Soil under Navigable Waters. from prosecuting the claim of Maj. A. K. Arnold against the United States. The express words of that section clearly cover the case. It will be observed that it is a matter in which the Department of War, as such, has no interest, although it may concern the interests of individual officers. Referring to section 1063, it will also be observed that the case must be prosecuted in the Court of Claims as if "originally commenced by the voluntary action of the claimant." If the express words of the statute needed any re-enforcement, it would readily be found in the extraordinary position in which the claim would be presented to the court in case the War Department and the Department of Justice, through their subordinate officers, should be involved in a controversy as to the action of another Department, namely, the Treasury. Such a state of things obviously could not exist. All the Departments are simply representative of the Executive. Very respectfully, your obedient servant, Hon. ALEXANDER RAMSEY, Secretary of War. CHAS. DEVENS. SOIL UNDER NAVIGABLE WATERS. The property of an individual in a bar or other part of the bed of a navigable river is subject to the public right of navigation, and to the right of the public to regulate, control, and divert the flow of the water therein in the interests of navigation; and where the stream is a navigable river of the United States, the right thus to regulate, control, and divert the flow of water belongs to Congress. Damage resulting to the individual proprietor from the exercise of that right is not a proper subject of compensation. Accordingly, where it was proposed to construct a dike in the Ohio River to improve its navigation (under an appropriation by Congress for the improvement of that river), extending from the shore on the south side of the river into the middle of the stream, crossing a sand bar at the outer extremity, which is under water at all times except when the river is at its low-water level or within a few feet thereof: Adrised that the United States would incur no liability to the owner of the sand bar by reason of any washing away of the same, or other damage thereto resulting from the construction of the dike; that the Soil under Navigable Waters. right of the United States thus to occupy the bar for the improvement of navigation is paramount to the right of the owner, and must prevail over the olaims of the latter. DEPARTMENT OF JUSTICE, April 27, 1880. SIR: By your letter of the 6th instant and the accompanying papers it appears that for the purpose of improving the navigation of the Ohio River at Portland, Ky. (under a recent appropriation made by Congress), it is proposed to construct a dike extending from the shore on the south side of the river into the middle of the stream, crossing a sand bar at the outer extremity. This bar, which is under water at all times except when the river is at its low-water level or within a few feet thereof, is claimed by an individual as his property, and the claimant has notified the engineer officer in charge of the work that he will "hold the United States responsible" for any washing away of the bar by reason of the dike. At the suggestion of the Chief of Engineers, you submit for my consideration the question "whether the rights of the United States to occupy a sand bar in the river for the purpose of improving its general navigation should be subordinate to claims of this nature from individuals." This question regards the rights of an individual proprietor to a part of the bed of a navigable river of the United States on the one hand, and on the other the rights of the United States touching the improvement of the navigation of such river. It is well settled that under the authority given by the Constitution to regulate commerce among the several States Congress has the right to regulate navigation, and to that end has power to make improvements in the beds of navigable rivers of the United States, to divert the water from one channel to another, and to plant or remove obstructions therein at its will. (South Carolina v. Georgia et al., 93 U. S., 4.) Damages resulting to individuals from works of this kind are not proper subjects of compensation, the damage in such cases being regarded as damnum absque injuria. The title of the individual proprietor to a bar or other part of the bed of a navigable river is subject to the public right of navigation, Missouri River, Fort Scott and Gulf Railroad Company. and to the right of the public to regulate, control, and divert the flow of the water therein in the interests of navigation. As I have already intimated, where the river is a navigable river of the United States, the right thus to regulate, control, and divert the flow of the water belongs to Congress. From these principles it follows that the United States would incur no liability to the owner of the sand bar across which the proposed dike is to extend by reason of any washing away of the bar, or other damage resulting from the construction of the dike. In direct answer to your inquiry, then, I have the honor to state that in my opinion the rights of the United States to occupy a sand bar in a navigable river for the purpose of improving its navigation are not subordinate to the rights of individuals