But we have here the case of a water power incidental to the construction and maintenance of a public work and, from the nature of the case, subject to the control of the public authorities, in this instance the United States. ture to legalize such structures for private a public purpose, and the sequestration or purposes. Such a question is for the state appropriation of land or other property, tribunals. therefore, for such purpose is doubtless a proper exercise of the authority of the state under its power of eminent domain. Upon the other hand, it is probably true that it is beyond the competency of the state to appropriate to itself the property of individuals for the sole purpose of creating a water It also appears that, through the entire power to be leased for manufacturing purhistory of this improvement, these incidental poses. This would be a case of taking the water powers were recognized by the legisla- property of one man for the benefit of anture of the state as a source of revenue for other, which is not a constitutional exercise the promotion and success of the public enter- of the right of eminent domain. But if, in the prise, and in aid of its completion. By the erection of a public dam for a recognized act of July 6, 1853, the water powers were public purpose, there is necessarily produced granted with the rest of the public works to a surplus of water, which may properly be the Fox & Wisconsin Improvement Company, used for manufacturing purposes, there is upon a public trust to continue and complete no sound reason why the state may not rethe partially constructed highway, and the tain to itself the power of controlling or company was thereby authorized to mort- disposing of such water as an incident of its gage such water powers, as part of the plant, right to make such improvement. Indeed, [78] to secure bonds issued to raise money for it might become very necessary to retain the that purpose; and, subsequently, upon a fore- disposition of it in its own hands, in order to closure the entire property became vested in preserve at all times a sufficient supply for the Green Bay & Mississippi Canal Company. the purposes of navigation. If the riparian The case of Kaukauna Water Power Co. v. owners were allowed to tap the pond at difGreen Bay & Mississippi Canal Co. 142 U. S. ferent places, and draw off the water for 254 [35: 1004], involved some of the ques- their own use, serious consequences might tions presented in the present case. There a arise, not only in connection with the public private riparian owner sought to withdraw demand for the purposes of navigation, but water from this very dam to furnish power between the riparian owners themselves as to its works. The canal company filed a to the proper proportion each was entitled to bill against such owner, the Kaukauna Water withdraw-controversies which could only Company, to enjoin it from interfering with be avoided by the state reserving to itself the canal company in building and maintain- the immediate supervision of the entire suping the dam, and from cutting said dam in ply. As there is no need of the surplus runorder to permit a flow of water out of the ning to waste, there was nothing objectiona [77] pool into the works of the defendant. *The ble in permitting the state to let out the use decree asked for was granted by the circuit of it to private parties, and thus reimburse court of Outagamie county, and that judg- itself for the expenses of the improvement. ment was affirmed by the supreme court of "The value of this water power created by Wisconsin. 70 Wis. 645. The case was the dam was much greater than that of the brought to this court where it was contend-river in its unimproved state in the hands of ed, on behalf of the Kaukauna Water Power the riparian proprietors, who had not the Company, that said company, by reason of ownership of the bank and of the bed of the stream, was the owner of the use, while passing, of all the water which might flow over the bed of the stream; in other words, was the owner of all the water power which could be utilized upon its land; and that, therefore, the act of the state of Wisconsin, of August 8, 1848, was void as an impairment of such property rights. The judgment of the court below was affirmed in an opinion by Mr. Justice Brown, some of the observations of which are so pertinent to our present purpose that we quote them at some length: "The case of the plaintiff canal company depends primarily upon the legality of the legislative act of 1848, whereby the state assumed to reserve to itself any water power which should be created by the erection of the dam across the river at this point. No question is made of the power of the state to construct cr authorize the construction of this improvement, and to devote to it the proceeds of the land grant of the United States. The improvement of the navigation of a river is 372 means to make it available. Those proprietors lost nothing that was useful to them, except the technical right to have the water flow as it had been accustomed and the possibility of their being able some time to improve it. If the state could condemn this use of the water, with the other property of the riparian owner, it might raise a revenue from it sufficient to complete the work, which might otherwise fail. There was every reason why a water power thus created should belong to the public rather than to the ri parian owners. Indeed it seems to have been the practice, not only in New York, but in Ohio, in Wisconsin, and perhaps in other states, in authorizing the erection of dams for the purpose of navigation, or rather public improvement, to reserve the surplus of water thereby created to be leased to private parties under the authority of the state; and where the surplus thus created was a mere incident to securing an adequate amount of water for the public improvement, such legislation has, it is believed, been uniformly sustained." 