*1 Company et al., Little Respondents, Falls Fibre v . Henry Inc., Appellant. Son, Ford & *2 (Argued 23, 1928; 31, 1928.) October decided December s Charle E. Nichols, Jr., and Robert E. Whalen
appellant. Defendant’s complete justification is found
in its license from the Federal Power Commission, as
supplemented
by the regulations,
approved by the
Secretary War,
govern
which
the installation of the
flashboards.
v.
39
(People
App.
110;
Div.
Page,
People
ex rel. Loomis v. Canal Appraisers,
497 Fed. Co. v. 283 Co., Alabama Power 609; Power Gulf erecting The motive of the defendant Rep. immaterial. Co. v. Patten flashboards is (Green Bay, etc., 324; 172 86 N. Y. 58; Youmans, Paper Co., Kiff v. Y. Co. v. 128 N. 345; Mfg. Shanаhan, Waterloo Chase Even v. City Hibbard Co. Elmira, merits, on the the extra judgment right were allowance limit. plaintiffs statutory exceeds the granted (People Div. County App. Page, Saratoga Conaughty Hathorn Bank, Natural Carbonic Gas Co. 425; Williamsburgh Div. City Fire App. Ins. Div. Rothery App. Ry. Co., England Central New *3 30.) 24 Co., Hun, 172; 90 Y. v. York Rubber for respond- and Thomas O’Connor E. George O’Connor Secretary or from the The Acense permission ents. mere of on the dam the installation flashboards of War nor does invest any agency does create “ ” ” to seize any immunity portion or privilege incurring any Aability. without plaintiffs’ water 202 427; Ill. (Cobb v. Commissioners of Park, Lincoln 166; v. Green 80 U. S. [30 Wall.] Co., Pumpelly Bay 346; Murphy Y. v. 175 N. City Gloversville, Sammons N. Y. 134; 28 Brown- v. Commissioners Emigration, 336; Bellinger 126 v. Rep. v. Misc. Realty Saks, Co. Brandt 42.) Y. The Federal 23 N. R. R. Co., New York Central water plaintiffs’ itself could take compensation required therefor making S. 243 U. v. Cress, States the Constitution. (United Hun, 537; 37 Mononga 316; Reservation, Matter State 312; 148 U. v. S. States, United Navigation Co. hela 616; 115 S. United States v. States, The United Boyd 445; v. State, American Woolen Co. 188 U. v. Lynch, v. Fund 698; Comrs. Kemp Canal Div. App. 195 granted The extra allowance 26 Wend. shall, v. increased. Saratoga (Conaughty should plaintiffs 401; Paper Bank, United Bd. Co. County 38; 226 N. Y. Livermore, Lattimer & P. P. Iroquois 498
72 N. Y. 174; Empire City Subway Co. v. Broadway &
Seventh Ave. R. R. Co., 87 Hun, 279; 1-59 N. Y. 555;
Henderson Est. Cо. v. Carroll Elect. Co., 113 App. Div.
775; Y.N.
533; Hudson Riv. Tel. Co. v. Walefvliet
T. & R. Co.,
Pound, 1920, ch. Stat. U. S. Code, 16, title 797, d) subd. created the Federal Power Commission which is empowered, with limitations not applicable to this case, “ To issue licenses to citizens of the United States, or to any association of or citizеns, any corporation organized under the laws of the United any States or any State, State or to thereof, municipality for the pur- pose of constructing, operating, and maintaining dams, conduits, reservoirs, power houses, transmission lines, project necessary or other works or convenient for development improvement development, transmission, utilization across, along, from or in of the navigable waters of the States, upon any part United of the public lands and *4 reservations of the United States (including the Terri- tories), purpose utilizing or for the the surplus water any or water from Government power dam, except as herein provided.” applied The defendant to the Federal Water Power permission
Commission install dashboards on the our Troy Dam in conneсtion with house.” The wing a Federal dam in Troy the Hudson Dam river at regulate navigation constructed to under an Troy act Defendant has a house at Green Congress. Island at the dam. It desired power developed to raise using dam order to develop the level of the more power. issued to thereupon The water power Commission of the license are unnecessarily licensе. The terms broad are and operative practically, so far as this litigation is concerned, only as applied maintenance of the flashboards. The by flashboards were erected defendant with the result that the water from down stream backed up as to reduce the head at plaintiffs’ manufacturing plants up Plaintiffs stream. are riparian owners who claim to be entitled to аgainst flow the stream as this by defendant, (Clinton unobstructed the flashboards. Myers, N. Y. 511, 516; S. v. Rio Grande Dam & Irrigation 690, 702.) Their rights must yield to Congress regulate commerce (U. S. 3), Const. art. but not to 1, 8, clause individuals. (Sage Mayor, They this brought action for an injunction damages. They have succeeded in obtain ing judgment from enjoining defendant maintaining awarding the flashboards and The damages. question is authority whether they must submit Federal Water Power asserted Commission by under its license. dams in the construction of Hudson river without consent of the Federal is prohibited. “ It shall not be lawful construct or commence bridge, any dam, dike, causeway
