Subordinated   Riparian  Rights

Justice Harlan West Chicago St. R. Co. v. People of State of Illinois Ex Rel City, 201 U.S. 506 (1906):

"Great stress is placed by the railroad company on the fact that it is the owner in fee of the bed of the river at the point where the tunnel was constructed. But that fact is not vital in the present discussion; for it was adjudged by the state court-in harmony with settled doctrines, as will presently appear-that 'the title to land under a navigable river is not the same as the title to the shore land:' that 'in a navigable stream the public right is paramount, and the owner of the soil under the bed of such a stream can only use and enjoy it in so far as is consistent with the public right, which must be free and unobstructed;' that 'the title to the upland is absolute and paramount, while the title to the lands over which the navigable water flows is subordinate to the public right of navigation;' and that 'the city could not, if it would, grant the right to obstruct the navigation of the river, or bind itself to permit anything which has become an obstruction to be continued.' 214 Ill. 9, 20, 21, 73 N. E. 393, 397..."

"... The principle is thus declared by a leading text writer: 'The privilege of navigation upon all waters which are capable of such use in their natural condition, and are accessible without trespassing upon private lands, is a common and paramount right. . . . At common law the right of navigating a public stream is paramount to the right of passage across the stream by means of a bridge.' Gould, Waters, 86, 88.

"....The state court has well said that to maintain the navigable character of the stream in a lawful way is not, within the meaning of the law, the taking of private property or any property right of the owner of the soil under the river, such ownership being subject to the right of free and unobstructed navigation. People ex rel. Chicago v. West Chicago Street R. Co. 203 Ill. 551, 557, 68 N. E. 78. What the city asks, and all that it asks, is that the railroad company be required, in the exercise of its rights and in the use of its property, to respect the public needs as declared by competent authority, upon reasonable grounds, to exist. This is not an arbitrary or unreasonable demand. It does not, in any legal sense, take or appropriate the company's property for the public benefit, but only insists that the company shall not use its property so as to interrupt navigation."

Justice Harlan in Union Bridge Co. v. U.S. 204 U.S. 364 (1907) stated:

"Although the bridge, when erected under the authority of a Pennsylvania charter, may have been a lawful structure, and although it may not have been an unreasonable obstruction to commerce and navigation as then carried on, it must be taken, under the cases cited and upon principle, not only that the company, when exerting the power conferred upon it by the state, did so with knowledge of the paramount authority of Congress to regulate commerce among the states, but that it erected the bridge subject to the possibility that Congress might, at some future time, when the public interest demanded, exert its power by appropriate legislation to protect navigation against unreasonable obstructions..."

Stated Justice Hughes, in Philadelphia Co. v. Stimson, 223 U.S. 605 (1912):

" Nor is the authority of Congress limited to so much of the water of the river as flows over the bed of forty years ago. The alterations produced in the course of years by the action of the water do not restrict the exercise of Federal control in the regulation of commerce. Its bed may vary and its banks may change, but the Federal power remains paramount over the stream, and this control may not be defeated by the action of the state in restricting the public right of navigation within the river's ancient lines. The public right of navigation follows the stream (Rolle's Abr. 390; Carlisle v. Graham, L. R. 4 Exch. 361, 367, 368, L. J. Exch. N. S. 226, 21 L. T. N. S. 133, 18 Week. Rep. 318), and the authority of Congress goes with it."

