237 U.S.

251
35 S.Ct. 551
59 L.Ed. 939

GREENLEAF-JOHNSON LUMBER COMPANY, Appt.,

v.
LINDLEY M. GARRISON, Secretary of War, and Henry S.
Breckenridge, Assistant Secretary of War of the United States.
No. 678.
Argued February 24 and 25, 1915.
Decided April 12, 1915.

Messrs. J. L. Jeffries and L. D. Starke for appellant.

[Argument of Counsel from page 252 intentionally omitted]
Assistant Attorney General Underwood for appellees.
[Argument of Counsel from page 253 intentionally omitted]
Mr. Justice McKenna delivered the opinion of the court:

Suit for injunction by appellant, which we shall call complainant, brought

originally against Henry L. Stimson as Secretary of War and Robert Shaw
Oliver as Assistant Secretary of War, for whom the appellees were substituted
and whom we shall refer to as defendants, to enjoin them and all persons acting
under their authority from taking or removing or in any way interfering with
complainant's wharf or other property 'along or upon the water front of its
property upon the southern branch of the Elizabeth river' in the state of
Virginia. It having been constructed, it is alleged, under the authority of the
state and within and upon the harbor line subsequently established by the
Secretary of War, it became, it is further alleged, property lawfully owned, and
could therefore be removed only upon payment of just compensation.

A preliminary injunction was granted in accordance with the prayer of the bill.

There was a demurrer to the bill, urging, among other grounds, that the court

was without jurisdiction of the persons of the defendants, and also without
jurisdiction of the suit because it was one against the United States. These
grounds were subsequently waived and the want of equity in the bill alone
relied on.

The demurrer was overruled (204 Fed. 489), and the present defendants,
substituted as parties defendant, answered.

The answer, by certain denials and admissions, in effect repeated the

propositions of the demurrer and asserted the control of Congress over the
river, acting through the Secretary of War, adducing 30 Stat. at L. 1153, chap.
425, and concluded with a prayer that the court order the demolition of such
portions of the wharf and other property as might be found to be outside the
reestablished pierhead line, and that the injunction theretofore granted be
dissolved and complainant's bill dismissed.

Further detail of the pleadings is unnecessary as a statement of facts was made

which presents all that are necessary for a decision. From the statement it
appears that a board of harbor commissioners was created by'Virginia in 1875,
and that in 1876, the exact date not known, the authorities of the state of
Virginia established a harbor line which remained until 1890, when the same
was adopted by the Secretary of War as the harbor line established by the
Federal government, and it so remained until 'the establishment of the present
line June 12, 1911, which was so established by the Secretary of War, after
notice, etc., and that until said new line was established, no part of
complainant's property was outside of the same.'

It appears from the statement and diagram attached that complainant had
constructed two certain fills into the Elizabeth river. It made extensions into the
river from two points on the shore, and connected at the outer extremities, the
wall forming a continuous wharf of three sides surrounding the water they
inclosed, the fourth side being the high land. The space so surrounded was
called a log pond, and designed for the storage of logs for the purposes of
complainant's business. The following also appears from the statement:

'That on the 22d day of July, 1911, the Navy Department wrote to the
complainant, stating that that Department intended making certain
improvements in the Navy Yard, and requesting the complainant to fix a price
at which it would sell so much of its property or wharf and log pond as lay
without the present port warden's line. The complainant, answering said letter,
stated that the matter would be laid before its board of directors on July 26th

1911, and thereafter the attached correspondence was had between the Navy
Department and the complainant. That while the above paragraph is admitted as
a fact, it is nevertheless objected to by the defendants for the reason that the
same is not relevant or material to the decision of this case, and it is claimed by
said defendants, Secretary of War and Assistant Secretary of War, that this
admission does not bind them.
9

'That the water now immediately in front of complainant's property is

navigable, but if the present structures are removed to the present harbor line as
demanded by the government the complainant will be cut off from navigable
water unless the river is dredged where the structures now are. That an act of
Congress approved March 4th, 1911, entitled, 'An Act Making Appropriations
for the Naval Service for the Fiscal Year Ending June 30th, 1912, and for Other
Purposes' (36 Stat. at L. 1265, 1275, chap. 239), has been passed, in which act
an appropriation has been made for dredging the bottom of the river at the point
in controversy, pursuant to which the government proposes to widen the
channel to the new port warden's line.

10

'It is further admitted that the fee-simple title to the high land to low-water
mark adjacent to the port warden's line in question is in the Greenleaf Johnson
Lumber Company, the complainant in this suit.

11

'The re-established or new harbor line runs along the front of complainant's
wharf at the northern end of the property, cutting off approximately two [200]
feet of the same.'

