the burial of the persons specified in Section 4878, Revised Statutes, may be made in this cemetery without violating the terms of the transfer. Card 5246, November, 1898. 1772. Section 3 of the act of incorporation establishing the "Soldiers' National Cemetery" at Gettysburg, gave to the board of commissioners authority to lay out, fence and ornament the grounds, to erect buildings and monuments and generally to do whatever in their judgment should be deemed necessary and proper to adapt the grounds and premises to the uses for which they had been purchased and set apart. In view of the circumstances and conditions of the transfer of this cemetery to the United States government (see preceding section) and the laws of Congress relating to national cemeteries, held that it was within the discretion of the Secretary of War to permit the erection, in said cemetery, by the agents of a State, of a monument to the dead of that State buried in the cemetery. 33, 42, June, 1889. NAVIGATION. 2 1773. The United States is not the owner of the soil of the beds of navigable waters,' nor of the shores of tide-waters below high-water mark, nor of the shores of waters not affected by the tide below the ordinary water line of the same, except as it may have become grantee of such soil from the State or from individuals. The property in and over the beds and shores of navigable waters is in general in the State, or in the individual riparian owner. But under the power to regulate commerce, Congress may assume, as it has recently assumed (see § 613, ante) the power so to regulate navigation over navigable waters within the States as to prohibit its obstruction and to cause the removal of obstructions thereto, and such power when exercised is "conclusive of any right to the contrary asserted under State authority."3 In exercising this power, it cannot divest rights of title or occupation in a State or individuals, but these rights are left to be enjoyed as before, subject, however, to the paramount public right of 'See the definition of the term, "navigable waters of the United States", in The Daniel Ball, 10 Wallace, 557; Ex parte Boyer, 109 U. S. 629. See also Chisolm v. Caines, 67 Fed. Rep. 285; St. Anthony Falls Water Power Co. v. Water Commissioners, 168 U. S. 349; Leovy v. U. S., 177 id. 621. Statutes passed by the States for their own uses, declaring small streams navigable, do not make them so within the Constitution and laws of the U. S. Duluth Lumber Co. v. St. Louis Boom & Improvement Co., 17 Fed. Rep., 419. And see § 1777, post. Pollard v. Hagan, 3 Howard, 212; Barney v. Keokuk, 94 U. S. 337; Gilman v. Philad., 3 Wallace, 713; South Carolina . Georgia, 93 U. S. 4; 6 Opins. At. Gen. 172; 7 id. 314; 16 id. 479; Illinois Cent. R. Co. v. Illinois, 146 U. S., 387; Shively v. Bowlby, 152 id. 1; Scranton v. Wheeler, 57 Fed. Rep., 803; Scranton v. Wheeler, 179 U. S., 141. Wisconsin . Duluth, 96 U. S. 379; U. S. v. City of Moline, 82 Fed. Rep., 592; Leovy v. U. S., 92 id. 344; Leovy v. U. S., 177 U. S. 621. freeing navigation from obstruction possessed and exercised by the United States through Congress. In the execution of the laws relat ing to obstructions to navigation the Secretary of War has no general authority, but only such as may have been vested in him by legislation of Congress, especially in the river and harbor appropriation acts.1 15, 272, 16, 244, March and April, 1887; 31, 42, B, 386, 35, 234, April to September, 1889; 42, 85, July, 1890; 51, 196, 55, 140, 56, 483, January to December, 1892; 58, 450, March, 1893; 63, 365, February, 1894; Card 2138, March, 1896. 2 1774. By legislation prior to 1890, Congress had exercised some control over the subject of obstructions to navigation, principally with reference to bridges over navigable streams. (§ 613, ante.) But by the River and Harbor Appropriation Act of September 19, 1890, a general authority over the subject was assumed, and it was enacted, in sec. 10, as follows: "That the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction is hereby prohibited." The act does not make it the duty of the Secretary of War to enforce this provision in all cases, but, in secs. 4, 6, 7, 8 and 12, it invests him with specific authority with regard to certain kinds of obstructions, as-to take precautions against obstruction by bridges and to approve the location of bridges, &c.; to give permits for making deposits of substances or materials in navigable waters; to permit the erection of wharves, dams, breakwaters and the like; to break up and remove wrecks, &c.; and to cause the establishing of harbor lines under regulations prescribed by him. But the prosecution and punishment of individuals creating obstructions without proper permit or authority of law is left by the act to the law officers and the courts. 63, 365, February, 1894. 1775. There is no law authorizing the Secretary of War to cause obstructions to be removed from navigable waters, except as he may direct his subordinates, charged with river or harbor improvement, &c., to remove them where appropriations exist for the purpose. The act of September 19, 1890, c. 907, makes it unlawful to place obstructions in navigable waters without the permission of the Secretary of War, but when the law is violated it is not for the Secretary to initiate proceedings but for the legal and judicial authorities under secs. 10 and 11 of the act, to take action by prosecution and injunction. 52, 343, March, 1892; 63, 365, February, 1894. 1776. Under the provisions of sec. 10 of the act of September 19, 'See the subsequent opinion of the Attorney General in 20 Opins. 101. 2See sections 9 to 20, inclusive, of the River and Harbor Act of March 3, 1899 (30 Stats., 1151), for existing statutes on the subject. 1890, it becomes not only unlawful but a criminal act to obstruct the navigation of navigable waters of the United States. Thus where a railroad company, under color of authority from certain State officials, proceeded to close for a month, pending the repairing of one of its bridges, the passage up and down an interstate navigable stream, so that in fact the United States was prevented from transporting upon the same a gun carriage manufactured within the State for the Government-held that the assumption of jurisdiction over such waters by the United States through the legislation of Congress had displaced the jurisdiction previously exercised by the State to authorize such obstructions; and that under this legislation the river was a public highway, open, not only to the United States for public purposes, but to all private individuals whatsoever, and could not lawfully be closed or interrupted; and advised that the proper U. S. district attorney be communicated with, with a view to the initiation of proceedings under sec. 11 of the act. 64, 210, March, 1894. 