..."In Gibson v. United States, [166 U.S. 269, 41L.ed 996, 17 Sup.Ct. Rep.578] supra, the construction of a dyke in the Ohio river under the authority of the Secretary of War had substantially destroyed the landing on and in front of a farm owned by Mrs. Gibson 'by preventing the free egress and ingress to and from said landing' to 'the main or navigable channel' of the river. The court said (pp. 271, 272, 275 ): 'All navigable waters are under the control of the United States for the purpose of regulating and improving navigation, and although the title to the shore and submerged soil is in the various states and individual owners under them, it is always subject to the servitude in respect of navigation created in favor of the Federal government by the Constitution. South Carolina v. Georgia, 93 U.S. 4, 23 L. ed. 782; Shively v. Bowlby, 152 U.S. 1, 38 L. ed. 331, 14 Sup. Ct. Rep. 548; Eldridge v. Trezevant, 160 U.S. 452, 40 L. ed. 490, 16 Sup. Ct. Rep. 345. . . . The 5th Amendment to the Constitution of the United States provides that private property shall not 'be taken for public use without just compensation.' Here, however, the damage of which Mrs. Gibson complained was not the result of the taking of any part of her property, whether upland or submerged, or a direct invasion thereof, but the incidental consequence of the lawful and proper exercise of a governmental power.'

"Again, in Scranton v. Wheeler, 179 U.S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48, the question arose with respect to the riparian owner whose access from his land to navigability was permanently lost by reason of the construction by the United States of a pier resting on submerged lands in front of his upland. The court said in its opinion (p. 163):

'The primary use of the waters and the lands under them is for purposes of navigation, and the erection of piers in them to improve navigation for the public is entirely consistent with such use, and infringes no right of the riparian owner. Whatever the nature of the interest of a riparian owner in the submerged lands in front of his upland bordering on a public navigable water, his title is not as full and complete as his title to fast land which has no direct connection with the navigation of such water. It is a qualified title, a bare technical title, not at his absolute disposal, as is his upland, but to be held at all times subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation.'

Justice Black, in U. S. v. Commodore Park, 324 U.S. 386 (1945) stated:

..."The only land for which compensation was awarded because of mud and silt deposits was that part of the creek's bed between high and low water mark. That Virginia recognizes respondent's title to such land cannot give respondent a right to compensation if its market value is impaired as a result of work done by the United States in the interest of improvement of navigation. United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 596-598, 61 S.Ct. 772, 775, 776, set at rest any remaining doubt concerning the dominant power of the government to control and regulate navigable waters in the interest of commerce, without payment of compensation to one who under state law may hold 'technical' legal title (as between himself and others than the government) to a part of the navigable stream's bed.

"Second. Nor does a riparian owner acquire a unique private right distinct from that held by all others, to have access to and enjoyment of navigable waters and to recover compensation from the government because deprived of that privilege by an authorized governmental change in a stream. Respondent's property was always subject to a dominant servitude; it did not have a vested right to have this navigable stream remain fixed and unaltered simply because of the consequent reflected additional market value to adjacent lands. Whatever market value of riparian lands may be attributable to their closeness to navigable waters, does not detract from the government's 'absolute' power in the interests of commerce, to make necessary changes in a stream. In short, as against the demands of commerce, an owner of land adjacent to navigable waters, whose fast lands are left uninvaded, has no private riparian rights of access to the waters to do such things as 'fishing and boating and the like', for which rights the government must pay. Riparian rights of access to navigable waters, cannot, as against the government's power to control commerce, be bought and sold."

Justice Rehnquist in Kaiser Aetna v. United States, 444 U.S. 164 (1979) stated:

"The navigational servitude is an expression of the notion that the determination whether a taking has occurred must take into consideration the important public interest in the flow of interstate waters that in their natural condition are in fact capable of supporting public navigation. See United States v. Cress, 243 U.S. 316 (1917). Thus, in United States v. Chandler-Dunbar Co., supra, at 69, this Court stated that "the running water in a great navigable stream is [incapable] of private ownership. . . ."

"... The nature of the navigational servitude when invoked by the Government in condemnation cases is summarized as well as anywhere in United States v. Willow River Co., 324 U.S. 499, 502 (1945):

'It is clear, of course, that a head of water has value and that the Company has an economic interest in keeping the St. Croix at the lower level. But not all economic interests are `property rights'; only those economic advantages are `rights' which have the law back of them, and only when they are so recognized may courts compel others to forbear from interfering with them or to compensate for their invasion.'