The rights of riparian owners of land situated upon navigable
rivers are to be measured by the rules and decisions of the courts
of the state in which the land is situated, whether it be one of
the original states or a state admitted after the adoption of the
Constitution.
The Mississippi is a navigable river at all the points. referred
to in the records in these cases.
The grants made to the plaintiffs in error by the Acts of
February 26, 1856, and February 27, 1856, of the Legislature of the
Territory of Minnesota, to maintain dams and sluices in the
Mississippi River, etc., etc., were subject at all times to the
paramount right of the public to divert a portion of the waters for
public uses, and to the rights in regard to navigation and commerce
existing in the general government, under the Constitution of the
United States, and under those grants the plaintiff's in error took
no contract rights which have been impaired in any degree by the
acts of the Legislature of Minnesota respecting the public
waterworks of the City of St. Paul.
These actions were brought in a district court of the State of
Minnesota by the respective plaintiffs in error against the
defendant in error for the purpose of recovering damages for injury
to their alleged rights as riparian owners and otherwise at St.
Anthony Falls, on the Mississippi River, and also for a perpetual
injunction enjoining the defendant in error from diverting the
waters above so as to prevent them from flowing
Page 168 U. S. 350
in their natural course in the Mississippi River and down to the
water power of the plaintiffs in error respectively.
The plaintiff in error the St. Anthony Falls Water Power Company
was incorporated by an Act of the Territory of Minnesota approved
on the 26th day of February, 1856. The first eight sections of the
act relate to the incorporation of the company and to its internal
affairs. The ninth section reads as follows:
"SEC. 9. The said corporators are hereby authorized for the
purpose of the improvement of the water power above and below the
Falls of Saint Anthony, in the Mississippi River, to maintain the
present dams and sluices, and construct and maintain dams, canals
and water sluices, erect mills, buildings or other structures for
the purpose of manufacturing in any of its branches, or improving
any water power owned or possessed by said company, in such manner
or to such extent as shall be authorized by the directors of said
company, and may construct dams on the rapids above or below the
Falls of Saint Anthony, with side dams, sluices and all other
improvements in the Mississippi River, upon the property owned or
to be owned by said corporators, which may be necessary for the
full enjoyment of the powers herein granted,
provided
however, that said corporation shall give a free passage for
all loose logs that are to be manufactured on Hennepin or Cataract
Islands or between them on the falls through any dam or dams they
may erect, on the west side of Nicollet or Hennepin Islands, and
the passage through the pond, above said dam, shall, when needed,
be twenty feet wide,
provided that nothing herein
contained shall be so construed as to authorize said corporation to
interfere with the rights of property of any other person or
persons whatever."
The Minneapolis Mill Company was also incorporated by an Act of
the legislature of the Territory of Minnesota approved February 27,
1856, the ninth, eleventh, and twelfth sections of which read as
follows:
"SEC. 9. The said corporators are hereby authorized, for the
purpose of the improvement of the water power above and
Page 168 U. S. 351
below the falls of St. Anthony in the Mississippi River to
maintain the present dams and sluices, and to construct dams,
canals and water sluices, erect mills, buildings, or other
structures for the purpose of manufacturing in any of its branches,
or improving any water power owned or possessed by said company, in
such manner and to such extent as shall be authorized by the
directors of said company, and may construct dams on the rapids
above or below the Falls of St. Anthony, with side dams, sluices
and all other improvements in the Mississippi River which may be
necessary for the full employment of the powers therein
granted."
"SEC. 11. This act shall take effect and be in force from and
after its passage, and may be amended by any subsequent legislative
assembly in any manner not destroying or impairing the vested
rights of said corporators,
provided that nothing herein
contained shall be so construed as to authorize said corporation to
interfere with the rights or property of any other person or
persons whatever."
"SEC. 12.
Provided further that nothing contained in
the act entitled an act to incorporate the St. Anthony Falls Water
Power Company shall be so construed as to allow the said St.
Anthony Falls Water Power Company to maintain or construct dams or
sluices extending beyond the center of the channel of the
Mississippi River from the western bank of Hennepin island, and
said St. Anthony Falls Water Power Company are hereby restricted in
the exercise of powers and privileges granted by the ninth section
of said act to the space between the western bank of said island
and the center of said river,
provided the said dam shall
always be provided with suitable slides and sluices so as to admit
the passage of logs and timber down the Mississippi River, and that
any future legislature may amend or modify this act, or the act to
which this section is amendatory,
and provided further
that the Minneapolis Mill Company shall be restricted in its
operations to the center of the main channel of the Mississippi
River and to the property belonging to said company."
By the second section of the Act of Congress approved February
26, 185, 11 Stat. 166, c. 60, authorizing the people
Page 168 U. S. 352
of the Territory of Minnesota to form a state constitution,
etc., it was enacted
"that the said State of Minnesota shall have concurrent
jurisdiction on the Mississippi and all other rivers and waters
bordering on the said State of Minnesota, so far as the same shall
form a common boundary to said state and any other state or states
now or hereafter to be formed or bounded by the same, and said
river and waters, and the navigable waters leading into the same,
shall be common highways, and forever free, as well to the
inhabitants of said state as to all other citizens of the United
States, without any tax, duty, impost or toll therefor."
Section two, article two, of the Constitution of Minnesota has
the same provision for the jurisdiction of the state over the
Mississippi and other rivers and waters bordering on the state as
is provided for in section two of the above act of Congress.