construction of over roadstead, haven, canal, port, harbor, navigable river, or other the United States until building the consent of of such structures have and until for the the.plans shall been obtained samе to and the Chief approved shall been submitted Provided, Engineers Secretary War: be built authority That such structures under waterways a State across rivers and other Legislature of wholly of which lie within navigable portions State, provided plans limits of the location a single *5 of to and the Chief approved thereof are submitted Secretary of before Engineers War construction and the Cоde, title 33, is (U. commenced.” S. § of Congress, Acts chapter 425, the of Since enactment “ 1899, any creation of obstruction not affirmatively the the of by Congress, navigable authorized to capacity * ** of the United pro waters States is hibited,” though waterway the within the limits even is single (U. of U. S. v. Code, 33, a S. title State. § Rio 708, 709; Co., supra, pp. Grande Dam & Irrigation It Economy 113, 123.) has S., Co. v. U. 256 U. S. Light imply been do not that that these sections .held building of of a authorization” dam “affirmative given by Congress with the same permit under such a enterprise though Congress effect as had undertaken upon itself. a condition the exercise They merely place be right. right of such to construct the dam must (Inter independently permit. of the Federal established York, 126, national Co. v. New Bridge The pro- are quoted negative. The sections above Power Act are affirmative. visions the Federal Water to permit regulate granting and They purport to have power purposes. Defendant claims licenses to a permit obtained more than from Commission than stream; an obstruction more place a right give which the defendant permit purports and the exercise merely build the structure sanctions obtained The Commission has madе elsewhere. in sub- it, finding, taking support evidence (U. S. Act in the Power language Water stance “ contemplated d) 16, 797, title subd. Code, § interest public in the improvement justified is desirable Hudson developing purpose improving far for the of interstate commerce.” River use benefit Water Federal also regulations pursuant made 811) (U. Code, 16, title section 18 S. Act, Power § “ flashboards govern maintenance navigation.” interests 16, title Code, Although (§ provides 10-c; the act liable shall c): 803, Each licensee hereunder subd. others property all occasioned damages *6 the
by construction, of maintenance, the operation or of the works project works appurtenant accessory thereto, in no constructed under license, event therefor,” shall the United be States hable is thаt inapplicable; plaintiffs contends that this section have suffered damages no because there been no of taking private regulation but of property merely a of flow the river the Federal in aid of for have no plaintiffs which could com- pensation United against and, therefore, States none against its licensee. Private property be taken public for (U. use S. v. compensation Cress, but of of a 316), navigable the flow the stream is in no river is private sense and there property room judicial for review, private at instance of the owner of the banks of flooded, a are not of stream whose lands a determination Congress of flow is needed for that such purposes of navigation. (U. S. v. Chandler-Duribar Water Power Co., Jersey 229 U. Sargent, New S. 328, that Defendant asserts its license the equivalent is a determination is not subject judicial to review. The first question is to the effect Federal permit of a n an place in a obstruction stream for upon business of the private purposes licensee up-stream owners free flow stream. jurisdiction of the Commission Federal Power a issue license the use of the the Hudson waters for power license river and the of such a purposes effect right are determined the courts. When some actual subject asserted under license becomes jurisdiction controversy, necessary ground excess is judicial review to of law supremacy maintain the of their keep administrative boards the exercise delegated Service powers. Quinby Public (Matter Sargent, Jersey Commission, supra, p. 339.) finding The. оf the Commission is in of navigation work aid project on conclusive in the courts absence to support evidence even it, *7 though the license is in form the delegated powers within of the (People Federal Water Power rel. Commission. ex Queens Y. & Gas Co. v. 245 McCall, 345, U. S. although be we do assumed, not attempt to decide, Congress may, that connection with its limited express implied powers, provide enumerated for the development of of or to aid as incidental Const, powers (U. 1, 8, art. clause 18); § of may not, scope Constitution, that within an go into the as inde development business The extent of pendent proposition. authority Congress carry to enact to into execution laws its enu not merated need be considered at this powers time. it is broad. very (M’Culloch Maryland, Dоubtless Legal Tender U. S. Case, [U. Wheaton S.] Congress may How far Jersey Sargent, supra.) regulate navigation in this connec delegate powers its to .assume, although will open tion remains an We question. Act, do that the Federal Water Power decide, we not so of legis construed, is a constitutional exercise properly Jersey The supra.) power. (New Sargent, lative does not result grаnted license herein defendant Its navigation. plain development improvement of Congress against prohibition effect is the removal noth stream; of an in a placing obstruction ing accomplished. more is fact on establishes clearly
The the trial evidence the Com- that the are neither authorized flashboards private for the except mission nor maintained their and that оf defendant in purposes developing ” navigation interests erection no relation navigation. except they interferejwith that must to defendant delegate license, as it so far purports extra- an regulate powers Congress to no affording board, jurisdictional act of an administrative of others. against protection to defendant assume In reason conclusion, we by its license intended Federal -Power Commission Water damages liability the holder from exempt be otherwise what would legalize or to rights of others think, places we more Defendant, to them. trespass as of its permit. the substance than on reliance on the form grant water power did authorize to the detriment exist- utilized might licenses which (Head Amos- compensation. ing power rights Code, title 16, U. S. 9, heag Mfg.
, аre of opinion We costs remains. A question “on the value of based allowance that the additional ” (Civ. Act, Prac. proper was matter involved subject *8 the being involved subject-matter the 1513, 2), subd. § of the river without inter- the water to use plaintiffs’ right having damage suffered no plaintiffs of the ference and one computed. could be allowance on which the additional affirmed, costs. be The should judgment given The the permission by (concurring). J. Crane, on the to install flashboards Federal Power Commission permission. or less than nothing more Troy Dam was States was the United that far as meant making to the applicant objection it had no concerned, might it have way, the same In of the this use dam. it. If over individual walk to an permission given in walking any damage over it, damage in did any he lookout, was his own thаt flashboards, up putting applicant The was pay. he which would for of the purposes any flashboards put up obliged affair; his own solely it was government; United States The Commission pleased. he just or not do it could he I do see how objection.” have We merely said: litigation. in this involved the Commission license result). The (concurring Ch. J. Cardozo, jurisdiction within Commission, whether by 504 People ex rel. (cf. Lehigh Vallеy body without
Ry. Comm., 9, 15), Co. State Tax did not exempt liability holder damage from caused waters, others a diversion nor authorize impairment requital existing rights of property (U. Code, 16, 803, title Otis Co. v. c; S. subd. § § 201 U. Mfg. Co., Ludlow S. Kaukauna Co. 140, Head Amos- Bay 254, 276; Canal U. S. Green 23, 26). keag Mfg. Co., 9, 113 U. S. by appropriate
Until such
have been condemned
cf.
Con-
(U.
16,
N. Y.
Code,
title
proceedings
24; Sweet
Laws,
73],
17,
ch.
Law
demnation
§§
[Consol.
Krupp,
Crozier v.
U. S.
Rechel,
380, 401;
obstructing
trespasser
the defendant is still a
290),
neighbor.
of a
damage
flow
stream
may lawfully
domain
Whether the
eminent
statute
one so
be exercised under section 814
not before
question
is a
us.
situated as
with costs.
judgment should
affirmed
result).
Before 1789
(concurring
J.
Andrews,
of the State
bed of
Hudson
was the property
river
control over
governmental
New York.
It also exercised
property and
navigable stream,
its
In a
whatever
waters.
*9
people
in trust
the State had
held
powers
were
right
their
to use
subject
of New York
and were
(Matter
for their
and commerce.
navigation
river
own
Travis,
Palmer
182 Y.
ex rel.
Mayor,
361; People
by
flow
might regulate
150.)
223 N. Y.
its
State
It
bed.
its
might
improve
or other means.
It
dams
to a reasonable
might
It
might remove obstructions.
all
might
exercise
canals.
divert
waters into
extent
its
before
possessed
King
and Parliament
powers
by
Revolution.
He was
rights.
certain
also had
riparian proprietor
A
docks
erect
might
of the
He
entitled to access
stream.
Smith,
Brookhavenv.
Town
interfering
navigation.
(
with
reasonably its flow
74.)
might
He
divert
Y.
188 N.
And
creating
power.
it
his own land so
lead
over
was
of the river
do this as
the level
might
he
well where
prop-
river
his
passed
raised
a State dam as where
was
if
only
surplus
erty in its natural condition
purposes.
