river in front of the city of Washington was
involved. The majority of the court held
that, under the evidence, the titles of the own-
ers of lots in the city plans were bounded
by Water street, and that, therefore, such
owners possessed no riparian rights entitled
to compensation by the United States in
carrying out a scheme of improvement of
the waters of the river.

of those means well known when the Consti-
tution was adopted, and employed to obtain
land for public uses. Its existence, *there-[184]
fore, in the grantee of that power, ought not
to be questioned. The Constitution itself
contains an implied recognition of it beyond
what may justly be implied from the express
grants. The 5th Amendment contains a
provision that private property shall not be
taken for public use without just compensa-
tion. What is that but an implied asser-
tion that, on making just compensation, it
may be taken?" Kohl v. United States, 91
U. S. 374, 23 L. ed. 452.

The opinion of the court proceeded on the
assumption, as matter of law, that owners
of land abutting on the river would be pos-
scssed of riparian rights, and entitled, there-
fore, to compensation if such rights were im-
paired or destroyed by the improvements
proposed by the government, but held, as a
conclusion from the evidence, that, as matter
of fact, the owners of lots under the city
plans did not have titles extending to the
river, but that their lots were bounded by
Water street, the title to which was in the
[183]city, and therefore no compensation for *ex-priated money for the purpose.
clusion from the river could be enforced. The
case, therefore, may be properly regarded as
an authority for the proposition that the
owners of lots abutting on a navigable river
are entitled to compensation if their riparian
right of access is taken from them by im-
provements made by the government to pro-
mote the navigability of the Potomac river.
The long investigation by court and counsel
was, indeed, labor in vain if, at last, riparian
rights possessed by the lotowners should be
decided not to be private property within
the protection of the Constitution.

Accordingly in that case, a proceeding instituted by the United States to appropriate a parcel of land in the city of Cincinnati as a site for a postoffice and other public uses was upheld, but those proceedings contemplated compensation, and Congress, in the act authorizing the proceedings, appro

Now if, in order to render valid an appropriation of private property for the use of the government in the erection of postoffices and courthouses, compensation must be made, what is the difference in principle if the government is appropriating private property for the purpose of improving the navigation of a navigable stream? This question has been already put and answered by this court in Monongahela Nav. Co. v. United States, 148 U. S. 312, 37 L. ed. 463, 13 Sup. Ct. Rep. 622, where it was said: "It cannot be doubted gress has the power in its discretion to compel the removal of this lock and dam as obstructions to the navigation of the river, or to condemn and take them for the purpose of promoting its navigability. In other words, it is within the competency of Congress to make such provision respecting the improvement of the Monongahela river as in its judgment the public interests demand. Its dominion is supreme.

that Con

If, then, by the law of the state in which
the land is situated, the right of access to
navigable streams is one of the incidents of
abutting land, if such rights are held to be
property and valuable as such, can the
United States, under the incidental power
arising out of their jurisdiction over inter-
state commerce, destroy such right of access
without making compensation? I think
that this question may well be answered in
the words of Gould in his work on Waters, "But, like other powers granted to
2d ed. § 151: "When it is conceded tha ri- Congress by the Constitution, the power to
parian rights are property, the question as regulate commerce is subject to all the lim-
to the right to take them without compensa-itations imposed by such instrument, and
tion would appear to be at an end."

among them is that of the 5th Amendment The argument against the right of com- we have heretofore quoted. Congress has pensation in such a case seems to be based supreme control over the regulation of comupon an assumption that because the govern- merce, but if, in exercising that supreme ment has the power to make improvements control, it deems it necessary to take private in navigable waters it follows that it can do property, then it must proceed subject to the so without making compensation to the own-limitations *imposed by this 5th Amend-[185] ers of private property destroyed by the improvements. But this assumption is, as I think, entirely without foundation, and, if permitted by the courts to be made practically applicable, would amount to a disregard of the express mandate of the Constitution that private property shall not be taken for public uses without just compensation.

"The power to establish postoffices and to create courts within the states was conferred upon the Federal government; included in it was authority to obtain sites for such of fices and for courthouses, and to obtain them by such means as were known and appropriate. The right of eminent domain was one 179 U. S. U. S., Book 45.

ment, and can take only on payment of just
compensation."

"The power to regulate commerce is not
given in any broader terms than that to es-
tablish postoffices and post roads; but if Con-
gress wishes to take private property upon
which to build a postoffice, it must either
agree upon the price with the owner, or in
condemnation pay just compensation therc
for.

And that which is true in respect to a condemnation of property for a postoffice is equally true when condemnation is sought for the purpose of improving a natural highway."

