HAWKINS POINT LIGHT-HOUSE CASE.
77
is presumed to have fulfilled every requisite which the discharge of his duty demands, (Russell v. Beebe, Hemp. 704,) and this maxim is applicable to the state agent, and it will be presumed that he selected and reported all the swamp lands in the county in accordance with his official duty; and after the lapse of 30 years, and on the facts of this case, U. this presumption would seem to be conclusive. U. S. v. Beebe, S. 338, 8 Sup. Ct. Rep. 1083; 9 Ops. Atty. Gen. 204. But if it were swamp land it would avail the plaintiff.'3 nothing; because, as has been shown, if it was swamp land, the state's title to it was vested in the purchaser from the United States by the acts of 1851 and 1875. The only parties, on the fact.'; of this case, whose interests can possibly be affected by the determination of this issue are the state and the United States. If it was swamp land, the "United States would be under obligation to pay to the state the purchase money it received from the railroad company for the land. It would have no other effect. In the preparation of this opinion the court has consulted some public documents, embracing official reports and correspondence of public officers of the state and the United States, relating to the swamp lands of the state, and published by authority, that were not formally introduced in evidence. This practice has the sanction of the supreme court of the United States. U. S. v. Teschmaker, 22 How. 405; Romero v. U. S., 1 Wall. 742; Watkins v. Holman, 16 Pet. 56; Bryan v. FOTsyth, 19 How. 338; Gregg v. jibrsyth, 24 How. 179. The conclusions reached on other points in the case make it unnecessary to consider the effect on the plaintiff's deed of the act of congress of March 12,1860, (12 St. 3,) which required that all selections of swamp lands to be made thereafter from lands already surveyed should be made within two years from the adjournment of the legislature of the state at its next session after the date of the act. In reference to this act see: Letter of the commissioner of the general land-office to the register and receiver at Little Rock, June 5, 1860; report of swamp-land secretary of Arkansas, October 1, 1860; report of commissioner of state lands, October 15, 1878; Buena Vista Co. v. Rililroad Co., 112 U. S. 174, 5 Sup. Ct. Rep. 84; Wright v. Roseberry, 121 U. S. 511, 7 Sup. Ct. Rep. 985.
HAWKINS Pon,T LIGHT-HOUSE CASE. CHAPPEI,L
v. VI" ATERWORTH. June 21, 1889.)
(Ci1'cuit Cou'rt, D. Maryland.
1.
NAVIGABLE WATERS-SCBMERGED SOIT,-RWHTS OF UNITED STATES.
In ejectment for the site of a light-house in Patapsco river, erected by the United States as a necessary aid to navigation, the plaintiff's case was that he held It gran.t from the state of Maryland of the submerged soil upon which the s,tructure stood, and that it had not been condemned. nor any compensation paid or tendered for it, and that he had also,. as riparian owner of the neigh-
78
FEDERAL REPORTER,
vol. 39.
boring shore, the right to improve out into the river over the Iight·house site. He/d, that the private interest the submerged soil at the bottom of the river which had been granted to the plaintiff, was subject to the paramount right of the public to use the ri:ver for navigation, and of the United States, in the regulation of commerce, to erect thereon such aids tona.vigation as were rea· sonably necessary; and that the plaintiff's rii.IDt to improve out into the river, until actually availed of, was subject to the t,jght of the United States to use the soil under the water in aid of navigation without the plaintiff's consent, aud without compensation. 2. SAME-EMINENT DOMAIN-COMPENSATION.
He/d, al8o, that the United States in constructing, by authority of congress, a necessary light-house upon soil under the water of the river, was exercising a right in aid of the public right of navigation. to 'lfhich the plaintiff's private ownership in the submerged soil was necessarily subservient, and that by such use the United States was not taking private property, within the meaning of the fifth amendment of the federal constitution.
(SyZlabu8 by the Court.)
At Law.
Ejectment.
John P. Poe and F. P. Stevens, for plaintiff. Thomas G. Hayes, U. S. Dist. Aity., by direction of the attorney general, appeared for defendant; and on behalf of the defendant, and of the United States, filed the following brief: "This is an action of ejectment brought by the plaintiff against the defendant to recover the possession of the site of Hawkins Point Light-Hollse, situated in the Patapsco river, the Ilame being OIle of the range lights of Brewerton channel. '.rhe defendant is the keeper of said light-honse, he having been appointed in conformity with the acts of congress by the light-house board. The suit was instituted in the circuit court for Anne Arunuel county, and nnder the provisions of the act of March 3, 1887, c. :17:3, was removed to the circuit court of the United Statl's for the district of Maryland. The plaintiff claims title to the fast land adjacent to that part of the Patapsco river where the light-house is located, through a grant from the state of Maryland to his grantor, J. M. Johnson, in Mart'h, 1859. He also asserts title to the sulJmerged land on which is locatf'd the light-house from the same grantor, who receIved a patent from the state of Maryland for it in the year 18ti1. The plaintiff also relies on his riparian rights nnder the act Md. 1802. c. 129. Code 1888, art. 54, 44-46. The site involved in this suit is thus described in the defenc1ant's plea: . That portion of said snbnwrgpd land used as a site for the Hawkins Point Light ::itatian, and embracing so much of said snbmerged land as is necessary to hold and support nine iron piles, eighteen inches ill diameter, on which piles, at the distance of twl'1ve fpet above mean high tide, the wooden structure of thl' said light-hollse is lJlaced. The said wooden strncture resting upon said piles is a square area twentyseven feet square. The center pile of said nine piles is at tlie center of the said square superstructure, and is situated at a point distant ... ... ... from the ordinary high-water mark of the adjacent shore 210 feet, more or less.' All the rest of the land described in the declaration the defendant, for himself and on behalf of the United States, denies being in possession of, and files a formal disclaimer of any right or title to the same. The light-house in question was erected on its prespnt site in 18ti8 by the lighthouse board, ill pursuanre of the acts of congress. There was no condemnation nor compensation paid to anyone for said site. It ever since has been in the possession of the United States, and used as one of the lights to aid in the navigation of Brewerton channel, in the Patapsco river; the said river being one of the public naVigable rivers of the United States, and within the limits of the state of Maryland.
