Statement of the Case.

aforesaid were put into the river was about thirty dollars per acre, between twenty-five and thirty dollars per acre. The value of the rice plantation, 420 acres, thus destroyed is ten thousand dollars."

Upon these findings of fact the important conclusions of law were thus stated:

"V. The crucial question in this case is, Was there a taking of this land in the sense of the Constitution?

"The facts found show that by reason of the obstruction in the Savannah River the water has been directly backed up against the embankment on the river and the banks on and in this plantation, the superinduced addition of water actually invading it and destroying its drainage and leaving it useless for all practical purposes. The government does not in a sense take this land for the purposes of putting its obstructions on it. But it forces back the water of the river on the land as a result necessary to its purpose, without which its purpose could not be accomplished. For the purpose of the government, that water in the river must be raised. The banks of this plantation materially assist this operation, for by their resistance the water is kept in the channel. The backing up of the water against the banks to create this resistance raises the water in the plantation and destroys the drainage of the plantation. This is a taking. 'It would,' says Mr. Justice Miller, be a very curious and unsatisfactory result if, in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the indivividual as against the government, and which had received the commendation of jurists, statesmen and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent; can, in effect, subject to total destruction without making any compensation, because in the narrowest sense of that word it has not been taken for the public use.' Pumpelly v. Geeen Bay

Argument for Plaintiff in Error.

Co., 13 Wall. 177, 178. In that case the backing up of water on land was held to be a taking.

“VI. The plantation of plaintiffs being actually invaded by superinduced addition of water directly caused by the government dams and obstructions backing up the water of the Savannah River and raising the water level at and in the rice plantation and making it unfit for rice cultivation or for any other known agriculture, and plaintiffs have been compelled thereby to abandon the plantation, and this actual and practical ouster of possession being continued and permanent by reason of the permanent condition of the flooding of the plantation, and the plantation being thereby now an irreclaimable bog of no value, makes the action of the government a taking of lands for public purposes within the meaning of the Fifth Amendment, for which compensation is due to the plaintiffs. Pumpelly v. Green Bay Co., 13 Wall. 182; Mugler v. Kansas, 123 U. S. 668.

"VII. The government has not gone into actual occupancy of this land, but by reason of these dams and obstructions made necessary by this public work and fulfilling its purpose the water in the Savannah River has been raised at the plaintiffs' plantation and has been backed up on it and remains on it so that the drainage has been destroyed and ditches filled up and superadded water permanently kept on the land and forced up into it, making it wholly unfit for cultivation, and the plaintiffs have thereby been practically and actually ousted of their possession. This is taking of the land for public purposes, for which compensation must be provided. Pumpelly v. Green Bay Co., 13 Wall. 181."

The case involving the application of the Constitution of the United States was brought by writ of error directly to this

court.

Mr. Robert A. Howard for the plaintiff in error with whom Mr. Solicitor General Richards was on the brief.

As the original grantors of the defendants in error obtained grants the boundaries whereof were "on the Savannah River" the grants only extend to high water mark. United States v. Pacheco, 2 Wall. 587; State v. Pinckney, 22 S. C. 484, 507;

'Argument for Plaintiff in Error.

Martin v. Waddell, 16 Peters, 367; Shively v. Bowlby, 152 U. S. 1; Morris v. United States, 174 U. S. 196, 226.

An individual may be the owner of a portion of the shore by a grant from the State but he takes the ownership subject to the trust for the people which cannot be destroyed or diminished. Hall, Sea Shore, 15; Hale de jure Maris Hay, L. T. c. V.; 5 Co. 107; Illinois Cent. R. R. Co. v. Illinois, 146 U. S. 387, 435, 452; Stockton v. Balt. & N. Y. R. Co., 32 Fed. Rep. 19; 3 Kent, 377; Commonwealth v. Roxbury, 9 Gray, 451; State v. Pacific Guano Co., 22 S. C. 48, 83; Attorney General v. Parmenter, 10 Price, 378.

The government has not taken possession of these lands by the erection of structures thereon or physical entering upon them, but whatever was done was under the direction of Congress to accomplish the purpose of improving the navigability of the Savannah River which is complete. Gibbons v. Ogden, 9 Wheat. 196; Hoboken v. Railroad Co., 124 U. S. 659; Mobile v. Kimball, 102 U. S. 691; Gilman v. Philadelphia, 3 Wall. 724; South Carolina v. Georgia, 93 U. S. 4; Telegraph Co. v. Telephone Co., 96 U. S. 1.

The power in the United States includes "all the powers which existed in the States before the adoption of the Constition." Whatever consequences follow in its exercise are to be provided for exactly as they had been or would be in the British Isles or in the States of the Union.

One of the primary objects, as has been so often stated, was to regulate commerce, and, in doing so, to reach out and absolutely control navigation and all the navigable waters of the country for the benefit of the people. When this court said, in Martin v. Waddell, that the sovereign people of each State hold the absolute right to all their navigable waters, and the soils under them, for their own common use subject only to the rights since surrendered by the Constitution to the general government, and that the grants made by their authority must be determined by different principles from those which apply to grants of the British Crown, it was not meant, simply, that the people, through their representatives, could arbitrarily dispose of the trust property. That is not the theory of representative

Argument for Plaintiff in Error.

government. That would not be tolerated long in a fierce democracy.

The court below found, it being a question of law and fact, that there had been such a taking of the land as entitled the parties to compensation. Reliance for this conclusion was had upon the principles laid down by this court in the cases of Monongahela N. Co. v. United States, 148 U. S. 336–337; Gibson v. United States, 166 U. S. 269, and explicitly Pumpelly v. Green Bay Co., 13 Wall. 181; but these cases do not sustain the contention of the plaintiffs, the defendants in error, and can be distinguished from the cases at bar.

But what private property was taken for which compensation should be made under this guarantee of the Constitution, which is only affirmative of a right to the individual in a free government like this? The Crown had property rights in these lands in trust. The State had property rights to these lands in trust. They were never surrendered. They could not be. And when the United States reached out her hand and took possession of them to execute the trust to which she had succeeded, and which she was legally bound to execute, the inferior right had to yield, even to extermination. It is not for the courts to say that the individual has suffered and therefore should be reimbursed or compensated. If he has been, under a mistaken idea of his rights, put to labor and expense and hope, he has a remedy by application to the bounty of a government which will, it is opined, do him justice. But no wrong has been done him. He has enjoyed these lands and their profits without money and without price. They were the common property of the whole people. The accident of adjacent ownership gave him the license and the privilege; for, in the last instance, it was a privilege. South Carolina v. Georgia, 93 U. S. 1; Scranton v. Wheeler, 179 U. S. 141; Webber v. Pere Marquette Boom Co., 62 Michigan, 626, and cases there cited.

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 Michigan, 18, 32; Ryan v. Brown, 18 Michigan, 196, 207. So that whether the title to the submerged lands of navigable waters is in the State or in the

Argument for Plaintiff in Error.

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 to be held at all times subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation.

In our opinion, it was not intended that the paramount authority of Congress to improve the navigation of the public navigable waters of the United States to meet the demands of international and interstate commerce should be crippled by compelling the government to make compensation for the injury to a riparian owner's right of access to navigability that might incidentally result from an improvement ordered by Congress. The subject with which Congress dealt was navigation. That which was sought to be accomplished was simply to improve navigation on the waters in question so as to meet the wants of the vast commerce passing and to pass over them. Consequently the agents designated to perform the work ordered or authorized by Congress had the right to proceed in all proper ways without taking into account the injury that might possibly or indirectly result from such work to the right of access by riparian owners to navigability. To conclude: The plaintiff in error claims that, conceding the interest and property which the defendants in error had in these lands, there was not in them a title to "such kind of property as was susceptible of pecuniary compensation, within the meaning of the Constitution." What the government took, and takes under similar circumstances, was the public property. It is not going too far, maybe, to assert that no private property is taken at all. The private property