Congress, its power to regulate commerce among the states, and therefore navigation upon the water ways on and over which such commerce is conducted.

vious notice to the persons or corporations | to the exercise of an undoubted function of owning or controlling the bridge, specifying the United States, when exerting, through the changes recommended by the Chief of Engineers, and allowing a reasonable time in which to make them. If, at the end of such time, the required alterations have not been made, then the Secretary is required to bring the matter to the attention of the United States district attorney in order that criminal proceedings may be instituted to enforce the act of Congress. In the present case all the provisions of the statute were complied with. The parties concerned were duly notified and were fully heard. Nor is there any reason to say that the Secretary of War was not entirely justified, if not compelled, by the evidence, in finding that the bridge in question was an unreasonable obstruction to commerce and navigation as now conducted.

We are of opinion that the act in question is not unconstitutional as conferring upon the Secretary of War powers of such nature that they could not be delegated to him by Congress.

The next principal contention of the Bridge Company is that the act of 1899 is unconstitutional, in that it makes no provision, and the United States has not offered, to compensate it for the sum that will necessarily be expended in order to make the alterations or changes required by the order of the Secretary of War. In other words, the defendant insists that what the United States requires to be done in respect of defendant's bridge is a taking of private property for public use, which the government is forbidden by the Constitution to do without making just compensation to, or without making provision to justly compensate, the owner. Stating the question in another way, the contention is, in effect, that even if the United States did not expressly assent to the construction of this bridge as it is, and even if the bridge has become an unreasonable obstruction to the free navigation of the water way in question, the exertion of the power of the United States to regulate commerce among the states is subject to the fundamental condition that it cannot require the defendant, whose bridge was lawfully constructed, to make any alterations, however necessary to secure free navigation, without paying or securing to it compensation for the reasonable cost of such alterations.

It would seem clear that this issue has likewise been determined by the principles announced in the previous cases of this court. Let us see whether such be the fact. A leading case upon this subject is Gibson v. United States, 166 U. S. 269, 271, 41 L. ed. 996, 998, 17 Sup. Ct. Rep. 578, 579, et seq. Congress, by the river and harbor acts of 1884 and 1886 (23 Stat. at L. 133, 147, chap. 229, U. S. Comp. Stat. 1901, p. 3524, 24 Stat. at L. 316, 327, chap. 929), authorized and directed the improvement of the Ohio river, and made appropriations to effect that object. Under the authority of the Secretary of War, and the Engineer Corps of the Army, a dike was constructed in that river for the purpose of concentrating the water-flow in the main channel of the river, near Neville island. The dike began at a certain point on the island. Its construction substantially destroyed the landing on and in front of a farm, owned by Mrs. Gibson, on that island, preventing, during most of the year, free egress and ingress from and to such farm to the main or navigable channel of the river. At the time of the construction of the dike that farm was in a high state of cultivation, well improved, with a dwelling house, barn, and outbuildings. It had a frontage of a thousand feet on the main navigable channel, and the owner had a landing there which was used in the shipping of products from and supplies to her farm, and was the only one from which such products and supplies could be shipped. Before the construction of the dike the farm, by reason of the use to which it was put, was worth $600 per acre. The obstruction caused by the dike reduced its value to $150 or $200 per acre, resulting in damages to the owner in excess of $3,000. Suit was brought against the United States in the court of claims to recover such damages. That court found, as a conclusion of law, that the owner was not entitled to recover.

The Chief Justice of this court, delivering its unanimous judgment, said: "All navigable waters are under the control of the United States for the purpose of regulating and improving navigation, and although the title to the shore and submerged soil is in the various states and individual owners under them, it is always subject to the servitude in respect of navigation created in favor of the Federal government by the Constitution. South Carolina v. Geor

The propositions are combated by the government, which contends that the alterations or changes required to secure navigation against an unreasonable obstruction is not a taking of private property for public use within the meaning of the Constitution, and that the cost of such alterations or changes is to be deemed incidental only gia, 93 U. S. 4, 23 L. ed. 782; Shively v.