HAWKUiS POINT LIGHT-HOUSE CASE.
79
"The defenda.nt, on behalf of and the United States, contends that the right of possession of the site in question is in the United States. His po!>ition as to this claim is as follows: The title to the land at the bottom of the navigable rivers of the United States, it is admitted, is in the state through whose territory these waters flow. This title of the state to these lands and waters is. howevpr, sUl>ject to the public easement of navigation and fishery, or, perhaps, more accurately stated. the state's title is in trust for these publ!c uses This title of the state is exactly the same kind of title which was held by Great Britain before the ,Revolution. which title was subject to this easement when in the king of England. By conquest the states became the owners of these submerged lands at the bottom of the naVigable waters, subject to this easpment or trust, The states under the uational compact sUITendered or relinquished to the federal government the regUlation and enforcement of this easement or trust as to commerce and naVigation. Lauds at the bottom of the navigable waters of the United States are therefore. as to th"ir use for commerce and naVigation. public property, and not private property. and are so taken and considered, when reqUired by the United States for these purposes. The title to these lands in the state being SUbject to this easement or trust, enforceable by the United States under the cnnstitution, which empowers congress to regUlate foreign and interstate commerce, the grantpes of the state t'\ke a title to these lands sUhject to the same limitations and public uses. In aid of commerce or naVigation. the United Stiltes has therefore the right to use the bottom of naVigable rivers for the construction of a light-house.-an aid to navigation. This right of the United States to lise these lands for purposes of commerce is paramount to any right of the state or its grantees under the title of the state to these lands and waters. This user by the United States of these lands and waters, which are public, and not private, property, for the pllrposesaforesaid. can be exercispd by the United States without con· demnation or payment of any consideration either to the state or its grantees. "Authority of Congress to Build Light-Houses. The light-house board, of which the secretary of the treasury is ex officio president, is. by congress, charged with the location, constructJOl1, and gpneral management of all lighthonses. The light-house board constructed Hawkins Point Light-House in Hl6t:l, under an act of congress which appropriates' for the estahlishml'nt of beacon lights to mark Brewerton channel, Patapsco river. thirty thousand dollars.' Section 4658, Rev. St.; Act July 28.1866, (14 St. at Large, 313.) "Title of State to Submerged Lands. The title of the state to the land at the bottom of the naVigable rivers within its limits is quite different from the title it holds to its uplands forming part of its public territory. The former is held, together with the water which covers them. by the state, in its capacity as a sovereign. for the public use and enjoyment of all its citiz'!ns. There is attached to this title a trust, to-wit. for the use and benefit of all its citizens in navigation and fishery. The state cannot divest its title of this trust. A grant by the state of such lands conveys a title SUbject to this trust. The title of the state to its uplands forming its public territory is an absolute and unqualitied fee. .The state's title to lhe lands submerged by the waters of the navigable rivers is exactly the same as was the title of the king to these lands befol'e the Revolution. These lands belonged to the king of Great Britain as a part of the jura 1'e.qaZia of the crown. They were held as a royal prerogative for the benefit of the people at large. The same kind of title devolved on the state after the Revolution, sllbject to the rights surrendered by the states to the United States under the constitution. The right to regulate commerce between the states, foreign nations, and the Indian tribes. was, by article 1, § 8, of the constitution, surrendered by the states to the federal government, and by the same instrument this right is made exclusive, plenary, and paramount. This title to submerged lands has been frequently passed on by the
80
FEDEItAL ItE:PORTER,
courts, hoth ferleTal and state. In the CHSP of Ma1'tin v. Waddell the supreme court of the United States elaborately discussed the character of these titles. Chief JIIRtice TANEY, in delivering the opinion of the court in that case, said: 'For wheu the revolution took place the people of each state became themselves sovt'l'eign, and III that character hold the absolute right to all their navigabl waters, and the soils under them, for their own cOlllmon lise, sUbject only to thp rights since sllrrpndered by the con'titution to the gen,"ral government.' In Pet. 410. In another ca'e till' supreme court of I he United by Mr Chief Justice WAITE. in dt'fiuing the title of Virginia to the beLls of her navigable rivet's, said: 'The title thus helLi is subject to the paramollnt right of uavigation, the rt'gulation of which, in respt'ct to foreign and interstate COIllIllPrce, has ueen granted to the. United States.' McCnod.1J v. Virginia, 94 U. S. 391. I n Maryland the saille doctrine has bet'n held by its cOllrt of appeals. In Zmy v Day, Jlldge COCHRAN says: · '.rhe common-law distinction between navigable watprs, and ri vel'S or streams not navigable, 1s fOllnLled on the dHl'erenc0 of tht' rights to which they are respel·tively subject; the t'utire property of the former being vesled in the public, while the latter belong tu riparian proprietors, although in some cases subject to a q ualilied public us". Hivers or streams within the ebb and flow of tide, to high-water mark, to the public, anLi in I hat sense are navigable waters; all the land below high-water mark being' as milch a part of theju8 publlCwn as the stream itself.' 