is presumed to have fulfilled every requisite which the discharge of his duty demands, (Russell v. Beebe, Hemp. 704,) and this maxim is applicable to the state agent, and it will be presumed that he selected and reported all the swamp lands in the county in accordance with his official duty; and after the lapse of 30 years, and on the facts of this case, this presumption would seem to be conclusive. U. S. v. Beebe, 127 U. S. 338, 8 Sup. Ct. Rep. 1083; 9 Ops. Atty. Gen. 204. But if it were swamp land it would avail the plaintiffs nothing; because, as has been shown, if it was swamp land, the state's title to it was vested in the purchaser from the United States by the acts of 1851 and 1875. The only parties, on the facts of this case, whose interests can possibly be affected by the determination of this issue are the state and the United States. If it was swamp land, the United States would be under obligation to pay to the state the purchase money it received from the railroad company for the land. It would have no other effect.

In the preparation of this opinion the court has consulted some public documents, embracing official reports and correspondence of public officers of the state and the United States, relating to the swamp lands of the state, and published by authority, that were not formally introduced in evidence. This practice has the sanction of the supreme court of the United States. U. S. v. Teschmaker, 22 How. 405; Romero v. U. S., 1 Wall. 742; Watkins v. Holman, 16 Pet. 56; Bryan v. Forsyth, 19 How. 338; Gregg v. Forsyth, 24 How. 179. The conclusions reached on other points in the case make it unnecessary to consider the effect on the plaintiff's deed of the act of congress of March 12, 1860, (12 St. 3,) which required that all selections of swamp lands to be made thereafter from lands already surveyed should be made within two years from the adjournment of the legislature of the state at its next session after the date of the act. In reference to this act see: Letter of the commissioner of the general land-office to the register and receiver at Little Rock, June 5, 1860; report of swamp-land secretary of Arkansas, October 1, 1860; report of commissioner of state lands, October 15, 1878; Buena Vista Co. v. Railroad Co., 112 U. S. 174, 5 Sup. Ct. Rep. 84; Wright v. Roseberry, 121 U. S. 511, 7 Sup. Ct. Rep. 985.

HAWKINS POINT LIGHT-HOUSE CASE.

CHAPPELL v. WATERWORTH.

(Circuit Court, D. Maryland. June 21, 1889.)

1. NAVIGABLE WATERS-SUBMERGED SOIL-RIGHTS OF UNITED STATES. In ejectment for the site of a light-house in Patapsco river, erected by the United States as a necessary aid to navigation, the plaintiff's case was that he held a grant from the state of Maryland of the submerged soil upon which the structure stood, and that it had not been condemned, nor any compensation paid or tendered for it, and that he had also, as riparian owner of the neigh.

boring shore, the right to improve out into the river over the light-house s'tc. Held, that the private interest in the submerged soil at the bottom of the river which had been granted to the plaintiff, was subject to the paramount right of the public to use the river for navigation, and of the United States, in the regulation of commerce, to erect thereon such aids to navigation as were reasonably necessary; and that the plaintiff's right to improve out into the river, until actually availed of, was subject to the right of the United States to use the soil under the water in aid of navigation without the plaintiff's consent, and without compensation.

2. SAME-EMINENT DOMAIN-COMPENSATION.

Held, also, that the United States in constructing, by authority of congress, a necessary light-house upon soil under the water of the river, was exercising a right in aid of the public right of navigation, to which the plaintiff's private ownership in the submerged soil was necessarily subservient, and that by such use the United States was not taking private property, within the meaning of the fifth amendment of the federal constitution.

(Syllabus by the Court.)

At Law. Ejectment.

John P. Poe and F. P. Stevens, for plaintiff.

