tion proceeding, the value of the property to the Government for its particular use is not a criterion. The owner must be compensated for what is taken from him, but that is done when he is paid its fair market value for all available uses and purposes. Lewis Eminent Domain, 3d ed., § 706; Moulton v. Newburyport Water Co., 137 Massachusetts, 163, 167; United States v. Seufert Bros. Co., 78 Fed. Rep. 520; Alloway v. Nashville, 88 Tennessee, 510, 514; United States v. Honolulu Co., 122 Fed. Rep. 581. The exception must be sustained.

One other assignment by the St. Marys Power Company needs to be specially noticed. The title to Oshawano Island is in ligitation between the United States and the St. Marys Power Company. For this reason the award to that company was ordered to remain in the registry of the court until that litigation was ended. The St. Marys Power Company contends that when the United States sought the condemnation of the property in this proceeding it thereby conceded the title to be in it. But the pleadings show that no such concession was made. The state of the title and of the pending litigation was set up and we think all rights were thereby reserved.

The assignments of error by the Michigan Lake Superior Power Company must be overruled. No property, real or hypothetical, has been taken from it.

Other assignments of error by one or another of the several plaintiffs in error need not be specially noticed. They are all overruled as either covered by the views we have expressed, or as having no merit.

The judgment of the court below must be reversed and the cases remanded with direction to enter a judgment in accordance with this opinion.

VOL. CCXXIX-6

Argument for Plaintiff in Error.

229 U.S.

LEWIS BLUE POINT OYSTER CULTIVATION COMPANY v. BRIGGS.

ERROR TO THE SUPREME COURT OF THE STATE OF
NEW YORK.

No. 272. Argued April 30, May 1, 1913.-Decided May 26, 1913.

The determination by the state court of the effect of grants of title to the bed of navigable waters within the State must be followed by this court.

The deepening, in the interest of navigation, of a channel across a navigable bay, the bed of which is used for oyster cultivation under grants from the State, is not a taking of the property of the lessee of the oyster beds within the meaning of the Fifth Amendment. The public right of navigation is the dominant right in navigable waters and this includes the right to use the bed of the water for every purpose which is an aid to navigation.

Whatever power the several States had before the Union was formed over navigable waters within their respective jurisdictions has been delegated to Congress, which now has all governmental power over the subject, restricted only by the limitations in the other clauses of the Constitution.

United States v. Chandler-Dunbar Co., ante, p. 53, followed as to the nature of the title of an owner of the bed of navigable waters and the control of Congress thereover. Monongahela Navigation Co. v. United States, 148 U. S. 312, distinguished as not resting on proprietary rights but on estoppel.

198 N. Y. 287, affirmed.

THE facts, which involve the rights of private owners to land under navigable waters within a State used for cultivation of oysters, and whether such parties are entitled to compensation from the Government of the United States for the destruction of the oyster beds therein by reason of improvement of the channel for navigation pursuant to act of Congress, are stated in the opinion.

Mr. Howard Taylor, for plaintiff in error:

Plaintiff in error is clearly entitled to the relief sought.

229 U. S.

Argument for Plaintiff in Error.

The power of Congress to regulate commerce, and incidentally navigation, goes hand in hand with the other powers of and limitations upon the Government set forth in the Constitution, and is obviously to be exercised in conformity to such limitations. Monongahela Nav. Co. v. United States, 148 U. S. 312, 336; United States v. Lynah, 188 U. S. 445, 471.

The right of compensation to the owner of private property when it has been taken for public use, is a fundamental inherent right which exists even independently of the National or state constitutions, and has merely been declared therein. Sinnickson v. Johnson, 17 N. J. L. (2 Harr.) 129, 145.

