Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow § 223.: Control of navigable streams.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2

Return to Title Page for A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2

Search this Title:

Also in the Library:

Subject Area: Law
Topic: The American Revolution and Constitution

§ 223.: Control of navigable streams.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 223.

Control of navigable streams.—

A navigable stream is one of which the public generally may make use in the interests of commerce and social intercourse. It is a highway, like the street or public road, to which every one has the right of access, and which every one may use in any manner consistent with the equal enjoyment of the stream by others. Any exclusive appropriation of the stream,2 or other interference with the ordinary use of the stream, is a nuisance, which any one may abate, by the removal of the obstructions to navigation, who may feel incommoded thereby.3

The determination of what makes a stream navigable, and consequently public, is a question for the court. The legislature cannot, by legislation, declare a stream navigable, which in fact is not so, for that would in effect be a taking of private property for a public use, which is only possible in the exercise of the right of eminent domain, and upon payment of compensation.1

According to the English common law, all streams were navigable in which the tide ebbed and flowed.2 In England, this is not the arbitrary rule, which it would be, if applied without qualification to the streams of this country. With the exception of the Thames, above tide-water, there are no streams in England which are practically and actually navigable, except those in which the tide ebbs and flows; and there are no tide-water streams of any importance, which are not actually navigable. But in the United States the situation is altogether different. Here, there are fresh-water streams which are navigable, and tidal streams which are not navigable. The application of the common-law rule, in its literal exactness, to the streams of this country would, therefore, result only in absurd conclusions. The courts of this country have been discussing the problem for many years, and have come to different conclusions on the various branches or subdivisions of the question. So far as the question concerns the location of the title to the bed of the stream, it need not be considered in this connection.3 Here, the question relates to the right of the public to make use of the stream, as a highway. In respect to this phase of the question, the courts very uniformly repudiate the common-law rule, in its literalness, and, seizing hold of the essence of the rule, declare that every stream, which is sufficiently deep and wide to float boats and rafts, used in the interests of commerce and agriculture, is navigable, and the public have a right to use it.1

As a general proposition, the power to regulate the use of navigable rivers resides in the States, through which the rivers flow. And the only constitutional limitation upon the State’s power of control, as against the United States government, is that which arises by implication from the express grant to Congress of the power to regulate foreign and interstate commerce. Inasmuch as a large part of this commerce is carried on by the use of the navigable streams of the country, it has been uniformly held by the courts, both Federal and State, that the Federal power to regulate commerce includes the power to institute regulations for the use and control of those streams, which are used in the prosecution of foreign and interstate commerce. But, inasmuch as all streams may be used in the carrying on of the domestic commerce, and serve other local interests, the congressional power of control does not exclude State regulation altogether. The power of the State to regulate the streams, which may be used in interstate commerce, is unaffected, as long as Congress does not exercise its power; and, in any case, the State regulations are void only as far as they conflict with the regulations of Congress.1

In the absence, therefore, of congressional legislation, the State may regulate the conduct and management of ships, their speed, etc., while making use of these watery highways; and the only other limitation upon the power of the State, which may be suggested by a study of police power in general, is that the regulation must be reasonable, as tending to prevent an injurious use of the stream.2 Thus, in order to prevent damage to vessels from a loose and careless floating of logs down the stream, the State may provide by law that the logs shall be bound together into rafts or inclosed in boats, and be placed under the control and supervision of men, who are required to be reasonably skilled in the management of rafts, and to be actually in charge of them.3 It has been held to be within the police power of the State to prohibit the removal of logs, which have been washed ashore on a navigable stream, without paying to the owner of the shore a certain sum for each log; and to provide for the sale of the logs by the landowner, if the owner of the logs refuses to make payment, or if he cannot be found, to appropriate to himself, out of the proceeds of sale, the permitted amount for each log so sold.4