The complaints in the two cases are substantially similar, the
two companies owning on different sides of the Mississippi River at
about the same point, and the complaint in the case of the
Minneapolis Mill Company contained the following, among other,
allegations: it alleged the incorporation of the plaintiff in
error, under the acts above mentioned, and also the incorporation
of the defendant pursuant to an Act of the Legislature of the State
of Minnesota approved February 10, 1881, which has been amended by
various acts supplemental thereto.
Plaintiff further alleged that pursuant to the provisions of its
charter, it acquired large tracts of land bordering upon the
Mississippi River, and on the southwesterly bank thereof, lying
within the present limits of the City of Minneapolis and County of
Hennepin, and that, by reason of the fall in said river at that
point, which amounts to some seventy feet in the course of a
thousand feet, there was created a natural water power of great
extent and value; that the plaintiff, pursuant to the provisions of
its charter and in accordance with the natural right inherent in
the ownership of lands abutting upon the waters of said river,
constructed dams and water sluices at great expense, for the
purpose of making the water power
Page 168 U. S. 353
available for manufacturing and other purposes to which the same
was adapted, and by meeting those erected by the other company, and
that, by the erection of these dams on the opposite side of the
river, the plaintiff had made available the water power of the
river to the extent of about fifty feet fall, leaving still
unoccupied a further fall of about twenty feet; that in pursuance
of its charter, and in accordance with its rights as riparian
owner, plaintiff in error had made contracts with different parties
for the construction of mills and manufacturing establishments in
convenient proximity to its water power, and for a valuable
consideration had furnished and was furnishing water power to these
different establishments which have use for the power, and that the
same is of great value to the plaintiff; that it has reserved to
itself large rents and income by leasing to other parties the right
to use certain portions of the water.
And the plaintiff alleged that by reason of its ownership of the
land bordering upon the river it, had acquired and still owned all
the riparian rights incident to the ownership of lands bordering
upon the Mississippi River, which was stated to be a natural
watercourse in which there naturally flowed a large quantity of
water derived from the river and also from numerous tributaries
above, and that, by reason of its riparian rights, the plaintiff
was entitled to have and require the natural flow of the waters of
the river in the channels, both east and west in said river,
adjacent to the lands at said falls, without diminution or
diversion of such natural flow by any person whatever.
It was further averred that one of the tributaries of the
Mississippi River is a natural watercourse and stream known as Rice
Creek, which drains waters fr in a large extent of territory within
the state, and which are gathered together and have a natural flow
or outlet through said creek into the Mississippi River, eight or
ten miles above the water power of the plaintiff; that Rice Creek,
in its natural course, flows through a small lake in the County of
Anoka designated as Baldwin Lake, and from thence to its connection
with the Mississippi River; that the amount of water flowing in
that
Page 168 U. S. 354
creek and lake varies with the different seasons of the year,
the ordinary amount being about 30,000,000 gallons per day.
It is then further alleged that the defendant, acting under the
provisions of the act of the legislature above mentioned, approved
February 10, 1881, authorizing the City of St. Paul to purchase the
franchises and property of the St. Paul Water Company, and creating
a board of water commissioners, had acquired title to a portion of
the land bordering upon Baldwin Lake, and had erected thereon
pumping works and machinery for the diversion of the waters of the
lake into a certain other lake situated in the County of Ramsey,
which other lake had a natural outlet through streams flowing into
the Mississippi River below the water power of plaintiff, and that
the defendant had for the greater part of the time during the two
years before the commencement of this action, by means of its works
on Baldwin Lake, withdrawn from that lake a quantity of water to
the amount of 10,000,000 gallons per day, and that the quantity
thus pumped from that lake was diverted by the defendant into a
lake known as Pleasant Lake, and from thence it had been drawn by
the waterworks of the defendant into the City of St. Paul, and
distributed over that city and used for domestic purposes and for
furnishing water for steam engines and other manufacturing
purposes, and for the propulsion of elevators and other machinery,
and that the waters thus used had been entirely diverted from Rice
Creek and from that part of the Mississippi River above the water
power of plaintiff, and no part thereof had been returned to the
Mississippi River above the water power of plaintiff so as in any
way or manner to be made useful to plaintiff.
The plaintiff further alleged that the defendant, although
assuming to act in accordance with its charter, had not acquired
the right to divert the waters naturally flowing in Rice Creek and
through Baldwin Lake from their natural course, nor had defendant
made compensation to plaintiff and other parties beneficially
interested in the use of said water, nor had defendant made any
provision for computing the
Page 168 U. S. 355
amount of compensation due plaintiff for damages caused by
diverting and withdrawing the waters of the river from their
natural course; that, by reason of this diversion of water the
income and profits arising from the maintenance of the water power
were diminishing (to an amount stated in the complaint), and that
the damages sustained by the plaintiff by reason of the diversion
amounted to the sum of $1,500.
Judgment was demanded that the plaintiff should recover its
damages already sustained in the sum of $1,500, and that the
defendant should be perpetually enjoined from interfering with or
diverting the waters which would otherwise naturally flow into Lake
Baldwin, so as to prevent them from flowing in the natural course
to said Rice Creek and Mississippi River to the water power of said
plaintiff.
The answer of the defendant averred that the defendant existed
as a corporation and executive department of the City of St. Paul,
of the State of Minnesota, under and by virtue of the acts referred
to in the complaint, as approved February 10, 1881, and amended
January 25, 1883, and March 4, 1885, and that the defendant, under
these acts and under the charter of the City of St. Paul, exercised
all of the authority of the City of St. Paul with respect to
acquiring lands and franchises for and the construction of
waterworks for the purpose of supplying the City of St. Paul and
its inhabitants with pure water for all public purposes.
