reprehensible modes of compelling the production of incriminating evidence are thereby avoided. The prosecutors are forced to search for independent evidence instead of relying upon proof extracted from individuals by force of law. The immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the privilege may impose on society in the detection and prosecution of crime. While the privilege is subject to abuse and misuse, it is firmly embedded in our constitutional and legal frameworks as a bulwark against iniquitous methods of prosecution. It protects the individual from any disclosure, in the form of oral testimony, documents or chattels, sought by legal process against him as a witness." (United States v. White, 322 U.S. 694, 698-699, June 12, 1944.)

"Since the privilege against self-incrimination is a purely personal one, it cannot be utilized by or on behalf of any organization, such as a corporation. ✶ ✶✶ Moreover, the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity. *** But individuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges. Rather they assume the rights, duties and privileges of the artifical entity or association of which they are agents or officers and they are bound by its obligations. In their official capacity, therefore, they have no privilege against selfincrimination. And the official records and documents of the organization that are held by them in a representative rather than in a personal capacity cannot be the subject of the personal privilege against self-incrimination, even though production of the papers might tend to incriminate them personally. *** Such records and papers are not the private records of the individual members or officers of the organization. Usually, if not always, they are open to inspection by the members and this right may be enforced on appropriate occasions by available legal procedures. ***They therefore embody no element of personal privacy and carry with them no claim of personal privilege." (United States v. White, supra, at 699-700.)

provisions the declaration that the incumbent shall not be dismissed therefrom. Whatever the form of the statute, the officer under it does not hold by contract. He enjoys a privilege revocable by the sovereignty at will; and one legislature cannot deprive its successor of the power of revocation." (Crenshaw v. United States, 134 U.S. 99, 108, Mar. 3, 1890. See also: United States v. Hartwell, Wall. 385, 393, Dec. Term, 1867; Field v. Giegengack, 73 F.2d 945, 946, Nov. 5, 1934.)

"It is everywhere recognized that the freedom of the people to enter into and carry out contracts in respect of their property and private affairs is a matter of great public concern and that such liberty may not lightly be impaired. Generally speaking, that right is protected by the due process clauses of the Fifth and Fourteenth Amendments.

It is also well-established by the decisions of this court that such liberty is not absolute or universal and that Congress may regulate the making and performance of such contracts whenever reasonably necessary to effect any of the great purposes for which the national government was created." (Highland v. Russell Car & S. P. Co., 279 U.S. 253, 261, Apr. 8, 1929. See also: Virginian Ry. Co. v. System Federation No. 40, 300 U.S. 515, 558, Mar. 29, 1937; Carlton Screw Products Co. v. Fleming, 126 F.2d 537, 541, Mar. 20, 1942.)

"Except in rare and special instances, the due process clause contained in the Fifth Amendment is not a limitation upon the taxing power conferred upon Congress by the Constitution." (Magnano (A) Co. v. Hamilton, 292 U.S. 40, 44, Apr. 2, 1934.

"Whenever the government undertakes to deprive a person of his liberty, as a punishment for crime, it must do it by virtue of a valid, constitutional statute defining the crime, and such a statute is required by the 'due process' clause of the Fifth Amendment. The statute upon which a person is deprived of his liberty is a part of the process of law which is used against him, and it must be 'due process of law.'". (United States v. Armstrong, 265 F. 683, 691, May 26, 1920.)

The due process clause of the Fifth Amendment does not preclude Congress from prescribing a heavier penalty for an offense involving the rights and property of the United States than for a similar offense involving the rights or property of a private person. (Hill v. United States ex rel. Weiner, 300 U.S. 105, Feb. 1, 1937.)

Procedural due process. "A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner. While this rule has, at times and in the cases of misdemeanors, been somewhat relaxed, yet in felonies, it is not in the power of the prisoner, either by himself or his counsel, to waive the right to be personally present during the trial. And it appears to be well settled that, where the personal presence is necessary in point of law, the record must show the fact. (Lewis v. United States, 146 U.S. 370, 372, Dec. 5, 1892. See also: Diaz v. United States, 223 U.S. 442, Feb. 19, 1912; Arrington v. Robertson, 114 F.2d 821, Sept. 9, 1940; United States v. Johnson, 129 F.2d 954, June 30, 1942; Weirman v. United States, 36 Ct. Cls. 236, Apr. 8, 1901.)

