Greenleaf Johnson Lumber Co. v. Garrison

237 U.S. 251, 35 S. Ct. 551, 59 L. Ed. 939, 1915 U.S. LEXIS 1333

• Court: Supreme Court of the United States
• Decided: April 12, 1915
• Docket: 678
• Status: Published

Opinions

Mr. Justice McKenna

delivered the opinion of the court.

Suit for injunction by appellant, which we shall call complainant, brought originally against Henry L. Stimson as Secretary of War and Robert Shaw Oliver as Assistant Secretary of War, for whom the appellees were substituted and whom we shall refer to as defendants, to enjoin them and all persons acting under their authority from taking or removing or in any way interfering with complainant’s wharf or other property "along or upon the water front of its said property upon the southern branch of the Elizabeth river” in the State of Virginia. It having been constructed, it is alleged, under the authority of the State and within and upon the harbor line subsequently established by the Secretary of War, it became, it is further alleged, property lawfully owned and could, therefore; be removed only upon payment of just compensation.

A preliminary injunction was granted in accordance with the prayer of the bill.

There was a demurrer to the bill, urging, among other grounds, that the court was without jurisdiction of the persons of the defendants and also without jurisdiction of the suit because it was one against the United States. These grounds were subsequently waived and the want of equity in the bill alone relied on.

The demurrer was overruled, 204 Fed. Rep. 489, and the present defendants, substituted as parties defendant, answered.

The answer, by certain denials and admissions, in effect repeated the propositions of the demurrer and asserted the control of Congress over the river, acting through the Secretary of War, adducing 30 Stat. 1153, and-concluded with a prayer that the court order the demolition of such portions of the wharf and other property as might be found to be outside the re-established pier-head line and that the injunction theretofore granted be dissolved and complainant’s bill dismissed.

Further detail of the pleadings is unnecessary as a statement of facts was made which presents all that are necessary for a decision. From the statement it appears that a board of harbor commissioners was created by Virginia in 1875 and that in 1876, the exact date not known, the authorities of the State of Virginia established a harbor line which remained until 1890, when the same was adopted by the Secretary of War as the harbor line established by the Federal Government, and it so remained until “the recent establishment of the present harbor line June 12, 1911, which was so established by the Secretary of War, after notice, etc., and that until said new line was established, no part of complainant’s property was outside of the same.” It appears from the statement and diagram attached that complainant had constructed two certain fills into the Elizabeth river. It made extensions into the river from two points on the shore and connected at the outer extremities, the wall forming a continuous wharf of three sides surrounding the water they inclosed, the fourth side being the high land. The space so surrounded was called a log pond and designed for the storage of logs for the purposes of complainant’s business. The following also appears from the statement:

“That on the 22nd day of July, 1911, the Navy Department wrote to the complainant stating that that Department intended making certain improvements in the Navy Yard and requesting the complainant to fix a price at which it would sell so much of its'property or wharf and log pond as. lay without the present port warden’s line. The complainant answering said letter stated that the matter would be laid before its board of directors on July 26, 1911, and thereafter the attached correspondence was had between the Navy Department and the complainant. That while the above paragraph is admitted as a fact, it is nevertheless objected to by the defendants for the reason that the same is not relevant or material to the decision of this case and it is claimed by said defendants, Secretary of War and Assistant Secretary of War, that this admission does not bind them.

“That the water now immediately in front of complainant’s property is navigable, but if the present structures .are removed to the present harbor line as demanded by the Government the complainant will be cut off from navigable water unless the river is dredged where the structures now are. That an act of Congress approved March 4, 1911, entitled “An Act making Appropriations for the Naval Service for the year ending June 30, 1912, and for other purposes” (c. 239, 36 Stat. 1265, 1275), has been passed, in which Act an appropriation has been made for dredging the bottom of the river at the point in controversy, pursuant to which the Government proposes to widen the channel to the new port warden’s line.

“It is further admitted that the fee simple title to the high land to low water mark adjacent to the port warden’s line in question, is in the Greenleaf Johnson Lumber Company, the complainant in this suit.

“The reestablished or new harbor line runs along the front of complainant’s wharf at the northern end of the property, cutting off approximately two [200] feet of the same.”

