Monongahela Navigation Co. v. United States

after stating the case, delivered the opinion' of .the court.

It appears from the foregoing statement that the Monongahela Company had, under express authority, from the State of Pennsylvania, expended large sums of money in improving the Monpngahela Biver, by means of locks and dams; and that the particular lock and dam in controversy were built not only by virtue of this authority from the State of Pennsylvania, but also at the instance and suggestion of the United States. By means of these improvements, the Monongaliela Biver, which theretofore was only navigable for boats of small tonnage, and at certain seasons of the year, now carries large steamboats at all seasons, and an extensive commerce by means thereof. The question presented is not whether the United States has the power to condemn and appropriate this property of the Monongahela Company, for that is conceded, but how much it must pay as compensation therefor. Obviously, this question, as all others which run along the line of the extent of the protection the individual has under the Constitution against the demands of the government, is of importance; for in any society the fulness and sufficiency of the securities which surround the individual in the use and enjoyment of jhis property constitute one of the most certain tests of the character and value of the government. The first ten amendments to the Constitution, adopted as they were soon after the adoption of the Constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be héld to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable.rights.

In the case of Sinnnickson v. Johnson, 17 N. J. L. (2 Harr.) 129, 145, cited in the case of Pumpelly v. Green Bay Company, 13 Wall. 166 , 178, it was said that “ this power tó take private property reaches back of all constitutional provisions; and it seems to have been considered a settled principle of uni

But we need not have recourse to this natural equity, nor is it necessary to look through the Constitution to the affirmations lying behind it in the Declaration of Independence, for, in this Fifth Amendment, there is stated the exact limitation on. the power of the government to take private property for public uses. And with respect to constitutional provisions of this nature, it was well said by Mr. Justice Bradley, speaking for the court, in Boyd v. The United States, 116 U. S. 616 , 635: “ Illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against.any stealthy encroachments thereon. Their motto should be obsta prineipiisP

The language used in the Fifth Amendment in respect to this matter is happily chosen. The entire amendment is a series of negations, denials of right or power in the government, the last, the one in point here,, being, “jNor shall private

"We do not-in this refer .to the case where only a portion- of a tract is taken, or express any opinion bn the vexed question as to the extent to which the benefits or injuries to the portion .hot taken may be brought into consideration. . This is a question, which may arise possibly in this case, if 'the seven locks and dams-belonging to the Navigation' Company are so situated as to be fairly considered, one property, a matter; in respect to which • the .'record before‘us furnishes no positive evidence. It seems to be assumed that each lock and dam by itself constitutes a separate structure and separate property,

By this legislation, Congress' seems to have, assumed the right to determine what shall be the measure of compensation. But this is a judicial and not a legislative question. The legislature may. determine what private .property is needed for public purposes-:—that is á question of á political and legislative character; but when the taking.has been.ordered,- then the question of compensation is judicial. -Jit does not rest with the public,' taking the property, through Congress or the legislature, its representative, to say what compensation shall be paid, or even what shall be .the rule of compensation. . The Constitution has declared that just compensation shall be-paid, and ' the ascertainment :of that-is a judicial-inquiry. In Charles River Bridge v. Warren Bridge, 11 Pet. 420 , 571, Mr. Justice McLean in his opinion, referring to a provision for compensa-' •tion found in the charter of the Warren bridgé, uses this language: “They [the legislature] provide that the new company shall pay annually to the college, in behalf of the old one, • one hundred pounds.' By this provision, it appears that the legislature has undertaken to do what a jury of the country only could constitutionally do: asséss the amount of compensation to which the complainants are entitled.”' See also the following authorities: Commonwealth v. Pittsburgh & Connellsville Railroad, 58 Penn. St. 26 , 50; Penn. Railroad v. Balt. & Ohio Railroad 60 Maryland, 263 ; Isom v. Mississippi Central Railroad, 36 Mississippi, 300.