(United
not needed
State
taken as was
Com-
Pulp
Paper
&
Iroquois
Paper
Company
Board
navigation
Y.
Except
improve
pany,
him of the
right
deprive
use
the State would
naturally
his premises.
which
ran past
of water
amount
Without
however,
permitted.
were
things,
Some
erect
lands and
not enter
State
might
upon
he
consent
or other
a dam
might
He
not build
structures thereon.
created
If he did he
of the river.
obstruction to the flow
a
if
also
with
purpresture,
a
it
interfered
or,
Vanderbilt,
(People
nuisance.
public
In
case
either
Schultz, 116 N.
Company
Ice
Attorney-
of the
the suit
and removed at
be abated
might,
also be
might
a remedy
If
public
General.
nuisance
especially
to be
one shown
by any
had in an action
think,
if a
Under
injured
purpresture.
So I
thereby.
being
in the people,
title
government,
our
form
of their rights
the invasion
injured by
one especially
remedy
case
a nuisance.
have a
as
should
unchanged except
powers
remain
All these
them
chosen to surrender
far
we have
agree
did
of the United States. We
regulate
should have
commerce
how
the several States.
Just
foreign
among
nations аnd
over the
authority
our
far we believed we surrendered
Singularly
clear.
Hudson
this
is far from
clause
in the
Convention,
appears
little
the debates
was ratified or in
debates here
the Constitution
when
subject, although the need for the
Federalist on the
creation of
central authority
regulate
commerce was
*10
moving
one
for the adoption
causes
of the Con-
(Brown Maryland,
419.)
stitution.
v.
12 Wheаt. [U. S.]
are
Whatever
have been
we
may
understood at the time
admonished that the
a broad
words
are to be given
used
significance.
(Gilman
Philadelphia,
713;
[U.
3 Wall.
S.]
Gibson v. United States, 166
United States
U.
Chandler-Dunbar
Power
Jersey
Water
U. S. New
v. Sargent,
328.)
They confer the
only
regulate shipping itself but
regulate
stream.
turn
may deepen
river;
one channel into
another;
regulate
remove
build dams to
obstructions;
flow thе
its
water; forbid,
consent,
erection
do or may
structures that
interfere with
do
may
other
But there
many
things.
doubtless
is a
limit to its power. Whatever it does
to regu-
must
late
foreign
commerce with
nations
several
among
It
states.”
has no
Hudson not connected
navigation.
(Groat Moah,
with
People
International Bridge Company,
Undoubtedly Congress may determine what is an obstruction to a stream its determina- tion is It bridges conclusive. forbid the erection of dams it far it concerned, may, permit them consent of some It things official. does these connection with its оver commerce. has no an power, however, give individual plenary authority to erect a purposes dam across the Hudson. permit objection Its waives an merely to such a work might that the United States otherwise make. Any one on relying permit alone commits a trespass upon the lands of the State. He invades its property. As subject purpresture has been is a said, to abаtement. I And as before I think indicated, any one especially injured remedy. has a *11 is a general before us one we have pointed act is judge subjecting all the chief
out dams and similar license and supervision. to Federal buildings So much erection Their be done. directly maintenance of a river. the flow They affect cannot be (People consent. ex built without Federal rel. Lehigh V. Commission, Tax By. But con- Co. this it is enough given is not unless in aid of sent navigation. It removes but one obstacle way the lawful maintenance of the dam. act
Taken at its face value the does more than refer navigation. permits dams the development of water This power. no At do. may give it its consent if the most is per- dam otherwise mitted. Under that consent alone the defendant has it authority no to do what has done. permission
For on its face the it shows was given with Clearly reference to commerce. it was simply allow the defendant to develop for manufacturing Acting under it purposes. alone the defendant has violated of the State and has injured also the plaintiffs. It seems to me immaterial whether we construe the “ ” “ “ ” an or or statute with an and.” If with it is plainly usurpation power nowhere If conferred. I and,” think equally unauthorized. I do not think the United States may traffic excess power, aby legally created created for dam purposes of commerce. is in the What said Chandler-Dunbar case plainly is But whether this be or not dictum. we need not decide. been Here, said, as has there is no attempt sell power. attempted excess be created private purposes. purely Kellogg J., memorandum, Lehman,
Crane, JJ., concur with J.; Cardozo, J., Ch.' O’Brien, Pound, J., in opinions concur in result. Andrews, Judgment affirmed, etc.