If, after the trial of an indictment is commenced, the accused escapes from custody, and, for that reason, his further attendance cannot be had, the trial may proceed in his absence. (United States

V. Loughery et al., 26 Fed. Cas. 998, No. 15,631, Mar. 8, 1876. Accord: Falk v. United States, 15 App.D. C. 446, Dec. 5, 1899.)

"The right of a prisoner to be present at his trial does not include the right to prevent a trial by unseemly disturbance. The defendant had the opportunity to be present at the whole of his trial. He was, in fact, present while the jury were being impanelled and the evidence was being introduced. He was absent during a part of the opening, only because of his own disorderly conduct. It does not lie in his mouth to complain of the order which was made necessary by his own misconduct, and which he could at any time have terminated by signifying his willingness to avoid creating disturbance." (United States v. Davis, 25 Fed. Cas. 773, 774, No. 14,923, June 18, 1869.)

"It is true that the Constitution does not, in terms, declare that a person accused of crime cannot be tried until it be demanded of him that he plead, or unless he pleads, to the indictment. But it does forbid the deprivation of liberty without due process of law; and due process of law requires that the accused plead, or be ordered to plead, or, in a proper case, that a plea of not guilty be filed for him, before his trial can rightfully proceed; and the record of his conviction should show distinctly, and not by inference merely, that every step involved in due process of law, and essential to a valid trial, was taken in the trial court; otherwise the judgment will be erroneous. " (Crain v. United States, 162 U.S. 625, 645, Apr. 20, 1896.)

If

"Can it be doubted that due process of law signifies a right to be heard in one's defence? the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity whatever of being heard, would it be pretended that such an enactment would not be violative of the Constitution? If this be true, as it undoubtedly is, how can it be said that the judicial department, the source and fountain of justice itself, has yet the authority to render lawful that which if done under express legislative sanction would be violative of the Constitution. If such power obtains, then the judicial department of the government sitting to uphold and enforce the Constitution is the only one possessing a power to disregard it. If such authority exists then in consequence of their establishment, to compel obedience to law and to enforce justice courts possess the right to inflict the very wrongs which they were created to prevent." (Hovey v. Elliott, 167 U.S. 409, 417-418, May 24, 1897.)

"Aside from constitutional provisions, it is a plain dictate of common justice that no person shall be deprived of life or property without due process of law. Trial by a court not legally constituted is not a trial which can be said to be 'due process of law. '" (22 Op. Atty. Gen. 137, 138, July 18, 1898.)

"This court has had frequent occasion to consider the requirements of due process of law as applied to criminal procedure, and, generally speaking, it may be said that if an accused has been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him, with an opportunity to be heard, and a judgment awarded within the authority of a constitutional law, then he has had due process of law." (Ong Chang Wing v. United States, 218 U. S. 272, 279-280, Nov. 7, 1910.)

"The Fifth Amendment to the Constitution of the United States, prohibiting deprivation of liberty without due process of law, means, in its application to judicial hearings, in the often quoted words of Webster, 'a law which hears before it condemns.'" (Thomas v. District of Columbia, 90 F.2d 424, 428, Apr. 19, 1937.)

"Besides, what is due process of law must be determined by circumstances. To those in the military or naval service of the United States the military law is due process. The decision, therefore, of a military tribunal acting within the scope of its lawful powers cannot be reviewed or set aside by the courts. (Reaves v. Ainsworth, 219 U.S. 296, 304, Jan. 9, 1911. See also: United States ex rel. Creary v. Weeks, Secy. of War, 259 U. S. 336, 344, May 29, 1922.)