The defendant also averred that, by virtue of the authority
granted by the acts of the legislature, above referred to, and by
the charter granted to the City of St. Paul, the defendant had
secured the right of way from the City of St. Paul to said Baldwin
Lake, and by the use of mains, ditches, and pumps it had drawn and
was drawing from that lake and was bringing to the City of St. Paul
water for the use of the city and its inhabitants, and that the
defendant and the City of St. Paul are the owners in fee simple of
a large tract of real estate bordering on Lake Baldwin, upon which
lands it had erected buildings and placed therein pumps, etc., for
the purpose of drawing water from that lake for the purpose of
supplying the City of St. Paul with water.
Page 168 U. S. 356
Other averments were made not material to be here mentioned.
The defendant claimed a right to take the water from Baldwin
Lake and conduct the same to the City of St. Paul for the use of
said city and its inhabitants (without making any compensation or
payment therefor to the plaintiff) by reason of the legislative
authority above mentioned.
A similar answer was put in by the defendant in the case of the
St. Anthony Falls Water Power Company.
Replies to these answers were put in by the plaintiffs in error,
taking issue on the matters of fact therein alleged.
Upon these pleadings, the two actions came on for trial in the
state court and were tried together. Evidence was given upon the
part of the plaintiffs tending to support the allegations of the
complaints, and after the plaintiffs had rested, the defendant
moved that the actions should be dismissed on the ground that there
was no liability on the part of the defendant to either of the
plaintiffs, because the Mississippi River was a navigable river,
its beds and its waters being owned by the State of Minnesota, and
that the board of water commissioners, defendant herein, was a part
of the city government of the City of St. Paul, authorized by the
legislature to draw water from any of the lakes of the state for
the purpose of supplying water to the City of St. Paul; that the
defendant acted as agent of the state and in the name of the state,
supplying the citizens of the state with water owned by the state,
which the state had a right to use for that purpose, and that such
right was paramount to the rights of any riparian owners; also on
the ground that nothing but a reasonable use had been shown by the
defendant as riparian owner of land on Lake Baldwin; also that
plaintiffs' dams are a purpresture, and that plaintiffs can have no
right to the use of water obtained in that way; also that their
riparian rights do not extend to the use of water on land not owned
by them, or, as against the defendant, to power obtained which
requires the flowage of land other than their own.
The motion to dismiss was granted in each case, to which the
plaintiff in each case duly excepted.
Page 168 U. S. 357
A motion for a new trial was made before the trial court upon a
case and exceptions, and the motion, after hearing counsel, was
denied. The plaintiffs then appealed to the supreme court of the
state from the order of the district court denying plaintiffs'
motion for a new trial and from the whole thereof. The supreme
court affirmed the order, and directed that the defendant should
have judgment accordingly. Upon the affirmance of the judgments by
the supreme court, the plaintiffs obtained a writ of error in each
case from this Court, and the records are now before us for
review.
MR. JUSTICE PECKHAM, after stating the facts in the foregoing
language, delivered the opinion of the Court.
It is claimed upon the part of the plaintiffs in error that, by
the decision of the court below, they have been deprived of their
property without due process of law. They urge that they have
certain rights as riparian owner of land near St. Anthony Falls,
bordering upon the Mississippi River, to the use of all the water
as it would naturally flow past their land, and that this right is
property; that its existence and extent are to be determined by the
general law applicable to riparian owners in like situation, which
right is not determined conclusively by a state court, and that,
being property, it cannot be taken away or impaired either by other
private owners or by the state, except that, if the latter should
require the use of any portion of the water for any public purpose,
it may only be taken or diverted upon due compensation being made.
These rights, it is claimed, are protected by the federal
Constitution, and that, as such claim was duly presented before the
state tribunal, the question is now open for review by this
Court.
Page 168 U. S. 358
If wrong in their above claim, the plaintiffs in error then urge
that, if it be assumed that the state originally had the power to
make a diversion of some portion of the water in the Mississippi
River for the purpose of supplying the City of St. Paul with water,
yet that through the action of the territorial legislature in 1856
in granting these plaintiffs in error their charters with the
powers and rights therein named, the territory gave and released to
plaintiffs in error the right to use all of the water naturally
flowing in the river past their lands for the purpose of power free
from the right of any subsequent territorial or state legislature
to divert the waters in the manner complained of herein without
making compensation.
These charters are claimed by the plaintiffs in error to be
contracts the obligations of which no subsequent legislature could
impair, and it is argued that the act of 1881 and the subsequent
acts amendatory thereof, granting to the defendant in error a right
to use water for the purposes therein named, do impair the
obligations of these contracts, and therefore are absolutely
void.
They also urge that, even if their riparian rights are to be
governed by the general rules of law laid down by the highest court
of Minnesota, it will be found that the former decisions of that
court upon that subject have fixed in plaintiffs the property
rights which they here claim, and that this Court should not be
bound by the last decision of the state court upon the question, as
evidenced by the judgment under review, because it is wholly
inconsistent and at war with all the prior decisions of the state
court, and ought not to be followed.
These contentions on the part of the plaintiffs in error are now
to be examined.
(1) In regard to the first proposition, we are of opinion that
the property rights of the plaintiffs in error, as riparian owners,
are to be measured by the rules and decisions of the state courts
of Minnesota. This principle, we think, has been announced and
adhered to by this Court from its very early days, and no
distinction has been made between the rights of the original states
and those which were subsequently admitted
Page 168 U. S. 359
to the Union under the provisions of the federal Constitution.
The provisions of the act of Congress already cited (Act of
February 26, 1857, § 2, 11 Stat. 166, c. 60), making the
Mississippi River a common highway for the inhabitants of the state
and all other citizens of the United States, do not impair the
title and jurisdiction of the state over the navigable waters
within her boundaries more than rights of that nature are limited
with regard to the original states. This has been uniformly held,
and is so stated in many of the cases hereinafter cited, where
similar language has been used in the acts admitting states into
the Union.