22 1\ld. 537. The same law annouuced in an early case, (1i:l21,) as to Lord BaltImore's title to submerged lands. Browne v. Kennedy, 5 Hal'. & J. 20:3. "'J he Ill: ;ht ot' the United States to Take Submerged Ll!tndfor the Site of a Li{/ht-Hollse without Condemnation 01' lompensation. It is submitted that the f'lJlowing general propositions are true, and are firmly establislwd by the jUdicial del'isions of the federal courts: (1) The ownership of the state in the soil under walers is sllbservie)lt to the puLlic right of naVigation, the regUlation of which as to certain commerce has been sllrt't'ndpred by the states to the United btates. This Boil cannot be used either by t.he state or its grallt,-es so as to interfere with this right, the regnlation 01 which, as vI'sleLi in the Uuited is exclusivp, plenary, and paramonnt. (2) This public rio!ht is 11n eas,-ment on the title of the state and its grantees in these lands, enforceable by the United States, and for the enjoyment of such easement such erections may be made by the United Stat,s as are necessary for the lJeneticial use of the easem,-nt in quest.on. (3) These submerged lands, with the watt'rs. are pu bHe prllpE'rty, and not private property, and, wh.·n the Un ted States needs any of tht'se lands for purposps of commerce or navigation, it ,-an take them without cundemnation, or compensation either to the statp or its -grantees. "These propositions are supported by numerOllS decisions of the supreme cOllrt aUd drcuit comts of the United States. as well as by the opinions of the attorney generals of the United iStates, The following is a list of the most important of such cases and opinions: 15 Op. AltyS. Gen. 50, Mr. Pierrt'pont; 16 Op. AtLys. Gen. 535, Mr. Devens; Gibbons v. Ogden, 9 Wheat. 19U; Martin v. Waddell, 16 Pet. 410, 4:13; Pollard v. Hagan, 3 How. 230; Giiman v. Philadelphia, 3 Wall. 713; South Carolina v- Geo1'{/ia, 93U. is. 4; McCready v Virginia. 94 U. 8. 391; Telegraph Co. v. 'l'elegmph Co.,96 U. S. 1; Boom Co. v.Patterson, 98 U. 400; 1J:lobile Co. v. Kimball. 102 U. S. 691; Hub',ken v. Railroad Co., 124 G. S. 656, tI Ct. R,'p. 643; Brid.ge Co. v. Hat"h, 125 U S. 12; 8l::inp. Ct. Hep.tlll; Stockton v. Railroad Co, 32 J<'ed. Rep. 19; Illinois v. Railroad Co., 33 Fed. Rep. 730. '.rhe states Burrendered to the United States the entire control over commerce with foreign .nations, between the states, and with the Indian tribes. Article I, § 8, Const. U. S. The power of congl'6.:ls to regulate commerce was stated by p
81
Mr. Chief Justice MARSHALL to include the power to rpgulate navigation. Gibbons v. Ogr/en, 9 Wheat. 190. The power to establish lig-ht-hous·s and buoys and bt'acons is held to beembracl'd in the cOluml'rl'ial power of congress. Mr. Justice FIELD said: · Buoys and beacons are important aids, and sometimes art' essential, to the safe navigation of vessels, in indicatJ ng the channel to be followed at the entrance of harbors and in rivHs, anll their establishment byeongress is undoubtedly within its commercial power.' Mobile Co. v. Kimball, 102 U. S. 691. TIll' question as to the right of the United States to use the bottom of navigable rivers for various slrlletures has frequently ariseu in late years in the supreml-' cOlIrt of the United aud that court invariably has sustained the paramount right of tbe United states to use the bottom of these rivers for any purpose affl'cting commerce, even against the protest of the state, which it was conceded held the legal title. In the recent case of Boom Vo. v" Patterson, a q nestion arose as to the respedive rights of thl' state of Minnesota and the Unitl'd States to the use of the bottom of the MississiIJpi ri ver for a log boom. 'file construction of thl'se boOlus, as set fortll in the case, consistt'd of building pirs on the bottom of the river. and then counecting these piers by boom sticks. forming a ppn in which the logs were tloatpd and stored,-akind or log warehouse. The question arose in the of an island ownl'd by by the company for a log boom, the company claimlllg that Pilttt'rson was only entitled to the value of the island as land without "onsidering its availability for a boom. as no one else could use it for that purpose, as under (hdr dlartel' froll1 Minuesota they had the exclusive privilege. The supreme court rejPcted this view, and in Slating that the right of thp cOllJpany was not exclusivt', because the United s could grant the same priviJegetoanothl-'r. Mr. Justice FIELD said: · Mor,"over, the United Statl-'s, haVing' paramount control over the rivt'r, may grant sueh JicE'nse if the state should refuse oue.' 98 U. S. 403. If tIle United States, against the conspnt of a state. ean grant a licE'nsl-' to build a log warehouse on the bottom of the Mississippi rivt'r, can it be doubled that nine piles ean be driven by thE' United in the Patapsco river to support a light.-house to dirpet navigators in navigating Urewerton channel, against the consent of the grantee of the statt'? "In auother case the sllpreme court, in commenting on the title of New Jersey and its grantees to the sulJmerged land in front of the cityof Hoboken. by Mr. Justice MATTHKWS said: · Over these lands it [N. J.] had absolute and exclusive dominion. inclUding the right to appropriate them to such uses as might best sene its views of the public interest, subject to the power conferred by the constitution upon congress to foreign and interstate commerce.' Hoboken v. RailJ'uad Co., 124 U. S. 656. 