172 U. S. The learned judge then proceeds to cite decisions to that effect rendered in several of the state supreme courts. 9] As respected the right of the riparian owners in that case to recover compensation for their property thus taken, this court held that the act of Congress of 1875 (18 Stat. at L. 506, chap. 166), to aid in the improvement of the Fox and Wisconsin rivers, made a proper provision for such compensation, and that although the act of 1875 may have been repealed in 1888 (25 Stat. at L. 4, 21, chap. 4), yet that the lapse of thirteen years had afforded a reasonable opportunity for the Kaukauna Water Power Company to have obtained compensation for the damages sustained by the construction of the improve ments. and appurtenances and the articles of personal property. The method by which this arrangement was effected, namely, by a reservation in the deed, was an apt one, and quite as efficacious as if the entire property had been conveyed to the United States by one deed and the reserved properties had been reconveyed to the canal company by another. the authority which owns and controls that navigation. In such matters there can be no divided empire. So far, therefore, as the water powers and appurtenant lots are regarded as property, it is plain that the title of the canal company thereto cannot be controverted; and we think it is equally plain that the mode and extent of the use and enjoyment of such property by the canal company fall within the sole control of the United States. At what points in the dam and canal the water for As previously stated, the state of Wiscon- power may be withdrawn, and the quantity sin, by its act of October 3, 1856, granted which can be treated as surplus with due reand conveyed to the Fox & Wisconsin Im-gard to navigation, must be determined by provement Company all the rights and interest of the state in the improvement, including the water powers created thereby, and, in case the sales of the granted lands should fail to realize a sum sufficient to complete the intended works of improvement and to pay the outstanding indebtedness of the state, and redeem the bonds issued by the company, the state authorized the sale of the water powers created by the said improvements. And, subsequently, by act of March 23, 1871, the state authorized the Green Bay & Mississippi Canal Company, which had become the owner of the entire improvement works, lands, and water powers by purchase at the foreclosure sale, to sell and dispose of the same to the United States. The legal effect and import of the sale and conveyance by the canal company were to vest absolute ownership in the improvement and appurtenances in the United States, which proprietary rights thereby became added to the jurisdiction and control that the United States possessed over the Fox river as a navigable water. By the findings of the arbitrators the sum of three hundred and twenty-five thousand dollars was payable to the canal company, but, by agreement and under the act of Congress of June 10, 1872, the United States consented to the retention by the canal company of certain personal property and of the water powers, with the lots appurtenant thereto, in part payment [80] of the sum at which the entire plant had been appraised; and accordingly, in its deed of conveyance, the company reserved to itself such personal property and the water powers and appurtenances, and the United States paid the remaining sum of one hundred and forty-five thousand dollars. This aspect of the subject was before us in Wisconsin v. Duluth, 96 U. S. 379 [24: 668], where the state of Wisconsin sought, by an original bill in this court, to restrain the city of Duluth from changing the current of the St. Louis river and making other improvements in the city harbor to the detriment, as was claimed, of the harbor of Superior City within the jurisdiction of Wisconsin. It, however, was disclosed that Congress had made large appropriations for the work complained of, and that the executive department had taken *exclusive charge and [81] control of it. The court dismissed the bill, and in its opinion, per Mr. Justice Miller, said: "Nor can there be any doubt that such action is within the constitutional power of Congress. It is a power which has been exercised ever since the government was organized. The only question ever raised has been how far and under what circumstances the exercise of the power is exclusive of its exercise by the states. And while this court has maintained, in many cases, the right of the states to authorize structures in and over the navigable waters of the states, which may either impede or improve their navigation, in the absence of any action of the general government in the same manner, the doctrine has been laid down with unvarying uniformity that when Congress has, by any expression of its will, occupied the field, that action was conclusive of any right to the contrary asserted under state authority." To the same effect is South Carolina v. Georgia, 93 U. S. 4 [23: 782]. The substantial meaning of the transaction Several cases are cited in the briefs for the was, that the United States granted to the canal company the right to continue in the defendants in error, wherein it has been depossession and enjoyment of the water pow-cided by state supreme courts of high auers and the lots appurtenant thereto, subject thority that whatever remains of the stream, to the rights and control of the United States beyond what is wanted for the public imas owning and operating the public works,provement, and which continues to flow over and that the United States were credited the dam and down the original channel of the with the appraised value of the water powers river, belongs to riparian owners upon the stream, in the same manner as if the state dam had not been erected. 