Before 1789 the bed of the Hudson river was the property of the State of New York. It also exercised governmental control over its waters. In a navigable stream, whatever property and powers the State had were held in trust for the people of New York and were subject to their right to use the river for their own navigation and commerce. (Matter of Mayor, 182 N.Y. 361;People ex rel. Palmer v. Travis, 223 N.Y. 150.) The State might regulate its flow by dams or other means. It might improve its bed. It might remove obstructions. It might to a reasonable extent divert its waters into canals. It might exercise all the powers possessed by the King and Parliament before the Revolution.
A riparian proprietor also had certain rights. He was entitled to access of the stream. He might erect docks not interfering with navigation. (Town of Brookhaven v. Smith, *Page 505 188 N.Y. 74.) He might divert reasonably its flow and lead it over his own land so creating water power. And he might do this as well where the level of the river was raised by a State dam as where the river passed his property in its natural condition if only such surplus was taken as was not needed for State purposes. (United Paper Board Company v. Iroquois Pulp Paper Company,249 N.Y. 588.) Except to improve navigation the State would have no right to deprive him of the use of the amount of water which naturally ran past his premises.
Some things, however, were not permitted. Without consent he might not enter upon State lands and erect structures thereon. He might not build a dam or other obstruction to the flow of the river. If he did he created a purpresture, or, if it also interfered with navigation, a public nuisance. (People v.Vanderbilt, 26 N.Y. 287; Ice Company v. Schultz, 116 N.Y. 382. ) In either case it might be abated and removed at the suit of the Attorney-General. If a public nuisance a remedy might also be had in an action by any one shown to be especially injured thereby. So I think, if a purpresture. Under our form of government, title being in the people, any one especially injured by the invasion of their rights should have a remedy as in the case of a nuisance.
All these rights and powers remain unchanged except in so far as we have chosen to surrender them to the government of the United States. We did agree that Congress should have power to regulate commerce with foreign nations and among the several States. Just how far we believed we surrendered our authority over the Hudson by this clause is far from clear. Singularly little appears in the debates of the Convention, in the debates here when the Constitution was ratified or in the Federalist on the subject, although the need for the creation of a central authority to regulate commerce was one of the moving causes for the adoption of the Constitution. (Brown v. Maryland, 12 Wheat. [U.S.] 419.) *Page 506
Whatever may have been understood at the time we are admonished that the words used are to be given a broad significance. (Gilman v. Philadelphia, 3 Wall. [U.S.] 713; Gibson v.United States, 166 U.S. 269; United States v.Chandler-Dunbar Water Power Co., 229 U.S. 53; New Jersey v.Sargent, 269 U.S. 328.) They confer the power not only to regulate shipping itself but to regulate the stream. Congress may deepen the river; turn one channel into another; remove obstructions; build dams to regulate the flow of the water; forbid, without its consent, the erection of structures that do or may interfere with navigation, and may doubtless do many other things. But there is a limit to its power. Whatever it does must be "to regulate commerce with foreign nations and among the several states." It has no rights in the Hudson not connected with navigation. (Groat v. Moak, 94 N.Y. 115; People v.International Bridge Company, 223 N.Y. 137, 145.) And it is for the courts to determine whether this limit has been exceeded. They must decide ultimately whether congressional regulation has any relation to commerce. (Chief Justice FULLER in LotteryCases, 188 U.S. 321.) If it has not, there is no basis upon which it may rest.
Undoubtedly Congress may determine for itself what is an obstruction to a navigable stream and its determination is conclusive. It may forbid the erection of bridges or dams or it may, so far as it is concerned, permit them with the consent of some official. It does these things in connection with its power over commerce. It has no power, however, to give an individual plenary authority to erect a dam for power purposes across the Hudson. Its permit merely waives an objection to such a work that the United States might otherwise make. Any one relying on that permit alone commits a trespass upon the lands of the State. He invades its property. As has been said, it is a purpresture subject to abatement. And as I have before indicated, I think any one especially injured has a remedy. *Page 507
The act we have before us is a general one as is pointed out by the chief judge subjecting all dams and similar buildings to Federal license and supervision. So much may be done. Their erection and maintenance directly affect the flow of a navigable river. They cannot be built without Federal consent. (People exrel. Lehigh V. Ry. Co. v. Tax Commission, 247 N.Y. 9.) But this consent is not enough unless it is given in aid of navigation. It removes but one obstacle in the way of the lawful maintenance of the dam.
Taken at its face value the act does more than refer to navigation. It permits dams for the development of water power. This Congress has no power to do. At most it may give its consent if the dam is otherwise permitted. Under that consent alone the defendant has no authority to do what it has done.
For on its face the permission shows it was given with no reference to commerce. Clearly it was simply to allow the defendant to develop water power for manufacturing purposes. Acting under it alone the defendant has violated the rights of the State and has also injured the plaintiffs.
It seems to me immaterial whether we construe the statute with an "or" or an "and." If with "or" it is plainly a usurpation of power nowhere conferred. If with "and," I think it equally unauthorized. I do not think the United States may traffic in excess power, created by a dam legally created for purposes of commerce. What is said in the Chandler-Dunbar case is plainly a dictum. But whether this be so or not we need not decide. Here, as has been said, there is no attempt to sell such excess power. New power is attempted to be created for purely private purposes.
CRANE, J., in memorandum, LEHMAN, KELLOGG and O'BRIEN, JJ., concur with POUND, J.; CARDOZO, Ch. J., and ANDREWS, J., in opinions concur in result.
Judgment affirmed, etc. *Page 508
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