8 Sup. Ct. Hep. 643. Mr. Justice BRADLEY, speaking for the snpreme coui"t, in commenting upon the respective powers of the state and United States over the navigable watf'rs, and the erection and removal of struetures on the bottom of these rivers, said: 4 .\.nd although. until congress acts, the states have" the plenary pow.'r supposed, yf't, when congress chooses to act, it is not concluded by anything that the states or that individuals, by its authority or acquiescence, have done. from assuming entire control of the matter, and abating any erections that may have been made, and preventing any others from being made, except in conformity with such regulations as it may impose.' Bridge Co. v. Hatch, 125 U. S. 12, 8 Sup. Ct. Hep. 811. In 1875 a question arose as to the right of the United States to locate in the bed of the Saginaw river two range lights without first obtaining the title to the sitt>s. The secretary of the treasury requested the opinion of Mr. Pierreponl, the attorney general, on the question. On 20, 1875, he replied: · I would respectfully submit that, in my judgment, the United States have the right to erect range lights in the waters of the river without reference to v.39F.no.2-6
82
FEDERAL
the ownership of the adjacent-lot,s. or any permission from riparian proprietors. * * * The state of Michigan has a right of pminent domain over the soil under its na vigabJe ri vers, and it has been held that this soil ,,:as not at all granted to the 1Jnited States, but reserved to the state; but the latest decisions of the supreme tribunal reiterate that the state sovereignty over the beds of navigable streams. is only for municipal purposes, never to be so used as to affect the exercise of any national right of eminent domain or jmisdiction. 10 an.)ount to an exercise of this mltional right of eminent domain might require some uneqUivocal expression of such a purpose, like II law expressly authorizing the placing of range lights at the entrance of Saginaw ri ver.' 15 Op. Attys. Gen. 50. H In 1880, under an act of congress appropriating money to improve Oakland harbor, in California, under the approval of the secretary of war, it became necessary to erect training walls in the bed of a navigable estuary below highwater mark. A question arose as to the necessity of the United States to obtain a title to that portion of the bed of this estuary which might be needed for the training walls. 'rhe secretary of war asked the opinion of Mr. Charles Devens, then attorney general. He replied: "rhe title to the lands wldeh the United States proposes to use for the purpose ot structures for the improvement of the harbor below high-water mark is derived from the state. But the state itself does not possess any right, either by virtue of its sovereignityor its ownership, which could in any way control the right of the United States, conferretl by the constitution, to regulate commerce. This right includes the right to regulate naVigation, and hence to regulate and improve navigable waters; and this it may do by the erection of such structures as it deems necessary for the purpose, no matter what the effect may be upon the subordinate rights of the owners of the soil covered by such navigable waters. The Led of the estuary in question being the bed of a navigable stream or a sheet of water, to the use of the harbor made by which training walls and other structures are essential, they may be used as appropriately as culverts, drains, or embankments may be for the purpose of the construction and proper enjoyment of a public road. * * * In direct answer to your inqUiry, I am of opinion that the United States has a legal right to use the bed of the estuary in question for the purpose of said improvement by the erection of training walls or anj' other appropriate structure, and that the owners of the soil can make no complaint of such use.' 16 Op. Attys. Gen. 536. In 1874-75 congress appropriated $120,000 for the improvement of the harbor of Savannah, Ga., and directed that this amount should be expended under the direction of the secretary of war. Above the city of Savannah the Savannah river is dividt'd by Hutchinson island into a northern and southern channel, the northern channel being within the territorial limits of South Carolina. The secretary of war decided that the harbor of Savannah would be improved by the closing of the northern channel; the increased depth of water and the scouring effect of a more rapid current in the channel would improve the harbor of Savannah. The secretary of war, therefore, directed that the northern channel should be closed by a dam. The state of South Carolina, in South Carolina v. Georgia, endeavored to prevent the closing of the northern channel, and filed a bill in equity in the supreme court of the United States against the state of Georgia, and made the secretary of war and United States engineers engaged in the work co-defendants. The bill was filed to obtain an injunction to prevent the obstruction or interruption of the navigation of the Savannah ri vel'. The supreme court refused the relief sought, holding that the power of the United states over the navigable waters of the Unitea States for the purposes of commerce and navigation was paramount, and excl usive; that the power granted by the commercial clause of the constitution to the United State was as full and as complete as that possessed by the states
HAWKINS POINT LIGHT-HOOSE CASE.
