# Scranton v. Wheeler

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.

## Concurring Opinion

    Brewer
United States Supreme Court
179 U.S. 141
Scranton v. Wheeler
Argued: October 16, 1899. --- Decided: November 12, 1900
This writ of error brings up for review a final judgment of the supreme court of Michigan holding that the United States is not required to compensate an owner of land fronting on a public navigable river when his right of access from the shore to the navigable part of such river is permanently obstructed by a pier erected in the river under the authority of Congress for the purpose only of improving navigation.
Omitting any reference to immaterial matters, the case as made by the pleadings and evidence is as follows: By an act of Congress approved September 26th, 1850, chap. 71, providing for the examination and settlement of claims for land at the Sault Ste. Marie in Michigan, the local register and receiver of the land office were authorized to report upon claims to lots at that place under instructions to be given by the Commissioner of the General Land Office. 9 Stat. at L. 469.
In conformity with proceedings under that act the heirs of Franklin Newcomb and Samuel Peck were confirmed in their claim jointly to premises known as Private Land Claim No. 3, and a patent was issued to them by the United States on the 6th day of October, 1874. The premises were at the west or upper end of the St. Mary's Falls ship canal, and one of the boundaries, as shown by the field notes, was 'along the right bank of the Ste. Marie river.' By mesne conveyances from the heirs of Franklin Newcomb the plaintiff, Scranton, became the owner of an undivided half of the land in question.
By an act approved August 26th, 1852, chap. 92, Congress granted to the state of Michigan the right to locate a canal through the public lands in that state known as the military reservation, at the falls of St. Mary's river, and 400 feet of land in width extending along the line of the canal was granted for the construction and convenience of the canal and the appurtenances thereto, the use being vested in the state for such purposes and no other. The act provided that the canal should be located on the line of the survey, made for that purpose, or on such other route between the waters above and below the falls as might be selected with the approval of the Secretary of War. In aid of the construction and completion of the canal Congress also granted to the state 750,000 acres of public lands, and it was provided that the canal should be, and remain, a public highway for the use of the United States, free from toll or other charge upon the vessels of the government engaged in the public service, or upon vessels employed in the transportation of property or troops of the United States. 10 Stat. at L. 35.
The construction of the canal was begun by Michigan in 1853 and completed in 1855. It was owned and operated by the state until the year 1881, when it was transferred to the United States in conformity with the river and harbor act of June 14th, 1880, chap. 211, by which $250,000 was appropriated for improving and operating the river and the canal, and by which also the Secretary of War was authorized to accept on behalf of the United States from the state of Michigan the St. Mary's canal and the public works thereon,-the transfer to be so made as to leave the United States free from all debts, claims, or liability of any character whatsoever, and the canal after the transfer to be free for public use. By the same act the Secretary of War was authorized, such transfer being made, to draw from time to time his warrant on the Treasury to pay the actual expenses of operating and keeping the canal in repair. 21 Stat. at L. 180, 189.
Prior to the transfer Congress had made large appropriations for the repair, preservation, improvement, and completion of the canal. 16 Stat. at L. 224, chap. 240; 16 Stat. at L. 402, chap. 34; 18 Stat. at L. 238, chap. 457; 18 Stat. at L. 456, chap. 134; 19 Stat. at L. 136, chap. 267; 20 Stat. at L. 156, chap. 264; 20 Stat. at L. 369, chap. 181; 21 Stat. at L. 189, chap. 211.
As originally constructed, a pier extended from the west end of the canal into the water, curving to the north. This pier was opposite to a part of Private Land Claim No. 3, but left at that time a riparian frontage for those premises of from 300 to 400 feet.
In 1877 the United States commenced and in 1881 completed the construction in the water of what is known as the new south pier, which extended across the entire front of Private Land Claim No. 3, and was within the riparian ownership of the plaintiff as projected from the land towards the middle thread of the stream. The effect of the construction of this new pier was to exclude the plaintiff altogether from access from his land within the lateral lines of his riparian ownership, projected as aforesaid, to the navigable water or to the channel of the river that was navigable. On both sides of the space included within such projected lines of the plaintiff's riparian ownership, and between the new pier and the bank of the river, the water was only 5 feet in depth; so that by reason of the construction and maintenance of the pier the plaintiff was prevented from reaching navigable water of greater depth than 5 feet.
The plaintiff desired to land freight on the new south pier and thus convey it to the lot in question. But he was prevented from doing so by the defendant, Wheeler, superintendent of the property, who was in possession of and exercised exclusive control over the canal and the pier as an officer or agent of the United States, and not otherwise.