In the last of these cases, and on page 315, will be found-these observations of the court: “ The right of -the legislature of the State, by law, to apply the property' of the citizen to the public use, and then to constitute itself the judge in its own case, to determine what is' the- 4 just ■ compensation ’ it ought to pay therefor, or how much benefit’it has conferred upon the citizen by thus taking his property without his' consent, or to extinguish any part of such 4 compensation ’ by prospective conjectural advantage, or in any manner to interfere with the just powers and province of courts and juries in administering right and justice, cannot for a moment be admitted

"We are not, therefore, concluded by the declaration in the act that the franchise to collect tolls is not to be considered in estimating the sum to be paid for the property.

How shall just compensation for this lock and dam be determined.? What does the full equivalent therefor demand ? The value of property, generally speaking, is' determined by its productiveness — the profits which" its use brings to the owner. Yarious elements enter into this matter of value. Among them we may notice these: Natural richness of the soil as between two neighboring tracts —one may be fertile, the other barren; the one so situated as to. be susceptible of easy use, the other requiring much labor and large expense to make its fertility available. Neighborhood to the centres of business and population largely affects values. For that property which is near the centre of a large city may command high rent, while property of the same character, remote therefrom, is wanted by -but few, and commands but a small rental. Demand for the. use is another factor. The commerce on the .Monongahela River, as appears from the testimony offered, is great; the demand for the use of this lock and dam constant. A precisely similar property, in a stream where commerce is light, Avould naturally be of less value, for the demand for the use would be less. The value, therefore, is not determined by the mere cost of. construction, but more by Avhat the completed structure brings in the way of earnings to its owner. For each separate use of one’s property by others, the owner is entitled to a reasonable compensation; and the number and amount of such- uses determine the productiveness-and the earnings'of the property, and, therefore, largely its value. So that -if this property, belonging to the Monongahela Company, is rightfully Avhere it is, the. company may justly demand from every one making use of it a. compen- - sation; and to take that property from it deprives it of the aggregate" amount of such compensation Avhich otherwise it would continue to receive. Whajb amount of compensation for

So, before this property can be taken away from it's owners, the whole value must be paid; and that value depends largely upon the productiveness of the property, the franchise to take tolls. That, in the absence of Congressional action, the State of Pennsylvania had the power, either acting itself or through a corporation which it chartered, to improve the navigation of the river by means of locks and dams, and also .to authorize

N In the -first of these cases it'appeared that the Marsh Company was incorporated by an act of the general assembly of Delaware, and authorized to construct a dam across Blackbird. Creek, a navigable stream within the territorial limits of the State; that, in pursuance of such authority, it did construct such dam, by which the navigation of the stream was obstructed; Willson, with others, were the owners of a sloop, regularly licensed according to the laws of the United States, which sloop broke and injured the dam. On being sued for this injury, the owners pleaded that the dam was wrongfully erected, obstructing the navigation of the stream, and that the sloop could not, without breaking through the dam, pass over and along the stream, and that in order to remove the said obstructions it did the injury complained of. A demurrer to this plea was sustained, and in due -course the case came to this court. The opinion was delivered by Chief Justice Marshall, sustaining the ruling, and holding that the dam, in the absence of legislation by Congress, was rightfully there, having been authorized by the legislature of the State in which the stream was situated. In it the Chief Justice said (p. 252): “If Congress had passed any act which bore upon the case, any act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks "into which the tide flows, and which abound throughout the lower country of the middle and southern States, we should feel not much difficulty in saying that a state law coming in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to .regulate commerce with foreign nations and among the several States; a power which has not been so exercised as to .affect the question. We do

In the case of Pound v. Turck, it appeared that a dam and boom had been placed in the Chippewa Elver, under authority of the legislature of Wisconsin. The fact that the plaintiff suffered injury therefrom was established, and the defence was that they were rightfully there. Mr. Justice Miller, speaking for .the court, on page 46-f, uses this language : “ There are within the State of Wisconsin, and perhaps other States, many small streams navigable for a short distance from their mouths in one of the great rivers of the country, by steamboats, but whose greatest value in water carriage is as outlets to saw-logs, sawed lumber, coal, salt, etc. In order to develop their greatest utility in that regard, it is often essential that such struc- ' tures as dams, booms, piers, etc., should be used, which are substantial obstructions to general navigation, and more or less so to rafts and barges. But to the legislature of the State may be most appropriately confided the authority to authorize these structures where their use will do more good than harm, and to impose such regulations and limitations in their construction and use as. will best reconcile. and accommodate the interest of all concerned in the matter. 'And since the doctrine we have deduced from the cases recognizes the right of Congress to interfere and control the matter whenever it may deem it necessary to do so, the exercise of this limited power may all the more safely be confided to the local legislature.”

Huse v. Glover comes even nearer, to this case. The State of Illinois, at an expense of several hundred thousand dollars, constructed locks and dams on the Illinois Eiver for the purpose of improving its navigation, and prescribed rates of toll to be paid by those using the improvements. A bill was filed to enjoin the exaction of toll on vessels of complainant passing through the improved waters of the river. - After referring to the clause in the ordinance for the government of the Northwest Territory, ■ which provided that the navigable waters

And in the last of these cases, where the Manistee River was improved under authority of the legislature of the State of Michigan, and tolls exacted for the use of the improved water way, we find this in the opinion, on page 295 : “ The internal commerce of the State — that is, the commerce which is . wholly confined within its limits — is as much under its con

Kindred to these are the cases of Gilman v. Philadelphia, 3 Wall. 713 ; Transportation Company v. Chicago, 99 U. S. 635 ; Escanaba Company v. Chicago, 107 U. S. 678 ; Cardwell v. American Bridge Co., 113 U. S. 205 ; and Willamette Bridge Company v. Hatch, 125 U. S. 1 , 12, in which the power of a State, in the absence of Congressional action, to obstruct navigation by the construction of bridges across navigable streams, was sustained. And,\also, the cases of Packet Co. v. Keokuk, 95 U. S. 80 , and Transportation Co. v. Parkersburg, 107 U. S. 691 , in which the power of a State, under like circumstances to improve the border of streams by wharves and exact wharf-age therefor, was affirmed.

While in a matter of this kind it is needless to look for authorities beyond the decisions of this court, yet the cases of Kellogg v. Union Company, 12 Connecticut, 6, and Thames Bank v. Lovell, 18 Connecticut, 500, may be referred to as containing very satisfactory discussions of this question. We quote from the opinion in the latter cáse, page 511:

“These acts,-improving rivers, constructing roads, etc., will never be complained of, as interfering writh the rights and powers of Congress. The tolls alone are the subject of com

“ It seems to be admitted, that States may construct canals, turnpikes, bridges, etc., and impose tolls upon passengers and freight, as a remuneration for the improvements; and that this may be done, without interfering with the power of Congress to regulate commerce among the States, or its power to establish post-offices and post-roads. We have not been .able to discover a sound distinction between these cases and the one we are considering. Congress has the same power to regulate commerce upon the land as upon the water. A river, to be sure, is a natural channel;' but if it is not a navigable one, it can no more be used for the purposes of commei’ce than the land ; and, therefore, to convert it from the mere natural channel into a public highway, for commercial purposes, and to 'levy a toll to reimburse the expense, no more conflicts with the powers of Congress over the commerce of the country than the construction of a canal or a turnpike for the same purposes, with the same tolls. And this, we think, is equally true of rivers, which are only navigable to a partial and limited extent, and by artificial and expensive means are rendered navigable to a greater extent, with a reasonable toll, levied upon those only who receive the benefit of the extended navigation. The principle is the same in both the cases stated.”

But in this case there was not only the full authority of the State of Pennsylvania, but also, so far as respects this particular lock and dam, they were'constructed at the instance and implied invitation of Congress. The act of March 3, 1881, making an appropriation for the improvement of the river, in terms provided, that no such improvement should be made until the Navigation Company had in good faith started upon the building of this lock and dam. This lock and dam connected the lower improvements already made by the Naviga