83
over their navig-able waters before the adoption of the constitution. The court in that case expressly held that the United States lIJay build light-houses upon the submerged lands of the navigable rivers. Its exact languagl1 is: · It lUay butld light-houses in the bed of the stream.' The state of South Carolina in this case also denied that congress had giveu any authority to the secretary of war to close the northern channel. inasmuch as there was no express law directing him to do so, but that the only authority for the act was to be found in the law appropriating the amount for the improvement of the harbor of Savannah. The supreme court held that this was ample power, and that no other ll'uthority was necessary. The court, in its opinion. reviews the extent of the power of congress over the beds and waters of naVigable rivers for the purpose of comJllf'rce and naVigation. Mr. Justice STRONG said; ·Prior to the adoption of the federal constitution, the states of South Carolina and Georgia together had complete dominion over the navigation of the river. By mutual agreement they might have regulated it as they pleased. It was in their power to prescribe, not merely on what conditions commerce might be conducted upon the stream, but also how the river might be naVigated, and whether it might be navigatpd at all. * * * 'rhey had plenary authority to make improvements in the bed of the river. to divert the watpr from one channel to another, and to plant obstructions therein at their will. This will not be denied; but the power to commerce," conferred hy tile constitution upon congress, is that which previously existed in the states, as was said in Gilman v. Philadelphia, 3 Wall. 724: "Commerce includes nav igation. The power to regulate commerce comprehends the control for that purpose, and to the extrnt necessary, of all the nay igalJle rivers of the United States which are accessible from a state other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the reqUisite legislation lJy congrpss.'" In the same case, in rererring to the power of congress to place obstructions to navigation in_ the bed of naVigable rivers, the court said: · If it were, every structure erected in the bed of the river, whether in the channel or not, would be an oostruction. It might be a light-house erected on a SUbmerged sand bank, or a jetty pushed out into the stream to narrow the water-way, and increase the depth of water and the direction and the force of the current. * * * The impediments to naVigation caused by such strul'tures are, it is true, in one sense, obstructions to naVigation; but, so far as they tend to facilit!tte commerce, it is not clitimed that they are unlawful. * * * It is not, however, to be conceded that congress has no power to order obstructions to lJe placed in the navigable waters of the United States. * It may build light-houses in the bed of the strpam. It may construct jetties.' "The navigable \,.,.aters of the United States, with their beds, for the purpose of commerce and navigation, being the' public property of the nation,' when any portion of this property i!;l reqUired by the United States for its uses in a,d of naVigation there is no condemnation necessary. It is only necessary for congress to ·order' the taking of the part needed for the specitied use. An appropriation act naming the rivet' or harbor to be improved and appropriating the npcessary money is sufficient. In South Carulina v. Georgia, on the question as to what was the required authority from congress to close the northern channel, Mr. Justice STRONG said: · The plaintiff next contends that, if congress has the power to authorize the construction of the work in contemplation and in progress, whereby the water wiII be diverted from the northe1'llinto the southern channel of the river, no such authority has been givpn. 'With this we cilnnot concur. By an act of congress of .June 23, 1874, (18 St. at Large, 204,) an appropriation was made of $50,000, to be expended under the direction of the secretary of war, for the repairs, preservation, and completion of certain public works, and, inter alia, "for the im-
84
provement of the harbor of Savannah." The act of March 3, 1875, (18 St. at Large, 459,) made an additional appropriation of $70,000 "for the improvement of the harllor of Savannah, Georgia." It is irue that neither of these acts directed the manner in which these appropriations should be expended. 'fhe Illode of improving the harbor was left to the discretion of the secretary of war, and the mode adopted, under his supervision, plainly tends io the improvement contemplated.' 93 U. S. 4. "In another case the supreme court was called upon to define the power of congress over the navigable rivers of the United States for the purposes of commerce and navigation. The question arose in the case of Telegraph Co. v. Telegraph Co. Congress, by act of 24th July, Ul86, gave to all telegraph companies who complied with the reqUirements of the act the right to run their lines' through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United 8taies, which have been, or may hereafter be, declared such by act of congress, and over. under, or across the navigable streams or waiers of the United 8tatps.' In construing this section of the act, the supreme court held that the dominion of the United 8tates over the naVigable waters for the purpose of commerce is the same as it is over the public domain. .Mr. Chief Justice \V AI'l'E, in delivering the opinion of the court, said: · It is insisted. however, that the statute extpnds only to such military and post loads as are upon the public domain; but ihis, we think. is not so. The language is, "through and over any purtion of the pUblic domain of the United Statt's, * * * and over, under, or across the navigable streams or watt'rs of the United States." There is nothing to indicate an intention of limiting the effect of the words employed, and they are therefore to be given their natural and ordinary signilication. Head in this way, the grant evidently extends to the public domain, the military and post roads, amI the navigable waters of the United _States. These are all Within the domain of the national government, to the extent of the national powers, and are therefore subject to legi timate congressionalregnlation. No question arises as to the authority of congress to prOVide for the appropriation of pri vate property to the uses of the telegraph, for no such attempt has been made. The use of public property alone is granted.' 