No part of the pier in question in front of Private Land Claim No. 3 rests upon the fast land within that claim, but entirely upon submerged lands in front of or opposite to the fast land. The water between the pier and dry land is very shoal.
St. Mary's river forms a part of the boundary line between the United States and Canada, and, where navigable, forms, with the Great Lakes, a highway for interstate and international commerce. Near the point in question the river was not originally navigable, owing to the falls, and the canal was built around the falls to connect its navigable parts above and below, and was used in connection therewith for the purposes of such commerce.
The present action was brought by Scranton against Wheeler in the circuit court of Chippewa county, Michigan, the declaration alleging that the plaintiff was the owner in fee, but was illegally deprived by the defendant of the possession of his interest in 'Private Land Claim No. 3, Whelpley's survey, in the village of Sault Ste. Marie, Michigan, including therein that portion of the land beneath the water of St. Mary's river from the river bank on said lot to the thread of the stream of said river, which forms a part of said lot, and all riparian rights belonging and attaching thereto and being a part thereof;' which premises the plaintiff claimed in fee. The damages alleged were $35,000.
Upon the petition of Wheeler the action was removed for trial into the circuit court of the United States on the ground that the government of the United States was the real party in interest, and that the defense depended upon the construction of the laws of the United States. In that court there was a judgment in his favor. The case was then carried to the circuit court of appeals, where the judgment was affirmed, an elaborate opinion being delivered by Judge Lurton. 16 U.S. App. 152, 57 Fed. Rep. 803, 6 C. C. A. 585. That court held that an officer of the United States could be sued in ejectment by one claiming the title and the right of possession; that the case was properly removed to the circuit court for trial; that the circuit court of appeals had jurisdiction under the act of March 3d, 1891, chap. 517 (26 Stat. at L. 826), to review the judgment of the circuit court; and that, as 'an incident to the ownership of land on the margins of navigable streams, the law of Michigan attaches the legal title to the submerged land under the stream comprehended within parallel lines extending perpendicular to the general trend of the shore along his [the owner's] land to the center of the stream.' After observing that, although the plaintiff under the law of Michigan was seised of the legal title to the soil under the water, yet, in the very nature of the property, such seizure was of the bare technical title, the court proceeded: 'It must, from these constitutional principles, follow that the state of Michigan held the soil beneath her navigable rivers under a high public trust, to preserve them forever free as public highways, subject only to the power of Congress to regulate commerce among the states. The legal title, which under her law becomes vested in such proprietors, must be subject to the same public trust, and therefore subordinate to the rights of navigation, and subordinate to the power of Congress to control and use the soil under such streams whenever the necessities of navigation and commerce should demand it. The right of Congress to regulate commerce, and, as an incident, navigation, remains unaffected by the question as to whether the title to the soil submerged is in the state or is in the owner of the shore. A distinction must be recognized between that which is jus privatum and that which is jus publicum. This private right is subordinate to the public right. The plaintiff holds the naked legal title, and with it he takes such proprietary rights as are consistent with the public right of navigation and the control of Congress over that right. . . . The significance of that case [Willson v. Black Bird Creek Marsh Co. 2 Pet. 245, 7 L. ed. 412], as it affects this, was the refusal to enjoin the erection of the bridge on the complaint of those owning land on the shores above, whose access to and use of the stream was thereby injured. Their property had not been taken. The injury to them was consequential, and they were held to be without remedy. Here the plaintiff has sustained an injury which is wholly a consequence of the erection of a structure by Congress in aid of the general and public right of navigation. If Congress may lawfully use the soil as a support for such structures without acquiring the naked title outstanding in the plaintiff, then, for such injuries as are merely consequential, it is a case of damage without an actionable injury. A distinction exists between those cases where, under authority of the state, a structure has been placed in a navigable stream, such as a bridge, or lock and dam, as an improvement to the navigation of a stream wholly within its borders, and which is sought to be removed under the authority of subsequent congressional legislation, and such a case as the present. In the cases first mentioned, the improvement, being by authority of law, can only be taken for public uses upon just compensation. This is the doctrine of the case of Monongahela Nav. Co. v. United States, 148 U.S. 312, 37 L. ed. 463, 13 Sup. Ct. Rep. 622. In that case it was held that, not only must the actual property of the owner in the structure, be paid for, but his franchise also. The plaintiff in the case before us had made no improvements for either public or private uses. No property of his had been invaded, none had been taken. The title in him was subject to the public uses. He had the soil under the river subservient to the purposes of navigation. The right to regulate commerce involved the right to regulate navigation, and this, in turn, involved the necessary use of the submerged land, in so far as such use was essential to the maintenance of the public highway. . . . The conclusion we have reached is that there is no error in the judgment of the circuit court. The plaintiff has no such ownership of the locus in quo as makes its use for the purposes to which it has been devoted a taking of private property within the meaning of the Constitution.'
