THOMPSON WILLSON AND OTHERS, PLAINTIFFS IN ERROR vs. THE BLACK BIRD
CREEK MARSH COMPANY, DEFENDANTS.
SUPREME COURT OF THE UNITED STATES
27 U.S. 245; 7 L. Ed. 412; 1829 U.S.
LEXIS 404
March 20, 1829, Decided
PRIOR HISTORY: [***1]
THIS
was a writ of error to the high court of errors and appeals of the state of
Delaware.
The Black Bird Creek Marsh Company were
incorporated by an act of the general assembly of Delaware, passed in February
1822; and the owners and possessors of the marsh, cripple, and low grounds in
Appoquinimink hundred, in New Castle county, and state of Delaware, lying on
both sides of Black Bird Creek, below Mathews's landing, and extending to the
river Delaware; were authorised and empowered to make and construct a good and
sufficient dam across said creek, at such place as the managers or a majority of
them shall find to be most suitable for the purpose; and also, to bank the said
marsh, cripple, and low ground, &c.
After the
passing of this act, the company proceeded to erect and place in the creek a
dam, by which the navigation of the creek was obstructed; also embanking the
creek, and carrying into execution all the purposes of their incorporation.
The defendants being the owners, &c. of a sloop called
the Sally, of 95 9-95ths tons, regularly licensed and enrolled according to the
navigation laws of the United States, broke and injured the dam so erected by
the company; and thereupon [***2] an action of trespass, vi et armis,
was instituted against them in the supreme court of the state of Delaware, in
which damages were claimed amounting to $20,000. To the declaration filed in the
supreme court, the defendants filed three pleas; the first only of which being
noticed by the Court in their decision, the second and third are omitted.
This plea was in the following terms:
1. That the place where the supposed trespass is alleged to have been
committed, was, and still is, part and parcel of said Black Bird Creek, a public
and common navigable creek, in the nature of a highway, in which the tides have
always flowed and re-flowed; in which there was, and of right ought to have
been, a certain common and public way, in the nature of a highway, for all the
citizens of the state of Delaware and of the United States, with sloops or other
vessels to navigate, sail, pass and repass, into, over, through, in, and upon
the same, at all times of the year, at their own free will and pleasure.
Therefore the said defendants, being citizens of the state
of Delaware and of the United States, with the said sloop, sailed in and upon
the said creek, in which, &c. as they lawfully might for [***3]
the cause aforesaid; and because the said gum piles, &c. bank and dam, in
the said declaration mentioned, &c. had been wrongfully erected, and were
there wrongfully continued standing, and being in and across said navigable
creek, and obstructing the same, so that without pulling up, cutting, breaking,
and destroying the said gum piles, &c. bank and dam respectively, the said
defendants could not pass and repass with the said sloop, into, through, over,
and along the said navigable creek. And that the defendants, in order to remove
the said obstructions, pulled up, cut, broke, &c. as in the said declaration
mentioned, doing no unnecessary damage to the said Black Bird Creek Marsh
Company; which is the same supposed trespass, &c.
The plaintiffs, in the supreme court of the state, demurred generally
to all the pleas; and the court sustained the demurrers, and gave judgment in
their favour. This judgment was affirmed in the court of appeals, and the record
remanded, for the purpose of having the damages assessed by a jury. Final
judgment having been entered on the verdict of the jury, it was again carried to
the court of appeals, where it was affirmed, and was now brought before
this [***4] Court, by the defendants in that court, for its
review.
LAWYERS' EDITION HEADNOTES: Practice -- Constitutionality of a Delaware Act of Assembly. --
Headnote: This court has frequently
decided that, to sustain its jurisdiction in appeals and writs of error, it is
not necessary to state, in terms, upon the record that the Constitution, or a
law of the United States, was drawn in question. It is sufficient to bring the
case within the provisions of the 25th section of the Judicial Act, if the
record shows that the Constitution, or a law of the United States, must have
been misconstrued, or the decision could not have been made; or that the
constitutionality of a State law was questioned, and the decision was in favor
of the party claiming under such law. [250] The Act of the Assembly
of the State of Delaware, by which the construction of the dam erected by the
plaintiffs was authorized, shows plainly that this is one of those many creeks
passing through a deep, level marsh, adjoining the Delaware, up which the tide
flows for some distance. The value of the property on its banks must be enhanced
by excluding the water from the marsh, and the health of the inhabitants
probably improved. Measures calculated to produce these objects, provided they
do not come in collision with the powers of the general government, are,
undoubtedly, within those which are reserved to the States. But the measure
authorized by this Act stops a navigable creek, and must be supposed to abridge
the rights of those who have been accustomed to use it. But this abridgment,
unless it comes in conflict with the Constitution, or a law of the United
States, is an affair between the government of Delaware and its citizens, of
which this court can take no cognizance. [251] If Congress had
passed any Act, in execution of the power to regulate commerce, the object of
which was to control State legislation over these small navigable creeks, into
which the tide ebbs and flows, and which abound throughout the lower country of
the Middle and Southern States, we should feel not much difficulty in saying
that a State law coming in conflict with such Act would be void. But Congress
has passed no such Act. The repugnancy of the law of Delaware is placed entirely
on its repugnancy to the law to regulate commerce with foreign nations and among
the several States; a power which has not been so exercised as to affect this
question. [252]
SYLLABUS: This Court has
frequently decided, that to sustain its jurisdiction in appeals and writs of
error, it is not necessary to state, in terms, upon the record, that the
constitution, or a law of the United States was drawn in question. It is
sufficient to bring the case within the provisions of the 25th section of the
judicial act, if the record shows that the constitution or a law of the United
States must have been misconstrued, or the decision could not have been made; or
that the constitutionality of a state law was questioned, and the decision was
in in favour of the party claiming under such law.
