of about two city blocks, and upon a portion of which the west abutment rests, is removed up to the bridge in accordance with the proposed plan of widening the channel 200 feet; and the purport of both your questions is whether the circumstances attending such filling and the construction of the bridge thereon are such as to enable the Secretary of War, proceeding under section 18 of the act of March 3, 1899 (30 Stat. 1121, 1153), to require the alteration of the bridge to meet the prospective needs of navigation.

The statute mentioned provides:

"SEC. 18. That whenever the Secretary of War shall have good reason to believe that any railroad or other bridge now constructed, or which may hereafter be constructed, over any of the navigable waterways of the United States is an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width of span, or otherwise, or where there is difficulty in passing the draw opening or the draw span of such bridge by rafts, steamboats, or other water craft, it shall be the duty of the said Secretary, first giving the parties reasonable opportunity to be heard, to give notice to the persons or corporations owning or controlling such bridge so to alter the same as to render navigation through or under it reasonably free, easy, and unobstructed; and in giving such notice he shall specify the changes recommended by the Chief of Engineers that are required to be made, and shall prescribe in each case a reasonable time in which to make them

* *

In my judgment, the Federal Government has no such connection with the proposed plan of widening the channel of the South Branch of the Chicage River as will authorize the Secretary of War, under existing law, to require the alteration of the bridge in queston 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.

This project for the widening of the existing channel is, I understand, an undertaking of the State of Illinois en

tirely, the only connection of the Federal Government therewith being that arising from the permission to undertake such work granted by the Secretary of War. Such permission, I assume, was granted under authority of section 10 of the act of March 3, 1899, which makes it unlawful "to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same."

If the improvement in question had been directed by Congress, as in the case of the improvement of the Chicago River referred to in West Chicago Street Railroad Co. v. Chicago (201 U. S. 506, 516), the Secretary of War doubtless would have authority to require the alteration of the bridge in accordance with such project, without waiting until the channel adjacent to the bridge had been actually excavated. (United States v. Moline, 82 Fed. 592.)

In the present case, however, Congress has not directed the widening of the channel, but merely, through the Secretary of War, permitted the State to undertake such work. Whether it will be completed or not at present rests entirely with the State. I am unable to perceive any authority therefore for the Secretary of War, under existing circumstances, to exercise the power granted him by section 18 of the act of March 3, 1899, until the bridge in question has become an obstruction to the free navigation of the river in fact as well as in theory.

Undoubtedly the filled-in land is subject to the servitude of navigation (Shively v. Bowlby, 152 U. S. 1, 57, 58; Gibson v. United States, 166 U. S. 269, 271, 272; Scranton v. Wheeler, 179 U.S. 141, 162-165; West Chicago Street Railroad Co. v. Chicago, 201 U. S. 506, 520), and any obstruction to navigation arising therefrom could be abated by Congress, even if made under authority of the State (Wisconsin v. Duluth, 96 U. S. 379, 383; Williamette Iron Bridge Company v. Hatch, 125 U. S. 1, 12; Monongahela Navigation Company

v. United States, 148 U. S. 312, 336; United States v. Bellingham Bay Boom Co., 176 U. S. 211, 216; Union Bridge Company v. United States, 204 U. S. 364, 391; 27 Op. 311). But it is not a question of the power of Congress but of the power of the Secretary of War; and so far as I am advised there is nothing connected with the proposed improvement by the State or in the legislation of Congress for the protection of the navigable waters of the United States or the improvement of the Chicago River requiring or justifying action by the Secretary with respect to the bridge until it shall have become an actual obstruction to the free navigation of the river.

Assuming that any unauthorized filling of a navigable waterway of the United States which constituted an obstruction to navigation could be abated at the instance of the executive department of the Federal Government without specific authority for such action from Congress (6 Op. 172; 18 ib. 404; Georgetown v. Alexandria Canal Company, 12 Pet. 91; State of Pennsylvania v. Wheeling, etc., Bridge Co., 13 How. 518; United States v. San Jacinto Tin Company, 125 U. S. 273; United States v. American Bell Telephone Company, 128 U. S. 315; In re Debs, 158 U. S. 564), I am unable to hold, upon the facts stated by you, that the filling in question was unauthorized or constitutes such an obstruction.

