There was a waiver of notice by appear ance. 142; St. Louis G. & Ft. S. R. Co. v. Missouri, | Michigan C. R. Co. 90 Mich. 385, 51 N. W. 156 U. S. 478, 39 L. ed. 502, 15 Sup. Ct. Rep. 447; Commissioner of Parks v. Chicago, 443; Wilson v. North Carolina, 169 U. S. D. & C. G. T. Junction R. Co. 91 Mich. 586-595, 42 L. ed. 865, 18 Sup. Ct. Rep. 435; 292, 51 N. W. 934; Flint & P. M. R. Co. v. St. Paul, M. & M. R. Co. v. St. Paul & N. P. Detroit & B. C. R. Co. 64 Mich. 370, 31 N. W. R. Co. 15 C. C. A. 167, 32 U. S. App. 372, 281; People v. Detroit, G. H. & M. R. Co. 79 68 Fed. 11. Mich. 474, 7 L. R. A. 717, 44 N. W. 934; New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 38 L. ed. 269, 14 Sup. Ct. Rep. 437; Chicago & N. W. R. Co. v. Chicago, 140 Ill. 317, 29 N. E. 1109; Chariotte, C. & A. R. Co. v. Gibbes, 142 U. S. 386, 35 L. ed. 1051, 12 Sup. Ct. Rep. 255; Maine C. R. Co. v. Waterville & F. R. & Light Co. 89 Me. 328, 36 Atl. 453; Fitchburg R. Co. v. Grand Junction R. & Depot Co. 4 Allen, 198; Pittsburg & C. R. Co. v. South-west Pennsylvania R. Co. 77 Pa. 173; State use of School Fund v. Wabash, St. L. & P. R. Co. 83 Mo. 144. 2 Lewis, Em. Dom. § 379; East Saginaw & St. C. R. Co. v. Benham, 28 Mich. 459; Dunning v. Township Drain Comr. 44 Mich. 519, 7 N. W. 239; Soller v. Brown Twp. 67 Mich. 422, 34 N. W. 888. Railroad corporations may be compelled to adopt such appliances and make such additions or changes in their works or property, and take such precautions, as are necessary to the public safety. New York & N. E. R. Co. v. Bristol, 151 U. S. 566, 38 L. ed. 272, 14 Sup. Ct. Rep. 437; New York & N. E. R. Co.'s Appeal, 58 Conn. 532, 20 Atl. 670. The rule of no additional servitude is restricted to the case where the street railroad is within the corporate limits of a city and used solely for carrying passengers. Taylor v. Bay City Street R. Co. 80 Mich. 77, 45 N. W. 335; Detroit City R. Co. v. Mills, S5 Mich. 634, 48 N. W. 1007; Nichols v. Ann Arbor & Y. Street R. Co. 87 Mich. 361, 16 L. R. A. 371, 49 N. W. 538; Booth, Street Railways, §§ 54, 222, 231; Hannah v. Metropolitan Street R. Co. 81 Mo. App. 78; Southern R. Co. v. Atlanta R. & Power Co. 111 Ga. 679, 51 L. R. A. 125, 36 S. E. 873; La Crosse City R. Co. v. Higbee, 107 Wis. 389, 51 L. R. A. 923. This order of the railroad commissioner is a simple and just exercise of the police power of the state, delegated to him by the legis lature. Pearsall v. Great Northern R. Co. 161 U. S. 646-565, 40 L. ed. 838-844, 16 Sup. Ct. Rep. 705; Gladson v. Minnesota, 166 U. S. 427, 430, 41 L. ed. 1064, 1066, 17 Sup. Ct. Rep. 627: Chicago & N. W. R. Co. v. Chicago, 140 III. 309, 29 N. E. 1109-1111; Chicago, M. & St. P. R. Co. v. Milwaukee, 97 Wis. 418, 72 N. W. 1118; Tiedeman, Pol. Power, §§ 179, 194; Booth, Street Railways, 220-226; Joyce, Electric Law, § 477. See also Elliott, Roads and Streets, 2d ed. § 459. It is entirely competent for the legislature to require of corporations every reasonable and expedient change in the method of operating their roads and conducting their business, which may be necessary to promote the security, convenience, and comfort of the public; and the expense may be imposed on the corporations owning and operating such roads within the state. Such statutes are not in conflict with any provision of the Federal Constitution. Grand Rapids v. Bennett, 106 Mich. 528, 64 N. W. 585, and other Michigan cases cited therein; Old Colony R. Corp. v. Plymouth County, 14 Gray, 155; Searle v. Lackawanna & B. R. Co. 33 Pa. 57; Peoria & P. U. R. Co. v. Peoria & F. R. Co. 105 Ill. 110; Chicago & A. R. Co. v. Joliet, L. & A. R. Co. 105 Ill. 388, 44 Am. Rep. 799; Commissioner of Parks v. The state, in the exercise of its police power, may impose a burden upon a street railway corporation that it cannot upon a private citizen, for the reason that the latter can use the highway without a license from the public authorities, while the corporation that wishes to use the street to make money for itself must obtain such license. State v. Canal & C. R. Co. 50 La. Ann. 1189, 56 L. R. A. 287, 24 So. 265. Mr. Justice McKenna delivered the opinion of the court: 1. A motion is made to dismiss the writ of error on the ground that the record ex-[387] hibits no Federal question. The motion is denied. The plaintiff claimed and set up a right under the Constitution of the United States, and the decision of the supreme court of the state was tantamount to the denial of that right. Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173. 2. The argument of plaintiff in error on the merits is that it was the first to occupy Clark avenue; that at that time there was no public highway or street crossing at such avenue; that subsequently the steam railroads laid their tracks, the Wabash Railway Company being the first to do so, but installed no safety devices of any kind, "though it were the junior company;" "that the tracks on the other railroads were subsequently constructed and are controlled by the Union Terminal Company. It is hence asserted that the plaintiff in error cannot be made liable for any part of the cost of safety devices, because it is the settled constitutional law of Michigan that its occupation constituted no additional burden upon the highway, but is simply a method of using the highway for the purpose of public travel and "in direct furtherance of the purpose for which the highway was established; that the street railroad company, in contemplation of the law, bears no different relation to the highway than that of any other person using the highway for the moving of vehicles or for any other method of public or private travel, and cannot, as between others using the highway for like purposes, be required alone to bear the expense of installing and maintaining safety devices at steam railroad crossings designed for the protection of all the traveling public." And, further, it is also a well-established principle of the constitutional law of Michigan, that a junior road seeking to cross another cannot shift any portion of the expense of maintaining safety devices without compensation, though the senior company did not insist upon the installation of the devices or compensation at the time the tracks of the junior company were constructed. In other words, it is asserted that the dangerous condition arose, and yet arises, from the steam railroads, and on them alone can the cost of safety devices be legally imposed. [388] *3. It is also insisted that the law is unconstitutional because it does not provide for notice. (1) It was conceded by the supreme court of the state that it was the law of the state that the compensation for the damages caused by crossing the tracks of a railroad by another railroad or by a highway included the cost of making the highway safe. But the court said: An examination of these cases will show they were all cases where it was sought to obtain a right of way either for a railroad across a highway or for a highway across a railroad, or a crossing for one railroad over the right of way of another; and none of the cases relate to the question involved here, as to who shall bear the expense of additional safeguards ordered upon roads which have crossed each other for a long period of time." And besides this element of time, the court said that there were other elements of damage which were either too remote or depended upon the relation of the roads to the state. Both elements are important. The conditions which exist to-day could not have been contemplated years ago, or be the measure of the rights and relations of the respective roads. Those rights and relations were necessarily determined at the time the crossings were made. What could not be foreseen could not have been made a ground of action, and if the growth of business and population can give rights to either of the bisecting roads it is not clear how the police power of the state can be limited in its control over either of them. The supreme court of the state recognized this, and fortified its views by Michigan cases. In Flint & P. M. R. Co. v. Detroit & B. C. R. Co. 64 Mich. 350, 31 N. W. 281, the court in an elaborate opinion expressed the rules of compensation when the right of one road to cross the tracks of another was sought by condemnation proceedings. In that case compensation was claimed, not only for the use of the crossing, but for the cost of maintaining signals or a cross system, cost of a watchman, and cost of stopping trains. These items were rejected. There was some uncertainty in the evidence, and the items for maintaining signals or the crossing sys[389]tem were disallowed on that ground, but the court pointed out the difference between a "structural change in the property," for which compensation should be given, and those things which may be required by the legislature in the exercise of police regulations, as to