12

There was some oral testimony, of which it is enough to say that it identified
certain descriptive maps of the property. It also showed the purpose for which
the property was constructed and used, and its present condition, the description
of the new line and its relation to the old one, and that 'the entire change made
by the establishment of the new harbor line is immediately in front of the Navy
Yard,' and that 'the government in recent years had used the channel of the river
opposite the Navy Yard and in front of the property of complainant to a very
large extent for the storage of its vessels,' and a witness had seen as many as
five abreast, ranging from torpedo boats to colliers.

13

The district court overruled the demurrer, as we have said, expressing its views
in an opinion. The court also denied the mandatory injunction prayed by the
United States, and continued the temporary restraining order. Subsequently the
court entered its decree adjudging that the Secretary of War had no authority
under the law to remove or cause to be removed the structures mentioned in the

pleadings, and decreed that the temporary injunction be made permanent. The
decree was reversed by the circuit court of appeals. 215 Fed. 576.
14

Two propositions are presented: (1) The power of Congress over navigable
waters. (2) Whether the acts of the Secretary of War were done in the exercise
of that power.

15

It would seem that the existence of the power of Congress has been withdrawn
from the domain of discussion by many authorities, and that little room is left
for debate as to the extent of that power. But a distinction is made by
complainant between structures in a river which avail of its navigability and
structures which may be an obstruction to its navigation. Upon this distinction,
which will be explaineed more fully hereafter, complainant contends that a
right of property by the privilege granted by the state of Virginia became vested
in it which can only be taken upon payment of just compensation. And this
distinction, it is further contended, explains the cases relied on by counsel for
the United States, and sustains the authority of the cases adduced by
complainant. A review of the cases, therefore, is worth while.

16

The power of Congress is expressed in a general way in Gilman v.

Philadelphia, 3 Wall. 713, 731, 18 L. ed. 96, 101, in which a certain power was
conceded to the states, but necessarily to be exercised, it was decided, in
subordination to the supremacy of the national power. 'Until the dominant
power of the Constitution is awakened,' it was said, 'and made effective, the
reserved power of the states is plenary.'

17

In Gibson v. United States, 166 U. S. 269, 41 L. ed. 996, 17 Sup. Ct. Rep. 578,
there was a further expression of the principle and an application of it to
riparian ownership, and it was decided that '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.' Citing, among other cases, Shively v. Bowlby, 152 U. S. 1,
38 L. ed. 331, 14 Sup. Ct. Rep. 548. The case was one for the recovery of
damages caused by the construction of a dike in the Ohio river, by which the
lands of Gibson were flooded. Relief was denied and the principle expressed
that the exercise 'of the dominant right of the government' over navigation
subjected riparian ownership to such consequence, and it was said that an
appropriation for improvement was an exercise of the power of Congress.

18

In Scranton v. Wheeler, 179 U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48,

18

In Scranton v. Wheeler, 179 U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48,
access was cut off from a navigable river by improvements instituted by
authority of Congress. This was said: 'All the cases concur in holding that the
power of Congress to regulate commerce, and therefore navigation, is
paramount and is unrestricted, except by the limitations upon its authority by
the Constitution.' The words 'except by the limitations upon its authority by the
Constitution' were not intended to qualify the power expressed, as is made
manifest by subsequent cases.

19

In Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 50 L. ed. 596, 26 Sup. Ct.
Rep. 341, 4 Ann. Cas. 1175, the railway company was required to reconstruct a
bridge to subserve a public work. The bridge had been constructed under lawful
authority. Compensation, however, was denied, the bridge over a public
highway. The latter and public waters were considered analogous.

20

In West Chicago Street R. Co. v. Illinois, 201 U. S. 506, 50 L. ed. 845, 26 Sup.
Ct. Rep. 518, a tunnel was constructed by permission of Chicago under the
Chicago river and was subsequently required to be lowered. It was held not a
taking of property, the removal of the tunnel having been required in the
interest of navigation. In other words, the paramount right of navigation was
decided to be superior to riparian rights or rights in the river; or, to put it more
generally, to rights in the submerged lands. The case seems directly against
complainant in the case at bar. Complainant asserts a right of compensation
because it conformed to the harbor line as located by Virginia and by the
United States; in other words, contends that it acquired a vested right. The case
decides otherwise, and 200 U. S. 561, supra, so decides. The proposition
announced was that the power of the sovereign, state or national, is perpetual,
not exhausted by one exercise,and all privileges granted in public waters
are subject to it; and that the exercise of the power was not a taking of private
property for a public use, but 'the lawful exercise of a governmental power for
the common good.'

