Argument for Plaintiff in Error.

Martin v. Waddell, 16 Peters, 367; Shively v. Bowlby, 152 U. S. 1; Morris v. United States, 174 U. S. 196, 226.

An individual may be the owner of a portion of the shore by a grant from the State but he takes the ownership subject to the trust for the people which cannot be destroyed or diminished. Hall, Sea Shore, 15; Hale de jure Maris Hay, L. T. c. V.; 5 Co. 107; Illinois Cent. R. R. Co. v. Illinois, 146 U. S. 387, 435, 452; Stockton v. Balt. & N. Y. R. Co., 32 Fed. Rep. 19; 3 Kent, 377; Commonwealth v. Roxbury, 9 Gray, 451; State v. Pacific Guano Co., 22 S. C. 48, 83; Attorney General v. Parmenter, 10 Price, 378.

The government has not taken possession of these lands by the erection of structures thereon or physical entering upon them, but whatever was done was under the direction of Congress to accomplish the purpose of improving the navigability of the Savannah River which is complete. Gibbons v. Ogden, 9 Wheat. 196; Hoboken v. Railroad Co., 124 U. S. 659; Mobile v. Kimball, 102 U. S. 691; Gilman v. Philadelphia, 3 Wall. 724; South Carolina v. Georgia, 93 U. S. 4; Telegraph Co. v. Telephone Co., 96 U. S. 1.

The power in the United States includes "all the powers which existed in the States before the adoption of the Constition." Whatever consequences follow in its exercise are to be provided for exactly as they had been or would be in the British Isles or in the States of the Union.

One of the primary objects, as has been so often stated, was to regulate commerce, and, in doing so, to reach out and absolutely control navigation and all the navigable waters of the country for the benefit of the people. When this court said, in Martin v. Waddell, that the sovereign people of each State hold the absolute right to all their navigable waters, and the soils under them, for their own common use subject only to the rights since surrendered by the Constitution to the general government, and that the grants made by their authority must be determined by different principles from those which apply to grants of the British Crown, it was not meant, simply, that the people, through their representatives, could arbitrarily dispose of the trust property. That is not the theory of representative

Argument for Plaintiff in Error.

government. That would not be tolerated long in a fierce democracy.

The court below found, it being a question of law and fact, that there had been such a taking of the land as entitled the parties to compensation. Reliance for this conclusion was had upon the principles laid down by this court in the cases of Monongahela N. Co. v. United States, 148 U. S. 336-337; Gibson v. United States, 166 U. S. 269, and explicitly Pumpelly v. Green Bay Co., 13 Wall. 181; but these cases do not sustain the contention of the plaintiffs, the defendants in error, and can be distinguished from the cases at bar.

But what private property was taken for which compensation should be made under this guarantee of the Constitution, which is only affirmative of a right to the individual in a free government like this? The Crown had property rights in these lands in trust. The State had property rights to these lands in trust. They were never surrendered. They could not be. And when the United States reached out her hand and took possession of them to execute the trust to which she had succeeded, and which she was legally bound to execute, the inferior right had to yield, even to extermination. It is not for the courts to say that the individual has suffered and therefore should be reimbursed or compensated. If he has been, under a mistaken idea of his rights, put to labor and expense and hope, he has a remedy by application to the bounty of a government which will, it is opined, do him justice. But no wrong has been done him. He has enjoyed these lands and their profits without money and without price. They were the common property of the whole people. The accident of adjacent ownership gave him the license and the privilege; for, in the last instance, it was a privilege. South Carolina v. Georgia, 93 U. S. 1; Scranton v. Wheeler, 179 U. S. 141; Webber v. Pere Marquette Boom Co., 62 Michigan, 626, and cases there cited.

It is equally well settled in that State that the rights of the riparian owner are subject to the public easement or servitude of navigation. Lorman v. Benson, 8 Michigan, 18, 32; Ryan v. Brown, 18 Michigan, 196, 207. So that whether the title to the submerged lands of navigable waters is in the State or in the

Argument for Plaintiff in Error.

riparian owners, it was acquired subject to the rights which the public have in the navigation of such waters. 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.

In our opinion, it was not intended that the paramount authority of Congress to improve the navigation of the public navigable waters of the United States to meet the demands of international and interstate commerce should be crippled by compelling the government to make compensation for the injury to a riparian owner's right of access to navigability that might incidentally result from an improvement ordered by Congress. The subject with which Congress dealt was navigation. That which was sought to be accomplished was simply to improve navigation on the waters in question so as to meet the wants of the vast commerce passing and to pass over them. Consequently the agents designated to perform the work ordered or authorized by Congress had the right to proceed in all proper ways without taking into account the injury that might possibly or indirectly result from such work to the right of access by riparian owners to navigability. To conclude: The plaintiff in error claims that, conceding the interest and property which the defendants in error had in these lands, there was not in them a title tc "such kind of property as was susceptible of pecuniary com pensation, within the meaning of the Constitution." What the government took, and takes under similar circumstances, wat the public property. It is not going too far, maybe, to asser that no private property is taken at all. The private property

Argument for Plaintiff in Error.

under the grant is eclipsed when the necessity for public use is properly determined. How could there be a settlement of the value of the private property? By what rule could the measure of damage and injury be arrived at? All the land on all the coasts and tide waters of the country might be affected by the exercise of this necessary and sovereign and paramount power -paramount against States and individuals in exactly the same degree. And it is not extravagant to say that the power might be dangerously hurt and imperiled if it was subject to doubt or cavil or diminution.