which the roads "stand upon an equality before the law, and neither can levy tribute upon the other as a compensation for obedience to its requirements." And such regulations, it was observed, "are as binding upon an existing road as one newly organized." The court cited the case of Massachusetts C. R. Co. v. Boston, C. & F. R. Co. 121 Mass. 124, where Mr. Justice Gray, then chief justice of the supreme judicial court of Massachusetts, expressed the law as follows: "A railroad corporation across whose road another railroad or highway is laid out has the like right as all individuals or bodies politic and corporate owning lands or easements, to recover damages for the injury occasioned to its title or right in the land occupied by its road, taking into consideration any fences or structures upon the land, or changes in its surface, absolutely required by law, or in fact necessary to be made by the corporation injured, in order to accommodate its own land to the new condition. Com. v. Boston & M. R. Co. 3 Cush. 25, 53; Old Colony & F. River R. Co. v. Plymouth County, 14 Gray, 155; Grand Junction R. Co. v. Middlesex County, 14 Gray, 553. But it is not entitled to damages for the interruption and inconvenience occasioned to its business; nor for the increased liability to damages from accidents; nor for increased expense for ringing the bell; nor for the risk of being ordered by the county commissioners, when in their judgment the safety and convenience of the public may require it, to provide additional safeguards for travelers crossing its railroad. Proprietors of Locks and Canals v. Nashua & L. R. Corp. 10 Cush. 385, 392; Boston & W. R. Corp. v. Old Colony R. Corp. 12 Cush. 605, 611, and 3 Allen, 142, 146; Old Colony & F. River R. Co. v. Plymouth County, 14 Gray, 155." It is, however, contended that a street railway has a different relation to a street than that which a steam railroad has; that the former "acquires a right to use the same in common with other members of the trav-[390 eling public, and is not an additional burden upon the street, but is merely an adaptation of the highway to a particular means of travel, and does not constitute an additional servitude. A railroad is, on the other hand, an additional servitude, and if it is built across a highway it must do all things necessary to render the highway, for all its legitimate uses, as safe as it was before the railroad was built across it, or would be if such railroad were not built across it at all." or It may be that this difference is recognized as to abutting property owners crossing railroads, but it cannot be recog nized as limiting or affecting the power of the state to regulate the management of the roads in view of the danger of their operation to the public. Whether electricity be the motive power, or steam be the motive power, there is enough danger in the operation of either to justify regulation. The record in this case shows that there are thir ty-eight daily passenger trains crossing Clark avenue, and that the cars of the plaintiff in error pass every few minutes. It is manifest, as the supreme court of the state observed, that the crossing "is a place of unusual danger, not only to the passengers in steam cars, but also to the passengers in the electric cars," and that the danger is caused by both. In such situation the city is surely not powerless to act, nor before acting must it ascertain the exact quantum of damage caused by each road, and by that standard assign the cost of protecting the public. See Maine C. R. Co. v. Waterville 2. vey its title to tide lands contiguous to, and The order of the President of January 13, [No. 198.] 1903. & F. R. & Light Co. 89 Me. 328, 36 Atl. 453. Argued March 11, 1903. Decided April 13, N United States this contention is an extension of that which I Court of Appeals for the Ninth Circuit to review a judgment reversing a judgment (2) The objection that the statute does Statement by Mr. Justice McKenna: [391]not provide for notice *seems to be made for Ejectment brought in the circuit court of the first time in this court. It is not men- the United States, ninth circuit, northern tioned in the majority opinion nor in the district of California, by the United States dissenting opinion. It is not particular- against the California Dry Dock Company. ized in the petition for the writ of error nor Pending the hearing, the latter company in the assignment of errors. In the petition sold and transferred its title to the Mission for this writ of error it is recited that the Rock Company, a corporation, which thereplaintiff in error in its application for man- upon entered into possession of the properdamus claimed that the order of the railroad ty. By stipulation the Mission Rock Comcommissioners was invalid because it de-pany was substituted as defendant, and an prived plaintiff in error of its property with- amended and supplemental complaint was out due process of law and denied it the filed. equal protection of the laws. And also recited that on the "issue framed therein said cause went to a final hearing." The cause was submitted on petition and answer, and the petition alleged "that notice was given by respondent to relator and the Union Terminal Association, and the hearing had, at which relator's representative objected to the making of said order." It is, therefore, not open to the plaintiff in error to complain that the statute does not provide for notice. The property sued for was described by metes and bounds, and, it was alleged, constituted a "tract of land, being a square, including the rock known as Mission rock, and containing 14.69 acres, more or less, and being a fractional part of the westerly half of section 11, township 2 south, range 5 west, Mount Diablo base and meridian." Damages and rents and profits were also prayed, in the sum of $355,000. By consent the case was tried by the court, and its findings, as far as material, are as follows: "II. At the date of the admission of the state of California *into the Union, the prem-[393] ises sued for consisted of two rocks or islands adjacent to one another and projecting above the plane of ordinary high water in the bay of San Francisco, the larger of less than 40 feet above such high water. which rose to a height of more than 20 and Also of other lands contiguous thereto and surrounding said rocks or islands, which were completely submerged and over which the daily tides continuously flowed and upland--see note to Gratz v. Land & River Improv. Co. (C. C. App. 7th C.) 40 L. R. A. 393. On title to land under water-see note to Goff v. Cougle (Mich.) 42 L. R. A. 161. [394] ebbed. The rocks or islands referred to are laid down on the chart in this cause, and marked Exhibit 'A.' "III. The areas of these rocks or islands above ordinary high-water mark at the time of the admission of the state of California into the Union were as follows: The one on the chart called 'Mission rock' had an area of fourteen one-hundredths (14-100) of an acre; the other had an area of one one-hundredth (1-100) of an acre. These rocks or islands rose abruptly out of the bay of San Francisco. Their sides to the extent that they were covered and uncov ered by the flow and ebb of the tide varied from 10 to 25 feet, depending on their steepness. Both rocks were barren, without soil or water, and were of no value for purposes agricultural or mineral. They lay at a distance of about half a mile of the then shore line of that part of the bay upon which the city of San Francisco fronted. Navigable water divided and still divides the lands sued for from the mainland, and surrounded and now surrounds them. "IV. The lands described in the complaint were not, at the date of the admission of the state of California into the Union, within the boundaries of any valid private or pueblo grant of lands of the Spanish or Mexican governments. "V. No approved plat of the exterior limits of the city of San Francisco, as provided by the terms of § 5 of the act of July 1, 1864 (13 Stat. 332), has been filed or rendered to the General Land Office of the United States, or of the state of California. The lands sued for in this action are within such exterior limits. statutes of California for the years 1870, 1871, at page 801, is hereby referred to and made part hereof." "The lands herein described include the lands sued for in this action. "On the 11th day of July, 1872, the state of California, in conformity with said act, issued its patent for the said lands to said Henry B. Tichenor, purporting to convey the same to him. Said patent was duly recorded in liber 1 of Records of Patents, page 66. "After execution of the said patent, the said Tichenor executed and delivered a deed of grant, bargain, and sale, dated May 1, 1878, purporting to convey the said lands to the California Dry Dock Company, which thereafter, on the 6th day of June, 1900, executed and delivered to the Mission Rock Company, the defendant, a like deed to the said lands. The last-named company has not, since said date, conveyed to any person or corporation the said lands. "IX. The California Dry Dock Company, upon going into possession of said lands so conveyed, undertook the improvement of the same by filling in portions of the submerged lands immediately around and contiguous to said islands or rocks, with many thousands of tons of rock, thus increasing the available area of said lands to about 4 acres, upon which extensive warehouses were built by it, and wharves erected for the accommodation of shipping. "Since the issuance of the state patent hereinbefore referred to, the patentee thereof up to May 1, 1878, the California Dry Dock Company from said time to the 6th day of June, 1900, and the defendant "VI. On the 13th day of January, 1899, from said last-named date to the present the President of the United States, purport-time have been in continuous and uninter-[395] ing to act in conformity with the act of July 1, 1864, already referred to, issued the following order: rupted possession of the said lands, using the same and the improvements thereon for commercial purposes, and claiming to be the absolute owner thereof." The conclusion of the court was that the United States was entitled to the lands sued for, without damages or rents and profits, and judgment was entered accordingly. "Executive Mansion, January 13, 1899. "It is hereby ordered that the Mission is land and the small island southeast thereof, designated on the official plat on file in the General Land Office, approved October 12, 1898, as lots 1 and 2 of section 11, township 2 south, range 5 west, Mount Diablo meridian, California, containing, according to the plat, fourteen one-hundredths of an acre and one one-hundredth of an acre, respectively, be, and they are hereby, de-acre, and 1-100 of an acre, and designated on clared as permanently reserved for naval William McKinley. purposes. *"VII. On the day of March, 1864, the United States surveyor general for the state of California extended the public survey so as to comprehend and include the rocks or islands and the lands in controversy in the present suit. 66 VIII. On April 4, 1870, the governor of the state of California approved an act of the legislature of the state entitled, 'An Act to Provide for the Sale and Conveyance of Certain Submerged Lands in the City and County of San Francisco to Henry B. Tichenor,' which act as printed in the The circuit court of appeals reversed the judgment, and remanded the cause, with instructions "to enter judgment for the plaintiff for the recovery of the possession of the two islands or rocks mentioned in the record, containing, respectively, 14-100 of an the oficial plat on file in the General Land Office, approved October 12, 1898, as lots 1 and 2 of section 11, township 2 south, range 5 west, Mount Diablo meridian, California; and as respects the remainder of the land sued for, that the plaintiff take nothing." 48 C. C. A. 641, 109 Fed. 763. This writ of error was thereupon sued out. Solicitor General Richards argued the cause and filed a brief for plaintiff in error: Upon the acquisition of California from Mexico, the United States became the owner of all the land in California, both the tide lands and the upland. San Francisco v. LeRoy, 138 U. S. 656, 34 L. ed. 1096, 11 Sup. Ct. Rep. 364; Knight v. United Land Asso. 142 U. S. 161, 35 L. ed. 974, 12 Sup. Ct. Rep. 258. The tide or submerged lands the United States took in trust for the future state of California. San Francisco v. LeRoy, 138 U. S. 656, 34 L. ed. 1096, 11 Sup. Ct. Rep. 364; Knight v. United Land Asso. 142 U. S. 161, 35 L. ed. 974, 12 Sup. Ct. Rep. 258. in the interests of navigation and commerce being subordinate to that of the United States. United States v. Bellingham Bay Boom Co. 176 U. S. 211, 44 L. ed. 437, 20 Sup. Ct. Rep. 343. Whether the title to the submerged lands of navigable waters is in the state or in the riparian owners, it was acquired subject to the rights which the public have in the navigation of such waters. Scranton v. Wheeler, 179 U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48. The land, which, under this doctrine, went to the original states when the Revolution took place, and to the subsequent states upon their admission to the Union, is sub- Whatever right the state held in the tide merged lands,-land under water,-not land lands or submerged lands surrounding the above water. The control over the naviga-island was subordinate and subservient to ble waters included the ownership, in trust right of access to the navigable water, which for the people, of the soils covered by such went with the upland. water. Martin v. Waddell, 16 Pet. 367, 10 L. ed. 997; Weber v. State Harbor Comrs. 