three to eight feet deep, and running from two to three miles per hour. The outlet of White lake is also called White river, is from seventy-five to two hundred feet in width, and in the channel generally from four to ten feet deep, and runs from the western part of the lake north westerly, parallel with the strip of land between the two lakes, about three-quarters of a mile. It then turns west and runs forty to fifty rods to Lake Michigan.

Westerly winds blow sand from said strip of land into the outlet, so that the channel is kept in a navigable condition only by the action of the current and by large expenditure annually of money in removing such deposited sand. Complainants own seventy acres of land lying on the outlet, on which is a steam saw-mill and other buildings and improvements, the value of which is not less than $50,000. They also own lumber lands up the White river, and are accustomed to supply their mill with logs through White river, White lake and the outlet. There is a bayou near their mill wherein logs are stored — logs are taken from the bayou through an opening into the outlet to the sawmill as wanted. Complainants have a steam-tug which runs between said lakes, aiding in the transportation of logs and lumber. All vessels passing from one lake into the other must go by complainants' property through the outlet. They also have a pier extending from the mouth of the outlet into Lake Michigan. Their lumber, when sawed, is received by vessels coming from Lake Michigan, at a dock near the mouth of the outlet.

The congress of the United States has appropriated $57,000 for the improvement of the harbor at White river, to be expended under the directions of the war department. The war department, through its agents, has caused examinations and surveys to be made with reference to the work of improvement, and regards the improvement of the present outlet as impracticable, and has commenced the work of cutting a new channel through the sand bank or strip of land lying between the two lakes, making a straight cut of two hundred feet in width and twelve feet deep, from deep water in Lake Michigan to deep water in White lake.

Complainants claim that the opening of this new channel must result in the rapid closing of the old outlet, because the new channel will be very much wider, deeper and shorter than the old. As a natural and necessary consequence, they say, the water of the inner lake must seek the level of Lake Michigan through the new channel; the descent must be more rapid as the distance is less; its greater depth and width will contribute materially to make the water prefer it to the old channel.

Several legal questions have been presented involving the rights of riparian proprietors upon the navigable waters of the state; the rights of the public in and particularly as to the power of the general government to divert or obstruct such streams in making harbors for the convenience and protection of commerce and navigation, and other questions which I shall have occasion hereafter to refer to. Without reference to the other facts of the case as presented by complainants and defendants, as to whether complainants will, by the opening of the proposed new channel, be deprived of enjoyed vested rights to such an extent as to justify the exercise of the restraining power of the court for their protection, I will first pass upon the legal questions that have been urged upon my consideration.

$32. Rights on navigable waters.

1. The outlet of White lake is a navigable stream, and the law is too firmly settled to allow of discussion at this day, that the owner of land bordering on

a navigable stream in which the tide does not ebb and flow owns the land beneath the water to the center thereof. Neither the nation nor state own the beds of navigable streams within the state, but the riparian proprietor is owner thereof. It is equally well settled as law that a riparian proprietor has a property in the use of water flowing by his premises; that is, a right to use it in its flow in any manner not inconsistent with the rights of others to its use. If, then, the law recognizes such individual property, or, which is the same thing, individual right, in the use of water flowing past or through the land of a person, can such stream be so far obstructed or diverted as to deprive such owner of the use of the water? Clearly not. If the owner of land adjoining such stream has a mill which obtains its motive power therefrom, the water of such stream cannot be so far obstructed or diverted as to deprive his mill of its motive power, nor so as seriously to diminish the needed power. If the stream be navigable for crafts of any sort, for logs and lumber, and be used for any or all these purposes, any diversion or obstruction of the water accustomed to flow there which should render navigation either impossible or difficult and more expensive would be unlawful, and in either case, on a proper showing, should be prevented by injunction.

§ 33. Navigable streams are public highways.

This right of private persons to the use of water as it flows by or through their lands in any manner not inconsistent with the public easement is as sacred as is the right of a person to his land, his house or his personal property. The public, however, have the right to use such streams as are navigable as highways, and the owner of the bed of a stream has no rights in the water thereof which will permit him to use it to the injury of the public. He cannot so far divert the water to his private use as to render navigation impossible or difficult, nor can he place obstructions in the stream in a manner to produce such results. His right and the right of the public to the use of the water of such streams are to remain unimpaired as far as possible, but the right of the public for purposes of navigation is paramount, and there can be no use of the water by a riparian proprietor inconsistent with the public ease

ment.