96 U. S. 1. "If congress has the power to grant to a telegraph company the use of the bed of a navigable river for its poles to support iis wires running' over' and 'across' said streams. or the bed of these rivers to support its cahle or wires as they pass' under' these rivers. can it be doubted that congress can empower the light-house board to use the beds of naVigable rivers for tbe purpose of placing in them the iron posts 01' poles to support the superstructure of a light-house? In a very recent case this very question has arisen, as to the character of the title of the state to the bottom of the naVigable ri vel'S as against the United States, when needed, taken, or granted by the United States for the purpost-'s of commerce and naVigation. 'fhe question arose in the circuit court of the United States for the district of New Jersey in Stockton v. RailToad Co. This railroad company in constructing its bridge, under a grant from congress, across the Arthur kill, a naVigable water-way runniug between the states of New Jersey and New York, had taken the bottom of this stream below high-water mark on the New Jersey side for its central and western pier, without condemnation or grant from the state of New Jersey. This state resisted this taking by the company, claiming that it was private property belonging to the state. and that congress had no power to grant its use to a railroad company. It was otherwise held by the court, and in an elaborate and able opinion it was decided that it was not pri vate property, and that the title of the state was.in trust for the purposes of commerce and navigation, and that the United States had the right, under the commercial clause
85
of the constitution, to take it or grant it for this purpose. Thi;:; decision sustained the taking of the river bottom for the pier of a bridge, which had nothing to do with the navigation of the river, but upon the contrary might be and was an obstruction to its navigation; but how much more apparent. therefore, must be the right of the United states to use the beds of navigable streams for a light-house, the sale purpose of the light being to directly aid commerce and navigation. In delivering the opinion of the court Mr. Justice BHADLEY said: 'The information flghtly states that, prior to the Hevolution, the shore and lands under water of the navigable streams and waters of the province of New .Jersey belonged to the king of Great Britain as part of the ;jum Tegalia of the crown, and de\'olved tothe state by right of conquest. '.rhe information does not state, however, what is equally true, that after the conquest the said lands were held by the state as they were by the king, in trust for the public uses of naVigation and fishery, and the erection therpon of wharves, piers, light-houses, beacons, and other facilities of navigation and commerce. Being subject to this trust, they were publici ;jltTis,. in other words, tlley were held for the use of the people at large. It is true that to utilize the fisheries, especially those of shell-fish, it was necessary to parcel them out to particular operators, and employ the rent or consideration for the benefit of the whole peoplf', but this did not alter the character of the title. * * * Such being the character of the state's ownership of the land under water,-an ownership held, not for the purpose of emolument, but for pnblic use, especially the public use of naVigation and commerce,-the question arises whether it is a kinel of property susceptible of pecuniary compensation, within the meaning of the constitution. The fifth amendment provides only that private property shall not be taken without compensation, milking 110 reference to public property. * * * It is not so considered when sea walls, piers, Wing-dams, and other structures are erected for the purpose of aiding commerce by imprOVing and preserving the navigation. * * * It matters little whether the United States had or has not the theoretical ownership and dominion in the waters or the land under them; it bas, what is more, the and control of them for the purposes of cOlllmerce. * * * We think that the power to regulate commerce between the states extends not only to the control of the na vi gable waters of the country, and the lands under them, for the purposes of navigation, but for the purpose of erecting piers, bridges, and all other instrulllentalities of commerce which, in the judgment of congress, may be necessary or expedient.' 32 Fed. Hep. 19. "The title of the state of Maryland to the soil beneath the watprs of navigable rivers and the waters of these rivers within her territorial limits, for municipal purposes as well as for fisheries, is not for one moment qnestionE'd or denied by the United States. '.rhe claim of the United ::itates is that this title of the state and its granteE's to these lands is SUbject to a paramount public easement of navigation, the bpnelicial enjoyment of which is in the people of the United States, and the enforcement and regulation of which has been delegated to the national government, and therefore, for the enjoyment of such easement, such erections may be made by the United States on the soil at the bottom of these rivers as are necessary for the beneJ1cial use of the easement in question. 'fhe United States does not claim an absolute title to this land under these rivers, but simply an easement for the public uses of commerce and navigation. does the United States claim by virtue of the easement ci viI or criminal jurisdiction over any portion of these submerged lands when taken for a light-house, under this power conferred to enforce and regulate the easement in question. If the United States desires to have the absolute title as well as a cession of jurisdiction over these sites, the state alone can give it. But as to the power and right of the United Statl's to use these beds of the naVigable rivers for aids to commerce and navigation, with-
86
