The Chief of Engineers, in his discretion, and after approval by the Secretary of War, is hereby authorized to make preliminary examinations and minor surveys preliminary thereto and to remove snags and other temporary or readily removable obstructions from tributaries of waterways already under Federal improvement or in general use by navigation, to be paid from funds allotted to the adjoining waterways: Provided, That the cost of such work in any single year shall not exceed $1,000 per tributary. Sec. 1, act of July 25, 1912 (37 Stat. 222), as amended by sec. 3, act of July 3, 1930 (46 Stat. 946), authorizing improvements on rivers and harbors; U.S.C. 33: 603. The second from the last paragraph of this section was amended to read as above. That the Secretary of War is authorized and directed to have prepared and transmitted to Congress at the earliest practicable date after March 4, 1931, a compilation of preliminary examinations, surveys, and appropriations for works of river and harbor improvement similar in general form and subject matter to that which was prepared in accordance with the Act of March 4, 1913, and printed in House Document Numbered 1491, Sixty-third Congress, third session: Provided, That the report to be prepared in accordance with this provision shall be a revised edition of the report printed in the document above mentioned, extended to the end of the Seventy-first Congress. Sec. 10, act of July 3, 1980 (46 Stat. 949), authorizing improvements on rivers and harbors. The above provision is added as a new paragraph of this section. 1859. Same; contributions by private parties. That when the authorization of a project of river and harbor improvement requires that local interests shall contribute a specific sum of money toward its cost, the Secretary of War, upon the recommendation of the Chief of Engineers, may reduce the sum to be contributed to an amount which shall be in the same ratio to the amount of the required contribution as the actual cost of the work to which said contribution is applicable bears to its original estimated cost as set forth in the project document: Provided, That the reduction hereby authorized shall not extend to contributions heretofore made. Pub. res. of Mar. 3, 1933 (47 Stat. 1545); U.S.C. 33: 561a. The above provision is added as a new paragraph of this section. 1863. Same; dredging plants. The second paragraph of this section, based on section 3, act of March 2, 1919 (40 Stat. 1287), making appropriations for works on rivers and harbors; U.S.C. 33: 622, was superseded by section 10, river and harbor authorization act of September 22, 1922 (42 Stat. 1043); U.S.C. 33:621 (1866, post), and should be omitted. 1865. Same; offenses and permits. By 2113a, post, the provisions of this section are made applicable to navigable waters in the Virgin Islands. NOTES OF DECISIONS Jurisdiction of courts.-This section held not invalid as an encroachment of admiralty and maritime jurisdiction. The Gansfjord (D.C. 1928) 25 F. (2d) 736. A vessel which caused damage to jetty in Mississippi river by colliding therewith was liable for amount of damages so caused under this section, and for the recovery of such damages statute authorized libeling of vessel in district court in district in which wrong was committed. Aktieselskabet Dampskib Gansfjord v. U.S. (C.C.A. 1929) 32 F. (2d) 236, certiorari denied (1929) 280 U.S. 578. Libel by United States for damage to jetty.-Libel against vessel for damaging jetty held maintainable by United States re gardless of negligence. The Gansfjord 1866. Same; prosecution of work.-* * * And provided further, That the Government shall not be deemed to have entered upon any project for the improvement of any waterway or harbor mentioned in this Act until the project for the proposed work shall have been adopted by law: * *. Sec. 2, act of July 3, 1930 (46 Stat. 933), authorizing improvements on rivers and harbors. * * The first paragraph of the original text of this section based on section 4, act of January 21, 1927 (44 Stat. 1016), was superseded by the above provision. 1866a. Same; Illinois River. That the following works of improvement are hereby adopted and authorized, to be prosecuted under the direction of the Secretary of War and supervision of the Chief of Engineers, in accordance with the plans recommended in the reports hereinafter designated. * * * Illinois River, Illinois, in accordance with the report of the Chief of Engineers, submitted in Senate Document Numbered 126, Seventy-first Congress, second session, and subject to the conditions set forth in his report in said document, but the said project shall be so constructed as to require the smallest flow of water with which said project can be practically accomplished, in the development of a commercially useful water: Provided, That there is hereby authorized to be appropriated for this project a sum not to exceed $7,500,000: Provide₫ further, That the water authorized at Lockport, Illinois, by the decree of the Supreme Court of the United States, rendered