Barnes v. United States 46 Ct. Cl. 7

CHARLES L. BARNES v. THE UNITED STATES.

[Congressional, 11759.

Decided Dec. 5, 1910.]

On the Proofs.

The suit is to recover for private property taken for public use. The taking consists in the Government’s erecting a dam across the Monongahela River 2 miles below the claimant’s mill, whereby the water of the river was set back so as to partially destroy the claimant’s dam and mill for milling purposes. It appears that a dam and mill existed on the premises for more than a century and that the right of preceding owners to erect a dam there and operate a mill was authorized and recognized by numerous acts of the general assembly of the State. The principal questions in the case are whether the Monongahela is a navigable river; and whether the acts of the general assembly conferred a right of property within the meaning of the Constitution, or whether they merely granted a license subject to the superior right of the United States to improve the navigation of the river.

I.The court, by virtue of the Tucker Act, 1887 (24 Stat. L., p. 505, §13), has jurisdiction to render a final judgment in a congressional case where the cause of action is the taking of private property for public use.

II.Acts of the General Assembly of the State of Virginia are admissible in evidence to establish the fact of the navigability of the Monongahela River.

III. The general assembly of the State has established the fact by a number of statutes that the State regards the Monongahela as a stream subject to navigation.

IV. Where the, erection of milldams across a river was authorized by a State after the adoption of the Constitution, the authorization must be deemed as being subject to the constitutional power of the General Government to regulate commerce between the States.

V.An inland river must be deemed a navigable waterway if it has been declared such by the legislatures of the States through which it runs.

*8VI.It was established by the Supreme Court in the Genesee Chief (12 How. R., 443) that the admiralty and marine jurisdiction of the United States extends to all public navigable lakes and rivers where commerce is carried on between different States or with foreign nations.

VII.A stream that can be made navigable is navigable within the-meaning of the Constitution; and the true test of navigability is the capability of the stréam to be used after improvement for the purposes of transportation and commerce. A stream which is not navigable in its natural state because of rocks and rapids, if it can be made navigable by artificial means, is a navigable stream.

VIII.The interest of the owner of a mill in a milldam across the Monongahela River, erected by permission of the State, is not a property right which will entitle him to “ just compensation ” within the intent of the Constitution, if it be rendered useless by a dam erected by the Government for the purpose of improving the navigation of the river.

IX.A private right of way is an easement; and its destruction may be a taking of private property for public use within the intent of the Constitution; but a milldam erected across a navigable river is not property, and the authority to erect such a dam, granted by a State, must be regarded as merely a license terminable whenever the destruction of the dam is necessary for the improvement of the navigation of the river.

The Reporter's statement of the case:

The claim in the above-entitled case was transmitted to the court by the Committee on Claims of the House of Representatives on the 17 th day of February, 1905, in pursuance of the act of March 3, 1883, commonly called the Bowman Act.

The following are the facts of the case as found by the court:

I. In the year 1903 and long prior thereto claimant was the owner of a tract or parcel of land situated on the east bank of the Monongahela River in the first ward of the city of Fairmont, Marion County, W. Va., containing about three-quarters acre extending along the river bank about-feet. There was erected partly upon and over the bed of the Monongahela River and partly upon said land a gristmill, which was operated exclusively by water power supplied *9and furnished by means of a dam extending entirely across said river.

In addition to being operated as a gristmill for the grinding of corn and chop, said mill property, including the mill building, hay house, and stable, was also used for the storing of flour, hay, feed, and the stabling of stock, and as a flour, hay, and also general feed store for the sale of flour and feed not ground in said mill.

Said mill property was purchased by the claimant in 1896 and 1891 for the sum of $1,900, and sold by the claimant after the construction of Lock and Dam No. 15 for the sum of $5,000.

II. The milldam was erected across the Monongahela Liver many years prior to the year 1903, and was so constructed and maintained under authority of the proper State authorities or officials of the State of Virginia prior to the 20th day of June, 1863, and permitted to be thus maintained by the proper State authorities or officials of the State of West Virginia, subsequent to the formation of the said State on the 20th day of June, 1863, and said dam was maintained by claimant for the purpose of furnishing water power for running and operating said mill. (See act of the General Assembly of the State of Virginia entitled “An act authorizing milldams to be built across the Monongahela Liver,” passed February 3, 1806.)