Bowlby, 152 U. S. 1, 38 L. ed. 331, 14 Sup. | which her property had always been subCt. Rep. 548; Eldridge v. Trezevant, 160 ject." U. S. 452, 40 L. ed. 490, 16 Sup. Ct. Rep. The Gibson Case was referred to with 345." After referring to several adjudged approval in Scranton v. Wheeler, 179 U. S. cases the court proceeded: "The 5th Amend- 141, 153, 162, 45 L. ed. 126, 133, 137, 21 Sup. ment to the Constitution of the United Ct. Rep. 48, 53, 57. The latter case involved States provides that private property shall the question whether the owner of land on not 'be taken for public use without just the St. Mary's river, in Michigan, was encompensation.' Here, however, the damage titled, under the Constitution of the United of which Mrs. Gibson complained was not States, to be compensated for the injury or the result of the taking of any part of her damage done him, as a riparian owner, by property, whether upland or submerged, or certain work done in that river under the a direct invasion thereof, but the incidental authority of the United States. The conconsequence of the lawful and proper exer- trolling question was whether the prohibicise of a governmental power. The applica- tion in the Constitution of the United States ble principle is expounded in Northern of the taking of private property for pubTransp. Co. v. Chicago, 99 U. S. 635, 25 L. lic use without just compensation has any ed. 336. In that case, plaintiff, being an application to the case of an owner of land owner of land situated at the intersection bordering on a public navigable river whose of La Salle street in Chicago, with the Chi- access from his land to navigability is percago river, upon which it had valuable dock manently lost by reason of the construction and warehouse accommodations, with a of a pier resting on submerged lands in numerous line of steamers accustomed to front of his upland, and which pier was land at that dock, was interrupted in his erected by the United States for the puruse thereof by the building of a tunnel un- pose only of improving the navigation of der the Chicago river by authority of the such river. After observing that when that state legislature, in accomplishing which which is done amounts, within the meaning work it was necessary to tear up La Salle of the Constitution, to a taking of private street, which precluded plaintiff from ac- property for public use, and that Congress cess to his property for a considerable time; may not, in the exercise of its power to also to build a coffer dam in the Chicago regulate commerce, override the provision river, which excluded his vessels from access for just compensation when private propto his docks; and such an injury was held erty is so taken, the court entered upon a to be damnum absque injuria. The court review of some of the adjudged cases. said, again speaking through Mr. Justice Among other things it said: "All the cases Strong: 'But acts done in the proper exer- concur in holding that the power of Concise of governmental powers, and not di- gress to regulate commerce, and therefore rectly encroaching upon private property, navigation, is paramount, and is unrestrictthough their consequences may impair its ed except by the limitations upon its auuse, are universally held not to be a taking thority by the Constitution. Of course, within the meaning of the constitutional every part of the Constitution is as binding provision. They do not entitle the owner of upon Congress as upon the people. The such property to compensation from the guaranties prescribed by it for the secustate or its agents, or give him any right of rity of private property must be respected action. This is supported by an immense by all. But whether navigation upon waters weight of authority.' . . . Moreover, ripar- over which Congress may exert its authorian ownership is subject to the obligation to ity requires improvement at all, or improvesuffer the consequences of the improvement ment in a particular way, are matters wholof navigation in the exercise of the dominantly within its discretion; and the judiciary right of the government in that regard. The legislative authority for these works consisted simply in an appropriation for their construction, but this was an assertion of a right belonging to the government, to which riparian property was subject, and not of a right to appropriate private property, not burdened with such servitude, to public purposes. In short, the damage resulting from the prosecution of this improvement of a navigable highway for the public good was not the result of a taking of appellant's property, and was merely incidental to the exercise of a servitude to

will of Congress, so long as that branch of is without power to control or defeat the the government does not transcend the limits established by the supreme law of the land. Is the broad power with which Congress is invested burdened with the condition that a riparian owner whose land borders upon a navigable water of the United States shall be compensated for his right of access to navigability whenever such right ceases to be of value solely in consequence of the improvement of navigation by means of piers resting upon submerged lands away from the shore line? We think not." "The primary use," the court