Upon writ of error to this court the judgment of the circuit court of appeals was reversed, upon the joint motion of the parties, with directions to remand the case to the state court for trial. The parties concurred in the opinion that the case was not removable from the state court,-Tennessee v. Union & Planters' Bank, 152 U.S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654, and Chappell v. Waterworth, 155 U.S. 102, 39 L. ed. 85, 15 Sup. Ct. Rep. 34, being cited by them in support of that view.
At the trial in the state court the plaintiff asked the court to charge the jury:--
That under the law of Michigan applicable to the facts in this case, the plaintiff was the owner of the submerged land in front of his upland, bounded by lines extending from the lateral lines of the upland to the center file of the stream, and running at right angles with the course of the stream in front of the upland, and therefore that the land and property described in the declaration belonged to and was owned by the plaintiff in fee simple, and so belonged to him when the action was brought;
That the pier or structure in question was constructed and was maintained by the defendant across plaintiff's land without his consent and against his rights in the premises;
That neither the defendant nor the United States had any lawful right to construct the pier on and across the premises in question, thus taking possession of the premises adversely to the plaintiff, and excluding him from enjoyment thereof, and from all access from his land and premises to the navigable water of the river in front thereof, and from the navigable water of the river to his land;
That neither the government of the United States nor the defendant had any lawful right to so construct the pier, or to maintain the same as was being done at the time suit was brought, and as they were now doing, without their first having acquired the right to so construct and maintain the same from the owner of the fee, or without obtaining the right therefor by proceedings under the power of eminent domain on payment of due compensation to the owner of the land therefor; and,
That under article 5 of the Amendments to the Constitution of the United States the property in question could not lawfully be taken for the public use to which it was appropriated, without just compensation having been made therefor to the owner, or without due process of law.
The plaintiff also requested this instruction: 'The construction of this pier was in violation, and the maintaining of the same was in violation, of said article 5 of the Amendments to the Constitution of the United States in this, that it appears from the testimony in the case that the same was appropriated without due process of law, and the same was taken and devoted to a public use without the consent of the owner thereof, and without just compensation therefor, and that the taking possession of the land of the plaintiff, as appears by the record, was in violation of said article 5; and that the taking possession of the land of the plaintiff and the construction of the pier thereon, in the manner shown in this case, the effect of which was to deprive him of all egress from his said land to the navigable water, the natural navigable water of the stream, and to prevent him using his said property by passing over or across said pier, as shown in the testimony of the case, was in violation of said article 5 of Amendments to the Constitution of the United States, and as depriving the owner thereof of his property without due process of law, and without just compensation, and without his consent.'
These instructions were severally refused, and to that action of the court the plaintiff excepted.
In charging the jury the court stated that the United States district attorney had suggested in writing that the property in controversy, the title and possession of which were the subjects of this litigation, was, and for many years had been, in the possession of the United States through its officers and agents; that it was held for public uses in connection with the commerce and navigation of the Great Lakes; that the nominal defendant had no personal interest in the matter; that his physical possession of the premises was in his official capacity, and in law the possession of the United States; that the United States had always held title to the said land, and now holds possession under its claim of title; that this action was in effect an action against the United States government, which in its sovereign capacity could not be sued; and for these reasons the district attorney asked that all proceedings by stayed and the suit dismissed.
A verdict for the defendant was directed on the ground that, in legal effect, the action was against the United States, and that a judgment for the plaintiff would be one against the government and its property.
