Ing fact; it is an invitation to the company to do the work; and when, in pursuance of that invitation, and under authority given by the state of Pennsylvania, the company has constructed the lock and dam, it does not lie in the power of the state or the United States to say that such lock and dam are an obstruction, and wrongfully there, or that the right to compensation for the use of this improvement by the public does not belong to its owner, the navigation company.

Upon what does the right of congress to interfere in the matter rest? Simply upon the power to regulate commerce. This is one of the great powers of the national government, one whose existence and far-reaching extent have been affirmed again and again by this court in its leading opinions, and the power of congress over such natural highways as navigable streams is confessedly supreme. See, among the various cases in which this supremacy has been affirmed: Gilman v. Philadelphia, 3 Wall. 725; County of Mobile v. Kimball, 102 U. S. 691, 696; Bridge Co. v. U. S., 105 U. S. 482; Miller v. Mayor, etc., 109 U. S. 392, 3 Sup. Ct. Rep. 228; Wisconsin v. Duluth, 96 U. S. 379; Bridge Co. v. Hatch, 125 U. S. 1, 8 Sup. Ct. Rep. 811. In Wisconsin v. Duluth (page 383) it was said: "It is to be observed, as preliminary to an examination of the acts of the general government in the special matter before us, that the whole system of river and lake and harbor improvements, whether on the seacoast or on the lakes or the great navigable rivers of the interior, has for years been mainly under the control of that government, and that, whenever it has taken charge of the matter, its right to an exclusive control has not been denied. * 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 state, which may either impede or improve their navigation, in the absence of any action of the general government in the same matter, 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. The adjudged cases in this court on this point are numerous."

And in Bridge Co. v. Hatch, 125 U. S. 12, 8 Sup. Ct. Rep. 817, the proposition was thus stated: "And although, until congress acts, the states have the plenary power supposed, yet, when congress chooses to act, it is not concluded by any thing that the states, or that individuals by its authority or acquiescence, have done, from assuming entire control of the matter, and abating any erections that may have been made, and preventing any others from being made, except in conformity with such regulations as it may impose." It cannot be doubted, in view of the long list of authorities,-for many more might be cited,-that congress has the power,

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in its discretion, to compel the removal of this lock and dam as obstructions to the nav igation of the river, or to condemn and take them for the purpose of promoting its navigability. In other words it is within the competency of congress to make such provision respecting the improvement of the Monongahela river as in its judgment the public interests demand. Its dominion is supreme. But, like the other powers granted to congress by the constitution, the power to regulate commerce is subject to all the limitations imposed by such instrument, and among them is that of the fifth amendment, we have heretofore quoted. Congress has supreme control over the regulation of commerce, but if, in exercising that supreme control, it deems it necessary to take private property, then it must proceed subject to the limitations imposed by this fifth amendment, and can take only on payment of just compensation. The power to regulate commerce is not given in any broader terms than that to establish post offices and post roads; but, if congress wishes to take private property upon which to build a post office, it must either agree upon the price with the owner, or in condemnation pay just compensation therefor. And if that property be improved under authority of a charter, granted by the state, with a franchise to take tolls for the use of the improvement, in order to determine the just compensation such franchise must be taken into account. Because congress has power to take the property it does not follow that it may de stroy the franchise without compensation. Whatever be the true value of that which it takes from the individual owner must be paid to him before it can be said that just compensation for the property has been made. And that which is true in respect toa condemnation of property for a post office is equally true when condemnation is sought for the purpose of improving a natural highway. Suppose, in the improvement of a navigable stream, it was deemed essential to construct a canal with locks, in order to passaround rapids or falls. Of the power of congress to condemn whatever land may be necessary for such canal there can be noquestion, and of the equal necessity of paying full compensation for all private property taken there can be as little doubt. If a man's house must be taken, that must be paid for; and, if the property is held and improved under a franchise from the state, with power to take tolls, that franchise must be paid for, because it is a substantial element in the value of the property taken. So, coming to the case before us, while the power of congress to take this property isunquestionable, yet the power to take is subject to the constitutional limitation of just compensation. It should be noticed that here there is unquestionably a taking of the property, and not a mere destruction. It is not a case in which the government requires the

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removal of an obstruction. What differences would exist between the two cases, if any, it is unnecessary here to inquire. All that we need consider is the measure of compensation when the government, in the exercise of its sovereign power, takes the property.

And here it may be noticed that, after takIng this property, the government will have the right to exact the same tolls the navigation company has been receiving. It would seem strange that if, by asserting its right to take the property, the government could strip it largely of its value, destroying all that value which comes from the receipt of tolls, and having taken the property at this reduced valuation, immediately possess and enjoy all the profits from the collection of the same tolls. In other words, by the contention this element of value exists before and after the taking, and disappears only during the very moment and process of takAng. Surely, reasoning which leads to such a result must have some vice, at least the vice of injustice.

Much reliance is placed upon the case of Bridge Co. v. U. S., 105 U. S. 470. But that was a case not of the taking, but of the -destruction, of property. It is true, Mr. Chief Justice Waite, in delivering the opinion of the court, uses this language in reference to the power of congress: "But the power of congress in respect to legislation for the preservation of interstate commerce is just as free from state interference as any other subject within the sphere of its legislative authority. The action of congress is supreme, and overrides all that states may do. When, therefore, congress in a proper way declares a bridge across a navigable river of the United States to be an unlawful structure, no legislation of a state can make it lawful. Those who act on state authority alone necessarily assume all the risks of legitimate congressional interference." But - such affirmation of power was not made with reference to a question like this. The facts in that case were these: The bridge company was a creature of the legislation of the states of Ohio and Kentucky, and incorporated to build a bridge across the Ohio river, between Newport and Cincinnati. The state charters authorized the construction of a bridge in accordance with the provisions of an act of congress of July 14, 1862, or any act that congress might pass on the subject. On March 3, 1869, congress passed a resolution giving its assent to the construction of this bridge. This resolution contained this reservation: "But congress reserves the right to withdraw the assent hereby given in case the free navigation of said river shall at any time be substantially and materially obstructed by any bridge to be erected under the authority of this resolution, or to direct the necessary modifications and alterations of said bridge." 15 St. p. 347. After the passage of this resolution the company commenced the erection of a drawbridge, and

expended a large amount of money in the undertaking. Before, however, the bridge was finished, congress passed an act-the act of March 3, 1871 (16 St. p. 572)-requiring a high bridge. The act provided that, upon the bridge company making the changes required by the act, it might file its bill in the circuit court of the United States for the southern district of Ohio, to have determined whether the bridge had been constructed theretofore, so far as the work had progressed, in accordance with the provisions of law then in existence; and, second, the liability of the United States, if any there was, by reason of the changes. The suit was brought, and on appeal to this court, by four to three, Mr. Justice Matthews taking no part in the decision, the court held that the government was not liable for any damages. The case turned in the judgment of the majority mainly upon the resolution of March 3, 1869, heretofore quoted. In the early part of the opinion (page 475) the chief justice says: "No question can arise in this case upon what the states have done, for both Ohio and Kentucky required the company to comply with the regulations of congress. Neither are we called on to determine what would have been the rights of the company if, in the original license, no power of future control by congress had been reserved." He then proceeds to consider at some length the peculiar language of that reservation. Under it, as he says, congress had the right to withdraw assent, which was equivalent to a positive enactment that a further maintenance of the bridge, as at first planned and partially constructed, was unlawful, and the mere exercise of its power under this reservation to declare the proposed structure unlawful did not expose the government to any liability for damages. We quote fully the expression of views on this subject:

"It is next insisted that if, in the judgment of congress, the public good required the bridge to be removed, or alterations to be made in its structure, just compensation must be made the company for the loss incurred by what was directed. It is true that one cannot be deprived of his property without due process of law, and that private property cannot be taken for public use without just compensation.

"In the present case the bridge company asked of congress permission to erect its bridge. In response to this request permission was given, but only on condition that it might be revoked at any time if the bridge is found to be detrimental to navigation. This condition was an essential element of the grant, and the company, in accepting the privileges conferred by the grant, assumed all risks of loss arising from any exercise of the power which congress saw fit to reserve. What the company got from congress was the grant of a franchise, expressly made defeasible at will, to maintain a bridge across one of the great highways of coin

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merce. This franchise was a species of property, but from the moment of its origin its continued existence was dependent on the will of congress, and this was declared in express terms on the face of the grant by which it was created. In the use of the franchise thus granted the company might, and, It was expected, would, acquire property. The property thus acquired congress could not appropriate to itself by a withdrawal of its assent to the maintenance of the bridge that was to be built, but the franchise, by express agreement, was revocable whenever, in the judgment of congress, it could not be used without substantial and material detriment to the interests of navigation. A with drawal of the franchise might render property acquired on the faith of it, and to be used in connection with it, less valuable; but that was a risk which the company voluntarily assumed when it expended its money under the limited license which alone congress was willing to give. It was optional with the company to accept or not what was granted, but, having accepted, it must submit to the control which congress, in the legitimate exercise of the power that was reserved, may deem it necessary for the common good to insist upon."

It is evident, therefore, that the point deCed was that congress had reserved the right to withdraw its assent to the construction of a bridge on the plan proposed, when ever, in its judgment, such bridge should become an obstruction to the navigation; that the bridge company entered upon the construction of the bridge in the light of this express reservation, and with the knowledge that congress might at any time declare that the bridge constructed as proposed was an obstruction to navigation; and that congress, exercising this reserved power, did not thereby subject the government to any liability for damages. There was no taking of private property for public uses; and while the company may have been deprived of property, it was deprived by due process of law, because deprived under authority of an express reservation of power. Even this conclusion was reached with strong dissent, Mr. Justice Miller, Mr. Justice Field, and Mr. Justice Bradley dissenting, and each writing a separate opinion. And these opinions only make more clear the fact that the case was rested in the judgment of the majority on the effect of the reservation.

In the case at bar there is no such reservation; there is no attempt to destroy property; there is simply a case of the taking by the government, for public uses, of the private property of the navigation company. Such an appropriation cannot be had without just compensation; and that, as we have seen, demands payment of the value of the property as it stands at the time of taking.

The theory of the government seems to be that the right of the navigation company to have its property in the river, and the fran

chises given by the state to take tolls for the use thereof, are conditional only, and that whenever the government, in the exercise of its supreme power, assumes control of the river, it destroys both the right of the company to have its property there and the franchise to take tolls. But this is a misconception. The franchise is a vested right. The state has power to grant it. It may retake it, as it may take other private property, for public uses, upon the payment of just compensation. A like, though a superior, power exists in the national government. It may take it for public purposes, and take it even against the will of the state; but it can no more take the franchise which the state has given than it can any private property belonging to an individual.

Notice to what the opposite view would lead: A railroad between Columbus, Ohio, and Harrisburg, Pa., is an interstate highway, created under franchises granted by the two states of Ohio and Pennsylvania; franchises not* merely to construct, but to take tolls for the carrying of passengers and freight. In its exercise of supreme power to regulate commerce, congress may condemn and take that interstate highway, but in the exercise of that power, and in the taking of such property, may it ignore the franchises to take tolls, granted by the states, or must it not rather pay for them, as it pays for the rails, the bridges, and the tracks? The question seems to carry its own answer. It may be suggested that the cases are not parallel, in that in the present there is a natural highway, while in that suggested, it is wholly artificial. But the power of congress is not determined by the character of the highway. Nowhere in the constitution is there given power in terms over highways, unless it be in that clause to establish post offices and post roads. The power which congress possesses in respect to this taking of property springs from the grant of power to regulate commerce, and the regulation of commerce implies as much control, as farreaching power, over an artificial as over a natural highway. They are simply the means and instrumentalities of commerce, and the power of congress to regulate commerce carries with it power over all the means and instrumentalities by which commerce is carried on. There may be differences in the modes and manner of using these different highways, but such differences do not affect or limit that supreme power of congress to regulate commerce, and in such regulation to control its means and instrumentalities. We are so much accustomed to see artificial 'ighways, such as common roads, turnpike roads, and railroads, constructed under the authority of the states, and the improvement of natural highways carried on by the general government, that at the first it might seem that there was some inherent difference in the power of the national government over them. But the grant of power

is the same. There are not two clauses of the constitution, each severally applicable to a different kind of highway. The fee of the soil in neither case is in the general government, but in the state or private individuals. The differences between the two are in their origin; nature provides the one, man establishes the other. *Mr. Justice Bradley, delivering the opinion of the court in Railroad Co. v. Maryland, 21 Wall. 456, 470, referred to this matter in these words: "Commerce on land between the different states is so strikingly dissimilar, in many respects, from commerce on water, that it is often difficult to regard them in the same aspect in reference to the respective constitutional powers and duties of the state and federal governments. No doubt commerce by water was principally in the minds of those who framed and adopted the constitution, although both its language and spirit embrace commerce by land as well."

It is also suggested that the government does not take this franchise; that it does not need any authority from the state for the exaction of tolls, if it desires to exact them; that it only appropriates the tangible property, and then either makes the use of it free to all, or exacts such tolls as it sees fit, or transfers the property to a new corporation of its own creation, with such a franchise to take tolls as it chooses to give. But this franchise goes with the property; and the navigation company, which owned it, is deprived of it. The government takes it away from the company, whatever use it may make of it; and the question of just compensation is not determined by the value to the government which takes, but the value to the individual from whom the property is taken; and when by the taking of the tangible property the owner is actually deprived of the franchise to collect tolls, just compensation requires payment, not merely of the value of the tangible property itself, but also of that of the franchise of which he is deprived.

Another contention is this: First, that the grant of right to the navigation company was a mere revocable license; secondly, that if it was not there was a right in the state to alter, amend, or annul the charter; and, thirdly, that there was by the eighteenth section thereof reserved the right at any time after 25 years from the completion of the improvement to purchase the entire improvement and franchise by paying the original cost, together with 6 per cent. interest thereon, deducting dividends theretofore declared and paid, a provision changed by section 8 of the act of June 24, 1839, so as to require a payment of the expenses incurred in constructing and making repairs, with 8 per cent. per annum interest. But little need be said in reference to this line of argument. We do not understand that the supreme court of Pennsylvania has ever ruled that a grant like this is a mere revocable license. The

cases referred to by counsel are those in which there was simply a permit; but here there was a chartered right created,-the right not merely to improve the river, but to exact tolls for the use of the improvement; and such right, created by an act of incorporation, as long ago settled in this court in Dartmouth College Trustees v. Woodward, 4 Wheat. 518, is a contract which cannot be set aside by either party to it.

Again, the state has never assumed to exercise any rights reserved in the charter, or by any supplements thereto. So far as the state is concerned, all its grants and franchises remain unchallenged and undisturbed in the possession of the navigation company. The state has never transferred, even if it were possible for it to do so, its reserved rights to the United States government, and the latter is proceeding not as the assignee, successor in interest, or otherwise, of the state, but by virtue of its own inherent supreme power. What the state might or might not do is not here a matter of question, though doubtless the existence of this reserved right to take the property upon certain specified terms may often, and perhaps in the present case, materially affect the question of value. And, finally, there is no suggestion on the part of congress, and no proffer in these proceedings, of payment under the terms of the charter and supplementary act of 1839, and no attempt to ascertain the amount which would be due to the company in accordance therewith.

These are all the questions presented in this case. Our conclusions are, that the navigation company rightfully placed this lock and dam in the Monongahela river; that with the ownership of the tangible property, legally held in that place, it has a vested franchise to receive tolls for its use:, that such franchise was as much a vested right of property as the ownership of the tangible property; that the right of the national government, under its grant of power to regulate commerce, to condemn and appropriate this lock and dam belonging to the navigation company, is subject to the limitations imposed by the fifth amendment, that private property shall not be taken for public uses without just compensation; that just compensation requires payment for the franchise to take tolls, as well as for the value of the tangible property; and that the assertion by congress of its purpose to take the property does not destroy the state franchise.

The judgment, therefore, will be reversed, and the case remanded, with instructions to grant a new trial.

Mr. Justice SHIRAS having been of counsel, and Mr. Justice JACKSON not having been a member of this court at the time of the argument, took no part in the consideration and decision of this case.

PUBLIC LANDS-HOMESTEAD ENTRIES-DISQUALIFICATION-OPENING OF OKLAHOMA LANDS.

1. In the act of March 1, 1889, (25 St. at Large, p. 757,) relating to the opening to settlement of certain Oklahoma lands, and in the Indian appropriation act of the subsequent day, (25 St. at Large, p. 980,) the provisions that any person who, prior to the time the lands are opened, "may enter upon any part of said lands," (as stated in the former act,) and "enter upon and occupy the same," (as declared in the latter,) shall never be permitted to enter any of said lands or acquire any right thereto, were applicable to the body of said lands as a whole, and not to the particular tracts which claimants desired to enter; and the disqualification therefore attached to any person who was within the boundaries of said lands prior to 12 o'clock on April 22, 1889, when the same were opened by proclamation of the president, and who attempted to make an entry without first departing therefrom. 29 Pac. Rep. 80, affirmed.