"We think that this basic guarantee of fairness afforded by the due process clause of the fifth amendment applies to a defendant in criminal proceedings in a federal military court as well as in a federal civil court. An individual does not cease to be a person within the protection of the fifth amendment of the Constitution because he has joined the nation's armed forces and has taken the oath to support that Constitution with his life, if need be. The guarantee of the fifth amendment that 'no person shall ✶ ✶ ✶ be deprived of life, liberty, or property, without due process of law,' makes no exception in the case of persons who are in the armed forces. The fact that the framers of the amendment did specifically except such persons from the guarantee of the right to a presentment or indictment by a grand jury which is contained in the earlier part of the amendment makes it even clearer that persons in the armed forces were intended to have the benefit of the due process clause. This is not to say that members of the military forces are entitled to the procedure guaranteed by the Constitution to defendants in the civil courts. As to them due process of law means the application of the procedure of the military law. Many of the procedural safeguards which have always been observed for the benefit of defendants in the civil courts are not granted by the military law. In this respect the military law provides its own distinctive procedure to which the members of the armed forces must submit. But the due process clause guarantees to them that this military procedure will be applied to them in a fundamentally fair way. We conclude that it is open for a civil court in a habeas corpus proceeding to consider whether the circumstances of a court-martial proceeding and the manner in which it was conducted ran afoul of the basic standard of fairness which is involved in the constitutional concept of due process of law and, if it so finds, to declare that the relator has been deprived of his liberty in violation of the fifth amendment and to discharge him from custody." (United States ex rel. Innes v. Hiatt, 141 F.2d 664, Mar. 15, 1944. Compare: United States ex rel. Innes v. Crystal, 131 F.2d 576, 577, Jan. 4, 1943.)

*

"The rules of evidence * * are established not alone by the courts but by the legislature. The Congress has power to prescribe what evidence is to be received in the courts of the United States. ***But the due process clauses of the Fifth and Fourteenth Amendments set limits upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated." (Tot v. United States, 319 U.S. 463, 467, June 7, 1943.)

V. TAKING OF PRIVATE PROPERTY FOR PUBLIC USE.

Power of eminent domain. - The power of eminent domain exists in the government of the United States, and may be exercised by it within the States, so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution. (Kohl et al. v. United States, 91 U. S. 367, Oct. Term, 1875. See also: United States v. Jones, 109 U. S. 513, 518, Dec. 10, 1883; Fort Leavenworth Railroad Company v. Lowe, 114 U.S. 525, 531-532, May 4, 1885; Van Brocklin v. State of Tennessee, 117 U. S. 151, 154–155, Mar. 1, 1886; Chappell v. United States, 160 U.S. 499, 509-510, Jan. 6, 1896; United States v. Gettysburg ectric Railway Company, 160 U. S. 668, 681, Jan. 27, 1896; James v. Dravo Contracting Co., 302 U. S. 134, 147, Dec. 6, 1937; United States v. City of Tiffin, 190 F. 279, 280, Sept. 28, 1911; United States v. Jotham Bixby Co., 55 F. 2d 317, 318, Jan. 11, 1932; C. M. Patten & Co. v. United States, 61 F.2d 970, 971-972, Nov. 28, 1932.)

The United States has authority to condemn land "whenever it is necessary or appropriate to use the land in the execution of any of the powers granted to it by the Constitution." (United States v. Gettysburg Electric Railway Company, supra, at 679. See also: Shoemaker v. United States,, 147 U. S. 282, 297-300, Jan. 16, 1893; Brown v. United States, 263 U. S. 78, 81, Nov. 12, 1923; In re Manderson, 51 F. 501, 503, Aug. 16, 1892; United States v. Threlkeld, 72 F.2d 464, July 28, 1934; United States v. Certain Lands in City of Louisville Jefferson County, Ky., 78 F.2d 684, July 15, 1935; Oklahoma City v. Sanders, 94 F.2d 323, Jan. 8, 1938.)

"All private property is held subject to the necessities of government. The right of eminent domain underlies all such rights of property. The government may take personal or real property whenever its necessities or the exigencies of the occasion demand. " (United States v. Lynah, 188 U.S. 445, 465, Feb. 23, 1903.)

"The power of eminent domain is not dependent upon any specific grant; it is an attribute of sovereignty, limited and conditioned by the just compensation clause of the Fifth Amendment." (Hanson Lumber Co. v. United States, 261 U. S. 581, 587, Apr.. 9, 1923.)

"The right of eminent domain is a common-law right, inherent in every sovereignty unless denied by its fundamental law. It is a right which exists in the federal government, and may be exercised by it within the states, so far as necessary to the enjoyment of the powers conferred upon it by the constitution. Congress may create a special tribunal for condemnation purposes, adopt the tribunals of the states, or authorize purely common-law proceedings in the courts of the United States. In the absence of direction by congress, as to the tribunal or mode of procedure, an action at common law will lie in the name of the United States in the district in which the land to be condemned lies. *** The only constitutional limitation on this right of eminent domain is found in the provision which forbids the taking of private property for public purposes without just compensation. " (High Bridge Lumber Co. v. United States, 69 F. 320, 325, July 2, 1895.)

