The Chancellor.
The motion is opposed, principally, on two grounds:
First. That the act amending the charter of the city [162]*162of Monroe, so far as it relates to the improvement of the navigation of the River Raisin, in the manner stated, is in contravention of the ordinance of 1787, for the government of the territory of the United States, northwest of the River Ohio; the ordinance providing that “ the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor. Art. 4.
Second. That no provision is made by the act for compensating complainants, or others, who might be injured by the improvement, in pursuance of the state constitution, which says, “ The property of no person shall betaken for public use, without just compensation therefor.” Art. 1, ^ 19.
It was also urged, as a reason why the injunction should not be dissolved, that the act of the legislature does not authorize a dam across the river. It is true the act says nothing about a dam, but it authorizes the defendants to finish and complete the canal and piers heretofore commenced by the United States ; and it is nowhere stated in the bill, that the dam is not a part of the improvement originally contemplated. But whether that be so or not, is immaterial. The object intended, is the improvement of the navigation of the river; and, to that end, the act authorizes the turning of it, at certain points, from its natural bed into new channels, where it might be made better to subserve the ends of commerce. The erection of the dam, for this purpose, is clearly within the act. It is not necessary that the power should be expressly given; it may be implied from the nature of the grant. It would [163]*163be useless to form a new bed for the river, if the power to turn the water into it was withheld.
The injunction must, therefore, be dissolved, unless it can be sustained on one or the other of the grounds above stated.
The ordinance of 1787, in my opinion, is no part of the fundamental law of the state since its admission into the Union. It was then superseded by the state constitution, and such parts of it as are not to be found in either the federal or state constitutions, were then annulled, by mutual consent.
The articles of confederation between the thirteen original states, were entered into July 9th, 1778, and were afterwards suspended by the constitution of the United States, in March, 1789. The ordinance was passed July 13th, 1787, — one year and eight months before the constitution took effect, and two months before it came from the hands of the convention that formed it. The ordinance must, consequently, have been drawn with a view to the then existing government under the articles of confederation. If the constitution had been in operation at that time, it can hardly be supposed that the ordinance would have been what it is; for a new, and, in most respects, entirely different state of things exists under the constitution, from what existed under the articles of confederation. To understand, therefore, the ordinance, and the different .objects had in view by it, we must look to the articles .of confederation, and not to the constitution of the United States.
Most of the ordinance was subject to change or alteration, by congress, or the territorial legislature. Of this character is the whole ordinance, except the last two sections; one of which, (the last section,) contains six articles of compact between the original states and the people and [164]*164states in tbe territory, which were to remain unalterable, unless by common consent.
These articles appear to have had several objects in view. First. To supply the place of a constitution, until the new states to grow up in the territory should be admitted to all the rights of the confederacy. Without something of this kind, the property and personal liberty of the inhabitants of the territory would have been subject to the caprice or whim of the local legislature. Second. To make the territory a part of the confederacy, with certain rights, before the new states were organized; and not a mere dependency of the confederacy, without any rights of its own. The confederation was a compact between sovereign states. It was obligatory upon, and secured the rights of, the states that were parties to it, but it went no further; and, when the territory northwest of the Ohio ceased to be a component part of any one of these states, it would, at the same time, have ceased to be a part of the confederacy, and to be subject to the articles of confederation, but for the ordinance. Between the confederacy and territory, the ordinance was what the articles of confederation were between the original thiz'teen states,— a bond of union, and a guaranty of the rights of the citizens of each within the territorial limits of the others. Hence, by the fourth article of the ordinance, the territory and states to be formed therein were to remain a part of the confederacy, subject to the articles of confederation, and the acts and ordinances of congress, — to pay a part of the federal debt and expenses of the federal government, and for that purpose to levy taxes; — not to interfere with the primary disposal of the soil by the United States, and to impose no taxes on lands belonging to the United States.
The same article further provides that non-resident pro[165]*165prietors shall not be taxed higher than residents; and “that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other state that may be admitted into the confederacy, without any tax, impost, or duty therefor.” All navigable rivers, by the common law, which law was guarantied to the citizens of the territory by the ordinance, are public highways. The clause in question was not necessary to secure these rights, and it would not therefore, perhaps, be a forced construction of it, to say that it was intended to secure within the territory, to the citizens of the states, what was already secured to them in the states by the fourth article of confederation, which says, “the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions, as the inhabitants thereof, respectively.” The articles of confederation dealt with states only. Besides, the drift of the whole seems to be to guard against the imposition of any tax, impost, or duty, on persons travelling or trading upon the rivers of the territory, which, at that early day, must have been its principal, if not only highways.
Third.
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The Chancellor.
The motion is opposed, principally, on two grounds:
First. That the act amending the charter of the city [162]*162of Monroe, so far as it relates to the improvement of the navigation of the River Raisin, in the manner stated, is in contravention of the ordinance of 1787, for the government of the territory of the United States, northwest of the River Ohio; the ordinance providing that “ the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor. Art. 4.