21

Union Bridge Co. v. United States, 204 U. S. 364, 400, 51 L. ed. 523, 539, 27
Sup. Ct. Rep. 367, conspicuously displays the principles of the prior cases cited
and followed by it. A bridge was ruquired to be altered or changed, the expense
of which was great. It was contended that the bridge had been erected under
state authority, to the exercise of which the United States, had impliedly
assented, and that, therefore, the requirement to alter it was a taking of property
without compensation. The opposing contention of the United States was that
the requirement was an exertion by Congress of its power to regulate
commerce, and therefore navigation, upon the waterways on and over which
such commerce was conducted. The latter contention was sustained upon a
review of the prior cases. It was said that when the company 'exerted the power

conferred upon it by the state, it did so with the knowledge of the paramount
authority of Congress to regulate commerce among the states,' and subject to
the possibility that Congress at some future time would exert its power.
22

In Monongahela Bridge Co. v. United States, 216 U. S. 194, 54 L. ed. 442, 30

Sup. Ct. Rep. 356, again the doctrine of the other cases was repeated. A bridge
erected over the navigable waters of a state by the authority of the state was
declared subject to the paramount authority of Congress to regulate commerce
and its right to remove unreasonable obstructions to navigation. Congress
exerted its power in a provision in the river and harbor bill of March 3, 1899,
giving authority to the Secretary of War, when he had good reason to believe a
bridge over navigable waterways was an unreasonable obstruction to
navigation, to order it to be removed after notice and hearing. The court
declined to modify its holding in Union Bridge Co. v. United States, and
declared that it adhered 'to what was said in that case,' and sustained the
Secretary without much discussion.

23

Hannibal Bridge Co. v. United States, 221 U. S. 194, 55 L. ed. 699, 31 Sup. Ct.
Rep. 603, was another case of bridge removal. It is not so positive an authority
as the preceding cases, for Congress had reserved the right to alter or amend the
act under which the bridge was constructed. But the Union Bridge Case was
quoted from as correctly expressing the congressional power.

24

Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. ed. 570, 32 Sup. Ct. Rep.
340, is directly to the effect that Congress may establish harbor lines, and is not
precluded thereby from changing them. There was action by the state and twice
by the United States, and the relation of such actions and the rights derived
therefrom were considered and determined. Rights under the action of the state
were asserted by the Philadelphia Company and assumed to exist by the court
in determining the power of Congress. It was said (page 634): 'The exercise of
this power [that of Congress] could not be fettered by any grant made by the
state of the soil which formed the bed of the river, or by any authority conferred
by the state for the creation of obstructions to its navigation.' And again: 'It is
for Congress to decide what shall or shall not be deemed in judgment of law an
obstruction of navigation. . . . The principles applicable to this case have been
repeatedly stated in recent decisions of this court.' The cases which we have
reviewed were cited. In speaking of the effect of the first action of the Secretary
as affecting his second action, it was said: 'That officer did not exhaust his
authority in laying the lines first established in 1895, but was entitled to change
them, as he did change them in 1907, in order more fully to preserve the river
from obstruction. And in none of the acts complained of did he exceed the
power which had been conferred.'

25

Philadelphia Co. v. Stimson is an epitome of all prior cases. Indeed, we might

have relied upon it as furnishing all of the elements of decision of that at bar. It
expressed the subordination of the power of the states to the power of
Congress, that one exercise of the power by either does not preclude another
exercise by either, and that the state can grant no right to the soil of the bed of
navigable waters which is not subject to Federal regulation. There was a
repetition of this doctrine in United States v. Chandler-Dunbar Water Power
Co. 229 U. S. 69, 57 L. ed. 1078, 33 Sup. Ct. Rep. 667.

26

Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 98, is not in antagonism to the

principle announced in those cases. If it could be so regarded it would have to
give way to the many cases decided since. But it cannot be so regarded. It was
decided, it is true, that one of the rights of a riparian owner was that of access to
a navigable river and of constructing a landing wharf or pier for his own use
and that of the public, but the limitation or subordination of these rights to be
regulated by the dominant power of Congress was not involved nor passed on.
And certainly no limitation was implied. The case was referred to in Scranton
v. Wheeler, supra, and 'the point adjudged' said to be that, as there was no proof
in the record that the wharf involved was in fact an obstruction to navigation or
a nuisance, except a declaration to that effect in the city ordinance attacked, the
wharf could not be made such by a mere declaration. And it was observed that
'a proper disposition of the case required nothing more to be said.' See Shively
v. Bowlby, 152 U. S. 1, 40, 38 L. ed. 331, 346, 14 Sup. Ct. Rep. 548.

