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 The State or South Carolina
The State Of Georgia -Aphonse TAFT Secretary Of
War, United States; A. A. Humphreys Chiof OF Engt
neers, United States Army. and r. A. Gilmore, Lou
tenant Colonel Engineers. United States Army.
The record exhibits that Immediately above the city
OF Savannah the river is divided by Hu,cninsons
Island, and that there Is natural channel on each
side Of the island. both meeting Al the head. The
obstruction complained OF is at the point OF diver
sence between the two channels, and its pur-
pose ana probable effect to improve
the southern channel tho expense OF the
northern by increasing the now Of water through the
former. thus increasing ITS depth and way,
also the securing effects OF the The action OF
the defendant not therefore, the destruction Of the
navigation of the river. True. II is obs,ructnr tho
water way Of OF the channels and compelling
CATION use tho other channel but It IL u means en-
ployed to render navigation OF the river more convent
ent, mode OF Improvement not uncommon. The two
channels are not Two rivers, and closing one for tho
Improvement Of the other is IN just legal
destroying impeding the navigation. If II were
In the chanucl not, would be obstruction. IL
might be a lighthouse erected on submerged sand
bank, or jetty pushed out into tho
The water way and increase the depth OF water and the
direction and force OF tho current or the pier Of
bridge standing where vessels now pass and where
they can pass only AT very high water.
The impediments to navigation caused by such
structures IL Is true, in distractions
navigation but SO far thoy tend 10 facilitate
MERGE II Is not claimed thut thcy are unlawful 10
what respect except in degree DO they differ from the
acts ana CONSTRUCTIONS OF which tho plaintiff COM
painsr All of them are distractions to the natural
to M Od ae hr
aao new facilities 10 tho conduct OF com
nerce 1t is not, however, 10 DO conceded
that Congress has power TO order distractions
TO DO placed In tho navigable waters OF tue United
States, either 10 assist navigation change It's d.
rection by forcing II into ono channel OF river
rather than the other II may build lighthouses in
the bed Of the stream. 1t may construct jetes. 1t
channel ana may close any other channel TO their
passage IT. as we have said she United States have
| succeeded 10 The power and rights of the several
States, tar control Interstate and forein
commerce is concerned, this is not TO he doubted.
ORIGINAL POWER OF THE
Might not the states OF South Carolina aud Georgia,
by mutual agreement have constructed dam across
the cross tides between Hutchinson and Argyle islands,
aud thus have confined The alton OF the Savannah
River to the southern channei2 Might they have
done this before they surrendered TO the federal
errment portion OF their sovereignty Might they
have constructed jeties puiated Tho river
20 that commerce could have been carried
side OF Hutchinsons lsandY IL Is not thought that
these questions can be answered in tho negative.
Then why may not Congress, succeeding as has done
TO the authority OF tho states, DO the same thngY
Why may not conine tho navigation OF the
tho channel south OF Hutchipsons Island, and why is
not this a regulation OF commerce If commerce in
ciudos navigation? We think IL Is such a regulation
Upon these facts the decision is in substance toll
Iows:-
The compact between South Carolina and Georgia
made IN 1884, by which 1t WIS agreed that tho bound
airy between the two States should be the northern
branch stream Of the Savannah River. ana the
navigation of the river along specified channel
should forever be equally free 10 the of both
States, and exempt from hpdrance, interruption CT
nolestaton attempted 10 be enforced by one State
the citizens OF another, has no effect upon the subse-
quent constitutional provision that Congress shall
power 70 regulate commerce with foreign ma
tiuns and among the several States. Congress
River that has over the other navgable waters
United States Inc right TO eguate commerce In
cludes The right TO regulate navigation and hence to
regulate and improve na7gaole rivers ard ports
such rivers. Congress has power 10 close one OF sew
eral channels navieablc stream, II, IN its judg
meni thereby the navigation OF the river VIII DO
improved IL may declare that an actual obstruc.
tlon Is not, in The view OF the law, an
illegal ono. An appropriation Tor the Improvement OF
harbor navgable river, ITO be expended under
the direction Of the Secretary War;, concrs upon that
officer discretion the mode OF prove
ment, and authorizes his diversion OF the from
channel into another IN hts judgment such is
| the best mode Such a diversion Is not giving prefer
encc TO the ports OF State those of another.
Query--whcthcr State SUNG for the prevention Of
nuisance IN navigabo river. which is one OF Its
boundaries, must not anc show that she susains
some special and peculiar injury thereby, such as
would enable private person to maintain similar
action?
| Mr. Justice Strong delivered tho opinion.
| OYSTER CULTURE.
| w. w.
Tho Commonwealth OF VirgIna and another case-ln
the supreme Court OF Appeals OF the State OF
v'rslnla-ihs precise question to DO determined 10
the citizens OF other States from planting oysters in
Ware River, stream IN that State, where the tide
Gibbs and flows, when It's own citizens have that priv
| iege The principle has long been settled IN this
court that each STATE the beds OF all tdewatcrs
within Its jurisdiction, unless they have been granted
away. (Pollard's Lessee Hagan, How, $50;
Smith vs.. Maryland, Is How, "a; Muniiord VS.. Ward
well, Wall, 436 Weber HarDor Commissioners Is
| "A m m he idC
waters themselves and the fish IN them so lar as they
are capable Of ownership whIo running For this
purpose the State represents its people, and the
crsbip that oil the people in their unicd sovereignty
MARTIN vs.. waddeI, 10 Pc ilo) The title thus held
| Is subject to the paramount right OF navigation,
the regulation OF which respect to foreign aud inter
state commerce has been granted TO tho United Staes
the fisheries. These remain unccr the exclusive con
troll OF the State, when has consequently the right IN it's
discretion TO appropr ate It's tdowater and their beds
to DO used by It's people as common Tor taking and
cutvatlng fish, so lar as 1t nay no done without Oh
sLructing navigation. Such an appropriation Is in
effect nothing more than regulation OF the use by
the people OF their common properly The right
which the people Of the state thus acquire comes
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.
By article section of tho Constitution the citzens
OF cacn State are certified TO all privileges and
immunitlcs Of citizens IN tho several states" Mr..
Justice Washington, IN CorleId Coryel IA Wash. G.
G. X $500, thought that This provision extended only
to such privileges and immuntcs are IN their
!
cuzcns OF AL Tree governmenls;' and Mr. Justice
Gurus, IN Scott w. Sanford no How 5SO described
them such las belonged 10 general citizenship
But usually when this provision Of the constitution
has been under consideration the courts have name
tested the disposition. which tins Court did in Conncr
Elliott, Is How, 500, not TO attempt de1aa tho
words, but rather to leave their meaning to ne deter
mined IN zach case upon view Of tho particular
rights asserted denied therein. Tn eieary
| is tho safcr course 70 pursue, when, 20 u31
the Snsdsfo ,o Of Mr. Justice oo Curtis - Con-
broad, provision, involving matters not o. grr
dclicacy and Importance, but which are Of such
haracter that any merely abstract definition could
scarcely be correct, ana failure TO make would
certainly produce mischief" Following, theu, thla
salutary and looking only to the rgAt
which rs bore asserted we think We may safely nolh
that the citizens OF one state not lnvestcd ny hs
clause OF the constitution with any intercsi in the
common property oil the citizens OF anohs state II
Virginia had by law provided Tor the sale d her once
vast public domain and DIVISION OF t.ie proceeds
among It's own people no ouo wo venture 20 sny,
would contend that tho citizens other ates pad
constitutional right to the enjoyment OF us privilege
oil Virginia citizenship. Neither IT. instcad ~ ceiling,