*393 said, "of the waters and the lands under | of international and interstate commerce." them is for purposes of navigation, and the The court further said: "In our opinion, erection of piers in them to improve navi- it was not intended that the paramount gation for the public is entirely consistent authority of Congress to improve the navwith such use, and infringes no right of the igation of the public navigable waters of riparian owner. Whatever the nature of the United States should be crippled by the interest of a riparian owner in the sub-compelling the government to make commerged lands in front of his upland border- pensation for the injury to a riparian owning on a public navigable water, his title er's right of access to navigability that is not as full and complete as his title to might incidentally result from an improvefast land which has no direct connection ment ordered by Congress. The subject with with the navigation of such water. It is a which Congress dealt was navigation. That qualified title, a bare technical title, not at which was sought to be accomplished was his absolute disposal, as is his upland, but simply to improve navigation on the waters to be held at all times subordinate to such in question so as to meet the wants of the use of the submerged lands and of the vast commerce passing and to pass over waters flowing over them as may be con- them. Consequently the agents designated sistent with or demanded by the public to perform the work ordered or authorized right of navigation. In Lorman v. Benson, by Congress had the right to proceed in all 8 Mich. 18, 22, 77 Am. Dec. 435, the supreme proper ways without taking into account court of Michigan, speaking by Justice the injury that might possibly or indirectly Campbell, declared the right of navigation result from such work to the right of acto be one to which all others were sub-cess by riparian owners to navigability. servient.. But the contention is that. . We are of opinion that the court becompensation must be made for the loss of low correctly held that the plaintiff had no the plaintiff's access from his upland to such right of property in the submerged navigability incidentally resulting from the lands on which the pier in question rests occupancy of the submerged lands, even if as entitles him, under the Constitution, to the construction and maintenance of a pier be compensated for any loss of access from resting upon them be necessary or valua- his upland to navigability resulting from ble in the proper improvement of naviga- the erection and maintenance of such pier tion. We cannot assent to this view. If by the United States in order to improve, the riparian owner cannot enjoy access to and which manifestly did improve, the navnavigability because of the improvement of igation of a public navigable water." navigation by the construction away from the shore line of works in a public naviga-Commission, 197 U. S. 453, 461, 462, 49 L. ed. ble river or water, and if such right of access ceases alone for that reason to be of value, there is not, within the meaning of the Constitution, a taking of private property for public use, but only a consequential injury to a right which must be enjoyed, as was said in Yates v. Milwaukee, 10 Wall. 497, 504, 505, 19 L. ed. 984, 986, 987, 'in due subjection to the rights of the public,'-an injury resulting incidentally from the exercise of a governmental power for the benefit of the general public, and from which no duty arises to make or secure compensation to the riparian owner. The riparian owner acquired the right of access to navigability subject to the contingency that such right might become valueless in consequence of the erection under competent authority of structures on the submerged lands in front of his property for the purpose of improving navigation. When erecting the pier in question, the government had no object in view except, in the interest of the public, to improve navigation. It was not designed arbitrarily or capriciously to destroy rights belonging to any riparian owner. What was done was manifestly necessary to meet the demands In New Orleans Gaslight Co. v. Drainage That 831, 835, 25 Sup. Ct. Rep. 471, 473, 474, it appeared that, under contract with the city of New Orleans, and at its own expense, the gaslight company had lawfully laid its pipes at certain places in the public ways and streets of that city. Subsequently, the drainage commission of New Orleans adopted a plan for the drainage of the city, which made it necessary to change the location in some places of the mains and pipes theretofore laid by the gaslight company. company contended that to require such changes was a taking of its property for public use, for which it was entitled, under the Constitution, to compensation. That view was rejected by this court. We said: "The gas company did not acquire any specific location in the streets; it was content with the general right to use them, and when it located its pipes it was at the risk that they might be, at some future time, disturbed, when the state might require, for a