As already remarked, the power of the government to control and regulate naviga

10

145

if the phrase may have an application broad enough to include all property and ownership, the question would still arise whether the appropriation of a few square feet of the river bottom to the foundation of a bridge which is to be used for the transportation of an extensive commerce in aid and relief of that afforded by the waterway is at all a diversion of the property from its original public use."

ble streams, and to carry into effect schemes | igation and commerce-the question arises for their improvement, is not directly given whether it is a kind of property susceptible by the Constitution, but is only recognized of pecuniary compensation within the meanby the courts as an incident to the power ex- ing of the Constitution. The 5th Amendpressly given to regulate commerce between ment provides only that private property the states and with foreign nations. shall not be taken without compensation, Now, if it be held that Congress has pow-making no reference to public property. But er to take or destroy private property lying under or adjacent to navigable streams, without compensating their owners, because it is done in the exercise of the power to regulate commerce, then it must follow that the same unlimited power can be exercised with respect to private property not in nor bounded by water. The power of Congress to regulate commerce is not restricted to commerce carried on in lakes and rivers, but equally extends to commerce carried on by land. If Congress, yielding to a loud and increasing popular demand that it should take possession and control of the railroads of the country, or should undertake the construction of new railroads as arteries of commerce, this novel notion, that the existence of the right to regulate commerce creates of itself, and independently of the law of the state, a Federal servitude on all property to be affected by the exercise of that right, would apply to all kinds of private property wherever situated.

But it may be asked why, if the question as to riparian rights is one of state law, the decision of the supreme court of Michigan in the present case, denying the claim of the abutting owner for compensation for the loss of his access to the river, is not conclusive, [186] *The answer to this question will be found in the opinion of that court. Instead of ascertaining and applying, or professing to apply, the law of the state in respect to riparian rights, the supreme court of Michigan treated the question as one under Federal law, and, following what it understood to be the doctrine laid down by several Federal circuit court decisions as obligatory, held that it was competent for the government of the United States, in the exercise of its power to regulate commerce between the states, to deprive abutting owners of their right of access to navigable streams without compensating them for their loss. The cases so relied on were Stockton v. Baltimore & N. Y. R. Co. 32 Fed. Rep. 9, 1 Inters. Com. Rep. 411; Hawkins Point Lighthouse Case, 39 Fed. Rep. 77; and Scranton v. Wheeler, 16 U. S. App. 152, 57 Fed. Rep. 803, 6 C. C. A. 585.

The first of these cases arose on a bill filed in the circuit court of the United States for the district of New Jersey by the attorney general of New Jersey, seeking to restrain the Baltimore & New York Railroad Company, acting under congressional authority, from occupying without compensation land belonging to the state of New Jersey, lying under tide waters, by the pier of a bridge. Mr. Justice Bradley, refusing the injunction, said:

"The character of the state's ownership of the land under water-an ownership held, not for the purpose of emolument, but for public use, especially the public use of nav

Mr. Justice Bradley was himself a New Jersey lawyer, and availed himself, in that[187] case, of the law of that state, which has always been to the effect that the land underlying the tide waters belonged to the state, and was held for a public use. His view was that as, under the law of New Jersey, the land beneath tide waters was held by the state for public uses, such land was not pri vate property within the meaning of the Constitution, or that, at all events, its occupation, to a limited extent, by the pier of a bridge intended to promote commerce, was not a diversion of the property from its original use.

It needs no argument to show that such a decision is not applicable to the present case. Indeed, it is plain that if the case had been one involving the right of an abutter to access to the tide water, the same being, under the laws of the state, private property, the decision of that learned justice would have been very different. He was the organ of this court in pronouncing the opinion in Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224, where the question was whether the title of riparian proprietors on the banks of the Mississippi extended to ordinary high-water mark or to the shore between high and low water mark, and said:

"In our view of the subject the correct principles were laid down in Martin v. Waddell, 16 Pet. 367, 10 L. ed. 997; Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; and Goodtitle v. Kibbe, 9 How. 471, 13 L. ed. 220. These cases related to tide water, it is true, but they enunciate principles which are equally applicable to all navigable waters. And since this court, in the case of The Genesce Chief, 12 How. 443, 13 L. ed. 1058, has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters. It properly belongs to the states by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water. The cases in which this court has seemed to hold a contrary view depended, as most cases

must depend, on the local laws of the states in which the lands are situated. In Iowa, [188]as *before stated, the more correct rule seems to have been adopted after a most elaborate investigation of the subject." Whether the distinction suggested by Mr. Justice Bradley, between property held by the state for public purposes and private property, be or be not sound, the doctrine has no application to the present case, and, as the circuit court case was not brought for review to this court, the suggestion remains unadjudged.

v. United States, 149 U. S. 593, 37 L. ed. 862, 13 Sup. Ct. Rep. 1011.

Yet this was the case which the supreme court of Michigan said in their opinion “appeared to be exactly in point and to rule the present case."

