dissenting.
I dissent from the judgment by which the appellant’s wharf is physically taken, its existing right'of access to navigable water destroyed, and its private property appropriated to public use without compensation.
At, above and below the Norfolk Navy Yard, the navigable part of the Elizabeth River is 600 feet in width. In 1873 appellant’s wharf was built opposite the Nayy Yard, through shallow water out to the navigable channel of the stream. Several years afterward, under authority of the State of Virginia, the Norfolk Wardens established a port line which ran along the edge of this channel and left the Lumber Company’s wharf and logging pond outside of the harbor.
In 1890, fourteen years later, the Secretary of War established exactly the same line; and thus by City, state and Federal authority the plaintiff’s wharf was shown to be a lawful structure outside of the harbor, and not an obstruction to navigation either in law or in fact. Since that date there has been no change in the condition of the stream; and the wharf remained a lawful structure until 1911 when, — having decided to widen the river at that point, as a place of storage for war vessels, — Congress in that part of the Act of March 4, 1911 (36 Stat. 1275) relating to the Navy Yard at Norfolk, made an appropriation of $80,000 “for the purchase of land and widening the channel.” Accordingly, on June 12, 1911, the harbor line was changed, at this particular point, so as to take in the part of the river intended to be widened, but leaving the Norfolk harbor line otherwise unaffected. No one understood, however, that fixing the line 200 feet further inland at this place for this naval purpose authorized the taking of plaintiff’s wharf without compensation. And the act of Congress so obviously included the property of the plaintiff, as a part of that to be purchased, that the Secre*270tary of the Navy on July 22, 1911, “wrote to the complainant stating that that Department intended making certain improvements in the Navy Yard and requesting the complainant to fix a price at which it would sell so much of its property or wharf and logging pond as lay without the present Portwar den’s line.”
The complainant named a price which the Department considered exorbitant, and — the parties failing to agree— the Government began proceedings in the District Court of the United States
“to acquire title by condemnation to a certain piece of land, situated in the southern branch of the Elizabeth River, Virginia, held and owned by the Greenleaf Johnson Lumber Company, which is needed for public uses and purposes; that is to say for deepening and widening the said South Branch of the Elizabeth River, as authorized by Act of March 4, 1911 (36 Stat. 1275).”
The statutory notice was giveii the owner and a jury was impanelled to assess the value of complainant’s property, when, suddenly, the proceedings were dismissed and, what was a wharf — lawfully erected in a non-navigable part of the stream and outside of the old line, — was declared to be “a menace to navigation.”
The control which Congress has over navigable waters by virtue of the power to regulate commerce is practically unlimited, except in one particular. The Fifth Amendment was passed for the purpose of restraining the exercise of that or any other power by which private property was taken. Monongahela Co. v. United States, 148 U. S. 336; McCray v. United States, 195 U. S. 61 (3). That Amendment was intended to protect the citizen against the Government; and bping the expression of the fundamental policy of a people, both able and willing, to pay, should be given a broad and liberal construction. Congress in directing that the Elizabeth River should be widened distinctly indicated its intention that the private property *271needed for that purpose should be “purchased.” The Secretary of the Navy so understood the statute and began proceedings to ascertain the amount the Government should pay for the property of the appellant needed- for widening the river. In the absence of absolutely controlling authority, requiring a different interpretation, the complainant should receive the payment intended by Congress and demanded by the Constitution wherever private property is taken for a public use. But there is no such authority cited, for none of the decisions relied on by the Government sustain the contention that, on facts like these, wharf property can be taken without compensation.
Some of the cases cited make a distinction between taking and damaging, and then hold that the owner cannot recover for consequential damages resulting from making public improvements in navigable waters • (Scranton v. Wheeler, 179 U. S. 141). Another holds that the title of the riparian owner to oysters in the bed of a body-of public water is inferior to the right of the Government to deepen the channel in the interest of commerce. Lewis Oyster Co. v. Briggs, 229 U. S. 82. Another related to a case where a power dam had been constructed -under a . revocable license. It was held that the owner acquired no such right in the flow in the stream as would give him a claim for damages when -the Government, in the interest of navigation, caused the water to run in another channel. United States v. Chandler, 229 U. S. 53. Another holds that where the Government had constructed a dam, which raised the level of the river and backed the water beyond the old harbor line, the person who purchased after the dam was built could not complain because he was prevented from building a wharf inside the new harbor lines which had been changed to conform to the new line of deep water. But the right of the person who owned the land before the dam was built was expressly left open for future *272decision. Philadelphia Co. v. Stimson, 223 U. S. 627. In some of the cases it appeared that bridges- had been built subject to the power expressly reserved to order, them removed. Hannibal Bridge Co. v. United States, 221 U. S. 194. Several of the cases hold that those who build bridges or tunnels across the navigable channel of a stream can be required at their own expense to raise or lower the structures whenever they become obstructions to navigation. Union Bridge Co. v. United States, 204 U. S. 364; West Chicago R. R. v. Chicago, 201 U. S. 506.
But no case has been cited which holds that a wharf,' in shallow water, outside an established harbor line, can be declared an obstruction to navigation, the property taken and the owner ousted of possession without compensation.
