Charles Evans Hughes

“ Whatever the nature of the interest of a riparian owner in the submerged lands in front of his upland bordering on a public navigable water, his title is not as full and complete as his title to fast land which has no direct connection with the navigation of such water. ”

“ Let it be assumed that the Pennsylvania statute, in its regulation of rights, established the commissioners' high-water line as the permanent boundary of the island, and conferred upon the riparian owner, so far as it was within the competency of the state to confer it, the right to fill in and to erect structures to the limit of this line, regardless of subsequent changes in the actual high-water line caused by the washing away of the banks of the river. ”

“ The legislature may, therefore, with great propriety, define the bounds of high and low water, by means of a suitable commission, for the purpose of regulating the public right, so as not to conflict with private interests, and to prevent private rights from being exercised to the prejudice of public interests ”

“ The complainant, a corporation of the commonwealth of Pennsylvania, is the owner in fee of 'Brunot's island,' formerly Chartier's or Hamilton's island, in the Ohio river, in Allegheny county, Pennsylvania. In 1858, a statute was enacted in Pennsylvania, providing for the appointment of commissioners to ascertain and mark the lines of ordinary high and low water in the Allegheny, Monongahela, and Ohio rivers in the vicinity of Pittsburg. ”

“ The state lines can be conceded no permanent force, as against the will of Congress, without substituting for its constitutional authority the supremacy of the state with respect to navigable waters.
It is for Congress to decide what shall or shall not be deemed in judgment of law an obstruction of navigation. Pennsylvania v. Wheeling & B. Bridge Co. 18 How. 421, 15 L. ed. 435. And in its regulation of commerce it may establish harbor lines or limits beyond which deposits shall not be made or structures built in the navigable waters. ”

“ It is manifest that these allegations are inadequate to support the complainant's contention. The determining words are that the land was 'washed away from time to time by heavy floods and freshets,' and the reference is to what occurred in many years. This is far from a statement that at any particular time there was such a sudden, violent, and visible change as to justify a departure from the ordinary rule which governs accretion and diminution, albeit the stream suffer wide fluctuations in volume, the current be swift, and the banks afford slight resistance to encroachment. ”

“ And a similar injury may be inflicted, and there may exist ground for equitable relief, when an officer, insisting that he has the warrant of the statute, is transcending its bounds, and thus unlawfully assuming to exercise the power of government against the individual owner, is guilty of an invasion of private property. ”

“ The doctrine that the owner takes the risk of the increase or diminution of his land by the action of the water applies as well to rivers that are strong and swift, to those that overflow their banks, and whether or not dykes and other defenses are necessary to keep the water within its proper limits. It is when the change in the stream is sudden, or violent, and visible, that the title remains the same. It is not enough that the change may be discerned by comparison at two distinct points of time. ”

“ While these plans were being perfected, the Secretary of War, through his representative, the United States engineer officer at Pittsburg, declared to the complainant that it had no right to build upon its land across either of the harbor lines, and he refused to permit the complainant to reclaim its land or to build its wharf thereon outside the harbor line of 1907. ”

“ It will be observed that it is said that the United States caused the erection of the dam in the interest of navigation. The complainant purchased the island subsequently, in the year 1896. And we are not concerned here with the question whether there was any appropriation of land of the former owner by the United States, and a cause of action arose to recover its value. ”

“ We are confined to the allegations of the bill. We have not the advantage of proof and findings, or even of a particularized description in the bill itself, as to the precise character of the alterations in the banks of Brunot's island which took place during the long period to which the bill refers. ”

“ Third. The fourth and fifth special grounds of demurrer assert that the supreme court of the District of Columbia had no jurisdiction to define boundaries in the state of Pennsylvania, or to remove a cloud upon title to land in that state. ”