In the absence of any statute by Congress, State has plenary power over a navigable stream entirely within its limits, and obstructions in the stream may be offenses against the laws of the State, but not an offense against the United States. North Shore Boom & Driving Co. v. Nicomen Boom Co (1909), 29 Sup. Ct. 355, 357, 212 U. S. 406, 53 L. Ed. 574.

State legislation to aid commerce by improving a navigable river, by deepening its channel or removing obstructions, does not encroach on power of Congress, if not in conflict with any system for improvement of navigable waters provided by Congress. Faust r. City of Cleveland (1903), 121 Fed. 810, 58 C. C. A. 194, citing Mobile County r. Kimball (1880), 102 U. S. 691, 26 L. Ed. 238.

A bridge across a navigable stream built under authority given by the State prior to the enactment of any Federal legislation on the subject is a lawful structure. Rogers Sand Co. v. Pittsburgh, Ft. W. & C. Ry. Co. (1905), 139 Fed. 7, 71 C. C. A. 419.

All State laws and regulations with respect to navigable waters, and all rights ac quired under them, are subject to the paramount right of the United States to appropriate any portion of the submerged soil for the purposes of navigation. Garrison v. Greenleaf Johnson Lumber Co. (1914), 215 Fed. 576; 131 C. C. A. 644, reversing decree Greenleaf Johnson Lumber Co. v. Garrison (D. C. 1913), 208 Fed. 1022, appeal to Supreme Court granted (1914), 221 Fed. 1021, 136 C. C. A. 663, and decree affirmed (1915), 35 Sup. Ct. 551, 237 U. S. 251, 59 L. Ed 939.

Until Congress assumes control of a navigable river wholly within the limits of the State, a State may legislate in reference to Ita commercial use as a public nighway, and authorize the obstruction of a navigable river by a private corporation. Heerman r. Beef Slough Manufacturing, Booming, LogDriving & Transp. Co. (C. C. 1878), Fed. Cas. No. 6,320; Id. (C. C. 1880), 1 Fed. 145, 154.

In absence of Federal starat, States bordering on the Mississippi Rizer cold a thorize improvements on their side of the river, but could not justify the destruction or substantial impairment of navigation of the river. Rutz e. St. Louis (C. C. 1882), 10 Fed 338, 339.

States may assert the same ownership to the beds and shores of navigable fresh-water lakes and streams as they may properly art to the beds and shores of tidal waters. McGilvra e. Ross (C. C. 1907), 161 Fed.

; decree affirmed (1908), 164 Fed. 604, 90 C. C. A. 398, which is reversed (1909), 30 Sup. Ct. 27, 215 U. S. 70, 54 L. Ed. 95. But the right so granted is held subject to

the right of Congress at any time to require the removal or alteration of such structure as an obstruction to navigation, where such waterway is used as a means for carrying on interstate or foreign commerce. U. S. e. Union Bridge Co. (D. C. 1903), 143 Fed. 377; judgment affirmed, Union Bridge Co. e. U. S. (1907), 27 Sup. Ct. 367, 204 U. S. 364, 51 L. Ed. 523.

Where a dike was being constructed in the Ohio River, leading from the shore to deep water, which it was apprehended by persons engaged in navigating the river would obstruct its navigation, and application was made by the latter to the engineer officers of the United States to interfere, the authorities of the United States had no power, in the absence of congressional legislation. (1880) 15 Op. Atty. Gen, 526.

In the absence of legislation by Congress on the subject of the improvement of the harbor of St. Louis, or of the navigation of the Mississippi River at that point, no one is authorized to institute judicial proceed. ings in behalf of the United States against the city of St. Louis for the abatement as a nuisance of the Bryan Street dike, constructed by that city in said river. The anticipation that, should such legislation hereafter be adopted, the dike will be an obstacle, is no ground for interference. (1875) 15 Op. Atty. Gen. 515.