In the supreme court of the state the failure of the trial court to charge the jury as requested by the plaintiff, and the direction to the jury to return a verdict for the defendant, were assigned for error. That court, all the justices concurring, held that the action was not against the United States, but affirmed the judgment upon other grounds. It said: 'When one in the actual possession of property defends his right of possession upon the ground that the government, state or national, has placed him in possession, he must show that the right of the government is paramount to the right of the plaintiff, or judgment will go against him. This point hsa been settled by the decision of the Supreme Court of the United States rendered May 10, 1897. Tindal v. Wesley, 167 U.S. 204, 42 L. ed. 137, 17 Sup. Ct. Rep. 770. In that case the authorities upon this point are reviewed at length, including the case of Stanley v. Schwalby, 162 U.S. 255, 40 L. ed. 960, 16 Sup. Ct. Rep. 754, upon which defendant mainly relies. The United States government took possession of the submerged land of the plaintiff for the purpose of erecting thereon piers in aid of the immense navigation upon the Great Lakes and the rivers connecting them. That the improvements made were necessary to aid and protect this navigation is established beyond dispute. Had the government the right to make these improvements upon the submerged land without compensation to the adjoining owner? It is conceded that under the law of Michigan the title to submerged lands is in the adjoining owner to the thread of the stream. It is insisted in behalf of the plaintiff that the government possesses no right to so use his land, although submerged, and although necessary to so use it in aid of navigation, as to cut off his access to the open water. It is contended, on the other hand, that this title to submerged lands along navigable waters, and the right of access thereto, are subject to the paramount right of the United States to use this land in such manner as it shall determine to be necessary in aid of navigation. The court of appeals was unanimous in its opinion against the plaintiff's claim. In a very able opinion delivered by Judge Lurton the facts are clearly stated, the authorities cited, and we think the conclusion there reached is the correct one. We therefore deem it unnecessary for us to enter into a long discussion of the law and the authorities. The Hawkins Point Lighthouse Case, 39 Fed. Rep. 77, appears to be exactly in point, and to rule the present case. We think the conclusion reached by the court below was a correct one, although it gave a wrong reason.' 113 Mich. 565, 71 N. W. 1091.
The Hawkins Point Lighthouse Case, referred to in the opinion of the state court, was ejectment brought in a circuit court of the United States against a government keeper of a lighthouse to recover possession of such house, erected in the Patapsco river, a publicnavigable water of the United States, by the lighthouse board in pursuance of acts of Congress. There was no condemnation for public use of the lands upon which the lighthouse rested, nor was any compensation made to anyone for the site. The plaintiff was the owner of the upland, but had not, in the exercise of his riparian right, improved out into the water in front of his land. The court, speaking by Judge Morris, held that the plaintiff was not entitled to recover, saying: 'While the submerged land remains a part of the bed of the river it is not private property in the sense of the 5th Amendment to the Federal Constitution. As was declared in Gilman v. Philadelphia, 3 Wall. 725, 18 L. ed. 99, the navigable waters 'are the public property of the nation, and subject to all the requisite legislation by Congress.' In the hands of the state or of the state's grantee the bed of a navigable river remains subject to an easement of navigation, which the general government can lawfully enforce, improve, and protect. It is by no means true that any dealing with a navigable stream which impairs the value of the rights of riparian owners gives them a claim for compensation. The contrary doctrine, that, in order to develop the greatest public utility of a waterway, private convenience must often suffer without compensation, has been sanctioned by repeated decisions of the Supreme Court. The following are cases all involving that proposition: The Black Bird Creek Case, 2 Pet. 245, 7 L. ed. 412; Gilman v. Philadelphia, 3 Wall. 713, 18 L. ed. 96; Pound v. Turck, 95 U.S. 459, 24 L. ed. 525; Wisconsin v. Duluth, 96 U.S. 379, 24 L. ed. 668; South Carolina v. Georgia, 93 U.S. 4, 23 L. ed. 782. If it were made apparent to Congress that any extension of the plaintiff's present shore line into the river tended to impair the navigability of the stream or its use as a highway of commerce, Congress could authorize the agents of the United States to establish the present shore as the line beyond which no structures of any kind could be extended, and the plaintiff would have no claim for compensation. If the plaintiff could thus lawfully be prevented from appropriating to his private use any part of the submerged land lying in front of his shore line, and the whole of it be kept subservient to the easement of navigation, how can it be successfully claimed that he must be paid for the small portion covered by the lighthouse 200 feet from the shore, which has been taken for a use as strictly necessary to safe navigation as the improved channel itself? The court of appeals of Maryland, whenever called upon to declare the nature of the title of the state and its grantees in the land at the bottom of navigable streams, has uniformly held that the soil below high-water mark was as much a part of the jus publicum as the stream itself.' 39 Fed. Rep. 77.
The plaintiff, Scranton, has assigned various grounds of error. These grounds are substantially those embodied in his requests for instructions in the trial court, and which were insisted upon in the supreme court of the state.
Messrs. John C. Donnelly and H. P. Davock for plaintiff in error.
Mr. Robert A. Howard and Solicitor General Richards for defendant in error.
Mr. Justice Harlan delivered the opinion of the court. After stating the facts as above reported, he proceeded:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse