which was to deprive him of all egress from his said land to the navigable water, the nat ural navigable water of the stream, and to prevent him using his said property by pass

state court for trial. The parties concurred in the opinion that the case was not removable from the state court, Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654, and Chappelling over or across said pier, as shown in the v. Waterworth, 155 U. S. 102, 39 L. ed. 85, 15 Sup. Ct. Rep. 34, being cited by them in support of that view.

At the trial in the state court the plaintiff asked the court to charge the jury:

That under the law of Michigan applicable to the facts in this case, the plaintiff was the owner of the submerged land in front of his upland, bounded by lines extending from the lateral lines of the upland to the center file of the stream, and running at right angles with the course of the stream in front of the upland, and therefore that the land and property described in the declaration belonged to and was owned by the plaintiff in fee simple, and so belonged to him when the action was brought;

That the pier or structure in question was constructed and was maintained by the defendant across plaintiff's land without his consent and against his rights in the premises;

testimony of the case, was in violation of said article 5 of Amendments to the Constitution of the United States, and as depriving the owner thereof of his property withou due process of law, and without just compensation, and without his consent."

These instructions were severally refused, and to that action of the court the plaintiff excepted.

In charging the jury the court stated that the United States district attorney had suggested in writing that the property in controversy, the title and possession of which were the subjects of this litigation, was, and for many years had been, in the possession of the United States through its officers and agents; that it was held for public uses in connection with the commerce and navigation of the Great Lakes; that the nominal defendant had no personal interest in the matter; that his physical possession of the premises was in his official capacity, and in law the possession of the United States; that the United States had always held title to the said land, and now holds possession under its claim of title; that this action was in effect an action against the United States government, which in its sovereign capacity could not be sued; and for these reasons the district attorney asked that all proceedings be stayed and the suit dismissed.

That neither the defendant nor the United States had any lawful right to construct the pier on and across the premises in question, thus taking possession of the premises adversely to the plaintiff, and excluding him from enjoyment thereof, and from all access from his land and premises to the navigable water of the river in front thereof, and from the navigable water of the river to his land; That neither the government of the United A verdict for the defendant was directed States nor the defendant had any lawful on the ground that, in legal effect, the action right to so construct the pier, or to maintain was against the United States, and that a the same as was being done at the time suit judgment for the plaintiff would be one was brought, and as they were now doing, against the government and its property. without their first having acquired the right *In the supreme court of the state the failto so construct and maintain the same from ure of the trial court to charge the jury as the owner of the fee, or without obtaining the requested by the plaintiff, and the direction right therefor by proceedings under the pow- to the jury to return a verdict for the defender of eminent domain on payment of due com-ant, were assigned for error. That court, pensation to the owner of the land therefor; and,

all the justices concurring, held that the action was not against the United States, but That under article 5 of the Amendments affirmed the judgment upon other grounds. It to the Constitution of the United States the said: "When one in the actual possession of property in question could not lawfully be property defends his right of possession uptaken for the public use to which it was ap- on the ground that the government, state or propriated, without just compensation hav-national, has placed him in possession, he ing been made therefor to the owner, or with- must show that the right of the government out due process of law. is paramount to the right of the plaintiff, or The plaintiff also requested this instruc- judgment will go against him. This point tion: "The construction of this pier was in has been settled by the decision of the Suviolation, and the maintaining of the same preme Court of the United States rendered was in violation, of said article 5 of the May 10, 1897. Tindal v. Wesley, 167 U. S. Amendments to the Constitution of the 204, 42 L. ed. 137, 17 Sup. Ct. Rep. 770. In United States in this, that it appears*from that case the authorities upon this point are the testimony in the case that the same was reviewed at length, including the case of appropriated without due process of law, and Stanley v. Schwalby, 162 U. S. 255, 40 L. ed. the same was taken and devoted to a public 960, 16 Sup. Ct. Rep. 754, upon which defenduse without the consent of the owner there-ant mainly relies. The United States governof, and without just compensation therefor, and that the taking possession of the land of the plaintiff, as appears by the record, was in violation of said article 5; and that the taking possession of the land of the plaintiff and the construction of the pier thereon, in the manner shown in this case, the effect of

ment took possession of the submerged land of the plaintiff for the purpose of erecting thereon piers in aid of the immense navigation upon the Great Lakes and the rivers connecting them. That the improvements made were necessary to aid and protect this navigation is established beyond dispute.

