*160 pose of emolument, but for public use, es-erty in the waters or the shore between high pecially the public use of navigation and and low water mark, and therefore is not encommerce, the question arises whether it is titled to compensation from a railroad coma kind of property susceptible of pecuniary pany which, in pursuance of a grant from compensation, within the meaning of the the legislature, constructs a railroad along Constitution. The 5th Amendment provides the shore, between high and low water mark, only that private property shall not be taken so as to cut off all communications between without compensation, making no reference the land and the river otherwise than across to public property. But, if the phrase may the railroad. It is believed that this propohave an application broad enough to include sition is not supported by any other judicial all property and ownership, the question decision in this state, and if we were dealing would still arise whether the appropriation with the question now as an original one it of a few square feet of the river bottom to would not be difficult to show that the judgthe foundation of a bridge which is to be ment in that case was a departure from used for the transportation of an extensive precedent and contrary to reason and juscommerce in aid and relief of that afforded tice." Again, in the same case: "It must by the waterway is at all a diversion of the now, we think, be regarded as the law in this property from its original public use. It state that an owner of land on a public river is not so considered when sea walls, piers, is entitled to such damages as he may have wing-dams, and other structures are erected sustained against a railroad company that for the purpose of aiding commerce by im- constructs its road across his water front proving and preserving the navigation. Why and deprives him of access to the navigable should it be deemed such when (without in- part of the stream, unless the owner has jury to the navigation) erections are made granted the right, or it has been obtained for the purpose of aiding and enlarging com- by the power of eminent domain. This prinmerce beyond the capacity of the navigable ciple cannot, of course, be extended so as to stream itself, and of all the navigable waters interfere with the right of the state to imof the country? It is commerce, and not prove the navigation of the river, or with navigation, which is the great object of con- the power of Congress to regulate commerce stitutional care. The power to regulate under the provisions of the Federal Consticommerce is the basis of the power to regu- tution." late navigation and navigable waters and But in a later case in New York relating streams, and these are so completely subject to this subject-Sage v. New York, 154 N. Y. to the control of Congress, as subsidiary to 61, 69, 38 L. R. A. 606, 47 N. E. 1096-the commerce, that it has become usual to call court of appeals, after observing that the the entire navigable waters of the country court in Rumsey v. New York & N. E. R. Co. the navigable waters of the United States. had been careful to say that the principle It matters little whether the United States announced by it was not to be extended so as has or has not the theoretical ownership and to interfere with the right of the state to dominion in the waters, or the land under improve the navigation of the river, or with them; it has, what is more, the regulation the power of Congress to regulate commerce and control of them for the purposes of com- under the provisions of the Federal Constimerce. So wide and extensive is the opera- tution, said: "While we think it is a logition of this power that no state can place any cal deduction from the decisions in this obstruction in or upon any navigable waters state that, as against the general public, against the will of Congress, and Congress through their official representatives, may summarily remove such obstructions at riparian owners have no right to prevent imits pleasure. And all this power is derived portant public improvements upon tidewater from the power to regulate commerce.' Is for the benefit of commerce, the principle this power stayed when it comes to the ques-upon which the rule rests, although some tion of erecting a bridge for the purposes of times foreshadowed, has not been clearly set commerce across a navigable stream? We forth. Although, as against individuals or think not. We think that the power to regulate commerce between the states extends, not only to the control of the navigable 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 instrumentalities of commerce which, in the judgment of Congress, may be necessary or expedient." the unorganized public, riparian owners have special rights to the tideway that are recognized and protected by law, as against the general public, as organized and represented by government, they have no rights that do not yield to commercial necessities, except the right of pre-emption, when conferred by statute, and the right to wharfage, when protected by a grant and covenant on the part As much was said in argument about the of the state, as in the Langdon [93 N. Y. decisions in New York it may be well here to 129] and Williams [105 N. Y. 419, 11 N. E. refer to some of the rulings of the highest | 829] Cases. I think that the rule rests upon court of that state. In Rumsey v. New the principle of implied reservation, and York & N. E. R. Co. 133 N. Y. 79, 85, 89, 30 that in every grant of lands bounded by N. E. 654, the court of appeals of New York, navigable waters where the tide ebbs and referring to the prior case of Gould v. Hud-flows, made by the Crown or the state as son River R. Co. 6 N. Y. 522, said: "It was trustee for the public, there is reserved by there