[177 U.S. 621, 622] At the April term of the circuit court of the United States for the eastern district of Louisiana an indictment was found, charging Augustus F. Leovy and Robert S. Leovy, both of the parish of Plaquemines, state of Louisiana, with, on the 16th of November, 1895, unlawfully, wilfully, knowingly, and without permission of the Secretary of War, building and causing to be built a dam in and across a certain navigable stream of the United States known as Red Pass, and outside of any established harbor lines, which said Red Pass flows in the Gulf of Mexico from a certain navigable stream of the United States, known as the Jump, which said Jump is an outlet of the Mississippi river into the Gulf of Mexico; that said dam has been continued by the defendants since the same was built, and still remains in and across said Red Pass, whereby the navigation of and commerce over and through Red Pass was then and there, and has been ever since, impaired and obstructed; they, the said defendants, well knowing the said Red Pass to be a navigable stream of the United States, in respect of which the United States then and there had jurisdiction, contrary to the form of the statute of the United States in such case made and provided, and against the peace and dignity of the United States.
The defendants entered a plea of not guilty; and the cause was tried before the district judge, and a jury. The trial resulted, June 6, 1891, in a verdict of not guilty as to Augusts F. Leovy, and of guilty as to Robert S. Leovy; whereupon it was adjudged that said Robert S. Leovy pay a fine of $200 and costs of prosecution.
Several bills of exception on behalf of Robert S. Leovy were seasonably presented, and signed and allowed by the trial judge, who likewise, on June 16, 1898, allowed a writ of error, and the cause was taken to the United States circuit court of appeals for the fifth district, which court, on February --, 1899, affirmed the judgment of the circuit court.
The case was then brought to this court on a writ of certiorari to the United States circuit court of appeals for the fifth circuit. [177 U.S. 621, 623] Messrs. Victor Leovy, Henry J. Leovy, and Alexander Porter Morse for petitioner.
Mr. George H. Gorman for respondent.
Mr. Justice Shiras delivered the opinion of the court:
On March 2, 1849, the Congress of the United States by an act of that date, entitled 'An Act to Aid the State of Louisiana in Draining the Swamp Lands therein,' enacted: 'That to aid the state of Louisiana in constructing the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands, which may be or are found unfit for cultivation, shall be, and the same are, hereby granted to that state.' 9 Stat. at L. 352, chap. 87.
Similar grants have been made by Congress to other states within whose boundaries were undrained swamp and overflowed lands belonging to the United States. Act of September 28, 1850 (9 Stat. at L. 519, chap. 84). This legislation declares a public policy on the part of the government to aid the states in reclaiming swamp and overflowed lands unfit for cultivation in their netural state, and is a recognition of the right and duty of the respective states, in consideration of such grants, to make and maintain the necessary improvements.
By the act of September 19, 1890 (26 Stat. at L. 454, chap. 907), it is provided:
The tenth section of the same act provided as follows:
In the river and harbor act of 1892 (27 Stat. at L. pp. 88, 110, chap. 158), section 7 of the act of 1890 was amended and re-enacted so as to read as follows:
Subject, then, to the paramount jurisdiction of Congress over the navigable waters of the United States, the state of Louisiana has full power to authorize the construction and maintenance of levees, drains, and other structures necessary and suitable to reclaim swamp and overflowed lands within her limits. The pivotal question in the present case is whether Red Pass is a navigable water of the United States in such a sense that a dam erected therein for the purpose, and with the effect, of reclaiming overflowed lands and rendering them fit for cultivation, could be constructed without the previous authorization of the Secretary of War, it being admitted that no such authority was ever applied for or procured.