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Had the government the right to make these | Creek Case, 2 Pet. 245, 7 L. ed. 412; Gilman improvements upon the submerged land. Philadelphia, 3 Wall. 713, 18 L. ed. 96; without compensation to the adjoining own- Pound v. Turck, 95 U. S. 459, 24 L. ed. 525; er? It is conceded that under the law of Wisconsin v. Duluth, 96 U. S. 379, 24 L. ed. Michigan the title to submerged lands is in 668; South Carolina v. Georgia, 93 U. S. 4, the adjoining owner to the thread of the 23 L. ed. 782. If it were made apparent to stream. It is insisted in behalf of the plain- Congress that any extension of the plaintiff's tiff that the government possesses no right to present shore line into the river tended to so use his land, although submerged, and al- impair the navigability of the stream or its though necessary to so use it in aid of naviuse as a highway of commerce, Congress gation, as to cut off his access to the open could authorize the agents of the United water. It is contended, on the other hand, States to establish the present shore as the that this title to submerged lands along nav-line beyond which no structures of any kind igable waters, and the right of access thereto, could be extended, and the plaintiff would are subject to the paramount right of the have no claim for compensation. If the United States to use this land in such man- plaintiff could thus lawfully be prevented ner as it shall determine to be necessary in from appropriating to his private use any aid of navigation. The court of appeals was part of the submerged land lying in front of unanimous in its opinion against the plain- his shore line, and the whole of it be kept tiff's claim. In a very able opinion delivered subservient to the easement of navigation, by Judge Lurton the facts are clearly stated, how can it be successfully claimed that he the authorities cited, and we think the con- must be paid for the small portion covered clusion there reached is the correct one. We by the lighthouse 200 feet from the shore, therefore deem it unnecessary for us to enter which has been taken for a use as strictly into a long discussion of the law and the au- necessary to safe navigation as the improved thorities. The Hawkins Point Lighthouse channel itself? The court of appeals of Case, 39 Fed. Rep. 77, appears to be exactly Maryland, whenever called upon to declare in point, and to rule the present case. We the nature of the title of the state and its think the conclusion reached by the court be- grantees in the land at the bottom of navigalow was a correct one, although it gave a ble streams, has uniformly held that the soil wrong reason." 113 Mich. 565, 71 N. W. below high-water mark was as much a part of the jus publicum as the stream itself." 39 Fed. Rep. 77.

1091.

The plaintiff, Scranton, has assigned various grounds of error. These grounds are substantially those embodied in his requests for instructions in the trial court, and which were insisted upon in the supreme court of the state.

Messrs. John C. Donnelly and H. P. Davock for plaintiff in error.

Mr. Robert A. Howard and Solicitor General Richards for defendant in error.

Mr. Justice Harlan delivered the opinion of the court. After stating the facts as above reported, he proceeded:

The Hawkins Point Lighthouse Case, re ferred to in the opinion of the state court, was ejectment brought in a circuit court of the United States against a government keeper of a lighthouse to recover possession of such house, erected in the Patapsco river, a public navigable water of the United States, by the lighthouse board in pursuance of acts of Congress. There was no condemnation for public use of the lands upon which the lighthouse rested, nor was any compensation made to anyone for the site. The plaintiff was the owner of the upland, but had not, in the exercise of his riparian right, improved out into the water in front of his land. The court, speaking by Judge Morris, held that the plaintiff was not entitled to recover, say. 1. The government insists that ejectment ing: "While the submerged land remains a is not the proper remedy for a riparian ownpart of the bed of the river it is not private er to secure the removal of a structure that property in the sense of the 5th Amendment | interferes with access by him from his fast to the Federal Constitution. As was declared land to navigable water. A sufficient anin Gilman v. Philadelphia, 3 Wall. 725, 18 swer to this objection is that the state court L. ed. 99, the navigable waters ‘are the pub-recognized the present action as a proper lic property of the nation, and subject to all one under the laws of Michigan for the rethe requisite legislation by Congress.' In lief sought by the plaintiff. We have therethe hands of the state or of the state's gran- fore to consider only the controlling questee the bed of a navigable river remains sub-tions of a Federal nature presented by the ject to an easement of navigation, which the record and decided by the state court. general government can lawfully enforce, im- 2. The supreme court of the state correctprove, and protect. It is by no means truely held that the trial court erred in directing that any dealing with a navigable stream which impairs the value of the rights of riparian owners gives them a claim for compensation. The contrary doctrine, that, in order to develop the greatest public utility of a waterway, private convenience must often suffer without compensation, has been sanctioned by repeated decisions of the Supreme Court. The following are cases all involving that proposition: The Black Bird

a verdict for the defendant upon the ground that a judgment against him would in legal effect be a judgment against the United States. It is true the defendant, Wheeler, insisted that the action of which the plaintiff complained was taken by him under the authority of the United States. But this fact was not sufficient to defeat the suit. If the plaintiff was entitled to access from his land to navigable water, and if the defendant

gability is permanently lost by reason of the construction of a pier resting on submerged lands away from, but in front of, his upland, and which pier was erected by the United States, not with any intent to impair the rights of riparian owners, but for the purpose only of improving the navigation of such river.