We are of opinion that the court below correctly held that the plaintiff had no such right of property in the submerged lands on which the pier in question rests as entitles him, under the Constitution, to be compensated for any loss of access from his upland to navigability resulting from the erection and maintenance of such pier by the United States in order to improve, and which manifestly did improve, the navigation of a public navigable water."

said, "of the waters and the lands under | of international and interstate commerce." them is for purposes of navigation, and the The court further said: "In our opinion, erection of piers in them to improve navi- it was not intended that the paramount gation for the public is entirely consistent authority of Congress to improve the navwith such use, and infringes no right of the igation of the public navigable waters of riparian owner. Whatever the nature of the United States should be "crippled by the interest of a riparian owner in the sub-compelling the government to make commerged lands in front of his upland border-pensation for the injury to a riparian owning on a public navigable water, his title er's right of access to navigability that is not as full and complete as his title to might incidentally result from an improvefast land which has no direct connection ment ordered by Congress. The subject with with the navigation of such water. It is a which Congress dealt was navigation. That qualified title, a bare technical title, not at which was sought to be accomplished was his absolute disposal, as is his upland, but simply to improve navigation on the waters to be held at all times subordinate to such in question so as to meet the wants of the use of the submerged lands and of the vast commerce passing and to pass over waters flowing over them as may be con- them. Consequently the agents designated sistent with or demanded by the public to perform the work ordered or authorized right of navigation. In Lorman v. Benson, by Congress had the right to proceed in all 8 Mich. 18, 22, 77 Am. Dec. 435, the supreme proper ways without taking into account court of Michigan, speaking by Justice the injury that might possibly or indirectly Campbell, declared the right of navigation result from such work to the right of acto be one to which all others were sub-cess by riparian owners to navigability. servient. . . . But the contention is that compensation must be made for the loss of the plaintiff's access from his upland to navigability incidentally resulting from the occupancy of the submerged lands, even if the construction and maintenance of a pier resting upon them be necessary or valuable in the proper improvement of navigation. We cannot assent to this view. If the riparian owner cannot enjoy access to navigability because of the improvement. of navigation by the construction away from the shore line of works in a public navigable river or water, and if such right of access ceases alone for that reason to be of value, there is not, within the meaning of the Constitution, a taking of private property for public use, but only a consequential injury to a right which must be enjoyed, as was said in Yates v. Milwaukee, 10 Wall. 497, 504, 505, 19 L. ed. 984, 986, 987, 'in due subjection to the rights of the public,'-an injury resulting incidentally from the exercise of a governmental power for the benefit of the general public, and from which no duty arises to make or secure compensation to the riparian owner. The riparian owner acquired the right of access to navigability subject to the contingency that such right might become valueless in consequence of the erection under competent authority of structures on the submerged lands in front of his property for the purpose of improving navigation. When erecting the pier in question, the government had no object in view except, in the interest of the public, to improve navigation. It was not designed arbitrarily or capriciously to destroy rights belonging to any riparian owner. What was done was manifestly necessary to meet the demands

In New Orleans Gaslight Co. v. Drainage Commission, 197 U. S. 453, 461, 462, 49 L. ed. 831, 835, 25 Sup. Ct. Rep. 471, 473, 474, it appeared that, under contract with the city of New Orleans, and at its own expense, the gaslight company had lawfully laid its pipes at certain places in the public ways and streets of that city. Subsequently, the drainage commission of New Orleans adopted a plan for the drainage of the city, which made it necessary to change the location in some places of the mains and pipes theretofore laid by the gaslight company. That company contended that to require such changes was a taking of its property for public use, for which it was entitled, under the Constitution, to compensation. That view was rejected by this court. We said: "The gas company did not acquire any specific location in the streets; it was content with the general right to use them, and when it located its pipes it was at the risk that they might be, at some future time, disturbed, when the state might require, for a necessary public use, that changes in location be made. The need of occupation of the soil beneath the streets in cities is constantly increasing, for the supply of water and light and the construction of systems of sewerage and drain

