Rufus Wheeler Peckham

“ The plaintiffs claimed that, by virtue of a proviso in the acts of the provincial legislatures of Pennsylvania and New Jersey, their predecessors had become entitled to the free and uninterrupted enjoyment of the river Delaware for the use of their mills, and that, notwithstanding, the defendants had erected a dam in the river above plaintiffs' mills, and had dug a canal and diverted the water to their great injury. A demurrer was interposed, upon which the court below gave judgment for the defendants, and this court was asked to review and reverse that judgment. ”

“ Power Co., supra, the supreme court of Minnesota held that the riparian owner of lands upon a navigable stream may use the water flowing past his land for any purpose, so long as he does not impede navigation, in the absence of any counterclaim by the state or the United States. ”

“ Carpenter, 77 Wis. 288, 300, 46 N. W. 128, it is said of the riparian owner: 'He may construct docks, landing places, piers, and wharves out to the navigable waters, if the river is navigable in fact, but if it is not so navigable he may construct anything he pleases to the thread of the stream, unless he injures some other riparian proprietor, or those having the superior right to use the waters for hydraulic purposes. * * * Subject to these restrictions, he has the right to use his land under water the same as above water. ”

“ And it is obviously immaterial, if the public interests be not prejudiced, whether the submerged land be covered with wharves of timber or stone, or be reclaimed from the water by filling in with earth so that it becomes dry land. ”

“ It is claimed upon the part of the plaintiffs in error that by the decision of the court below they have been deprived of their property without due process of law. They urge that they have certain rights as riparian owner of land near St. Anthony falls, bordering upon the Mississippi river, to the use of all the water as it would naturally flow past their land, and that this right is property ”

“ If we should assume the validity of an act of the legislature of such a character (which, under the decision of this court in Illinois Cent. R. Co. v. Illinois, 146 U.S. 387, 13 Sup. Ct. 110, is at least doubtful) , it is clear that we ought not to adopt a construction leading to that result unless the legislative act be plain and beyond all doubt. We are of opinion that these particular charters of the plaintiffs are not to be thus construed. ”