denied the protection secured by the constitutional provision in question.

stood in the way of his enjoying that right, then the court was under a duty to inquire whether the defendant had or could have any authority in law to do what he had done; and the suit was not to be deemed one against the United States because in the consideration of that question it would become necessary to ascertain whether the defendant could constitutionally acquire from the Undoubtedly compensation must be made United States authority to obstruct the or secured to the owner when that which is plaintiff's access to navigable water in front done is to be regarded as a taking of private of his land without making or securing com- property for public use within the meaning pensation to him. The issue, in point of of the 5th Amendment of the Constitution; law, was between the individual plaintiff and of course in its exercise of the power to and the individual defendant, and, the regulate commerce Congress may not overUnited States not being a party of record, a ride the provision that just compensation judgment against Wheeler will not prevent must be made when private property is takit from instituting a suit for the direct deter- en for public use. What is private propermination of its rights as against the plain- ty within the meaning of that Amendment, tiff. This subject has been examined by the or what is a taking of private property for court in numerous cases, the most recent one public use, is not always easy to determine. being Tindal v. Wesley, 167 U. S. 204, 222, No decision of this court has announced a 223, 42 L. ed. 137, 143, 17 Sup. Ct. Rep. 770. rule that will embrace every case. But what In that case which was a suit to recover has been said in some cases involving the real property in South Carolina held by the general question will assist us in determindefendants, as they insisted, in their capaci-ing whether the present plaintiff has been ties as officers of the state, and only for the state-it was said that "the 11th Amendment gives no immunity to officers or agents of a state in withholding the property of a citizen without authority of law. And when such officers or agents assert that they are in rightful possession, they must make good that assertion when it is made to appear in a suit against them as individuals that the legal title and right of possession is in the plaintiff." Again: "It is said that the judgment in this case may conclude the state. Not so. It is a judgment to the effect only that, as between the plaintiff and the defendants, the former is entitled to possession of the property in question, the latter having shown no valid authority to withhold possession from the plaintiff; that the assertion by the defendants of a right to remain in possession is without legal foundation. The state not being a party to the suit, the judgment will not conclude it. Not having submitted its rights to the determination of the court in this case, it will be open to the state to bring any action that may be appropriate to establish and protect whatever claim it has to the premises in dispute. Its claim, if it means to assert one, will thus be brought to the test of the law as administered by tribunals ordained to determine controverted rights of property; and the record in this case will not be evidence against it for any purpose touching the merits of its claim."

These principles are applicable to the present case, and show that it is not within the rule forbidding a suit against the United States except with its consent.

3. The vital question, therefore, is the one heretofore mentioned, namely, whether the prohibition in the Constitution of the United States, of the taking of private property for public use without just compensation, has any application to the case of an owner of land bordering on a public navigable river whose access from his land to navi

In Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 181, 20 L. ed. 557, 561, the court construed a provision of the Constitution of Wisconsin declaring that "the property of no person shall be taken for public use without just compensation therefor;" observing that it was a provision almost identical in language with the one relating to the same subject in the Federal Constitution. In that case it appeared that a public improvement in a navigable water was made under local statutory authority, whereby the plaintiff's land was permanently overflowed and its use for every purpose destroyed. Referring to some adjudged cases which went, as the court observed, beyond sound principle, it was said that "it remains true that where real estate is actually invaded by su perinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking within the meaning of the Constitution, and that this proposition is not in conflict with the weight of judicial authority in this country, and certainly not with sound principle."

That case was relied upon in Northern Transp. Co. v. Chicago, 99 U. S. 635, 642, 25 L. ed. 336, 338, as establishing the invalidity of certain municipal acts looking to the improvement of a public highway. But this court said that "acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the state or its agents, or give him any right of action. This is supported by an immense weight of authority." It was observed in the same case that the extremest qualification of the doctrine was that found in Pumpelly's Case,

and that case was referred to as holding in shipping products and in receiving supnothing more than that "the permanent plies; that the dike was constructed under flooding of private property may be regarded the authority of an act of Congress approas a 'taking,'" because there would be in priating money for improving the Ohio riv such case "a physical invasion of the real es- er; that the owner was unable to use the tate of the private owner, and a practical landing for the shipment of products from ouster of his possession." and supplies to the farm for the greater part of the gardening season on account of the dike obstructing the passage of boats, and could only use the landing at a high stage of water; that after the dike was made she could not, during the ordinary stage of water, ship products from or receive supplies for her farm, without going over the farms of her neighbors to reach another landing; and that in consequence of the construction and maintenance of the dike the plaintiff's farm had been reduced in value from $600 to $150 or $200 per acre. It was further found that the plaintiff's access to the navi gable part of the river was not entirely cut quently occurred during November, December, March, April, and May, she could get into her dock in any manner, while from a 3-foot stage of water she could communicate with the navigable channel through a chute, and at any time haul out to the channel by wagon; that no water was thrown back on the land by the building of the dike; and that the dike itself did not come into physical contact with the land, and was constructed in the exercise of a claimed right to improve the navigation of the river.