In like manner are the fisheries in a navigable stream subject to police regulation of the State. Thus, it was held to be constitutional for a State to forbid non-residents to catch fish, for the manufacture of manure and oil, in the navigable waters of the State.1

Where the United States government has issued coasting licenses to vessels, to engage in interstate commerce on certain navigable streams, no State law can interfere with the enjoyment of the license, by granting to one or more persons the exclusive privilege of navigating the streams in question.2 Thus, an act of Maryland was not sustained, which prohibited the use of vessels in the oyster trade on the Chesapeake Bay, unless the owner had procured a license from the State authorities, and had paid a tonnage tax. The act was held to be unconstitutional, not only because it exacted a tonnage tax, in violation of the United States Constitution; but, also, because it interfered with the right to carry on the business of the owners of vessels, which were licensed and enrolled by the United States government.3

But except so far as the stream may be used, or is susceptible of use, in interstate or foreign commerce, it is within the police power of the State to grant exclusive rights to its use.4 This right of granting exclusive privileges in the use of a navigable stream is very commonly exercised in the creation of ferries, and the grant of exclusive ferry privileges. The establishment of a ferry across a navigable stream does not materially interfere with the ordinary navigation of the stream; and, consequently, the power of the State to create and regulate ferries in no case conflicts with the police control of Congress over navigable streams, unless Congress should by actual legislation, in the exercise of its power, supersede the subordinate State control.1 Not only may the State grant an exclusive privilege to the navigation of a stream, but it may grant an exclusive privilege to fish in the stream,2 or to cut ice when the river is frozen over. It is also a common exercise of proprietary power, in South Carolina, for the State to grant to corporations and individuals the exclusive right to dig phosphate rock in the beds of the navigable streams of the State.

The State has also the power to improve the navigable streams of the State, or to authorize private corporations and individuals to make the improvements, and charge toll of those who make use of the stream, as compensation for the improvements. This is but a reasonable exercise of police power, and the coasting licenses of the United States government create no exemption from liability to the regulation. All vessels may alike be required to pay toll.3

It has thus been held to be no violation of the Federal constitution for the State of Louisiana to authorize its levee district authorities to make proper provisions for the protection of its shores against inundations and overflows of the Mississippi river, even though it becomes necessary to go into the State of Arkansas, in order to make the proper provisions, provided it is done with the proper consent of the Arkansas government.1 But it is not within the power of the State to grant to private persons lands under tide waters, with the power to build dykes for the reclamation of the submerged lands: for that would be an interference with the navigable waters of the State.2 And, wherever Congress so wills it, it has the absolute power, in the interest of interstate and foreign commerce, to declare what may or may not constitute unlawful obstructions to the navigation of all the navigable waters, which are at all serviceable in the prosecution of interstate commerce. And Congress may make provisions for the removal of all prohibited obstructions, which provisions of law shall remove the questions from the jurisdiction of the States.3

The State has also the power to authorize the construction of bridges across the navigable streams within its horder; and if the stream is not one, that is or can be used in foreign and interstate commerce, the power of the State to authorize its construction can in no case be questioned, because the bridge will materially interfere with the ordinary navigation of the stream. The legislative determination of the public needs cannot in such a case be controlled by the judicial discretion.4 The State may also license the construction of piers, extending into the current of the navigable stream; and it has been held that one is not entitled to damages for injury to his fishery, resulting from the construction of the pier.1

In respect to the streams, which are subject to the control of Congress, because they are used in the conduct of interstate commerce, the authority to construct a bridge may be granted by Congress or by the State legislature. If Congress grants the authority, the interference of the bridge with interstate commerce will constitute no objection to the legality of the structure,—the determination of Congress that it causes only a reasonable interference with the navigation of the stream being conclusive, in the same manner as a like determination of the State legislatures is, in respect to bridges over streams not adapted for use in interstate commerce. But if the State legislature authorize the construction of a bridge over a stream used in interstate commerce,—inasmuch as the interference with interstate commerce by the State is only permissive, and secondary to the primary control of Congress,—the judgment of the legislature, that the bridge causes only a reasonable interference with navigation, which is justifiable by the increased facilities for rapid transportation which the bridge affords, is not conclusive, and the ultimate decision, in the absence of congressional action, rests with the Federal courts, who are deemed to have the power to pass upon the reasonableness of the interference with navigation, and to cause the bridge to be removed, if it is found to interfere materially with the use of the stream in foreign or interstate commerce.2 But, even after a bridge has been condemned by the court because of its unreasonable interference with interstate commerce, Congress may interpose, in the exercise of its power to regulate commerce, and declare the bridge to be a lawful structure.1

Where a bridge is constructed across a river which separates two States, the use of that bridge is necessarily interstate commerce. Hence, while the States, on whose shores the piers and approaches of the bridge are constructed, may levy a tax upon the intangible property of the bridge company;2 the police power of neither State covers the management and control of the bridge itself; so that neither State can regulate the tolls which the bridge company might charge for the use of the bridge. Congress alone can exercise this police control of the bridge.3

These interferences with the general navigation of a stream by the public do not constitute a limitation of the State control of streams, which cannot be used for foreign and interstate commerce. Congress has no control over these streams, and it seems to be the universally recognized rule that there is no limit to the power of the State to regulate their use. It is even held to be lawful to obstruct such a stream by the erection of dams, even to the extent of prohibiting navigation altogether. If the person who constructs the dam keeps within the authority given him, he is in no way responsible to those who may be damaged by the obstruction.1

[2]Commonwealth v. Charlestown, 1 Pick. 180; Kean v. Stetson, 5 Pick. 492; Arnold v. Mundy, 6 N. J. 1; Bird v. Smith, 8 Watts, 434.

[3]Inhabitants of Arundel v. McCulloch, 10 Mass. 70; Selman v. Wolfe, 27 Tex. 78; State v. Moffett, 1 Greene (Iowa), 247. In Maine it has been held to be a public right, when the streams are frozen over, to pass over them on foot or in vehicles, which cannot be interfered with, by cutting and removing the ice, without special authority of the State. French v. Camp, 18 Me. 433.

[1]Treat v. Lord, 42 Me. 552; Morgan v. King, 18 Barb. 284; s. c. 35 N. Y. 454; Glover v. Powell, 10 N. J. Eq. 211; Baker v. Lewis, 33 Pa. St. 301; Weise v. Smith, 3 Ore. 445 (8 Am. Rep. 621); American River Water Co. v. Amsden, 6 Cal. 443.

[2]Commonwealth v. Chapin, 5 Pick. 199; People v. Tibbetts, 19 N. Y. 523; Lorman v. Benson, 8 Mich. 18.

[3]As to this branch of the question, see Tiedeman on Real Prop., § 835.

[1]The Daniel Ball, 10 Wall. 557; The Montello, 20 Wall. 439; Spring v. Russell, 7 Me. 273; Brown v. Chadbourne, 31 Me. 9; Ingraham v. Wilkinson, 4 Pick. 268; Commonwealth v. Alger, 7 Cush. 53; Claremont v. Carlton, 2 N. H. 369; Canal Comrs. v. People, 5 Wend. 423; People v. Platt, 17 Johns. 195; Morgan v. King, 25 N. Y. 454; Palmer v. Mulligan, 3 Caines, 315; Shrunk v. Schuylkill Co., 14 Serg. & R. 71; Cates v. Wadlington, 1 McCord, 580; Commissioners, etc., v. Withers, 29 Miss. 21; Rhodes v. Otis, 33 Ala. 578; Elder v. Barnes, 6 Humph. 358; Gavit v. Chambers, 3 Ohio, 495; Blanchard v. Porter, 11 Ohio, 138; Depew v. Board of Comrs., etc., 5 Ind. 8; Board of Comrs. v. Pidge, 5 Ind. 13; Moore v. Sanborn, 2 Mich. 519; Dorman v. Benson, 8 Mich. 18; Middleton v. Pritchard, 4 Ill. 560; McManus v. Carmichael, 3 Iowa, 1; Weise v. Smith, 3 Ore. 445 (8 Am. Rep. 621).

[1]Cooley Const. Lim. 730; Wilson v. Black Bird Creek Marsh Co., 2 Pet. 245; Wheeling Bridge Case, 13 How. 518; s. c. 18 How. 421; Gilman v. Philadelphia, 3 Wall. 713; Withers v. Buckley, 20 How. 84; Gibbons v. Ogden, 9 Wheat. 1; Escanaba Company v. Chicago, 107 U. S. 678. Rumsey v. N. Y. & N. E. Ry. Co., 63 N. Y. 200. Under the power to regulate commerce, Congress may regulate the sale, mortgage, etc., of United States vessels engaged in interstate trade. Shaw v. McCandless, 36 Miss. 296. As to how far State legislatures may authorize condemnation of ships as unseaworthy by tribunals constituted by State authority, in absence of any general regulation made by Congress, see Janney v. Columbus Ins. Co., 10 Wheat. 418.

[2]See people v. Jenkins, 1 Hill, 469; People v. Roe, 1 Hill, 470.

[3]Craig v. Kline, 65 Pa. St. 399 (3 Am. Rep. 636). See Harrigan v. Conn. River Lumber Co., 129 Mass. 580 (37 Am. Rep. 387).

[4]Henry v. Roberts, 50 Fed. 902.

[1]Brothers v. Church, 14 R. I. 398 (51 Am. Rep. 410). See, generally, People v. Reed, 47 Barb. 235; Phipps v. State, 22 Md. 380; Gentile v. State, 29 Ind. 409.

[2]Gibbons v. Ogden, 9 Wheat. 1; Ogden v. Gibbons, 4 Johns Ch. 150; s. c. 17 Johns. 488; Steamboat Company v. Livingston, 3 Cow. 713. See Gilman v. Philadelphia, 3 Wall. 713; The Daniel Ball, 10 Wall. 557.

[3]Booth v. Lloyd, 33 Fed. 593; Ex parte Insley, 33 Fed. 680.

[4]Veazie v. Moor, 14 How. 568. In this case the stream, over which the exclusive privilege extended, was that part of the Penobscot river, which was intercepted from communication by boats with the sea by a fall and several dams, and consequently was not susceptible of use in interstate commerce. See, also, People v. Tibbetts, 19 N. Y. 523; Livingston v. Van Ingen, 9 Johns. 50; McReynolds v. Smallhouse, 8 Bush, 447.

[1]Conway v. Taylor’s Ex’r, 1 Black, 603; Fanning v. Gregorie, 16 How. 524; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; Parker v. Metropolitan, etc., R. R. Co., 109 Mass. 506; People v. Mayor, etc., of New York, 32 Barb. 102; Chilvers v. People, 11 Mich. 43; Marshall v. Grimes, 41 Miss. 27; Carroll v. Campbell, 108 Mo. 550.

[2]See Tinicum Fishing Co. v. Carter, 90 Pa. St. 85 (35 Am. Rep. 602).

[3]See, generally, Thames Bank v. Lovell, 18 Conn. 500; Kellogg v. Union Co., 12 Conn. 6; Zimmerman v Union Canal Co., 1 Watts & S. 346; Benjamin v. Manistee, etc., Co., 42 Mich. 628; Nelson v. Sheboygan Nav. Co., 4 Mich. 7 (38 Am. Dec. 222); Wisconsin River Improvement Co. v. Manson, 43 Wis. 255 (28 Am. Rep. 542); McReynolds v. Smallhouse, 8 Bush, 447; Carondelet Canal, etc., Co. v. Parker, 29 La. Ann. 430 (29 Am. Rep. 339); Huse v. Glover, 119 U. S. 543; Stockton v. Powell, 29 Fla. 1.