Preliminarily, it may be said that the Mississippi River at the
point in question is a navigable stream. In order to be navigable,
it is not necessary that it should be deep enough to admit the
passage of boats at all portions of the stream. One witness for the
plaintiffs in error said that, in its natural state, the river at
this point was not navigable at ordinary stage of the water for
half a mile below St. Anthony Falls, and in its natural state it
was not navigable immediately above the fails, but that it was
navigable in its natural state above Nicollet Island. He also
stated that when he said the Mississippi River was not navigable at
these falls, he meant that it was not navigable for boats; that
boats could not go up and down in its natural condition; that it
was always used for logs with shutes that are artificially
prepared. It was navigable below the rapids and navigable above the
rapids, and that the dam made it so. It was navigable above the
rapids for the purpose of running shallow boats and for floating
logs. What is said hereafter in regard to the river is based upon
the really unquestionable fact that it is a navigable river at all
points referred to in these records.
In
Martin v.
Waddell, 16 Pet. 367, it was held that when the
American Revolution was concluded, the people of each state became
themselves sovereign, and in that character held 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. The action was ejectment
for 100 acres of land
Page 168 U. S. 360
covered with water in Raritan Bay, in the township of Perth
Amboy, in the State of New Jersey. The claim of the plaintiff was
founded upon the charters of Charles II to his brother, the Duke of
York, in 1664 and 1674, for the purpose of enabling him to plant a
colony on the continent of America, the land in controversy being
within the boundaries of the charters and in the territory which
now forms the State of New Jersey. Those letters patent, as
construed by this Court, conveyed to the Duke of York all the
prerogatives and powers of government residing at the time of their
execution in the King of Great Britain, and passed from the
jurisdiction of Great Britain to the people of each state after the
Revolution. Although the question in that case arose in regard to
lands covered with water in Raritan Bay, yet the principles upon
which the case was decided have been stated to apply to the rights
of the states in regard to all navigable waters within their
jurisdiction.
In
Pollard v.
Hagan, 3 How. 212, the question arose in regard to
the rights of the State of Alabama in the shores of navigable
waters and the soils under them within her limits. The sixth
section of the act of Congress passed on the second of March, 1819,
for the admission of the State of Alabama into the Union
provided
"that all navigable waters within the said state shall forever
remain public highways, free to the citizens of said state and of
the United States, without any tax, duty, impost or toll therefor,
imposed by said state."
It was held that the government of the United States did not by
reason of that enactment possess any more power over the navigable
waters of Alabama than it possessed over the navigable waters of
other states under the provisions of the Constitution, and that
Alabama had as much power over those navigable waters as the
original states possessed over the navigable waters within their
respective limits. It was also held that the shores of navigable
waters and the soils under them were not granted by the
Constitution of the United States, but were reserved to the states
respectively, and the new states had the same rights, sovereignty,
and jurisdiction over the subject as the original states.
Page 168 U. S. 361
In
Goodtitle v.
Kibbie, 9 How. 471, the decision of this Court in
Pollard v. Hagan, supra, was referred to and affirmed, and
it was said that, by the admission of the State of Alabama into the
Union, that state became invested with the sovereignty and dominion
over the shores of the navigable rivers between high and low water
mark, and that after such admission, Congress could make no grant
of land thus situated.
In
Barney v. Keokuk, 94 U. S. 324, it
was recognized as the law that the title and rights of riparian
proprietors upon the banks of the Mississippi were to be settled by
the states within which the lands were included. Mr. Justice
Bradley, in stating the opinion of the Court in that case, said (at
page
94 U. S.
338):
"And since this Court in the case of
The Genesee
Chief, 12 How. 443, has declared that the Great
Lakes and other navigable waters of the country, above as well as
below the flow of the tide, are, in the strictest sense, entitled
to the denomination of navigable waters, and amenable to the
admiralty jurisdiction, there seems to be no sound reason for
adhering to the old rule as to the proprietorship of the beds and
shores of such waters. It properly belongs to the states by their
inherent sovereignty, and the United States has wisely abstained
from extending (if it could extend) its survey and grants beyond
the limits of high water. The cases in which this Court has seemed
to hold a contrary view
depended, as most cases must depend, on
the local laws of the states in which the lands were situated.
In Iowa, as before stated, the more correct rule seems to have been
adopted after a most elaborate investigation of the subject."
It was also said by the same learned Justice, in speaking of the
English idea of navigable waters being necessarily tidewaters:
"It had the influence for two generations of excluding the
admiralty jurisdiction from our great rivers and inland seas, and
under the like influence it laid the foundation in many states of
doctrines with regard to the ownership of the soil in navigable
waters above tidewater at variance with sound principles of public
policy. Whether, as rules of property, it would now be safe to
change these doctrines where they have been applied, as before
remarked, is for the several states themselves
Page 168 U. S. 362
to determine. If they choose to resign to the riparian
proprietor rights which properly belong to them in their sovereign
capacity, it is not for others to raise objections. In our view, of
the subject, the correct principles were laid down in
Martin
v. Waddell, 16 Pet. 367,
Pollard's Lessee v.
Hagan, 3 How. 212, and
Goodtitle v.
Kibbie, 9 How. 471. These cases related to
tidewater, it is true, but they enunciate principles which are
equally applicable to all navigable waters."
In
St. Louis v. Myers, 113 U.