2. aside its judgment on the demurrer, and its denial assigned as error on appeal to the highest court of the state. Consequential damage to property by an obstruction in a street is not a deprivation of the property within the constitutional provision against depriving a person of property without due process of law. [No. 48.] vember 28, 1898. Decided No Our examination of the cases so cited has not enabled us to perceive that they are applicable to the present subject. In none of them have we found that, by the state legislation, was there a fund created out of the use of the surplus water, to be expended in the completion and maintenance of the public improvement. As we have seen, the entire legislation, state and Federal, in the present Submitted October 14, 1898. instance, has had in view the dedication of the water powers incidentally created by the dams and canal to raising a fund to aid in the erection, completion, and maintenance of the public works; and, as we have further seen, provision was made in the Federal act of 1875 for the ascertainment and payment of damages, in respect to which this court said, in Kaukauna Water Power Co. v. Green Bay and Mississippi Canal Co. 142 U. [82] S. 279 [35: 1013], that "the terms of this act are broad enough to cover, not only lands taken for flowage purposes, but all injury done to lands or other property by means of any part of the works of said improvement, which would include damages caused by the diversion of the waters." N ERROR to the Supreme Court of Ap Moreover, in the state cases cited by the defendants in error, the question of Federal jurisdiction and control did not arise and was not considered. Other propositions, based on the alleged departure by the supreme court of the state from the case made by the pleadings, were discussed by the counsel for the plaintiff in error; but as the views heretofore stated dispose of the case, it is not necessary for us to consider them. Our conclusion, then, is that, as by the judgment of the supreme court of Wisconsin there was drawn into question the validity of an authority exercised under the United States, to wit, the granting of the said water powers and easement, and the decision was against the validity of such authority, thereby depriving the plaintiff in error of property without due process of law, the judgment of that court must be and is herebyReversed, and the case is remanded to the Supreme Court of Wisconsin for further proceedings not inconsistent with this opinion. ENGELBERT MEYER, Plff. in Err., v. peals of the State of Virginia to review an order of that court denying a writ of error to the law and equity court of the city of Richmond in that state for the review of a judgment of the latter court sustaining a demurrer to the declaration and dismissing an action brought by Engelbert Meyer, plaintiff, against the city of Richmond et al., for damages to plaintiff's property by ob structions in the street. Affirmed. Statement by Mr. Justice McKenna: *This is a common-law action of trespass [83] on the case, and was brought by plaintiff in error against the defendants in error in one of the nisi prius courts of the state of Virginia. The substance of the plaintiff's declaration is as follows: That he was the owner in fee of a lot of land fronting on Eighth street between Cary and Canal streets, on which were *located two [84] brick buildings, the first floor of which was used for store purposes and the second story as dwellings; that said property, previous to the obstruction of Eighth street, as hereinafter described, was very profitable as an investment, being continuously rented to good tenants, who promptly paid remunerative rents for the same; that on the 25th day of June, 1886, the city council of Richmond by ordinance, authorized the Richmond & Alleghany Railway Company to obstruct for the distance of sixty feet (commencing at Canal street in the direction of Cary street) Eighth street, and by virtue of which said railway company wholly obstructed and occupied said street for said distance with its tracks, sheds, fences, etc., except to pedestrians, for whom said company was required to provide by overhead bridge and stairway approaches thereto. It was averred in said declaration that by means of this obstruction CITY OF RICHMOND and Chesapeake & so made by said company by authority of Ohio Railway Company. (See S. C. Reporter's ed. 82-101.) Federal right, when sufficiently set up-consequential damage to property is not a deprivation of the property. 