is sought at the hands of the State." (See also United States v. Bellingham Bay Boom Co., 176 U. S., 211.)

We come then to the question whether, in the absence of any reservation of such power in the act of July 14, 1862, the owner of a bridge constructed under its authority and in accordance with its terms can be required to make such changes as Congress may deem necessary in the interests of navigation, at his own expense, without compensation. The answer to this question is, I think, to be found in Bridge Co. v. United States (105 U. S., 470), although, as Chief Justice Waite in delivering the judgment took care to observe, the court in that case was not called on to determine "what would have been the rights of the company if in the original license no power of future control by Congress had been reserved." But in deciding the case presented-that of an act in which the power of future control by Congress was expressly reserved the court enunciated principles which seem to control the proposition before us. To demonstrate this clearly, it will be necessary to refer to that case somewhat at length.

By a resolution passed March 3, 1869 (15 Stat., 347), Congress gave its consent to the erection of a bridge over the Ohio River between Cincinnati and Newport by the Newport and Cincinnati Bridge Company, a corporation organized and chartered under the laws of each of those States and authorized by both to construct such a bridge, provided it was built in accordance with the laws of the United States. The resolution referred to provided that the bridge should be built with an unbroken or continuous span of a certain length over the main channel of the river, and comply in all other respects with the conditions and limitations in the act of July 14, 1862, now under consideration. It further provided that the bridge when completed in the manner specified should be deemed a legal structure and post-road. Then followed this reservation:

But Congress reserves the right to withdraw the assent hereby given in case the free navigation of said river shall at any time be substantially and materially obstructed by any bridge to be erected under the authority of this resolution.

After the passage of this resolution the bridge company began the erection of a bridge in accordance therewith, and expended a large amount of money in the undertaking. Before it was completed, however, Congress passed the act of March 3, 1871 (16 Stat., 572), making other requirements as to its construction. The company complied with the latter act, and, having completed the bridge on the altered plan, brought suit against the United States to recover the increased cost, as the act expressly authorized it to do. The suit was dismissed, and the decree of dismissal was affirmed by the Supreme Court by a vote of five to three, one justice not sitting.

In delivering the opinion of the court, Chief Justice Waite remarked upon the fact that the several acts of Congress in relation to the construction of bridges prior to that of July 25, 1866, contained no reservation of power whatever to alter, amend, or repeal them, and that the reservation in the last-named and subsequent acts, up to the passage of the resolution of March 3, 1869, was simply of a right to alter or amend the act so as to prevent or remove all material obstructions to navigation by the construction of bridges. The peculiar language of the reservation in the resolution of March 3, 1869, he said, was clearly intended to have a special signification (p. 478):

It had been considered enough before to provide that, "to prevent or remove all material obstructions to navigation," the "right to alter or amend," expressed in the usual form, be reserved. But when power was given to build below the Big Sandy a bridge such as had before only been built above, it was deemed expedient, in the interest of commerce, to be more specific, and by reserving the power to withdraw the assent of Congress to what might prove to be an obstruction to navigation, to imply at least a reservation of power to make that unlawful which, while the assent continued, would be lawful.

After referring to the paramount authority of Congress over the subject of bridges across navigable streams, the Chief Justice said (p. 479):

From this we conclude that the withdrawal by Congress of its assent to the maintenance of the bridge, when properly made, is, for all the purposes of this case, equivalent to a positive enactment that from the time of such withdrawal the further maintenance of the bridge shall be unlawful, notwithstanding the legislation of the several States upon the subject. If modifications are directed, assent is, in legal effect, withdrawn, unless the required changes are made.

The question whether the bridges, as originally authorized, would, if built, substantially and materially obstruct free navigation, was, he said, a legislative and not a judicial question-citing the Wheeling Bridge cases (13 How., 518, and 18 How., 421).

Upon the question of compensation, the Chief Justice said (pp. 481-482):

It is next insisted that, if in the judgment of Congress the public good required the bridge to be removed, or alterations to be made in its structure, just compensation must be made the company for the loss incurred by what was directed. It is true that one can not be deprived of his property without due process of law, and that private property can not be taken for public use without just compensation. In the present case the bridge company asked of Congress permission to erect its bridge. In response to this request permission was given, but only on condition that it might be revoked at any time if the bridge was found to be detrimental to navigation. This condition was an essential element of the grant and the company in accepting the privileges conferred by the grant assumed all risks of loss arising from any exercise of power which Congress saw fit to reserve. What the company got from Congress was the grant of a franchise, expressly made defeasible at will, to maintain a bridge across one of the great highways of commerce. This franchise was a species of property, but from the moment of its origin its continued existence was dependent on the will of Congress, and this was declared in express terms on the face of the grant by which it was created. In the use of the franchise thus granted, the company might, and it was expected would, acquire property. The property thus acquired Congress could not appropriate to itself by a withdrawal of its assent to the maintenance of the bridge that was to be built, but the franchise, by express agreement, was revocable whenever, in the judgment of Congress, it could not be used without substantial and material detriment to the interest of navigation. A withdrawal of the franchise might render property acquired on the faith of it, and to be used in connection with it, less valuable, but that was a risk which the company voluntarily assumed when it expended its money under the limited license which alone Congress was willing to give. It was optional with the company to accept or not what was granted, but having accepted, it must submit to the control which Congress, in the legitimate exercise of the power that was reserved, may deem it necessary for the common good to insist upon.