S. 566, this Court held that the Act of March 6, 1820, 3
Stat. 545, admitting the State of Missouri into the Union, left the
rights of riparian owners on the Mississippi River to be settled
according to the principles of state law. Mr. Chief Justice Waite,
in delivering the opinion of the Court, said:
"The act of Congress providing for the admission of Missouri
into the Union, Act March 6, 1820, 3 Stat. 545, c. 22, and which
declares that the Mississippi River shall be 'a common highway and
forever free,' has been referred to in the argument here, but the
rights of riparian owners are nowhere mentioned in that act. They
are left to be settled according to the principles of state
law."
In
Packer v. Bird, 137 U. S. 661, it
was held that, as the highest court of California had decided that,
the Sacramento River being navigable in fact, a title upon it
extends no further than to the edge of the stream, this Court would
accept that decision as expressing the law of the state. That case
asserted the right of each state to determine the extent of the
title and of the rights of the riparian owners in waters within the
territory of the state. It was also stated that the federal courts
must construe grants of the general government without reference to
the rules of construction adopted by the states for grants by them,
but that ownership of property conveyed by the United ownership of
property conveyed by the United States bordering on navigable
streams would be determined by the states in which it is situated,
subject to the limitation that their rules do not impair the
efficacy of the grant or the use and enjoyment of the property by
the grantee. It was further said that,
"as an incident of such ownership the right of the riparian
owner, where the waters are above the influence of
Page 168 U. S. 363
the tide, will be limited, according to the law of the state,
either to low or high water mark, or will extend to the middle of
the stream."
It does not impair the efficacy of the grant or the use and
enjoyment of the property by the grantee to hold that riparian
rights are to be decided by the state courts, inasmuch as the
grant, if by the federal government, has been held, in the cases
already cited, not to include title over navigable waters within or
bounded by the states.
In
Hardin v. Jordan, 140 U. S. 371, it
was held that grants by the United States of its public lands
bounded on streams and other waters, made without reservation or
restriction, are to be construed, as to their effect, according to
the law of the state in which the lands lie, and that it depends
upon the law of each state to what extent the prerogative of the
state to lands under water shall extend. In the opinion, after
stating that the title to the shore and lands under water is in the
state and is regarded as incidental to its sovereignty, it is
said:
"Such title being in the state, the lands are subject to state
regulation and control, under the condition, however, of not
interfering with the regulations which may be made by Congress with
regard to public navigation and commerce. . . . Sometimes large
areas [of land] so reclaimed are occupied by cities and are put to
other public or private uses, state control and ownership therein
being supreme, subject only to the paramount authority of Congress
in making regulations of commerce and subjecting the lands to the
necessities and uses of commerce,"
citing cases. Continuing, the Court said:
"This right of the states to regulate and control the shores of
tidewaters and the land under them is the same as that which is
exercised by the crown in England. In this country, the same rule
has been extended to our great navigable lakes, which are treated
as inland seas, and also, in some of the states, to navigable
rivers, as the Mississippi, the Missouri, the Ohio, and, in
Pennsylvania, to all the permanent rivers of the state, but it
depends upon the law of each state to what waters and to what
extent this prerogative of the state over the lands under water
shall be exercised. "
Page 168 U. S. 364
MR. JUSTICE BREWER, in his dissenting opinion in the above-cited
case, which was concurred in by MR. JUSTICE GRAY and MR. JUSTICE
BROWN, agreed
"that the question how far the title of a riparian owner extends
is one of local law. For a determination of that question, the
statutes of the state and the decisions of its highest court
furnish the best and the final authority."
And the dissent was based upon the theory that although the
right of the state to determine this matter was not questioned in
the prevailing opinion, there was nevertheless error committed by
the majority of the Court in refusing to follow a decision of the
state court on the very question then under review, and in
following instead thereof previous decisions of the state court
inconsistent therewith.
In
St. Louis v. Rutz, 138 U. S. 226,
cited in the dissenting opinion above referred to, it was said by
Mr. Justice Blatchford, in delivering the opinion of the Court:
"The question as to whether the fee of the plaintiff, as a
riparian proprietor on the Mississippi River, extends to the middle
thread of the stream or only to the water's edge is a question in
regard to a rule of property which is governed by the local law of
Illinois."
In
Kaukauna Water Power Company v. Green Bay &
Mississippi Canal Co., 142 U. S. 254, MR.
JUSTICE BROWN, in delivering the opinion of the Court, said at
142 U. S.
271:
"It is the settled law of Wisconsin, announced in repeated
decisions of its supreme court, that the ownership of riparian
proprietors extends to the center or thread of the stream, subject,
if such stream be navigable, to the right of the public to its use
as a public highway for the passage of vessels. [Citing cases.] In
City of Janesville v. Carpenter, 77 Wis. 288, 300, it is
said of the riparian owner:"
"He may construct docks, landing places, piers, and wharves out
to the navigable waters if the river is navigable in fact, but if
it is not so navigable, he may construct anything he pleases to the
thread of the stream, unless he injures some other riparian
proprietor or those having the superior right to use the waters for
hydraulic purposes. . . . Subject to these restrictions, he has the
right to use his land under water the same as above water. It is
his private
Page 168 U. S. 365
property under the protection of the Constitution, and it cannot
be taken, or its value lessened or impaired, even for public use,
'without compensation' or 'without due process of law,' and it
cannot be taken at all for any one's private use."
"With respect to such rights, we have held that the law of the
state, as declared by its supreme court, is controlling as a rule
of property."
