Mr. George A. King, with whom Mr. William B. King was on the brief, for appellants.

Mr. Frederick De C. Faust, with whom Mr. Assistant Attorney General John Q. Thompson was on the brief, for the United States.

MR. JUSTICE LURTON, after making the foregoing statement, delivered the opinion of the court.

From the facts it is plain that the contractors could not and did not deliver a cargo of "Wallsend" coal in January, 1905, as their contract obligated them to do. This temporary inability was due to a strike at the colliery. This did not excuse them, since the contract did not so provide. The cargo of mountain coal which was bought to meet the immediate demand, though the same price was paid for it, had a fuel value of $3,193.32 less than that of the same quantity of Wallsend coal, as determined by tests and comparisons with the sample of Wallsend coal, and the question is whether this loss shall be borne by the Government or by the contractor.

Appellants say that if any cargo did not conform to the standard, the only right of the Government was to reject it. But it was not pretended that this cargo was Wallsend coal, or equal to that coal in quality, nor was it accepted as a delivery under the contract. That the Chief Quartermaster agreed to accept it and pay for it the price fixed for Wallsend coal under the contract, and did so accept and pay for it, constitutes the ground upon which the claim of appellants must rest.

The situation was one brought about by the inability of the contractors to carry out their contract. The coal was needed for present necessities. The deficiency in Wallsend coal had to be made up. There was thus presented one of the emergency conditions contemplated by

the law then in force, the act of April 23, 1904, 33 Stat. 268, 269 and the 548th and 549th paragraphs of the Army Regulations of 1904, providing for "open market emergency purchases." Under this condition and under this authority, the Chief Quartermaster agreed to accept a cargo of confessedly inferior coal, and pay the market price for that quality of coal in Manila at the time. That this cargo was not to be accepted as a fulfillment of the contract, and as a waiver of any difference in value between that and Wallsend coal, is demonstrated by the finding that it was agreed "that the same should be considered as a purchase outside of the contract to meet existing conditions." It could not be regarded as an "outside purchase" to meet conditions brought about by the contractors' fault and at the same time be regarded as accepted in fulfillment of the contract.

The finding that the Chief Quartermaster, after the coal had been shipped, but before it arrived or was delivered, gave notice that he would send a sample of the coal to the Quartermaster-General to be tested, and that if it fell below the Wallsend coal, the difference would be charged against the contractors, operated to put them upon guard. They might have refused delivery. They did not, although they protested and asserted views in opposition to that of the officer. The payment made was for that cargo as an "outside purchase," and not a payment under the contract for Wallsend coal. Neither is the agreement to take that cargo, and the payment made for it to be regarded as a waiver of any difference that might exist between the quality and fuel value of the coal so purchased and the coal which should have been supplied. That it does not constitute a waiver, results from the agreement that it should be considered "an outside purchase," and the express notice before delivery that the contractors would be charged with that difference. When that difference was ascertained, it was charged up and

retained from money due under a later contract. The liability might have been asserted by the Government in an action; but it might, as it did, charge it up as a set-off against its own liability. It would be folly to require the Government to pay under the one contract what it must eventually recover for a breach of the other.

Judgment affirmed.

UNITED STATES v. CHANDLER-DUNBAR WATER POWER COMPANY.

CHANDLER-DUNBAR WATER POWER COMPANY

v. UNITED STATES.

ST. MARYS POWER COMPANY v. UNITED

STATES.

BROWN, RECEIVER OF THE MICHIGAN LAKE SUPERIOR POWER COMPANY, V. UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN.

Nos. 783, 784, 785, 786. Argued April 28, 1913.-Decided May 26, 1913.

The technical title to the beds of navigable rivers of the United States is either in the States in which the rivers are situated, or in the riparian owners, depending upon the local law.

Upon the admission of Michigan as a State into the Union the bed of the St. Marys River passed to the State; under the law of Michigan a conveyance of land bordering upon a navigable river carries the title to the middle thread.

The title of the riparian owner to the bed of a navigable stream is a qualified one, and subordinate to the public right of navigation and

subject to the absolute power of Congress over the improvement of navigable rivers.

Under the Constitution, Congress can adopt any means for the improvement of navigation that are not prohibited by that instrument itself.

Commerce includes navigation and it is for Congress to determine when and to what extent its powers shall be brought into activity. Gilman v. Philadelphia, 3 Wall. 713.

The judgment of Congress as to whether a construction in or over a navigable river is or is not an obstruction to navigation is an exercise of legislative power and wholly within its control and beyond judicial review; and so held as to the determination of Congress that the whole flow of St. Marys River be directed exclusively to the improvement thereof by the erection of new locks therein. The flow of the stream of a navigable river is in no sense private property, and there is no room for judicial review, at the instance of a private owner of the banks of the stream, of a determination of Congress that such flow is needed for the improvement of navigation.

One placing obstructions in a navigable stream under a revocable permit of the Secretary of War does not acquire any right to maintain the same longer than the Government continues the license; and an act of Congress revoking the permit does not amount to a taking of private property so far as exclusion from what was covered by the permit is concerned.

Private ownership of running water in a great navigable stream is inconceivable.

Every structure in the water of a navigable river is subordinate to the right of navigation and must be removed, even if the owners sustain a loss thereby, if Congress, in assertion of its power over navigation so determines.

The act of Congress of March 3, 1909, declaring that a public necessity existed for absolute control of all the water of St. Marys River excludes forever all structures necessary for commercial use of the water power, regardless of whether there may be any surplus in the flow beyond that required for purposes of navigation.

Even if the act declaring that the entire flow of a navigable stream is necessary for navigation provides for the sale of surplus power, the act is still a taking for the purposes of navigation and not for a commercial use.

If the primary object is a legitimate taking there is no objection to the usual disposition of what may be a possible surplus of power. Kaukauna Co. v. Green Bay Canal, 142 U. S. 254.

229 U. S.

Statement of the Case.

An objection to selling excess water power resulting from construction of works for the improvement of navigation cannot be made by one who has no property right in the water which has been taken.

An owner of upland bordering on a navigable river which is taken under condemnation by the Government for the purpose of improving navigation is entitled to compensation for the fair value of the property, but not to any additional values based upon private interest in the potential water power of the river.

The Fifth Amendment is satisfied by payment to the owner of what he actually loses; it does not demand what the taker has gained. Chamber of Commerce v. Boston, 217 U. S. 189.

One whose property is taken by the Government for improvement of the navigation of the river on which it borders is not entitled to the probably advanced value by reason of the contemplated improvement. The value is to be fixed as of the date of the proceedings. One whose land is taken by the Government for a particular purpose is entitled to have the fact that the land is peculiarly available for such purpose considered in the appraisal. Boom Co. v. Patterson, 98 U. S. 403.

Where a survey of a town site has not been carried out the title of the streets does not pass out of the United States and the value of the street cannot be added to that of the abutting property in condemnation proceedings at the instance of the United States. The owner of a separate parcel is not entitled to additional value resulting as part of a comprehensive scheme of improvement, requiring the taking of his and other property. Chamber of Commerce v. Boston, 217 U. S. 189. "Strategic value" cannot be allowed in condemnation proceedings; the value of the property to the Government for a particular use is not the criterion. The owner is compensated when he is allowed full market value.

Where the state of the title and pending litigation affecting it is set up in the pleadings, the fact that the Government seeks condemnation of the property does not amount to conceding that the title is in the party claiming it and against whom the proceeding is directed. In this case all rights were reserved.

THESE writs of error are for the purpose of reviewing a judgment in a condemnation proceeding instituted by the United States under the eleventh section of an act of