27

We have recognized that the states have a certain control and management over
the navigable streams within their territory, but subject to be superseded by the
interference of Congress. Gilman v. Philadelphia, 3 Wall. 713, 731, 18 L. ed.
96, 101; Pound v. Turck, 95 U. S. 459, 24 L. ed. 525; Escanaba & L. M.
Transp. Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442, 2 Sup. Ct. Rep. 185.
When Congress acts, necessarily its power extends to the whole expanse of the
stream, and is not dependent upon the depth or shallowness of the water. To
recognize such distinction would be to limit the power when and where its
exercise might be most needed. In Scranton v. Wheeler, supra, the water was
very shallow between the high land and the pier erected in the river by
authority of Congress, and which it was contended cut off access to
navigability.

28

But, as we have said, complainant distinguishes between the rights a riparian

owner may receive,'between those rights,' to quote counsel, 'which do not
relate to navigation in any sense, and second, those which do relate thereto, and
which contribute to the enjoyment thereof.' To support the distinction
Monongahela Nav. Co. v. United States, 148 U. S. 312, 335, 37 L. ed. 463,

471, 13 Sup. Ct. Rep. 622, as construed in Lewis Blue Point Oyster Cultivation
Co. v. Briggs, 229 U. S. 82, 57 L. ed. 1083, 33 Sup. Ct. Rep. 679, Ann. Cas.
1915A, 232, is adduced. The argument is that the right or privilege which
complainant received from Virginia was given by the state 'in the performance
of the dominant trust for the benefit of the public,' and not, as in the cases urged
by defendant, 'in the interest of the individual riparian owners.' And it is
declared that the cases referred to and Illinois C. R. Co. v. Illinois, 146 U. S.
387, 36 L. ed. 1018, 13 Sup. Ct. Rep. 110, make it clear 'that when grants of
rights or privileges are made within the authority of the state, property acquired
thereunder becomes as stable as any other property, and the rights and
privileges as granted are irrevocable, and if taken for public use it must be upon
the payment of just compensation.' It is hence contended that when the state or
Congress acts in fulfilment of its trust for the benefit of the public the structures
it authorizes become fully protected under the Constitution, and in thus
encouraging facilities for navigation and commerce 'Congress loses none of its
authority of regulation, because it can at any time exercise the right of eminent
domain, and the expense will be a most profitable investment in the public
interest.'
29

The contention is plausible, but it is not supported by the cited cases, and the
case relied on by complainant is reconcilable with them. It is true the instances
in the cited cases were the removal of structures not facilities of commerce on
the rivers. But the principle declared in the cases and which determined their
decision was not dependent upon such instances, and the power of Congress
was said to be analogous in its illimitable exertion to the police power.
Illustrative cases were adduced. How, then, it may be asked,indeed, is asked,
shall we account for Monongahela Nav. Co. v. United States, 148 U. S. 312,
37 L. ed. 463, 13 Sup. Ct. Rep. 622, as construed in Lewis Blue Point Oyster
Cultivation Co. v. Briggs, supra? It was said in the latter case that the former
rested upon estoppel.

30

A few words of explanation become necessary. The Monongahela Company,

under the express authority of the state of Pennsylvania, expended large sums
of money in improving the Monongahela river by means of locks and dams,
which were also built at the instance and suggestion of the United States. By
means of the improvements the river, which theretofore was navigable only for
boats of small tonnage and at certain seasons of the year, accommodated large
steamboats at all seasons and an extensive commerce by means thereof.
Subsequently Congress authorized the purchase of the property, or, if its price
could not be agreed on, its condemnation, but excluded from the estimate of the
sum to be paid for it a consideration of the franchise to collect tolls. It was held
that the franchise was a part of the property and should be paid for,

notwithstanding its exclusion by Congress, and that the franchise, the right to
take tolls, could 'no more be taken without compensation than' could 'its [the
company's] tangible, corporeal property.' The court said, by Mr. Justice
Brewer: 'This lock and dam connected the lower improvements already made
by the Navigation Company with the upper improvements proposed to be made
by Congress, and the appropriation by the latter [act of March 3, 1881 (21 Stat.
at L. 468, chap. 136)] was conditioned on the company's undertaking their
construction. This is something more than the mere recognition of an existing
fact; it is an invitation to the company to do the work; and when, in pursuance
of that invitation, and under authority given by the state of Pennsylvania, the
company has constructed the lock and dam, it does not lie in the power of the
state or the United States to say that such lock and dam are an obstruction and
wrongfully there, or that the right to compensation for the use of this
improvement by the public does not belong to its owner, the Navigation
Company.'
31

