The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-08-07


THE NAVIGATION OF RIvERs-Nor AFFECTED
BY TREATIES BETWEEN THE srArEs-PowEB
or STATE OVER OYSTER CULTURE WITHIN
ITS LIMITS.
WASHINGTON, August Q, 1871
No loriginap. Tho State OF South Carolina ".
The State Of Gcorgia-Alphonss TAFT Secretary Of
War, United States; A. A. Humphreys Chief OF Engt-
neers, United Statcs Army, and r. A. Gilmore. Lieu
tenant Colonel Engineers. United States Army.
The record exhibits that Immediately above the city
OF Savannah the river Is divided by Hu,chinson's
Island, and that there is a natural channel each
side Of the island, both meeting At the head The
obstruction complained OF Is at the poin, OF diver
senco between the two channels, and its pur-
pose ana probable effect are to improve
tho southern channel at tho expense OF the
northern, by increasing the now OF through the
former. thus increasing its depth and water way, rs
also the securing effects OF the The action OF
the defendant IS not therefore, tho destruction Of the
navigation of the river. True. II is obstructing tho
water way Of one OF the channels and compelling navL
CATION 10 the other channel, but Il IL u means
poyed TO render navigation OF the river more convsni
cnt mode OF Improvement not uncommon. The two
channels are not Two rivers, and closing for tho
Improvement Of the other Is in just legal sense
destroying or impeding the navigation. II II were
every structure erected the bed the rver whether
In the chanuel or not, would be an obstruction. IL
might De lighthouse erected on submerged SAND
bank, or jetty pushed out into tho stream 10 narrow
the water way the depth OF aud the
direction and force OF tho current or the pier OF
bridge standing whore vessels now pass aud where
they can pass only at very high water.
The impedments to navigation caused by such
structures are, il Is true, in distractions
navgalion but so as thoy tend facilitate COM
merce II Is not claimed that thcy are unlawful. Ia
what respect except IN degree DO they differ from the
acts ana constructions OF which tho plaintiff CON-
plainsY All of them distractions TO the natural
flow Of tho river; yet oil, except the per- arc Inn
add new facilities 10 the conduct OF com
MERGE 1t Is not however, 10 DO conceded
that Congress has no power to order obstructons
70 DO placed in the navigablc waters OF tue United
states, either 10 assist navigation or to change its d.
rection by forcing II into ono channel OF "a river
rather than the other. II may build lighthouses in
the bed OF the stream 1t may construct jetties. 1t
may require ali navigators to pass along prescribed
channel ana may close any other enamel TO their
succeeded 10 the power and rights Of the several
States, SO tar as control interstate and foreign
commerce is concerned, this is not to TO doubted.
ORIGINAL POWER STATES
Might not tho states OF South Carolina aud Georgia,
oy mutual agreement have constructed dam across
the cross tides between Hutchinson and Argyle islands,
and thus have confined the navga Of the Savannah
River to the southern channeIY Might they have
done this before they surrendered to the federal gov
crnmeut portion OF their Sovereignty Might they
not have constructed jettes or aupulaed Tho river
so that commercs could have been carried on ex
clusivcy through the southern channel the south
side of Hutchinsou's lslandY IL Is thought that
these questions can be answered in the negative
TO the authority OF the states, do the thing?
Why may connne tho nav CATION OF tho river 10
inc cnanhoi souta OF nutcnnsons Island, ana why Is
not this q regulation OF commerce If commerce in
cudcs navigation? We think IL is such a regulation.