Second. That no provision is made by the act for compensating complainants, or others, who might be injured by the improvement, in pursuance of the state constitution, which says, “ The property of no person shall betaken for public use, without just compensation therefor.” Art. 1, ^ 19.
It was also urged, as a reason why the injunction should not be dissolved, that the act of the legislature does not authorize a dam across the river. It is true the act says nothing about a dam, but it authorizes the defendants to finish and complete the canal and piers heretofore commenced by the United States ; and it is nowhere stated in the bill, that the dam is not a part of the improvement originally contemplated. But whether that be so or not, is immaterial. The object intended, is the improvement of the navigation of the river; and, to that end, the act authorizes the turning of it, at certain points, from its natural bed into new channels, where it might be made better to subserve the ends of commerce. The erection of the dam, for this purpose, is clearly within the act. It is not necessary that the power should be expressly given; it may be implied from the nature of the grant. It would [163]*163be useless to form a new bed for the river, if the power to turn the water into it was withheld.
The injunction must, therefore, be dissolved, unless it can be sustained on one or the other of the grounds above stated.
The ordinance of 1787, in my opinion, is no part of the fundamental law of the state since its admission into the Union. It was then superseded by the state constitution, and such parts of it as are not to be found in either the federal or state constitutions, were then annulled, by mutual consent.
The articles of confederation between the thirteen original states, were entered into July 9th, 1778, and were afterwards suspended by the constitution of the United States, in March, 1789. The ordinance was passed July 13th, 1787, — one year and eight months before the constitution took effect, and two months before it came from the hands of the convention that formed it. The ordinance must, consequently, have been drawn with a view to the then existing government under the articles of confederation. If the constitution had been in operation at that time, it can hardly be supposed that the ordinance would have been what it is; for a new, and, in most respects, entirely different state of things exists under the constitution, from what existed under the articles of confederation. To understand, therefore, the ordinance, and the different .objects had in view by it, we must look to the articles .of confederation, and not to the constitution of the United States.
Most of the ordinance was subject to change or alteration, by congress, or the territorial legislature. Of this character is the whole ordinance, except the last two sections; one of which, (the last section,) contains six articles of compact between the original states and the people and [164]*164states in tbe territory, which were to remain unalterable, unless by common consent.
These articles appear to have had several objects in view. First. To supply the place of a constitution, until the new states to grow up in the territory should be admitted to all the rights of the confederacy. Without something of this kind, the property and personal liberty of the inhabitants of the territory would have been subject to the caprice or whim of the local legislature. Second. To make the territory a part of the confederacy, with certain rights, before the new states were organized; and not a mere dependency of the confederacy, without any rights of its own. The confederation was a compact between sovereign states. It was obligatory upon, and secured the rights of, the states that were parties to it, but it went no further; and, when the territory northwest of the Ohio ceased to be a component part of any one of these states, it would, at the same time, have ceased to be a part of the confederacy, and to be subject to the articles of confederation, but for the ordinance. Between the confederacy and territory, the ordinance was what the articles of confederation were between the original thiz'teen states,— a bond of union, and a guaranty of the rights of the citizens of each within the territorial limits of the others. Hence, by the fourth article of the ordinance, the territory and states to be formed therein were to remain a part of the confederacy, subject to the articles of confederation, and the acts and ordinances of congress, — to pay a part of the federal debt and expenses of the federal government, and for that purpose to levy taxes; — not to interfere with the primary disposal of the soil by the United States, and to impose no taxes on lands belonging to the United States.
The same article further provides that non-resident pro[165]*165prietors shall not be taxed higher than residents; and “that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other state that may be admitted into the confederacy, without any tax, impost, or duty therefor.” All navigable rivers, by the common law, which law was guarantied to the citizens of the territory by the ordinance, are public highways. The clause in question was not necessary to secure these rights, and it would not therefore, perhaps, be a forced construction of it, to say that it was intended to secure within the territory, to the citizens of the states, what was already secured to them in the states by the fourth article of confederation, which says, “the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions, as the inhabitants thereof, respectively.” The articles of confederation dealt with states only. Besides, the drift of the whole seems to be to guard against the imposition of any tax, impost, or duty, on persons travelling or trading upon the rivers of the territory, which, at that early day, must have been its principal, if not only highways.
Third. The principal and great object of the ordinance was, to secure to the states, to be formed within the territory, admission into the Union on an equal footing with the original states, and with constitutions, and forms of government, based upon the great fundamental principles of civil and religious liberty contained in the ordinance itself; except so far as they might be departed from, or changed, with the assent of both parties. The articles of [166]*166confederation provided for the admission of no state, except Canada, without the assent of nine of the thirteen states. Art. II. Now, each of the states of the northwest territory was, by the ordinance, to be admitted into the Union, on an equal footing with the original states, in all respects whatever, when it should have sixty thousand free inhabitants. It was also to be at liberty “to form a permanent constitution and state government: Provided, the constitution and government, so to be formed, shall be republican, and in conformity to the principles contained in these articles.” By permanent constitution and government, I understand a new government, that is to take the place of the territorial government, and a constitution, that is to take the place of the ordinance. That the one is to be substituted for the other, not in part, but in the whole.