therein, but, on the contrary, must prevail against the claims of individual proprietors. I am, sir, very respectfully, your obedient servant, Hon. ALEXANDER RAMSEY, Secretary of War. MISSOURI RIVER, FORT SCOTT AND GULF RAILROAD COM PANY. The act of July 25, 1866, chap. 241, sections 1 to 5, the act of July 12 1876, chap. 179, section 13, and the act of March 3, 1877, chap. 125, considered; and held that upon the acceptance by the Missouri River, Fort Scott and Gulf Railroad Company (formerly the Kansas and Neosho Valley Railroad Company) of the terms and conditions of the said act of March 3, 1877, according to the provisions thereof, that act became binding upon the company from its date, and that the road of the company should be treated as a non-land-grant road from such date (March 3, 1877). DEPARTMENT OF JUSTICE, SIR: You have requested me to advise you as to the date from and after which the Missouri River, Fort Scott and Gulf Railroad should be treated as a non-land-grant road. I will briefly summarize the provisions of various acts of Congress which will indicate how the Post-Office Department Missouri River, Fort Scott and Gulf Railroad Company. has an interest in the determination of the question sub. mitted. The act of July 25, 1866 (14 Stat., 237), granted lands to the railroad in question on condition (section 5) inter alia that the mails should be carried at such rates as Congress might direct. Section 13 of the act of July 12, 1876 (19 Stat., 78), provides that railroads constructed by land-grants made by Congress on such a condition as is above recited should receive only eighty per centum of authorized compensation. The act of March 3, 1877 (19 Stat., 404), provides for a repeal of the first five sections of the act of July 25, 1866, and for the acceptance within ninety days of the terms of the repealing act by the company. I am of the opinion that section 1 of the act of March 3, 1877, in view of the provisions of the remaining sections, was not an unconditional or absolute repeal of certain sections of the act of 1866, inasmuch as a failure to accept the terms and conditions of the act of 1877 by the company would have rendered nugatory the whole act. Although the repealing act was evidently passed with the consent, and most likely at the instance of the company, it was possible for the company to refuse to comply with its terms, conditions, and requirements. The recognition by this statute of the company's title in and right to the lands manifested by sections 3, 4, and 5, notwithstanding the previous repeal of the sections of the act of 1866, which donated lands, &c., shows that it was not the purpose of Congress to deprive the company of its vested rights without its consent. In effect, the repealing act treated the consent of the company as essential to its validity, and was an offer on the part of Congress of change in the original agreement to the other party in interest. When the company accepted the terms and conditions of the act within the time prescribed, and thereby assented to the new arrangement, the act became operative, and, like other acts of Congress, should be considered as binding from its date, March 3, 1877. In other words, the acceptance by the company related back to the day when the act was approved by the President. Missouri River, Fort Scott and Gulf Railroad Company. The ninety days was reasonable time allowed the company to ratify the act and accept its terms. The date of its passage was a part of the act, and the acceptance was as of that date by the well-known legal principle of relation. This construction is fortified by the language of the first clause of section 4 of the act: "That said railroad company, its successor or assigns, shall reconvey, by deed or deeds duly executed, all unsold lands patented to it, in pursuance of the sections hereby repealed, and shall pay into the Treasury of the United States the proceeds of all such lands sold and conveyed prior to the passage of this act." The words "prior to the passage of this act" distinctly prevented the company from disposing of lands after the passage of the act. The company therefore could not convey title to any land after March 3, 1877, if the act was accepted. If it could convey no title after the passage of the act, it ceased as of that date to be a land-grant road. If, however, there remained title to any lands in the company between the date of the act and that of the acceptance, which would be the case if the act did not take effect until the acceptance, it is reasonable to believe the act would have provided for a reconveyance of all lands held by the company prior to the acceptance, instead of prior to the passage of the act. It certainly never could have been the intention of Congress to give the company the opportunity to have lands patented after the passage of the act, and to sell the same without accountability to the United States, which it could have done if the act did not become operative until May 23, 1877, the date of acceptance. In direct answer to your inquiry, I am of opinion that the Missouri River, Fort Scott and Gulf Railroad should be treated as a non-land grant road from the date of the act of March 3, 1877. Very respectfully, your obedient servant, Hon. DAVID M. KEY, Postmaster-General. |