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That neither the government of the United States nor the defendant had any lawful right to so construct the pier, or to maintain the same as was being done at the time suit was brought, and as they were now doing, without their first having acquired the right to so construct and maintain the same from the owner of the fee, or without obtaining the right therefor by proceedings under the power of eminent domain on payment of due compensation to the owner of the land therefor; and,

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A verdict for the defendant was directed on the ground that, in legal effect, the action was against the United States, and that a judgment for the plaintiff would be one against the government and its property.

In the supreme court of the state the fail-[149) ure of the trial court to charge the jury as requested by the plaintiff, and the direction to the jury to return a verdict for the defend. ant, were assigned for error. That court, all the justices concurring, held that the ac tion was not against the United States, but affirmed the judgment upon other grounds. It said: "When one in the actual possession of property defends his right of possession up

That under article 5 of the Amendments to the Constitution of the United States the property in question could not lawfully be taken for the public use to which it was ap-on the ground that the government, state or propriated, without just compensation having been made therefor to the owner, or without due process of law.

national, has placed him in possession, he must show that the right of the government is paramount to the right of the plaintiff, or The plaintiff also requested this instruc- judgment will go against him. This point tion: "The construction of this pier was in has been settled by the decision of the Suviolation, and the maintaining of the same preme Court of the United States rendered was in violation, of said article 5 of the May 10, 1897. Tindal v. Wesley, 167 U. S. Amendments to the Constitution of the 204, 42 L. ed. 137, 17 Sup. Ct. Rep. 770. In (148]United States in this, that it appears from that case the authorities upon this point are the testimony in the case that the same was reviewed at length, including the case of appropriated without due process of law, and Stanley v. Schwalby, 162 U. S. 255, 40 L. ed. the same was taken and devoted to a public 960, 16 Sup. Ct. Rep. 754, upon which defenduse without the consent of the owner there- ant mainly relies. The United States governof, and without just compensation therefor, ment took possession of the submerged land and that the taking possession of the land of of the plaintiff for the purpose of erecting the plaintiff, as appears by the record, was thereon piers in aid of the immense navigain violation of said article 5; and that the tion upon the Great Lakes and the rivers taking possession of the land of the plaintiff connecting them. That the improvements and the construction of the pier thereon, in made were necessary to aid and protect this the manner shown in this case, the effect of navigation is established beyond dispute. which was to deprive him of all egress from Had the government the right to make these his said land to the navigable water, the nat- improvements upon the submerged land ural navigable water of the stream, and to without compensation to the adjoining ownprevent him using his said property by pass-er? It is conceded that under the law of ing over or across said pier, as shown in the testimony of the case, was in violation of said article 5 of Amendments to the Constitution of the United States, and as depriving the owner thereof of his property with out due process of law, and without just compensation, and without his consent.'

These instructions were severally refused, and to that action of the court the plaintiff excepted.

Michigan the title to submerged lands is in the adjoining owner to the thread of the stream. It is insisted in behalf of the plaintiff that the government possesses no right to so use his land, although submerged, and although necessary to so use it in aid of navigation, as to cut off his access to the open water. It is contended, on the other hand, that this title to submerged lands along navigable waters, and the right of access thereto, In charging the jury the court stated that are subject to the paramount right of the the United States district attorney had sug- United States to use this land in such mangested in writing that the property in con- ner as it shall determine to be necessary in troversy, the title and possession of which aid of navigation. The court of appeals was were the subjects of this litigation, was, and unanimous in its opinion against the plainfor many years had been, in the possession tiff's claim. In a very able opinion delivered of the United States through its officers and by Judge Lurton the facts are clearly stated, agents; that it was held for public uses in the authorities cited, and we think the conconnection with the commerce and naviga-clusion there reached is the correct one. tion of the Great Lakes; that the nominal defendant had no personal interest in the matter; that his physical possession of the premises was in his official capacity, and in law the possession of the United States; that the United States had always held title to the said land, and now holds possession under its claim of title; that this action was in effect an action against the United States government, which in its sovereign capacity could not be sued; and for these reasons the district attorney asked that all proceedings be stayed and the suit dismissed.

We therefore deem it unnecessary for us to enter into a long discussion of the law and the au-[150] thorities. The Hawkins Point Lighthouse Case, 39 Fed. Rep. 77, appears to be exactly in point, and to rule the present case. think the conclusion reached by the court below was a correct one, although it gave a wrong reason." 113 Mich. 565, 71 N. W. 1091.