2. The fact that a person was in the employ of the railroad company whose road runs through the lands in question, and was located on its right of way prior to and at the time when the lands were opened, gave him no right superior to that of others; and he was not qualified to make an entry by simply removing from the right of way and occupying lands outside thereof, immediately after the land became subject to entry. 29 Pac. Rep. 80, affirmed.

Appeal from the supreme court of the territory of Oklahoma. Affirmed.

Statement by Mr. Justice BREWER: *On April 30, 1891, the appellant filed his complaint in the district court of Oklahoma county, territory of Oklahoma. In this complaint he alleged his citizenship, and full qualification to enter public lands under the homestead laws of the United States. That during the years 1888 and 1889 the Atchison, Topeka & Santa Fe Railroad Company was engaged in operating a railroad through the Indian Territory, having a right of way therein, granted by treaty with the Indians and acts of congress. That during those years he was employed as a section hand by said company, and resided in a station house belonging to it, on the right of way, at a place known as "Edmond Station." That he entered into the employment of the railroad company, and continued in such employment, and commenced living at said Edmond Station, without any intent to take lands within the Indian Territory, but solely to discharge his duties as an employe of the company. That when the lands surrounding said station were open to settlement under the acts of congress of March 1 and 2, 1889, and the proclamation of the president of March 23, 1889, plaintiff was at said Edmond Station, and on said right of way, and soon after the hour of noon on April 22, 1889, went upon the land in controversy, and settled upon it as his homestead, and with the intention to occupy and enter it as his homestead under the laws of the United

States. That pursuant to such intention he built a house thereon, and otherwise improved the premises, and dwelt upon it ashis home, and on April 23, 1889, duly made an entry at the proper land office at Guthrie, Ind. T. That on the 22d of June, 1889, the defendant filed in the local land office a contest, which contest was heard in such land office on the following statement of facts:

"Alexander F. Smith had been for a long time prior to March 2, 1889, in the employ of the A., T. & S. F. R. R. Co. as a section hand, and on January 30, 1889, came to Edmond, Oklahoma territory, in that capacity, bringing his family with him. He did not enter the territory with the expectation or intention of taking land in the Oklahoma territory. He remained in the employ of the railroad company until noon of April 22,, 1889, Santa Fe R. R. time, when he removed his tent to a point about one hundred and fifty yards distant from the right of way of said railroad, and on the land in controversy, where he put it up, and moved into it. From January 30, 1889, Smith lived with his family in his tent on the right of way of the A., T. & S. F. R. R., where it passes through the land in controversy. Prior to April 22, 1889, Smith had indicated his intention to take the land in controversy by stating the fact to his fellow workmen, but had done no act towards carrying out said intention. A notice was posted at the station of Edmond by A., T. & S. F. R. R. Co., warning all employes that if they expected to take land they must leave the Oklahoma country, and this fact was called to Smith's notice. Smith has, since noon of April 22, 1889, continued to reside upon, cultivate, and improve said land, in good faith, as a homestead, and now has improvements thereon. Smith is a legally qualified homesteader, unless excluded by reason of his being in the Oklahoma country prior to April, 1889. Smith is at present in the employ of the A., T. & S. F. R. R. Co., and has been most of the time since April 22, 1889."

That on the trial of said contest the local land officers decided in plaintiff's favor, but on appeal to the commissioner of the land office he reversed their decision, which ruling of the commissioner was subsequently affirmed by the secretary of the interior; and on February 28, 1891, plaintiff's homestead entry was canceled; and that the defendant, on March 12, 1891, made a homestead entry of the land, which homestead entry was, on the 30th day of April, 1891, commuted, the land paid for at a dollar and a quarter per acre, and a final receipt issued therefor. Plaintiff claims that there was error of law in the ruling of the commissioner of the land office and of the secretary of the interior, and prays that the defendant be decreed to hold the legal title to the land in trust for his use and benefit. To this bill of com