1777. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used or are susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves or by uniting with other waters a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary mode in which such commerce is conducted by water.1 The true test of the navigability of a stream does not depend on the mode by which commerce is or may be conducted, nor the difficulties attending navigation. It would be a narrow rule to hold that in this country unless a river was capable of being navigated by steam or sail vessels, it could not be treated as a public highway. The capability of use by the public for purposes of transportation and commerce affords the true criterion. of the navigability of a river, rather than the extent or manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact and becomes in law a public river or highway." Applying these tests to a tributary of the Mississippi River in Tennessee, it was held that the same was a navigable water of the United States; that the fact that all acts of the State legislature declaring a certain part of the river navigable had been repealed, did not affect 'The Daniel Ball, 10 Wall., 557. 2 The Montello, 20 Wall., 430. the question of the navigability of that part so far as the laws of the United States were concerned. For example, the duty of the Secretary of War, under sec. 4, act of 1890, with respect to unreasonable obstructions to navigation over the part referred to, would be unaffected by the repeal of the State laws. Cards 1511, July, 1895; 1709, September, 1895. 1778. Held that the Bayonne Canal, in Hudson Co., New Jersey, was navigable water of the United States subject to the admiralty jurisdiction of the U. S. district court and to the laws of Congress for the enrolment and licensing of vessels and otherwise regulating of commerce, and could not therefore legally be obstructed by filling up or damming, by a railroad company, without the permission of the Secretary of War under the act of September 19, 1890. 44, 152, December, 1890. 1 1779. Held that the building of a dyke, under an appropriation for the improvement of the navigation of the Hudson River, did not of itself vest in the United States a property in the soil or give it any title thereto; that the property in the river frontage was affected by the rights of the United States only so far as concerned the navigation of the river and the maintenance and conservation of the work of improvement, and that the owner might legally make any use of his property that he might see fit provided it did not obstruct navigation or interfere with the improvement. LI, 609, March, 1887. And see 54, 477, August, 1892. 2 1780. Under the power to improve navigation, Congress may appropriate for, and the Secretary of War may cause to be erected, a pier in Lake Michigan, and after its erection the United States has the authority of conservation of the same. 54, 477, August, 1892. And see LI, 609, March, 1887. Its exercise may be discontinued or abandoned when the work-such as a pier, dam, breakwater, &c.—is no longer needed for the improvement of navigation. 32, 375, May, 1889; 39, 99, 42, 210, February and July, 1890. 1781. Held, that under the acts appropriating money for the improvement of the Columbia River, to be expended under the direction of the Secretary of War, the Secretary, while authorized to make regulations for the prosecution and protection of the works of improvement, was not empowered to require, by such regulations, the removal of fishtraps and pound nets as obstructions to navigation; that it was not within the province of the Secretary of War to determine what is or what may become an obstruction to navigation, and cause to be removed 16 Opins. At. Gen., 172; 7 id., 314; Hawkins Point Lighthouse Case, 39 Fed. Rep., 77; Scranton v. Wheeler, 179 U. S., 141. 216 Opins. At. Gen., 486. See, however, act of Congress of March 3, 1899 (30 Stats., 1152), and Scranton e. Wheeler, supra. the one or prohibited the other by a mere order or regulation, in the absence of authority given by specific legislation of Congress. LIII, 257, April, 1887. 1782. Held, under sec. 12 of the act of September 19, 1890, authorizing the Secretary of War to establish harbor lines, that, in establishing a harbor line in the harbor of Bridgeport, Conn., he was authorized to prescribe regulations under which the littoral owners (who, by the laws of Connecticut, have a right of property in the flats on their fronts, and may wharf or dock out to the navigable channel so as to avail themselves of the use of it) should have their vested rights recognized and protected; that while he might, for the protection of navigation, regulate their building out to the channel, he could not prohibit their doing so, or condemn, or deprive them of, their property. But held that his authority for establishing a harbor line-which consists in locating an imaginary line beyond which wharves, &c., shall not be extended or deposits dumped-could be exercised only so far as necessary for the protection of the navigable channel as an interstate waterway, and not to protect mere local traffic. 52, 211, February, 1892. And see 51, 132, December, 1891. 1783. The construction, without the authority of the Secretary of War, of weirs in a harbor which is navigable water of the United States, outside of established harbor lines (or where there are no harbor lines established), is, under sec. 7, act of September 19, 1890, unlawful when the same will be detrimental to navigation. And whether or not the persons who constructed such weirs had any license from the town is immaterial. 53, 45, April, 1892. 1784. A fish weir, so constructed as in a measure to obstruct the navigation of navigable waters, can not legally be placed in such waters without the authority of the Secretary of War, who, by sec. 7, act of September 19, 1890, is empowered to grant permission for the purpose. And so of a boom desired to be placed in a navigable river. 58, 347, March, 1893. 1785. Section 10 of the River and Harbor Act of March 3, 1899, makes it unlawful to construct docks and wharves in any navigable water of the United States without the permission of the War Department. The object of the law is to protect the interests of navigation by requiring all projects for the erection of such structures to be considered and passed upon by the Department. A permit granted by the Secretary of War for the erection of a dock or wharf confers on the grantee no right, authority, or usufructuary interest in and to the shore or bed of the stream where the dock is to be built. The Federal statute simply makes the consent or permission of the War Department a 16906-01-32 |