We

The Hawkins Point Lighthouse Case, referred to in the opinion of the state court, was ejectment brought in a circuit court of the United States against a government

Messrs. John C. Donnelly and H. P. Davook argued the cause and filed a brief for plaintiff in error:

The right of access of a riparian owner to a navigable stream is a private right wholly distinct from his right to use the stream for purposes of navigation, in common with the rest of the public.

keeper of a lighthouse to recover possession | for instructions in the trial court, and which of such house, erected in the Patapsco river, were insisted upon in the supreme court of a public navigable water of the United States, the state. by the lighthouse board in pursuance of acts of Congress. There was no condemnation for public use of the lands upon which the lighthouse rested, nor was any compensation made to anyone for the site. The plaintiff was the owner of the upland, but had not, in the exercise of his riparian right, improved out into the water in front of his land. The court, speaking by Judge Morris, held that the plaintiff was not entitled to recover, say- Gould, Waters, p. 304; Rose v. Groves, 5 ing: "While the submerged land remains a Mann. & G. 613; Atty. Gen. v. Thames Conpart of the bed of the river it is not private servators, 1 Hem. & M. 1; Lyon v. Fishmon property in the sense of the 5th Amendment gers' Co. L. R. 1 App. Cas. 662, L. R. 10 Ch. to the Federal Constitution. As was declared 679; Caledonian R. Co. v. Ogilvy, 2 Macq. H. in Gilman v. Philadelphia, 3 Wall. 725, 18 L. Cas. 229; Montreal v. Drummond, L. R. L. ed. 99, the navigable waters are the pub-1 App. Cas. 384; Bell v. Quebec, L. R. 5 lic property of the nation, and subject to all App. Cas. 84; Yates v. Milwaukee, 10 Wall. the requisite legislation by Congress.' In 497, 19 L. ed. 984. the hands of the state or of the state's gran- The right of access from riparian proptee the bed of a navigable river remains sub-erty to the water, and vice versa, has been ject to an easement of navigation, which the held to be valuable property which cannot general government can lawfully enforce, im- be destroyed or impaired without compensaprove, and protect. It is by no means true tion. that any dealing with a navigable stream which impairs the value of the rights of riparian owners gives them a claim for compensation. The contrary doctrine, that, in order to develop the greatest public utility of a waterway, private convenience must often suffer without compensation, has been sanctioned by repeated decisions of the Supreme Court. The following are cases all involving that proposition: The Black Bird Creek Case, 2 Pet. 245, 7 L. ed. 412; Gilman ▼. Philadelphia, 3 Wall. 713, 18 L. ed. 96; Pound v. Turck, 95 U. S. 459, 24 L. ed. 525; Wisconsin v. Duluth, 96 U. S. 379, 24 L. ed.

668; South Carolina v. Georgia, 93 U. S. 4, 23 L. ed. 782. If it were made apparent to Congress that any extension of the plaintiff's present shore line into the river tended to [151]impair the navigability of the stream or its use as a highway of commerce, Congress could authorize the agents of the United States to establish the present shore as the line beyond which no structures of any kind could be extended, and the plaintiff would have no claim for compensation. If the plaintiff could thus lawfully be prevented from appropriating to his private use any part of the submerged land lying in front of his shore line, and the whole of it be kept subservient to the easement of navigation, how can it be successfully claimed that he must be paid for the small portion covered by the lighthouse 200 feet from the shore, which has been taken for a use as strictly necessary to safe navigation as the improved channel itself? The court of appeals of Maryland, whenever called upon to declare the nature of the title of the state and its grantees in the land at the bottom of navigable streams, has uniformly held that the soil below high-water mark was as much a part of the jus publicum as the stream itself." 39 Fed. Rep. 77.

The plaintiff, Scranton, has assigned various grounds of error. These grounds are substantially those embodied in his requests

Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 984; Weber v. State Harbor Comrs. 18 Wall. 57, 21 L. ed. 798; Richardson v. Boston, 24 How. 188, 16 L. ed. 625; Van Dolsen v. New York, 21 Blatchf. 454; Gould, Waters, p. 305, note 4; Illinois C. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018, 13 Sup. Ct. Rep. 110; Potomac S. B. Co. v. Upper Potomac S. B. Co. 109 U. S. 672, 27 L. ed. 1070, 3 Sup. Ct. Rep. 445, 4 Sup. Ct. Rep. 15.