It will be perceived that the conclusion of the court in this case is based entirely upon the ground that the reservation contained in the resolution of March 3, 1869, gave Congress the right "in case the free navigation of said river shall at any time be substantially and materially obstructed by any bridge to be erected under the authority of this resolution," of which contingency it was the judge, by withdrawing its assent to the construction of the bridge, "to make that unlawful which, while the assent continued, would be lawful." This is brought out more distinctly by the dissenting opinions of Mr. Justice Field and

Mr. Justice Bradley. The dissent of Mr. Justice Miller was based upon the construction to be given the act of March 3, 1871, requiring the alterations which he said indicated the purpose of Congress to waive the constitutional question as to its power to change the bridge, and in favor of justice and fair dealing to pay the bridge company for the expense it had incurred, if it was found that the work, as far as it had progressed at the time of the passage of that act, was in conformity to law.

Mr. Justice Field said (105 U. S., 500–501):

I do not think that the assent of Congress to the erection of the bridge was at all essential to its character as a lawful structure. That depended upon the legislation of Kentucky and Ohio, and upon the contingency of the bridge not interfering with the free navigation of the river. The assent of Congress, as already stated, only removed all ground of complaint of the structure as interfering with the public right of navigation, so far as that right was under the protection of the Federal Government. No one could afterwards complain that the bridge, if built in conformity with the directions specified, constituted a public nuisance, because interrupting the free navigation of the river as secured under the laws of Congress, and proceed to obtain its abatement. The authority of the States to build it, coupled with the assent of Congress, if constructed in the manner prescribed, placed the work, whilst in the process of erection and when completed, beyond the reach of legal proceedings for its abatement or modification. It could not, when completed, be taken for public purposes by the General Government, nor be materially changed in its form and structure whilst in the process of erection, under compulsion of the legislation of Congress, without compensation to its owners. The legislative declaration, made when it was nearly completed, that its further construction would be unlawful without a change of plan, which necessitated very costly alterations, or an abandonment of the bridge, was a taking from its owners of a portion of their work as effectually as its absolute appropriation. If not, in the strict constitutional sense, a taking of private property for public uses, it was an enforced expenditure of labor and materials by the company, not required by the work undertaken or the conditions on which assent to its construction had been given; and for such labor and materials the Government should, on every principle of justice, indemnify the company. A legislative decree commanding such an expenditure is within the spirit, if not the letter, of the constitutional provisions which inhibit depriving one of his property without due process of law, and taking it from him without compensation. The wrong inflicted is as great in the one way as in the other. As the provisions were designed to secure the individual from the arbitrary spoliation of his property, their purpose could be readily evaded if a special act could exact for the protection of his property an expenditure of money or labor, which was neither exacted when the property was acquired nor permitted by the terms of its acquisition.

Mr. Justice Bradley was of opinion that (pp. 506–507)—

The bridge as it stood, nearly completed, when the act of March 3, 1871, chapter 121, directing it to be taken down or altered, was passed, was a lawful structure and in the lawful possession of the appellants as their private property, and being such, I think that Congress could not constitutionally require its demolition or reconstruction without providing for compensation to the owners. By virtue of its plenary power to regulate commerce among the several States, as well as with foreign nations, Congress may undoubtedly require the removal of all nuisances and unlawful obstructions in the navigable rivers of the United States without giving compensation to any persons who may be incidentally affected. It also has the power to improve the navigation of such rivers; but in making or authorizing improvements other than the removal of unlawful obstructions, it can not take private property without complying with that clause of the fifth amendment to the Constitution which declares, "Nor shall private property be taken for public use without just compensation." This proposition would be conceded where property taken for that purpose consists of lands, houses, buildings, or other structures standing on the natural banks of a river; but I think that it is equally true where erections are made on the margin of a river, or where a bridge is constructed across it in accordance with the laws of the State and with the consent of Congress. Such structures are lawful and are private property, entitled to the constitutional protection. That which is lawful is not a nuisance, and can not be prostrated or removed as such without compensation.

These expressions make it perfectly clear that the point upon which the court divided was whether Congress had power, under the reservation referred to, by withdrawing its assent to the construction of the bridge, "to make that unlawful which, while the assent continued, would be lawful." The majority thought that it could do so, and therefore the owners of the bridge would not be entitled to compensation for the alterations required. Justices Field and Bradley contended that the lawful character of the bridge was unaffected by the reservation, and therefore compensation for the alterations directed was required. But the entire argument of the majority negatives the proposition that, in the absence of such a reservation, the alteration of the bridge could have been required without compensation to the

owners.