Thomas G. Hayes, U. S. Dist. Atty., by direction of the attorney general, appeared for defendant; and on behalf of the defendant, and of the United States, filed the following brief:

"This is an action of ejectment brought by the plaintiff against the defendant to recover the possession of the site of Hawkins Point Light-House, situated in the Patapsco river, the same being one of the range lights of Brewerton channel. The defendant is the keeper of said light-house, he having been appointed in conformity with the acts of congress by the light-house board. The suit was instituted in the circuit court for Anne Arundel county, and under the provisions of the act of March 3, 1887, c. 373, was removed to the circuit court of the United States for the district of Maryland. The plaintiff claims title to the fast land adjacent to that part of the Patapsco river where the light-house is located, through a grant from the state of Maryland to his grantor, J. M. Johnson, in March, 1859. He also asserts title to the submerged land on which is located the light-house from the same grantor, who received a patent from the state of Maryland for it in the year 1861. The plaintiff also relies on his riparian rights under the act Md. 1862, c. 129. Code 1888, art. 54, §§ 44-46. The site involved in this suit is thus described in the defendant's plea: That portion of said submerged land used as a site for the Hawkins Point Light Station, and embracing so much of said submerged land as is necessary to hold and support nine iron piles, eighteen inches in diameter, on which piles, at the distance of twelve feet above mean high tide, the wooden structure of the said light-house is placed. The said wooden structure resting upon said piles is a square area twentyseven feet square. The center pile of said nine piles is at the center of the said square superstructure, and is situated at a point distant from the ordinary high-water mark of the adjacent shore 210 feet, more or less.' All the rest of the land described in the declaration the defendant, for himself and on behalf of the United States, denies being in possession of, and files a formal disclaimer of any right or title to the same. The light-house in question was erected on its present site in 1868 by the lighthouse board, in pursuance of the acts of congress. There was no condemnation nor compensation paid to any one for said site. It ever since has been in the possession of the United States, and used as one of the lights to aid in the navigation of Brewerton channel, in the Patapsco river; the said river being one of the public navigable rivers of the United States, and within the limits of the state of Maryland.

*

"The defendant, on behalf of himself and the United States, contends that the right of possession of the site in question is in the United States. His position as to this claim is as follows: The title to the land at the bottom of the navigable rivers of the United States, it is admitted, is in the state through whose territory these waters flow. This title of the state to these lands and waters is, however, subject to the public easement of navigation and fishery, or, perhaps, more accurately stated, the state's title is in trust for these public uses. This title of the state is exactly the same kind of title which was held by Great Britain before the Revolution, which title was subject to this easement when in the king of England. By conquest the states became the owners of these submerged lands at the bottom of the navigable waters, subject to this easement or trust, The states under the national compact surrendered or relinquished to the federal government the regulation and enforcement of this easement or trust as to commerce and navigation. Lands at the bottom of the navigable waters of the United States are therefore, as to their use for commerce and navigation, public property, and not private property, and are so taken and considered, when required by the United States for these purposes. The title to these lands in the state being subject to this easement or trust, enforceable by the United States under the constitution, which empowers congress to regulate foreign and interstate commerce, the grantees of the state take a title to these lands subject to the same limitations and public uses. In aid of commerce or navigation, the United States has therefore the right to, use the bottom of navigable rivers for the construction of a light-house,-an aid to navigation. This right of the United States to use these lands for purposes of commerce is paramount to any right of the state or its grantees under the title of the state to these lands and waters. This user by the United States of these lands and waters, which are public, and not private, property, for the purposes aforesaid, can be exercised by the United States without condemnation or payment of any consideration either to the state or its grantees. "Authority of Congress to Build Light-Houses. The light-house board, of which the secretary of the treasury is ex officio president, is, by congress, charged with the location, construction, and general management of all lighthouses. The light-house board constructed Hawkins Point Light-House in 1868, under an act of congress which appropriates for the establishment of beacon lights to mark Brewerton channel, Patapsco river, thirty thousand dollars.' Section 4658, Rev. St.; Act July 28, 1866, (14 St. at Large, 313.) "Title of State to Submerged Lands. The title of the state to the land at the bottom of the navigable rivers within its limits is quite different from the title it holds to its uplands forming part of its public territory. The former is held, together with the water which covers them, by the state, in its capacity as a sovereign, for the public use and enjoyment of all its citizens. There is attached to this title a trust, to-wit, for the use and benefit of all its citizens in navigation and fishery. The state cannot divest its title of this trust. A grant by the state of such lands conveys a title subject to this trust. The title of the state to its uplands forming its public territory is an absolute and unqualified fee. The state's title to the lands submerged by the waters of the navigable rivers is exactly the same as was the title of the king to these lands before the Revolution. These lands belonged to the king of Great Britain as a part of the jura regalia of the crown. They were held as a royal prerogative for the benefit of the people at large. The same kind of title devolved on the state after the Revolution, subject to the rights surrendered by the states to the United States under the constitution. The right to regulate commerce between the states, foreign nations, and the Indian tribes, was, by article 1, § 8, of the constitution, surrendered by the states to the federal government, and by the same instrument this right is made exclusive, plenary, and paramount. This title to submerged lands has been frequently passed on by the