1. A Federal right is sufficiently set up in a claimed in a declaration as to be decided in passing on a demurrer. where it is presented subsequently by a motion to the court to set state court, although it is not so set up or said city, travel along said street was arrested and the property rights of your petitioner, as an abutter upon said street, were not only substantially injured, but practically destroyed; that the city had no right under the Constitution and laws of the land to authorize the said railroad company to close said street or place obstructions therein without proper legal proceedings for that purpose and the making of just compensation to such abutting owners as might be injured by said action; that this unconstitutional and illegal action rendered said defendants | closing of said street as claimed by said deliable to your petitioner, as trespassers on fendants; but the court overruled said mohis property, for all damages that he had tion and refused to grant said motion and to sustained not common to the public; that set aside said judgment; to which action of. the obstructions were in themselves nui- the court the plaintiff excepted and filed his sances which the city was charged with the bill of exception, which was signed, sealed, duty of abating and moving, and that every and enrolled, and made a part of the record." day's continuation of the same was a new offense; that the rights, privileges, and obligations of said Richmond & Alleghany Railway Company had been legally transferred to and assumed by said Chesapeake & Ohio Railway Company, and that it, the said lastnamed company, now maintained the said obstructions and was therefore liable, jointly with said city of Richmond, for the said trespasses. A plat of the locus in quo and a copy of said ordinance were made parts of said declaration. [85] *Damages were claimed in the sum of five thousand dollars. On the 9th of September, 1895, the defendants entered a general demurrer to the whole declaration and each count thereof, in which the plaintiff joined, and on the 27th of December, 1895, the court sustained the demurrer and gave judgment for the defendants, dismissing the action. And thereupon the plaintiff, by counsel, moved the court to set "aside the said judgment and enter judgment for him on said demurrer, and it being represented to the court that it is the intention of the plaintiff in the case of H. Wythe Davis against the city of Richmond and the Chesapeake & Ohio Railway Company to apply for a writ of error to the judgment of this court entered this day in that cause, and the questions involved in that case being the same as in this case, the court takes time to consider of said motions, and by consent of parties this case is retained on the docket of this court, and the determination of said motions to await the result of the application for a writ of error in the case of H. Wythe Davis against the city of Richmond and the Chesapeake & Ohio Railway Company." On the 31st day of January, 1896, the following proceedings were had: "This day came the parties again, by their attorneys, and the court, being now advised of its judgment to be rendered herein, on the motion of the plaintiff to set aside the judgment rendered on the demurrer to the plaintiff's declaration and to each count thereof, doth refuse to set aside said judgment. "And thereupon the plaintiff again moved the court to set aside said judgment entered on the 27th day of December, 1895, sustaining defendant's demurrer to the declaration and to each count thereof, solely on the ground that the act of the general assembly of Virginia, approved May 24, 1870, providing a charter for the city of Richmond (Acts 1869-70, p. 120), so far as it authorized the passage of the ordinance in the declaration mentioned, as well as said ordinance, is unconstitutional and void, because in conflict with the Fourteenth Amendment of the Constitution of the United States, which prohib[86] its any state from depriving any person of property without due process of law, and therefore there was no warrant of law for the The plaintiff then presented a petition to the supreme court of appeals of Virginia, the court of last resort of that state, asking for a writ of error to said judgment, but said court rejected the petition by the following order: Virginia: In the Supreme Court of Appeals held in the State Library Building, in the city of Richmond, on Thursday, February 20th, 1896. The petition of Engelbert Meyer for a writ of error from a judgment rendered by the law and equity court of the city of Richmond on the 31st day of January, 1896, in a suit in which the petitioner was plaintiff and the city of Richmond and the Chesapeake & Ohio Railway Company were defendants, having been maturely considered and the transcript of the record of the judgment aforesaid seen and inspected, the court being of opinion that said judgment is plainly right, doth reject said petition. The case is here on error to this order. "Your petitioner now insists that the said "That under the Constitution and laws of this state the free and uninterrupted use of public highways once dedicated to and accepted by the public or acquired by right of eminent domain are for continuous public use, and that the right of access to and use [87] of such streets by an abutting property holder is property of which the owner cannot under the Federal Constitution be deprived without due process of law. "The said law and equity court in sustaining the said demurrer denied to your petitioner his constitutional rights, and specially so did it in refusing to set aside its judg ment when its attention was called to the unconstitutionality of the act of the general assembly of Virginia approved May 24, 1870 (Acts 1869-70, p. 120), so far as it au thorized the passage of the ordinance in the declaration mentioned, because in conflict with the Fourteenth Amendment, which prohibits any state from depriving any person of property without due process of law, there being no mode prescribed in said act of the general assembly or in said ordinance for the devesting him of his said property rights by any judicial proceedings whatsoever." The following is a copy of the diagram showing plaintiff's property and the obstructions complained of: |