§ 34. Right of state to improve rivers.

The law, as thus understood, does not deprive a state of the right to improve its navigable rivers, nor indeed to permit the damming or bridging of such streams, providing navigation is not thereby obstructed, as when suitable locks or draws are provided through which navigation is secured to the public. And so, too, a state which by its constitution is not prohibited from entering upon works of internal improvement may cut channels around rapids or carrying places to afford greater facilities for navigation, so as to enable crafts to pass such carrying places which could not be done without, or only in times of high water. In doing so the state as well as individuals must respect the right of riparian proprietors, and not deprive them of such enjoyed use as they are entitled to have continued in the water, to an extent to produce irreparable injury. Mere inconvenience to the private citizen resulting from any such public improvement may well be ignored for the greater benefit to the public, and be made to give way from principles of public policy.

$ 35. Right of eminent domain.

2. But upon principles of public law, which are recognized in most of the state constitutions, and in the constitution of the United States, private property cannot be taken for public use without making just compensation. The

right of eminent domain, which is the right that the people or government retain over the estates of individuals to resume the same for public use, is a right that carries with it the duty to make just compensation to the individual whose property is taken.

$36. The United States has the right to make new channels for rivers, provided private rights or property be not injured.

3. I now come to the question whether the United States, either from motives of public policy or the power given to congress by the constitution to regulate commerce among the states, can lawfully, in the improvement of harbors of national importance and concernment, such as the one at White lake is conceded to be, change the outlet of the small lakes or mouths of rivers so as to deprive persons owning lands bordering the same entirely of the use of the water as it naturally flows by or through their lands. The United States have a right to make the cut between White lake and Lake Michigan — the land where the proposed cut is to be having first been secured — provided thereby private interests are not seriously impaired or private rights destroyed. It is an incident to the sovereignty of the United States, and a right recognized in the constitution, in that clause which prohibits the taking of private property without just compensation, that it may take private property for public use — of the necessity or expediency of which congress must judge, but the obligation to make compensation is concomitant with the right. Bonaparte v. Camden & Amboy R. Co., 1 Bald., 220; Dickey v. Mayville, etc., Turnpike Road Co., 7 Dana, 119. In the last case the court say, "The national power to use the land of a citizen or state for an armory or fortification is undoubted and irresistible; the constitutional obligation to pay the owner a just equivalent, if it be demanded, is equally undoubted and irresist ible."

The case involved the right to carry the United States mail over the road of a turnpike company without payment of toll, and at page 115 the court say, "The right to use private property for a mail route- as for any other national purpose, being qualified by the constitutional condition that a just compensation be made for the use, unless the owner voluntarily waive it does not imply an authority to take, or to use for postoffice or post-road purposes, the land or the house of a citizen, or the railroad or macadamized road of associated citizens, without paying to the owner or owners a just compensation." The principle of that case is directly in point.

The legislature of the state, or the congress of the United States, possesses whatever power exists in either government to take private property for public use, and to provide compensation. If now the power to take may be exercised alone, when we find that the law-making power is alone judge of the necessity or expediency of taking, there will be found no check to its most arbitrary exercise. And as was said by Chief Justice Marshall in Fletcher v. Peck, 6 Cranch, 135 (CONST., § 1805-12), if any limits to legislative power be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation?

§ 37. If a stream be diverted by the government and the riparian owner injured, he must be compensated.

To divert a stream from its natural channel into an artificial one, for the purpose of affording improved navigation and benefiting commerce, may be a work of great public concernment and advantage, but if thereby a riparian owner is wholly or injuriously deprived of the use of its waters, which he is

employing advantageously as an incident to his land, it is taking the private property of such owner in and to the use of that water for public use, and, unless just compensation is made, is against both the principles of the common law and the provisions of the constitution of the United States, and courts have no alternative but to so administer the law as to secure and protect such rights in a proper case.

§ 38. Judicial authority over heads of departments.

4. It was urged upon the argument that the United States is prosecuting the White river harbor improvement, and, as a sovereign power, cannot be restrained. The United States cannot be brought before the court as a party defendant in the record; the courts cannot restrain the president of the United States as the executive power of the government, nor congress, the law-making power; but when congress makes an appropriation to improve a harbor, and commits the direction of the work and expenditure of the money appropriated to the war department, which employs its agents to carry forward the work, neither the war department nor its agents will be exempt from the restraining power of the court, if either seek to execute the law in an unconstitutional manner, by taking private property against the consent of the owner, without compensation.