April 21, 1930, and reported in volume 281, United States Reports, in Cases Numbered 7, 11, and 12 originalOctober term, 1929, of Wisconsin and others against Illinois, and others and Michigan against Illinois and others, and New York against Illinois and others, according to the opinion of the court in the cases reported as Wisconsin against Illinois, in volume 281, United States, page 179, is hereby authorized to be used for the navigation of said waterway: Provided further, That as soon as practicable after the Illinois waterway shall have been completed in accordance with this Act, the Secretary of War shall cause a study of the amount of water that will be required as an annual average flow to meet the needs of a commercially useful waterway as defined in said Senate document, and shall, on or before January 31, 1938, report to the Congress the results of such study with his recommendations as to the minimum amount of such flow that will be required annually to meet the needs of such waterway and that will not substantially injure existing navigation on the Great Lakes to the end that Congress may take such action as it may deem advisable. Sec. 1, act of July 3, 1930 (46 Stat. 929), making appropriations for public works on rivers and harbors. 1868. Private improvements on rivers and harbors; construction of wharves, piers, breakwaters, or other structures.-That the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction, is hereby prohibited. The continuance of any such obstruction, except bridges, piers, docks and wharves, and similar structures erected for business purposes, whether heretofore or hereafter created, shall constitute an offense and each week's continuance of any such obstruction shall be deemed a separate offense. Every person and every corporation which shall be guilty of creating or continuing any such unlawful obstruction in this act mentioned, or who shall violate the provisions of the last four preceding sections of this act, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five thousand dollars, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court. The creating or continuing of any unlawful obstruction in this act mentioned may be prevented and such obstruction may be caused to be removed by the injunction of any circuit court exercising jurisdiction in any district in which such obstruction may be threatened or may exist; and proper proceedings in equity to this end may be instituted under the direction of the Attorney General of the United States. Sec. 10, act of Sept. 19, 1890 (26 Stat. 454); U.S.C. 33:403a. The above provision, omitted from the original text of the Military Laws, 1929, is inserted as the first paragraph of this section. While superseded as to the creation of obstructions by the second paragraph of this section, it remains in force as regards the continuance of such obstructions. "District court" should be substituted for "circuit court" by reason of section 292, act of March 3, 1911 (36 Stat. 1167). By sec. 4, act of June 15, 1932 (47 Stat. 319), the Secretary of War was authorized to permit the construction of intake and discharge tunnels and other structures in the Anacostia River, in connection with the closing of certain streets in the District of Columbia. By 2113a, post, the provisions of this section are made applicable to navigable waters in the Virgin Islands. NOTES OF DECISIONS In general. The above provision added to this section is still in force. (1930) 36 Op. Atty. Gen. 314. Constitutionality of statute and power of Congress. This section is valid though construed as forbidding acts which do not of themselves affect navigability. F. D. Gleason Coal Co. v. U.S. (C.C.A. 1929) 30 F. (2d) 22, affirming (D.C.Mich. 1926) 14 F. (2d) 233. This section is not invalid as a delegation of legislative power to the Secretary of War. State of Wisconsin v. State of Illinois (1929) 278 U.S. 367. Discretion vested in Secretary of War in matter of construction, maintenance and alteration of dams is not delegation of legislative power. Ryan v. Chicago, B. & Q. R. Co. (C.C.A. 1932) 59 F. (2d) 137. Where Congress authorizes construction of dam according to detailed and specified plans, discretion of Secretary of War in constructing dam is, to that extent, limited. Id. Construction and application in general.