and a greater opening made under the bridge for the passage of the increased amount of water caused by the deepening and enlarging of the bed of the creek. The railway company was required, at its own cost, to construct such a bridge over the creek as would meet the necessities of the situation as it was or would be under the drainageplan of the commissioners. The company refused to obey the order. The contention of the railway company was that, as the bridge was lawfully constructed under its general corporate powers, and as the depth and width of the channel under it was sufficient, at the time, to carry off the water of the creek as it then and subsequently flowed, the foundation of the bridge could not be removed and its use of the bridge disturbed, unless compensation be first made or secured to the company in such amount as would be sufficient to meet the expense of removing the timbers and stones. from the creek and of constructing a new bridge of such length and with such opening under it as the plan of the commissioners would make necessary. The company insisted that to require it to meet these expenses out of its own funds would be, within the meaning of the Constitution, a taking of its property for public use without com

age, and every reason of public policy requires that grants of rights in such subsurface shall be held subject to such reasonable regulation as the public health and safety may require. There is nothing in the grant to the gas company, even if it could legally be done, undertaking to limit the right of the state to establish a system of drainage in the streets. We think whatever right the gas company acquired was subject, in so far as the location of its pipes was concerned, to such future regulations as might be required in the interest of the public health and welfare. These views are amply sustained by the authorities. National Waterworks Co. v. Kansas City, 28 Fed. 921, in which the opinion was delivered by Mr. Justice Brewer, then circuit judge; Columbus Gaslight & Coke Co. v. Columbus, 50 Ohio St. 65, 19 L.R.A. 510, 40 Am. St. Rep. 648, 33 N. E. 292; Jamaica Pond Aqueduct Corp. v. Brookline, 121 Mass. 5; Re Deering, 93 N. Y. 361; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 254, 41 L. ed. 979, 990, 17 Sup. Ct. Rep. 581. In the latter case it was held that uncompensated obedience to a regulation enacted for the public safety under the police power of the state was not taking property without due compensation. In our view, that is all there is to this case. The gas compensation, and, therefore, without due procpany, by its grant from the city, acquired ess of law. The court, after a review of no exclusive right to the location of its pipes authorities, said: "The constitutional rein the streets, as chosen by it, under a gen- quirement of due process of law, which emeral grant of authority to use the streets. braces compensation for private property The city made no contract that the gas taken for public use, applies in every casecompany should not be disturbed in the of the exertion of governmental power. If, location chosen. In the exercise of the po- in the execution of any power, no matter lice power of the state, for a purpose highly what it is, the government, Federal or state, necessary in the promotion of the public finds it necessary to take private property health, it has become necessary to change for public use, it must obey the constituthe location of the pipes of the gas company tional injunction to make or secure just so as to accommodate them to the new pub-compensation to the owner. Cherokee Nalic work. In complying with this require- tion v. Southern Kansas R. Co. 135 U. S. ment at its own expense none of the prop-641, 659, 34 L. ed. 295, 303, 10 Sup. Ct. Rep. erty of the gas company has been taken, 965; Sweet v. Rechel, 159 U. S. 380, 399, and the injury sustained is damnum absque 402, 40 L. ed. 188, 196, 197, 16 Sup. Ct. Rep. injuria." 43; Monongahela Nav. Co. v. United States, 148 U. S. 312, 336, 37 L. ed. 463, 471, 13 Sup. Ct. Rep. 622; United States v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349. If the means employed have no real substantial relation to public objects which government may legally accomplish,-if they are arbitrary and unreasonable, beyond the necessities of the case,-the judiciary will disregard mere forms, and interfere for the protection of rights injuriously affected by such illegal action. The authority of the courts to interfere in such casesis beyond all doubt. Minnesota v. Barber, 136 U. S. 313, 320, 34 L. ed. 455, 458, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep. 862, Upon the general subject there is no real

In Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 582, 593-595, 50 L. ed. 596, 605, | 609, 610, 26 Sup. Ct. Rep. 341, 345, 350, 351, the above cases were cited with approval, and the principles announced in them were applied against a railway company owning a bridge that had been lawfully constructed by it over a non-navigable creek running through certain swamp or slough lands which the drainage commissioners were required by statute to drain in order to make them tillable and fit for cultivation. The commissioners, in executing the work of draining, found it necessary that the creek over which the railway bridge was constructed should be deepened and enlarged.

