« ForrigeFortsett »
Opinion of the Court.
has, under direct legislative authority, adopted a reasonable and suitable plan to accomplish that object. That plan requires the enlarging and deepening of the channel of a natural watercourse running through the District, which is the only natural outlet or way of drainage of the lands of the Districtthe best and only practicable mode by which the lands can be made tillable. But that plan cannot be carried out unless the timbers and stones in the creek-placed there by the railway company when it constructed the foundation for its present bridge-are removed. The timber and stones referred to cannot, however, be removed without destroying the foundations of the present bridge and rendering it necessary (if the railway company continues to operate its road, which we assume it intends to do) to construct another bridge with an opening underneath wide enough to permit a channel sufficient to carry off the water of the creek as increased in volume under the drainage system adopted by the Commissioners.
200 U. S.
The contention of the railway company is that, as its present bridge was lawfully constructed, under its general corporate power to build, construct, operate and maintain a railroad, in the county and township aforesaid, and as the depth and width of the channel under it were sufficient, at the time, to carry off the water of the creek as it then flowed, and now flows-the foundation of the bridge cannot be removed and its use of the bridge disturbed, unless compensation be first made or secured to it in such amount as will be sufficient to meet the expense of removing the timbers and stones from the creek and of constructing a new bridge of such length and with such opening under it as the plan of the Commissioners requires. The company insists that to require it to meet these expenses out of its own funds will be, within the meaning of the Constitution, a taking of its property for public use without compensation, and, therefore, without due process of law, as well as a denial to it of the equal protection of the laws.
The importance of these questions will justify a reference to some of the adjudged cases; referring first to those recog
Opinion of the Court.
nizing the distinction between an incidental injury to rights of private property resulting from the exercise of governmental powers, lawfully and reasonably exerted for the public good, and the taking, within the meaning of the Constitution, of private property for public use.
In Transportation Co. v. Chicago, 99 U. S. 635, 642, which involved a claim for damages directly resulting from the construction by the city of Chicago of a tunnel under Chicago River, whereby for a very long time the plaintiff was prevented from using its dock and other property for purposes of its business; in Mugler v. Kansas, 123 U. S. 623, 669, which related in part, to the lawful prohibition by the State of the use of private property in a particular way, whereby its value was materially diminished, if not practically destroyed; in N. Y. & N. E. Railroad Co. v. Bristol, 151 U. S. 556, 567, 571, which involved the question whether a railroad company could be required, at its sole expense, to remove a grade crossing which it had lawfully established and used and to establish another crossing at a different place; in Chicago, Burlington & Quincy R. R. Co. v. Chicago, 166 U. S. 226, 252, in which one of the questions was whether it was a condition of the exercise by the State of its authority to regulate the use of property, owned by individuals or corporations, that the owner should be indemnified for the damage or injury resulting from the exercise of such authority for legitimate public purposes; in Gibson v. United States, 166 U. S. 269, 271, 276, in which the owner of a farm on an island in the Ohio River, at which there was a landing, sought to recover compensation for the injury done to the farm by reason of the construction by the United States of a dike for the purpose of concentrating the waterflow in the main channel of the river; and in Scranton v. Wheeler, 179 U. S. 141, 164, which involved the question whether the United States was required to compensate an owner of land fronting on a public navigable river, when his access from the shore to the navigable part of such river was permanently obstructed by a pier erected in the river under
200 U. S.
Opinion of the Court.
the authority of Congress for the purpose of improving navigation;-in each of those cases, this court recognized the principle that injury may often come to private property as the result of legitimate governmental action, reasonably taken for the public good and for no other purpose, and yet there will be no taking of such property within the meaning of the constitutional guarantee against the deprivation of property without due process of law, or against the taking of private property for public use without compensation. To this class belongs the recent, and as we think, decisive case of New Orleans Gas Light Co. v. Drainage Commission, 197 U. S. 453, to be hereafter adverted to in another connection. In this class may also be placed Mills v. United States, 46 Fed. Rep. 738. That was the case of an improvement by the United States of the navigation of Savannah River, which resulted in so raising the water in that river as to make it impossible to prevent the flooding of adjacent rice fields that were ordinarily and naturally drained into the river, and rendering it necessary that expense be incurred in order to provide new drainage from those fields into a back river, where the water levels were suitable. In commenting upon that case, this court said, in United States v. Lynah, 188 U. S. 445: "Obviously there was no taking of the plaintiff's lands, but simply an injury which could be remedied at an expense, as alleged, of $10,000, and the action was one to recover the amount of this consequential injury. The court rightfully held that it could not be sustained." See also Bedford v. United States, 192 U. S. 217, and Manigault v. Springs, 199 U. S. 473.