In
Shively v. Bowlby, 152 U. S. 1, it was
again said that the new states admitted into the Union since the
adoption of the Constitution have the same rights as the original
states in the tidewaters and in the lands under them within their
respective jurisdictions. It was also remarked that, upon the
question how far the title of the owner of land extends bounding
upon a river actually navigable, but above the ebb and flow of the
tide, there is a diversity in the laws of the different states, and
that the titles and rights of riparian or littoral proprietors in
the soil below high water mark are governed by the laws of the
several states, subject to the rights granted to the United States
by the Constitution.
The suit was in the nature of a bill in equity brought to quiet
title to lands below high water mark in the City of Astoria, the
question involving the rights in navigable waters as between the
state and others. The opinion, at
152 U. S. 57,
states as follows:
"By the law of the State of Oregon, therefore, as enacted by its
legislature and declared by its highest court, the title in the
lands in controversy is in the defendants in error, and, upon the
principles recognized and affirmed by a uniform series of recent
decisions of this Court above referred to, the law of Oregon
governs the case."
The opinion refers to all the cases which we have above cited
and many others upon the various questions which are discussed in
the case, and recognizes the rule that it belongs to the states to
decide as to the character and extent of the riparian rights of
owners upon navigable waters within such states.
It is true that in these various cases, the exact point in
controversy in this case in regard to the rights of the state as
against riparian owners has not arisen. The dispute has generally
been as to the extent and character of the title as between
Page 168 U. S. 366
the United States or the state and the riparian owner to lands
under water, and as to the right of the riparian owner to build out
from the shore piers or wharves so as to reach the navigable
portion of the stream, but the principles laid down in all of these
cases necessarily include the right of the state courts to decide,
as a matter of local law, the point now under discussion, subject
to the acknowledged jurisdiction of the United States under the
Constitution in regard to commerce and the navigation of the waters
of rivers. The jurisdiction of the state over this question of
riparian ownership has been always, and from the foundation of the
government, recognized and admitted by this Court. The extent of
the plaintiff's riparian right of property was therefore the
subject of adjudication by the state court, and the rule has been
definitely stated by that court in its judgment, which is now under
review.
(2) It is claimed, however, by the plaintiffs in error that this
judgment is the only case in the state where the ruling made
therein has been adopted, and that this particular judgment is at
war with and opposed to every other ruling upon the subject
heretofore made by the supreme court of that state, and they
contend that, upon the authority of
Hardin v. Jordan,
supra, this Court should disregard the judgment of the state
court in this case, and follow the previous decisions of that court
on this subject. As to the case of
Hardin v. Jordan, it
may be said that it went as far as this Court ought to go in
refusing to follow the latest decision of the highest court of a
state in regard to a matter upon which the judgment of that court
is regarded as conclusive. It will be observed, however, that the
decision in
Hardin v. Jordan, in refusing to follow the
ruling of the Supreme Court of Illinois in
Trustees v.
Schroll, 120 Ill. 509, was placed upon the asserted fact that
such ruling of the Supreme Court of Illinois was not necessary to
the decision of the case, and that, being opposed to the entire
course of the previous decisions of that state, it should be
disregarded. It is not so here. The ruling of the state court was
necessary to the decision of this case, and stands as the latest,
if not the only, exposition
Page 168 U. S. 367
of the views of that court upon the question involved. We ought
therefore to follow that case.
However, with regard to the decisions of the state court upon
this subject, cited by counsel for the plaintiffs in error, we
think there is not one of them which is inconsistent with the
decision of that court in the cases now under review. The question
did not arise in any of them upon the right of the state as against
plaintiffs in error, or any one in like situation, to divert a
portion of the flow of the water in the Mississippi River to any
public purpose so long as it did not interfere with the navigation
of the river.
The cases of
Schurmeier v. St. Paul & Pacific
Railway, 10 Minn. 82;
Brisbine v. St. Paul & Sioux
City Railroad, 23 Minn. 114;
Morrill v. St. Anthony Falls
Water Power Co., 26 Minn. 223;
Minnesota v. Minneapolis
Mill Co., 26 Minn. 229;
Union Depot &c. v.
Brunswick, 31 Minn. 297;
Hanford v. St. Paul & Duluth
Railroad, 43 Minn. 104, and
St. Anthony Falls Water Power
Co. v. Minneapolis, 41 Minn. 270, are cited to sustain the
contention of the plaintiffs in error.
An examination of these cases shows that the question did not
arise and was not decided in any of them. Some of the cases relate
to the question as to what was the proper boundary, high or low
water mark, of lands mentioned therein, and in others the question
arose as to the riparian right of owners of lands adjoining the
Mississippi River to build piers or docks out to the navigable
portion of the stream, or to fill up and build upon a portion of
the river out to its navigable part; or it was a question of the
right of a riparian proprietor to compensation from a railway
company seeking to condemn for the purposes of its railway a
certain portion of land owned by him between the center of a street
and the center of the channel of the river. In none of the cases
was there involved the right of the state to divert for public
purposes a portion of the flow of a river while not in the
slightest degree or in any way affecting the navigability of the
stream.
In
Union Depot &c. v. Brunswick and in
Brisbine
v. St. Paul &c., supra, substantially the same
questions
Page 168 U. S. 368
arose, and in the latter case, in speaking of some of the
riparian rights of an owner upon the banks of a navigable stream,
the Court said:
"What these rights are, especially in regard to land acquired
originally from the United States, and bordering, as this does,
upon the Mississippi River, we regard as fully and correctly
settled by the federal Supreme Court.
Dutton v.
Strong, 1 Black 23;
Railroad Co. v.
Schurmeier, 7 Wall. 272;
Yates v.
