Robert Leovy v. United States
| Citation | 177 U.S. 621,44 L.Ed. 914,20 S.Ct. 797 |
| Decision Date | 14 May 1900 |
| Docket Number | No. 238,238 |
| Parties | ROBERT S. LEOVY, Petitioner , v. UNITED STATES |
| Court | United States Supreme Court |
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.
Messrs. Victor Leovy, Henry J. Leovy, and Alexander Porter Morse for petitioner.
Mr. George H. Gorman for respondent.
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:
'That it shall not be lawful to build any wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty, or structure of any kind outside established harbor lines, or in any navigable waters of the United States where no harbor lines are or may be established, without the permission of the Secretary of War, in any port, roadstead, haven, harbor, navigable river, or other waters of the United States, in such manner as shall obstruct or impair navigation, commerce, or anchorage of said waters, and it shall not be lawful hereafter to commence the construction of any bridge, bridge draw, bridge piers, and abutments, causeway, or other works over or in any port, road, roadstead haven, harbor, navigable river, or navigable waters of the United States, under any act of the legislative assembly of any state, until the location and plan of such bridge or other works have been submitted to and approved by the Secretary of War, or to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, the channel of said navigable water of the United States, unless approved and authorized by the Secretary of War: Provided, That this section shall not apply to any bridge, bridge draw, bridge piers, and abutments, the construction of which has been heretofore duly authorized by law, or be so construed as to authorize the construction of any bridge, draw bridge, bridge piers, and abutments, or other works, under an act of the legislature of any state, over or in any stream, port, roadstead, haven, or harbor, or other navigable water not wholly within the limits of such state.'
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:
'That it shall not be lawful to build any wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty, or structure of any kind outside established harbor lines, or in any navigable waters of the United States where no harbor lines are or may be established, without the permission of the Secretary of War, in any port, roadstead, haven, harbor, navigable river, or other waters of the United States, in such manner as shall obstruct or impair navigation, commerce, or anchorage of said waters; and it shall not be lawful hereafter to commence the construction of any bridge, bridge draw, bridge piers, and abutments, causeway, or other works over or in any port, road, roadstead, haven, harbor, navigable river, or navigable waters of the United States under any act of the legislative assembly of any sat e until the location and plan of such bridge or other works have been submitted to and approved by the Secretary of War, or to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of any port, roadstead, haven, harbor, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless approved and authorized by the Secretary of War: Provided, That this section shall not apply to any bridge, bridge draw, bridge piers, and abutments the construction of which has been heretofore duly authorized by law, or be so construed as to authorize the construction of any bridge, drawbridge, bridge piers, and abutments, or other works, under an act of the legislature of any state, over or in any stream, port, roadstead, haven, or harbor, or other navigable water not wholly within the limits of such state.'
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 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. ...
To continue reading
Request your trial
-
Southern Pacific Company v. Marie Jensen
...to navigation (Huse v. Glover, 119 U. S. 543, 548, 30 L. ed. 487, 490, 7 Sup. Ct. Rep. 313; Leovy v. United States, 177 U. S. 621, 625, 44 L. ed. 914, 916, 20 Sup. Ct. Rep. 797; Cummings v. Chicago, 188 U. S. 410, 427, 47 L. ed. 525, 530, 23 Sup. Ct. Rep. 472); inspection and quarantine law......
-
Pembroke v. Peninsular Terminal Co.
... ... westerly and southerly of the United States Property at Miami ... Beach,' there was incorporated a paragraph ... 'navigable waters of the United States,' see ... Leovy v. U. S., 177 U.S. 621, 20 S.Ct. 797, 44 L.Ed ... 914, which holds that ... ...
-
Minnehaha Creek Watershed Dist. v. Hoffman
...applied by the Supreme Court in cases involving federal power under the Commerce Clause. See, e. g., Leovy v. United States, 177 U.S. 621, 20 S.Ct. 797, 44 L.Ed. 914 (1900); Miller v. Mayor, Etc. of New York, 109 U.S. 385, 3 S.Ct. 228, 27 L.Ed. 971 (1883); Escanaba, Etc., Trans. Co. v. Chic......
-
United States v. Appalachian Electric Power Co
...L.Ed. 980. 12 United States v. Rio Grande Irrigation Co., 174 U.S. 690, 699, 19 S.Ct. 770, 773, 43 L.Ed. 1136; Leovy v. United States, 177 U.S. 621, 20 S.Ct. 797, 44 L.Ed. 914; Economy Light Co. v. United States, 256 U.S. 113, 117, 41 S.Ct. 409, 410, 65 L.Ed. 847; United States v. Holt Bank......
-
Wetlands, waterfowl, and the menace of Mr. Wilson: commerce clause jurisprudence and the limits of federal regulation.
...Service in the 1950s. Kent Jeffreys, Whose Lands Are Wetlands?, J. REG. & SOC. COSTS, Mar. 1992, at 35. (142) Leovy v. United States, 177 U.S. 621, 636 (143) Beck, supra note 137, at 781. (144) Kent Jeffreys notes that "[w]hatever they have been called, throughout most of American histo......
-
Addressing barriers to watershed protection.
...lands to states for reclamation and sale for private use, with proceeds to be used to build flood controls. See Leovy v. United States, 177 U.S. 621 (1900); Schad, supra, at 2-3; Dworsky Allee, supra note 87, at 32; Aquatic RESTORATION, supra note 2, at 41; ARNOLD, supra note 96, at 3, 5-6,......
-
Unbuilding a bridge to the twenty-first century: the Coast Guard, common sense, the law, and sustainable development.
...(1917) (holding that section 502 is a valid exercise of congressional power to regulate interstate commerce). (71) Leovy v. United States, 177 U.S. 621, 633 (72) See id. at 628-32 (discussing previous decisions that held "navigable waters" to be those waters capable of supporting commerce);......
-
No Net Loss? The Past, Present, and Future of Wetlands Mitigation Banking.
...of Environmental Law, UCSB Bren School of Environmental Science & Management and UCLA Law School. (1.) Leovy v. United States, 177 U.S. 621, 636 (2.) See John Copeland Nagle, From Swamp Drainage to Wetlands Regulation to Ecological Nuisances to Environmental Ethics, 58 Case W. Rsrv. L. ......