On the contrary, Yates v. Milwaukee, 10 Wall. 497, distinctly holds that this cannot be done. There the City, by the act of 1854, had authority ‘by ordinance to establish dock and wharf lines and to prevent obstructions in the river and to cause it to be dredged.’ Thereafter Yates built a wharf, across the harbor line, through the shallow water out to the navigable channel of the Milwaukee River. Subsequently a new line was established (505) and in 1864, the city declared, as the Secretary did here, that the wharf (inside the harbor line), was an obstruction. This court said:
“The mere declaration by the city council of Milwaukee that a certain structure was an encroachment or obstruction did not make it so, nor could such declaration make it a nuisance unless it in fact had that character.” (505)
Again, speaking of the land-owner’s right to build docks, the court said:
“This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously de*273stroyed or impaired. .It is a right of which,.when, once vested, the owner can only be deprived in accordance with established law, and if necessary that it be taken for the public good, upon'due compensation.”
There is a remarkable similarity between the facts in the Yates Case and the present. There the dock was to be ‘removed in pursuance of a general scheme of widening the channel and in improving the navigation of the Milwaukee River.’ Here Congress appropriated $80,000 ‘to purchase land and to widen the channel’ of the Elizabeth. River in the interest of the Navy Yard. But even such governmental purposes would not justify a taking without payment; for, .in the Yates Case, the court concluded its' opinion by the use of language which is absolutely applicable to the present controversy, saying:
“If the authorities of the city of Milwaukee deem its' [the wharf’s] removal necessary in the prosecution of any general scheme of widening the channel and improving the navigation of the Milwaukee River, they must first make him compensation for his property so taken for the public use.”
That case has never been overruled and is a notable illustration of the meaning of the Fifth Amendment, which, standing between the Government and the private individual, provides a means by which the interests of the public can be secured without destruction of the rights of the citizen.
Most of the wharves in the United States were located many years before the adoption of the act conferring power upon the Secretary of War to establish harbor lines. Congress did not intend to destroy existing rights (Montgomery v. Portland, 190 U. S. 105) and it is inconceivable that it could have intended to vest that officer with the power to declare that these lawful structures, worth hundreds of millions of dollars and useful agencies of commerce, were obstructions to navigation merely because *274they were inside of a line which he might decide to run in non-navigable water.
. The present case is even stronger, for the complainant’s wharf is located outside of a harbor line which had been established in 1890 by the Secretary of War himself. The wharf was not an obstruction to navigation when it was built in 1873; it was not an obstruction to navigation when the Secretary established the line in 1890; it has not become an obstruction to navigation during the years it has remained in shallow water, and, under the Yates Case, cannot be made an obstruction in fact by declaring (where there has been no change in the stream), that it is such in law.
Few cases directly in point can be found, but out of the multitude which deal with the principle involved, the facts and rulings in the following tend to sustain the appellant’s right to compensation for- the wharf taken for public use: Dutton v. Strong, 1 Black, 1; Railroad Company v. Schurmeir, 7 Wall. 272; Monongahela Navigation Co. v. United States, 148 U. S. 312, 336; Commonwealth v. Alger, 7 Cush. 53, 103; Langdon v. Mayor of New York, 98 N. Y. 129, 161; Kingsland v. Mayor of New York, 110 N. Y. 570, 574; Fitchburg R. Co. v. Boston & M. R. Co., 3 Cush. 71; Hamlin v. Parpoint, 141 Massachusetts, 57; Lewis v. Portland, 25 Oregon, 133, 167; B. & O. R. R. Co. v. Chase, 43 Maryland, 35-36; Classen v. Chesapeake Co., 81 Maryland, 259.
The power of the Secretary of War to run harbor lines may not be exhausted when once exercised, and, from time to time, they may be relocated over unused and submerged land. But as against lawful structures, the line must be' run to conform to the physical conditions of the stream and to meet changes occasioned by the washing of the. water or other natural causes. But the public cannot determine to widen the river, artificially create a channel, and thus, by its own act, acquire a right to declare *275that what was formerly a lawful structure in shallow water will be an obstruction to a storage basin to be artificially created.
In Commonwealth v. Alger, 7 Cush. 53, 103, it is strongly intimated' that the power to establish harbor lines does not confer authority to take, without compensation, existing structures lawfully built out to the navigable channel. Other cases hold that the establishment of the line is in the nature of an invitation to fill in and build out to that line. Sherman v. Sherman, 18 R. I. 506. So here the action of the Secretary of War in 1890 “is to-be construed as a regulation of the exercise of the riparian right; it settles the line of navigability above which the State will not interfere; and is an implied concession of the right to build, possess and occupy, which amounts practically to a qualified possessory title. Miller v. Mendenhall, 43 Minnesota, 95, citing Hamlin v. Parpoint, 141 Massachusetts, 51. See also Langdon v. Mayor, 98 N. Y. 129, 161; City of Brooklyn v. New York Ferry Co., 87 N. Y. 204, 206, and Williams v. Mayor of New York, 105 N. Y. 429.
The action of the Secretary of War in 1890 in establishing a harbor lilie was, in effect, a declaration that wharves outside of the limits of that harbor thus marked and defined were not obstructions to navigation and, as against existing wharfs, the line could not thereafter be changed except to meet natural changes in the channel. Congress in authorizing the Secretary of War to establish lines, clearly indicated an intention to secure fixity and permanency. If such was not its intention, then — as shown by the actual results in the present case — nothing could be more unstable than the tenure by which riparian owners hold docks, pie^s and wharves. For, progressively, it is said that the builders cannot rely on grants from the State; they cannot rely on lines fixed by the Port Wardens of the State; and it is now decided that they cannot rely on a line fixed by the Secretary of War. For, under the *276ruling in the present case, he can, by running a new line, take in 200 feet of a wharf outside of an old line and then oust the owner from the possession and use of that property without compensation.
The wharf here involved may not be of great value, but my view of the harm done the Appellant and of the possibility of like serious consequences to a multitude of persons who have built and invested in these costly and useful instrumentalities of commerce compel me to dissent from the judgment.