The so-called Hawkins Point Lighthouse Case was an ejectment brought in the Circuit court of the United States for the district of Maryland to recover possession of the land covered by a lighthouse erected on land lying under the waters of a tide-water navigable river, by the lighthouse board, in pursuance of acts of Congress. The plaintiff claimed to be the owner of the submerged land. and the action did not involve the question of access to the river. Judge Morris held that the plaintiff was not entitled to recover; and, although stating that "the court of appeals of Maryland, whenever called upon to declare the nature of the titie 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," extended Mr. Justice Bradley's suggestion in the New Jersey case, and declared that the plaintiff, as grantee of the state, had no private property in the submerged land entitled to constitutional protection. As the structure was a lighthouse the case might have been gov erned by peculiar considerations, but the learned judge of the circuit court seems to have gone further, and to have held that, as a matter of Federal law, "in the hands of the state or of the state's grantees the bed of a navigable river remains subject to an easement of navigation, which the general government can lawfully enforce, improve, and protect, and that it is by no means true that any dealing with a navigable stream which impairs the value of the rights of riparian owners gives them a claim for compensation." If by this is meant that riparian owners may be deprived, without compensation, of access to navigable streams abutting on their land, by reason of a supposed servitude or easement imposed by the [189ower granted to Congress by the Constitution to regulate commerce, then, for the reasons heretofore given and under the authorities cited, such a view cannot be sustained. The case under the name of Hill v. United Nor can the statement that, in the opinion States was brought to this court, but the of this court, "it was not intended by the writ of error was dismissed on an independ- framers of the Constitution that the paraent ground, which rendered it unnecessary mount authority of Congress to improve the for this court to pass upon the questions navigation of the public navigable waters ruled in the court below. There the question of the United States should be crippled by of the right of the plaintiff to be compensated for deprivation of his riparian rights was not considered, and, indeed, could not be, as it was held that neither the circuit court nor this court had jurisdiction. Hill

The only other case relied on by the supreme court of Michigan was Scranton v. Wheeler, 16 U. S. App. 152, 57 Fed. Rep. 803. 6 C. C. A. 585, being this identical case, which had been removed from the state to the Federal court. It was subsequently brought to this court, but was dismissed because the record did not show that a Federal question had been raised or presented in the plaintiff's statement of his case in the state court. Accordingly the cause was remanded to the state court, and subsequently reached this court by a writ of error to the supreme court of Michigan. While the case was in the circuit court of appeals an opinion was filed by Circuit Judge Lurton, in which, without adverting to the law of the state of Michigan, or citing any decisions of the supreme court of that state, in respect to riparian rights, he held that the right of the plaintiff, of access to the navigable water, was subordinate to the power of the Federal government to control the stream for the purposes of commerce, and that the plaintiff' was therefore not entitled to compensation for the extinction of his right.

The proposition, frequently made, that the power of Congress to regulate interstate commerce, and therefore navigation, is paramount, can properly be understood to mean only that, as between the authority of the states in such matters and that of the genhas no just reference to questions concerneral government, the latter is superior. It ing private property lying *within the state- [190] Much less can it be rightly used to signify that such power can be exercised by Congress without regard to the right of just compensation when private property is taken for public use.

The suggestion that "the riparian owner subject to the possibility that such right acquired the right of access to navigability, the erection, under competent authority, of might become valueless in consequence of structures on the submerged lands in front of his property, for the purpose of improving navigation," would seem to be irrelevant, because the liability that his private property may at all times be taken for public uses is known to everyone. But hitherto it has not been supposed that the knowledge of such liability deprives the owner of the right of compensation when his property is actually so taken.

compelling the government to make compen-
sation for the injury to a riparian owner's
right of access to navigability that might
incidentally result from an improvement.”
be admitted. The intention of the framers

[191]

is seen in the provisions of the Constitution,
and in them the right to take private prop
erty for public uses is indissolubly connected
with the duty to make just compensation.
It cannot be supposed that a recognition of
such a duty would cripple the government
in the just exercise of the power it incident-
ally possesses to regulate interstate naviga-
tion.

As, then, the supreme court of Michigan considered the question solely as a Federal one, in which it supposed it was controlled by the Federal cases cited, this court has jurisdiction to review its judgment; and as by that judgment the plaintiff in error has been refused the protection of the Constitution of the United States claimed by him, I think the judgment should be reversed and the cause remanded to be proceeded in according to law.

under treaty relations with the United
States at that date; and "that petitioner is
a naturalized citizen of the United States,
and has at all times borne true allegiance to
the government of the United States," etc.

The United States pleaded that the claim-
ant was not a citizen of the United States et
the date of the alleged depredation, and that
the court was therefore without jurisdiction
to hear and determine the cause.

