243 U.S. 316 (1916), United States v. Cress

Citation:243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746
Party Name:United States v. Cress
Case Date:March 12, 1917
Court:United States Supreme Court

Page 316

243 U.S. 316 (1916)

37 S.Ct. 380, 61 L.Ed. 746

United States



United States Supreme Court

March 12, 1917




The servitude to the interests of navigation of privately owned lands forming the banks and bed of a stream is a natural servitude, confined to such streams as in their ordinary and natural condition are susceptible of valuable public use in navigation, and confined to the natural condition of such streams.

When navigable streams affording ways of commerce between states are improved by the federal government by means of locks and dams which raise the water above its natural level, the streams as thus improved remain navigable waters of the United States for all purposes of federal jurisdiction and regulation.

The power of the federal government to improve navigable streams in the interest of interstate and foreign commerce must be exercised, when private property is taken, in subordination to the Fifth Amendment.

In improving the navigation of the Cumberland River, in Kentucky, under the commerce power, the federal government, by means of a lock and dam, raised the water above the natural level so that lands on a nonnavigable tributary, not normally invaded thereby, were subjected permanently to periodical overflows substantially injuring, though not destroying, their value. Held, in an action for damages under § 24 of the Judicial Code (derived from the Tucker Act):

(1) That this amounted to a partial taking of the property.

(2) That the United States was liable ex contractu to compensate the owner to the extent of the injury.

(3) That, upon payment, the United States would acquire an easement to overflow the land as often as would necessarily result from the use of the lock and dam for navigation, the fee, however, remaining in the private owner.

(4) That the riparian owner also was entitled to compensation for impairment of the value of his land caused by the destruction of a

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ford over the tributary used in connection with a private way appurtenant to the land.

A like improvement of the Kentucky River, in Kentucky, by raising its water above natural level raised in like manner the water in a nonnavigable tributary on which were a privately owned mill and millsite, thus ending the usefulness of the mill by doing away with the head of water necessary to run it. Held that the mill owner, to whom also, under the law of Kentucky, belonged the bed of the tributary with the right to have the water flow there free from artificial obstruction, was entitled ex contractu to recover from the United States an amount equal to the depreciation of the mill property resulting from the loss of water power.

The right to have the water of a nonnavigable stream flow away from riparian land without artificial obstruction is not a mere easement or appurtenance, but exists by the law of nature as an inseparable part of the land itself.

Section 152 of the Judicial Code, permitting costs against the United States in claims cases, although appearing in the chapter entitled "The Court of Claims," is not confined to cases in that court, but applies also when the district court is exercising concurrent jurisdiction under § 24. This conclusion results from a consideration of the Tucker Act, of March 3, 1887, c. 359, 24 Stat. 505, and §§ 294 and 295 of the Code, read in connection with the repealing section, 297.

The cases are stated in the opinion.

PITNEY, J., lead opinion

MR. JUSTICE PITNEY delivered the opinion of the Court.

These cases were argued together, involved similar questions, and may be disposed of in a single opinion. They were actions brought in the district court by the respective defendants in error against the United States under

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the 20th paragraph of § 24, Judicial Code (Act of March 3, 1911, c. 231, 36 Stat. 1087), to recover compensation for the taking of lands and water rights by means of backwater resulting from the construction and maintenance by the government of certain locks and dams upon the Cumberland and Kentucky Rivers, respectively, in the State of Kentucky, in aid of the navigation upon those rivers.

In No. 84, the findings of the district court are, in substance, that at the time of the erection of Lock and Dam No. 21 in the Cumberland River, the plaintiff was the owner of 189 acres of land on Whiteoak Creek, a tributary of the Cumberland, not far distant from the river; that, by reason of the erection of the lock and dam, six and six-tenths acres of this land are subject to frequent overflows of water from the river, so as to depreciate it one half of its value, and a ford across Whiteoak Creek and a part of a pass-way are destroyed; that the six and six-tenths acres were worth $990, and the damage thereto was $495; that the damage to the land by the destruction of the ford was $500, and that plaintiff was entitled to recover the sum of $995. It may be supposed that Whiteoak Creek was not a navigable stream, but there is no finding on the subject.

