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of deeds which were not only void, but had been made against the clearly expressed command of an act of Congress.
It has become a rule of our law that all treaties with and statutes relating to Indians shall be construed in their favor; Worcester v. Georgia, 6 Peters 515, 582; U. S. v. Choctaw Nation, 119 U. S. 1; Jones v. Meehan, 175 U. S. 1; United States v. Winans, 198 U. S. 371; United States v. Celestine, 215 U. S. 278. In United States v. Celestine, Mr. Justice Brewer, speaking for the court, said, page 290:
“ Bearing in mind the rule that the legislation of Congress is to be construed in the interest of the Indian, it may fairly be held that the statute does not contemplate a surrender of jurisdiction over an offense committted by one Indian upon
of another Indian within the limits of the reservation." The restrictions upon alienation found in Indian treaties and laws are imposed for the benefit of the Indians; Smith v. Stevens, 10 Wall. 321, 326. It follows that any doubt as to the meaning of subsequent acts should be resolved in favor of the retention of such restrictions. By virtue of the restraint upon alienation in the act of July 1, 1902, the attempt made by the heirs of Lucy Cole to sell the land inherited from her was ineffectual, and the lands were still vested in them as fully as before the deed was executed; their title was perfect at all times after the death of their ancestor—at least until the approval of the act of April 26, 1906. Even if the intent of the statute could be said to be doubtful, it would have to be construed in favor of the restraint and against a retroactive operation.
I am of the opinion that on April 11, 1906, the day on which the deed was executed by the heirs of Lucy Cole, the land described therein was inalienable and, further, that section 22 of the act of April 26, 1906, does not authorize you to approve it, for the reason that it was made prior to the date of that act. Very, respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF THE INTERIOR.
ALTERATION OF METROPOLITAN WEST SIDE ELEVATED
RAILWAY CO. BRIDGE IN CHICAGO, ILL.
The widening of the channel of the South Branch of the Chicago River
by the sanitary district of Chicago, under licenses granted by the Secretary of War, does not connect the Federal Government with that project in such a way as will authorize the Secretary of War, under section 18 of the act of March 3, 1899 (30 Stat. 1153), to require the alteration of the bridge of the Metropolitan West Side Elevated Railway Co. until the widening of the channel and the removal of the filled-in land adjoining the west abutment of the bridge has caused that structure to become an actual obstruction to the free navigation
of the river. Filled-in land is subject to the servitude of navigation, and any obstruc
tion to navigation arising therefrom could be abated by Congress,
even if made under authority of a State. The filled-in land occupied by the west abutment of the bridge in ques
tion, which of course could not be removed prior to the removal of the bridge, should be regarded as constituting a part of the bridge, and the Secretary of War may proceed, under section 18 of the act of March 3, 1899 (30 Stat. 1153), for the alteration of the bridge when, by reason of the widening of the channel up to that point, it has become an actual obstruction to the free navigation of the river. In such a contingency notice to remove the same should be given to both
the railway company and the sanitary district. The filling of a navigable waterway for the purpose simply of enabling
riparian owners to reach the point of navigability by means of docks, piers, etc., when not forbidden by any statute of the United States or of a State, is neither unauthorized nor unlawful.
DEPARTMENT OF JUSTICE,
June 9, 1911. SIR: Under date of March 7 last you requested my opinion on certain questions in respect to the alteration of the bridge of the Metropolitan West Side Elevated Railway Co.over the South Branch of the Chicago River between Jackson and Van Buren Streets, in the city of Chicago, Ill.
The facts giving rise to the questions propounded are stated by you as follows:
“For about two blocks at this point the channel of the South Branch of the Chicago River has been narrowed to about one-half its present width in other places by filling in, particularly on the west side, nearly all of which filling was done prior to 1880 without the permission of the
United States, and also, it is understood, without the permission of the State of Illinois, unless such permission is to be implied by its nonaction in the matter. Several bridges span the river at the point where the channel has been so narrowed, among them the bridge of the Metropolitan West Side Elevated Railway Co., the west abutment of which rests almost entirely on the ground so filled in. The sanitary district has been engaged, under authority of a statute of the State of Illinois (act of May 29, 1889, Laws, p. 125) and under licenses granted by the Secretary of War under date of May 8, 1899, and January 17, 1902, for some time in widening the existing channel of the South Branch to 200 feet, and to this end has acquired the necessary upland and filled-in land, which latter includes the land upon which the west abutment of the Metropolitan West Side Elevated Railway Co. largely rests. The removal of the filled-in lands along this section of the river is substantially all that remains of the work of widening the channel to the 200-foot line. The sanitary district promises the completion of this work in about two years, and the city of Chicago stands ready to conform its bridges to the general plan of widening the channel, but this would be useless unless the bridge of the Metropolitan West Side Elevated Railway Co. is also enlarged, since the bridges are so close together that the same vessel, in passing through, would occupy two or more bridges at the same time. The foregoing facts are found by the Chief of Engineers after the hearings accorded the parties in interest, as hereinafter stated. Under these facts, the bridge will constitute an unreasonable obstruction to the free navigation of the river, when the channel is widened, as above proposed.
