# Withers v. Buckley

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United States Supreme Court
61 U.S. 84
Withers v. Buckley
THIS case was brought up from the High Court of Errors and Appeals of the State of Mississippi, by a writ of error issued under the 25th section of the judiciary act.
The case is stated in the opinion of the court.
It was argued by Mr. Benjamin for the plaintiff in error, and Mr. Carlisle for the defendants. There was also a brief filed by Mr. Yerger for the plaintiff in error, and by Mr. Badger and Mr. Carlisle for the defendants.
The points made on behalf of the plaintiff in error are taken from the brief of Mr. Yerger:
I. There is no doubt of the jurisdiction of the court of equity upon the case stated by the bill. (4 Cush. Rep., 86; 3 Wend. Rep., 636; 2 John. Ch. Rep., 165; 6 Paige's Rep., 262.)II. Apart from any public or private nuisance, the bill alleges special injury to the complainant, which is within the principle of the above-cited decisions, and others hereinafter cited.
III. We contend that the act of 1850 is unconstitutional. First, because it provides no compensation to the complainant; and, secondly, that it is void, because prohibited by the ordinance of Congress.
1. As to its unconstitutionality. The land of complainant is on the waters of Old river and the Narrows. The water runs through it. This is not a navigable stream, according to common-law meaning of the term. But a grant of land on or bounded by such a stream as this, passes the right to the land to the middle of the stream. The use of the water also, as an incident, passes by a grant, and is as sacred a right as the land itself. (See Morgan v. Reading, 3 Smedes and Mar.; 2 John. Ch. Rep., 165.)
Where a grant of land is on a stream above the ebb and flow of the tide, the land passes, and the water also, subject only to the right of the public to navigate it. The use of the water is a part of the freehold. (Angel on Water-courses, pp. 1-11, 12, 13-29; Co. Litt., 4; 2 Brown Com., 142; Bullen v. Raynells, 2 N. Ham., 255.)
In all cases, above the ebb and flow of the tide, a right of property in the water passes with a grant of the land, and it cannot be divested or taken away without compensation, as the above authorities show.
The case from Harrington's Rep., and from 2 Peters Rep., were cases of navigable waters according to common law, as the cases show, in which case there can be no individual right to the water.
In the case in 8 Cowen, 146, the only injury to plaintiff was the temporary erection of bridges to build the pier, and that it was like materials used in building, it might be a temporary inconvenience to a neighbor, &c. (See pages 150 and 151.)
It may be said that the principle of the common law, as to streams where the tide ebbs and flows, applies to the waters of the Mississippi and the streams which flow into it.
But this was the great point, argued most laboriously, and decided by the High Court of Mississippi, in the case of Morgan v. Reading, 3 Sm. and Mar., 366, and numerous other authorities are against it. (See also Gardner v. Village of Newberry, 2 John. Ch. Rep., 165; Belknap v. Belknap, 2 John. Ch., 463; 3 Paige Rep., 577; 1 Dev. Rep., 121; 6 Paige Rep., 262; 4 Mason, 379.)
IV. But the ordinance of Congress also prevents the Legislature from obstructing the navigation of the Mississippi and its waters. It may improve them, but it cannot obstruct, by damming up the water, or diverting it from its natural course, so as to entirely deprive its navigation. (Hutchinson's Code, 55, 57, 59.)
The case in 1 McLean's Rep. is directly in point. It decides that a private injury must be alleged; that the mere fact of a right to navigate, without using or intending to use the right, and without private injury alleged, would not do. But when the navigation was obstructed, and a private injury was alleged, equity would interfere. (See pages 343, 344, 346, 350, 351, 352, 353.)
Act of 1819, p. 106, declares Homochitto navigable, and the bill alleges that from time immemorial the grantors of plaintiff and himself used the water to supply this place, and to transport cotton and supplies to and from his place.
Mr. Carlisle, after commenting upon the points presented by the counsel for the plaintiff in error, presented the following view of the case:
The jurisdiction of this court is assumed upon the allegation, which the plaintiff in error is to maintain, that the statute of Mississippi is unconstitutional; because it purports to authorize the taking of private property for public use, without just compensation; and because it is repugnant to the 4th section of the act of 1st March, 1817, (3 Stat., 349.)
But the bill does not show any case of taking private property for public use. The complaint is of an apprehended consequential injury, resulting from diverting the waters of the Homochitto. No land of the complainant lies on that river. It is a navigable river, lying wholly within the territorial limits of the State of Mississippi. As such, it is subject to the power exercised by this statute; and its waters are not the subject of private property in any sense of the words 'private property' in the Constitution, or in any sense which can interfere with the full exercise of the power in question, according to the discretion of the Legislature. If the plaintiff in error suffer loss through the lawful exercise of this public power, it is damnum absque injuria.
Least of all (it is submitted) can a party so situated restrain by injunction the exercise of such a power.
As to the supposed conflict with the act of 1817, the obvious answer is, that the statute is not to obstruct the Homochitto, but to improve its navigation. 'Old river and the Narrows' are not 'navigable rivers and waters,' in the meaning of that act. Besides, even if they were, it is submitted that the plaintiff in error, upon the case made by his bill, would have no standing either at law or in equity, and has no right to call upon this court to pronounce upon the constitutionality of the statute of Mississippi.
Mr. Justice DANIEL delivered the opinion of the court.

## 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).
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