Evidence was tendered, on behalf of the defendants, tending to show that the dam in question was built by Robert S. Leovy, [177 U.S. 621, 626] who was the syndic or official of the contiguous ward, in pursuance of a resolution of the police jury of the parish of Plaquemines, dated July 1, 1890, directing such syndic to have Red Pass closed, and also tending to show an approval and ratification of the work by the levee board of the district and by the policy jury at a meeting held February 8, 1898, and a direction to the attorney of the board to take such steps as should be necessary to prevent said Red Pass from being reopened. Some of these offers were rejected by the trial court, and exceptions were taken by the defendants. It is evident, however, that the court rejected the offers only because it was the opinion of the court that such evidence was immaterial, inasmuch as if Red Pass was not a navigable water of the United States, within the meaning of the statutes, the defendants would be entitled to a verdict of not guilty, regardless of the action of the police jury and of the levee board, and if Red Pass was such a navigable stream, the action of the state or parish authorities, unauthorized by the Secretary of War, would not avail the defendants. Indeed, the trial judge, in his charge, instructed the jury as if the evidence had been admitted, in the following terms:
We think, therefore, that we are warranted in regarding the dam in question as constructed under the police ow er of the state, and within the terms and purpose of the grant by Congress. There was evidence tending to show the character of [177 U.S. 621, 627] the country affected by floods from Red Pass-that it was swamp land and sea marsh from the Mississippi river to the gulf. The testimony inclosed in the record, of Shoenberger, president of the police jury and of the levee board; of Lewis, of the state board of engineers; of Wilkerson, ex- president of levee board; and of De Armas,-showed that the closing of this pass has resulted in the redemption of large tracts of land, greatly increasing their value; that the property in the fifth ward, before Red Pass and Spanish Pass were closed, was valued at $5,000, and at this time it is valued at $100,000; and that if those passes are kept closed for five years more it will be three times as much; and that, if this pass be opened again, by the removal of the dam, the orange property will be ruined.
It is conceded that Red Pass is not a natural stream, but is in the nature of a crevasse, caused by the overflow of water from the Mississippi river. This crevasse seems to have been formed some time before the grant by the United States to Louisiana, and the fact that by this and similar breaks through the banks of the river large tracts of land were rendered worthless, was, it may be assumed, well known to Congress, and was, indeed, the actuating cause of the grant.
As respects navigation through Red Pass, there was some evidence, on the part of the government, that small luggers or yawls, chiefly used by fishermen to carry oysters to and from their beds, sometimes went through this pass; but it was not shown that passengers were ever carried through it, or that freight destined to any other state than Louisiana, or, indeed, destined for any market in Louisiana, was ever, much less habitually, carried through it.
The evidence on the part of the defendants showed that for many years these crevasses or passes have been steadily growing shallower and narrower, and that at the time of closing Red Pass few of the smallest craft attempted to pass through it, and that the so-called mouth, or end of Red Pass next the gulf, had closed up and become a mere marsh. The trifling use that was made of that pass was restricted to the river end of the crevasse.
We cannot accept the contention of the government's counsel [177 U.S. 621, 628] that, because the jury was left to determine whether the pass was in fact navigable, and found the defendant guilty, the decision of the jury is binding upon the appellate court. We have a right to consider under what instructions and definitions, given by the trial court, the jury found their verdict.
Before we examine the charge of the court, we shall briefly review some of the cases from which may be derived a definition of 'navigable waters of the United States,' within the meaning of the statutes under which this indictment was brought.
In the case of Boykin v. Shaffer, 13 La. Ann. 131, it was said by the supreme court of the state of Louisiana:
In the case of Egan v. Hart, 45 La. Ann. 1358, 14 So. 244, there was considered the right of the board of state engineers of the state of Louisiana to build a dam across an alleged stream, designated as Bayou Pierre. It was alleged that it was a purely private undertaking which the board of state engineers was not authorized todo at public expense, and that the dam would obstruct the navigation of Bayou Pierre, and would therefore violate the statute of Congress which forbade the construction of any bridge or other works over or in any navigable waters of the United States, unless approved by the Secretary of War. The trial judge, as to the contention that Bayou Pierre was a navigable stream, said:
And accordingly it was found by the trial court that Bayou Pierre was not a navigable water of the United States. Its judgment was affirmed by the supreme court of Louisiana, and the case was brought to this court and the judgment of the court below affirmed. Egan v. Hart, 165 U.S. 188 , 41 L. ed. 680, 17 Sup. Ct. Rep. 300.