This language was quoted in Lewis Blue Point Oyster Cultivation Co. v. Briggs
as sustaining the view that the case rested upon estoppel,rested upon the fact
that the lock and dam had been constructed 'at the instance and implied
invitation of Congress.' It is true a great deal was said by Mr. Justice Brewer
which seemed to be of broader import, but we are now only concerned with the
explanation of the case by the later case, and we may observe that the Union
Bridge Case, 204 U. S. 364, 400, 51 L. ed. 523, 539, 27 Sup. Ct. Rep. 367, was
referred to for comparison. It is manifest, therefore, that the Monongahela Nav.
Co. Case can be distinguished from the other cases and its ruling sustained
upon the following grounds: (1) The lock and dam were built at the instance of
Congress, not as a simple facility for the navigation of the river, but as making
its navigability, enlarging its capacity from the accommodation of boats of
small tonnage at certain seasons of the year to the accommodation of large
steamboats at all seasons. (2) The Navigation Company was invited to make
the improvements, and so far invested with the rights of sovereignty. It did not,
as did complainant in the case at bar, exercise the rights of a riparian owner,
building to the harbor line and availing itself of the navigability of the river for
its own interest. It, to repeat, constructed a public work, having no other power
to do so but the authority conferred upon it by the state and by Congress
invited, indeed, to do so, and given as its compensation a right to take tolls for
the use of the works. This court well said that such right was as much the
consideration of the service rendered as the material property constructed. The
case, therefore, as Mr. Justice Lurton said in the Blue Point Oyster Case, rested
on estoppel. Whatever was said beyond that may be left, as it was left in the
latter case, to a comparison with the Union Bridge Case, the principle it
declares and the cases it cites.

32

Something is attempted to be made of Gring v. Ives, 222 U. S. 365, 56 L. ed.

235, 32 Sup. Ct. Rep. 167, by complainant, in support of its distinction between
rights held 'subject to the dominant trust in which the beds of navigable streams
are held, and those conferred in the exercise and in aid of the purpose of the
dominant trust under which the submerged soil is held for the benefit of the
public.' The case does not support the distinction. A marine railway was
constructed under state authority and had been in existence for eighteen years,
but projected beyond a harbor line subsequently established by Congress. It
was run into recklessly and injured by a tugboat, and in defense of an action for
the injury the fact of the projection beyond the harbor line was set up. The
defense was rejected, the lower court deciding that even if the railway had been
erected illegally, even if it was a public nuisance, the tugboat was not
authorized to run into it unnecessarily and negligently, as the evidence tended
to show. The case was brought here, a Federal question being based on the act
of Congress under which the harbor line over which the marine railway
projected was established. The question was pronounced frivolous and the writ
of error was dismissed.

33

The contention of the tugboat owner was practically that the railway was an
outlaw, subject to be destroyed by anybody, although it had been erected by
authority of the state, and its existence indulged by the Secretary of War.
Manifestly the contention was without any merit whatever, as was said by the
court, and there was no implication of the existence of the distinction urged by
complainant, nor implication of the want of power in the Secretary of War to
have ordered the railway removed if he had thought it in the interest of
commerce to have done so.

34

It is, however, contended that the jurisdiction to establish harbor lines is given
by the statute only 'where it is made manifest to the Secretary of War that the
establishment of harbor lines is essential to the preservation and protection of
harbors,' and that it is shown by the agreed statement of facts and the
correspondence attached thereto that the Secretary of War acted at the
suggestion of the Navy Department for the improvement of the river opposite
the Norfolk Navy Yard, and in pursuance of the act making appropriations for
the naval service for the year ending June 30, 1912, 36 Stat. at L. 1265, 1275,
chap. 239; and that this was 'the sole purpose of the change in the harbor lines
and the required removal of the company's [complainant's] property is shown
by the additional fact that it appears that the United States moors abreast its war
vessels, colliers, and other vessels in front of its Navy Yard, so that they project
out in the channel which it so uses for the storage of its vessels.'

35

We may grant that such was the inducement and such the occasional use, but

neither militates against the validity of the power exercised. The mooring of
vessels is as necessary as their movement, and the navigability of a river can be
maintained or increased as legally for the accommodation of war vessels as for
trading vessels, those of public ownership as well as those of private ownership,
and we cannot enter into a consideration of what may be necessary for either
purpose.
36

It was said in United States v. Chandler-Dunbar Water Power Co. 229 U. S. at

page 64, 57 L. ed. 1076, 33 Sup. Ct. Rep. 667: So unfettered is the 'control of
Congress over the navigable streams of the country, that its judgment as to
whether a construction in or over such a river is or is not an obstacle and a
hindrance to navigation is conclusive. Such judgment and determination is the
exercise of legislative power in respect of a subject wholly within its control.'
And in Scranton v. Wheeler, 179 U. S. page 162, 45 L. ed. 137, 21 Sup. Ct.
Rep. 48: 'Whether navigation upon waters over which Congress may exert its
authority requires improvement at all, or improvement in a particular way, are
matters wholly within its discretion.' This power has been exercised by the act
of March 3, 1899 [30 Stat. at L. 1121, chap. 425], delegating to the Secretary of
War the power to establish harbor lines, and, necessarily, to require the removal
of structures which project beyond them. Union Bridge Co. v. United States,
supra.