III. On February 3, 1806, the General Assembly of Virginia passed an act authorizing milldams to be built across the Monongahela Liver.

IV. On March 2, 1819, the General Assembly of Virginia passed an act entitled “An act to reduce into one the several acts concerning mills, milldams, and other obstructions to watercourses.”

Upon a part of the claimant, Hood, a mill and milldam were in operation at a place known as Lowesville, in said Monongalia County, more than 75 years prior to the time that the officials of the United States began the erection of said dams and locks numbered, respectively, No. 13 and No. 14, and more than 50 years prior to the first survey made by the officials of the United States in 1815, as mentioned in the *10deposition of Maj. Boberts, taken in this cause on behalf of the defendant. That a mill and dam were there and in operation at least 25 years before such survey was made by such officials of the United States of said Monongahela Biver is evidenced by the fact that in March, 1849, the General Assembly of Virginia by a special act authorized Levi Low, after whom said village of “ Lowesville ” was named, and who was the owner of said mill and milldam, now owned by the said claimant, to increase the height of his dam. Said special act was passed March 15, 1849, and reads as follows, viz:

“ 1. Be it enacted by the general assembly, That Levi Low, of the county of Monongalia, is hereby authorized to increase the height of his dam on the Monongahela Biver four feet, diminishing its height where it terminates in the river to two feet: Provided, That said dam shall produce no impediment to the navigation of the river and shall at any time be abated by the county or superior court of Monongalia as a nuisance should it appear that the said dam does obstruct the navigation aforesaid.

“ 2. This act shall be in force from its passage.”

V. On the 26th day of February, 1827, Thomas Hall and Baphael Hoult, who owned the land on each side of the Monongahela Biver, and in pursuance of the provisions of the act of the General Assembly of the Commonwealth of Virginia, hereinbefore cited, instituted the proper proceedings in the county court of Monongalia County, Va., for the purpose of acquiring the necessary rights from other property owners to erect a dam across said river for the purpose of building mills on each side of said river, and on July 23, 1827, the said court entered an order granting the said Hall and Hoult the right and privilege to erect a dam for the purposes aforesaid.

In Chapter CLXXX of the acts of the General Assembly of Virginia of 1831 is the following:

“An act concerning Thomas Hall and Baphael Hoult, passed March 22nd, 1831.

“ 1. Be it enacted by the general assembly, That it shall be lawful for Thomas Hall and Baphael Hoult, their heirs and assigns, to erect and keep in constant repair a good and sufficient sluice and windlass or crane and other necessary *11fixtures, instead of a lock and slope, at their milldam across the Monongahela River, in the county of Monongalia.”

Elijah H. Hoult, by various deeds of conveyance, acquired all the rights and title of Raphael Hoult in and to said mill property.

At least a century prior to the time Dam and Lock No. 15 were erected there had been a mill in operation on the site of the “ Barnes mill,” and valuable rights had been acquired in the dam which furnished water power. The present mill was erected some 7 or 8 years prior to the time (1875) the United States Government made the first survey preparatory to improving said river and more than 30 years prior to the actual improvement made in said river.

VI. As early as 1792 the construction of milldams in the watercourses of the State was a subject of legislation in the Virginia Assembly. Sections 5 and 14 of the act approved December 21, 1792, are as follows:

“ 5. If on such inquest or on other evidence it shall appear to the court that the mansion house of any proprietor, or the offices, curtilage, or garden thereto immediately belonging, or orchards, will be overflowed, or the health of the neighbors be annoyed, they shall not give leave to build the said mill and dam; but if none of these injuries are like to ensue, they shall then proceed to consider whether, all circumstances weighed, it be reasonable that such leave should be given, and shall give or not give it accordingly; and if given, they shall lay the party applying under such conditions for preventing the obstruction, if any there will be, of fish of passage and ordinary navigation, as to them shall seem right.

“ 14. It shall not loe lawful for any • person to erect or fix on any watercourse any dam, hedge, weir, seine, drag, or other stoppage, whereby navigation or the passage of fish may be obstructed, save only for the purpose of working some machine or engine useful to the public, in which cases the same proceedings shall be had as are before directed in the case of a water gristmill, or for the purpose of a water gristmill, before provided for. And where any such are now standing, or shall hereafter be erected or fixed, the owner or tenant of the lands adjacent thereto (whether the same were erected or fixed by himself or another) shall cause it to be abated. And whoso offendeth herein shall be deemed guilty of a nuisance.” (Acts of Virginia Assembly, 1792-1795, p. 138.)