The filling of a navigable waterway for the purpose simply of enabling riparian owners to reach the point of navigability by means of docks, piers, etc., when not forbidden by any statute of the United States or of a State, is neither unauthorized nor unlawful. But the filled in land is sub. ject to the servitude of navigation, and any obstruction to navigation arising therefrom could be abated by Congress, even if made under the authority of the State. (1911) 29 Op. Atty. Gen. 139. The right of the State to regulate and control the beds of navigable streams does not imply a right to relinquish its control over a river bed or permit its use so as to interfere with navigation. State v. Southern Sand & Material Co. (Ark. 1914), 167 S. W. 854.

Constitutionality of Federal statute.— Congress has power to close one of several channels in a navigable stream if in its judgment the navigation of the river will be thereby improved. South Carolina v. Georgia (1876), 93 U. S. 4, 23 L. Ed. 782.

No act of or grant by an executive department of the United States can affect the right of the public to use the waters of a navigable stream for purposes of navigation, nor the power of Congress to control the same. Carver v. San Pedro, L. A. & S. L. R. Co. (C. C. 1906), 151 Fed. 334.

The statute is within the power of Congress so far as navigation comes within the

provisions of interstate commerce or within the admiralty and maritime jurisdiction. U. S. v. Banister Realty Co. (C. C. 1907), 155 Fed. 583, and cases cited.

or reasonably be

ог

The constitutional jurisdiction of the United States to legislate over navigable waters applies to the entire body of water where the tide ebbs and flows, over which water, or through the channels of which, interstate or foreign commerce might ordinarily transacted, which is subject to the admiralty jurisdiction; and the power of the War Department over obstructions to such waters is coextensive with such general jurisdiction. S. r. President, etc.. of Jamaica & R. Turnpike Road (C. C. 1910), 183 Fed. 598; decree reversed (1913), 204 Fed. 759, 123, C. C. A. 128.

U.

Congress has supreme control of a navigable stream where the commerce thereon is interstate and foreign. Hagerta v. Mississippi River Power Co. (D. C. 1913), 202 Fed. 776; [C. S. p. 12188].

It is not an unconstitutional delegation of the legislative function for Congress to intrust to the Secretary of War the power to declare what is an unreasonable obstruc tion to navigation. (1889) 21 Op. Atty. Gen. 431.

a

See Frost v. Washington County R. Co. (1901), 51 A. 806, 96 Me. 76, 59 L. R. A. 68. Construction and operation of statute in Federal law general. Where there is a which applies to the subject of obstruction of a navigable stream entirely within State, there is a concurrent or joint juris- diction of the State and National Governments over the erection of a structure obstructing navigation. North Shore Boom & Driving Co. v. Nicomen Boom Co. (1909), 29 Sup. Ct. 355, 357, 212 U. S. 406, 53 L. Ed. 574.

Th anthority of a State to prohibit the erection, without its permission, of a structure in a navigable river wholly within its limits, was not superseded by this section, and both the State and Federal Governments must act conjointly. Cummings v. Chicago (1903), 23 Sup. Ct. 472, 477, 188 U. S. 410, 47 L. Ed. 525; Calumet Grain & Elevator Co. v. Same (1903), 23 Sup. Ct. 477, 188 U. S. 431, 47 L. Ed. 532; Montgomery v. Portland (1903), 23 Sup. Ct. 735, 190 U. S. 89, 47 L. Ed. 965; The Margaret J. Sanford (D. C. 1913), 203 Fed. 331.

The delegation to the Secretary of War by act of Sept. 12, 1890 (26 Stat. 453, secs. 4, 5, 7), of authority to direct changes in existing bridges over any navigable waters of the United States, or of bridges to be erected under legislative authority of any State, for the purpose of preventing obstructions to navigation, showed no intention by Congress to exercise exclusive control

over navigable waters entirely within the jurisdiction of a State; and consequently this act did not deprive the States of power to compel the removal or alteration of bridges erected over such waters without authority. Lake Shore & M. S. Ry. Co. v. Ohio (1897), 17 Sup. Ct. 357, 358, 165 U. S. 365, 41 L. Ed. 747.