Milwaukee, 10 Wall. 497. According to the doctrine
of these decisions, the plaintiff possessed the right to enjoy free
communication between his abutting premises and the navigable
channel of the river, to build and maintain, for his own and the
public use, suitable landing places, wharves, and piers, on and in
front of his land, and to extend the same therefrom into the river
to the point of navigability, even though beyond low water mark,
and to this extent exclusively to occupy, for such and like
purposes, the bed of the stream, subordinate and subject only to
the navigable rights of the public and such needful rules and
regulations for their protection as may be prescribed by competent
legislative authority. The rights which thus belong to him as
riparian owner of the abutting premises were valuable property
rights of which he could not be divested without consent, except by
due process of law, and, if for public purposes, upon just
compensation.
Yates v. Milwaukee, 10 Wall.
497."
In
Union Depot Street Railway v. Brunswick, 31 Minn.
297, it was held to be the settled law of Minnesota that a riparian
owner upon a navigable stream has the fee to low water mark, and
that in addition he owns, as an incident to his ownership, certain
riparian rights, among which are the right to enjoy free
communication between his abutting premises and the navigable
channel of the stream, to build and maintain suitable piers,
landings, or wharves on and in front of his land, and to extend the
same therefrom into the stream to the point of navigability even
beyond low water mark, and to this extent exclusively to occupy for
such and like purposes the bed of the stream, subordinate only to
the paramount public right of navigation. These riparian rights
Page 168 U. S. 369
the court held to be property, and that they were not to be
taken by the state without paying just compensation therefor. The
rights which were held subordinate only to the paramount public
right of navigation were those mentioned by the court, and not a
word was said as to the right of flowage, which was not involved
and was not alluded to.
In
Morrill v. St. Anthony Falls Water Power Company,
supra, the Supreme Court of Minnesota held that the riparian
owner of lands upon a navigable stream may use the water flowing
past his land for any purpose, so long as he does not impede
navigation, in the absence of any counterclaim by the state or the
United States. It will be seen that this case does not refer to the
right to receive the full amount of the natural flowage from above,
but only to the right to use that which does flow, in the absence
of any counterclaim by the state or the United States.
The same general statement of the rights of riparian owners is
made in
Hanford v. Railroad Co., supra. That case treats
of the rights of a riparian owner in the bed of the stream above
low water mark as subject to the right of the public to use the
same for the purposes of navigation, and adds that,
"restricted only by that paramount public right, the riparian
owner enjoys valuable proprietary privileges, among which we shall
consider particularly the right to the use of the land itself for
private purposes. . . . Subject only to the limitation that he
shall not interfere with the public right of navigation, he has the
unquestionable and exclusive right to construct and maintain
suitable landings, piers, and wharves into the water and up to the
point of navigability for his own private use and benefit. [Citing
cases.] And it is obviously immaterial, if the public interests be
not prejudiced, whether the submerged land be covered with wharves
of timber or stone, or be reclaimed from the water by filling in
with earth so that it becomes dry land. The land may be so
reclaimed."
It is also said in the course of the opinion:
"The limit to the private right is imposed by the public right,
and the private right exists up to the point beyond which it would
be inconsistent with the public right. "
Page 168 U. S. 370
All this was said in regard to the case then under discussion,
which related to the right of a riparian proprietor to reclaim the
submerged land to the point of navigability, and to alienate the
same so that the alienee might have the rights of the riparian
owner, although having no interest in the original riparian estate.
The question here involved was neither decided nor considered.
In
Schurmeier v. St. Paul & Pacific Railroad
Company, 10 Minn. 82, which was affirmed in
74 U. S. 7 Wall.
272, it was held that the grantee from the United States had his
line bounded by the river at least to low water mark, and when,
after the grant was made to him, he platted it into blocks as part
of the Town of St. Paul, that he still retained in the land, over
which the streets and landing were laid, the fee, subject only to
the use of the public for the purposes designated, and that the
railroad company having no legal authority to use the streets or
landing for railroad tracks, and such use being a special injury to
the plaintiff, he was entitled to an injunction. In that case, Mr.
Chief Justice Wilson, in the state court, was of the opinion that
the riparian proprietor went to the middle of the river, that that
was the rule at common law, and, in his opinion, there was no
reason to doubt that the common law prevailed in Minnesota as to
that question, but while so holding, as his individual opinion, he
said that other authorities regarded the boundary line of the
riparian proprietor to be low water mark, and even on that
assumption the place in dispute was within the title of the
riparian proprietor.
The state court subsequently decided that the title of a
riparian owner on a navigable stream went only to low water
mark.
St. Anthony Falls Water Power Company v. City of
Minneapolis, supra, does not decide the point contended for by
the plaintiffs in error. It was a contest between private parties
as to the effect of a certain deed in reserving rights to the
grantor and as to the extent of the right of flowage contained in
the deed. The question here under discussion was not even remotely
affected.
Page 168 U. S. 371
We have looked in vain among all the cases in the state court
cited by counsel for the plaintiffs in error for any decision upon
this question. Whatever may be the rights of the plaintiffs in
error under their charters, or as the riparian owners of land, to
build and maintain their dams to the center of the stream, there is
no decision cited which holds that they are entitled to the use of
all the water which would naturally flow past their lands and over
their dams so constructed, nor has the state court decided that the
only right of the state to which this alleged right of the
plaintiffs in error is subject or subordinate in any way is limited
to the right of the state to control or use the bed of the stream
and the waters therein for purposes of navigation only. That
limitation has never been placed upon the state with reference to
the point here in question. The state supreme court, in deciding
this particular case, was not, therefore, announcing a rule which
was at all inconsistent with or opposed to any of its former
decisions; and, as the extent of the riparian rights in this case
was a subject committed to the jurisdiction of the State of
Minnesota, we are bound, so far as this question is concerned, to
follow the decision of the highest court of that state as announced
in this case.