necessary public use, that changes in location be made. The need of occupation of the soil beneath the streets in cities is constantly increasing, for the supply of water and light and the construction of systems of sewerage and drain *396 and a greater opening made under the bridge for the passage of the increased amount of water caused by the deepening and enlarging of the bed of the creek. The railway company was required, at its own cost, to construct such a bridge over the creek as would meet the necessities of the situation as it was or would be under the drainage plan of the commissioners. The company refused to obey the order. The contention of the railway company was that, as the bridge was lawfully constructed under its general corporate powers, and as the depth and width of the channel under it was sufficient, at the time, to carry off the water of the creek as it then and subsequently flowed, the foundation of the bridge could not be removed and its use of the bridge disturbed, unless compensation be first made or secured to the company in such amount as would be sufficient to meet the expense of removing the timbers and stones from the creek and of constructing a new bridge of such length and with such opening under it as the plan of the commissioners would make necessary. The company insisted that to require it to meet these expenses out of its own funds would be, within the meaning of the Constitution, a taking of its property for public use without com age, and every reason of public policy requires that grants of rights in such subsurface shall be held subject to such reasonable regulation as the public health and safety may require. There is nothing in the grant to the gas company, even if it could legally be done, undertaking to limit the right of the state to establish a system of drainage in the streets. We think whatever right the gas company acquired was subject, in so far as the location of its pipes was concerned, to such future regulations as might be required in the interest of the public health and welfare. These views are amply sustained by the authorities. National Waterworks Co. v. Kansas City, 28 Fed. 921, in which the opinion was delivered by Mr. Justice Brewer, then circuit judge; Columbus Gaslight & Coke Co. v. Columbus, 50 Ohio St. 65, 19 L.R.A. 510, 40 Am. St. Rep. 648, 33 N. E. 292; Jamaica Pond Aqueduct Corp. v. Brookline, 121 Mass. 5; Re Deering, 93 N. Y. 361; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 254, 41 L. ed. 979, 990, 17 Sup. Ct. Rep. 581. In the latter case it was held that uncompensated obedience to a regulation enacted for the public safety under the police power of the state was not taking property without due compensation. In our view, that is all there is to this case. The gas compensation, and, therefore, without due procpany, by its grant from the city, acquired no exclusive right to the location of its pipes in the streets, as chosen by it, under a general grant of authority to use the streets. The city made no contract that the gas company should not be disturbed in the location chosen. In the exercise of the police power of the state, for a purpose highly necessary in the promotion of the public health, it has become necessary to change the location of the pipes of the gas company so as to accommodate them to the new pub-compensation to the owner. Cherokee Nalic work. In complying with this require- tion v. Southern Kansas R. Co. 135 U. S. ment at its own expense none of the prop- 641, 659, 34 L. ed. 295, 303, 10 Sup. Ct. Rep. erty of the gas company has been taken, 965; Sweet v. Rechel, 159 U. S. 380, 399, and the injury sustained is damnum absque | 402, 40 L. ed. 188, 196, 197, 16 Sup. Ct. Rep. injuria.” ess of law. The court, after a review of authorities, said: "The constitutional requirement of due process of law, which embraces compensation for private property taken for public use, applies in every case of the exertion of governmental power. If,, in the execution of any power, no matter? what it is, the government, Federal or state, finds it necessary to take private property for public use, it must obey the constitutional injunction to make or secure just 43; Monongahela Nav. Co. v. United States, In Chicago, B. & Q. R. Co. v. Illinois, 200 148 U. S. 312, 336, 37 L. ed. 463, 471, 13 Sup. U. S. 561, 582, 593-595, 50 L. ed. 596, 605, Ct. Rep. 622; United States v. Lynah, 188 609, 610, 26 Sup. Ct. Rep. 341, 345, 350, 351,| U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. the above cases were cited with approval, 349. If the means employed have no real and the principles announced in them were substantial relation to public objects which applied against a railway company owning government may legally accomplish,-if a bridge that had been lawfully constructed they are arbitrary and unreasonable, beby it over a non-navigable creek running yond the necessities of the case, the judithrough certain swamp or slough lands ciary will disregard mere forms, and interwhich the drainage commissioners were re- fere for the protection of rights injuriously quired by statute