This section and sec. 1561, post, merely provide that, under circumstances described, the Secretary of War may withdraw all objections on the part of the United States to the erection of structures mentioned therein over navigable streams, but Congress did not assume to deprive a State in which such stream may be situated of all jurisdiction thereover. (1909) 27 Op. Atty. Gen. 327. And does not transfer exclusive control over navigable waters within the limits of a State to the Federal Government, but the right to erect structures in such waters is dependent upon the concurrent consent of both the State and Federal Governments. Minnesota Canal & Power Co. v. Pratt (1907), 112 N. W. 395, 101 Minn. 197, 11 L. R. A. (N. S.) 105.

By expending money in improving the Willamette River in Oregon, and making Portland a port of entry, Congress did not assume police power over that stream so as to deprive the State of the power to authorize the erection of a bridge over that river without the consent of Congress. Willamette Iron Bridge Co. v. Hatch (1888) 8 Sup. Ct. 811, 125 U. S. 1, 31 L. Ed. 629, reversing decree Willamette Iron Bridge Co, v. Same (C. C. 1884), 19 Fed. 347.

The establishment of harbor lines did not operate to destroy all State power concerning structures in navigable waters within its border, or to automatically destroy all vested property rights, though acquired under State authority prior to this section. Gring v. Ives (1912), 32 Sup. Ct. 167, 222 U. S. 365, 56 L. Ed. 235.

Acts of Congress making appropriations for the improvement of a river do not prevent the construction under State authority of booms, dams, piers, or bridges on the river. U. S. v. Bellingham Bay Boom Co. (1897), 81 Fed, 658, 661, 26 C. C. A. 547. The provision in the act of admission of California into the Union, that all the navigable waters in the State should be common highways, and forever free, without tax therefor, does not refer to physical obstructions, but to political regulations. Pacific Gas Imp. Co. v. Ellert (C. C. 1894), 64 Fed. 421.

Filled in land is subject to the servitude of navigation, and any obstruction to navigation arising therefrom could be abated by Congress, even if made under authority of a State. The filling of a navigable wa

terway for the purpose simply of enabling riparian owners to reach the point of navi gability by means of docks, piers, etc., when not forbidden by any statute of the United States or of a State, is neither unauthorized nor unlawful. (1911) 29 Op. Atty. Gen. 139.

A license by the Secretary of War authorizing a corporation to carry water pipe lines under a navigable stream separating two States was a mere finding and declaration that the pipes, structure, or excavation would not interfere with or be detrimental to navigation, and was not equivalent to a positive declaration by authority of Congress that the licensee might make such obstruction or excavation without first ob taining authority from the State. Hubbard v. Fort (C. C. 1911), 188 Fed. 987.

The control and supervision of the navigable waters of the United States is vested in the Secretary of War. (1897) 21 Op. Atty. Gen. 518.

Prior to the Porto Rican act (31 Stat. So the Secretary of War had authority, ur der this section, to issue a license for the building and maintenance of a wharf in the harbor of San Juan, Porto Rico, and the rules Imposed by 31 Stat. 716 on the grant of franchises by the executive council of that island do not ex.end to an antecedent Heense granted by him. The power to revoke the license so granted is vested in the Secretary of War, and so long as it is unrevoked the rebuilding of the wharf under such license is subject to his control and supervision, and not to that of the executive council. (1901) 23 Op. Atty. Gen. 551.

Congress did not by this section undertake to assume control over navigable streams to such an extent as to deprive a State in which such stream may be situated of all jurisdiction thereover. The statute only in effect provides that under the circumstances described the Secretary of War may withdraw all objections on the part of the United States to the creation (1909) 27 Op. of structures mentioned. Atty. Gen. 327.