You state that "the 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." If, however, such filling was not forbidden by any statute of the United States or of the State of Illinois, and was for the purpose simply of enabling riparian owners to reach the point of navigability by means of docks, piers, etc., it would be neither unauthorized nor unlawful (Yates v. Milwaukee, 10 Wall. 497, 504–505; Scranton v. Wheeler, 179 U. S. 141, 157). This, in fact, is what the Supreme Court of Illinois appears to have ruled in the case of the Sanitary District of Chicago v. Pittsburgh, Fort Wayne and Chicago Railway Company et al. (216 Ill.

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575), where it was held that the sanitary district must make compensation for taking certain filled-in land on the water front of the Chicago River occupied by the defendants, for the purpose of widening the channel of the river, which land, I understand, included that there in question, or at least was similarly situated. The court said (ib. 581):

66* * * There was evidence that in making excavations between Adams Street and Van Buren Street it was found that the shore line was at some time west of the dock line and that there were remains of an old dock west of said line, but the present dock had existed for a great many years and had been in the possession of the defendants, and so far as the evidence shows the dock was placed where the owners of the abutting land had the legal right to place it, not beyond the line of navigability of the stream and not obstructing navigation or impairing the rights of others. (City of Chicago v. Laflin, 49 Ill. 172.) The greater part of the line was not in dispute, and there has never been any controversy between the city of Chicago and the defendants in regard to the location of the dock."

In this connection it is to be observed that in certain appropriations made by Congress for dredging this part of the Chicago River (act of June 3, 1896, 29 Stat. 202, 228; act of Mar. 3, 1899, 30 Stat. 1121, 1156), it is expressly provided that such improvement shall be made "so far as may be permitted by existing docks and wharves." So far as I am advised, this authority has not been broadened by subsequent appropriation acts for the improvement of that river.

So, also, section 10 of the act of September 19, 1890 (26 Stat. 426, 454), which prohibited "the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters in respect of which the United States has jurisdiction," and provided that the continuance of any such obstruction, "whether heretofore or hereafter created," should constitute a punishable offense, and that any such obstruction might be removed by the injunction of a circuit court of the United States at the notice of the

Attorney General, expressly excepted from its operation "bridges, piers, docks, and wharves."

This provision of the act of September 19, 1890, is apparently the only legislation by Congress with reference to the continuance of existing obstructions. There is no such provision in the corresponding section (10) of the act of March 3, 1899 (30 Stat. 1121, 1151), or in any other section of that act, which (section 20) repeals "all laws or parts of laws inconsistent with the foregoing sections ten to twenty, inclusive," but saves any right of action which accrued prior thereto. It is immaterial, however, to determine whether the provision referred to is in force. If in force, and the filling here in question may be regarded as an obstruction to the "navigable capacity" of the river, it would come within the exception as to "bridges, piers, docks, and wharves, and similar structures erected for business purposes." If repealed, and no other statute of the United States forbids the maintenance of such filling, the right of the Government to cause its removal would seem to depend upon the State law (Williamette Iron Bridge Company v. Hatch, 125 U. S. 1, 9), and as above pointed out the Supreme Court of Illinois has apparently held that such filling was lawful. In any event it is not clear, as above stated, that the filling in question was unauthorized or unlawful.

It is true that Congress, through the Secretary of War, has sanctioned the widening of the river, but it has not required that to be done, and the permission to the State to make the improvement carries with it no guarantee on the part of the United States that it shall be made. Whether the work which has been commenced shall be completed at present rests entirely with the State of Illinois. The Secretary of War has no authority to complete the same.

It is true, also, that the benefit of the improvement will inure to the Federal Government. But such benefit will not arise until the improvement is made, and can not, I think, be anticipated by the Secretary of War in the manner suggested. At present he is authorized by the legislation of Congress to require the alteration of the bridge in question