*12Sections 4 and 6 of the act approved December 5, 1793, are as follows:

“ 4. The said trustees, or a majority of them, shall, as soon as may be, proceed to view the said rivers and ascertain as nearly as they can the highest part of said West Fork capable of navigation, and have power to contract and agree with any person or persons for clearing and improving the navigation of the rivers aforesaid, in such manner as they, or a majority of them, shall judge most proper, and to remove all obstructions which shall in any wise injure the navigation of the said rivers or prevent the passage of fish.

“ 6. Every person who shall erect any dam across the said Monongahela or West Fork Biver shall, at the time of making the'same, erect a slope in or through the said dam in such manner as shall admit the easy passage of fish, and also erect a sufficient lock or locks at such dam for the convenient passage of canoes, batteaus, and flat-bottomed boats, at least twelve feet wide, and keep' the same in good repair; and if the owner of any dam shall neglect to erect such sufficient slope or locks, as aforesaid, it shall be deemed a nuisance, and any person may lawfully throw down and destroy such dam. If the owner of any dam on either of the said rivers shall fail to keep any lock so erected in good and suffi-. cient repair, or fail to cause due attendance to be given thereat for the dispatch of vessels navigating the said rivers, he or they so offending shall forfeit and pay the sum of forty dollars for every such failure, to be recovered in the name of the trustees, by action of debt or information, in the court of the county where the owner or proprietor resides, and applied to the purposes of this act.” (Acts Virginia Assembly, 1792-1795, pp. 242-243.)

Chapter 49 of the acts of the Virginia Assembly, 1792-1795, page 329, also pertains to the Monongahela Biver; that is, to the West Fork of that river. The West Fork of the Monongahela Biver, together with the Tygarts Valley Biver, form the Monongahela Biver at a point about 1 mile above the Barnes milldam. Said chapter 49 provides for the construction of dams across the West Fork of the Monongahela Biver, but requires that said dams shall be so constructed as not to interfere with navigation, going so far as to require that the dams be constructed so that “ flat-bottom boats of any burthen 15 feet wide ” shall go down the said river and through the said dam. This chapter 49 also refers to chapter 29 of the previous session, which was entitled “An *13act for clearing and .extending the navigation of the Monon-galia and West Fork Rivers ” hereinbefore mentioned. (Acts of Virginia Assembly, 1792-1795, p. 242; see also Virginia Statutes at Large, vol. 3, chap. 92, p. 272, and chap. 77, p. 330.)

As early as 1800 the Monongahela River was, by act of the Virginia Assembly, declared a navigable stream. That act is as'follows:

‘£ 1. Be it enacted by the general assembly, That the Monongalia River, from the south, boundary line of Pennsylvania up to the confluence of the rivers of Tyger Valley and West Branch, thence up the Tyger Valley River to John Nusum’s mill, and up the West Branch River to Edward Jackson’s mill, and up Simpson’s Creek to Benjamin Wilson’s mill, and up Elk Creek to George Jackson’s mill, shall be forever considered and taken as a public highway, free for navigation. If any person or persons shall place or put any obstruction to the navigation of the said rivers or creeks, within the distance aforesaid, he or they shall, for every such offence, forfeit and pay the sum ox fifty dollars for every month such obstruction shall remain therein, to be recovered in any court of record in this Commonwealth, with costs, by action of debt or information, and applied one moiety to the use of the person prosecuting and the other moiety to the justices of the court of that county where the suit shall be tried, to be by them applied toward improving the navigation of the said rivers and creeks.

“ 2. Provided always, and be it further enacted, That the proprietor of any milldam erected across either of the said rivers or creeks, within the aforesaid distance, shall be allowed one year from and after the passing of this act, to erect sufficient locks and slope by or through the same, for the convenient and safe passage of boats, to be adjudged of by the court of the county wherein the lock or slope is erected. If the proprietor of any milldam across either of the said rivers or creeks hereby declared to be a public highway shall fail or neglect to make such locks and slope, and keep the same in constant repair, it shall be lawful for any person or persons to pull down and destroy such milldam.

“ 3. This act shall commence and be in force from and after the passing thereof.”