to drain in order to make affected by such illegal action. The authorthem tillable and fit for cultivation. The ity of the courts to interfere in such cases commissioners, in executing the work of is beyond all doubt. Minnesota v. Barber, draining, found it necessary that the creek | 136 U. S. 313, 320, 34 L. ed. 455, 458, 3 Inover which the railway bridge was con- ters. Com. Rep. 185, 10 Sup. Ct. Rep. 862, structed should be deepened and enlarged. Upon the general subject there is no real 398 conflict among the adjudged cases. What-is under a duty to comply with the demand ever conflict there is arises upon the question whether there has been or will be, in the particular case, within the true meaning of the Constitution, a 'taking' of private property for public use. If the injury complained of is only incidental to the legitimate exercise of governmental powers for the public good, then there is no taking of property for the public use, and a right to compensation, on account of such injury, does not attach under the Constitution. Such is the present case." The opinion concluded: "Without further discussion we hold it to be the duty of the railway company, at its own expense, to remove from the creek the present bridge, culvert, timbers, and stones placed there by it, and also (unless it abandons or surrenders its right to cross the creek at or in the vicinity of the present crossing) to erect, at its own expense, and maintain, a new bridge for crossing that will conform to the regulations established by the drainage commissioners, under the authority of the state; and such a requirement, if enforced, will not amount to a taking of private property for public use within the meaning of the Constitution, nor to a denial of the equal protection of the laws." made upon it to remove, at its own expense, the obstruction which itself has created and maintains. If the obstruction cannot be removed except by lowering the tunnel to the required depth and (if a tunnel is to be maintained) providing one that will not interrupt navigation, then the cost attendant upon such work must be met by the company. The city asks nothing more than that the railroad company shall do what is necessary to free navigation from an obstruction for which it is responsible, and (if it intends not to abandon its right to maintain a tunnel at or near Van Buren street) that it shall itself provide a new tunnel with the necessary depth of water above it." Again: "In the case before us the public demands nothing to be done by the railroad company except to remove the obstruction which itself placed and *maintains in the river under the condition that navigation should not at any time be thereby interrupted. The removal of such obstruction is all that is needed to protect navigation. So that whatever cost attends the removal of the obstruction must be borne by the railroad company. The condition under which the company placed its tunnel in the river being met by the comThe latest adjudication by this court was pany, the public has no further demands in West Chicage Street R. Co. v. Chicago, upon it. This cannot be deemed a taking 201 U. S. 506, 524, 50 L. ed. 845, 852, 26 of private property for public use, or a deSup. Ct. Rep. 518, 523. In that case the nial of the equal protection of laws within principal question related to the duty of a the meaning of the Constitution, but is only street railroad company, which had lawfully the result of the lawful exercise of a govconstructed a tunnel under the Chicago ernmental power for the common good. river, to obey an ordinance of the city, re- This appears from the authorities cited in quiring the company, at its own cost and Chicago, B. & Q. R. Co. v. Illinois, supra, expense, to lower its tunnel, so as to pro- just decided. The state court has well said vide for a certain depth under it, which had that to maintain the navigable character been ascertained by competent Federal and of the stream in a lawful way is not, withlocal authority to be necessary for the in- in the meaning of the law, the taking of creased demands of navigation. This court private property or any property right of held, upon the adjudged cases, that the the owner of the soil under the river, such rights of the company, as the owner of the ownership being subject to the right of free fee of the land on either side of the river and unobstructed navigation. People ex rel. or in its bed, were subject to the paramount Chicago v. West Chicago Street R. Co. 203 right of navigation over the waters of the Ill. 551, 557, 68 N. E. 78. What the city river. It said: "If, then, the right of the asks, and all that it asks, is that the railrailroad company to have and maintain a road company be required, in the exercise tunnel under the Chicago river is subject to of its rights and in the use of its property, the paramount public right of navigation; to respect the public needs as declared if its right to maintain a tunnel in the by competent authority, upon reasonable river is a qualified one, because subject to grounds, to exist. This is not an arbitrary the specific