held that the owner of lands on the implication the right to so improve the water Hudson river has no private right or prop-front as to aid navigation for the benefit 163 of the general public, without compensation | to be held at all times subordinate to such to the riparian owner. The implication use of the submerged lands and of the waters springs from the title to the tideway, the flowing over them as may be consistent with nature of the subject of the grant, and its relation to navigable tidewater, which has been aptly called the highway of the world. The common law recognizes navigation as an interest of paramount importance to the public." or demanded by the public right of navigation. In Lorman v. Benson, above cited, the supreme court of Michigan, speaking by Justice Campbell, declared the right of navigation to be one to which all others were sub servient. The learned counsel for the plainAll the cases concur in holding that the tiff frankly states that compensation cannot power of Congress to regulate commerce, and be demanded for the appropriation of the therefore navigation, is paramount, and is submerged lands in question, and that the unrestricted except by the limitations upon United States under the power to regulate its authority by the Constitution. Of commerce has an unquestioned right to oo course, every part of the Constitution is as cupy them for a lawful purpose and in a binding upon Congress as upon the people. lawful manner. This must be so,-certainThe guaranties prescribed by it for the se- ly in every case where the use of the subcurity of private property must be respected merged lands is necessary or appropriate in by all. But whether navigation upon waters improving navigation. But the contention over which Congress may exert its author- is that compensation must be made for the ity requires improvement at all, or improve- loss of the plaintiff's access from his upland ment in a particular way, are matters wholly to navigability, incidentally resulting from within its discretion; and the judiciary is the occupancy of the submerged lands, even without power to control or defeat the will if the construction and maintenance of a pier of Congress, so long as that branch of the resting upon them be necessary or valuable government does not transcend the limits in the proper improvement of navigation. established by the supreme law of the land. We cannot assent to this view. If the Is the broad power with which Congress is riparian owner cannot enjoy access to naviinvested burdened with the condition that gability because of the improvement of navia riparian owner whose land borders upon a gation by the construction away from the navigable water of the United States shall shore line of works in a public navigable river be compensated for his right of access to or water, and if such right of access ceases navigability whenever such right ceases to alone for that reason to be of value, there is be of value solely in consequence of the im- not, within the meaning of the Constitution, provement of navigation by means of piers a taking of private property for public use, resting upon submerged lands away from but only a consequential injury to a right the shore line? We think not. The ques- which must be enjoyed, as was said in the tion before us does not depend upon the in- Yates Case, "in due subjection to the rights quiry whether the title to the submerged of the public,”—an injury resulting incilands on which the new south pier rests is dentally from the exercise of a governmenin the state or in the riparian owner. It is tal power for the benefit of the general pubthe settled rule in Michigan that "the title lic, and from which no duty arises to make of the riparian owner extends to the middle or secure compensation to the riparian ownline of the lake or stream of the inland er. The riparian owner acquired the right waters." Webber v. Pere Marquette Boom of access to navigability subject to the conCo. 62 Mich. 636, 30 N. W. 469, and authori- tingency that such right might become valueties there cited. But it is equally well set- less in consequence of the erection, under tled in that state that the rights of the ripa- competent authority, of structures on the rian owner are subject to the public ease submerged lands in front of his property for ment or servitude of navigation. Lorman v. the purpose of improving navigation. When Benson, 8 Mich. 18, 32, 77 Am. Dec. 435; erecting the pier in question, the governRyan v. Brown, 18 Mich. 195, 207, 100 Am.ment had no object in view except, in the inDec. 154. So that, whether the title to the submerged lands of navigable waters is in the state or in the riparian owners, it was acquired subject to the rights which the public have in the navigation of such waters. The primary use of the waters and the lands under them is for purposes of navigation, and the erection of piers in them to improve navigation for the public is entirely consistent with such use, and infringes no right of the riparian owner. Whatever the nature of the interest of a riparian owner in the submerged lands in front of his upland bordering on a public navigable water, his title is not as full and complete as his title to fast land which has no direct connection with the navigation of such water. It is a qualified title, a bare technical title, not at his absolute disposal, as is his upland, but In terest of the public, to improve navigation. *166 vast commerce passing and to pass over of riparian or littoral proprietors in the soil them. Consequently the agents designated below high-water mark are governed by the to perform the work ordered or authorized local laws of the several states, subject, of by Congress had the right to proceed in all course, to the rights granted to the United