In Lake Shore & M. S. R. Co. v. Ohio, 165 U.S. 365 , 41 L. ed. 747, 17 Sup. Ct. Rep. 357, a judgment of the supreme court of Ohio, affirming a judgment of a trial court, ordering the defendant, an Ohio corporation, to absolutely remove a bridge or modify its structure over the Ashtabula river, a stream wholly within the state of Ohio, was brought to and affirmed by this court. The case was thus stated in the opinion delivered by Mr. Justice White:
After quoting the language of the statute, the opinion proceeded:
In the case of The Daniel Ball, 10 Wall. 563, sub nom. The Daniel Ball v. United States, 19 L. ed. 1001, the following definition of the term 'navigable waters' was espressed:
In the case of The Montello, 20 Wall. 441, sub nom. United States v. The Montello, 22 L. ed. 394, the following language was used:
In Withers v. Buckley, 20 How. 84, 15 L. ed. 816, this court said:
While, therefore, it may not be easy for a court to define the size and character of a stream which would place it within the category of 'navigable waters of the United States,' or to define what traffic shall constitute 'commerce among the states,' so as to make such questions sheer matters of law, yet, in construing the legislation involved in the case before us, we may be permitted to see that it was not the intention of Congress to interfere with or prevent the exercise by the state of Louisiana of its power to reclaim swamp and overflowed lands by regulating and controlling the current of small streams not used habitually as arteries of interstate commerce.
The trial judge instructed the jury as follows:
If these instructions were correct, then there is scarcely a creek or stream in the entire country which is not a navigable water of the United States. Nearly all the streams on which a skiff or small lugger can float discharge themselves into other streams or waters flowing into a river which traverses more than one state, and the mere capacity to pass in a boat of any size, however small, from one stream or rivulet to another, the jury is informed, is sufficient to constitute a navigable water of the United States.
Such a view would extend the paramount jurisdiction of the United States over all the flowing waters in the states, and would subject the officers and agents of a state, engaged in constructing levees to restrain overflowing rivers within their banks, or in regulating the channels of small streams for the purposes of internal commerce, to fine and imprisonment, unless premission be first obtained from the Secretary of War. If such were the necessary construction of the statutes here involved, their validity might well be questioned. But we do not so understand the legislation of Congress. When it is remembered that the source of the power of the general government to act at all in this matter arse out of its power to regulate commerce with foreign countries and among the states, it is obvious that what the Constitution and the acts of Congress have in view is the promotion and protection of commerce in its international and interstate aspect, and a practical construction must be put on these enactments as intended for such large and important purposes.
We also think that these instructions are open to the further [177 U.S. 621, 634] eriticism that they contain no reference to the nature or extent of the traffic or trade carried on in Red Pass before the erection of the dam. Indeed, the charge necessarily implies that the defendant was guilty if there was merely a capacity for passing from Red Pass into the Mississippi river on any sort of a boat. Very different was the view expressed by Chief Justice Shaw when he said it is not 'every small creek in which a fishing skiff or gunning canoe can be made to float at high water, which is deemed navigable.' But in order to give it the character of a navigable stream it must be generally and commonly useful to some purpose of trade or agriculture. [Rowe v. Granite Bridge Corp.] 21 Pack. 344.
We have read the testimony offered on behalf of the United States to show the kind and extent of the navigation of the Red Pass, and there is no view we can take of it that warranted the jury in finding that interstate commerce was ever transacted thereon. A few fishermen testified that they occasionally went through this pass with small vessels, carrying oysters for planting, and one or two cargoes of willows and timber were spoken of. None of these witnesses pretended to have carried produce or oysters out of the state. Nor can it be contended that the Red Pass, at the time the dam was built, was open to the gulf. It was shown that the gulf end of the pass had closed up, so that toget to the sea it was necessary to go out of Red Pass into Tiger Pass, Tontine Pass, and Grand Pass, which are open to the gulf. And accordingly the trial judge instructed the jury that it was not necessary, in order to find Red Pass to be a navigable water of the United States, that they should find that it was navigable out to the gulf; that it was sufficient if boats could reach the Mississippi river.