condition in the act of 1874 that or unreasonable demand. It does not, in no tunnel should interrupt navigation; if any legal sense, take or appropriate the the present tunnel is an obstruction to nav-company's property for the public benefit, igation, as, upon this record, we must take but only insists that the company shall it to be; and if the city, as representing not use its property so as to interrupt navithe state and public, may rightfully insist gation." that such obstruction shall not longer remain in the way of free navigation,-it necessarily follows that the railway company Do the principles announced in the above cases require us to hold, in the present case, that the making of the alterations of its 668. *400 cent power of the government to secure the free and unobstructed navigation of the water ways of the United States. We cannot give our assent to that principle. In conformity with the adjudged cases, and in order that the constitutional power of Con judge that Congress has power to protect navigation on all water ways of the United States against unreasonable obstructions, even those created under the sanction of a state, and that an order to so alter a bridge over a water way of the United States that it will cease to be an unreasonable obstruction to navigation will not amount to a taking of private property for public use for which compensation need be made. bridge specified in the order of the Secre- | which the Bridge Company contends would tary of War will be a taking of the prop- seriously impair the exercise of the benefierty of the Bridge Company for public use? We think not. Unless there be a taking, within the meaning of the Constitution, no obligation arises upon the United States to make compensation for the cost to be incurred in making such alterations. The damage that will accrue to the Bridge Com-gress may have full operation, we must adpany, as the result of compliance with the Secretary's order, must, in such case, be deemed incidental to the exercise by the government of its power to regulate commerce among the states, which includes, as we have seen, the power to secure free navigation upon the water ways of the United States against unreasonable obstructions. There are no circumstances connected with the original construction of the bridge, or with its maintenance since, which so tie the Independent of the grounds upon which hands of the government that it cannot ex- we thus place our decision, it is appropriate ert its full power to protect the freedom of to observe that the conclusion reached finds navigation against obstructions. Although support in the charter of the Bridge Comthe bridge, when erected under the authority pany and in the law of Pennsylvania, as of a Pennsylvania charter, may have been a declared by its highest court. The charter lawful structure, and although it may not of the company, as we have seen, expressly have been an unreasonable obstruction to warned the company that its bridge must commerce and navigation as then carried on, not obstruct navigation, that is, in legal it must be taken, under the cases cited, and effect, navigation as it then was, or might upon principle, not only that the company, be, at any subsequent time. In Dugan v. when exerting the power conferred upon it by the state, did so with knowledge of the Bridge Co. 27 Pa. 303, 309, 311, 67 Am. Dec. 464, we have the case of a bridge company paramount authority of Congress to regulate commerce among the states, but that on which was conferred the franchise to it erected the bridge subject to the possi- erect and maintain a toll-bridge across Mobility that Congress might, at some future nongahela river, coupled, however, with the time, when the public interest demanded, condition that such bridge should not be exert its power by appropriate legislation to erected "in such manner as to injure, stop, protect navigation against unreasonable ob- or interrupt the navigation of such river structions. Even if the bridge, in its orig-by boats, rafts, or other vessels." The suinal form, was an unreasonable obstruction preme court of Pennsylvania interpreted to navigation, the mere failure of the United these words as meaning that "the bridge States, at the time, to intervene by its of- was to be so built as not to injure, stop, or ficers or by legislation and prevent its erec-interrupt the navigation, either then or now, tion, could not create an obligation on the whether in its infancy or full growth." The part of the government to make compensa- same general question arose in Chicago, B. tion to the company if, at a subsequent & Q. R. Co. v. Illinois, 200 U. S. 589, 50 L. time, and for public reasons, Congress should ed. 607, 26 Sup. Ct. Rep. 348. This forbid the maintenance of bridges that had court held that the adjudged cases "negabecome unreasonable obstructions to navi- tive the suggestion of the railway company gation. It is for Congress to determine that the adequacy of its bridge and the when it will exert its power to regulate in opening under it for passing the water of terstate commerce. Its mere silence