proper ways without taking into account the States by the Constitution. The theory on injury that might possibly or indirectly re- which Congress has acted in this matter was sult from such work to the right of access thus stated by the court: by_riparian owners to navigability. It follows from what has been said that the pier in question was the property of the United States, and that when the defendant refused to plaintiff the privilege of using it as a wharf or landing place he violated no right secured to the latter by the Constitution. "The Congress of the United States, in disposing of the public lands, has constantly acted upon the theory that those lands, whether in the interior, or on the coast, above high-water mark, may be taken up by actual occupants, in order to encourage the settlement of the country; but that the nav igable waters and the soils under them, We are of opinion that the court below whether within or above the ebb and flow of correctly held that the plaintiff had no such the tide, shall be and remain public highright of property in the submerged lands on ways; and, being chiefly valuable for the which the pier in question rests as entitles public purposes of commerce, navigation, him, under the Constitution, to be compen- and fishery, and for the improvements necsated for any loss of access from his upland essary to secure and promote those purposes, to navigability, resulting from the erection shall not be granted away during the period and maintenance of such pier by the United of territorial government, but, unless in case States in order to improve, and which mani-of some international duty or public exifestly did improve, the navigation of a pub-gency, shall be held by the United States in lic navigable water. trust for the future states, and shall vest The judgment of the Supreme Court of in the several states, when organized and adMichigan is therefore affirmed. mitted into the Union, with all the powers and prerogatives appertaining to the older Mr. Justice Brewer concurred in the re- states in regard to such waters and soils sult. ror, Mr. Justice Shiras, dissenting: Gilmore G. Scranton, the plaintiff in erderived his title to a tract of land, known as Private Land Claim No. 3, and fronting on the St. Mary's river, a stream naturally navigable, under a patent of the United States granted on October 6th, 1874. It must be regarded as the settled law of this court that grants by Congress of portions of the public lands, bordering on or bounded by navigable waters, convey, of their own force, no title or right below high-water mark, but leave the question of the use of the shores by the owners of uplands to the Bovereign control of each state, subject only to the rights vested by the Constitution of the United States. In Shively v. Bowlby, 152 U. S. 1, 38 L. ed. 331, 14 Sup. Ct. Rep. 548, there was a controversy between parties claiming under a patent of the United States for a donation land claim bounded by the Columbia river, and parties claiming under deeds from the state of Oregon for lands between the lines of low and ordinary high tide of the Columbia river. It was held by the supreme court of Oregon (22 Or. 427, 30 Pac. 154) that the lands in question, lying between the uplands and the navigable channel of the Columbia river, belonged to the state of Oregon, and that its deed to such lands conveyed a valid title. within their respective jurisdictions; in short, shall not be disposed of piecemeal to individuals as private property, but shall be held as a whole for the purpose of being ultimately administered and dealt with for the public benefit by the state, after it shall have become a completely organized community." The reasoning and conclusions of this case were followed and applied in the subsequent cases of Mann v. Tacoma Land Co. 153 U. S. 273, 38 L. ed. 714, 14 Sup. Ct. Rep. 820; St. Anthony Falls Water Power Co. v. St. Paul Water Comrs. 168 U. S. 349, 42 L. ed. 497, 18 Sup. Ct. Rep. 157; and Morris v. United States, 174 U. S. 196, 43 L. ed. 946, 19 Sup. Ct. Rep. 649. It cannot be said that any title to the submerged land became vested in the plaintiff in error, as against the state or its grantees, by reason of the fact that it is the law in Michigan, in the case of lands abutting on navigable streams, titles to which are derived from the state, that such titles extend to and embrace submerged lands as far as the thread of the stream. It has never been held in Michigan that that doctrine applied to the case of titles derived from the United States. Shively v. Bowlby and Mann v. Tacoma Land Co., above cited, were both cases in which it was held that titles derived under grants by the United States to lands abutting on navigable waters did not avail as against the state and subsequent grantees. The case was brought to this court, where It is not pretended that the state of Michthe judgment of the supreme court of Origan ever made any grant of these submerged egon was aflirmed. The opinion of this court lands to the plaintiff in error; but, on the contains an elaborate review of the English contrary, the state in 1881 transferred all authorities expounding the common law, of its rights in the St. Mary's canal and the decisions of the several states, and of the public works thereon, with all its appurte previous decisions of this court. The con-nances, to the United States. How. Stat. § clusion reached was that the title and rights 5502. This would seem to dispose of the claim | understanding it to assert that where the to the land occupied by the pier in the river riparian owner has a title to lands under in front of Private Land Claim No. 3. And, navigable waters adjacent to his upland, indeed, the counsel for the plaintiff in error, such land may be taken into the exclusive