The boundary line between private rights of property, which can
only be limited on compensation by the exercise of eminent domain,
and the police power of the state, which can limit such rights for
the public interest, cannot be determined by any formula in
advance, but points in that line helping to establish it have been
fixed by decisions of the Court that concrete cases fall on the
nearer or farther side thereof.
The state, as
quasi-sovereign and representative of the
interests of the public, has a standing in court to protect the
atmosphere, the water, and the forests within its territory,
irrespective of the assent or dissent of the private owners
immediately concerned.
Kansas v. Colorado, 185 U.
S. 125;
Georgia v. Tennessee Copper Co.,
206 U. S. 230.
The public interest is omnipresent wherever there is a state,
and grows more pressing as population grows, and is paramount to
private property of riparian proprietors whose rights of
appropriation are subject not only to rights of lower owners but
also to the limitations that great foundations of public health and
welfare shall not be diminished.
A state has a constitutional power to insist that its natural
advantages remain unimpaired by its citizens, and is not dependent
upon any reason for its will so to do. In the exercise of this
power, it may prohibit the diversion of the waters of its important
streams to points outside of its boundaries.
One whose rights are subject to state restriction cannot remove
them from the power of the state by making a contract about them,
and a contract illegal when made -- such as one for diverting water
from the state -- is not within the protection of the contract
clause of the Constitution.
One cannot acquire a right to property by his desire to use it
in commerce among the states.
Citizens of other states are not denied equal privileges within
the meaning of the immunity clause of the Constitution by a statute
forbidding the diversion of waters of the state if they are as free
as the citizens of the state to purchase water within the
boundaries of the state, nor can such a question be raised by a
citizen of the state itself.
Chap. 238, Laws of New Jersey of 1905, prohibiting the
transportation of
Page 209 U. S. 350
water of the state into any other state, is not unconstitutional
either as depriving riparian owners of their property without due
process of law, as impairing the obligation of contracts made by
them for furnishing such water to persons without the state, as an
interference with interstate commerce, or as denying equal
privileges and immunities to citizen of other states.
70 N.J.Eq. 695 affirmed.
The facts are stated in the opinion.
Page 209 U. S. 353
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an information alleging that the defendant (the
plaintiff in error), under a contract with the City of Bayonne, in
New Jersey, has laid mains in that city for the purpose of carrying
water to Staten Island, in the State of New York. By other
contracts, it is to get the water from the Passaic River at Little
Falls, where the East Jersey Water Company has a large plant by
which the water is withdrawn. On May 11, 1905, the State of New
Jersey, reciting the need of preserving the fresh water of the
state for the health and prosperity of the citizens, enacted
that
"it shall be unlawful for any person or corporation to transport
or carry, through pipes, conduits, ditches, or canals the waters of
any fresh water lake, pond, brook, creek, river, or stream of this
state into any other state for use therein."
By a second section, a proceeding like the present was
authorized in order enforce the act. Laws of 1905, c. 238, p. 461.
After the passage of this statute, the defendant made a contract
with the City of New York to furnish a supply of water adequate for
the Borough of Richmond, and of not less than 3,000,000 gallons a
day. Thereupon this information was brought, praying that, pursuant
to the above act and otherwise, the defendant might be enjoined
from carrying the waters of the Passaic River out of the state.
There are allegations as to the amount of water and the
probable
Page 209 U. S. 354
future demand, upon which the parties are not wholly agreed, but
the essential facts are not denied. The defendant sets up that the
statute, if applicable to it, is contrary to the Constitution of
the United States, that it impairs the obligation of contracts,
takes property without due process of law, interferes with commerce
between New Jersey and New York, denies the privileges of citizens
of New Jersey to citizens of other states, and denies to them the
equal protection of the laws. An injunction was issued by the
chancellor, 70 N.J.Eq. 525, the decree was affirmed by the Court of
Errors and Appeals (70 N.J.Eq. 695), and the case then was brought
here.
The court below assumed or decided, and we shall assume, that
the defendant represents the rights of a riparian proprietor, and,
on the other hand, that it represents no special chartered powers
that give it greater rights than those. On these assumptions, the
Court of Errors and Appeals pointed out that a riparian proprietor
has no right to divert waters for more than a reasonable distance
from the body of the stream or for other than the well known
ordinary uses, and that for any purpose anywhere he is narrowly
limited in amount. It went on to infer that his only right in the
body of the stream is to have the flow continue, and that there is
a residuum of public ownership in the state. It reinforced the
state's rights by the state's title to the bed of the stream where
flowed by the tide, and concluded from the foregoing and other
considerations that, as against the rights of riparian owners
merely as such, the state was warranted in prohibiting the
acquisition of the title to water on a larger scale.
We will not say that the considerations that we have stated do
not warrant the conclusion reached, and we shall not attempt to
revise the opinion of the local court upon the local law if, for
the purpose of decision, we accept the argument of the plaintiff in
error that it is open to revision when constitutional rights are
set up. Neither shall we consider whether such a state as the one
before us might not be up held, even if the lower riparian
proprietors collectively were the absolute
Page 209 U. S. 355
owners of the stream, on the ground that it authorized a suit by
the state in their interest, where it does not appear that they all
have released their rights.