There was some oral testimony, of which it is enough to say that it identified certain descriptive maps of the property. It also showed the purpose for which the property was constructed and used, and its present condition, the description of the new line and its relation to the old one, and that “the entire change made by the establishment of the new harbor line is immediately in front of the Navy Yard,” and that “the Government in recent years had used the channel of the river opposite the Navy Yard and in front of the property of complainant to a very large extent for the storage of its vessels,” and a witness had seen as many as five abreast, ranging from torpedo boats to colliers.

The District Court overruled the demurrer, as we have said, expressing its views in an opinion. The court also denied the mandatory injunction prayed by the United States and continued the temporary restraining order. Subsequently the court entered its decree adjudging that the Secretary of War had no. authority under the' law to remove or cause to be removed the structures mentioned in the pleadings and decreed that the temporary injunction be made permanent. The decree was reversed by the Circuit Court of Appeals. 208 Fed. Rep. 1022.

Two propositions are presented: (1) The power of Congress over navigable waters. (2) Whether the acts of the Secretary of War were done in the exercise of that power.

It would seem that the existence of the power of Congress has been withdrawn from the domain of discussion by many authorities, and that little room is left for debate as to the extent of that power. But a distinction is made by complainant between structures in a river which avail of its navigability and structures which may be an obstruction to its navigation. Upon this distinction, which will be explained more fully hereafter, complainant contends that a right of property by the privilege granted by the State of Virginia became vested in it which can only be taken upon payment of just compensation. And this distinction, it is further contended, explains the cases relied on by counsel for the United States and sustains the authority of the cases adduced by complainant. A review of the cases, therefore, is worth while.

The power of Congress is expressed in a general way in Gilman v. Philadelphia, 3 Wall. 713, 731, in which a certain power was conceded to the States but necessarily to be exercised, it was decided, in subordination to the supremacy of the national power. “Until the dominant power of the Constitution is awakened,” it was said, “and made effective, . . . the reserved power of the States is plenary.”

In Gibson v. United States, 166 U. S. 269, there was a further expression of the principle and an application of it to riparian ownership, and it was decided that "all navigable waters are under the control of the United States for the purpose of regulating and improving navigation, and although the title to the shore and submerged soil is in the various States and individual owners .under them, it is always subject to the servitude in respect to navigation created in favor of the Federal Government by the Constitution.” Citing, among other cases, Shively v. Bowlby, 152 U. S. 1. The case was one for the recovery of damages caused by the construction of a dike in the Ohio river, by which the lands of Gibson were flooded. Relief was denied and the principle expressed that the exercise "of the dominant right of the Government” over navigation subjected riparian ownership to such consequence and it was said that an appropriation for improvement was an exercise of the power of Congress.

In Scranton v. Wheeler, 179 U. S. 141, access was cut off from a navigable river by improvements instituted by authority of Congress. This was said: "All the cases concur in holding that the power of Congress to regulate commerce, and therefore navigation, is paramount, and is unrestricted, except by the limitations upon its authority by the Constitution.” The words "except by the limitations upon its authority by the Constitution” were not intended to qualify the power expressed, as is made manifest by subsequent cases.

In C., B. & Q. Ry. v. Illinois, 200 U. S. 561, the railway company was required to reconstruct a bridge .to subserve a public work. The bridge had been constructed under lawful authority. Compensation, however, was denied, the bridge being over a public highway. The latter and public waters were considered analogous.

In West Chicago Railroad v. Chicago, 201 U. S. 506, a tunnel was constructed by permission of Chicago under the Chicago river and was subsequently required to be lowered. It was held not a taking of property, the removal of the tunnel having been required in the interest of navigation. In other words, the paramount right of navigation was decided to be superior to riparian rights or rights in the river — or, to put it more generally, to rights in the submerged lands. The case seems directly against complainant in the case at bar. Complainant asserts a right of compensation because it conformed to the harbor line as located by Virginia and by the United States; in other words, contends that it acquired a vested right. The case decides otherwise, and 200 U. S. 561, supra, so decides. The proposition announced was that the power of the sovereign, state or National, is perpetual — not exhausted by one exercise — -and all privileges granted in public waters are subject to it; and that the exercise of the power was not a taking of private property for a public use but “the lawful exercise of a governmental power for the common good.”

