United States v. Water Power Company No 783 Water Power Company v. United States No 784 Marys Power Company v. United States No 785 Clarence Brown v. United States No 786 786

Citation33 S.Ct. 667,57 L.Ed. 1063,229 U.S. 53
Decision Date26 May 1913
Docket NumberCHANDLER-DUNBAR,784,785,Nos. 783,s. 783
PartiesUNITED STATES, Plff. in Err., v. WATER POWER COMPANY et al. NO 783.WATER POWER COMPANY, Plff. in Err., v. UNITED STATES. NO 784. St. MARYS POWER COMPANY, Plff. in Err., v. UNITED STATES. NO 785. CLARENCE M. BROWN, Sole Receiver of the Michigan Lake Superior Power Company, Plff. in Err., v. UNITED STATES. NO 786. , and 786
CourtUnited States Supreme Court

[Syllabus from pages 53-55 intentionally omitted] These writs of error are for the purpose of reviewing a judgment in a condemnation proceeding instituted by the United States under the 11th section of an act of Congress of March 3, 1909, being chapter 264, 35 Stat. at L. pp. 815, 820, U. S. Comp. Stat. Supp. p. 1536. The section referred to is set out in the margin.1

The notice of condemnation required by the statute was duly given by the Secretary of War, and this pro- ceeding was instituted against all the corporations and persons supposed to have any interest in the property sought to be condemned. A jury was waived and the evidence submitted to the court, which, at the request of all the parties, made specific findings of fact and law.

By an agreement, the property of the International Bridge Company required by the government was acquired by deed, and later, in the progress of the case, the property of the Edison-Sault Electric Company involved in the proceeding was acquired by stipulation. This eliminates from the cases every question except those arising in respect to the compensation to be awarded to the Chandler-Dunbar Water Power Company, the St. Marys Power Company, and Clarence M. Brown, receiver of the Michigan Lake Superior Power Company. The final judgment of the court was:

1. That the ownership in fee simple absolute by the United States of all lands and property of every kind and description north of the present St. Marys Falls ship canal, throughout its entire length, and lying between the said ship canal and the international line at Sault St. Marie, in the state of Michigan, was necessary for the purposes of navigation of said waters and the waters connected therewith, as declared by the act of March 3, 1909.

The compensation awarded was as follows:

a. To the Chandler-Dunbar Company, $652,332. Of this $550,000 was the estimated value of the water power.

b. To the St. Marys Falls Power Company, $21,000.

c. To the Edison-Sault Electric Company, $300,000, which has, however, been settled by stipulation.

d. To the Michigan Lake Superior Powr Company, nothing.

From these awards the government, the Chandler-Dunbar Company, the St. Marys Falls Power Company, and the Michigan Lake Superior Power Company, have sued out writs of error.

The errors assigned by the United States challenge the allowance of any compensation whatever on account of any water power right claimed by any of the owners of the condemned upland, and also the principles adopted by the district court for the valuation of the upland taken. The several corporations, who have sued out writs of error, complain of the inadequacy of the award on account of water power claimed to have been taken, and also of the valuation placed upon the several parcels of upland condemned.

The errors assigned by the United States deny that any water power in which the defendants below had any private property right has been taken, and also deny the claim that riparian owners must be compensated for exclusion from the use of the water power inherent in the falls and rapids of the St. Marys river, whether the flow of the river be larger than the needs of navigation or not. The award of $550,000 on account of the claim of the Chandler-Dunbar Company to the undeveloped water power of the river at the St. Marys rapids in excess of the supposed requirements of navigation constitutes the prime question in the case, and its importance is increased by the contention of that company that the assessment of damages on that account is grossly inadequate and should have been $3,450,000.

Each of the several plaintiffs in error also challenge the awards made on account of the several parcels of upland taken,—the government insisting that the awards are excessive, and the owners, that they are inadequate.

Assistant to the Attorney General Fowler and Mr. Reeves T. Strickland for the United States.

Mr. William L. Carpenter for the St. Marys Power Company.

Messrs. Moses Hooper, A. B. Eldredge and John H. Goff for the Chandler-Dunbar Water Power Company.

