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Argument for Appellant.

the land itself submerged in any way he pleases. Rex v. Lord Yarborough, 3 Barn. & C. 15; Angell, Tidewaters, 1st ed., 71; Emans v. Turnbull, 2 Johns. 314; S. C., 3 Am. Dec. 427; 2 Bl. Com. 261; Hargrave's Law Tracts, 28; Gould on Waters, § 158 and cases cited; Mulry v. Norton, 100 N. Y, 424, citing Hargrave's Law Tracts (Matthew Hale's De Jure Maris, 36–37); Cooke & Foster, M. 7 Jac. C. B.; Morris v. Brooks, decided by the Court of Common Pleas of Delaware; Wallace v. Driver, 31 L. R. A. (Ark.) 319; Hunt on Boundaries, &c. 29.

So that the washing away by freshets of the surface of the soil of Brunot's Island inside of the commissioners' line of 1865, which is admitted to be located upon what was the actual high-water mark at that time, has made no alteration in the boundary of the island. That boundary still remains where it was at that time, to wit, on the commissioners' line of 1865. St. Louis v. Rutz, 138 U. S. 226, 245. See also Nebraska v. Iowa, 145 U. S. 519; Widdecombe v. Rosemiller, 118 Fed. Rep. 295.

This proceeding is "not virtually a suit against the United States," but a suit to restrain the defendant, an executive officer of the Federal Government, from exceeding his authority to the impairment of the property rights of the claimant. United States v. Lee, 106 U. S. 218, 219; Noble v. Union River Logging Railroad, 147 U. S. 171; School of Magnetic Healing v. McAnnulty, 187 U. S. 108; Scott v. Donald, 165 U. S. 112; In re Tyler, 149 U. S. 164; Osborn v. Bank of the United States, 9 Wheat. 842; New Orleans v. Paine, 147 U. S. 264; Louisiana State Lottery Co. v. Fitzpatrick, 15 Fed. Cas. 986.

A court of equity will entertain a bill to restrain the institution and prosecution of criminal proceedings, as threatened in this case, for the reason that such prosecution would interfere with, and, in effect destroy, the property rights of the complainant in the land in question. Because in fact the prosecution of such proceedings would VOL. CCXXIII-39

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entirely deprive plaintiff of the use of its property and constitute such a taking of private property for public uses as a court of equity will always enjoin. Davis & Farnum Mfg. Co. v. Los Angeles, 189 U. S. 207; Central Trust Co. v. Citizens' Street Railway Co., 80 Fed. Rep. 225; Louisiana State Lottery Co. v. Fitzpatrick, 15 Fed. Cases, 986; Dobbins v. Los Angeles, 195 U. S. 241; City of Hutchinson v. Beckham, 118 Fed. Rep. 401; Greenwich Ins. Co. v. Carroll, 125 Fed. Rep. 126; Frewin v. Lewis, 4 Mylne & Craig, 249; Baltimore v. Radeke, 48 Maryland, 217; Georgia R. R. Co. v. Atlanta, 118 Georgia, 490; Lewis on Eminent Domain, par. 56; Osborne v. Missouri Pac. Ry. Co., 147 U. S. 258, 259; Eaton v. B. C. & M. R. R. Co., 51 N. H. 511-512.

Complainant does not contend that the mere establishing of the harbor lines complained of, and the requiring of the plat in the office of the Secretary of War, unaccompanied by the taking of any active measures on the part of the defendant to actually interfere with the complainant in the use of its property, would have furnished sufficient ground for the interference of a court of equity, as by injunction, as the mere establishing of harbor lines unaccompanied by any such action does not constitute such a cloud upon the complainant's title to his land or such invasion of his rights as would justify such relief. But the facts of this case at bar are exactly the reverse of the facts of Yesler v. Washington Harbor Line Commissioners, 146 U. S. 646, 656, and Prosser v. N. P. Ry. Co., 152 U. S. 59.

The fact that the land of the plaintiff of which the defendant is depriving the plaintiff the possession by threatening it with criminal prosecution if it uses said landwhich in other words the defendant is attempting to take without compensation-is not located in the District of Columbia, does not deprive the Supreme Court of the District of jurisdiction. Stone v. United States, 167 U. S.

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169; Cole v. Cunningham, 133 U. S. 107; Phelps v. McDonald, 99 U. S. 298.

Mr. Assistant Attorney General Knaebel for appellee:
The harbor line was lawfully established.