Union Bridge Co. v. United States, 204 U. S. 364, 400, conspicuously displays the principles of the prior cases cited and followed by it. A bridge was required to be altered or changed, the expense of which was great. It was contended* that the bridge had been erected under state authority, to the exercise of which the United States had impliedly assented, and that, therefore^ the requirement to alter it was a taking of property without compensation. The opposing contention of the United States was that the requirement was an exertion by Congress of its power to regulate commerce, and therefore navigation, upon the waterways on and over which such commerce was conducted. The latter contention was sustained upon a review of the prior cases. It was said that when the company “exerted the power conferred upon it by the State, it did so with the knowledge of the paramount authority of Congress to regulate, commerce among the States” and subject to the possibility that Congress at some future time would exert its power.

In Monongahela Bridge Co. v. United States, 216 U. S. 177, 194, again the doctrine of the other cases was repeated. A bridge erected over the navigable waters of a State by the authority of the State was declared subject to the paramount authority of Congress to regulate commerce and its right to remove unreasonable obstructions to navigation. Congress exerted its power in a provision in the river and harbor bill of March 3, 1899, giving authority to the Secretary of War, when he had good reason to believe a bridge over navigable waterways was an unreasonable obstruction to navigation, to order it to be removed after' notice and hearing. The court declined to modify its holding in Union Bridge v. United States, and déclared that it adhered "to what was said in that case” and sustained the Secretary without much discussion.

Hannibal Bridge Co. v. United States, 221 U. S. 194, was another case of bridge removal. It is not so positive an authority as the preceding cases, for Congress had reserved the right to alter or amend the act under which the bridge was constructed. But the Union Bridge Case was quoted from as correctly expressing the Congressional power.

Philadelphia Company v. Stimson, 223 U. S. 605, is directly to the effect that Congress may establish harbor lines, and is not precluded thereby from changing them. There was action by the State and twice by the United States and the relation of such actions and the rights derived therefrom were considered and determined. Rights under the action of the State were asserted by the Philadelphia Company and assumed to exist by the court in determining the power of Congress. It was said (page 634): "The exercise of this power [that of Congress] could not be fettered by any grant made by the State of the soil. which formed the bed of the river, or by any authority conferred by the State for the creation.of obstructions to its navigation.” And again, “It is for Congress to decide what shall or shall not be deemed in judgment of law an obstruction of navigation. . . . The principles applicable to this case have been repeatedly stated in recent decisions of this court.” The cases which we have reviewed were cited. In speaking of the effect of the first action of the Secretary as affecting his second action, it was said, “That officer did not exhaust his authority in laying the lines first established in 1895, but was entitled to change them, as he did change them in 1907, in order more fully to preserve the river from obstruction. And, in none of the acts complained of, did he exceed the power •which had been conferred.”

Philadelphia Company v. Stimson, supra, is an epitome of all prior cases. Indeed we might have relied upon it as furnishing all of the elements of decision of that at bar. It expressed the subordination of the power of the States to the power of Congress, that one exercise of the power by either does not preclude another exercise by either, .and that the State can grant no right to the soil of the bed of navigable waters which is not subject to Federal regulation. There was a repetition of this doctrine in United States v. Chandler-Dunbar Co., 229 U. S. 53.

Yates v. Milwaukee, 10 Wall. 497, is not in antagonism to the principle announced in those cases. If it could be so regarded it would have to give way to the many cases decided since. But it cannot be so regarded. It was decided', it is true, that one of the rights of a riparian owner was that of access to a navigable river and of constructing a landing wharf or pier for his own use and that of the public, but the limitation or subordination of these rights to be regulated by the dominant power of Congress was not involved nor passed on. And certainly no limitation was implied. The case was referred to in Scranton v. Wheeler, supra, and “the point adjudged” said to be that, as there was no proof in the record that the wharf involved was in fact an obstruction to navigation or a nuisance, except a declaration to that effect in the city ordinance attacked, the wharf could not be made such by a mere declaration. And it was observed that “a proper disposition of the case required nothing more to be said.” See Shively v. Bowlby, 152 U. S. 1, 40.

