FEDERAL COURTS—CROSS-BILL BY INTERVENER.
The bringing in of a new party in a suit in a federal court by cross-bill or otherwise, when the presence of such party as an original defendant would have defeated federal jurisdiction, violates both the constitutional and statutory requirement as to diverse citizenship, and the court is without jurisdiction to entertain a cross-bill by an intervener who could not have been made a party to the original bill, unless such intervener represents an interest already before the court or claims an interest in property of which the court holds possession,
[Ed. Note.-Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C.
C. A. 298.] 2. MORTGAGES-FORECLOSURE BY SUIT-CROSS-BILL.
A junior mortgagee, in order to foreclose his own mortgage, cannot, under general rules of equity pleading and practice, by cross-bill or otherwise, make himself a party to a suit brought for foreclosure of a prior
mortgage. 3. EQUITY-CROSS-BILL-BRINGING IN NEW PARTIES.
Under the general rules of equity pleading and practice, new parties cannot be introduced into a cause by cross-bill.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Equity, $ 467.] In Equity.
On demurrer to cross-bill and motion to strike out cross-bili.
John G. North and Hunsaker & Britt, for complainant.
WELLBORN, District Judge. This is a bill by Thomas Henry Goodwin Newton, a subject of Great Britain, against Matthew Gage and Jane Gage, citizens of California, to foreclose a mortgage on real