This was an action to restrain the defendant in error from dredging upon certain lands under the waters of Great South bay, in the state of New York. The defense was that the lands upon which he was engaged in dredging were under the navigable waters of the bay, which was a navigable area of the sea, over which enrolled and registered vessels passed in interstate commerce; that Congress had provided for the dredging of a channel some 2,000 feet long and 200 feet wide across said bay, and that defendant was engaged as a contractor with the United States in dredging the channel so authorized. The plaintiff in error, plaintiff below, averred that this channel would pass diagonally across submerged land in said bay which it held as lessee under the owner of the fee in the bed of the bay. The land so held under lease had been planted with oysters and had been long used for the cultivation of that variety of oyster known as the 'Blue Point.' The claim was that the dredging of such a channel would destroy the oysters of the plaintiff, not only along the line of excavation, but for some distance on either side, and greatly impair the value of his leasehold for oyster cultivation.

The New York court of appeals held that the title of every owner of lands beneath navigable waters was a qualified one, and subject to the right of Congress to deepen the channel in the interest of navigation, and such a 'taking' was not a 'taking' of private property for which compensation could be required. The judgment of the courts below discharging the injunction and dismissing the action was therefore affirmed.

The case comes here upon the claim that the dredging of such a channel, although in the interest of navigation, is a taking of private property without just compensation, forbidden by the 5th Amendment to the Constitution of the United States.

The foundation of the title to a large portion of the soil lying under the water of Great South bay is found in certain royal patents made when the state of New York was a colonial dependency of Great Britain. Through the patents referred to and certain mesne conveyances, the lessors of the oyster company have been adjudged to be seised of the legal title to a large part of the land which lies at the bottom of that bay. That determination of title under the local law is not complained of, and must, of course, be accepted and followed by this court. The single question, therefore, is whether the deepening of the channel across the bay, in the interest of navigation, with the incidental consequence to the oyster plantation of the lessee company, is a taking of private property which may be enjoined unless provision for compensation has been made.

The cultivation of oysters upon the beds of the shallow waters of bays and inlets of the sea, and of the rivers affected by the tides, has become an industry of great importance. In many localities the business is regulated by the laws of the states in which such waters are situated, and the beds of such waters are parceled out among those owning the bottom or holding licenses from the state, and marked off by stakes indicating the boundaries of each cultivator. The contention is that whether title to such an area at the bottom of navigable salt waters comes from the state, or, as in the case here, from royal patents antedating the state's right, such actual interest is thereby acquired that when such area so planted and cultivated is invaded for the purpose of deepening the water in aid of navigation, private property is taken. For this, counsel cite the cases of Brown v. United States, 81 Fed. 55, decided by Circuit Court Judge Simonton; and Richardson v. United States, 100 Fed. 714, also decided by the same eminent judge. They also cite and rely upon Monongahela Nav. Co. v. United States, 148 U. S. 312, 37 L. ed. 463, 13 Sup. Ct. Rep. 622. In the Brown Case, Judge Simonton, while recognizing that the navigable waters of the United States were within the jurisdiction of the United States, which has control over their improvement for navigation, was of opinion that, so long as the owner of the bed of such bodies of water did not use it 'for the erection of structures impeding or obstructing navigation,' his ownership of the bottom, and his right to put it to such use as did not obstruct navigation, was a property right, which could not be destroyed or taken without compensation. From these considerations he held that 'when the government, for the purpose of adding to the navigability of a stream, changes its natural channel, and, in doing so, occupies and assumes exclusive possession of the land of a citizen, it takes private property.' In that case the government had, in the exercise of its power of improving navigation, erected a dike on the oyster beds of the complainant in the shallow salt water of York river, for the purpose of directing the current of the river and maintaining the channel. The effect of this was to destroy the property of the owner or lessee of the bed of the river at that point for the purpose to which it was devoted. This the learned judge ruled was a 'taking' which was not lawful without compensation.

That case and the later one cited fail to recognize the qualified nature of the title which a private owner may have in the lands lying under navigable waters. If the public right of navigation is the dominant right, and if, as must be the case, the title of the owner of the bed of navigable waters holds subject absolutely to the public right of navigation, this dominant right must include the right to use the bed of the water for every purpose which is in aid of navigation. This right to control, improve, and regulate the navigation of such waters is one of the greatest of the powers delegated to the United States by the power to regulate commerce. Whatever power the several states had before the Union was formed, over the navigable waters within their several jurisdictions, has been delegated to the Congress, in which, therefore, is centered all of the governmental power over the subject, restricted only by such limitations as are found in other clauses of the Constitution.

By necessary implication from the dominant right of navigation, title to such submerged lands is acquired and held subject to the power of Congress to deepen the water over such lands, or to use them for any structure which the interest of navigation, in its judgment, may require. The plaintiff in error has, therefore, no such private property right which, when taken, or incidentally destroyed by the dredging of a deep-water channel across it, entitles him to demand compensation as a condition.

In the Hawkins Point Light-House Case, 39 Fed. 77, it was held that the occupation of the lands under navigable waters for the purpose of erecting a lighthouse thereon in aid of navigation was not a taking of private property requiring compensation, the owner's title being, by necessary implication, subject to the use which the United States had made of it. In Scranton v. Wheeler, 6 C. C. A. 585, 16 U. S. App. 152, 57 Fed. 803, 813, 814, it appeared that the United States had erected a long dike or pier upon the submerged lands of a riparian owner on the St. Marys river, Michigan, cutting off his access to deep water. It was held that his title was subject to whatever use the government found appropriate for improving navigation.

The case referred to had been removed from a state court to the circuit court of the United States. Upon a writ of error to this court, the case was held to have been improperly removed and was remanded, with direction to remand to the court from which it had been removed. It was there heard, and upon review by the supreme court of Michigan, the plaintiff's action was dismissed upon the same ground upon which the circuit court had dismissed it. The case then came to this court upon a writ of error to the Michigan court and the judgment was affirmed. Concerning the nature of the title of a riparian owner to submerged lands over which his boundary extends this court said:

'Whatever the nature of the interest of a riparian owner in the submerged lands in front of his upland bordering on a public navigable river, his title is not as full and complete as his title to fast land which has no direct connection with the navigation of such waters. It is a qualified title, a bare technical title, not at his absolute disposal, as is his upland, but to be held at all times subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation.' Scranton v. Wheeler, 179 U. S. 141, 144, 146, 163, 45 L. ed. 126, 128, 129, 137, 21 Sup. Ct. Rep. 48.

The whole subject of the nature and character of the interest of the owner of such a title and the scope of the control of the Congress over navigable rivers has been fully considered by this court in Chandler-Dunbar Water Power Co. v. United States, just decided [229 U. S. 53, 57 L. ed. ——, 33 Sup. Ct. Rep. 667], where the decision in Scranton v. Wheeler was fully affirmed.

The case of the Monongahela Nav. Co. v. United States, 148 U. S. 312, 334, 37 L. ed. 463, 470, 13 Sup. Ct. Rep. 622, has been cited as a case in which the owners of a lock and canal and a franchise to take tolls were awarded compensation not only for the tangible property taken, but for the value to the company of the state's franchise to take tolls. That case really rests upon estoppel. The lock and dam had been constructed 'at the instance and implied invitation of Congress.' After stating the action of Congress, the court said:

'This is something more than the mere recognition of an existing 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.'

Compare Union Bridge Co. v. United States, 204 U. S. 364, 51 L. ed. 523, 27 Sup. Ct. Rep. 367.

The conclusion we reach is that the court below did not err in dismissing the action of the plaintiff in error, and the judgment is accordingly affirmed.