91 F. 955 | 7th Cir. | 1899
Lead Opinion
(after stating the facts). An elaborate and learned discussion by counsel is presented to the court upon the question of riparian rights, and upon the argument great stress was laid upon the decision of the supreme court in Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, rendered since its decision declared by that court in this case. And since the argument we are referred to the decision of the supreme court of Illinois in Revell v. People (filed Dec. 6, 1898) 52 N. E. 1052, as yet unreported officially, which, it is said, determines that the rights of the riparian owner in the submerged lands of Lake Michigan do not extend beyond low-water mark. We are, however, not permitted to enter into the field of discussion of this most interesting question, because, as we think, our duty is limited by the mandate of the supreme court to the consideration of the single question of fact whether the structures in question “extend into the lake beyond the point of practical navigability, having reference to the manner in which commerce in vessels is conducted on the lake.” Nothing is open to consideration except tire specific subject of inquiry reserved by the mandate of the ultimate tribunal. All else is final and conclusive between the parties. In re Sanford Fork & Tool Co., 160 U. S. 247, 16 Sup. Ct. 291. So that the question before v. is purely one of fact. The supreme court has determined that to a certain extent the appellee had the right to construct the piers in question; that it had the right to penetrate the waters of the lake with these piers to the “point of practical navigability, having reference to the manner in which commerce in vessels is conducted on the lake.” It is said by counsel that such inquiry should be limited to the date of the filing of the information in this suit, to wit, March 1,1883, and that we have no right to consider any changes in the situation occurring since that date which may have enlarged the right. In this contention we cannot concur. The language of the mandate does not so speak. It is couched in the present tense, speaking to the date of the decree, and in our judgment rightly so speaking. Equity is not arbitrarily bound to decree rights as they existed at the date of bringing the suit. It considers the nature of the right, the situation of the parties at the date of the decree, and what is at that time equitable to be done. It recognizes changes in the situation of the parties and their rights since the filing of the bill. So that, in the case before us, if there have been changes in those things which should control our judgment, which materially affect the situation, it is fitting that a court of equity should regard such changed conditions and conform its decree thereto. We take it that the riparian right to penetrate the waters of the lake to the point of navigability which is recognized by the decision of the supreme court in this case is not a right that is concluded and exhausted by the single exercise of it, but that the owner has a right at all times to reach the point of practical navigability as it may exist from
“It is claimed by the learned counsel that the measure of riparian right is restricted to water not navigable, and is unavailing because it cannot reach the point where it would become useful. It is not believed that the language of the federal supreme court in Dutton v. Strong, 1 Black, 23, or Atlee v. Packet Co., 21 Wall. 389, or of this court in Diedrich v. Railway Co., 42 Wis. 248, or on the former appeal in this case, is properly subject to such hypercriticism. The right sustained in all these cases is a practical right ‘in aid of navigation, through the water far enough to reach actually navigable water’ (Diedrich v. Railway Co.); ‘to aid in floating logs’ (Boom Co. v. Reilly, 44 Wis. 295). These terms do not imply—the whole tenor of the opinion repels—the construction that wharves, piers, booms, and the like, in aid of navigation, must be constructed within such limits as to make them inoperative. A pier upon Lake Michigan, to aid navigation, must go into water deep enough to be accessible to vessels navigating the lake. A boom on a logging stream, to aid such navigation, must go into water deep enough to be accessible to floating logs; must be so constructed as to receive and discharge floating logs. In either case, to reach navigable water reasonably implies reaching it with effect to accomplish the purpose; the word often signifying some penetration of the thing reached. One is not understood to stop outside the limits of a place when he is said to reach it. He is understood to enter it as far as may be necessary for his purpose. The right in question necessarily implies some intrusion into navigable water, at peril of obstructing navigation. Atlee v. Packet Co. This intrusion is expressly permitted to aid navigation, and expressly prohibited to obstruct navigation. It is impossible to give a general rule limiting its extent. That will always depend upon the conditions under which the right is exercised; the extent and uses of the navigable water; the nature and object of the structure itself. A structure in aid of navigation which would be a reasonable intrusion into the waters of Lake Michigan would probably be an obstruction of navigation in any navigable river within the state. A logging boom which would be a reasonable intrusion into the waters of the Mississippi would probably be an obstruction of navigation in most or all of the logging streams within the state. The width of a river may justify a liberal exercise of the right of intrusion, or may exclude it altogether. Its extent is purely a relative question.”