A person who loses his right of access not only suffers a loss in common with the rest of the public, but something in addition

thereto.

Wis. 214, 24 Am. Rep. 386.
Delaplaine v. Chicago & N. W. R. Co. 42

The state cannot give a railroad company the right to occupy a riparian front without making compensation for the injury to riparian rights.

Brisbane v. St. Paul & S. C. R. Co. 23

Minn. 114; Carli v. Stillwater Street R. & Transfer Co. 28 Minn. 373, 41 Am. Rep. 290, 10 N. W. 205; Monongahela Nav. Co. v. United States, 148 U. S. 312, 37 L. ed. 463, 13 Sup. Ct. Rep. 622.

The power of the Federal government to control commerce and navigation was derived from the respective states. Consequently the states and the United States in the exercise of this power are subject to the same limitations.

Pollard v. Hagan, 3 How. 219, 11 L. ed. 569.

In those cases in which damages have been denied for injuries resulting from obstructions placed in streams under congressional authority, the loss resulted from an injury to the right of passage upon the highway after the riparian owner got upon it, not from exclusion of the owner from access to the water.

Gibson v. United States, 166 U. S. 269, 41 L. ed. 996, 17 Sup. Ct. Rep. 578; Eldridge v.

Trezevant, 160 U. S. 452, 40 L. ed. 490, 16 | 53 Md. 422; Baltimore & O. R. Co. v. Chase, Sup. Ct. Rep. 345.

A riparian owner upon navigable water has the exclusive right of access to and from such water, growing out of his title to the land; and such right has a pecuniary value, and its obstruction or material abridgment is generally an injury entitling him to redress.

Priewe v. Wisconsin State Land & Improv. Co. 93 Wis. 534, 33 L. R. A. 650, 67 N. W. 918; North Shore R. Co. v. Pion, L. R. 14 App. Cas. 612.

The courts of New York have come finally to recognize that this right of access cannot be cut off without compensation, by a work done under the authority of the state legislature.

Williams v. New York, 105 N. Y. 419, 11 N. E. 829; Kane v. New York Elev. R. Co. 125 N. Y. 164, 11 L. R. A. 640, 26 N. E. 278; Rumsey v. New York & N. E. R. Co. 133 N. Y. 79, 15 L. R. A. 618, 30 N. E. 654, 136 N. Y. 543, 32 N. E. 979.

It has been definitely settled by the supreme court of Michigan that ejectment is the proper remedy for recovery in cases like the one at bar.

Cole v. Wells, 49 Mich. 450, 13 N. W. 813; Beidelman v. Foulk, 5 Watts, 308; Lawe v. Kaukauna, 70 Wis. 306, 35 N. W. 561; Nichols v. Howland, 52 Hun, 287, 5 N. Y. Supp. 252; Gould, Waters, §§ 185, 194, 471. Mr. John C. Donnelly filed a separate supplemental brief for plaintiff in error:

The owner can be deprived of his right of access only in accordance with established law, and, if necessary that it be taken for public use, upon due compensation.

Weber v. State Harbor Comrs. 18 Wall. 57, 21 L. ed. 798; Atlee v. Northwestern Union Packet Co. 21 Wall. 389, 22 L. ed. 619; Richardson v. Boston, 24 How. 188, 16 L. ed. 625; Baltimore & O. R. Co. v. Chase, 43 Md. 23; Harrison v. Sterett, 4 Harr. & McH. 540; Diedrich v. Northwestern Union R. Co. 42 Wis. 248, 24 Am. Rep. 399; Delaplaine v. Chicago & N. W. R. Co. 42 Wis. 214, 24 Am. Rep. 386; Meyers v. St. Louis, 8 Mo. App. 266; Barron v. Baltimore, 7 Pet. 243, 8 L. ed. 672; Clark v. Peckham, 10 R. I. 35, 14 Am. Rep. 654, 9 R. I. 455; Morrill v. St. Anthony Falls Water-Power Co. 26 Minn. 222, 37 Am. Rep. 399, 2 N. W. 842; Norfolk City v. Cooke, 27 Gratt. 430.

Property rights cannot be destroyed with out compensation; and the right of access is a valuable property right which cannot be destroyed or abridged except upon payment of compensation to the owner.