We refer also, as having direct application here, to some of the cases, familiar to the profession, that recognize the possession by each State of the power, never surrendered to the Government of the Union, of guarding and promoting the public interests by reasonable police regulations that do not violate the constitution of the State or the Constitution of the United States. Gibbons v. Ogden, 9 Wheat. 1; Railroad Co. v. Husen, 95 U. S. 465, 472; Patterson v. Kentucky, 97 U. S.
501, 503; Morgan v. Louisiana, 118 U. $. 455, 464; Henningtom va Georgia, 163 U. S. 299, 308, 309; N. Y, N. H. & H.
& Railroad Co. v. New York, 165 U. S. 628, 631.
We assume that the drainage statute in question is entirely consistent with the constitution of Illinois. It is so regarded by the Supreme Court of the State, and that is all-sufficient in this case. We assume, also, without discussion--as from the decisions of the state court we may properly assume that the drainage of this large body of lands so as to make them fit for human habitation and cultivation, is a public purpose, to accomplish which the State may by appropriate agencies exert the general powers it possesses for the common good. By the removal of water from large bodies of land, the state court has said, and by “the subjection of such lands to cultivation they are made to bear their proper proportionate burden to the support of the inhabitants and commerce of the State. Their value is increased, and thereby their contribution in taxes to the state and local governments is increased.” C., B. & Q. Ry. Co. v. The People, 212 Illinois, 103, 119. It is conceded that this public purpose cannot be certainly and effectively attained except through the plan adopted by the Drainage Commissioners. Further, the regulations against which the railway company invokes the Constitution have a real, direct, and obvious relation to the public objects sought to be accomplished by them; in no sense are they arbitrary or unreasonable. Indeed, it is admitted that the plan of the Commissioners is appropriate and the best that can be devised for draining the lands in question. But the railway company, in effect, if not in words, insists that the rights which it asserts in this case are superior and paramount to any that the public has to use the watercourse in question for the purpose of draining the lands in its vicinity, although such watercourse was in existence, for the benefit of the public, long before the railway company constructed its bridge. This contention cannot, however, be sustained, except upon the theory that the acquisition by the railway company of a right of way through the lands in
question, and the construction on that right of way of a bridge across Rob Roy Creek at the point in question, carried with it a surrender by the State of its power, by appropriate agencies, to provide for such use of that natural watercourse as might subsequently become necessary or proper for the public interests. If the State could part with such a power, held in trust for the public—which is by no means aclmitted—it has not done so in any statute either by express words or by necessary implication. When the railway company laid the foundations of its bridge in Rob Roy Creek it did so subject to the rights of the public in the use of that watercourse, and also subject to the possibility that new circumstances and future public necessities might, in the judgment of the State, reasonably require a material change in the methods used in crossing the creek with cars. It may be—and we take it to be true—that the opening under the bridge as originally constructed was sufficient to pass all the water then or now flowing through the creek. But the duty of the company, implied in law, was to maintain an opening under the bridge that would be adequate and effectual for such an increase in the volume of water as might result from lawful, reasonable regulations established by appropriate public authority from time to time for the drainage of lands on either side of the creek. Angell on Watercourses, 6th ed. 640, $ 4650.
The Supreme Court of Illinois said in this case: “The right of drainage through a natural watercourse or a natural waterway is a natural easement appurtenant to the land of every individual through whose land such natural watercourse runs, and every owner of land along such watercourse is obliged to take notice of the natural easement possessed by other owners along the same watercourse." Again, in the same case: “Where lands are valuable for cultivation, and the country, as this, depends so much upon agriculture, the public welfare demands that the lands shall be drained, and in the absence of any constitutional provision in relation to such laws they have been sustained, upon high authority, as the exercise of the