considered and adversely disposed of a contention that a statute of the State of Massachusetts was repugnant to the Constitution of the United States because it provided for a punishment as an habitual criminal of any person convicted of a felony in Massachusetts who was found to have been "twice convicted of crime, sentenced and committed to prison, in this or any other State, or once in this and once at least in any other State, In holding that the statute was not in conflict with the Constitution, the court said, pp. 312, 313:

"The fundamental mistake of the plaintiff in error is his assumption that the judgment below imposes an additional punishment on crimes for which he had already been convicted and punished in Massachusetts and New Hampshire.

"But it does no such thing. The statute under which it was rendered is aimed at habitual criminals; and simply imposes a heavy penalty upon conviction of a felony committed in Massachusetts since its passage, by one who had been twice convicted and imprisoned for crime for not less than three years, in this, or in another State, or once in each. The punishment is for the new crime only, but is the heavier if he is an habitual criminal. It is within the discretion of the legislature of the State to treat former imprisonment in another State, as having the like effect as imprisonment in Massachusetts, to show that the man is an habitual criminal. The statute, imposing a punishment on none but future crimes, is not ex post facto. It affects alike all persons similarly situated, and therefore does not deprive any one of the equal protection of the laws. Moore v. Missouri, 159 U. S. 673; Ross's Case, 2 Pick. 165; Commonwealth v. Graves, 155 Massachusetts, 163; Sturtevant v. Commonwealth, 158 Massachusetts, 598; Commonwealth v. Richardson, 175 Massachusetts, 202.

"The statute does not impair the right of trial by jury,

or put the accused twice in jeopardy for the same offense, or impose a cruel or unusual punishment." The subject again came under consideration in Graham v. West Virginia, 224 U. S. 616, and was reëxamined in all its aspects and after a full reference to the English and American authorities, the doctrine announced in the McDonald Case was reexpounded and re-applied so as to now leave no room for any further controversy whatsoever on the subject. Applying the principles thus settled, the case before us clearly comes within the second category which we have stated and therefore the contention as to the effect of the pardon here pressed is devoid of all merit and the court below was right in so holding.

Determining as we do only the case before us, that is, whether the granting of a pardon by the President for a crime committed against the United States operates to restrict and limit the power of the State of New York to punish crimes thereafter committed against its authority and in so doing to prescribe such penalties as may be deemed appropriate in view of the nature of the offense and the character of the offender taking in view his past conduct, we must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United States in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past offenses there had been a pardon granted.

Indeed, we must not be understood as intimating that it would be beyond the legislative competency to provide that the fact of the commission of an offense after a pardon of a prior offense, should be considered as adding an increased element of aggravation to that which would otherwise result alone from the commission of the prior offense.

Affirmed.

Statement of the Case.

233 U. S.

ARCHER v. GREENVILLE SAND AND GRAVEL

COMPANY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 271. Argued March 13, 1914. Decided April 6, 1914.

Equity has jurisdiction of an action to enjoin a continuing trespass even if the injunctive remedy is only asked after final adjudication and although the trespass may have been discontinued before that time.

There is no loss of rights or remedies because a plaintiff does not ask for immediate relief but endures the wrong pending the litigation and until final adjudication.

To constantly dredge gravel from the bed of a stream is a continuing trespass and wrong that entitles the owner to injunctive relief in equity and for which he has no adequate remedy at law.

In Mississippi the common law prevails as to riparian rights, and he who owns the bank owns to the middle of a navigable river subject to the easement of navigation.

It is a question of local law whether the title to the bed of the navigable rivers of the United States is in the State in which the rivers are situated or in the owners of the land bordering on such rivers. An owner of the upland, who, under the law of the State, owns to the middle of a navigable river, has such an interest in the bed of the stream that, even though he cannot remove gravel therefrom without the consent of the Secretary of War, he can maintain an action to prevent others from doing so.

One sued for removing gravel from the bed of a navigable stream by the owner of the upland cannot demur on the ground that the complaint fails to show that he has not obtained a permit from the Secretary of War. It will not be presumed that the Secretary of War will authorize such removal, and the existence of such a permit must be pleaded.

THE facts, which involve the ownership of sand in the bed of the Mississippi river within the boundaries of the State of Mississippi, are stated in the opinion.

Mr. Percy Bell and Mr. T. M. Miller for petitioner.

Mr. John W. Yerkes, with whom Mr. George E. Hamilton and Mr. John J. Hamilton were on the brief, for respondents:

This suit cannot be sustained in equity.

Even if equitable jurisdiction exist, plaintiff has not such title to the sand and gravel dredged in the bed of the Mississippi River as will sustain the action.

Plaintiff had a plain, adequate, and complete remedy at law, and there is no ground for equitable relief.

Parties to a suit at law can now be summoned into court and examined by opposing party. Bills of discovery are no longer necessary, and jurisdiction in equity for this purpose (if it has not absolutely ceased as unwarranted) has become inoperative and obsolete.

The bill does not present facts sufficient to support an accounting, and there is no necessity for discovery.

As a preliminary injunction was not asked and the injunction sought is to be part of final decree after title has been decided in plaintiff's favor, the acts complained of, the dredging done, might have ceased long before the final hearing, and unless the cause, for other and recognized reasons, falls properly within equitable jurisdiction, the prayer for such an injunction will not draw equitable jurisdiction to the action.

Plaintiff has no title to, or ownership of, the sand and gravel dredged in the bed of the Mississippi River by defendants.

The two state decisions relied upon to sustain plaintiff's title to the bed of the stream decide one proposition only, that the riparian proprietor on the Mississippi owns at least to low-water mark.

Right of property in the bank of the Mississippi River, between high and low water marks, is not dependent upon,

Argument for Respondents.

233 U. S.

and does not rest upon, ownership to the thread of the channel.

Riparian rights proper rest upon title to the bank and not upon title to the soil under the water; and riparian proprietors, irrespective of ownership of the bed of a stream, have the right to construct suitable landings for the convenience of themselves and others, subject to public use of the stream and the paramount right of the Federal Government with regard to navigation.

The lands owned by petitioner were originally public lands, and grants by the Government of lands on navigable streams extend only to the limits of high water and as an incident of ownership a riparian proprietor will be limited, according to law of the State, either to low or high water mark, or the middle of the stream.

The bill is too indefinite to show such riparian ownership in plaintiff as will carry with it even qualified or technical ownership of the bed of the stream.

The Mississippi River is a public highway, and rights of adjoining landowners are subject to Federal control regulating commerce and to Federal laws in connection therewith.

Under Federal statutes, it is unlawful for any person to excavate or in any manner alter or modify the course, condition or capacity of the channel of the Mississippi River, unless authorized by the Secretary of War, and if the dredging and removal of sand and gravel were done under this authority, it would not be in law a trespass upon the property of plaintiff.

The court will not assume that extensive, continued work of this kind in the channel of the river would be undertaken and done by defendants without this proper authorization and authority.

In support of these contentions, see Bardes v. Hawarden Bank, 178 U. S. 524; Barney v. Keokuk, 94 U. S. 324; Ex parte Boyd, 105 U. S. 647; Brown v. Swann, 10 Peters, 497;