Property within scope of constitutional provision. "Though the meaning of 'property' as used in

the Fifth Amendment is a federal question, it will normally obtain its content by reference to local law. " (United States ex rel. Tennessee Valley,

Authority v. Powelson, 319 U. S. 266, 279, May 17, 1943. See also: United States v. Cress, 243 U.S. 316, 319-322, Mar. 12, 1917; Barr v. Spalding, 46 F.2d 798, 799, Oct. 26, 1927.)

"A private right of way is an easement and is land. We perceive no reason why it should not be held to be acquired by the United States as incident to the fee for which it admits that it must pay. But if it were only destroyed and ended, a destruction for public purposes may as well be a taking as would be an appropriation for the same end. The same reasoning that allows a recovery for the taking of land by permanent occupation allows it for a right of way taken in the same manner, and the value of the easement cannot be ascertained without reference to the dominant estate to which it was attached." (United States v. Welch, 217 U. S. 333, 339, Apr. 25, 1910.)

* *

"All condemnations by the United States are primarily controlled by the Fifth Amendment. While the amendment reads that 'private property cannot be taken for public use, without just compensation' (italics added), yet 'private,' as thus used, includes property which is ordinarily regarded as public property--such as that held for public uses by a state, (United States v. Wheeler Tp., 66 F.2d 977, 982, July 20, 1933. See also: Town of Nahant v. United States, 136 F. 273, Mar. 20, 1905; Wayne County v. United States, 53 Ct. Cls. 417, Apr. 22, 1918, aff., 252 U. S. 574, Apr. 19, 1920; Town of Bedford v. United States, 23 F.2d 453, Dec. 27, 1927; United States v. Certain Parcels of Land in City of Baltimore, Parcel No. 12, 43 F. Supp. 687, Mar. 4, 1942.)

"That the government of the United States when it grants letters-patent for a new invention or discovery in the arts, confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser, we have no doubt. The Constitution gives to Congress power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries, which could not be effected if the government had a reserved right to publish such writings or to use such inventions without the consent of the owner. Many inventions relate to subjects which can only be properly used by the government, such as explosive shells, rams, and submarine batteries to be attached to armed vessels. If it could use such inventions without compensation, the inventors could get no return at all for their discoveries and experiments. It has been the general practice, when inventions have been made which are desirable for government use, either for the government to purchase them from the inventors, and use them as secrets of the proper department; or, if a patent is granted, to pay the patentee a fair compensation for their use. The United States has no such prerogative as that which is claimed by the sovereigns of England, by which it can reserve to itself, either expressly or by implication, a superior dominion and use in that which it grants by letters-patent to those who entitle themselves to such grants. The government of the United States, as well as the citizen, is subject to the Constitution; and when it grants a patent the grantee is entitled to it as a matter of right, and does not receive it, as was originally supposed to be the case in England, as a matter of grace and favor." (James

v. Campbell, 104 U. S. 356, 357-358, Oct. Term, 1881. See also: United States v. Palmer, 128 U.S. 262, 270-272, Nov. 19, 1888; Cramp & Sons Ship & Engine Bldg. Co. v. International Curtis Marine Turbine Co., 246 U.S. 28, 39-40, Mar. 4, 19 18.)

"But the authority to make such improvements of navigable streams is only a branch of the power to regulate interstate and foreign commerce, and *** this power, like others, must be exercised, when private property is taken, in subordination to the Fifth Amendment. *** And we deem it clear that so much of the properties of the respective defendants in error as was unaffected by the flow of the rivers of their tributaries prior to the construction of the locks and dams in question was private property, and not subject to be overflowed, without compensation, in the raising of the level of the rivers by means of artificial dams. " (United States v. Cress, supra, at 326-327. See also United States v. Willis, 141 F.2d 314, Mar. 9, 1944.)

"The dominant power of the federal Government In respect of navigation, as has been repeatedly held, extends to the entire bed of a stream, which includes the lands below ordinary high-water mark. The exercise of the power within these limits is not an invasion of any private property right in such lands for which the United States must make compensation. The damage sustained results not from a taking of the riparian owner's property in the stream bed, but from the lawful exercise of a power to which that property has always been subject. (United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 596-597, Mar. 31, 1941.)