18 Wall. 57, 21 L. ed. 798; Illinois C. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018, 13 Sup. Ct. Rep. 110; Shively v. Bowlby, 152 U. Ŝ. 1, 38 L. ed. 331, 14 Sup. Ct. Rep. 548. Dutton v. Strong, 1 Black, 1, 17 L. ed. 339; Weber v. State Harbor Comrs. 18 Wall. 57, 21 L. ed. 798; Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 984; Lake Superior Land Co. v. Emerson, 38 Minn. 406, 38 N. W. 200; Hanford v. St. Paul & D. R. Co. 43 Minn. 104, 42 N. W. 596. The island or islands known as Mission The improvements, made at Mission Rock Rock never had been, nor are they now, tide were of such a character that they necesland, or submerged land, or soil under navi-sarily became, when made, a part of the isgable waters. land itself, impossible to be separated, and therefore the property of the owner of the island. Ledyard v. Ten Eyck, 36 Barb. 102; Nichols v. Lewis, 15 Conn. 137. Respecting the authority of the President Com. v. Shaw, 14 Serg. & R. 9. Carried to its logical conclusion, the contention that, if there was any land reserved under the act admitting California as a state, it was only "public lands," meaning thereby land "subject to sale or other dis-to set aside parcels of land belonging to the posal under general laws," would strip the United States for particular public uses, United States of all its lands except such as were open for pre-emption and sale under general laws. Leavenworth, L. & G. R. Co. v. United States, 92 U. S. 733, 23 L. ed. 634; Wilcox v. Jackson, ex dem. M'Connel, 13 Pet. 498, 10 L. ed. 264; Newhall v. Sanger, 92 U. S. 761, 23 L. ed. 769; Doolan v. Carr, 125 U. S. 618, 31 L. ed. 844, 8 Sup. Ct. Rep. 1228; Mann v. Tacoma Land Co. 153 U. S. 273, 38 L. ed. 714, 14 Sup. Ct. Rep. 820. Parts of the public domain may be reserved from pre-emption or sale, and set apart for public uses. Grisar v. McDowell, 6 Wall. 363, 18 L. ed. $63. Submerged lands surrounding an island in the Bay of San Francisco, half a mile from shore, and separated from it by navigable waters, could not be conveyed or used except in connection with the island which they surrounded. Illinois C. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018, 13 Sup. Ct. Rep. 110. The state had no power to convey the lands, to be held distinct from Mission Rock and in opposition to the title of the United States to one of its islands. see - Grisar v. McDowell, 6 Wall. 363, 18 L. ed. 863, 17 Ops. Atty. Gen. 160. The United States as the owner of this island had the right of access to the navigable waters surrounding it. Shirley v. Bishop, 67 Cal. 543, 8 Pac. 82; Gould, Waters, 3d ed. § 174; 1 Dill. Mun. Corp. 4th ed. 169; Potomac S. B. Co. v. Upper Potomac S. B. Co. 109 U. S. 673, 27 L. ed. 1070, 3 Sup. Ct. Rep. 445, 4 Sup. Ct. Rep. 15; Polhemus v. Bateman, 60 N. J. L. 163, 37 Atl. 1015; Sayre v. Newark, 60 N. J. Eq. 361, 48 L. R. A. 722, 45 Atl. 985. Mr. Charles Page argued the cause, and, with Messrs. Edward J. McCutchen and Samuel Knight, filed a brief for defendant in error: A state upon admission becomes endowed with all the rights over persons and property which the original states had and have, except so far as any such rights may be specially and expressly reserved by the United States. Pollard v. Hagen, 3 How. 221, 11 L. ed. 570; Shively v. Bowlby, 152 U. S. 27, 38 L. ed. 341, 14 Sup. Ct. Rep. 548; Illinois C. R. Co. v. Illinois, 146 U. S. 434, 36 L. ed. 1018, 13 Sup. Ct. Rep. 110; Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 526, 29 L. ed. 264, 5 Sup. Ct. Rep. 995. Stockham v. Browning, 18 N. J. Eq. 390; E. G. Blakslee Mfg. Co. v. E. G. Blakslee's Sons Iron Works, 129 N. Y. 155, 29 N. E. 2. The title of the United States to Mission It has been uniformly held that, upon the Rock was absolute and unqualified, and the admission of a state into the Union, the authority of the United States over the sur-tide lands or the lands under tide waters rounding navigable waters and submerged vest in the state. land was supreme; the right of the state There is no distinction between lands di |