— Though Congress, in the exercise of its power over navigation, may adopt any means having some positive relation to the control of navigation and not otherwise inconsistent with the Constitution, it may not arbitrarily destroy or impair the rights of riparian owners by legislation which has no real or substantial relation to the control of navigation or appropriateness to that end. State of Wisconsin v. State of Illinois. (1929) 278 U.S. 367. Construing the words "not affirmatively authorized by Congress ", the Supreme Court, in contrasting these words with the words "affirmatively authorized by law", said The change in the words * * was intended to make mere State authorization inadequate. Sanitary District of Chicago v. U.S., 266 U.S. 405, 429; U.S. v. Bellingham Bay Boom Co., 176 U.S. 211. It was not intended to override the authority of the State to put its veto upon the placing of obstructing structures in naviga. ble waters within a State, and both State and Federal approval were made necessary in such case. Cummings v. Chicago, 188 U.S. 410. The words "affirmatively authorized by Congress "should be construed in the light of the administrative exigencies which prompted the delegation of authority in the succeeding clauses. Congress, having stated in 1870, post, as to what particular structures its specific consent should be required, intended to leave to the Secretary of War, acting on the recommendation of the Chief of Engineers, the determination of what should be approved and authorized in the classes of cases described in the second and third clauses of this section. If the section were construed to require a special authorization by Congress whenever in any aspect it might be considered that there was an obstruction to navigable capacity, none of the undertakings specifically provided for in the second and third clauses could safely be undertaken without a special authorization of Congress. We do not think this was intended. The Supreme Court of Maine, in Maine Water Co. v. Knickerbocker Steam Towage Co., 99 Me. 473, 59 Atl. 953, took the same general view in construction of the same section. It held that the broad words of the first clause of that section were not intended to limit the second and third clauses and that Congress' purpose was a direct prohibition of what was forbidden by them, except * * when affirmatively approved by the Chief of Engineers and the Secretary of War. We concur in this view." Id. The words "to alter course of " refer to the acts other than excavation or filing which affect ports, channels, etc. Excavation and filing are prohibited though no alteration of course results. F. D. Gleason Coal Co. v. U.S. (C.C.A. 1929) 30 F. (2d) 22, affirming (D.C. Mich. 1926) 14 F. (2d) 233. Defendant held not entitled to use navigable canal belonging to plaintiff, even if plaintiff's canal diverted so much water from natural channel as to make latter unnavigable. Ilhenny υ. Broussard (La. 1931) 135 So. 669. Power of States in absence of Federal statute.-Ordinarily navigable waters with in State are subject to State's control till Federal Government assumes jurisdiction. Leitch v. City of Chicago (C.C.A. 1930) 41 F. (2d) 728, certiorari denied (1930) 282 U.S. 891. Navigable waters of United States.-Al waters are navigable waters of the United States where they form in their ordinary condition, by themselves or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water. Joly v. City of Salem (Mass. 1931) 177 N.E. 121. Obstructions and improvements.-Comsents of Federal and State authorities held necessary before construction of levee by drainage district affecting capacity of navigable river to carry flood waters. Duck Island Hunting & Fishing Club v. Edward Gillen Dock, Dredge & Construction Co. (Ill. 1928) 161 N.E. 300. Where contract to construct levee was void because of lack of permit, subcontract held likewise void. Id. State may refuse permission to riparian owner to build dam in navigable stream or attach conditions to consent. City of Baraboo Railroad Commission บ. (Wis. 1928) 218 N.W. 819. The powers of the United States and of the States are concurrent and where a State has a statute forbidding obstructions without its consent, that consent is prerequisite to the occupation of navigable waters by a boom company. Ribonson v. Silver Lake Ry. & Lumber Co. (Wash. 1929) 279 Pac. 1109. Diversion of water.-Subject-matter of diverting waters of navigable stream held under jurisdiction of Secretary of War. Ilhenny v. Broussard (La. 1931) 135 So. 669. How much, and under what conditions, water of navigable streams may be di verted held within discretion of Secretary Id. of War. Where Sanitary District of Chicago, in increasing diversion of water from Lake Michigan to Chicago Drainage Canal from 4,167 to 8,500 cubic feet per second, violated permit granted by Secretary of War and subsequently Secretary of War granted permit authorizing increased diversion to 8,500 cubic feet solely for purpose of removing sewage and for incidental power purposes under specified conditions, held that, in so far as diversion was not for purpose of maintaining navigation in Chicago river, it was without legal basis, and will be enjoined at suit of other States bordering on Great Lakes, whose riparian rights were injured by lowering the level of the lakes. State of Wisconsin v. State of Illinois (1929) 279 U.S. 163, holding further that such permit did not give States other than Illinois any rightful interest in the maintenance of the diversion in interest of navigation of Mississippi river or interstate commerce, in absence of direct authority from Congress for a waterway from Lake Michigan to Mississippi river. Removal of material.