That the Monongahela River was considered a navigable stream is further evidenced by the act of the General Assembly of Virginia, passed February 3,1806. (Acts Virginia Assembly, 1803-1808, p. 272).

*14VII. In December, 1903, immediately prior to the time the United States completed the construction of Dam and Lock No. 15, that portion of the claimant’s property lying contiguous to the said river was well suited for milling, flour, hay, grain, and general feed-store purposes, for which it was then being used.

VIII. In the years 1901-1903 the United States built Dam and Lock No. 15, said dam extending entirely across the Monongahela River, about 2 miles below or down the river from the claimant’s mill property. This dam, with lock, was built in the improvement of navigation of said river under the authority of the acts of Congress.

IX. The immediate effect of the construction of Dam and Lock No. 15 was to back up the water under claimant’s mill, which was constructéd partly over the bed of the river, submerging a portion of the machinery, to wit, the water wheels only, and totally destroying the head of water furnished by the milldam, thus destroying the water power. Said mill property has been constantly, since the construction of said dam and closing of Lock 15, and is now used as a flour and general feed store for the sale of said articles not ground at the mill, the same as it was used prior to the construction of said lock.

Before the slacking of the river the milldam caused a head of water which gave power to the claimant by which he could operate his mill for a certain number of months during the year. After the closing of the lock the quality of water in the rive was increased and the surface of the water raised to a height above the dam and above the wheels of the mill, thereby preventing the mill, with its present equipment of machinery, being operated by water power. The slacking of the river did not decrease the quantity of the water in the river, but increased the quantity, for there is now considerably more water standing in the pool of the lock over the Barnes milldam than formerly. Whether or not the Barnes milldam has been torn out is not clearly shown. It may still rest on the bed of the-river, but owing to the increased quantity of the water produces no power.

X. The mill, which was a frame structure, was equipped with a set of burrstones and machinery, and was used as a *15feed mill, flour and general feed store, its grinding capacity being about 10 busbels of grain per bour when the water permitted, and grinding could be done at said mill eight months per year, on an average.

XI. The milldam was constructed partly of stone and partly of timber and extended entirely across the Monongahela Biver. It was in good state of repair in the year 1903, when Dam No. 15 was completed by the United States.

XII. The water power, furnished by means of the aforesaid milldam, was suflicient to run the said mill at full capacity at least eight months of the year, and the head of water furnished was from 3 to 5 feet.

XIII. The Monongahela Biver has heretofore, by this court, been declared to be a navigable water of the United States. (Walls v. United States, 44 C. Cls. B., 482.)

XIY. From the foregoing facts the court finds the ultimate fact to be in so far as it is a question of fact that the matter referred does not constitute a legal or equitable claim against the United States.

Mr. William S. Raymond and Mr. John L. Lehman for the claimant.

Those rivers are regarded as public navigable rivers in law which are navigable in fact. They are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. Where a stream is navigable only by artificial means, the public has no right of navigation thereon. {United States v. Rio Grande Dam, etc., Go. (1899), 174 U. S., 107; Wadsworth v. Smith, 26 American Decisions, 525; Miller v. New Yorlc (1883), 109 U. S., 385; Leavy v. United States (1899), 177 U. S., 621; CcurdweTl v. American Bridge Go. (1884), 113 U. S., 205; Pacher v. Bird (1891), 137 U. S., 661; Rhea v. Newport, etc., R. Go. (1892), 50 Fed. Bep., 16; Munson v. Hung erf ordj, 6 Barb. (N. Y.), 265; Gurtis v. Keeler, 14 Barb. (N. Y.), 511; Moor v. Sanborne, 2 Gibbs (Mich.), 519; American River Water Go. v. Amsden, 6 Cal., 443.)

*16“ It is not of consequence that the stream was originally navigable, or that it was artificially constructed, or that it is wholly within one State, or that it has always been practically controlled by the State or city. The use now actually made of the waterway, its practical dedication to the public, the importance, amount, and nature of its commerce, and the source and destination of the commodities borne upon it, establish the character of the navigation.” (1891, Op. Atty. Gen., 101.)

' ‘ Each riparian owner along the Monongahela Biver, in the State of West Virginia, owns to the middle thread of the same, by virtue of the common-law principle that he who owns the lands on both banks owns the entire river, and he who owns the land upon one bank only owns to the middle of the river. (Ill Kent, 427, 428; Gavitt v. Chambers, 3 Ohio, 496; Middleton v. Pritchard, 3 Scamm. (Ill.), 510; Pratt v. Lawson, 2 Allen, 284; Rayes v. Bowman, I Band. (Va.), 420; City of St. Louis v. Ruta, 138 U. S., 226; Hardin v. Jordan, 140 U. S., 371; Angelí on Water Courses, secs. 11 and 28.)