Such appears to have been the construction given to the ordinance, by congress, on the admission of the state. It was made one of the conditions of her admission that she should not interfere with the sale, by the United States, of the vacant and unsold lands within her limits, and that she should not tax them. R. S. 30. The same condition was also attached to the grant, made by congress, of public lands to the state, with a further condition, that the state should not tax the lands of non-resident proprietors higher than those of residents. Laws 1836, p. 69. The ordinance contains like limitations of the power of the local legislatures, but there was nothing of the kind in the state constitution.
The thirteenth section of the ordinance, which is in the nature of a preamble to the following section containing the articles of compact, declares the different objects had in view by them. One of those objects is stated in these words: “to fix and establish those principles as the basis of all laws, constitutions and governments, which forever [167]*167hereafter shall be formed in the said territory.” That is, to determine the different political elements that should enter into, and form, the constitutions and governments of the states which should grow up in the territory, unless waived by common consent. Every thing, therefore, contained in the ordinance, and not carried into the state constitution, was annulled by common consent, on the admission of Michigan into the Union.
Whether correct or not, on this point, is immaterial in the present case. There is nothing in the ordinance prohibiting the state from improving the navigation of its rivers. Spooner v. McConnell, 1 McLean R. 337; Hutchinson v. Thompson, 9 Ohio R. 52. The mode of improvement is to be determined by the legislature, and not by the Court. But the state, or those authorized by it, cannot take private property for that purpose, without first making compensation. The state constitution says: “ The property of no person shall be taken for public use, without just compensation therefor.” Art. 1, §19. This brings us to the all important question, — the rights of complainants in the water of the River Raisin.
Have the complainants a right to the flow of the water in the Raisin, in its natural bed? They do not own the bed of the stream, or the land on either side of it. Their warehouse and wharf are not on the bank of the river, but in La Plaisance bay, which forms no part of the river, but is a part of the shore of Lake Erie. The river empties into the bay, or, rather, into what may be called a neck of the bay, about a mile and a half north of the wharf. This neck extends, in a southerly direction, about half or three quarters of a mile, and the whole bay, with this exception, is a part of the lake shore. This is not a case, then, in which the defendants are about to divert a stream that has been wont to flow through complainants’ [168]*168land. The complainants do not own either the bed, or the banks, of the river, below the point of obstruction. The bed of the stream is public property, and belongs to the state. This is the case with all meandered streams, no part of them being included in the original survey; and the common law doctrine of usque ad filum aqua is not applicable to them. The public owns the bed of this class of rivers, and is not limited in its right to an easement, or right of way only. So, with regard to our large lakes, or such parts of them as lie within the limits of the state. The proprietor of the adjacent shore has no property whatever in the land covered by the water of the lake. The land under complainants’ warehouse and wharf belongs to the state. We must look then, for complainants’ rights, to their charter, and to that alone.
If their charter does not give them the right for which they contend, they have no such right; and the damage they may sustain, if any, will be damnum absque injuria. It will be one of those remote consequential damages, which a greater or less number of individuals sustain by every public improvement. Every diversion of trade into new channels, is an injury to those who were previously in receipt of its profits. But this is an injury for which the law makes no compensation; for, if it did, there would be an end to every thing like improvement. Should the improvement of the defendants take away all business from complainants’ wharf, it would be the misfortune of the latter, but the defendants would be under no legal or moral obligation to make remuneration. So, if, in consequence of the diversion of the river, the channel in front of their wharf should be filled up by the action of the winds and waves; unless they have a right under their charter to the flow of the river in its natural channel.
The charter does not so much as mention the River Rai[169]*169sin, or the current, or channel formed in the bay by the water discharged at its mouth; nor is there, in any part of the charter, the most distant allusion made to either. John Anderson and seven other individuals named in the act, and such other persons as had associated, or should associate with them, were incorporated “for the purpose of improving the harbor at La Plaisance bay, on the border of Lake Erie, in the county of Monroe, and erecting piers, wharves, warehouses, and other necessary buildings and improvements, in and about said bay, for commercial purposes.” This is the whole extent of the grant made to complainants. The right contended for is not given in express terms, and, if it exists, must be implied. I can see nothing in the charter from which it can be implied. No one, from reading the charter, would dream of it. But it is unnecessary to pursue this branch of the case further; for all public grants are to be construed strictly, and nothing passes under them by implication. Charles River Bridge v. Warren Bridge, 11 Pet. R. 544. Stourbridge Canal v. Wheeley, 2 Barn. & Adol. 792.
Injunction dissolved with costs.