out absolute title or cession of jurisdiction, the easement in underthe grant of the power by the states to the United States to regulate commerce, is ample. The taking of these lands by the United States 1'01' the purposes aforesaid is the exercise of the power of eminent domain delpgated to the federal government, the thing taken being public property subjt·ct to pub8tates, as against the plaintiff in this suit, lic uses. The claim of the may be stated in this proposition: '.rhe ownership of the state in the soil beneath the navigable rivers within its territorial limits is subservient to the public right of navigation, and cannot be used in any way so as to derogate from and interft're with such right. The grantees of the state take sub,ject to this right. and any grant by the state to a person so as to be detrimental to this public right is void. "The correctness of this view of the character of the title of the state is confirmed by the opinions of the supreme court in many cases. Mr. Justice SWAYNE said: 'The right of (,minent clomain over the shores and the soil under the navigable waters for all municipal purposes belongs exclusively to the sLates within their respective territorial jurisdiction, and they, and they only, have the constitutional powerto exercise it. * '" '" But in the hands of the states this power can never be used so as to affect the exercise of any national right of eminent domain or jurisdiction with which the United 8tatps have been invt"stpd by the constitution, for, althuugh the territorial limits of Alabama have extended all her sovereign power into the sea, it is there, as on shore, but municipal power, subject to the constitution of the Unitell and the laws which shall have been made in pursuance thereof.' l.iilman v. Philadelphia, 3 Wall. 713; Pollard v. Hagan. 3 How. 230. "The state of Maryland impliedly in her laws concedes the paramount character of thiS easement as in the United 8tates. and that tht' state has 110 power to impaiL' it by her own laws. Her title to the submerged lands, it seems, she admits is not for emolument or sale for moneyed conSIderation to the United States. She has therefore by a public law agwed to con vey both the title and to rede jurisdiction' to the land covered by the navigable waters within the limits of the state, and on which a light.house * '" '" or other aids to naVigation has been built, or is about to be built,' upon the request of the United Htatt's, and without any consideration. The state recognizing the existence of this paramount t"aSflllent in the United States, anrl that hpr title to any part of the submerged lands in the navigable rivers in her limits is subject to this servitude. which could be exercised by the United titates at any time for the purposes of commerce or naVigation without he .. consent, very wisely decided by a general law to give to the United titates both the title and jurisdiction over such portions of submerged land upon which light-hollses had been or might be erected. It may be l.:onceded that the easement. although ample to justify the use by the United States of these lands WIthout the con· sent of the state, did not give title and jurisrliction to the United States over these lands, and the state, recognizing that her title with this servitude an· ·nexed was of no value, Willingly consentpu to a gift of title and jUl'lsdwtion. Act. Md. 1874, c. 190." Code 1888, art. 96, § 2. MORRIS, J. The brief filed by the learned district attorney correctly states the case made by the pleadings, and his full citations from decisions of the supreme court applicable to the question raised make it unnecessary to quote them in t.his opinion. . The plaintiff by this action of ejectment seeks to dispossess the United States of a light-house built by the United States light-house board in the year 1868, under authority of congress. It is erected upon piles in,
HAWKINB POINT LIGHT-HOUSE CASE.
87
the waters of the Patapsco river, where the tide ebbs and flows, at the distance of about 210 feet ii'om the shore, and it is one of the range lights ofthe main channel of the river, known as the "Brewerton Channel," which is the only approach for of large draught to the port of Baltimore. In this channel the natUl'al depth of the water-way is about 16 feet. It has been deepened to over 27 feet for the purpose of admitting large ocean steamerf', and it is kept dredged out, buoyed, and lighted by the constant supervision of the proper United States authorities with appropriations made by congress. It is conceded that the Hawkins Point light, as now located, is required for the safe navigation of the channel by ships engaged in foreign commerce. It covers an area of only 27 feet square. The plaintiff' has acquirrd by grant, and now owns, all the title and right in the upland, and the shore opposite this light-house, and in the bed of the river covered by this structure which the state could grant away, and has the riparian rights specially conferI'd by the Maryland act of 1862, c. 129, by which it was enacted that "the proprietor of land bounding on any navigable waters of this state is hereby declared to be entitled to the exclusive right of making improvements into the waters in front of his said land. Such improvements, and other accretions as above provided for, shall pass to the successive owners of the land to which they are attached as incident to their respective eF;tates. But no such improvement shall he so made as to interfere with the navigation of the stream of water into which said improvement is made." In fact, the plaintiff' never has availed of this privilege of improving out into the water covered by the light-house, but the right to do so is a valuable riparian right, not to be arbitrarily or capriciously destroyed. riLles v. Milwaukee, 10 Wall. 504. It is, however, a privilege which must be exercised subject to the right of the public to use the river for the great primary and paramount purpose of navigation, and for furnishing the usual and necessary aids to navigation. The ruling in l'iLles v. Milwaukee was that when under legislative permission, or in accordance with his privilege as a riparian owner, the owner of land bounding on a navigable stream has actually made his improvement, and by such improvement that portion of the stream so improved or reclaimed has ceased to be part of the navigable water, and is appropriated to private use, it can then only be taken to improve navigation upon proper compensation being made, as for any other strictIy private property. Such was the effect of the mandate of the supreme court in that case in reversing the decree below. But while the submerged land remains a part of the bed of the river it is not private property, in the sense of the filth amendment to the federal constitution. As was declared in Gilman v. Philadelphia, 3 Wall. 725, the navigable waters "are the public property of the nation, and subject to all the requisite legislation by congress." In the hands of the state or of the state's grantee the bed of a navigable river remains subject to an easement of navigation, which the general government can lawfully enforce, improve,anu protect. It is by no means true that any dealing with a navigable stream which impairs the value of the rights of riparian owners