See Cobb r. Lincoln Park (1903), 202 III. 427. 67 N. F. 5. 63 L. R. A. 267, 95 Am. St. Rep 258, holding that an authorization of work by the Secretary of War is a mere cense and not a grant of power. And see Wallace r. Alken (1911), 72 8. E. 157, 136 Ga $45, holding that a license to build a wharf, issued by the Secretary of War to one of the rival claimants, was not admissible in ev.dence as tending to show title in such claimant. Wallace r. Aiken (1911), 72 S. E. 157, 136 Ga. $45

And see, also, West Chicago St. R. Co. r. People of State of Illinois ex rel. City of C&C (1906), 26 Sup. Ct. 518, 201 U. S. 506, 50 L. Ed. 845.

Of prior statutes.-Act of September 19, 1890, prohibiting the maintenance of obstruc tions to navigation in navigable streams, is not inconsistent with this section. U. S. v. Wishkah Boom Co. (1905), 136 Fed, 42, 68 C. C. A. 592; appeal dismissed. Wishkah Boom Co. v. U. S. (1906), 26 Sup. Ct. 765, 202 U. S. 613, 50 L. Ed. 1171.

The act of 1890 prohibits the construction of a dam in a river, at a point where it is not navigable, which so retards the flow of water as to affect the navigability of the river at a point where the river was navigable before. U. S. v. Rio Grande Dam & Irrigation Co. (1899), 19 Sup. Ct. 770, 776, 174 U. S. 690, 43 L. Ed. 1136, reversing decree (N. M. 1898), 51 Pac. 674.

The riparian owner on the Mississippi River above tidewater, whose title under the local law extends to the middle of the stream is not powerless to prevent a trespasser from dredging the sand in the bed of the river in front of her land, even if she, under section 7 of the river and har bor act, Sept. 19, 1890, could not take out such sand without permission of the Secre tary of War. Archer r. Greenville Sand & Gravel Co. (1914), 34 Sup. Ct. 567, 233 U. S. 60, 58 L. Ed. 850, reversing judgment (1912), 194 Fed. 1020, 114 C. C. A. 664.

Under sec. 7, act of Sept. 19, 1890, which prohibits the erection of obstructions in navigable waters of the United States, and section 10 which provides that every per son guilty of a violation of the provisions of section 7 shall be punished, and act of 1892, which amends and reenacts section 7, section 10 applies to section 7 as amended and reenacted, and Imposes a penalty for Its violation. Leovy v. U. S. (1899), 92 Fed. 344, 34 C. C. A. 392.

Harbor defined.-A harbor is a recess in the coast line of a body of water in which ships can be sheltered, and it may extend to a line inside of which vessels may find protection, and the word has a more extended meaning than "shore," which when applied to a tide water bay usually means the part between ordinary high and low water marks. Leary r. Jer sey City (C. C. 1911) 189 Fed, 419. also, The Aurania (D. C. 1886), 29 Fed. 98; Rowe v. Smith (1883), 51 Conn. 266, 50 Am. Rep. 16; Martin e. Hilton (1815), 9 Metc. (50 Mass.) 371; People v. Kirsch (1887), 35 N. W. 157, 67 Mich. 539, and cases cited.

See,

Navigable waters of the United States in general. All waters are navigable waters of the United States where they form in their ordinary condition, by themselves or by uniting with other waters, a continued highway over which commerce is or may be

carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.

The Daniel Ball (1870), 10 Wall. 557, 563, 19 L. Ed. 999; The Montello (1874), 20 Wall. 430, 22 L. Ed. 391; [C. S. p. 12192].

The more capacity to pass in a boat of any size, however small, from one stream or rivulet to another, is not sufficient to constitute a navigable water of the United States, which act of Sept. 19, 1890, makes it a misdemeanor to obstruct unless the channel is substantially useful to some purpose of interstate commerce. Leovy v. U. S. (1900), 20 Sup. Ct. 797, 177 U. S. 621, 44 L. Ed. 914, reversing judgment (1899), 92 Fed. 344, 34 C. C. A. 392.