There has been laid down no exception to this right because the property taken was growing oysters. The growing of oysters is a legitimate industry. The oysters here in question were being grown upon the lands of the plaintiff, and, of course, upon the only kind of lands (submerged ones), where the product of that industry could grow. See Brown v. United States, 81 Fed. Rep. 55; Richardson v. United States, 100 Fed. Rep. 714, both decided by Judge Simonton, and holding that the owners of the oyster beds might permit the entry of the Government's officials and recover compensation in a direct proceeding. In the case at bar plaintiff simply seeks to enjoin this entry until the Government takes proceedings for the condemnation of his property. In this alternate procedure plaintiff in error is clearly within its rights. Phila. Co. v. Stimson, 223 U. S. 605, 620; Pomeroy's Eq. Jurisp., Vol. V, §§ 493, 499.

Plaintiff's constitutional right is plain; the call for its exercise in this instance is equally plain; and the correct remedy has been pursued.

The courts below have misconceived the decisions of the Federal courts, as those cited afford no basis for the adjudication. See opinion of Atty. Gen. Bonaparte,

Counsel for the United States.

229 U. S.

Oct. 25, 1907, 26 Ops. 441, citing cases supra and Pumpelly v. Green Bay Co., 13 Wall. 166; see also 27 Ops. Atty. Gens. 311.

Scranton v. Wheeler, 179 U. S. 141, was erroneously applied to this case. See dissenting opinion in 179 U. S. 169; Yates v. Milwaukee, 10 Wall. 497, 507. Chic., B. & Q. Ry. Co. v. Drainage Commissioners, 200 U. S. 561; West Chic. Street R. R. Co. v. Chicago, 201 U. S. 506; Union Bridge Co. v. United States, 204 U. S. 364, are not in point. See Avery v. Fox, 1 Abb. U. S. 246, S. C., Fed. Cas. No. 674; Stockton v. Balt. & N. Y. R. R. Co., 32 Fed. Rep. 9; Hawkins Point Light House Case, 39 Fed. Rep. 77.

There is in the Great South Bay this great and perfectly legitimate industry of the development of oysters. The Bluepoint oyster is known from one end of this country to the other.

The digging of a channel which destroys "a large number of oysters on the lands aforesaid" and "cuts diagonally through the premises described in said leases" is fundamentally different from the action of the Government in erecting a lighthouse or putting down a pier into the sea or the river.

The Government, in such an instance as this, aids navigation in the sense that it makes a water way where nature did not make a water way; it makes a place for vessels of deep draft where nature made a place for skiffs. In so doing it undertakes a public use. But in so doing, it takes private property, which is just as much private property, and just as much private property taken, as any other kind of property in this country.

The people whose property is being taken in the course of that work should be paid for it.

Mr. Assistant Attorney General Denison, with whom Mr. Louis G. Bissell was on the brief, for the United States.

MR. JUSTICE LURTON delivered the opinion of the court.

This was an action to restrain the defendant in error from dredging upon certain lands under the waters of Great South Bay in the State of New York. The defense was that the lands upon which he was engaged in dredging were under the navigable waters of the bay, which was a navigable area of the sea, over which enrolled and registered vessels passed in interstate commerce; that Congress had provided for the dredging of a channel some 2,000 feet long and 200 feet wide across said Bay, and that defendant was engaged as a contractor with the United States in dredging the channel so authorized. The plaintiff in error, plaintiff below, averred that this channel would pass diagonally across submerged land in said bay which it held as lessee under the owner of the fee in the bed of the bay. The land so held under lease had been planted with oysters and had been long used for the cultivation of that variety of oyster known as the "Blue Point." The claim was that the dredging of such a channel would destroy the oysters of the plaintiff, not only along the line of excavation, but for some distance on either side, and greatly impair the value of his leasehold for oyster cultivation.

The New York Court of Appeals held that the title of every owner of lands beneath navigable waters was a qualified one, and subject to the right of Congress to deepen the channel in the interest of navigation, and such a "taking" was not a "taking" of private property for which compensation could be required. The judgment of the courts below discharging the injunction and dismissing the action was therefore affirmed.

The case comes here upon the claim that the dredging of such a channel, although in the interest of navigation, is a taking of private property without just compensation, forbidden by the Fifth Amendment to the Constitution of the United States.