The rights of riparian owners of land situated upon navigable rivers are to be measured by the rules and decisions of the courts of the State in which the land is situated, whether it be one of the original States or a State admitted after the adoption of the Constitution. (St. Anthony Falls Water Power Co. v. St. Paul Water Commissioners (1897), 168’ U. S., 349; Barney v. Keokuk, 94 U. S., 324; St. Louis v. Myers, 113 U. S., 566; Packer v. Bird> 137 U. S., 661; Hardin v. Jordan, 140 U. S., 371; St. Louis v. Rutz, 138 U. S., 226.)

“Although the public has a right to the use of streams and rivers for the purpose of navigation, yet the legislature by general law or particular grants may confer upon individuals rights in opposition to this public right. The general law authorizing courts to establish mills has conferred such paramount rights on owners of mills.” (Crenshaw v. Slate River Co., 6 Bandolph (Va.), 245.)

“A person may have a private easement in flowing water not inconsistent with the public easement.” (Walker’s American Law, 304.)

“ The character of private property taken for public use, whether corporeal or incorporeal, will not affect the question of liability. A private easement is property within the *17meaning of the law as much as the physical substance from which it springs.” (Robert O. Friend- v. United States, 30 Court Claims, 94.)

“ The public right is measured bjr the capacity of the stream for valuable public use in its natural condition, and any attempt to create capacity at other times at the expense of private interests can be justified only on an assessment and payment of compensation.” (Thunder Bay Booming Oo. v. Speedily, 31 Mich., 336; 18 American Reports, 184.)

As a riparian owner, and by the various acts of the General Assembly of Virginia and various orders of court, hereinafter cited, the claimant acquired and exercised valuable rights of property in the bed of the river, which others are bound to recognize. These were such valuable rights that they could not be disturbed, nor could the possessor thereof be deprived of the same for any purpose whatever without just compensation therefor.

In a case in this country of much more than ordinary importance, and one universally and frequently appealed to as of high authority, the general doctrine in relation to the right to apply the water of a water course is thus laid down by Mr. Justice Story:

“Prima facie, every proprietor on each bank of a river is entitled to the land covered with water, to the middle thread of the stream, or, as is commonly expressed, usque ad fdum aquae.” (Tyler v. Wilkinson, 4 Mason, 400.)

In virtue of this ownership he has a right to the use of the water flowing over it, in its natural current, without diminution or obstruction.

In the State of Virginia grist mills were considered of such importance to the public that persons who would erect and operate such mills had a right, by express provisions of the statutes, to exercise the right of eminent domain — to condemn and take private property under the same conditions that the State itself would appropriate private property for public use. The State prescribed how and under what conditions grist mills could be established and operated, regulating the tolls to be charged, and exempting the owners of such mills from jury duty. The law of West Virginia at *18present in regard to mills and mill owners is practically the same as the law of Yirginia a hundred years ago.

The said mill and dam furnishing the water power for its operation were therefore lawfully placed on the present location, and as there is nothing in the record or the evidence of this case showing that said dam ever became or was declared to be a nuisance, said dam has been lawfully and rightfully used by claimant and those who preceded him up until the time that the United States destroyed said dam and practically took possession of about one-half of an acre of claimant’s land and rendered useless his valuable grist mill by completing the improvements.

It is insisted that when the claimant' and those from and through whom he acquired ownership in said mill property erected said mill and placed said dam in said stream under and by virtue of the general and special statutes of the State of Yirginia, he thereby became vested with rights that could not be taken from him by the sovereign power of the State without according to him full and complete satisfaction, not only for the taking or destaging of his property, but also for the right of franchise with which he became vested under said statutes aforesaid. This principle is clearly announced in the case of Asbury Crenshaw and Thomas B. Crenshaw v. The Slate River Company, reported in the Sixth Randolph Reports (Ya.), page 245. •

It is contended that the mill and dam owned by the plaintiff can not be taken or destroyed by the General Government any more than the same property and property rights could be taken and destroyed by the State government, without paying a just and reasonable compensation to the claimant for such property thus taken or destroyed. If any other principle were to obtain, a government, or those who have charge of its administration, could at will take or destroy the property of any citizen and he be wholly deprived of any manner or method of recovering compensation therefor.

But the claimant is not confined to the decisions of his own or of other States in urging that the General Government should make restitution unto him for his property and his property rights that have been taken from him by the *19United States authorities. There is a precedent enunciated by the Supreme Court of the United States in the case of the Monongahéla Navigation Company v. The United States, reported in 148 U. S., 312, which in all its essentials adopts and approves the principles declared in the said case of Crenshaw v. The Slate River Company. In the Monongahéla Navigation Company case the Government, in seeking to acquire title to the locks and dams owned by said navigation conrpany, declined to allow any compensation for the franchise held by said navigation company to exact tolls for the passage of commerce through its properties, although the Government was willing to pay a fair compensation for the tangible property of the said company which it sought to condemn and take.

By the acts of the United States, under the right of eminent domain, claimant’s property, including his water power or right of franchise, was rendered useless for the purposes for which claimant was then using it. The courts have repeatedly held that the destruction of private property, or any serious interruption to the common and necessary use thereof, amounts to the taking within the meaning of the Constitution. It makes no difference how the property was taken, if the claimant’s property was rendered unfit for use and valueless, then he has sustained a loss and he has a right to recover for same. (Lynah v. United States, 188 U. S., 445; Pumpelly v. Green Bay c& Miss. Canal Co., 13 Wallace, 166; Monongahéla Navigation Co. v. U. S., 148 U. S., 312; Grant v. United States, 1 Ct. Claims, 41; Mer-mam v. United States, 29 Ct. Claims, 250; King v. United States, 59 Fed., 9; Jackson v. United States, 31 Ct. Claims, 318; Clark v. United States, 37 Ct. Claims, 503; Canal Commissioners v. People, 5 Wendell (N. Y.), 423; Thames Bank v. Lowell, 18 Conn., 500; Montgomery County v. Schuylkill Bridge Co., 110 Pa., 54.)

Mr. William W. Scott (with whom was Mr. Assistant Attorney General John Q. Thompson) for the defendants.

The provisions of the Constitution which bear upon this subject are discussed in the case of Gilman v. Philadelphia (3 Wall., 713, and cases there cited).

*20Speaking of what is the proper test as to wbat is a navigable stream, the Supreme Court in the case of The Daniel Ball said:

“The test by which to determine the navigability of our rivers is found in their navigable capacity. Those rivers are public navigable rivers in law which are navigable in fact.

“ Éivers are navigable in fact when they are used or are susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” (10 Wall., 557; see also Gould on Waters, sec. 34; 3d ed., sec. 111.)

In the case of Bridge Go. v. The United States the Supreme Court said that—

“ The paramount power of regulating bridges that affect the navigation of the navigable waters of the United States is in Congress. It comes from the power to regulate commerce with foreign nations and among the States.” (Will-son v. Blade Bird OreeJc Marsh Go., 2 Pet., 245; State of Pennsylvania v. Wheeling Sc., Bridge Go., 18 How., 421; Gilman v. Philadelphia, 3 Wall., 713; The Clinton Bridge, 10 id., 454; Railroad Gompany v. Fuller, 17 id., 560; Pound v. Turóle, 95 U. S., 459; Wisconsin v. Duluth, 96 id., 379; Bridge Go. v. The United States, 105 U. S., 749).

An interesting case coming more to the point in issue in the case at bar is the case of Willamette Iron Bridge Gom-pany v. Match (125 U. S., 1), and distinguishes the case of the State of Pennsylvania v. The Wheeling and Belmont Bridge Go. (13 How., 518).

There are many court decisions on this question, and since the case of the Genesee Ohief they all support that decision. Some of the leading cases are The Monongahela Navigation Go. v. The United States (148 U. S., 312) ; Leovy v. The United States (177 U. S., 621); Scranton v. Wheeler (179 U. S., 141).

The case of the Monongahela Navigation Company is cited by counsel for claimant. It is not, however, similar to the case at bar for the reason that the Monongahela Navigation Company owned a property on the Monongahela Elver which aided in the improvement of that river for successful navigation and the carrying of commerce, and in fact was a part of the improvement of the river.