Navigable waters of the United States applies, first, to all waters capable of sustaining or being used for interstate or foreign commerce, covering every part of any body of water, tidal or otherwise, any portion of which is capable of such use; and, second, to all waters under the admiralty and maritime jurisdiction of the United States and over which the district court of the United States can exercise its peculiar admiralty jurisdiction. U. S. v. Banister Realty Co. (C. C. 1907), 155 Fed. 583. Waters held not navigable waters of the United States.-A pass or crevasse caused by the overflow of the Mississippi River making a channel to the Gulf through which a few fishermen had occasionally gone with small vessels carrying oysters for planting, and through which one or two cargoes of timber may have passed, but which had not been used for any purpose of interstate commerce, and the Gulf end of which became closed. Leovy v. U. S. (1900), 20 Sup. Ct. 797, 798, 177 U. S. 621, 44 L. Ed. 914. Coastal waters of Cuba. (1900) 23 Op. Atty. Gen. 76. A stream in a swamp. Jeremy v. Elwell (1890), 5 Ohio Cir. Ct. R. 379. A stream which is only navigable for 3 or 4 miles from its mouth at high tide by small boats drawing from 3 to 4 feet of water, and floatable for its entire length. State v. Superior Court of Chehalis County (Wash. 1910), 109 P. 340.

Bank and bed of river defined.-The bank of a river is that elevation of land which confines the waters of the river in their natural channel when they rise to their highest, but do not overflow the banks. A river does not include lands beyond the banks, which are covered in times of freshet or extreme floods, or swamps or low grounds which are liable to overflow, but are reclaimable for meadows or agriculture, or which being too low for reclamation, though not always covered with water, may be used for cattle to range upon, as natural or uninclosed pasture. The bed of a river is a definite, and commonly a per

manent, channel, and is the characteristic which distinguishes the water of the river from mere surface drainage, and from water percolating through the strata of the earth. Paine Lumber Co. v. U. S. (C. C. 1893), 55 Fed. 854.

Affirmatively authorized obstructions or not affirma

improvements.-Obstructions

tively authorized by Congress are prohibited, but the case of the State assent remains with the State for its sole adJudication. North Shore Boom & Driving Co. v. Nicomen Boom Co. (1909), 29 SupCt. 355, 357, 212 U. S. 406, 53 L. Ed. 574. The word "affirmatively" in this section is used to distinguish the two kinds of authority referred to, and the section should be construed to require that the initial authorization to create an obstruction must rest on affirmative congressional authority, and not on a mere premit of the Secretary of War. The word "authorize" is used in the sense of to approve of and formally sanction, and the section does not confer on the Secretary of War authority to grant original authorization for the construction of any work constituting an obstruction of the navigable waters of the United States. Hubbard v. Fort (C. C. 1911), 188 Fed. 987. And a log boom constructed in the manner conformable to a State statute at the time Congress had not assumed jurisdiction over the waters in question is "affirmatively authorized by law" within act 1890, sec. 10. U. S. v. Bellingham Bay Boom Co. (1900), 20 Sup. Ct. 343, 344, 176 U. S. 211, 44 L Ed. 437.

At common law no right to wharf out to navigable waters attached to the ownership of shore lands, and such right, if it exists, must be based on some legislation of the State. Western Pac. Ry. Co. v. Southern Pac. Co. (1907), 151 Fed. 376, 80 C. C. A. 606.

That a log boom constructed under authority of a State statute on a river lying wholly within the State may not conform to the regulations prescribed by the State statute does not make it an unlawful structure, under act September 19, 1890 (26 Stat. 426). U. S. v. Bellingham Bay Boom Co. (1897), 81 Fed. 658, 26 C. C. A. 547, affirming judgment (C. C. 1896), 72 Fed. 585; judgment reversed (1900), 20 Sup. Ct. 343, 176 U. S. 211, 44 L. Ed. 437.

This section does not apply to the rebuilding of a bridge which was lawfully in existence when passed. The right to maintain a railroad bridge lawfully bullt across a navigable stream carries e right to rebuild the same in whole or in part when required for the safety of travel and transportation, and also the right to build