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Opinion of the Court.

bility in passing out of the artificial channel into the channel of the Des Plaines River. The water is just as navigable one-half mile southwest of Joliet as it is one-half mile northeast of Joliet.' The argument is based upon an erroneous construction of the word 'same.' That term refers to the channel of the Sanitary District and has no reference to the water after it leaves the channel" (p. 329).

The court, however, said that even if the legislature had declared in unequivocal language that the river was navigable, as it did by the act of 1907 [the act under which the information was filed], the declaration could not affect the rights of defendant in error, they being protected by the constitution of the State which forbids private property from being taken for public use without just compensation previously made, for which the court cited a number of cases and Cooley on Constitutional Limitations (side p. 591). And it was added that none of the legislative acts had the primary purpose of permitting a deep-water channel from the Lakes to the Gulf by means of improving the channel of the Des Plaines River, nor did the various acts passed in the interest of the Illinois and Michigan Canal nor the Sanitary District Act include a general scheme for the improvement of that river. "Up to this time," it was further said (p. 331), "no general plan for the deep waterway has been adopted, either by the State or the Nation," and whether any such enterprise will ever be adopted and whether it will include the Des Plaines River "are all legislative questions, with which the courts have no concern." If it be done, the court continued, it must be done "with due regard to the sacred rights of every citizen, however humble and insignificant those rights may seem in contrast with the great public consummation."

234 U.S.

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We have already seen that the contention of the plaintiff in error that the bed of the river was in the State and

Opinion of the Court.

234 U.S.

not in the riparian owners, among whom is defendant in error, by force of the act of the legislature of the State of February 26, 1839, in relation to the Illinois and Michigan Canal, was held untenable, and it was further held that the contracts of the canal commissioners under which defendant in error claims rights were valid. And the court further decided that the legislation of the State did not intend nor contemplate the improvement of the Des Plaines River from a condition of non-navigability to navigability and no act, except that of 1907, had declared it to be navigable, and that no act could do so and affect private rights under the constitution of the State. The supreme tribunal of the State, has, therefore, decided that plaintiffs in error have no elements of right against defendant in error.

It is said, however, as a foundation of a right under the acts of Congress alleged, that the river, although it was not navigable in its natural state became so by the addition of water from the Sanitary District. This contention was rejected by the Supreme Court, the court deciding, as we have seen, that the navigability of the river was to be determined by its natural condition and not by its condition created by artificial means. In resistance to this conclusion of the court and in assertion of a Federal right, plaintiffs in error cite, besides the acts of Congress referred to in the information certain acts of Congress passed in 1899, 1900 and 1902 appropriating money for "a survey and estimates of cost for the improvement of the upper Illinois and lower Des Plaines Rivers in Illinois, with a view to the extension of navigation from the Illinois River to Lake Michigan," and adduce, besides other recognitions by Congress of the navigability of the river, and contend that therefore, the rights of the State are based on Federal laws, and "that in its sovereign right, and as parens patriae and of its citizens, and on behalf of the citizens of all of the United States [italics counsel's], it had

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Opinion of the Court.

the right under those Federal laws to prevent the accomplishment by defendant of an act destructive of the navigability of the stream."

Plaintiffs in error state their contention another way. They say the acts of the two sovereignties, state and National, in furtherance of a common object, are so interwoven and related that the rights and questions arising from them, and the construction of their effect necessarily create.Federal questions.

But we have seen that the Supreme Court of the State decided there was no concurrence of the State in furtherance of the so-called common object, that is, that the various acts in regard to the Illinois and Michigan Canal or the Sanitary District did not include any general scheme for the improvement of the Des Plaines River, and it was certainly within the competency of the court to so determine. The court was also of the view that under the constitution of the State the State did not have the "sovereign right, and as parens patriae" to restrain the acts of defendant in error.

The court seemed to consider that it had decided all of the contentions of the State when it had decided the question of the navigability of the river both in its natural condition and its condition after the addition of the waters of the Sanitary District. The fact was and is pivotal. The ordinance for the government of the Northwest Territory and the subsequent acts of Congress set out in the information do not determine navigability of the streams but only define rights which depend upon its existence. Passing the question, therefore whether the ordinance or the acts refer to physical obstructions or to political regulations, and also passing the question whether they were of force after the admission of the State into the Union (on both questions see Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1), the fact oi navigability having been decided against the State by the state court, there is no Federal

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right left to review. Crary v. Devlin, 154 U. Ş. 619; Cameron v. United States, 146 U. S. 533; Egan v. Hart, 165 U. S. 188. In the latter case it was decided that the question of navigability is purely one of fact.

It is said, however, that by the acts of 1899, 1900 and 1902 Congress has taken jurisdiction of the Des Plaines River. If so, the State is not the instrument through which the jurisdiction can be exercised. United States v. Bellingham Bay Boom Co., 176 U. S. 211; Willamette Iron Bridge Co. v. Hatch, supra; Cleveland v. Cleveland Electric Ry. Co., 201 U. S. 529.

But the cited acts are not appropriations for improvements undertaken but for improvements which may be undertaken; not a jurisdiction exercised but a jurisdiction to be exercised. And, as we have seen, it is alleged in the answer, and the allegation is sustained by the evidence, that the plans of defendant in error's structure were submitted to the War Department and it was declared by that department, "The work proposed is in general harmony with the work of improvement recommended by the Board of Engineers appointed under the authority of the Rivers and Harbors Act of June 13, 1902 (32 Stat. 331, 334, c. 1079)." But the department, inasmuch as Congress had not authorized the improvement of the river, did "not deem it expedient to take further and definite action in the matter of approving the plans." It is manifest, therefore, that the State has no right under Federal laws which it may assert for itself or "on behalf of the citizens of all of the United States," and the motion to dismiss must be granted.


234 U.S.

Statement of the Case.



No. 889. Argued April 14, 15, 1914.—Decided June 22, 1914.

A title which has passed by location of a grant and its approval by proper officers of the Land Department cannot be subsequently divested by the then officers of the department. Ballinger v. Frost, 216 U. S. 240.

The action of the Commissioner in approving the location of a nonmineral float cannot be revoked by his successor in office, and an attempt so to do can be enjoined. Noble v. Union River Logging Co., 147 U. S. 165.

A suit to restrain the Secretary of the Interior and the Land Commissioner from doing under color of their office, an illegal act which will cast a cloud upon the title of complainant is not one against the United States; nor in this case is it one for recovery of land merely or an attempted appeal from the decision of the Interior Department or a trial of title to land not within the jurisdiction of the court and wherein the United States is not present or suable. A survey is necessary to segregate from the public domain lands attempted to be located by a float grant. Stoneroad v. Stoneroad, 158 U.S. 240. In this case, held, that a survey was made and approved. In this case, held, that the report of the Surveyor General and the subsequent proceedings and survey by the Surveyor General of Arizona amounted to a survey and finding that the lands were non-mineral and that title thereto vested in the holder of the float grant selecting the lands and passed out of the United States.

Where, as in this case, in order to accommodate conflicting claims and, at the instance of the Government, claimants have given up rights to a definite tract and accepted float grants for an equal amount of land, it will be presumed that the Government would make provision for the location of the substituted land as expeditiously as possible and without expense to the holders of the float.

41 App. D. C. 139, affirmed.

THE facts, which involve the title to lands assigned on one of the Baca Float Grants issued in substitution of the Las Vegas Grant, are stated in the opinion.

See 235 U. S. 17, for further opinion in this case.

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