We have recognized that the States have a certain control and management over the navigable streams within their territory, but subject to be superseded by the interference of Congress. Gilman v. Philadelphia, supra; Pound v. Turck, 95 U. S. 459; Escanaba Co. v. Chicago, 107 U. S. 678. When Congress acts, necessarily its power extends to the whole expanse of the stream, and is not dependent upon the depth or shallowness of the water. To recognize such distinction would be to limit the power when and where its exercise might be most needed. In Scranton v. Wheeler, 179 U. S. 141, the water was very shallow between the high land and the pier erected in the river by authority of Congress and which it was contended cut off access to navigability.

But, as we have said, complainant distinguishes between the rights a riparian owner may receive, “between those rights,” to quote counsel, “which do not relate to navigation in any sense, and second, those which do relate thereto, and which contribute to the enjoyment thereof.” To support the distinction Monongahela Navigation Co. v. United States, 148 U. S. 312, 335, as construed in Oyster Co. v. Briggs, 229 U. S. 82, is adduced. The argument is that the right or privilege which complainant received from Virginia was given by the State “in the performance of the dominant trust for the benefit of the public” and not, as in the cases urged by defendant, •“in the interest of the individual riparian owners.” And it is declared that the cases referred to and Ill. Cent. R. R. v. Illinois, 146 U. S. 387, makes it clear “that when grants of rights or privileges are made within the authority of the State, property acquired, thereunder becomes as stable as any other property, and the rights and privileges so granted are irrevocable, and if taken for public use it must be upon the payment of just compensation.” It is hence contended that when the State or Congress acts in fulfillment of its trust for the benefit of the public the structures it authorizes become fully protected under the Constitution, and in thus encouraging facilities for navigation and commerce “Congress loses none of its authority of regulation, because it can at any time exercise the right of eminent domain, and the expense will be a most profitable investment in the public interest.”'

The contention is plausible, but it is not supported by the cited cases, and the case relied on by complainant is reconcilable with them. It is true the instances-in the cited cases were the removal of structures not facilities of commerce on the rivers. But the principle declared in the cases and which determined their 'decision was not dependent upon such instances, and the power of Congress was said 'to be analogous in its illimitable exertion to the police power. Illustrative cases were adduced. How then, itmay.be asked — ’indeed, is asked — shall we account for Monongahela Navigation Co. v. United States, 148 U. S. 312, as construed in Oyster Company v. Briggs, 229 U. S.82? It was said in the latter case that the former rested upon estoppel.

A few words of explanation become necessary. The Monongahela Company, under the express authority of the' State of Pennsylvania, expended, large sums of money in improving the Monongahela River by means of locks and dams, which were also built at the instance and suggestion of the United States. . By means of the improvements the river, which theretofore was navigable only for boats of small tonnage and at certain seasons of the year, accommodated large steamboats at all seasons and an extensive commerce by means thereof. Subsequently Congress authorized the purchase of the property, or, if its price could not be agreed on, its condemnation, but excluded from the estimate of the' sum to be paid for it a consideration of the franchise to collect tolls. It' was held that the franchise was a part of the property and should be paid for, notwithstanding its exclusion by Congress and that the franchise, the right to take tolls, could "no more be taken without compensation than” could "its [the company’s] tangible, corporeal property.” The court said, by Mr. Justice Brewer, "This lock and dam connected the lower improvements already made by the Navigation Company with the upper improvements proposed to be. made by Congress, and the appropriation by the latter [act of March 3, 1881] was conditioned on the company’s undertaking their construction. This is something more than the mere recognition of an existing fact; it is an invitation to the company to do' the work; and when in pursuance of that invitation, and under authority given by the State of Pennsylvania, the company constructed the lock and dam, it does not lie in the power of the State or the United States to say that such lock and dam are an obstruction and wrongfully there, or that the right to compensation for the use of this improvement by the public does not belong to its owner, the Navigation Company.”