37

If it can be said that arbitrary or wanton action of the Secretary of War would
be subject to judicial review, it cannot be said that his action in the case at bar
reached that bad degree.

38

Decree affirmed.

39

Mr. Justice McReynolds took no part in the consideration and decision of this
case.
Mr. Justice Lamar, dissenting:

40

I dissent from the judgment by which the appellant's wharf is physically taken,
its existing right of access to navigable water destroyed, and its private property
appropriated to public use without compensation.

41

At, above, and below the Norfolk Navy Yard, the navigable part of the
Elizabeth river is 600 feet in width. In 1873 appellant's wharf was built opposite
the Navy Yard, through shallow water out to the navigable channel of the
stream. Several years afterward, under authority of the state of Virginia, the

Norfolk wardens established a port line which ran along the edge of this
channel and left the lumber company's wharf and logging pond outside of the
harbor.
42

In 1890, fourteen years later, the Secretary of War established exactly the same
line; and thus by city, state, and Federal authority the plaintiff's wharf was
shown to be a lawful structure outside of the harbor, and not an obstruction to
navigation either in law or in fact. Since that date there has been no change in
the condition of the stream; and the wharf remained a lawful structure until
1911, whenhaving decided to widen the river at that point, as a place of
storage for war vesselsCongress, in that part of the act of March 4, 1911 (36
Stat. at L. 1275, chap. 239), relating to the Navy Yard at Norfolk, made an
appropriation of $80,000 'for the purchase of land and widening the channel.'
Accordingly, on June 12, 1911, the harbor line was changed at this particular
point, so as to take in the part of the river intended to be widened, but leaving
the Norfolk harbor line otherwise unaffected. No one understood, however, that
fixing the line 200 feet further inland at this place for this naval purpose
authorized the taking of plaintiff's wharf without compensation. And the act of
Congress so obviously included the property of the plaintiff, as a part of that to
be purchased, that the Secretary of the Navy on July 22, 1911, 'wrote to the
complainant, stating that that Department intended making certain
improvements in the Navy Yard, and requesting the complainant to fix a price
at which it would sell so much of its property or wharf and logging pond as lay
without the present port warden's line.'

43

The complainant named a price which the Department considered exorbitant,

andthe parties failing to agreethe government began proceedings in the
district court of the United States

44

'to acquire title by condemnation to a certain piece of land situated in the

southern branch of the Elizabeth river, Virginia, held and owned by the
Greenleaf Johnson Lumber Company, which is needed for public uses and
purposes; that is to say, for deepening and widening the said south branch of
the Elizabeth river as authorized by act of March 4, 1911 (36 Stat. at L. 1275,
chap. 239).'

45

The statutory notice was given the owner and a jury was impaneled to assess
the value of complainant's property, when, suddenly, the proceedings were
dismissed, and what was a wharf, lawfully erected in a non-navigable part of
the stream and outside of the old line, was declared to be 'a menace to
navigation.'