Upon these facts the decision is In substance fol-
lows
The compact between South Carolina and Georgia
made in 17S7 BY which II WIS agreed that tho bound
AIRY between the Two States should be the northern
branch or stream OF the Savannah River. That the
OF the river along specified channel
should forever be equally free 10 the of both
and 1r,e
IN oesstion attempted 10 DO enforced by State
the citizens OF another has effect upon the
power to regulate commerce with foreign ma
tions aud among the several States. Congress
has the same power over tho Savannah
River that 1t has over the other navgabe waters OF the
United States The right TO regulate commerce in
cudes the right to regulate navigation ana hence to
regulate ana improve nayigaole rivers ard ports
such rivers. Congress has power close OF
era channels In navigabe stream, II, IN its judg
men,, thereby the navigation OF the river Will DO
improved. IL may declare that actual obstruc.
tion not, In the view Of the law,
illegal An appropriation Tor the Improvement OF
The direction Of The Secretary War; upon that
ocer the discretion 10 determine the mode OF improve
mont, and authorizes his diversion Of the water from
one channel into another, II IN hts judgment such is
the best mode. Such diversion IS not giving prefer
encc TO the ports OF one State over those Of another
Query-Whethcr a State SUNG for the prevention Of a
nuisance IN navigable river, which is OF It's
boundaries must not aver anc show that she susains
some special and peculiar injury thereby, such as
~
actionY
MIR. Justice Strong delivered tho opinion.
OYSTER CULTURE.
NO 625 James W. MoCrcady, plaintiff in error, vs.
The Commonwealth Of Virginia and another case-In
error 10 the suncme Court OF Appeals OF The State OF
Vrgna-lhc precise question to be determined Ia
this Is whether State OF Virginia prohibit
the citizens OF other States from planting oysters in
Ware River stream IN that State, where tho tide
Gibbs and flows, when It's own citizens have that priv
cge. The principle has long been settled In this
court that each state owns the beds OF all dewaters
nIagC hnu haV hAan nd
away. (Polard's Lessee vs. Hagan, How, $50;
Smith VS.. Mary land, IS How, "a; Auntord vs. Ward
well, WALL 436 Weber va Harbor Commissioners, Is
Wall, 66) In ike manner tho states own the tide
waters themselves and the fish them. lar they
are capable Of ownership who running. For this
purpose the State represents its people, and tho
ership Is that OF the people in their uncd sovereignty
Martin vs. waddeli, 10 Pot. sl0) The title thus held
is subject to the paramount right OF navigation,
the regulation Of which respect foreign aud
state commerce has been granted TO the United States
There has beon however, no such grant OF power
the fisheries. These remain uncer the exclusive con
troll OF the State when has consequently the right IN it's
discretion, TO appropr ate Its tiocwater aud their beds
fish, so Tar as it nay be done without
siructng navigation. Such appropriation Is in
effect nothing more than regulation OF the use by
the people Of their common property. The right
which the people Of the state thus acquire comes
not from their citizenship alone, but from their citizen
ship and property combined. IL IS IN fact properly
right and not mere privilege or immunity Of citizen
ship.
immunincs Of citizens in the several states" MI.
Justice Washington, Cor1eld Coryell "A Wash. O.
G. X, $780, thought that his provision extended only
TO such privileges and immunitics arc an their
nal urc fundamentol which belong Of right 10 the
cuzcns oil Nil Tree governments and MIR. Justice
Curtis Ia Scott w. Sanford l9 How, $780, described
them such las belonged 10 general citizenship
But usually when this provision of the constitution
been under consideration the courts have ~ ami
tested disposition. which tins Court did In Conncr
Elliott, Is How, 593, not TO attempt to dcla6 Tho
words, but rather to leave their meaning TO be etcr
mined in zach case upon view Of the particular
rights asserted denied therein. tn cicariy
is tho safcr course TO pursue, when, 20. use
the iangu &c Of Mr. Justice Curtis, IN Con-
ncr vs.. Elliot, 1--WE dealing With 40
broad, provision involving matters not on Of grc Az
dclicacy and Importance, but which are &C such
character that any merely abstract definition cocil
scarcely be correct ana failure TO make ~ 50 would
produce mischief" Following, then, thla
salutary rue. and looking only to the particular rgnt
which rs here asserted, we think We may safely bold
that the citizens OF State inverted ~ ms
clause OF the constitution with any interusi IN The
common property oil the citizens Of anohsr state u
Virginia had by law provided for the sale ~ her once
vast public domain ana division OF the nroceclH !
among its own people no ono, We venture 70 IVY, |
would contend that tho citizens Of other States mad
constitutional right TO the enjoyment OF tbs prriege