[1]Fisher v. Steele, 39 La. Ann. 447.

[2]Coxe v. State, 144 N. Y. 396.

[3]United States v. North Bloomfield Gravel Mining Co., 81 Fed. 243.

[4]Commonwealth v. Breed, 4 Pick. 460; Dover v. Portsmouth Bridge, 17 N. H. 200; Depew v. Trustees of W. & E. Canal, 5 Ind. 8; Illinois, etc., Co. v. Peoria Bridge, 28 Ill. 467; Chicago v. McGinn, 51 Ill. 266 (2 Am. Rep. 295).

[1]Tinicum Fishing Co. v. Carter, 90 Pa. St. 85 (35 Am. Rep. 632).

[2]Wheeling Bridge Case, 13 How. 518; Columbus Ins. Co. v. Peoria Bridge Co., 6 McLean, 70; Columbus Ins Co. v. Peoria Bridge Co., 6 McLean, 209; Jolly v. Terre Haute Drawbridge Co., 6 McLean, 237; United States v. New Bedford Bridge, 1 W. & M. 401; Commissioners of St. Joseph Co. v. Pidge, 5 Ind. 13; Decker v. Balt. & N. Y. R. Co., 30 Fed. Rep. 723. Stockton v. Balt. & N. Y. Ry. Co., U. S. C. C. 32 Fed. 9; Rhea v. Newport, N. & M. V. Ry. Co., 50 Fed. 16; State v. Leighton, 83 Me. 419; Green & B. R. Nav. Co. v. Chesapeake & S. W. Ry. Co., 88 Ky. 1 (State authorizing temporary obstruction of navigable river for the repair of the railroad bridge); Winifrede Coal Co. v. Central Railway and Bridge Co. (Ohio), 24 Wkly. Law Bul. 173; Pennsylvania Ry. Co. v. Baltimore and N. Y. Ry. Co., 37 Fed. 129 (congressional grant of the right to construction of a bridge without the consent, and against the protest, of the State); Luxton v. North River Bridge Co., 153 U. S. 525; Henderson Bridge Co. v. Kentucky, 166 U. S. 150. It has been held that Congress cannot delegate to the Secretary of War, or to any other administrative officer, the power to determine whether a bridge over a navigable stream is an obstruction to interstate commerce, and, upon reaching such an adverse determination, to cause it to be removed, or so reconstructed, as that the bridge will cease to be an obstruction. United States v. Rider, 50 Fed. 406; U. S. v. Keokuk and II. Bridge Co., 45 Fed. 178.

[1]Wheeling Bridge Case, 18 How. 421.

[2]Henderson Bridge Co. v. Kentucky, 166 U. S. 150.

[3]Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204; reversing Commonwealth v. Covington & C. Bridge Co. (Ky.), 21 S. W. 1042; Covington & C. El. Railroad & Transfer Bridge Co. v. Kentucky, 154 U. S. 224; reversing s. c. (Ky.) 22 S. W. 851.

[1]Wilson v. Black Bird Creek Marsh Co., 2 Pet. 245; Parker v. Cutler Mill Dam Co., 21 Me. 353; People v. Vanderbilt, 28 N. Y. 396; Hinchman v. Patterson, etc., R. R. Co., 17 N. J. Eq. 75; Roush v. Walter, 10 Watts 86; Zimmerman v. Union Canal Co., 1 Watts & S. 346; Brown v. Commonwealth, 3 Serg. & R. 273; Bailey v. Phila., etc., R. R. Co., 4 Harr. 389; Hogg v. Zanesville Co., 5 Ohio, 257; Depew v. Trustees of W. & E. Canal Co., 5 Ind. 8; Neaderhouser v. State, 28 Ind. 257; Stoughton v. State, 5 Wis. 291; Commissioners v. Withers, 29 Miss. 21; Eldridge v. Cowell, 4 Cal. 80.