in their briefs filed of record in this court, possession of the government by the erection conceded that, under the facts of this case, of a public work without compensation; and compensation could not be demanded for the that, even if the state court should hold that appropriation of the submerged lands, and the riparian owner had a title to the subrestricted their argument to the question of merged lands, and was entitled to be comthe plaintiff's right of access to the naviga- pensated for their appropriation for a pubble stream, bounding his property. But the lic purpose connected with navigation, it opinion in this case, while correctly stating would be the duty of this court to overrule that the question before us is as to the right such a decision. of the plaintiff in error to be indemnified for the total destruction of his access to the river, does not confine the discussion to that question. Not regarding the fact that the plaintiff in error has failed to show any title to the submerged land, and that no such claim is urged on his behalf in this court, it is said in the opinion that The question before us does not depend upon the inquiry whether the title to the submerged lands on which the new south pier rests is in the state or in the riparian owner. It is the settled rule in Michigan that "the title of the riparian owner extends to the middle line of the lake or stream of the inland waters." Webber v. Pere Marquette Boom Co. 62 Mich. 636, 30 N. W. 469, and authorities there cited. But it is equally well settled in that state that the rights of the riparian owner are subject to the public easement or servitude of navigation. Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435; Ryan v. Brown, 18 Mich. 195, 100 Am. Dec. 154. As, for the reasons already mentioned, no such question is now before us, and therefore those portions of the opinion of the majority cannot justly be hereafter regarded as furnishing a rule of decision in such a case, yet I must be permitted to disavow such a proposition. When the case does arise, I incline to think it can be shown, upon principle and authority, that private property in submerged lands cannot be taken and exclusively occupied for a public purpose_without just compensation. At all events, I submit that it will be in time to decide so important a question when it necessarily arises, and when the rights of the owner of the property have been asserted and defended in argument. The real question, then, in this case, is whether an owner of land abutting on a public navigable river, but whose title does not extend beyond the high-water line, is enti tled to compensation "because of the permanent and total obstruction of his right of access to navigability resulting from the maintenance of a pier constructed by the United States in the river opposite such land for the purpose of improving navigation." To answer such a question, the nature of the riparian right of access must be first determined. That he has such a right all must admit. But does his right constitute "private property" within the meaning of the Constitution, or is it in the nature of a license, or prescription, of which he can be deprived for the benefit of the public without being entitled to compensation? So that whether the title to the submerged lands of navigable waters is in the state or in the riparian owners, such title was taken subject to the rights which the public have in the navigation of the waters in question. The primary use of the waters and the lands under them is for purposes of navigation, and the erection of piers in them to improve navigation for the public is strictly consistent with such use, and infringes no right of the riparian owner. Whatever the interest of a riparian owner in the submerged lands in front of his upland, his title is not as full The term "property," standing alone, inand complete as his title acquired to fast cludes everything that is the subject of ownland which has no direct connection with the ership. It is a nomen generalissimum, exnavigation of the river or water on which it tending to every species of valuable right borders. It is not a title at his absolute dis- and interest, including things real and perposal, but is to be held at all times subordi-sonal, easements, franchises, and other innate to such use of the submerged lands and of the waters flowing over them as is consistent with or demanded by the public right of navigation. The learned counsel for the plaintiff frankly states that compensation cannot be demanded for the appropriation of the submerged lands in question, and that the United States, under the power to regulate commerce, has an unquestioned right to occupy them for a lawful purpose and in a lawful manner. This must be so,-cer. tainly in every case where the use of the submerged lands is necessary for the improvement of navigation. It is, I think, impossible to read this language, particularly when read in connection with other passages in the opinion, without corporeal hereditaments. Boston & L. R. Corp. v. Salem & L. R. Co. 2 Gray, 35; Shaw, Ch. J. "The term 'property,' as applied to lands, comprehends every species of title, inchoate or complete. It is supposed to embrace those rights which lie in contract, those which are executory, as well as those which are executed." Soulard v. United States, 4 Pet. 511, 7 L. ed. 938; Marshall, Ch. J. Private property is that which is one's own; something that belongs or inheres exclusively in an individual person. The right which a riparian owner has in a navigable stream when traveling upon it, or using it for the purpose of navigation, must be distinguished from his right to •169 reach navigable water from his land, and to reach his land from the water. The former right is one which belongs to him