Mahlon Pitney

“ It follows from what we have said that the servitude of privately-owned lands forming the banks and bed of a stream to the interests of navigation is a natural servitude, confined to such streams as, in their ordinary and natural condition, are navigable in fact, and confined to the natural condition of the stream. And, assuming that riparian owners upon non-navigable tributaries of navigable streams are subject to such inconveniences as may arise from the exercise of the common right of navigation, this in like manner must be limited to the natural right. ”

“ If any substantial enjoyment of the land still remains to the owner, it may be treated as a partial instead of a total devesting of his property in the land. The taking by condemnation of an interest less than the fee is familiar in the law of eminent domain. ”

“ In some cases, like the Fox river, they may be so great while they last as to prevent the use of the best instrumentalities for carrying on commerce, but the vital and essential point is whether the natural navigation of the river is such that it affords a channel for useful commerce. ”

“ The right to have the water flow away from the milldam unobstructed, except as in the course of nature, is not a mere easement or appurtenance, but exists by the law of nature as an inseparable part of the land. A destruction of this right is a taking of a part of the land. ”

“ But the authority to make such improvements is only a branch of the power to regulate interstate and foreign commerce, and, as already stated, this power, like others, must be exercised, when private property is taken, in subordination to the 5th Amendment. ”

“ Rep. 349: 'Where the government by the construction of a dam or other public works so floods lands belonging to an individual as to substantially destroy their value, there is a taking within the scope of the 5th Amendment. ”

“ That the test of navigability in fact should be applied to streams in their natural condition was in effect held in The Daniel Ball, 10 Wall. 557, 19 L. ed. 999,-a case which turned upon the question whether Grand river, in the state of Michigan, was one of the 'navigable waters of the United States' within the meaning of acts of Congress that regulated vessels carrying merchandise and passengers upon such waters. Mr. ”