Lyon v. Fishmongers' Co. L. R. 1 App. Cas. 662, 46 L. J. Ch. N. S. 68, 35 L. T. Ñ. S. 569,25 Week. Rep. 165; Little v. Dublin & D. R. Co. 7 Ir. C. L. Rep. 82; Queen v. North Midland R. Co. 2 Eng. Ry. & Canal Cas. 1; Shirley v. Bishop, 67 Cal. 543, 8 Pac. 82; State v. Sargent & Co. 45 Conn. 358; Chicago v. Laflin, 49 Ill. 172; Musser v. Hershey, 42 Iowa, 356; Grant v. Davenport, 18 Iowa, 179: Renwick v. Davenport & N. W. R. Co. 49 Iowa, 664; Garrite v. Baltimore,

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43 Md. 23; Drury v. Midland R. Co. 127 Mass. 571; Carli v. Stillwater Street R. ♣ Transfer Co. 28 Minn. 373, 41 Am. Rep. 290, 10 N. W. 205; Union Depot Street R. & Transfer Co. v. Brunswick, 31 Minn. 297, 47 Am. Rep. 789, 17 N. W. 626; Myers v. St. Louis, 82 Mo. 367; Steers v. Brooklyn, 101 N. Y. 51, 4 N. E. 7; Langdon v. New York, 93 N. Y. 129; Ball v. Slack, 2 Whart. 508, 30 Am. Dec. 278; Clark v. Peckham, 10 R. I. 35, 14 Am. Rep. 654; Diedrich v. Northwestern Union R. Co. 42 Wis. 248, 24 Am. Rep. 399; Delaplaine v. Chicago & N. W. R. Co. 42 Wis. 214, 24 Am. Rep. 386; Boorman v. Sunnuchs, 42 Wis. 233.

Ejectment is the proper remedy for the enforcement of right of access and to prevent the interruption or destruction thereof.

Edmondson Island Case, 42 Fed. Rep. 15; Adams v. Emerson, 6 Pick. 57; Robbins v. Borman, 1 Pick. 122; Perley v. Chandler, 6 Mass. 454, 4 Am. Dec. 159.

Mr. Robert A. Howard argued the cause, and, with Solicitor General Richards, filed a brief for defendant in error:

The proprietorship of the beds and shores of navigable waters in this country, and the control of those waters, belong to the states in trust for the use of the people,-especially the public use of navigation and commerce.

Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435; Rice v. Ruddiman, 10 Mich. 125; Ryan v. Brown, 18 Mich. 196, 100 Am. Dec. 154; Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224; Illinois C. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018, 13 Sup. Ct. Rep. 110.

The states by virtue of their sovereignty can exercise certain powers over navigable waters in aid of navigation. This, of course, upon the hypothesis that Congress has not legislated upon these matters.

Pollard v. Hagan, 3 How. 220, 11 L. ed. 569; Gilman v. Philadelphia, 3 Wall. 713, 18 L. ed. 96; Pound v. Turck, 95 U. S. 450, 24 L. ed. 525; Mobile County v. Kimball, 102 U. S. 691, 26 L. ed. 238; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442, 2 Sup. Ct. Rep. 185; Huse v. Glover, 119 U. S. 543, 30 L. ed. 487, 7 Sup. Ct. Rep. 313; Withers v. Buckley, 20 How. 84, 15 L. ed. 816.

These cases express the principles of the common law upon this matter of control over navigable waters as applied to the states.

Gann v. Free Fishers, 11 H. L. Cas. 192.

After the adoption of the Constitution the power existing in the states for the improvement of rivers within their borders was recognized as a concurrent power used in the absence of legislation by Congress. When exercised by Congress the power is paramount and illimitable.

Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23: South Carolina v. Georgia, 93 U. S. 4, 23 L. ed. 782; Mobile County v. Kimball, 102 U. S. 691, 26 L. ed. 238; Wisconsin v. Duluth, 96 U. S. 379, 24 L. ed. 668; Miller v.

New York, 109 U. S. 385, 27 L. ed. 971, 3| United States not being a party of record, a
Sup. Ct. Rep. 228; Hawkins Point Light-
House Case, 39 Fed. Rep. 77.

The bed of a river owned by the state may be used by the United States, without the consent of the state and without compensation, for the construction of a bridge over the river, and not in aid of the navigation of the river, but in aid of interstate commerce generally.

Stockton v. Baltimore & N. Y. R. Co. 32 Fed. Rep. 9, 1 Inters. Com. Rep. 411.

Congress could interfere and legalize a bridge, a decree having been rendered deelaring it an obstruction and directing it to be removed by elevating the bridge, or, if not, by abatement.