In Monongahela Nav. Co. v. United States, 148 U. S. 312, 341, 343, 37 L. ed. 463, 473, | 474, 13 Sup. Ct. Rep. 622, there was an actual taking of certain locks and dams which had been constructed and maintained, under competent authority, by a navigation company; and the question was whether the franchise to take tolls for the use of the locks was to be deemed a part of the property taken for which compensation must be made. This court held that it was, remarking: "The franchise is a vested right. The state has power to grant it. It may retake it, as it may take other private property, for public uses, upon the payment of just compensa-off; that at a 9-foot stage of water, which fre tion. A like, though a superior, power exists in the national government. It may take it for public purposes, and take it even against the will of the state; but it can no more take the franchise which the state has given than it can any private property belonging to an individual." Again, in the same case: "It is also suggested that the government does not take this franchise; that it does not need any authority from the state for the exaction of tolls, if it desires to exact them; that it only appropriates the tangible property, and then either makes the use of it free to all, or exacts such tolls as it sees fit, or transfers the property to a new corporation of its own creation, with such a franchise to take tolls as it chooses to give. But this franchise goes with the property; and the navigation company, which owned it, is deprived of it. The government takes it away from the company, whatever use it may make of it; and the question of just compensation is not determined by the value to the government which takes, but the value to the individual from whom the property is taken; and when by the taking of the tangible property the owner is actually deprived of the franchise to collect tolls, just compensation requires payment, not merely of the value of the tangible property itself, but also of that of the franchise of which he is deprived."

This court held that the plaintiff had no cause of action against the United States. It said: "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 to navigation created in favor of the Federal government by the Constitution,"-citing 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. Again, in the same case: 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 sub

"The

But the case most analogous to the present one is that of Gibson v. United States, 166 U. S. 269, 271, 275, 276, 41 L. ed. 996, 998, 1002, 17 Sup. Ct. Rep. 578. That was an action in the court of claims to recover dam-merged, or a direct invasion thereof, but the ages resulting from the construction of a dike by the United States in the Ohio river, near the plaintiff's farm on Neville island, a short distance below Pittsburg.

From the finding of facts in that case it appears that at the time the dike was constructed Mrs. Gibson's farm was in a high state of cultivation, with a frontage of 1,000 feet on the main channel of the Ohio river, and had a landing that was used in shipping products from and in bringing supplies to it, and that there was no other landing on the farm which the owner could use'

incidental consequence of the lawful and proper exercise of a governmental power." "Moreover," the court said, "riparian ownership is subject to the obligation to suffer the consequences of the improvement of navi gation in the exercise of the dominant right of the government in that regard. The legislative authority for these works consisted simply in an appropriation for their construction, but this was an assertion of a. right belonging to the government, to which riparian property was subject, and not of a right to appropriate private property, not

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burdened with such servitude, to public pur- | corporation intended the actual destruction poses."

of tangible property belonging to a riparian In the light of these adjudications can it owner and lawfully used by him in reaching be held that Scranton, the plaintiff, is enti- navigable water, and not, like this, a case of tled, by reason of the construction of the pier the exercise in a proper manner of an adin question, to compensation for the destruc-mitted governmental power resulting indition of his right, as riparian owner, of ac- rectly or incidentally in the loss of the citicess from his land to the navigable part of zen's right of access to navigation, a right the river immediately in front of it? never exercised by him in the construction of a wharf before the improvement in question was made by the government.

The decision in Yates v. Milwaukee cannot be regarded as an adjudication upon the particular point involved in the present case. That, as we have seen, was a case in which the riparian owner had in conformity with law erected a wharf in front of his upland in order to have access to navigable water. The city of Milwaukee attempted arbitrarily In Stockton v. Baltimore & N. Y. R. Co. and capriciously to destroy or remove the 32 Fed. Rep. 9, 20, 1 Inters. Com. Rep. 411, wharf that had lawfully come into existence, Mr. Justice Bradley, holding the circuit and was not shown, in any appropriate court, said: "Such being the character of mode, to have been an obstruction to naviga- the state's ownership of the land under tion. It was a case in which a municipal water, an ownership held, not for the pur