courts, both federal and state. In the case of Martin v. Waddell the supreme court of the United States elaborately discussed the character of these titles. Chief Justice TANEY, in delivering the opinion of the court in that case, said: For when the revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government.' 16 Pet. 410. In another case the supreme court of the United States, by Mr. Chief Justice WAITE, in defining the title of Virginia to the beds of her navigable rivers, said: The title thus held is subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States.' McCready v. Virginia, 94 U. S. 391. In Maryland the same doctrine has been held by its court of appeals. In Day v Day, Judge COCHRAN says: The common-law distinction between navigable waters, and rivers or streams not navigable, is founded on the difference of the rights to which they are respectively subject; the entire property of the former being vested in the public, while the latter belong to riparian proprietors, although in some cases subject to a qualified public use. Rivers or streams within the ebb and flow of tide, to high-water mark, belong to the public, and in that sense are navigable waters; all the land below high-water mark being as much a part of the jus publicum as the stream itself.' 22 Md. 537. The same law is annouuced in an early case, (1821,) as to Lord Baltimore's title to submerged lands. Browne v. Kennedy, 5 Har. & J. 203.

"The Right of the United States to Take Submerged Land for the Site of a Light-House without Condemnation or Compensation. It is submitted that the following general propositions are true, and are firmly established by the judicial decisions of the federal courts: (1) The ownership of the state in the soil under navigable waters is subservient to the public right of navigation, the regulation of which as to certain commerce has been surrendered by the states to the United States. This soil cannot be used either by the state or its grantees so as to interfere with this right, the regulation of which, as vested in the United States, is exclusive, plenary, and paramount. (2) This public right is an easement on the title of the state and its grantees in these lands, enforceable by the United States, and for the enjoyment of such easement such erections may be made by the United States as are necessary for the beneficial use of the easement in question. (3) These submerged lands, with the waters, are public property, and not private property, and, when the United States needs any of these lands for purposes of commerce or navigation, it can take them without condemnation, or compensation either to the state or its grantees.

"These propositions are supported by numerous decisions of the supreme court and circuit courts of the United States, as well as by the opinions of the attorney generals of the United States. The following is a list of the most important of such cases and opinions: 15 Op. Attys. Gen. 50, Mr. Pierrepont; 16 Op. Attys. Gen. 535, Mr. Devens; Gibbons v. Ogden, 9 Wheat. 190; Martin v. Waddell, 16 Pet. 410, 413; Pollard v. Hagan, 3 How. 230; Gilman v. Philadelphia, 3 Wall. 713; South Carolina v. Georgia, 93 U. S. 4; McCready v. Virginia, 94 U. S. 391; Telegraph Co. v. Telegraph Co., 96 U. S. 1; Boom Co. v. Patterson, 98 U. S. 403; Mobile Co. v. Kimball, 102 U. S. 691; Hoboken v. Railroad Co., 124 U. S. 656, 8 Sup. Ct. Rep. 643; Bridge Co. v. Hatch, 125 U. S. 12, 8 Sup. Ct. Rep. 811; Stockton v. Railroad Co., 32 Fed. Rep. 19; Illinois v. Railroad Co., 33 Fed. Rep. 730. The states surrendered to the United States the entire control over commerce with foreign nations, between the states, and with the Indian tribes. Article 1, § 8, Const. U. S. The power of congress to regulate commerce was stated by