Pennsylvania v. Wheeling & B. Bridge Co. 18 How. 429, 15 L. ed. 436.

Congress could legalize a bridge pending a suit to remove the structure as a nuisance. The Clinton Bridge, 10 Wall. 454, sub nom. Gray v. Chicago, I. & N. R. Co. 19 L. ed. 989.

In the case of a public navigable river the rights of the riparian owner must be subject to the public right of navigation.

Lyon v. Fishmongers' Co. L. R. 1 App.

Cas. 662.

[151] *Mr. Justice Harlan delivered the opinion of the court. After stating the facts as above reported, he proceeded:

1. The government insists that ejectment is not the proper remedy for a riparian owner to secure the removal of a structure that interferes with access by him from his fast land to navigable water. A sufficient answer to this objection is that the state court recognized the present action as a proper one under the laws of Michigan for the relief sought by the plaintiff. We have therefore to consider only the controlling ques[152]tions of a Federal nature presented by the record and decided by the state court.

judgment against Wheeler will not prevent
it from instituting a suit for the direct deter-
mination of its rights as against the plain-
tiff. This subject has been examined by the
court in numerous cases, the most recent one
being Tindal v. Wesley, 167 U. S. 204, 222,
223, 42 L. ed. 137, 143, 17 Sup. Ct. Rep. 770.
In that case-which was a suit to recover
real property in South Carolina held by the
defendants, as they insisted, in their capaci-
ties as officers of the state, and only for the
state-it was said that "the 11th Amend-
ment gives no immunity to officers or agents
of a state in withholding the property of a
citizen without authority of law. And when
such officers or agents assert that they are in
rightful possession, they must make good that
assertion when it is made to appear in a
suit against them as individuals that the
legal title and right of possession is in the
plaintiff." Again: "It is said that the judg
ment in this case may conclude the state.
Not so. It is a judgment to the effect only
that, as between the plaintiff and the defend-
ants, the former is entitled to possession of[159]
the property in question, the latter having
shown no valid authority to withhold pos
session from the plaintiff; that the assertion
by the defendants of a right to remain in
possession is without legal foundation.
The state not being a party to the suit, the
judgment will not conclude it. Not having
submitted its rights to the determination of
the court in this case, it will be open to the
state to bring any action that may be appro-
priate to establish and protect whatever
claim it has to the premises in dispute. Its
claim, if it means to assert one, will thus be
brought to the test of the law as adminis-
tered by tribunals ordained to determine
controverted rights of property; and the rec-
ord in this case will not be evidence against
it for any purpose touching the merits of its

claim."

These principles are applicable to the pres ent case, and show that it is not within the rule forbidding a suit against the United States except with its consent.

3. The vital question, therefore, is the one heretofore mentioned, namely, whether the prohibition in the Constitution of the United States, of the taking of private prop erty for public use without just compensation, has any application to the case of an owner of land bordering on a public navigable river whose access from his land to navigability is permanently lost by reason of the construction of a pier resting on submerged lands away from, but in front of, his upland, and which pier was erected by the United States, not with any intent to impair the rights of riparian owners, but for the purpose only of improving the navigation of such river.

2. The supreme court of the state correctly held that the trial court erred in directing a verdict for the defendant upon the ground that a judgment against him would in legal effect be a judgment against the United States. It is true the defendant, Wheeler, insisted that the action of which the plaintiff complained was taken by him under the authority of the United States. But this fact was not sufficient to defeat the suit. If the plaintiff was entitled to access from his land to navigable water, and if the defendant stood in the way of his enjoying that right, then the court was under a duty to inquire whether the defendant had or could have any authority in law to do what he had done; and the suit was not to be deemed one against the United States because in the consideration of that question it would become necessary to ascertain whether the defendant could constitutionally acquire from the Undoubtedly compensation must be made United States authority to obstruct the or secured to the owner when that which is plaintiff's access to navigable water in front done is to be regarded as a taking of private of his land without making or securing com- property for public use within the meaning pensation to him. The issue, in point of of the 5th Amendment of the Constitution; law, was between the individual plaintiff and of course in its exercise of the power to and the individual defendant, and, the regulate commerce Congress may not over