as one of the public, and its protection is found in indictments at the suit of the public,-sometimes, in special circumstances, in proceed ings in equity for the use of all concerned. Being a public right, compensation cannot be had by private parties for any injury affecting it. The latter right is a private one, incident to the ownership of the abutting property, in the enjoyment of which such owner is entitled to the protection of private remedies afforded by the law against wrongdoers, and for which, if it is taken from him for the benefit of the public, he is entitled to compensation. This distinction has always been recognized by the English courts. the river bank has, like every other subject of the realm, the right of navigating the river as one of the public. This, however, is not a right coming to him qua owner or occupier of any lands on the bank; nor is it a right which per se he enjoys in a manner different from any other member of the public. "But when this right of navigation is connected with an exclusive access to and from a particular wharf, it assumes a very different character. It ceases to be a right held in common with the rest of the public, for other members of the public have no access to or from the river at the particular place, and it becomes a form of enjoyment of the land, and of the river in connection with the land, the disturbance of which may be vindicated in damages by an action, or restrained by an injunction. It is, as was decided by this House in the cases to which I have referred, a portion of the valuable enjoyment of the land, and any work which takes it away is held to be an 'injurious affecting' of the land, that is to say, the occasioning to the land of an injuria or an in Rose v. Groves, 5 Mann. & G. 613, was a case where an innkeeper was held entitled to recover damages against a defendant for wrongfully preventing the access of guests to his home, situated on the river Thames, by placing timbers in the river opposite the inn, and wherein, meeting the contention that the plaintiff had no private right of ac-fringement of right. The taking away of tion, but that his remedy was by proceedings for a public nuisance, Maule, J., said: "This is not an action for obstructing the river, but for obstructing the access to the plaintiff's house" on the river. In Lyon v. Fishmongers' Co. L. R. 1 App. Cas. 662, Lord Cairns said: This distinction between the right of immediate access from the abutter's property to and from a highway, whether a street or a navigable stream, and an injury arising after he reaches it and which is common to him and the rest of the public, is recognized by the courts of the states, and the former right is held to be a valuable one, which cannot be destroyed without compensation. river frontage of a wharf, or the raising of an impediment along the frontage, interrupting the access between the wharf and the river, may be an injury to the public right of navigation, but it is not the less an injury to the owner of the wharf, which, in the absence of any parliamentary authority, "As I understand the judgment in Rose v. would be compensated by damages or altoGroves, it went, not upon the ground of pub-gether prevented." L. R. 1 App. Cas. 671. lic nuisance, accompanied by particular damage to the plaintiff, but upon the principle that a private right of the plaintiff had been interfered with. The plaintiff, an innkeeper on the banks of a navigable river, complained that the access of the public to his house was obstructed by timber which the defendant had placed in the river; and it would be the height of absurdity to say that a private right was not interfered with, when a man who has been accustomed to enter his house from a highway finds his door made impassable, so that he no longer has access to his house from the public highway. This would equally be a private injury to him, whether the right of the public to pass and repass along the highway were or were not at the same time interfered with. In Rose v. Groves, Chief Justice Tindal put the case distinctly upon the footing of an infringe ment of a private right. He says: 'A private right is set up on the part of the plaintiff, and to that he complains that an injury has been done;' and then, after stating the facts, adds: 'It appears to me, therefore, that the plaintiff is not complaining of a public injury.'” Elsewhere, in the same case, Lord Cairns said: "Independently of the authorities, it appears to me quite clear that the right of a man to step from his own land onto a highway is something quite different from the public right of using the highway." "Unquestionably the owner of a wharf on Thus, in Haskell v. New Bedford, 108 Mass. 208, it was held that where a sewer constructed by the city of New Bedford discharged filth into the dock of the plaintiff, obstructing his use of it, it created a private nuisance to the plaintiff upon his own land for which he could maintain an action for the special damages thereby occasioned to him, without regard to the question lic, Mr. Justice Gray, now a justice of this whether it was also a nuisance to the pubcourt, saying: "The plaintiff's title extend18] to the channel of the river; the filling ed, by virtue of the statute of 1806 [chap. up of the dock impaired his use and enjoy. ment of it for the purpose for which it had been constructed and actually used; and the injury thus done to him differed, not only in degree but in kind, from the injury to the public by interference with navigation. Neither this special injury to him, nor that occasioned to his premises by making them "offensive and unhealthy, was merged in the common nuisance," and citing, among other cases, Rose v. Groves, one of the English cases above mentioned. And in Brayton v. Fall River, 113 Mass. |