"It is not true *** that only structures in the bed of navigable stream which obstruct or adversely affect navigation may be injured or destroyed without compensation by a federal improvement of navigable capacity. On the contrary, any structure is placed in the bed of a stream at the risk that it may be so injured or destroyed; and the right to compensation does not depend on the absence of physical interference with navigation. The ratio decidendi and the circumstances disclosed in numerous circumstances lead inevitably to this conclusion." (United States v. Chicago, M. St. P. & P. R. Co., supra, at 599.)

"That the United States lacks the police power, and that this was reserved to the States by the Tenth Amendment, is true. But it is none the less true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power, or that it may tend to accomplish a similar purpose. *** The war power of the United States, like its other powers and like the police power of the States, is subject to applicable constitutional limitations ***, but the Fifth Amendment imposes in this respect no greater limitation upon the national power than does the Fourteenth Amendment upon state power. *** If the nature and conditions of a restriction upon the use or disposition of property is such that a State could, under the police power, impose it consistently with the Fourteenth Amendment without making compensation, then the United States may for a permitted purpose impose a like restriction consistently with the Fifth Amendment without making compensation; for prohibition of the liquor traffic is conceded to be an appropriate means of increasing our war efficiency." (Hamilton, Collector of Internal Revenue, v. Kentucky Distilleries and Warehouse Co., 251 U.S. 146, 156-157, Dec. 15, 19 19.)

"If, under any power, a contract or other property is taken for public use, the Government is liable; but if injured or destroyed by lawful action, without a taking, the Government is not liable. What was here requisitioned was the future product of the Steel Company, and, since this product in the absence of governmental interference would have been delivered in fulfillment of the contract, the contention seems to be that the contract was so far identified with it that the taking of the former, ipso facto, took the latter. This, however, is to confound the contract with its subject-matter. The essence of every executory contract is the obligation which the law imposes upon the parties to perform it. 'It the contract may be defined to be a transaction between two or more persons, in which each party comes under an obligation to the other, and each reciprocally acquires a right to whatever is promised by the other. Dartmouth College v. Woodward, 4 Wheat. 629, 656. Plainly, here there was no acquisition of the obligation or the right to enforce it. If the Steel Company had failed to comply with the requisition, what would have been the remedy? Not enforcement of the contract but enforcement of the statute. If the Government had failed to pay for what it got what would have been the right of the Steel Company? Not to the price fixed by the contract but to the just compensation guaranteed by the Constitution." (Omnia Commercial Co. v. United States, 261 U. S. 502, 510-511, Apr. 9, 1923.)

An order for tobacco products, issued during World War I by direction of the President pursuant to provisions of an act of Mar. 4, 1917, ch. 180, 39 Stat. 1168, 1192-1193, and an act of June 15, 1917, ch. 29, 40 Stat. 182-183, was not an offer to purchase but a command, acceptance of which, subject to the conditions specified, did not make a contract; therefore, the property delivered under it was taken by eminent domain. (Liggett & Myers Tobacco Co. v. United States, 274 U. S. 215, May 2, 1927.)

A requisition by the Government upon a power company, pursuant to an act of June 3, 1916, ch. 134, sec. 120, 39 Stat. 213, for the production of all the electrical power capable of being produced through the full use of the waters of its intake canal, including the use to which a lessee of the company was entitled under rights which by state law were a corporeal hereditament and real estate, constituted a taking of private property for public use within the meaning of the Fifth Amendment. ternational Paper Co. v. United States, 282 U.S. 399, Jan. 19, 1931.)

(In

Where the construction of a Government dam was followed by the flooding of private land and the destruction of the landowner's hay stored theroon, forcing the landowner to remove and sell his cattle at a loss, there was no taking of the cattle by the Government and no obligation to pay the loss due to the forced sale of the cattle and destruction of business. (Bothwell v. United States, 254 U. S. 231, Dec. 6, 1920. See also Mitchell et al. v. United States, 267 U. S. 341, Mar. 2, 1925.)