This language was quoted in Oyster Co. v. Briggs as sustaining the view that the case rested upon estoppel — ■ rested upon the fact that the lock and dam had been constructed "at the instance and implied invitation of Congress.” It is true a great deal was said by Mr. Justice Brewer which seemed to be of broader import, but we are now only concerned with the explanation of the case by the later case, and we may observe that the Union Bridge Case, supra, was referred to for comparison. It is manifest, therefore, that the Monongaheld Navigation Co. Case can be distinguished from the. other cases and its ruling sustained upon the following grounds: (1) The lock and dam were built at the instance of Congress, not as a simple facility for the navigation of the river but as making its navigability, enlarging its capacity from the accommodation of boats of small tonnage at certain seasons of the year to the accommodation of large steamboats at all seasons. (2) The Navigation Company was invited to make the improvements, and so far invested with the rights of sovereignty. It did not, as did complainant in the case át bar, exercise the rights of a riparian owner, building to the harbor line and availing itself of the navigability of the river for its own interest. It, to repeat, constructed a public work, having no other power to do so but the authority conferred upon it by the State and by Congress — invited, indeed, to do so and given as its compensation a right to take tolls for the use of the works. This court well said that such right was as much the consideration of the service rendered as the material property constructed. < The case, therefore, as Mr. Justice Lurton said in the Oyster Co. Case, rested on estoppel. Whatever was said beyond that may be left, as it was left in the latter case, to a comparison with the Union Bridge Case, the principle it declares and the cases it cites.

Something is attempted to be made of Gring v. Ives, 222 U. S. 365, by complainant in support of its distinction between rights held “subject to the dominant trust in which the beds of navigable streams are held, and those conferred in the exercise and in aid of the purpose of the dominant trust under which the submerged soil is held for the benefit of the public.” The case does not support the distinction. A marine railway was constructed under state authority and had been in existence for eighteen years but projected beyond a harbor line subsequently established by Congress. It was run into recklessly and injured by a tugboat, and in defense of an action for the injury the fact of the projection beyond the harbor line was set up. The defense was rejected, the lower court deciding that even if the railway had been erected illegally, even if it was a public nuisance, the tugboat was not authorized to run into it unnecessarily and negligently as the evidence tended to show. The case was brought here, a Federal question being based on the act of Congress under which the harbor line over which the marine railway projected was established. The question was pronounced frivolous and the writ of error was dismissed.

The contention of the tugboat owner was practically that the railway was an outlaw subject to be destroyed by anybody, although it had been erected by authority of the State and its existence indulged by the Secretary of War. Manifestly the contention was without any merit whatever, as was said by the court, and there was no implication of the existence of the distinction urged by complainant, nor implication of the want of power in the Secretary of War to have ordered the railway removed if he had thought it in the interest of commerce to have done so.

It is, however, contended that the jurisdiction to establish harbor lines is given by the statute only "where it is made manifest to the Secretary of War that the establishment of harbor lines is essential to the preservation and protection of harbors,” and that it is shown by the agreed statement of facts and the correspondence attached thereto that the Secretary of War acted at the suggestion of the Navy Department for the improvement of the river opposite the Norfolk Navy Yard and in pursuance of the act making appropriations for the naval service for the year ending June 30, 1912, c 239, 36 Stat. 1265, 1275; and that this was "the’sole purpose of the change in the harbor lines and the required removal of the company’s [complainant’s] property is shown by the additional fact that it appears that the United States moors abreast its war vessels, colliers and other vessels in front of its Navy Yard, so that they project out in the channel which it so uses for the storage of its vessels.”

We may grant that such was the inducement and such the occasional use, but neither militates against the validity of the power exercised. The mooring of vessels is as necessary as their movement, and the navigability of a river can be maintained or increased as legally for the accommodation of war vessels as for trading vessels, those of public ownership as well as those of private ownership,. and we cannot enter into a consideration of what may be necessary for either purpose.

It was said in United States v. Chandler-Dunbar Water Co., 229 U. S., at page 64: So unfettered is the “control of Congress oyer the navigable streams of the country that its judgment as to whether a construction in or over such a river is or is not an obstacle and a hindrance to navigation, is conclusive. Such judgment and determination is the .exercise of legislative power in respect of a subject wholly within its control.” And in Scranton v. Wheeler, 179 U. S. 141, 162: “Whether navigation upon waters over which Congress may exert its authority requires improvement at all, or. improvement in a particular way, are matters wholly within its discretion; .. ■. .” This power has been exercised by the act of March 3,1899, delegating to .the Secretary of War the power to establish harbor lines and, necessarily, to require the removal of structures which project beyond them. Union Bridge Company v. United States, 204 U. S. 364.

If it can be said that arbitrary or wanton action of'the Secretary of War would be subject to judicial review, it cannot be said that his action in the case at bar reached that bad degree.

Decree affirmed.

Mr. Justice McReynouds took no part in the consideration and decision of this case.