What was said by the court in Monongahela Navigation Company v. United States (148 U. S., 312) sustains this view. In that case the United States sought to appropriate, by condemnation proceedings, a lock and dam in the Monongahela River within the State of Pennsylvania belonging to the navigation company, and which had been constructed by it, in connection with other similar works, under the authority of that State. It was provided in the act of Congress authorizing the condemnation of the property, that in estimating the sum to be paid for it the franchise of the corporation to take tolls should not be considered. The power of the United States to condemn and appropriate the property was conceded, the only question in the case being as to the compensation to be paid therefor.

The court, speaking by Mr. Justice Brewer, held that the franchise of the company to take tolls was a vested right of property, for the taking of which the fifth amendment required just compensation to be made, as well as for the value of the tangible property.

The court distinguished the case of Bridge Company v. United States, above cited, on the ground that "that was a case not of the taking, but of the destruction of property." After stating the case and quoting therefrom the remarks of the majority upon the question of compensation, above set forth, the court said (pp. 340–341):

It is evident, therefore, that the point decided was that Congress had reserved the right to withdraw its assent to the construction of a bridge on the plan proposed, whenever, in its judgment, such bridge should become an obstruction to the navigation; that the bridge company entered upon the construction of the bridge in the light of this express reservation, and with the knowledge that Congress might at any time declare that the bridge constructed as proposed was an obstruction to navigation; and that Congress, exercising this reserved power, did not thereby subject the Government to any liability for damages. There was no taking of private property for public uses; and while the company may have been deprived of property, it was deprived by due process of law, because deprived under authority of an express reservation of power. Even this conclusion was reached with strong dissent, Mr. Justice Miller, Mr. Justice Field, and Mr. Justice Bradley dissenting, and each writing a separate opinion. And those opinions only make more clear the fact that the case was rested in the judgment of the majority on the effect of the reservation.

In the case at bar there is no such reservation; there is no attempt to destroy property; there is simply a case of the taking by the Government, for public uses, of the private property of the navigation company. Such an appropriation can not be had without just compensation; and that, as we have seen, demands payment of the value of the property as it stands at the time of taking.

The distinction which the court makes in this case between the taking and the destruction of property has not been maintained. In United States v. Lynah (188 U. S., 445), following Pumpelly v. Green Bay Company (13 Wall., 166), the absolute destruction of property was

held to be a taking of it within the meaning of the fifth amendment. The opinion in this case was also written by Mr. Justice Brewer. The distinction, however, is immaterial, since in Monongahela Navigation Company v. United States the court, while viewing the bridge company case as one of the destruction and not of the taking of private property, clearly implies that in the case of such destruction the due process of law provided by the fifth amendment would have required compensation to be made to the owner of the bridge, if the resolution authorizing its construction had not contained the express reservation of power referred to.

It was contended in the case of the Monongahela Navigation Company that the grant made to it by the State was a mere revocable license and had been so held by the courts of Pennsylvania. But the court said that the cases referred to were those in which there was simply a "permit."

In the Pennsylvania cases it was held that a license granted riparian owners by a statute of the State to erect dams for mills and other waterworks in navigable streams declared to be public highways, provided they were so constructed as not to obstruct navigation or prevent fish from passing, was not indefeasible but subordinate to the rights of the public; hence the legislature might constitutionally incorporate a company to make improvements in such a stream without requiring it to make compensation to the owner of a dam for consequential damages thereto from the execution of the work. (Monongahela Nav. Co. v. Coons, 6 W. & S., 101; Susquehanna Canal Co. v. Wright, 9 W. & S., 9; New York & Erie Rd. v. Young, 33 Penn. St., 175.)

In the first Pennsylvania case cited, Chief Justice Gibson observed that "a license followed by a permanent erection for the enjoyment of it is generally irrevocable; and it might be deemed a contract in that instance which the State could not impair." But as the statute there in question provided that dams constructed under its authority should not obstruct navigation, he said that no grant had been made which required a reservation of power to avoid it. Even in that case, one of the judges dissented, on the ground that, while the statute granting the license did not prevent the State from making public improvements, it puts the dam and mill under the protection of the law, and they can not be taken or destroyed without compensation." (Monongahela Nav. Co. v. Coons, 6 W. & S., 101, 112, 116.)

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From these authorities it is clear that no power to that end having been reserved, the owners of bridges across the Ohio River erected under the authority of the act of July 14, 1862, including the Steubenville bridge referred to in its first two sections, can not be required to alter or modify them at their own expense without compensation. The authority granted by that act can not be termed a "permit" merely; nor is it, as in the Newport and Cincinnati bridge case, "a franchise expressly made defeasible at will." The language of the act suggests permanency. Bridges erected under its authority are declared to be "lawful structures," and to be "recognized and known as post routes. They were not made subject to the interests of navigation, but, on the contrary, those interests were subordinated to them, section 5 providing that "the officers and crews of all vessels, boats, or rafts navigating the said Ohio River are required to regulate the use of said vessels, and of any pipes or chimneys belonging thereto, so as not to interfere with the elevation, construction, or use of any of