Joseph McKenna

“ 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. ”

“ It would seem that the existence of the power of Congress has been withdrawn from the domain of discussion by many authorities, and that little room is left for debate as to the extent of that power.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. ”

“ 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. ”

“ 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. ”

“ 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.'
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. ”

“ 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. ”

“ 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.
Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 98, is not in antagonism to the principle announced in those cases. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”