Upon what does the right of Congress to interfere in the matter rest? Simply upon the power to regulate commerce. This is one of the great powers of the national government, one whose existence and far-reaching extent have been affirmed again and again by this court in its leading opinions, and the power of Congress over such natural highways' as navigable streams is confessedly supreme. See among the various cases in which this supremacy has been affirmed : Gilman v. Philadelphia, 3 Wall. 713 , 725; County of Mobile v. Kimball, 102 U. S. 691 , 696; Bridge Company v. United States, 105 U. S. 470 , 482; Miller v. New York, 109 U. S. 385 , 392; Wisconsin v. Duluth, 96 U. S. 379 ; Willamette Iron Bridge Company v. Hatch, 125 U. S. 1 . I\n Wisconsin v. Duluth (p. 383) it .was said: “It is to be observed, as preliminary to an examination of the acts of the general government in the special matter before us, that the whole system of river and lake and harbor improveménts, whether on the seacoast or on the lakes or the great navigable rivers of the interior, has for .years been mainly under the control of that government, and that, whenever it has taken charge of the matter, its right to an exclusive control has not been denied. . . . And while this court has maintained, in many cases, the right of the States to authorize structures in and over the navigable waters. of the States, which-may either impede or improve their navigation, in the absence of any action of the general government in the same matter, the doctrine has been laid down with unvarying

And in Willamette Iron. Bridge Company v. Hatch (p. 12) the proposition was thus stated: “ And although, until Congress acts, the States have the plenary power supposed, yet, when Congress chooses to.act, it is not concluded by anything that the States, or that individuals by its authority or acquiescence, have done, from assuming entire • control of the matter, and abating any erections that may have been made, and preventing any others from being made, except in conformity with such regulations as it may impose.” It cannot be doubted, in view of the long list of authorities, — for many more might be cited,.—■ that. Congress has the power in-its discretion-to compel the removal of this lock and dam as obstructions to the navigation of the river, or to condemn and take them for the purpose of promoting its navigability., In other .words, it is within the competency of Congress to make such provision respecting the improvement of the' Monongahela River as in its judgment the public interests demand. Its dominion is supreme.

But like the other powers granted to Congress by the Constitution* the power to regulate commerce is subject to all the limitations imposed by such instrument, and ampng them is that of the Fifth Amendment, we have heretofore quoted. Congress has supreme control over the regulation of commerce, but if, in exercising that supreme control, it deems it necessary tó take private property, then it must proceed subject to the limitations imposed by this Fifth Amendment, and can take only on payment of just compensation. The power to regulate commerce is not given in any broader terms than that to establish post-offices and post-roads; but, if Congress wishes to take private property upon which to build a post-office, it must either agree upon the price with the owner, or in condemnation pay just compensation therefor. And if that property be improved under authority of a charter granted by the State, with a franchise to take tells for the use of the

And here it may be noticed that, after taking this property, the government will have the right to exact the same tolls the Navigation Company has been receiving. It would seem strange that if by asserting its right to take the property, the government could strip it largely of its value, destroying all that value which comes from the receipt of tolls, and, having taken the property at this reduced valuation, immediately possess and enjoy all the profits from the collection of the same tolls.

Much reliance is placed upon' the case of Bridge Company v. United States, 105 U. S. 470 . But that was a case not of the taking, but of the destruction, of property. It is true, Mr. Chief Justice Waite, in delivering the opinion of the court, uses this language in reference to the power of Congress: “ But the power of Congress in respect to legislation for- the preservation of interstate commerce is just as free from state interference as any other subject within the sphere of its legislative authority. The action of Congress is supreme and overrides all that States may do. When, therefore, Congress, in a, proper way, declares a bridge across a navigable river of the United States to be an unlawful structure, no legislation of a State can make it lawful. Those who act on state authority alone,- necessarily assume all the risks of legitimate congressional interference.” But such affirmation of power was not made with reference to a question like this. The facts in that case were these: The Bridge Company was a creature of the legislation of the States of Ohio and Kentucky, and incorporated to build a bridge across the. Ohio Eiver, between Newport and Cincinnati. The state charters authorized the construction of a bridge in accordance with the provisions of an act of Congress of July 14, 1862, or any act that Congress might pass on the subject. On March 3, 1869, Congress passed a resolution giving its assent to the construction of this bridge. This resolution contained this reservation: “But Congress reserves the right to withdraw the assent hereby given, in case the -free navigation of said river shall at any time be substantially and materially obstructed by any bridge to be erected under the authority of this resolution, or to direct the necessary modifications and alterations of said bridge.” 15 Stat. 347 . After the passage of this resolution the company commenced the erection of a drawbridge, and expended a large amount of money in the undertaking.