Statement by Mr. Justice Lurton:

Mr. Justice Lurton, after making the foregoing statement, delivered the opinion of the court:

From the foregoing it will be seen that the controlling questions are, first, whether the Chandler-Dunbar Company has any private property in the water power capacity of the rapids and falls of the St. Marys river which has been 'taken,' and for which compensation must be made under the 5th Amendment to the Constitution; and, second, if so, what is the extent of its water power right and how shall the compensation be measured?

That compensation must be made for the upland taken is not disputable. The measure of compensation may in a degree turn upon the relation of that species of property to the alleged water power rights claimed by the Chandler-Dunbar Company. We therefore pass for the present the errors assigned which concern the awards made for such upland.

The technical title to the beds of the navigable rivers of the United States is either in the states in which the rivers are situated, or in the owners of the land bordering upon such rivers. Whether in one or the other is a question of local law. Shively v. Bowlby, 152 U. S. 1, 31, 38 L. ed. 331, 343, 14 Sup. Ct. Rep. 548; Philadelphia Co. v. Stimson, 223 U. S. 605, 624, 632, 56 L. ed. 570, 578, 581, 32 Sup. Ct. Rep. 340; Scott v. Latting, 227 U. S. 229, 57 L. ed.——, 33 Sup. Ct. Rep. 242. Upon the admission of the state of Michigan into the Union the bed of the St. Marys river passed to the state, and under the law of that state the conveyance of a tract of land upon a navigable river carries the title to the middle thread. Webber v. Pere Marquette Boom Co. 62 Mich. 626, 30 N. W. 469; Scranton v. Wheeler, 179 U. S. 141, 163, 45 L. ed. 126, 137, 21 Sup. Ct. Rep. 48; United States v. Chandler-Cunbar Water Power Co. 209 U. S. 447, 52 L. ed. 881, 28 Sup. Ct. Rep. 579.

The technical title of the Chandler-Dunbar Company, therefore, includes the bed of the river opposite its upland on the bank to the middle thread of the stream, being the boundary line at that point between the United States and the Dominion of Cannada. Over this bed flows about two thirds of the volume of water constituting the falls and rapids of the St. Marys river. By reason of that fact, and the ownership of the shore, the company's claim is, that it is the owner of the river and of the inherent power in the falls and rapids, subject only to the public right of navigation. While not denying that this right of navigation is the dominating right, yet the claim is that the United States, in the exercise of the power to regulate commerce, may not exclude the rights of riparian owners to construct in the river and upon their own submerged lands such appliances as are necessary to control and use the current for commercial purposes, provided only that such structures do not impede or hinder navigation, and that the flow of the stream is not so diminished as to leave less than every possible requirement of navigation, present and future. This claim of a proprietary right in the bed of the river and in the flow of the stream over that bed, to the extent that such flow is in excess of the wants of navigation, constitutes the ground upon which the company asserts that a necessary effect of the act of March 3, 1909, and of the judgment of condemnation in the court below, is a taking from it of a property right or interest of great value, for which, under the 5th Amendment, compensation must be made.

This is the view which was entertained by Circuit Judge Dennison in the court below, and is supported by most careful findings of fact and law and an elaborate and able opinion. The question is therefore one which, from every standpoint, deserves careful consideration.

This title of the owner of fast land upon the shore of a navigable river to the bed of the river is, at best, a qualified one. It is a title which inheres in the ownership of the shore; and, unless reserved or excluded by implication, passed with it as a shadow follows a substance, although capable of distinct ownership. It is subordinate to the public right of navigation, and however helpful in protecting the owner against the acts of third parties, is of no avail against the exercise of the great and absolute power of Congress over the improvement of navigable rivers. That power of use and control comes from the power to regulate commerce between the states and with foreign nations. It includes navigation and subjects every navigable river to the control of Congress. All means having some positive relation to the end in view which are not forbidden by some other provision of the Constitution are admissible. If, in the judgment of Congress, the use of the bottom of the river is proper for the purpose of placing therein structures in aid of navigation, it is not thereby taking private property for a public use, for the owner's title was in its very nature subject to that use in the interest of public navigation. If its judgment be that structures placed in the river and upon such submerged land are an obstruction or hindrance to the proper use of the river for purposes of navigation, it may require their removal and forbid the use of the bed of the river by the owner in any way which, in its judgment, is injurious to the dominant right of navigation. So, also, it may permit the construction and maintenance of tunnels under or...

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