“The bridge of the Metropolitan West Side Elevated Railway Co. was built upon plans approved by the Secretary of War on November 16, 1893, as modified March 27, 1894, such approval being given under the authority of section 7 of the act of Congress approved September 19, 1890 (26 Stat. 426), which makes it unlawful to construct bridges, under legislative authority of a State, across waterways lying wholly within the limits of the State 'until the location and plans of such bridge or other work
has been submitted to and approved by the Secretary of War,' etc.
It is further to be noted that the bridge was constructed after the city of Chicago had acquired the land on which the west abutment rests, so that the company, when it obtained its license from the city under which it placed the abutment on this property, had notice of the title of the city, and of the fact that the property had been acquired by the city to widen the stream at this locality.
“The improvement proposed and under way by the sanitary district above set forth meets the growing demands of commerce and will provide better facilities for the larger vessels now engaged therein. It is obviously advisable that the work of making the necessary alterations should go on concurrently with the work of widening the chąnnel; and, as a step to this end, a public hearing was given the parties in interest, including the Metropolitan West Side Elevated Railway Co. *
“At the hearings, which were held June 24–25 and July 8–11, 1910, the railway company was represented by attorneys, who contended that the bridge was not an unreasonable obstruction to the free navigation of the river as it exists to-day; that the draw is nearly as wide as the river at this point, and that the company can not be required to remove its west abutment without compensation being first made for the expense involved in such removal. In accordance with the recommendation of the Chief of Engineers following said hearing and a subsequent hearing before the Secretary of War it is proposed to issue a notice to the railway company, under section 18 of the act of March 3, 1899, to make the following alterations in its bridge, to be completed by the dates respectively specified, namely,
Upon this state of facts you request my opinion upon the following questions:
“(1) Whether the fact that the reclaimed land on which the west abutment of the bridge largely rests was made by filling, without permission from the United States, prior to any general statute of the United States making such filling unlawful, and without express authority from the State
of Illinois, which filling narrowed the normal limits of the channel, will justify me in treating said abutment as located on land which is held subject to the public easement in favor of navigation for the purpose of serving notice on the owner of the bridge to remove the part of the west abutment resting on such reclaimed land ? In other words: Does the title to the filled-in land continue to be subject to the use of the same by the United States for the improvement of navigation within the contemplation of section 18 of said act of March 3, 1899 ?
“(2) Whether the facts stated in question 1, coupled with the fact that when the west abutment of the bridge was built the city of Chicago had acquired the land on which it largely rests for the purpose of widening the channel, so that when the bridge was built under license from the city and with the approval of the Secretary of War, as hereinbefore stated, the company had notice that the land on which it placed the abutment had been acquired and was held by the city for the purpose of straightening or widening the channel; coupled also with the further fact that the sanitary district, having acquired the land from the city for the purpose of widening the channel, and having obtained the approval of the Secretary of War and the Chief of Engineers for such improvement, has made substantial progress in the execution of the project, would justify the department in treating the said abutment as located within the proper limits of the channel for the purpose of extending the notice to alter the bridge so that part of the west abutment which rests on the land reclaimed from the bed of the river and included within the projected limits of the channel ? In other words: Has the Secretary War jurisdiction, under section 18 of the act of March 3, 1899, over the projected channel in process of construction and over a bridge which will be an unreasonable obstruction to the free navigation of the channel when the project is completed ?”
As I understand your letter, the bridge of the Metropolitan West Side Elevated Railway Co. is not now an actual obstruction to the free navigation of the Chicago River, but will be if the filled-in land adjacent to it for the space