is under a duty to comply with the demand made upon it to remove, at its own expense, the obstruction which itself has created and maintains. If the obstruction cannot be removed except by lowering the tunnel to the required depth and (if a tunnel is to be maintained) providing one that will not interrupt navigation, then the cost attendant upon such work must be met by the company. The city asks nothing more than that the railroad company shall do what is necessary to free navigation from an obstruction for which it is responsible, and (if it intends not to abandon its right to maintain a tunnel at or near Van Buren

conflict among the adjudged cases. Whatever conflict there is arises upon the question whether there has been or will be, in the particular case, within the true meaning of the Constitution, a 'taking' of private property for public use. If the injury complained of is only incidental to the legitimate exercise of governmental powers for the public good, then there is no taking of property for the public use, and a right to compensation, on account of such injury, does not attach under the Constitution. Such is the present case." The opinion concluded: "Without further discussion we hold it to be the duty of the railway company, at its own expense, to re-street) that it shall itself provide a new move from the creek the present bridge, culvert, timbers, and stones placed there by it, and also (unless it abandons or surrenders its right to cross the creek at or in the vicinity of the present crossing) to erect, at its own expense, and maintain, a new bridge for crossing that will conform to the regulations established by the drainage commissioners, under the authority of the state; and such a requirement, if enforced, will not amount to a taking of private property for public use within the meaning of the Constitution, nor to a denial of the equal protection of the laws."

tunnel with the necessary depth of water above it." Again: "In the case before us the public demands nothing to be done by the railroad company except to remove the obstruction which itself placed and maintains in the river under the condition that navigation should not at any time be thereby interrupted. The removal of such obstruction is all that is needed to protect navigation. So that whatever cost attends the removal of the obstruction must be borne by the railroad company. The condition under which the company placed its tunnel in the river being met by the comThe latest adjudication by this court was pany, the public has no further demands in West Chicago Street R. Co. v. Chicago, upon it. This cannot be deemed a taking 201 U. S. 506, 524, 50 L. ed. 845, 852, 26 of private property for public use, or a deSup. Ct. Rep. 518, 523. In that case the nial of the equal protection of laws within principal question related to the duty of a the meaning of the Constitution, but is only street railroad company, which had lawfully the result of the lawful exercise of a govconstructed a tunnel under the Chicago ernmental power for the common good. river, to obey an ordinance of the city, re- This appears from the authorities cited in quiring the company, at its own cost and Chicago, B. & Q. R. Co. v. Illinois, supra, expense, to lower its tunnel, so as to pro- just decided. The state court has well said vide for a certain depth under it, which had that to maintain the navigable character been ascertained by competent Federal and of the stream in a lawful way is not, withlocal authority to be necessary for the in- in the meaning of the law, the taking of creased demands of navigation. This court private property or any property right of held, upon the adjudged cases, that the the owner of the soil under the river, such rights of the company, as the owner of the ownership being subject to the right of free fee of the land on either side of the river and unobstructed navigation. People ex rel. or in its bed, were subject to the paramount Chicago v. West Chicago Street R. Co. 203 right of navigation over the waters of the Ill. 551, 557, 68 N. E. 78. What the city river. It said: "If, then, the right of the asks, and all that it asks, is that the railrailroad company to have and maintain a road company be required, in the exercise tunnel under the Chicago river is subject to of its rights and in the use of its property, the paramount public right of navigation; to respect the public needs as declared if its right to maintain a tunnel in the by competent authority, upon reasonable river is a qualified one, because subject to grounds, to exist. This is not an arbitrary the specific condition in the act of 1874 that or unreasonable demand. It does not, in no tunnel should interrupt navigation; if any legal sense, take or appropriate the the present tunnel is an obstruction to nav-company's property for the public benefit, igation, as, upon this record, we must take but only insists that the company shall it to be; and if the city, as representing not use its property so as to interrupt navithe state and public, may rightfully insist gation." that such obstruction shall not longer re- Do the principles announced in the above main in the way of free navigation,-it nec- cases require us to hold, in the present case, essarily follows that the railway company that the making of the alterations of its