“ It is next insisted that if, in the judgment of Congress, the public good required -the bridge to be removed, or alterations to b.e made in its structure, just compensation must be made the company for the loss incurred by what was directed. It is true that one cannot be deprived of his property without due process of law, and that private property cannot be taken for public use without just compensation.

“ In the present case, the Bridge Company asked of Con

It is evident, therefore, that the point decided Avas that Congress had resenred the right to withdraw its assent to the construction of a bridge on the plan proposed, Avhenever, in its judgment, such bridge should become an obstruction-to the navigation; that the Bridge Company entered upon the construction of the bridge in the light of this express reservation^ and with the knowledge that Congress might at any time declare that the bridge constructed as proposed Avas an

In the case at bar there is no such reservation; there is no attempt to destroy property; there is'simply a case of the taking by the government, for' publie uses, of the private property of the Navigation Company. Such an appropriation cannot be had without just compensation; and that, as wé have seen, demands payment of the value of the property as it stands at the time of taking. •

The theory of the government seems to be, that the right of the Navigation Company to have its property in the river, and the franchises given by the State to take tolls for the use thereof, are conditional only, and that whenever the government, in the.exercise of its supreme power, assumes control of the river, it destroys both the right of the company to have its property there, and the franchise to take tolls. But this'is' a misconception.' The franchise is a vested right. The State has power to grant it. It may retake it, as it may take other private property, for public uses, upon the payment of just compensation. A like, though a superior, power exists in the national government. It may take it for publie purposes, and take it even against the will of the State; but it can no more take the franchise which the State has. given than it can any private property belonging to an individual.

Notice to what the opposite view would lead: A railroad between Columbus, Ohio, arid Harrisburg, Pennsylvania^ is an interstate highway, created under franchises granted by the two States of Ohio and Pennsylvania, franchises not

It is also suggested that the government does not take this franchise; that it does not need any authority from the State for the exaction cf tolls, if it desires to exact them; that it only appropriates the tangible property, and then either makes the use of it free to all, or exacts such tolls as it sees fit, or transfers the property to a new corporation of its own 'creation; with such a franchise'to take tolls as it chooses to give. But this franchise goes with the property; and the Navigation Company, which owned it, is deprived of it. The government takes it away from the company, whatever use it may make of- it; and the question of just compensation is not determined by the value to the government which takes, but the value to the individual from whom the property is taken; and when by the taking of the tangible property the owner is actually deprived of the franchise to collect tolls, just compensation requires payment, not merely of • the value of the tangible property itself, but also of that of the franchise of which he is deprived.

Another contention is this: First, that the grant of right to the Navigation Company was a mere revocable license; secondly, that, if it was not, there was a right in the State to alter, amend or annul the charter; and, thirdly, that there was, by the 18th section thereof, reserved the right at any time after twenty-five years' from the completion of the improvement to purchase the entire improvement, and franchise by paying the original cost, together with six per cent interest thereon, deducting dividends theretofore declared and paid —

Again, the State has never assumed to exercise any rights reserved in the charter, or by any supplements thereto. So far as the State is concerned, all its grants and franchises remain unchallenged and undisturbed in the possession of the Navigation Company. The State has never transferred, even if it were possible for it to do so, its reserved rights to the United States government, and the latter is proceeding not as the assignee, successor in interest, or otherwise of the State, but by virtue of its own inherent supreme power. What the State might or might not do, is not’ here a matter of question, though doubtless r the existence of this reserved right to take the property upon certain specified terms may often, and perhaps, in the present case, materially affect the question of value. And, finally, there is no suggestion on the part of Congress, and no proffer in these proceedings, of payment under the terms of the charter and supplementary act of 18.39, and no attempt to ascertain the amount which would be due to the company in accordance therewith.

These are all the questions presented in this case. Our conclusions are, that the Navigation Company rightfully placed this lock and dam in the Monongahéla Biver; that, with the ownership of the tangible property, legally held in that place, it has a franchise to receive tolls for its use; that such franchise was- as much a vested right of property as the owner

The judgment, therefore, will be

Reversed, and the case remanded with instructions to grant a new trial.

Mr. Justice Shiras, having been of counsel, and Mr. Justice Jackson, not having been a member of this court at the time of the argument, took no part in the consideration and decision of this. case.