§ 39. No person exempt from process of injunction.

The war department is not acting as the executive, nor as the agent of the executive power, but ministerially. If the court has jurisdiction of the subject-matter and person of the defendants, I know of no rule which would exclude from the process of injunction any person on account of the character or capacity in which he acts, although such character or duty be conferred or imposed upon him by the law of a state or of congress. 1 Baldw., 206.

§ 40. Private property not to be taken for public use till paid for.

5. One further question is suggested by the argument and from the considerations which I have given, viz.: When is compensation to be made? Or may private property be taken or private rights be impaired before compensation made, if by some law provision is made for ascertaining and making compensation? I regard the just rule to be, that the taking of private prop erty should not be allowed until compensation is actually made, thus imposing on the owner no burthen of seeking or pursuing expensive remedies, and leaving him exposed to no risk or expense in obtaining compensation. 1 Baldw., 227.

6. If, then, the facts of this case bring the complainants within the rules of law as indicated in my views already expressed, the work which is being prosecuted by defendants should be prevented by injunction.

I have already stated most of the allegations of the bill in substance. Complainants therein state that the strip of land between the outlet of White lake and Lake Michigan is in part a mere sand bank, and westerly winds blow this sand into the river in great quantities, so that the channel is kept navigable only by the action of the current and by artificial means. Great expense is necessary every year, on the part of parties interested, to keep the channel clear of the sand which drifts in. They also say that, in their judgment, the opening of the new channel must result in the rapid closing of the old outlet. The wider, straighter, shorter and deeper channel proposed will naturally and necessarily result in causing the waters of White lake to seek the level of Lake Michigan through the new channel. And they say that any diminution of the accustomed supply of water in the present outlet would tend to injure their

property, since there is now hardly enough; and that if the current should cease to flow, even though the water should remain as deep as at present, the expense of getting logs from White lake to the bayou would be seriously increased and the value of their property diminished.

The evidence in support of the bill is the affidavit of Colonel J. D. Webster, who from 1838 to 1854 was an officer of the topographical engineers of the United States army, and for several years had charge of government harbor improvements on Lake Michigan, is familiar with the shores of the lake, and has given great attention and reflection to the action of the winds and currents thereof. He states that the effect of the new channel will be that almost the entire water passing from White lake to Lake Michigan will flow through the new channel, and that there will remain but little or no current in the old channel. That in consequence it will be gradually but surely filled with sand, and within a few years closed for all practical and useful purposes. But this opinion is based upon causes operating in the absence of the use of artificial means to aid this channel by dredging out the sand, as now employed.

He thinks no considerable effect in keeping the present channel open after the completion of the new would result from the running back into Lake Michigan of the waters which are by the strong westerly winds blown into White lake.

The defendants, in opposition to the motion for injunction, present three affi davits, no answer having been filed. Colonel J. B. Wheeler, of the United States army, who, under instructions from the secretary of war, has charge of the work of constructing the proposed new channel, gives full information as to the surveys for the work, the report to the war department, and among other items the report says: "It is hardly probable that any reasonable expenditure of money upon this (the present) entrance and portion of the river or outlet would give us a harbor suitable to the wants and necessities of the general commerce on Lake Michigan." And further, in reference to the locality of the proposed new channel, it is said: "By examining this locality we see that there is deep water in both lakes near the shore, and that there the distance between the twelve-feet waters in each is only twelve hundred and fifty feet. This, then, is the place where the channel should be made."

The secretary of war transmitted this information to congress, and the appropriation was thereupon made, and Colonel Wheeler was directed to proceed with the work accordingly. Colonel Wheeler says: "Whether the opening of the new channel will necessarily close the old one is a subject of speculation."

John D. Sturtevant states his residence at White lake since 1861, and from his observations as to the action of the waters on the east shore of Lake Michigan it is his opinion that the effect of opening the new channel, as proposed, will not be as stated in the bill and by Colonel Webster in his affidavit, but that the present outlet will not be filled or closed.

The affidavit of Charles Mears, a resident on the east coast of Lake Michigan since 1838, states that in that year he built a saw-mill on White lake and manufactured lumber there for twenty years; that he has had experience in improving harbors on this shore at six different points; has been a careful observer of the action and effects of winds and currents at White lake and other points. He gives it as his judgment that the effect of opening the new channel will not be as stated in the bill of complainants and in Colonel Webster's affidavit. On the contrary, that, if the improvement is made, it is his