Depew v. Board of Trustees of the Wabash & Erie Canal

• Decision Date: 22 May 1854
• Parties: Depew v. The Board of Trustees of the Wabash and Erie Canal
• Court: Indiana Supreme Court

5 Ind. 25

Depew v. The Board of Trustees of the Wabash and Erie Canal

Supreme Court of Indiana

May 22, 1854

ERROR to the Parke Circuit Court.

The judgment is affirmed with costs.

Richard W. Thompson, for the plaintiff.

Addison L. Roache, for the defendants.

OPINION

Perkins J.

Case to recover damages for the obstruction of a navigable stream.

Depew the plaintiff, alleges that Raccoon creek, in Parke county Indiana, is, and has been, a navigable stream for boats, &c.; that he had been accustomed to navigate it, and make profits thereby, till, &c., when the Trustees of the Wabash and Erie canal obstructed it, &c.

The trustees pleaded that the legislature of the state located the Wabash and Erie canal; that they (the trustees) constructed said canal, by authority of law, upon the location made by the state; and that in doing so, it became necessary to cross said Raccoon creek by an aqueduct, which constitutes the obstruction complained of.

Demurrer to this plea overruled, and final judgment for the defendants.

This case leads to the examination of the subject of navigable rivers.

There are two classes of streams within and bordering upon Indiana which are called navigable streams and public highways. One of these classes is only navigable for certain kinds of craft, certain distances within the state, and is not visited by vessels coming from and going to, by continuous voyages, navigable waters of other states.

This class of streams has been generally declared navigable by the legislature. At present, county commissioners in the several counties are vested with the power of declaring streams navigable. R. S. 1852, vol 1., p. 373. [R. S. 1881, § 5795.] These streams are highways for trade and commerce within the state.

The other class of navigable streams is composed of those which are navigable, in fact, for vessels coming out of, and returning into, by continuous voyages, the navigable waters of other states. These streams are highways for commerce between the states.

Over the first of the above classes the state has exclusive jurisdiction, and may authorize obstructions of the streams of which it is composed, at pleasure, for the public good, and no action can be sustained on account of an obstruction so authorized; but if private property is taken or injured, it must be paid for as in other like cases. In the act of 1852, above referred to, the state has, accordingly, enacted that "the declaration of navigable water courses as navigable, by said county board, shall not affect any mill, nor any dam, aqueduct, viaduct, bridge, or machinery, which has been, or may hereafter be established on said stream."

Over the streams composing the second class, the state has, also, in the absence of congressional interference, jurisdiction equally supreme, so far as they are within her territorial limits. Wilson v. The Blackbird Creek Marsh Co., 2 Peters 245; The State of Pennsylvama v. The Wheeling Bridge Co., 13 Howard 518; Rundle et al. v. The Delaware and Raritan Canal Co., 14 id. 80.

But the national legislature may interfere and deprive the state of this jurisdiction. By the constitution of the United States, art. 1, section 8, congress has power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." This power to regulate commerce among the states includes the right to keep open and free the natural channels of that commerce. Gibbons v. Ogden, 9 Wheat. 1; The State of Pennsylvania v. The Wheeling Bridge Co., supra. When congress exercises this power, therefore, the previous power of the state to shut up, or materially obstruct said channels, is suspended.

Has congress exercised the power?

On the 13th of July, 1787, prior to the adoption of the constitution of the United States, the celebrated ordinance for the government of the territory northwest of the Ohio river was passed, containing, among a great many other stipulations, one providing that the navigable waters, &c., should be free, &c.

Afterwards, in September, 1787, was framed the constitution of the United States, which was subsequently ratified by the states, and which, as the states of the northwest entered into the confederacy under it, formed a new compact of government for them, and being later than the ordinance, superseded it, so far, at least, as to abrogate all restraints upon the powers of the states formed out of said northwestern territory, not existing upon the powers of the original states; and so we understand the Supreme Court of the United States, in Pollard's Lessee v. Hagan, 3 Howard, 212, to have unanimously decided. In other words, the states of this confederacy are equal under the constitution. Everything that one has power to do, each has power to do, so far as restraint from prior compact, or the general government, is concerned.

But, as has been said, congress has power, under the constitution, to regulate commerce between the states; and this power, as we have seen, includes that of keeping open and free the navigable rivers which are channels of this inter-state trade; and it is decided by the Supreme Court of the United States in Pollard's Lessee v. Hagan, and The State of Pennsylvania v. The Wheeling Bridge Co., supra, that congress has, by subsequent acts, so far recognized and adopted the provision of said ordinance of the 13th of July, 1787, in regard to navigable streams, as to give it the force of a subsisting law of the United States.

A state, then, can not seriously obstruct the navigation of those streams which are channels of inter-state trade, as congress has interfered to regulate commerce upon them.

It remains to inquire to which of the two classes of streams under consideration Raccoon creek, in Parke county, Indiana belongs. The declaration does not inform us. It avers simply that said creek is navigable, at the place of obstruction in ...