46

47

The control which Congress has over navigable waters by virtue of the power to
regulate commerce is practically unlimited, except in one particular. The 5th
Amendment was passed for the purpose of restraining the exercise of that or
any other power by which private property was taken. Monongahela Nav. Co.
v. United States, 148 U. S. 336, 37 L. ed. 471, 13 Sup. Ct. Rep. 622; McCray v.
United States, 195 U. S. 61, (3), 49 L. ed. 97, 24 Sup. Ct. Rep. 769, 1 Ann.
Cas. 561. That Amendment was intended to protect the citizen against the
government; and being the expression of the fundamental policy of a people,
both able and willing to pay, should be given a broad and liberal construction.
Congress, in directing that the Elizabeth river should be widened, distinctly
indicated its intention that the private property needed for that purpose should
be 'purchased.' The Secretary of the Navy so understood the statute and began
proceedings to ascertain the amount the government should pay for the
property of the appellant needed for widening the river. In the absence of
absolutely controlling authority, requiring a different interpretation, the
complainant should receive the payment intended by Congress and demanded
by the Constitution wherever private property is taken for a public use. But
there is no such authority cited, for none of the decisions relied on by the
government sustain the contention that, on facts like these, wharf property can
be taken without compensation.
Some of the cases cited make a distinction between taking and damaging, and
then hold that the owner cannot recover for consequential damages resulting
from making public improvements in navigable waters (Scranton v. Wheeler,
179 U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48). Another holds that the title
of the riparian owner to oysters in the bed of a body of public water is inferior
to the right of the government to deepen the channel in the interest of
commerce. Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U. S. 82, 57
L. ed. 1083, 33 Sup. Ct. Rep. 679, Ann. Cas. 1915A, 232. Another related to a
case where a power dam had been constructed under a revocable license. It was
held that the owner acquired no such right in the flow in the stream as would
give him a claim for damages when the government, in the interest of
navigation, caused the water to run in another channel. United States v.
Chandler-Dunbar Water Power Co. 229 U. S. 53, 57 L. ed. 1063, 33 Sup. Ct.
Rep. 667. Another holds that where the government had constructed a dam,
which raised the level of the river and backed the water beyond the old harbor
line, the person who purchased after the dam was built could not complain
because he was prevented from building a wharf inside the new harbor lines,
which had been changed to conform to the new line of deep water. But the right
of the person who owned the land before the dam was built was expressly left
open for future decision. Philadelphia Co. v. Stimson, 223 U. S. 627, 56 L. ed.
579, 32 Sup. Ct. Rep. 340. In some of the cases it appeared that bridges had

been built subject to the power expressly reserved to order them removed.
Hannibal Bridge Co. v. United States, 221 U. S. 194, 55 L. ed. 699, 31 Sup. Ct.
Rep. 603. Several of the cases hold that those who build bridges or tunnels
across the navigable channel of a stream can be required at their own expense
to raise or lower the structures whenever they become obstuctions to
navigation. Union Bridge Co. v. United States, 204 U. S. 364, 51 L. ed. 523, 27
Sup. Ct. Rep. 367; West Chicago Street R. Co. v. Illinois, 201 U. S. 506, 50 L.
ed. 845, 26 Sup. Ct. Rep. 518.
48

But no case has been cited which holds that a wharf, in shallow water, outside
an established harbor line, can be declared an obstruction to navigation, the
property taken, and the owner ousted of possession without compensation.

49

On the contrary, Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 984, distinctly

holds that this cannot be done. There the city, by the act of 1854, had authority
'by ordinance to establish dock and wharf lines and to prevent obstructions in
the river and to cause it to be dredged.' Thereafter Yates built a wharf, across
the harbor line, through the shallow water, out to the navigable channel of the
Milwaukee river. Subsequently a new line was established (p. 505), and in 1864
the city declared, as the Secretary did here, that the wharf (inside the harbor
line) was an obstruction. This court said:

50

'The mere declaration by the city council of Milwaukee that a certain structure
was an encroachment or obstruction did not make it so, nor could such
declaration make it a nuisance unless it in fact had that character' (p. 505).

51

Again, speaking of the landowner's right to build docks, the court said:

52

'This riparian right is property, and is valuable; and, though it must be enjoyed
in due subjection to the rights of the public, it cannot be arbitrarily or
capriciously destroyed or impaired. It is a right of which, when once vested, the
owner can only be deprived in accordance with established law; and, if
necessary that it be taken for the public good, upon due compensation.'

53

There is a remarkable similarity between the facts in the Yates Case and the
present. There the dock was to be 'removed in pursuance of a general scheme of
widening the channel and in improving the navigation of the Milwaukee river.'
Here Congress appropriated $80,000 'to purchase land and to widen the
channel' of the Elizabeth river in the interest of the Navy Yard. But even such
governmental purposes would not justify a taking without payment; for, in the
Yates Case, the court concluded its opinion by the use of language which is

absolutely applicable to the present controversy, saying:

54

'If the authorities of the city of Milwaukee deem its [the wharf's] removal
necessary in the prosecution of any general scheme of widening the channel
and improving the navigation of the Milwaukee river, they must first make him
compensation for his property so taken for the public use.'

55

That case has never been overruled and is a notable illustration of the meaning
of the 5th Amendment, which, standing between the government and the
private individual, provides a means by which the interests of the public can be
secured without destruction of the rights of the citizen.

56

Most of the wharves in the United States were located many years before the
adoption of the act conferring power upon the Secretary of War to establish
harbor lines. Congress did not intend to destroy existing rights (Montgomery v.
Portland, 190 U. S. 105, 47 L. ed. 965, 23 Sup. Ct. Rep. 735), and it is
inconceivable that it could have intended to vest that officer with the power to
declare that these lawful structures, worth hundreds of millions of dollars, and
useful agencies of commerce, were obstructions to navigation merely because
they were inside of a line which he might decide to run in non-navigable water.