*21Tbe case of Shively v. BowTby is an interesting case on this subject, and the opinion of the court goes thoroughly into the question of the taking of property and riparian rights. (152 U. S., p. 1, and the cases cited in that opinion.)

The case of The United States v. The Rio Grande Irrigation Company (174 U. S., 707) is also cited in claimant’s brief on the question of' navigable waters. This case, however, supports the contention of the Government as much, if not more so, than any case found in the books, and all of the cases cited on page 108 of claimant’s brief are somewhat similar to the Bio Grande Irrigation Company case. The contention of the Government is that it is the navigable capacity of a river which makes it a navigable stream, and therefore under the control of Congress by virtue of the provisions of the Federal Constitution hereinbefore set out.

What is a navigable stream in the State of West Virginia, and the rights of the public to use as highways not only rivers in which the tide ebbs and flows, but fresh-water rivers, capable of being used to carry on commerce, is considered in the case of Gaston v. Mace (33 W. Va. Bep., 14).

This same question was before the Circuit Court for the Eastern District of Virginia in the case of Richardson et al. v. The United States (100 Fed. Bep., p. 714), which was a case growing out of the planting of oysters.

The Monongahela Eiver is a navigable stream, and the court so found in Walls’ c-a.se.(44 C. Cls., 482), decided March 29, 1909. On the same day findings were made and conclusions of law entered giving judgment to claimants in Hood's case, No. 27472; Hildebrand, No. 27469; Weaver, No. 27474; Hood, No. 27470; Talbott, No. 27471; and Heston, No. 27475. All of these cases grew out of the improvement of the Monongahela Biver and the taking of the property, for which judgment was given in the last three cases above mentioned.

Under the decisions of the courts any stream which can, by improvement, be made suitable for navigation for the carrying of commerce is a navigable stream; that is, the capability of the river to be used by the public for the purposes of transportation and commerce is the true test of the navigability of the river, rather than the extent and manner of use, and whether or not the Government had assumed con*22trol of the river for purposes of navigation is not material, the fact being that the Constitution guaranteed to the Government the use of the river for such purposes. {Montello, 20 Wall., 430, 441-443.)

After an obstruction, such as a milldam, was placed in a river by authority of an act of a State legislature the Government of the United States could at any time cause said obstruction to be removed if it was desired to improve the river for navigation. Anyone placing an obstruction in a river under the authority of an act of a State legislature did so at his peril, and the loss, if any, caused by the removal of such obstruction in the improvement of the river for navigation must be borne by that one and not by the Government. In other words, the law of a State legislature giving authority to construct a dam, and thereby obstruct navigation, becomes null and void the moment the Congress of the United States exercises its right under the Constitution to improve the river if such law comes in conflict with the constitutional provisions. That this is the proper construction is decided by many cases, among them being the case of the State of Pennsylvania v. The Wheeling Bridge Go. (19 U. S., 621) ; United States v. The Gity of Moline (82 Fed. Rep., 592) ; Gibsons ease (29 C. Cls., 18).

The right of the claimant to construct and maintain a mill-dam across the Monongahela River was a license given him by the Virginia Assembly at a time when there was no national legislation relative to the improvement of the Monongahela River for navigation. Since the granting of a permit or license to the claimant Barnés to construct and maintain his dam in the Monongahela River there has been national legislation for the improvement of the Monongahela River, which acts to revoke the license to the claimant to obstruct the river with the dam. {Bundell et cd v. The Delaware and Raritan Ganad Company, 14 How., 79-92.) Mr. Justice Grier, speaking for the court, refers to the case of the Monongahela Navigation Company v. Oombs (6 Wats. & S., Pa., 101) and the Susquehanna Ganoid Company v. Wright (9 id., 9).

On the question of an obstruction to a navigable stream placed in said stream under State authority is that of the *23Union Bridge Company v. The United States (204 U. S., 364).

The improvement of the Monongahela River which resulted in the destruction of the head of water created by the Barnes milldam was done under the provisions of the river and harbor' act appropriating certain sums of money for that purpose. The Barnes milldam at the time it was placed in the Monongahela River probably was not an obstruction to commerce, but the owners erected it with the knowledge that the paramount authority over the river for navigation rested in Congress, and that in the event Congress undertook to more thoroughly improve the river the water power created by said dam would be destroyed. This water power was destroyed, and if the claimant has suffered injury or damage by this improvement it is damnum dbsque injuria.