See Kansas v. Colorado,
185 U. S. 125,
185 U. S. 142.
But we prefer to put the authority, which cannot be denied to the
state, upon a broader ground than that which was emphasized below,
since, in our opinion, it is independent of the more or less
attenuated residuum of title that the state may be said to
possess.
All rights tend to declare themselves absolute to their logical
extreme. Yet all in fact are limited by the neighborhood of
principles of policy which are other than those on which the
particular right is founded, and which become strong enough to hold
their own when a certain point is reached. The limits set to
property by other public interests present themselves as a branch
of what is called the police power of the state. The boundary at
which the conflicting interests balance cannot be determined by any
general formula in advance, but points in the line, or helping to
establish it, are fixed by decisions that this or that concrete
case falls on the nearer or farther side. For instance, the police
power may limit the height of buildings in a city, without
compensation. To that extent, it cuts down what otherwise would be
the rights of property. But if it should attempt to limit the
height so far as to make an ordinary building lot wholly useless,
the rights of property would prevail over the other public
interest, and the police power would fail. To set such a limit
would need compensation and the power of eminent domain.
It sometimes is difficult to fix boundary stones between the
private right of property and the police power when, as in the case
at bar, we know of few decisions that are very much in point. But
it is recognized that the state, as
quasi-sovereign and
representative of the interests of the public, has a standing in
court to protect the atmosphere, the water, and the forests within
its territory, irrespective of the assent or dissent of the private
owners of the land most immediately concerned.
Kansas v.
Colorado, 185 U. S. 125,
185 U. S.
141-142,
s.c., 206 U. S. 206
U.S.
Page 209 U. S. 356
46,
206 U. S. 99;
Georgia v. Tennessee Copper Co., 206 U.
S. 230,
206 U. S. 238.
What it may protect by suit in this Court from interference in the
name of property outside of the state's jurisdiction, one would
think that it could protect by statute from interference in the
same name within. On this principle of public interest and the
police power, and not merely as the inheritor of a royal
prerogative, the state may make laws for the preservation of game,
which seems a stronger case.
Geer v. Connecticut,
161 U. S. 519,
161 U. S.
534.
The problems of irrigation have no place here. Leaving them on
one side, it appears to us that few public interests are more
obvious, indisputable, and independent of particular theory than
the interest of the public of a state to maintain the rivers that
are wholly within it substantially undiminished, except by such
drafts upon them as the guardian of the public welfare may permit
for the purpose of turning them to a more perfect use. This public
interest is omnipresent wherever there is a state, and grows more
pressing as population grows. It is fundamental, and we are of
opinion that the private property of riparian proprietors cannot be
supposed to have deeper roots. Whether it be said that such an
interest justifies the cutting down by statute, without
compensation, in the exercise of the police power, of what
otherwise would be private rights of property, or that, apart from
statute, those rights do not go to the height of what the defendant
seeks to do, the result is the same. But we agree with the New
Jersey courts, and think it quite beyond any rational view of
riparian rights that an agreement, of no matter what private
owners, could sanction the diversion of an important stream outside
the boundaries of the state in which it flows. The private right to
appropriate is subject not only to the rights of lower owners, but
to the initial limitation that it may not substantially diminish
one of the great foundations of public welfare and health.
We are of opinion, further, that the constitutional power of the
state to insist that its natural advantages shall remain
Page 209 U. S. 357
unimpaired by its citizens is not dependent upon any nice
estimate of the extent of present use or speculation as to future
needs. The legal conception of the necessary is apt to be confined
to somewhat rudimentary wants, and there are benefits from a great
river that might escape a lawyer's view. But the state is not
required to submit even to an aesthetic analysis. Any analysis may
be inadequate. It finds itself in possession of what all admit to
be a great public good, and what it has it may keep and give no one
a reason for its will.
The defense under the Fourteenth Amendment is disposed of by
what we have said. That under Article I, § 10, needs but a few
words more. One whose rights, such as they are, are subject to
state restriction cannot remove them from the power of the state by
making a contract about them. The contract will carry with it the
infirmity of the subject matter.
Knoxville Water Co. v.
Knoxville, 189 U. S. 434,
189 U. S. 438;
Manigault v. Springs, 199 U. S. 473,
199 U. S. 480.
But the contract the execution of which is sought to be prevented
here was illegal when it was made.
The other defenses also may receive short answers. A man cannot
acquire a right to property by his desire to use it in commerce
among the states. Neither can he enlarge his otherwise limited and
qualified right to the same end. The case is covered in this
respect by
Geer v. Connecticut, 161 U.
S. 519, and the same decision disposes of the argument
that the New Jersey law denies equal privileges to the citizens of
New York. It constantly is necessary to reconcile and to adjust
different constitutional principles, each of which would be
entitled to possession of the disputed ground but for the presence
of the others, as we already have said that it is necessary to
reconcile and to adjust different principles of the common law.
See Asbell v. Kansas, ante, p..
209 U. S. 251. The
right to receive water from a river through pipes is subject to
territorial limits by nature, and those limits may be fixed by the
state within which the river flows, even if they are made to
coincide with the state line. Within the boundary, citizens of New
York are as free
Page 209 U. S. 358
to purchase as citizens of New Jersey. But this question does
not concern the defendant, which is a New Jersey corporation. There
is nothing else that needs mention. We are of opinion that the
decision of the Court of Errors and Appeals was right.
Decree affirmed.
MR. JUSTICE McKENNA dissents.