57

The present case is even stronger, for the complainant's wharf is located outside
of a harbor line which had been established in 1890 by the Secretary of War
himself. The wharf was not an obstruction to navigation when it was built in
1873; it was not an obstruction to navigation when the Secretary established the
line in 1890; it has not become an obstruction to navigation during the years it
has remained in shallow water; and, under the Yates Case, cannot be made an
obstruction in fact by declaring (where there has been no change in the stream)
that it is such in law.

58

Few cases directly in point can be found, but out of the multitude which deal
with the principle involved, the facts and rulings in the following tend to sustain
the appellant's right to compensation for the wharf taken for public use: Dutton
v. Strong, 1 Black. 23, 17 L. ed. 29; St. Paul & P. R. Co. v. Schurmeir, 7 Wall.
272, 19 L. ed. 74; Monongahela Nav. Co. v. United States, 148 U. S. 312, 336,
37 L. ed. 463, 471, 13 Sup. Ct. Rep. 622; Com. v. Alger, 7 Cush. 53, 103;
Langdon v. New York, 93 N. Y. 129, 161; Kingsland v. New York, 110 N. Y.
570, 574, 18 N. E. 435; Fitchburg R. Co. v. Boston & M. R. Co. 3 Cush. 71;
Hamlin v. Pairpoint Mfg. Co. 141 Mass. 57, 6 N. E. 531; Lewis v. Portland, 25
Or. 133, 167, 22 L.R.A. 736, 42 Am. St. Rep. 772, 35 Pac. 256; Baltimore & O.
R. Co. v. Chase, 43 Md. 35, 36; Classen v. Chesapeake Guano Co. 81 Md. 259,

31 Atl. 808.
59

The power of the Secretary of War to run harbor lines may not be exhausted
when once exercised, and, from time to time, they may be relocated over
unused and submerged merged land. But, as against lawful structures, the line
must be run to conform to the physical conditions of the stream and to meet
changes occasioned by the washing of the water or other natural causes. But the
public cannot determine to widen the river, artificially create a channel, and
thus, by its own act, acquire a right to declare that what was formerly a lawful
structure in shallow water will be an obstruction to a storage basin to be
artificially created.

60

In Com. v. Alger, 7 Cush. 53, 103, it is strongly intimated that the power to
establish harbor lines does not confer authority to take, without compensation,
existing structures lawfully built out to the navigable channel. Other cases hold
that the establishment of the line is in the nature of an invitation to fill in and
build out to that line. Sherman v. Sherman, 18 R. I. 506, 30 Atl. 459. So here
the action of the Secretary of War in 1890 'is to be construed as a regulation of
the exercise of the riparian right; it settles the line of navigability above which
the state will not interfere; and is an implied concession of the right to build,
possess, and occupy, . . . which amounts practically to a qualified possessory
title.' Miller v. Mendenhall, 43 Minn. 95, 8 L.R.A. 89, 19 Am. St. Rep. 219, 44
N. W. 1141; citing Hamlin v. Pairpoint Mfg. Co. 141 Mass. 51, 6 N. E. 531.
See also Langdon v. New York, 93 N. Y. 129, 161; Brooklyn v. New York
Ferry Co. 87 N. Y. 204, 206, and Williams v. New York, 105 N. Y. 429, 11 N.
E. 829.

61

The action of the Secretary of War in 1890 in establishing a harbor line was, in
effect, a declaration that wharves outside of the limits of that harbor thus
marked and defined were not obstructions to navigation, and, as against existing
wharves, the line could not thereafter be changed except to meet natural
changes in the channel. Congress, in authorizing the Secretary of War to
establish lines, clearly indicated an intention to secure fixity and permanency.
If such was not its intention, thenas shown by the actual results in the present
casenothing could be more unstable than the tenure by which riparian
owners hold docks, piers, and wharves. For, progressively, it is said that the
builders cannot rely on grants from the state; they cannot rely on lines fixed by
the port wardens of the state; and it is now decided that they cannot rely on a
line fixed by the Secretary of War. For, under the ruling in the present case, he
can, by running a new line, take in 200 feet of a wharf outside of an old line,
and then oust the owner from the possession and use of that property without
compensation.

62

The wharf here involved may not be of great value, but my view of the harm
done the appellant and of the possibility of like serious consequences to a
multitude of persons who have built and invested in these costly and useful
instrumentalities of commerce compels me to dissent from the judgment.