88
gives them a clititn for compensation. The contrary doctrine, that, in order to develop the greatest public utility of a water-way, private convenience must often suffer without compensation, has been sanctioned by repeated decisions of the supreme court. The following are cases all invol dng that proposition: The Blackbird Creek Case, 2 Pet. 245; Gilman v. Philadelphia, 3 Wall. 713; Pound v. Ttlrck, 95 U. S. 459; Wisconsin v. Dlduth, 96 U. S. 379; South Carolina v. Georgia, 93 U. S. 4. If it were made apparent to congress that any extension of the plaintiff's present shore line into the river tended to impair the navigability of the stream, or its use as a highway of commerce, congress could authorize the agents of the United States to establish the present shore as the line beyond which no structures of any kind could be extended, and the plaintiff would have no claim for compensation. If the plaintiff could th us lawfully be prevented from appropriating to his private use any part of the submerged land lying in front of his Shore-line, and the whole of it be kept subservient to the easement of navigation, how can it be successfully claimed that he must be paid for the small portion covered by the light-house 200 feet from the shore, which has been taken for a use as strictly necessary to safe navigation as the improved channel itself? The court of appeals of Maryland, whenever called upon to declare the nature of the title of the state and its grantees in the land at the bottom of navigable streams, has uniformly held that the soil be. low high-water mark was as much a part of the jtlS publicum as the stream itself. Day v. Day, 22 Md. 537. And in the leading Maryland case of Browne v. Kennedy, 5 Hal'. & J. 203, (decided in 1821,) discussing the nature of the property in the soil covered by navigable rivers in Maryland, it was said: "It is very certain that by the common law the right [to the soil] was in the king of England, anll it seems eqnally cleat· that he had the capacity to dispose of it sub modo. Whatever doubts an' entertained on the subject, they probably have aris 'n from inattention to the distinction between the power of granting an exclusive prhill'ge, in violation or restraint of a common piscarial right or other eOLl1mOn right, as thdt of navigation, and the power of granting the so.] aqua coopeTta, subject to the common user. The subject hUH, de c()mmuni j'll1'e, an interest in a naVigable stream, such as the right of fishing and of navigating, which cannot be abridged or restrained by any charter or grant of the Hoil or fishery, since Magna GhaTta, at least. But the property in the soil may be transferred by grant, subject, however, to the j1t8 pub/illum, which cannot be prejudiced by the jttS pri'oatum auquired under the grant." The same doctrine has been recently enforced, with regard to the character of the ownership of New .Tersey in the lands under the navigable waters of that state, by Mr. Justice BRAmEY in Stocleton v. Railroad Co., 32 Fed. Rep. 19. It appears, therefore, that the private interest granted to the plaintiff in the soil in question was of necessity granted to him subject to the use which the United States is now making of it in aid of navigation, and that the special plea to plaintiff's acsets up a perfect defense to the action. The plaintiff's tion of replication to the defendant's special plea simply avers that, when pos-
FIRST NAT. BANK V. SALEM CAPITAL FLOUR-MILLS CO.
89
session of the submerged land was taken by the United States as in the plea alleged, the plaintiff held title to it under the grants from the state, and still holds said title, and that he has never been paid or tendered any compensation therefor. This, in my opinion, is no answer to the plea, and the defendant's demurrer to it is sustained. The plnintiff electing to stand on his replication, judgment will be entered for the defendant.
FIRST NAT. BANK OF SALEM V. SAI,EM CAPITAL FWUR-MILLS Co.
et al.
(Circuit Court, D. Oregon. 1. 2. THt:STS-SALE IN TRUST.
June 17,1889.)
A sale of property "in trust," held, under the circumstances, not to be a sale in trust to pay the debts of the vendor. VENDOR AND VENDEE- VENDOR'S
A g-rantor's lien on the premises conveyed, for the purchase price. is a personal privilege, not assignable with the debt; nor can the creditor of the grantor be subrogated to the same. CORl'OnATTOKs-PURCHASE OF T EIR OWN STOCK.
3.
In the absence of any statute to the contrary, a corporation may purchase and dispose of its own stock. provided the same is done in good faith, without intent to injure the creditors thereof, and they are not injured thereby. SAME-DEEDS-ATTORNRY TN FAC'l'.
4.
An attorney of a corporation must execute a deed in the name of his principal. but under his own hand aud seal. (Syllabu8 by the Court.)
Suit to Foreclose the Lien of a Mortgage. Tilrnrm F'ord, for plaintiff. lVillimn B. Gilbert, for defendant Stuart. John M. Bower, for defimdants Kelly and McDonald. DEADY, J. This suit is brought by the First National Bnnl. of Salem, herealter calleu herein the "Salem Bnnk," to enforce the lien of a mortgage given by the Salem (Oregon) Capital Flour-Mills Company, hereafter called herein the ,. Scotch Company," to secure the payment of its note for $30,000. William Stuart, who held a prior mortgage on the same property, executed by the City of Salem Company, hereafter called herein the" Oregon Company," to secure the payment of $71,940, with interest, was made defendant. He appeared, and tiled a cros5-bill, in which he admitted the claim of the plaintiff, and asked to have the lien of his mortgage enforced. Joseph Kelly and R. McDonald were also maue defend!Jnts, the former being a British subject, and the latter a citizen of Rhode Island, on the ground that they pretend to have some interest in the property I as the judgment creditors of the Oregon Company.