Mr. Chief Justice MARSHALL to include the power to regulate navigation. Gibbons v. Ogden, 9 Wheat. 190. The power to establish light-houses and buoys and beacons is held to be embraced in the commercial power of congress. Mr. Justice FIELD said: Buoys and beacons are important aids, and sometimes are essential, to the safe navigation of vessels, in indicating the channel to be followed at the entrance of harbors and in rivers, and their establishment by congress is undoubtedly within its commercial power.' Mobile Co. v. Kimball, 102 U. S. 691. The question as to the right of the United States to use the bottom of navigable rivers for various structures has frequently arisen in late years in the supreme court of the United States, and that court invariably has sustained the paramount right of the United States to use the bottom of these rivers for any purpose affecting commerce, even against the protest of the state, which it was conceded held the legal title. In the recent case of Boom Co. v. Patterson, a question arose as to the respective rights of the state of Minnesota and the United States to the use of the bottom of the Mississippi river for a log boom. The construction of these log booms, as set forth in the case, consisted of building piers on the bottom of the river, and then connecting these piers by boom sticks, forming a pen in which the logs were floated and stored,-a kind of log warehouse. The question arose in the condemnation of an island owned by Patterson by the company for a log boom, the company claiming that Patterson was only entitled to the value of the island as land without considering its availability for a boom, as no one else could use it for that purpose, as under their charter from Minnesota they had the exclusive privilege. The supreme court rejected this view, and in stating that the right of the company was not exclusive, because the United States could grant the same privilege to another, Mr. Justice FIELD said: Moreover, the United States, having paramount control over the river, may grant such license if the state should refuse one.' 98 U. S. 403. If the United States, against the consent of a state, can grant a license to build a log warehouse on the bottom of the Mississippi river, can it be doubted that nine piles can be driven by the United States in the Patapsco river to support a light-house to direct navigators in navigating Brew erton channel, against the consent of the grantee of the state?

"In another case the supreme court, in commenting on the title of New Jersey and its grantees to the submerged land in front of the city of Hoboken, by Mr. Justice MATTHEWS said: Over these lands it [N. J.] had absolute and exclusive dominion, including the right to appropriate them to such uses as might best serve its views of the public interest, subject to the power conferred by the constitution upon congress to regulate foreign and interstate commerce.' Hoboken v. Railroad Co., 124 U. S. 656, 8 Sup. Ct. Rep. 643. Mr. Justice BRADLEY, speaking for the supreme court, in commenting upon the respective powers of the state and United States over the navigable waters, and the erection and removal of structures on the bottom of these rivers, said: And although, until congress acts, the states have the plenary power supposed, yet, when congress chooses to act, it is not concluded by anything that the states or that individuals, by its authority or acquiescence, have done, from assuming entire control of the matter, and abating any erections that may have been made, and preventing any others from being made, except in conformity with such regulations as it may impose.' Bridge Co. v. Hatch, 125 U. S. 12, 8 Sup. Ct. Rep. 811. In 1875 a question arose as to the right of the United States to locate in the bed of the Saginaw river two range lights without first obtaining the title to the sites. The secretary of the treasury requested the opinion of Mr. Pierrepont, the attorney general, on the question. On September 20, 1875, he replied: I would respectfully submit that, in my judgment, the United States have the right to erect range lights in the waters of the Saginaw river without reference to v.39F.no.2-6