In No. 718, the findings are to the effect that, at the time of the erection by the government of Lock and Dam No. 12 in the Kentucky River, the plaintiffs, together with another person who was joined as a defendant, were the owners and in possession of a tract of land situate on Miller's Creek, a branch of the Kentucky, containing five and one-half acres, upon which there were a mill and a mill seat; that, by reason of the erection of the lock and dam, the mill no longer can be driven by water power; that the water above the lock and dam, when it is at pool stage, is about one foot below the crest of the milldam, and this prevents the drop in the current that is necessary to run

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the mill; that no part of the land or mill is overflowed or covered by pool stage of water, nor is the mill physically damaged thereby; that Miller's Creek is not a navigable stream; that the damages sustained by the owners of the mill, representing depreciation of the value of the mill property by cutting off the water power, amount to $1,500.

Judgments were entered in favor of the respective landowners for the sums mentioned in the findings, together with interest and the costs of the suits, and the United States appealed to this Court.

(1) A fundamental contention made in behalf of the government, and one that applies to both cases, is that the control by Congress, and the Secretary of War acting for it, over the navigation of the Cumberland and Kentucky Rivers must also include control of their tributaries, and that, in order to improve navigation at the places mentioned in the findings, it was necessary to erect dams and back up the water, and the right to do this must include also the right to raise the water in the tributary streams.

In passing upon this contention, we may assume, without, however, deciding, that the rights of defendants in error are no greater than if they had been riparian owners upon the rivers, instead of upon the tributary creeks.

The states have authority to establish for themselves such rules of property as they may deem expedient with respect to the streams of water within their borders, both navigable and nonnavigable, and the ownership of the lands forming their beds and banks (Barney v. Keokuk, 94 U.S. 324, 338; Packer v. Bird, 137 U.S. 661, 671; Hardin v. Jordan, 140 U.S. 371, 382; Shively v. Bowlby, 152 U.S. 1, 40, 58; St. Anthony Falls Water Power Co. v. St. Paul Water Commissioners, 168 U.S. 349, 358), subject however, in the case of navigable streams, to the paramount authority of Congress to control the navigation so far as may be necessary for the regulation of commerce

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among the states and with foreign nations (Shively v. Bowlby, 152 U.S. 1, 40; Gibson v. United States, 166 U.S. 269, 272; Scott v. Lattig, 227 U.S. 229, 243); the exercise of this authority being subject, in its turn, to the inhibition of the Fifth Amendment against the taking of private property for public use without just [37 S.Ct. 382] compensation (Monongahela Navigation Co. v. United States, 148 U.S. 312, 336; United States v. Lynah, 188 U.S. 445, 465, 471).

The State of Kentucky, like most of the states of the Union, determines the navigability of her streams, so far as the public right is concerned, not by the common law test of the ebb and flow of the tide -- manifestly inapplicable in a state so wholly remote from the sea -- but by the test of navigability in fact (Thurman v. Morrison, 53 Ky. 367; Morrison v. Thurman, 56 Ky. 249; Goodin v. Kentucky Lumber Co., 90 Ky. 625; Murray v. Preston, 106 Ky. 561, 564; Banks v. Frazier, 111 Ky. 909, 912; Ireland v. Bowman, 130 Ky. 153, 161), while sustaining private ownership of the beds of her streams, both navigable and nonnavigable, according to the common law rule (Berry v. Snyder, 66 Ky. 266, 273, 277; Miller v. Hepburn, 71 Ky. 326, 331; Williamsburg Boom Co. v. Smith, 84 Ky. 372, 374; Wilson v. Watson, 141 Ky. 324, 327; Robinson v. Wells, 142 Ky. 800, 804), with incidental rights to flow of the stream in its natural state (Anderson v. Cincinnati Southern R. Co., 86 Ky. 44, 48).

The general rule that private ownership of property in the beds and waters of navigable streams is subject to the exercise of the public right of navigation, and the governmental control and regulation necessary to give effect to that right, is so fully established, and is so amply illustrated by recent decisions of this Court, that a mere reference to the cases will suffice. Scranton v. Wheeler,

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179 U.S. 141, 163; Philadelphia Co. v. Stimson, 223 U.S. 605, 634; United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 62; Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U.S. 82, 85-88; Greenleaf-Johnson Lumber Co. v. Garrison, 237 U.S. 251, 268; Willink v. United States, 240 U.S. 572, 580.

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