APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA
Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes, Day
MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.
The gravamen of the bill is the alleged impairment by the statute of 1903 of the contract entered into in 1898, by which defendants agreed to remove the dam then existing, and to allow such creek to remain open and unobstructed.
It was also charged that the constitution of South Carolina declaring that all navigable waters should forever remain public highways was a privilege annexed to and constituting a part of the value of the lands, and that the damming of the creek, except for the purpose of the public health, welfare and safety and without due compensation therefor, was a destruction of the property of the plaintiff and a deprivation thereof without due process of law.
The specific injury complained of is that the plaintiff is the owner of a rice plantation on the North Santee River, bordering on Minim Creek, a tributary of the Santee, and lying in part just opposite the mouth or entrance of Kinloch Creek; that, relying on the agreement of the defendants, he had also purchased a millsite on the Santee, which could be used for a rice mill or a saw mill, the chief element of value of which was the water connection by means of a canal with Bluff Back Creek, accessible only through Kinloch Creek, and the consequent necessity of keeping Kinloch Creek, open and unobstructed; that Kinloch Creek is a water highway, navigable by vessels into the Santee River and thence into the ocean; that the erection and retention of a dam across Kinloch Creek would not only interrupt his use of Kinloch Creek and Bluff Back Creek by preventing access to the public landing on the state road from his plantation on Kinloch Creek, but would obstruct the inflow of the tide of the Santee River through Minim Creek, causing the water from the river to flow back upon the banks to the plantation opposite the mouth of Kinloch
Creek, and would thus compel him to raise and strengthen his banks.
1. The first question considered by the court below was whether Kinloch Creek was a navigable water of the United States, as defined in the case of The Montello, 11 Wall. 411; S. C., 20 Wall. 430, or navigable, as navigable streams are defined by the constitution and the laws of South Carolina. The court was of opinion, based apparently upon affidavits not sent up with the record, that the creek was not a navigable stream under these definitions.
But the bill alleges that "Kinloch Creek is a navigable stream or water highway," and the cause was determined upon demurrer to the bill, which admits the allegation of the bill that the creek was navigable. As an original proposition we have repeatedly held that, in the absence of legislation by Congress, a State has power to improve its lands and promote the general health by authorizing a dam to be built across its interior streams, though they were previously navigable to the sea by vessels engaged in the coastwise trade. This was decided in Willson v. Black Bird Creek Marsh Co., 2 Pet. 245, in a brief but cogent opinion by Mr. Chief Justice Marshall. An act of the State of Delaware gave the defendant the right to build a dam across the Black Bird Creek, the constitutionality of which act was attacked as an abridgement of the rights of those who had been accustomed to use it for the purposes of navigation. "But this abridgement," said the court (p. 251), "unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance." The act was sustained. See also Pound v. Turck, 95 U.S. 459; Gilman v. Philadelphia, 3 Wall. 713; Huse v. Glover, 119 U.S. 543.
We do not think the provision of the constitution of South Carolina interferes with these common law powers of the State over its navigable waters. In Escanaba Company v. Chicago, 107 U.S. 678, 688, it was held that the right of bridging navigable
streams extended to the State of Illinois, notwithstanding that the ordinance of 1787, for the government of the Northwest Territory, contained a clause declaring that "the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between them, shall be common highways and forever free." The power to span these rivers by bridges was put, partly upon the theory that the limitations upon the power of the State whilst in a territorial condition ceased to have any operative force except as voluntarily adopted by her after she became a State of the Union, and partly upon the theory, as said Mr. Justice Field, page 689, that "all highways, whether by land or water, are subject to such crossings as the public necessities and convenience may require, and their character as such is not changed, if the crossings are allowed under reasonable conditions, and not so as to needlessly obstruct the use of the highways."
So also in Cardwell v. Bridge Co., 113 U.S. 205, a provision in the act admitting California, that "all the navigable waters within the said State shall be common highways and forever free," was held not to deprive the State of the power possessed by it to authorize the erection of bridges over navigable waters. Said the court, page 211, "the clause, therefore, in the act admitting California, quoted above, upon which the complainant relies, must be considered, according to these decisions, as in no way impairing the power which the State could exercise over the subject if the ...