or inthe creek at the time the bridge was conaction when individuals or corporations, unstructed determine its obligations to the der the authority of a state, place unreasonable obstructions in the water ways of public at all subsequent periods. In Cooke the United States, cannot have the effect v. Boston & L. R. Corp. 133 Mass. 185, 188, to cast upon the government an obligation it appeared that a railroad company had not to exert its constitutional power to reg- statutory authority to cross a certain highThe statute provided ulate interstate commerce except subject to way with its road. that if the railroad crossed any highway the condition that compensation be made or secured to the individuals or corporation it should be so constructed as not to imwho may be incidentally affected by the pede or obstruct the safe and convenient use exercise of such power. The principle for of the highway. And one of the conten V. (204 U. S. 349) UNITED STATES OF AMERICA, Suing for tions of the company was that the statute | UNITED STATES FIDELITY & GUARANlimited its duty and obligation to provide TY COMPANY, Plff. in Err., for the wants of travelers at the time it exercised the privilege granted to it. The court said: "The legislature intended to provide against any obstruction of the safe and convenient use of the highway for all time; and if, by the increase of population in the neighborhood, or by an increasing use of the highway, the crossing, which, at the outset, was adequate, is no longer so, it is the duty of the railroad corporation to make such alteration as will meet the present needs of the public who have occasion to use the highway. In Lake Erie & W. R. Co. v. Cluggish, 143 Ind. 347, 42 N. E. 743, the court said (quoting from Lake Erie & W. R. Co. v. Smith, 61 Fed. 885): "The duty of a railroad to restore a stream or highway which is crossed by the line of its road is a continuing duty; and if, by the increase of population or other causes, the crossing becomes inadequate to meet the new and altered conditions of the country, it is the duty of the railroad to make such alterations as will meet the present needs of the public.' So, in Indiana ex rel. Muncie v. Lake Erie & W. R. Co. 83 Fed. 284, 287, which was the case of an overhead Argued January 18, 1907. Decided Februcrossing lawfully constructed on one of the streets of a city, the court said: 'If, by the growth of population or otherwise, the crossing has become inadequate to meet the present needs of the public, it is the duty of the railroad company to remedy the defect by restoring the crossing so that it will not unnecessarily impair the usefulness of the highway.'' Some stress was laid in argument upon the fact that compliance with the order of the Secretary of War will compel the Bridge Company to make a very large expenditure The United States is the real, and not merely the nominal, plaintiff, so as to sustain the original jurisdiction of a Federal circuit court under the judiciary acts of 1887, 1888 (24 Stat. at L. 552, chap. 373, 25 1901, p. 508), without regard to the amount Stat. at L. 433, chap. 866, U. S. Comp. Stat. in dispute, in a suit authorized by the act of August 13, 1894 (28 Stat. at L. 279, § 5, chap. 282, U. S. Comp. Stat. 1901, p. 2316), to be brought in its name, for the use and benefit of a material man, upon the bond of a contractor for a public work, which the statute requires shall contain the specific, special obligation directly to the United make payments to all persons supplying him States that the contractor shall promptly labor and materials in the prosecution of the work. I [No. 173.] ary 25, 1907. N ERROR to the Circuit Court of the Island to review a judgment for the plain- See same case below, 132 Fed. 82. Mr. Edward D. Bassett for defendant in error. Mr. Justice Harlan delivered the opinion of the court: By an act of Congress approved August 13th, 1894, entitled "An Act for the Pro in money. But that consideration cannot affect the decision of the questions of constitutional law involved. It is one to be addressed to the legislative branch of the government. It is for Congress to determine whether, under the circumstances of a particular case, justice requires that com-tection of Persons Furnishing Materials and pensation be made to a person or corporation incidentally suffering from the exercise by the national government of its constitutional powers. These are all the matters which require notice at our hands; and, perceiving no error of law on the record, the judgment must be affirmed. It is so ordered. Labor for the Construction of Public Works," it was provided: "That hereafter any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work, or for repairs upon any public building or public work, shall be required, before commencing such work, to execute the usual penal bond, with good and sufficient Mr. Justice Brewer and Mr. Justice Peck- sureties, with the additional obligations ham dissent. Mr. Justice Moody did not participate in the consideration or decision of the case. that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in |