ride the provision that just compensation | locks was to be deemed a part of the property must be made when private property is tak taken for which compensation must be made. en for public use. What is private proper- This court held that it was, remarking: ty within the meaning of that Amendment, “The franchise is a vested right. The state or what is a taking of private property for has power to grant it. It may retake it, as public use, is not always easy to determine. it may take other private property, for pubNo decision of this court has announced a lic uses, upon the payment of just compensarule that will embrace every case. But what tion. A like, though a superior, power exhas been said in some cases involving the ists in the national government. It may [154]*general question will assist us in determin- take it for public purposes, and take it even ing whether the present plaintiff has been against the will of the state; but it can no denied the protection secured by the consti- more take the franchise which the state has tutional provision in question. given than it can any private property beIn Pumpelly v. Green Bay & M. Canal Co. longing to an individual." Again, in the 13 Wall. 166, 181, 20 L. ed. 557, 561, the same case: "It is also suggested that the court construed a provision of the Constitu-government does not take this franchise; tion of Wisconsin declaring that "the prop- that it does not need any authority from the erty of no person shall be taken for public state for the exaction of tolls, if it desires to use without just compensation therefor;" exact them; that it only appropriates the observing that it was a provision almost tangible property, and then either makes the identical in language with the one relating use of it free to all, or exacts such tolls as it to the same subject in the Federal Constitu- sees fit, or transfers the property to a new tion. In that case it appeared that a public corporation of its own creation, with such a improvement in a navigable water was made franchise to take tolls as it chooses to give. under local statutory authority, whereby the But this franchise goes with the property; plaintiff's land was permanently overflowed and the navigation company, which owned it, and its use for every purpose destroyed. Re- is deprived of it. The government takes it ferring to some adjudged cases which went, away from the company, whatever use it as the court observed, beyond sound princi- may make of it; and the question of just ple, it was said that "it remains true that compensation is not determined by the value where real estate is actually invaded by su- to the government which takes, but the value perinduced additions of water, earth, sand, to the individual from whom the property is or other material, or by having any artificial taken; and when by the taking of the tangistructure placed on it, so as to effectually de- ble property the owner is actually deprived stroy or impair its usefulness, it is a taking of the franchise to collect tolls, just comwithin the meaning of the Constitution, and pensation requires payment, not merely of that this proposition is not in conflict with the value of the tangible property itself, but the weight of judicial authority in this coun- also of that of the franchise of which he is try, and certainly not with sound principle." deprived." That case was relied upon in Northern Transp. Co. v. Chicago, 99 U. S. 635, 642, 25 L. ed. 336, 338, as establishing the invalidity of certain municipal acts looking to the improvement of a public highway. But this court said that "acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within *From the finding of facts in that case it[156] the meaning of the constitutional provision. appears that at the time the dike was conThey do not entitle the owner of such prop- structed Mrs. Gibson's farm was in a high erty to compensation from the state or its state of cultivation, with a frontage of agents, or give him any right of action. 1,000 feet on the main channel of the Ohio This is supported by an immense weight of river, and had a landing that was used in authority." It was observed in the same shipping products from and in bringing supcase that the extremest qualification of the plies to it, and that there was no other landdoctrine was that found in Pumpelly's Case, ing on the farm which the owner could use and that case was referred to as holding in shipping products and in receiving supnothing more than that "the permanent flooding of private property may be regarded as a 'taking," because there would be in such case "a physical invasion of the real estate of the private owner, and a practical ouster of his possession." [155] *In Monongahela Nav. Co. v. United States, 148 U. S. 312, 341, 343, 37 L. ed. 463, 473, 474, 13 Sup. Ct. Rep. 622, there was an actual taking of certain locks and dams which had been constructed and maintained, under competent authority, by a navigation company; and the question was whether the franchise to take tolls for the use of the

But the case most analogous to the present one is that of Gibson v. United States, 166 U. S. 269, 271, 275, 276, 41 L. ed. 996, 998, 1002, 17 Sup. Ct. Rep. 578. That was an action in the court of claims to recover damages resulting from the construction of a dike by the United States in the Ohio river, near the plaintiff's farm on Neville island, a short distance below Pittsburg.

plies; that the dike was constructed under
the authority of an act of Congress appro-
priating money for improving the Ohio riv
er; that the owner was unable to use the
landing for the shipment of products from
and supplies to the farm for the greater part
of the gardening season on account of the
dike obstructing the passage of boats, and
could only use the landing at a high stage of
water; that after the dike was made she
could not, during the ordinary stage of wa-
ter, ship products from or receive supplies
for her farm, without going over the farms
of her neighbors to reach another landing;

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