We think the defendant was entitled to the instruction asked for, but refused, that the jury should be satisfied from the evidence that Red Pass was at the time it was closed, as alleged in the indictment, substantially useful to some purpose of interstate commerce. The instrument actually given was as follows:
It is plain, therefore, that the attention of the jury was not directed at all to the question of any existing interstate commerce, and that the learned judge was of opinion, and so ruled, that the physical possibility of passing by a boat out of Red Pass into the Mississippi river constituted the pass a navigable water of the United States.
The court refused to give the following instruction:
Perhaps this instruction ought to have bee q ualified or accompanied by a prayer that the acts of Congress relied on by the government were not applicable to the case suggested in the instruction asked for. But we think, in the circumstances disclosed by the evidence, the instruction should have been given, at least as so qualified.
The circuit court of appeals, in dealing with the error assigned for the refusal of the trial judge to so charge, said [92 Fed. Rep. 334, 34 C. C. A. 392]:
We think that the trial court might well take judicial notice that the public health is deeply concerned in the reclamation of swamp and overflowed lands. If there is any fact which may be supposed to be known by everybody, and therefore by courts, it is that swamps and stagnant waters are the cause of malarial and malignant fevers, and that the police power is never more legitimately exercised than in removing such nuisances. The defendant was not deprived of the defense that the act which he was charged with was performed in order to promote the health of the community, by the fact, if fact it was, that the order under which he acted did not say anything about the subject of health, but simply authorized the erection of the dam, so as to exclude the overflow from the river.
Nor are we disposed to concur in the doubt expressed whether any navigable water wholly within the limits of a state can be closed under the exercise of the police power for any purpose whatever. Such a doubt might be justified if there was express legislation of the United States forbidding the act proposed. But, as we have seen, in the present case the reclamation of swamp and overflowed lands was not only not forbidden, but was frcognized as the duty of the state, in consideration of the grant of the public lands. And, for the reasons already given, we do not construe the acts of Congress under which this indictment was brought as intended to apply to the case of a stream of the history and character disclosed in this record. Hence, the state authorities were left free to act in such a manner as they thought fit to promote the health and prosperity of the people concerned.
It can scarcely be contended that if, by a sudden breach of the banks of the Mississippi river in the lowlands of Louisiana, a stream of water across agricultural lands was created, endangering the health and welfare of the inhabitants, that the case [177 U.S. 621, 637] would be within the meaning and operation of the acts of Congress relied on in this case. It may be that in such a case, if the state declines to act or, rather, permits such a stream to become a highway of commerce among the states, the Federal control over it might attach. Thus Grand Pass, of which Red Pass is a branch, might, in view of the volume of its water and of the nature and amount of the commerce carried on it, be held to be a navigable water of the United States. However that may be, our conclusion, upon the record now before us, is that Red Pass, in the condition it was at the time when this dam was built, was not shown by adequate evidence to have been a navigable water of the United States, actually used in interstate commerce, and that he court should have charged the jury, as requested, that, upon the whole evidence adduced, the defendants were entitled to a verdict of acquittal.
It is claimed by the counsel for the plaintiff in error that the act of July 13, 1892, so far amended and repealed the act of September 19, 1890, that the penal section of the latter was repealed, and that hence, as no penalty is provided in the act of 1892, the indictment and conviction of the plaintiff in error was without authority of law. It is also contended that the policy of Congress in respect to the authority of the Secretary of War in the matter of obstruction to navigation, has been greatly changed and modified by the act of March 3, 1889. Fifty-fifth Cong ., Session 3 [30 Stat. at L.] chap. 425, 9, p. 1151
It is also suggested that whatever may be the powers of Congress over streams wholly within a state, they cannot be legitimately enforced by criminal prosecution of officers and agents of the state for acts done under state authority, but that, in such cases, the proper remedy would be found in bills in equity.
But in the view we take of the case in hand, we are not called upon to express any opinion on such questions.
The judgment of the circuit court of appeals is reversed, the judgment of the circuit court is likewise reversed, and the cause is remanded to that court, with directions to award a new trial.