This was a petition to recover damages because of the construction of a dike by the United States in the Ohio river at a point off Neville island, about nine miles west of the city of Pittsburg. The court of claims made the following findings of fact:
And upon these findings the court held, as a conclusion of law, that the claimant was not entitled to recover, and dismissed the petition.
The opinion of the court, by Weldon, J., discusses the case at length, citing many decisions, and maintains the conclusion on the grounds that the court had no jurisdiction; and that, if it had, there still could be no recovery, because the United States were not responsible to claimant for injuries suffered in the use and occupation of her property in consequence of the construction of the works. 29 Ct. Cl. 18.
F. H. N. McPherson, for appellant.
Asst. Atty. Gen. Dodge, for the United States.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.
All navigable waters are under the control of the United [166 U.S. 269, 272] States for the purpose of regulating and improving navigation, and although the title to the shore and submerged soil is in the various states, and individual owners under them, it is always subject to the servitude in respect of navigation created in favor of the federal government by the constitution. South Carolina v. Georgia, 93 U.S. 4 ; Shively v. Bowlby, 152 U.S. 1 , 14 Sup. Ct. 548; Trezevant v. Eldridge, 160 U.S. 452 , 16 Sup. Ct. 345.
In South Carolina v. Georgia, a proposed improvement of the Savannah river consisted of the practical closing of one channel around an island, and the throwing of water into other channels, to the substantial improvement of the harbor of Savannah. This court held that, in view of the general rule, although structures deemed by congress to be in aid of navigation might in fact be in obstruction of certain methods of navigation of the particular stream, their construction was, nevertheless, within the federal power; and Mr. Justice Strong, delivering the opinion of the court, said: 'It is not, however, to be conceded that congress has no power to order obstructions to be placed in the navigable waters of the United States, either to assist navigation or to change its direction by forcing it into one channel of a river rather than the other. It may build lighthouses in the bed of the stream. It may construct jetties. It may require all navigators to pass along a prescribed channel, and may close any other channel to their passage. If, as we have said, the United States have succeeded to the power and rights of the several states, so far as control over interstate and foreign commerce is concerned, this is not to be doubted. ... Upon this subject the case of Pennsylvania v. Wheeling & B. Bridge Co., 18 How. 421, is instructive. There it was ruled that the power of congress to regulate commerce includes the regulation of intercourse and navigation, and consequently the power to determine what shall or shall not be deemed, in the judgment of law, an obstruction of navigation. The Case of Clinton Bridge, 10 Wall. 454, is in full accord with this decision. It asserts plainly the power of congress to declare what is and what is not an illegal obstruction in a navigable stream.' [166 U.S. 269, 273] In Shively v. Bowlby, the leading authorimost of the courts of the United States and of most of the states, and of Great Britain, as to the character of the title to submerged land, are considered, and the conclusion announced that the title is in each state, with full power in the state legislature to confer it on individuals, subject at all times to the servitude of the federal government for regulation and improvement of navigation.
In Trezevant v. Eldridge, the doctrine existing in the state of Louisiana that lands abutting on the rivers and bayous were subject to a servitude in favor of the public, whereby such portions thereof as were necessary for the purpose of making and repairing public levees might be taken, in pursuance of law, without compensation, was fully recognized as enforceable notwithstanding the fourteenth amendment.
By the established law of Pennsylvania, as observed by Mr. Justice Gray in Shively v. Bowlby, 'the owner of lands bounded by navigable water has the title in the soil between high and low water mark, subject to the public right of navigation, and to the authority of the legislature to make public improvements upon it, and to regulate his use of it.'
The constitution of that state, prior to 1873, provided that no man's property could 'be taken or applied to public use without the consent of his representatives and without just compensation being made.'
In Navigation Co. v. Coons, 6 Watts & S. 101, plaintiff's mill site was destroyed by the backing up of water by a dam built by a canal company under authority of law for the improvement of navigation, and the supreme court of Pennsylvania held this to be a mere consequential damage resulting from the exercise of the public right to improve navigation; that it was damnum absque injuria; and that such flooding and injury did not amount to a taking, under the constitution.
In the opinion of the court it was stated by Chief Justice Gibson.
Numerous subsequent cases sustain the rule thus laid down, which is, indeed, the general rule upon the subject.
The Pennsylvania constitution of 1873 contained this additional provision: 'Municipal and other corporations and individuals, invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured, or destroyed, by the construction or enlargement of their works, highways, or improvements, which compensation shall be paid or secured before such [166 U.S. 269, 275] taking, injury, or destruction;' and in Railroad Co. v. Marchant, 119 Pa. St. 541, 13 Atl. 690, it was ruled that this had relation to such injuries to one's property as were the natural and necessary results of the original construction or enlargement of its works by a corporation, and not of their subsequent operation. Id., 153 U.S. 380 , 14 Sup.Ct. 894.
The fifth amendment to the constitution of the United States provides that private property shall not 'be taken for public use without just compensation.' Here, however, the damage of which Mrs. Gibson complained was not the result of the taking of any part of her property, whether upland or submerged, or a direct invasion thereof, but the incidental consequence of the lawful and proper exercise of a governmental power.
The applicable principle is expounded in Northern Transp. Co. v. Chicago, 99 U.S. 635 . In that case, plaintiff, being an owner of lands situated at the intersection of La Salle street, in Chicago, with the Chicago river, upon which it had valuable dock and warehouse accommodations, with a numerous line of steamers accustomed to land at that dock, was interrupted in its use thereof by the building of a tunnel under the Chicago river by authority of the state legislature, in accomplishing which work it was necessary to tear up La Salle street, which precluded plaintiff from access to its property for a considerable time; also to build a cofferdam in the Chicago river, which excluded its vessels from access to its docks; and such an injury was held to be damnum absque injuria. This court said, again speaking through Mr. Justice Strong: 'But acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the state or its agents, or give him any right of action. This is supported by an immense weight of authority. Those who are curious to see the decisions will find them collected in Cooley, Const. Lim. p. 542, and notes. The extremest quali- [166 U.S. 269, 276] fication of the doctrine is to be found, perhaps, in Pumpelly v. Green Bay Co., 13 Wall. 166, and in Eaton v. Railroad Co., 51 N. H. 504. In those cases it was held that permanent flooding of private property may be regarded as a 'taking.' In those cases there was a physical invasion of the real estate of the private owner, and a practical ouster of his possession. But in the present case there was no such invasion. No entry was made upon the plaintiff's lot. All that was done was to render for a time its use more inconvenient.'
Moreover, riparian ownership is subject to the obligation to suffer the consequences of the improvement of navigation in the exercise of the dominant right of the government in that regard. The legislative authority for these works consisted simply in an appropriation for their construction, but this was an assertion of a right belonging to the government, to which riparian property was subject, and not of a right to appropriate private property, not burdened with such servitude, to public purposes.
In short, the damage resulting from the prosecution of this improvement of a navigable highway, for the public good, was not the result of a taking of appellant's property, and was merely incidental to the exercise of a servitude to which her property had always been subject.