We think it must be, as stated by Chief Justice Ryan, that the extent of this riparian right is purely a relative question, and is limited only
We come, therefore, to the question of fact reserved by the supreme court—whether these piers intrude into the lake beyond the point of “practical navigability, having reference to the manner in which commerce in vessels is conducted on the lake.” We do not deem it needful to enter into the details of the evidence presented, but find it necessary only to refer to some general and salient facts which must control our judgment. In the phenomenal growth of the Northwest within the past 50 years the commerce of the Great Lakes has not been at a standstill. Its growth and development has been commensurate with the development of the territory,- and, notwithstanding the wonderful extent of construction of railways, which to a considerable degree has affected the commerce of the lakes, the development of shipbuilding and the extent of the carrying trade upon the lakes excites surprise and admiration. The port of Chicago, which 50 years ago was an inconsiderable point of commerce, has become one of the great shipping ports of the world. The volume of trade flowing through it, both east and west, can hardly be overstated; and naturally we find a constant increase in the tonnage of the lakes to meet the vast problem of transportation. We observe, also, in the solution of that problem, a marked change in the character of the means of transportation. Time and cost have become of the essence of success in transportation. It will no longer answer to depend upon the variable winds, and steam has to a great extent supplanted propulsion by means of sails. In the year 1881, 8,045 domestic sail vessels entered the port of Chicago and 3,466 steam vessels. In 1886, 6,006 domestic sail vessels as against 3,930 steam vessels. In 1894, 2,582 domestic sail vessels as against 4,707 steam vessels. What is true of Chicago is true of the other ports upon the Great Lakes. The mode of transportation is largely changed from sail to steam vessels, and this doubtless to render possible competition between water and rail transportation. It is also true of the lakes, as of the seas, that vessels of iron and steel construction are to a large extent superseding those of wooden construction, and vessels of great tonnage those of small tonnage. The average tonnage of sail vessels on the lake in 1884 was 189 tons as against 238 tons in 1894. The average tonnage of metal steamers in
There is another circumstance which is not without weight. On September 22,1890, the secretary of war approved the recommendation of Maj. Adams, of the corps of engineers, in charge of the matter, that the harbor line beyond which no wharves or other structures should be built, should be adopted as follows: “Commencing at a point on the south side of the United States south pier of the entrance to Chicago river and twelve hundred feet west of the west line of the easterly breakwater, outer basin, and running due south till it intersects the prolongation of the north' line of Randolph street, thence due west eight hundred feet, thence due south to the southern limit of the outer
Dissenting Opinion
(dissenting). I agree that our duty is simply to determine whether the decree below is in accord with the mandate of the supreme court, and that mandate, speaking as it does in the present tense, I also agree, must be deemed to refer to the date of the opinion (December 5,1892) in pursuance of which it was issued; but it does not seem to me to follow that no consideration may be given to the later cases of Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, and Revell v. People, 52 N. E. 1052, to which reference has been made. These cases, I think, put it beyond doubt that, if the question were yet open, the supreme court would not hold, as it did, that the Illinois Central Railroad Company had any right by virtue of its ownership of riparian lands to build piers into the lake to the point of navigability. We are therefore dealing with a nakedly technical right, which exists only because it has been adjudged to exist. But for the judgment on which it rests, it has not even the merit of the celebrated stipulation for a pound of flesh. The mandate for its allowance having passed, and not having been recalled or modified, must be enforced to the full extent of its necessary scope, but its scope should be determined by a strict construction, rather than by the liberal rule enlarged upon in the opinion of the majority. It may be that the riparian right ordinarily is not concluded or exhausted by a single exercise of it, and that “the owner has the right at all times to reach the point of practical navigability as it may exist from time to time”; but the supreme court has not said that of this case, and we need not, and, as I think, should not, say it. On the contrary, the opinion of the supreme court and its mandate are too specific in one respect to admit of the liberal construction which the court favors. “To the point” of practical navigability is the specific limitation, and “the excess beyond such point” is to be removed or abated. These are expressions which make irrelevant any argument or citation of au
The decree appealed from is affirmed.