The court adopted as its findings of fact
the following agreed statement of facts:
"The claimant, Fritz Contzen, was born
in Germany on the 27th day of February,
1831, and emigrated to Texas in July, 1845.
He remained in Texas until the admission
of the state into the Union, December 29,
1845.

"Since the admission of Texas the claim-
ant has resided continuously *in the United[192}
States, mostly in Arizona and some time in

Mr. Justice Gray and Mr. Justice Peck- California. He visited Germany with his ham concur in this dissent.

*FRITZ CONTZEN, Appt.,

v.

wife and child from 1873 to 1880, his home
and furniture remaining all the time in this
country. lie was married in the United
States. His residence was in Texas until he
came to Arizona, in 1855, with Major Emo-
ry, on the boundary commission.

"In the year 1854 he went into court at

UNITED STATES and the Apache In San Antonio, Texas, and he was told that

dians.

[No. 84.]

he being a resident of Texas when it be-
came part of the United States, that made
him a citizen of the United States, and he
voted there. He never took any further
steps about naturalization. There is no rec-
ord of naturalization, from 1847 on, of any-
one of the claimant's name, when such reo-
ord should appear in the courts of San An-
tonio.

"That in October, 1861, the defendant In-
dians were in amity with the United States.”
Judgment was thereupon given sustaining
defendants' plea to the jurisdiction, and dis-
missing the petition. 33 Ct. Cl. 475.

Messrs. A. B. Browne, Alexander
Britton, J. W. Douglas, and Alexander
Porter Morse submitted the cause for ap-
pellant:

The leaning, in questions of citizenship,
should always be in favor of the claimant of
it.

Submitted November 7, 1900. Decided De- S. 135, 36 L. ed. 103, 12 Sup. Ct. Rep. 375.
Boyd v. Nebraska ex rel. Thayer, 143 U.

A

cember 3, 1900.

PPEAL from a decision of the Court of Claims dismissing a petition on a claim to recover for Indian depredations. Af firmed.

See same case below, 33 Ct. Cl. 475.

Statement by Mr. Chief Justice Fuller: Appellant filed his petition in the Court of Claims, alleging that on October 20, 1861, a band of Apache Indians raided the settlement at San Xavier, near Tucson, Arizona territory, and stole from his ranch certain cows, horses, and mules of the value of $10,330: that these Indians were in amity and

NOTE 48 to citizenship and alienage under state and Federal laws-see note to Minneapolis v. Reum, 6 C. C. A. 37.

The word "people" is synonymous with the word "inhabitants."

Desbois's Case, 2 Mart. (La.) 185; Boyd
v. Nebraska ex rel. Thayer, 143 U. S. 135,

36 L. ed. 103, 12 Sup. Ct. Rep. 375; Ameri-
can Ins. Co. v. 356 Bales of Cotton, 1 Pet.
511, 7 L. ed. 242; Webster, Dict. People;
Quinby v. Duncau, 4 Harr. (Del.) 383.

Every freeman has the right of election of
citizenship (nationality).

Boyd v. Nebraska ex rel. Thayer, 143 U.
S. 135, 36 L. ed. 103, 12 Sup. Ct. Rep. 375;
U. S. Rev. Stat. § 1999, p. 351; Koszta's
Case, 2 Wharton, International Law, §§ 175,
198.

Upon the acquisition, cession, or incorpo-
ration of a heretofore independent state into
the American Union, the inhabitants,-the

Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 36 L. ed. 103, 12 Sup. Ct. Rep. 375; Debois's Case, 2 Mart. (La.) 185; United States v. Laverty, 3 Mart. (La.) 735; 2 Story, Const. p. 654, 4th ed. note by Cooley. Citizens (nationals), lato sensu, are naturally and usually divided into two general classes: (1) All the inhabitants (people) resident in the country, who are secured, by the public, natural, or fundamental law, the enjoyment of civil, personal, and property Johnson v. United States, 160 U. S. 546, rights; (2) a limited and privileged num- 40 L. ed. 529, 16 Sup. Ct. Rep. 377. ber who, from reasons or motives of state The question of naturalization and allepolicy or expediency, are clothed with politi-giance is distinct from that of domicil. cal power and exercise the elective franchise. Scott v. Sandford, 19 How. 393, 15 L. ed. 691; Minor v. Happersett, 21 Wall. 162, 22 L. ed. 627; Murphy v. Ramsey, 114 U. S. 15, 29 L. ed. 47, 5 Sup. Ct. Rep. 747.

The perpetual inhabitants (of a state) are those who have received the right of perpet- If the question in this case turned on the ual residence. These are a kind of citizens change of domicil, and doubt existed, the of an inferior order, and are united and sub-presumption would be in favor of the presject to the society without participating in ervation of the original nationality. all its advantages. Morse, Citizenship, p. 13.