As riparian owner with or without the fee of the river bed, the appellant is in no position to complain of the new harbor line. No "taking" of property is involved in the incidental losses which result to such an owner from the exercise by Congress of its paramount power to improve and protect navigation. The navigable waters are the public property of the nation, and subject to all the requisite legislation by Congress. Gilman v. Philadelphia, 3 Wall. 725; South Carolina v. Georgia, 93 U. S. 4, 11; Mobile v. Kimball, 102 U. S. 691, 697; Gibson v. United States, 166 U. S. 269; Scranton v. Wheeler, 57 Fed. Rep. 803; S. C., 179 U. S. 141; Hawkins Point Light-House Case, 39 Fed. Rep. 77; United States v. Rio Grande Dam &c. Co., 174 U. S. 690, 708; Union Bridge Company v. United States, 204 U. S. 364, 400. A permission granted by the State years ago, but not acted on, cannot survive in the face of a sweeping policy of Congress.

The bill does not exhibit facts sufficient to show that the change in this instance was one of avulsion or submergence.

There is no allegation that the change occurred perceptibly. Jefferis Case, 134 U. S. 178. The rapidity with which floods and freshets wore away the bank, if they wore. it at all, would depend upon a variety of physical conditions. They might wear rapidly, or gradually, or not at all; they might well add to instead of subtracting from the soil. The law is concerned only with the degree of speed with which the diminution takes place, but as to this the bill is wholly silent.

The difference between the processes is found in the fact that the operation of the one is sudden and its results

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perceptible in their progress, while the other operates so gradually that the eye does not observe the inward movement of the water. County of St. Clair v. Lovingston, 23 Wall. 46, 47; Jefferis v. East Omaha Land Co., 134 U. S. 178; Nebraska v. Iowa, 143 U. S. 359, 361.

Admitting that the change was by a process akin to avulsion, and conceding freely the power of the State to do away with the common law of accretion and erosion entirely, and establish a permanent boundary for the plaintiff's land, that has nothing to do with the matter of protecting navigation. So far as the General Government is concerned, appellant is simply in the position of a riparian proprietor, owning the fee as far out as the Commissioners' line, subject to have his use of it regulated in the interest of commerce under the authority of Congress.

The court was without jurisdiction. Boston &c. Mining Co. v. Montana Ore Co., 188 U. S. 632, 639; Dredging Co. v. Morton, 28 App. D. C. 288. The suit cannot possibly be other than a suit against the United States. Prosser v. Northern Pacific Railroad, 152 U. S. 59; Yesler v. Washington Harbor Line Commissioners, 146 U. S. 646; S. C., sub nom. Board of Harbor Line Commissioners v. State, 2 Washington, 530; 27 Pac. Rep. 550; Harkrader v. Wadley, 172 U. S. 148, 169; Ex parte Young, 209 U. S. 203, distinguished; and see Fitts v. McGhee, 172 U. S. 516.

The suit, therefore, is in effect a suit against the United States. Minnesota v. Hitchcock, 185 U. S. 386; Board v. McComb, 92 U. S. 531; Oregon v. Hitchcock, 202 U. S. 60. It is a palpable attempt to prejudge the merits of a criminal prosecution which the Attorney General would have a perfect right, and, indeed, would be under a duty, to institute if, in his best judgment, he should conclude that the harbor line was lawfully established.

The case is also clearly not such a suit as ought to be entertained by the court as a court of equity. It is objectionable from this standpoint in the first place as a

pure attempt to enjoin valid criminal proceedings. In re Sawyer, 124 U. S. 200, 209, 210; Harkrader v. Wadley, 172 U. S. 148, 170; Fitts v. McGhee, supra.

Furthermore, only one punishment would be involved under the act of 1899 by the construction of the wharf beyond the harbor line. In that respect also the case differs greatly from the Young Case. There could be no multiplicity of prosecutions or cumulation of drastic penalties. Neither does it appear that great and irreparable loss will result from delaying the construction of the proposed wharf.

The harbor line produces no cloud upon the title and does not for any other reason afford a ground of equitable interference, as was fully determined by this court in Prosser v. Northern Pacific Railroad Company, supra.

MR. JUSTICE HUGHES delivered the opinion of the

court.

This suit was brought in the Supreme Court of the District of Columbia to set aside certain harbor lines in the harbor of Pittsburgh, Pennsylvania, so far as they encroached upon land owned by the complainant, and to restrain the Secretary of War from causing criminal proceedings to be instituted against the complainant because of the reclamation and occupation of its land outside the prescribed limits. The Court of Appeals of the District affirmed a decree sustaining a demurrer to the bill, and the complainant appeals.

The allegations of the bill, in substance, are as follows: The complainant, a corporation of the Commonwealth of Pennsylvania, is the owner in fee of "Brunot's Island," formerly Chartier's or Hamilton's Island, in the Ohio River, in Allegheny County, Pennsylvania. In 1858, a statute was enacted in Pennsylvania providing for the appointment of commissioners to ascertain and mark the