-Consent of Secretary of War is necessary before one may Kestake sand from a navigable stream. singer v. Standard Oil Co. (1925) 245 Ill. App. 376. Riparian owner removing sand from bed of navigable river without consent of Secretary of War held not entitled to recover damages from one interfering therewith. Id. Liability for damage caused by obstruction.-Damages are recoverable for injury to private property by unlawful change in course of navigable river. Booker v. Rochelle (C.C.A. 1928) 23 F. (2d) 492. Crew of boat, not knowing that additional telephone wires lower than original wires had been placed across river, held not negligent in attempting to pass during flood water. Burke v. Southern Bell Telephone & Telegraph Co. (D.C. Ala. 1932) 55 F. (2d) 732. Wires strung across river without statutory permission constituted obstruction, making telephone company liable for damage to boat when wires caught smokestacks. Id. the raft, struck some unidentified obstruction does not prove the lack of such care. Newtown Creek Towing Co. v. Astoria Importing & Mfg. Co. (C.C.A. 1931) 47 F. (2d) 578. Injunctive relief.-Riparian owner is entitled to enjoin excavation and removal of sand from bed of a navigable stream as against others than Federal Government. Kessinger v. Standard Oil Co. (1925) 245 Ill. App. 376. Amount in controversy may be shown by pleadings and papers in case other than bill, or by evidence. Leitch v. City of Chicago (C.C.A. 1930) 41 F. (2d) 728, certiorari denied (1930) 282 U.S. 891. 1868a. Same; dredging in State of Maryland.-Subject to the provisions of section 10 of the River and Harbor Act approved March 3, 1899, authority is hereby granted to dredge, without cost to the United States, in the navigable waters of the United States included within the Sate of Maryland and outside the limits of projects for improvement of navigation facilities approved by Congress, regardless of rights accruing to the United States as riparian owner under the laws of the State of Maryland: Provided, That in the opinion of the Chief of Engineers such dredging will improve facilities for navigation. Sec. 12, act of July 3, 1930 (46 Stat. 949), authorizing improvements on rivers and harbors; U.S.C. 33: 465. For section 10, act of March 3, 1899, see 1868, ante. 1870. Bridges, dams, dikes and causeways; construction. By 2113a, post, the provisions of this section are made applicable to navigable waters in the Virgin Islands. NOTES OF DECISIONS Necessity of statutory authority for construction of bridges.-Courts will take judicial notice of fact that bridges cannot be constructed over navigable streams, except by authorization of Congress. Bellaire, Benwod & Wheeling Ferry Co. v. Interstate Bridge Co. (C.C.A. 1930) 40 F. (2d) 323, certiorari denied (1930) 282 U.S. 861. Power of States in absence of Federal legislation.-State legislature, by general statute, may delegate to any agency, such as municipality, power to consent and order construction of bridge over intrastate navigable water. Southlands Co. v. City of San Diego (Cal. 1931) 297 Pac. 521. In the absence of congressional action under the commerce clause, the power of the State under the first proviso of this section is plenary. Macrum v. Hawkins (1932) 257 N.Y. Supp. 287, 235 N.Y. App. Div. 370. Navigable waters within State.-Affirmative authorization of Congress held not prerequisite to erection of bridges over navigable waters lying wholly within boundaries of State, where approval of Chief of Engineers and Secretary of War was obtained. Macrum v. Board of Sup'rs of Suffolk County (1931) 252 N.Y. Supp. 546, 141 N.Y. Misc. Rep. 358. Where Congress makes appropriation for general plan or project of dam appropriation bill is sufficient authority for prosecu tion of work under supervision of proper Government officer. Ryan v. Chicago, B. & Q. R. Co. (C.C.A. 1932) 59 F (2d) 137. Erection of bridge over intrastate navigable water by municipality without State's consent violates this section. Southlands Co. v. City of San Diego (Cal. 1931) 297 Pac. 521. Failure of State to consent to municipality constructing bridge over intrastate navigable water is jurisdictional defect not waived by failure to object before local legislative body. Id. Contract entered into by municipality in violation of Section 406, title 33 U.S. Code, requiring State's consent to building bridge over intrastate navigable water is void. Id. Consent of United States authorities must be secured for construction of bridge over navigable intrastate water. Id. Consent of Federal authorities must be secured for city's extension of municipal pier in navigable waters. Lloyd v. City of Redondo Beach (Cal. 1932) 12 Pac. (2d) 1087. Duty and authority of Secretary of War.-Discretion vested in Secretary of War in matter of construction, maintenance and alteration of dams is not delegation of legislative power. Ryan v. Chicago, B. & Q. R. Co., (C.C.A. 1932) 59 F. (2d) 137. Where Congress authorizes construction of dam according to detailed and specified plans, discretion of Secretary of War in constructing dam is, to that extent, limited. |