In the supplemental and reply briefs additional authorities were cited. On the question of jurisdiction, Keener on QuasiContracts, pp. 159 et seq.; National Trust Co. v. Gleason, 77 N. Y. 400; United States v. Great Falls Mfg. Co., 112 U. S. 657; Great Falls Mfg. Co. v. Attorney General, 124 U. S. 597. As to liability of United States, Shively v. Bowlby, 152 U. S. 1, and authorities reviewed; Hardin v. Jordan, 140 U. S. 371; cases cited in Hoboken v. Penn. R. R. Co., 124 U. S. 688; People v. N. Y. & S. 1. Ferry Co., 68 N. Y. 71; Lloyd v. Hough, 1 How. 153; Langford v. United States, 101 U. S. 341; Hill v. United States, 149 U. S. 593; Schillinger v. United States, 155 U. S. 163. The soil under navigable waters being held by the people of the State in trust for the common use, and as a portion of their inherent sovereignty, any act of legislation concerning their use affects the public welfare. Ill. Cent. R. R. Co. v. Illinois, 146 U. S. 459; McCready v. Virginia, 94 U. S. 391; Pollard v. Hayan, 3 How. 212; Boston v. Lecraw, 17 How. 426; Commonwealth v. Charlestown, 1 Pickering, 180; Commonwealth v. Alger, 7 Cushing 53, 78; Rundle v. Del. & Raritan Canal Co., 14 How. 186; Phear on Waters, 52, 53.

While it is true that these lards have been reclaimed, yet they have been only temporarily relieved from the action of the ordinary tides; their relation to the Savannah River was only interrupted-not destroyed. Davidson v. Boston & Maine R. R. Co., 3 Cush. 91, 105.

These cases cannot be brought within the Pumpelly case which was a suit in trespass, as was also Eaton v. Boston &c. R.

Argument for Defendants in Error.

R. Co., 51 N. H. 504; and there cases are also different from United States v. Monongahela Nav. Co., 148 U. S. 312, and Kaukauna Water Power Co. v. Green Bay &c. Co., 142 U. S. 254.

Mr. J. P. Kennedy Bryan for defendant in error in No. 45. Mr. Julian Mitchell, Jr., with whom Mr. Julian Mitchell and Mr. Henry A. M. Smith were on the brief for defendants in error in No. 59.

The cause of action accrued within six years. Saulet v. Shepherd, 4 Wall. 507; Steel v. Bryant, 49 Iowa, 116; 19 Am. & Eng. Enc. of Law, 2d ed. 195, and cases cited; Kendall v. United States, 107 U. S. 125; High Bridge Lumber Co. v. United States, 69 Fed. Rep. 326.

There has been an actual taking of the property. The principle that a permanent flooding was "a taking" thereof as established in Pumpelly v. Green Bay Co., 13 Wall. 117, has never been modified. Mugler v. Kansas, 123 U. S. 667; Gibson v. United States, 166 U. S. 275; Meyer v. Richmond, 172 U. S. 96; Scranton v. Wheeler, 179 U. S. 154; United States v. Alexander, 148 U. S. 187; Transportation Co. v. Chicago, 99 U. S. 635. The Fifth Amendment should be construed liberally. 1 Blackstone's Com. 139; Sinnickson v. Johnson, 17 N. J. L. 129; Eaton v. Boston &c. R. R. Co., 51 N. H. 504,

The ownership of the defendants in error was not always subservient to the right of the government to flood the same for the benefit of navigation. The facts found show that they were the owners in fee simple and that a portion of the lands lie between high and low water mark. Under the rule in South Carolina the ownership extends to low water mark. State v. Pacific Guano Co., 22 S. C. 50; 24 S. C. 598; State v. Pinckney, 22 S. C. 492; Heyward v. Farmers Mining Co., 42 S. C. 138; Shively v. Bowlby, 152 U. S. 1, 13, 26; Lowndes v. Board &c., 153 U. S. 18; Hardin v. Jordan, 140 U. S. 371.

The power conferred by the States on Congress by the adoption of the Constitution giving to Congress the control of commerce, and of navigation in furtherance thereof, is limited by the Fifth Amendment.