(3) If wrong in their above contentions, the plaintiffs in error
then assert that their charters granted in 1856, and set forth so
far as material in the foregoing statement of facts, gave and
guarantied to them the right to use and develop the water power of
St. Anthony Falls, and authorized them to build such structures in
and upon the river as were necessary to develop that power, and
that, when these provisions of their charters were accepted and
acted upon, they became contract obligations between the State of
Minnesota and the plaintiffs, and that the statute above mentioned,
authorizing the defendant to divert some portion of the natural
flow of the water without compensation to the plaintiffs, was a
violation of the federal Constitution as impairing the obligation
of the contracts contained in the charters referred to.
We think this contention cannot be maintained. We are of opinion
that the true construction of these territorial
Page 168 U. S. 372
charters does not give such contract rights as are claimed by
the plaintiffs in error. They were grants of power to the
respective companies under which they were licensed to build their
dams out into the river for the purpose of utilizing the power and
of using the water that flowed down the river. These grants were in
legal effect subject at all times to the paramount right of the
state, as trustee for the public, to divert a portion of the waters
for public uses, and they were also subject to the rights in regard
to navigation and commerce existing in the general government under
the Constitution of the United States.
See also upon this
subject
Watuppa &c. Co. v. Fall River, 147 Mass. 548;
City of Auburn v. Union Water Power Co., 38 A. 561. There
was no contract by virtue of these charters that the companies
should always and for all time be entitled to all the natural flow
of the water in the river without regard to the right of the state
as above mentioned. The claim made by the companies seems to us
most extravagant. The state, or any particular subdivision thereof
acting under its authority, would, if these claims were valid, be
forever thereafter prevented from using any portion of the waters
of the river for any public purpose unless compensation for such
use were first made these plaintiffs. This construction of the
meaning of the charters assumes the power of a territorial or state
legislature to bind future legislatures in dealing with these
public rights, and it prevents the latter from providing for the
use of any portion of the waters for public purposes of the most
important character without first making compensation to the
plaintiffs for that use. If we should assume the validity of an act
of the legislature of such a character (which, under the decision
of this Court in
Illinois Central Railroad v. Illinois,
146 U. S. 387, is
at least doubtful), it is clear that we ought not to adopt a
construction leading to that result unless the legislative act be
plain and beyond all doubt. We are of opinion that these particular
charters of the plaintiffs are not to be thus construed. The
sections of the acts which are material upon this point simply
authorize the companies to maintain their dams and sluices,
Page 168 U. S. 373
and permit them to construct and maintain other dams, etc., for
the purpose of manufacturing, or for improving any water power
owned or possessed by the companies, in such manner or to such
extent as shall be authorized by the directors. But there is no
language in the acts providing that the companies shall thereafter
and always have the right to the use of all the natural flow of the
water down the river. Nor is such right a necessary and legal
consequence of the language used. They may have acquired by these
acts the right to build dams, etc., and the right to use such water
as in fact and from time to time should flow down to their dam, but
there is nothing in the language of the charters showing or
implying that it was the intention of the state to grant to these
parties the rights now claimed by them. It is difficult to believe
that a legislature would ever grant to individuals or companies
rights of that nature, even if it be assumed it had the power. It
was proper and in accordance with a wise public policy to grant a
privilege to these companies to build dams, etc., as stated in the
charters, and to permit them, by virtue of the dams and sluices, to
use the water that in fact and from time to time might come down
the river, but it cannot be supposed that the legislature meant by
any grant of this kind to warrant that, for all future time, no
part of the water that might otherwise naturally flow down the
river should ever be used under the authority of the state for any
public purpose without compensating the plaintiffs for that
diversion.
In
Rundle v. Delaware &
Raritan Canal Co., 14 How. 80, this Court held
that, by the law of Pennsylvania, the Delaware River was a public
navigable river, held by its joint sovereign (the states bordering
thereon) in trust for the public; that riparian owners in that
state had no title to the river or any right to divert its waters
unless by license from the states; that such license was revocable
and in subjection to the superior right of the state to divert the
water for public improvements, either by the state directly or by a
corporation created for that purpose, and that the proviso to the
provincial acts of Pennsylvania and New Jersey of 1771 did not
operate as a grant of the usufruct of the waters of the river to
Adam
Page 168 U. S. 374
Hoops and his assigns, but only as a license or toleration of
his dam. It appeared in this case that the plaintiffs in error,
being plaintiffs below, were the owners of certain mills in
Pennsylvania opposite the City of Trenton, in New Jersey; that the
mills were supplied with water from the Delaware River by means of
a dam extending from the Pennsylvania shore to an island lying near
and parallel to it and extending along the rapids to the head of
tidewater. The plaintiffs claimed that, by virtue of a proviso in
the acts of the provincial legislatures of Pennsylvania and New
Jersey, their predecessors had become entitled to the free and
uninterrupted enjoyment of the River Delaware for the use of their
mills, and that, notwithstanding, the defendants had erected a dam
in the river above plaintiffs' mills, and had dug a canal and
diverted the water to their great injury. A demurrer was
interposed, upon which the court below gave judgment for the
defendants, and this Court was asked to review and reverse that
judgment. It was held that the proviso was nothing more than a
license to keep the dam up, which could at any time be revoked.
A careful consideration of the acts in question persuades us
that they are not to be construed as plaintiffs claim, and that,
under them, the plaintiffs took no contract rights which have been
impaired in any degree by the subsequent acts under which
defendants claim the right set up in their respective answers.
These views lead us to the opinion that the judgments of the
Supreme Court of Minnesota in these cases are right, and they are
therefore
Affirmed.