"If the plaintiff claims under the fifth amendment the facts will not sustain his case. The facts show that the Government took parts of the plant, and as to the parts taken an implied contract arises, and the Government is bound to make just compensation therefor. But there was no taking of the plant as an entity, and to recover for a taking under the fifth amendment it must be under an implied contract. It is not possible to imply a contract in a case

"The Fifth Amendment commands that property be not taken without making just compensation. Valid contracts are property, whether the obligor be a private individual, a municipality, a State or the United States. Rights against the United States arising out of a contract with it are protected by the Fifth Amendment. (Lynch v. United States, 292 U. S. 571, 579, June 4, 1934. See also: Omnia Commercial Co. v. United States, supra, at 508; BrooksScanlon Corp. v. United States, 265 U. S. 106, 119126, May 12, 1924.)

What constitutes a taking of property.- "The Fifth 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 to property resulting from the prosecution of an improvement of a navigable waterway of which Mrs. Gibson a riparian owner complained was not the result of the taking of any part of her property, whether upland or submerged, or a direct invastion thereof, but the incidental consequence of the lawful and proper exercise of a governmental power. (Gibson v. United States, 166 U. S. 269, 275, Mar. 22, 1897.)

"Undoubtedly compensation must be made or secured to the owner when that which is done is to be regarded as a taking of private property for public use within the meaning of the Fifth Amendment of the Constitution; and of course in its exercise of the power to regulate commerce, Congress may not override the provision that just compensation must be made when private property is taken for public use. What is private property within the meaning of that Amendment, or what is a taking of private property for public use, is not always easy to determine. No decision of this court has announced a rule that

"This title of the owner of fast land upon the shore of a navigable river to the bed of the river, is at best a qualified one. It is a title which inheres in the ownership of the shore and, unless reserved or excluded by implication, passed with it as a shadow follows a substance, although capable of distinct ownership. It is subordinate to the public right of navigation, and however helpful in protecting the owner against the acts of third parties, is of no avail against the exercise of the great and absolute power of Congress over the improvement of navigable rivers. That power of use and control comes from the power to regulate commerce between the States and with foreign nations. It includes navigation and subjects every navigable river to the control of Congress. All means having some positive relation to the end in view which are not forbidden by some other provision of the Constitution, are admissible. If, in the judgment of Congress, the use of the bottom of the river is proper for the purpose of placing therein structures in

aid of navigation, it is not thereby taking private property for a public use, for the owner's title was in its very nature subject to that use in the interest of public navigation. If its judgment be that structures placed in the river and upon such submerged land, are an obstruction or hindrance to the proper use of the river for purposes of navigation, it may require their removal and forbid the use of the bed of the river by the owner in any way which in its judgment is injurious to the dominant right of navigation. So, also, it may permit the construction and maintenance of tunnels under or bridges over the river, and may require the removal of every such structure placed there with or without its license, the element of contract out of the way, which it shall require to be removed or altered as an obstruction to navigation." (United States v. Chandler-Dunbar Water Power Company, 229 U.S. 53, 62-63, May 26, 1913. See also: Greenleaf Johnson Lumber Company v. Garrison, Secretary of War, 237 U. S. 251, Apr. 12, 1915; Willink v. United States, 240 U. S. 572, Apr. 3, 1916.)

"If the public right of navigation is the dominant right and if, as must be the case, the title of the owner of the bed of navigable waters holds subject absolutely to the public right of navigation, this dominant right must include the right to use the bed of the water for every purpose which is in aid of navigation. This right to control, improve and regulate the navigation of such waters is one of the greatest of the powers delegated to the United States by the power to regulate commerce. Whatever power the several States had before the Union was formed, over the navigable waters within their several jurisdictions, has been delegated to the Congress, in which, therefore, is centered all of the governmental power over the subject, restricted only by such limitations as are found in other clauses of the Constitution.

"By necessary implication from the dominant right of navigation, title to such submerged lands is acquired and held subject to the power of Congress to deepen the water over such lands or to use them for any structure which the interest of navigation, in its judgment, may require. The plaintiff in error has, therefore, no such private property right which, when taken, or incidentally destroyed by the dredging of a deep water channel across it, entitles him to demand compensation as a condition." (Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82, 87-88, May 26, 1913.)

In order to create an enforceable liability against the Government, "it is, at least, necessary that the overflow be the direct result of the structure, and constitute an actual, permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property." (Sanguinetti v. United States, 264 U. S. 146, 149, Feb. 18, 1924. See also Coleman v. United States, 181 F. 599, 603, Sept. 10, 1910.)