The
act of the assembly of the state of Delaware, by which the construction of the
dam erected by the plaintiffs was authorised, shows plainly that this is one of
those many creeks passing through a deep level marsh, adjoining the Delaware, up
which the tide flows for some distance. The value of the property on its banks,
must be enhanced by excluding the water from the marsh, and the health of the
inhabitants probably improved. Measures calculated to produce these objects,
provided they do not come in collision with the powers [***5] of the
general government, are, undoubtedly, within those which are reserved to the
states. But the measure authorised by this act, stops a navigable creek, and
must be supposed to abridge the rights of those who have been accustomed to use
it. But this abridgement, unless it comes in conflict with the constitution, or
a law of the United States, is an affair between the government of Delaware and
its citizens; of which this Court can take no cognizance.
If congress had passed any act, in execution of the power to regulate
commerce, the object of which was, to control state legislation over these small
navigable creeks, into which the tide ebbs and flows, and which abound
throughout the lower country of the middle and southern states; we should feel
not much difficulty in saying, that a state law coming in conflict with such act
would be void. But congress has passed no such act. The repugnancy of the law of
Delaware is placed entirely on its repugnancy to the law to regulate commerce
with foreign nations, and among the several states; a power which has not been
so exercised as to affect this question.
COUNSEL: The case was argued for the plaintiffs in error by Mr
Coxe; and by Mr [***6] Wirt, attorney general, for the defendants.
Mr Coxe insisted that the record contained a case in which
the constitutionality of a law of the state of Delaware had been brought into
question; and the decision of the highest tribunal of the state had been in
favour of its constitutionality. Under the provisions of the 25th section of the
judiciary law, this case is, therefore, protected before this Court.
It may be admitted that other questions were presented to
the courts of Delaware. As the act incorporating the defendants in error was
subsequently, in part, repealed, those courts had before them other questions
arising under the repealing statute. But he contended, that upon the authority
of many cases decided in this Court, there was sufficient apparent on the
record, to show that the constitutionality of the law to which the plaintiff in
error objects, must have been decided before those tribunals.
It has been repeatedly held, that to give this Court jurisdiction it is
not necessary that the constitutionality of the law shall have been specially
questioned before the Hate court. If upon examination of the record it shall be
found that unless the court should have held the [***7] law to be
constitutional, they could not have given the judgment presented by the record,
it is sufficient to maintain the jurisdiction here, under the act of
congress.
Mr Coxe contended that the judgment of the
high court of errors and appeals was erroneous, because the act of the general
assembly of the state of Delaware, so far as the same authorized the company to
shut up and embank across a navigable stream, below the ebb and flow of the
tide, is repugnant to the constitution of the United States; and conferred no
valid authority upon the company to destroy the navigation of the creek. He also
considered the second act of the legislature of Delaware as a repeal of the
provisions of the first law. The Court not having noticed this point in their
decision, the arguments of counsel upon it are omitted.
the first plea having stated the river to be navigable, it is against
the principles of the common law to obstruct it. 10 Mass. Rep. 70. The rights of
navigation are public rights, belonging to all the citizens of the United
States. The use of them is necessary for the purposes of commerce to the whole
people of the United States.
Navigable streams are the
waters of the United [***8] States. 9 Wheaton, 187.
He urged that the constitutional power of congress to regulate
commerce, includes navigation; and the states are by this provision deprived of
the power f closing a navigable river. In this case, the sloop was a licesed and
enrolled vessel to carry on the coasting trade, and she was unlawfully and
unconstitutionally impeded in the use of her license, by the dam erected by the
defendants, under the unconstitutional act of the assembly of Delaware.
The statute of Delaware does not look to the preservation
of the health of the citizens of the state, but to private emolument.
Upon the right of navigation being jus publicum, Mr Coxe
cited Coop. Justinian, 68. Angel, 15. Vattel, 178, Lib. I. Sec. 234, &c. 1
Halstead, 72, 76. Angel, 167. Hargrave's Collection, 36, 72, 87. He relied on
the decision of this Court in Gibbons vs. Ogden, 9 Wheaton, 187, as a conclusive
authority for the plaintiffs in error.
If Delaware has
no right to restrain particular vessels from using her navigable streams, she
cannot stop the navigation of those streams.
Mr Wirt,
for the defendants, contended that the record does not present a case in which
this Court has jurisdiction. [***9] The courts of Delaware might
have decided in favour of the defendants in error without sustaining the
constitutionality of the act of incorporation; and this Court will not assume
that the question was decided, if upon other grounds the opinion of the state
court could be maintained. In Mathews vs. Zane, the Court held that the question
of constitutionality must have arisen inevitably. Does the act authorising the
erection of this dam violate the constitution of the United States? It is
admitted that the creek was navigable; and that the stream was a public highway.
But it is asked whether the legislature of a state may not stop up a public
highway within the territories of the state? Parliament, in England, exercises
the power to stop up streams, which are public highways. 4 Barn. & Cress.
589.
It cannot be urged that the power to regulate
commerce can interfere with the rights of the states over the property within
their boundaries. While the waters of the United States belong to the whole
people of the nation, this creek continued subject to the power of the state in
whose territory it rises. It is one of those sluggish reptile streams, that do
not run but creep, and which, [***10] wherever it passes, spreads
its venom, and destroys the health of all those who inhabit its marshes; and can
it be asserted, that a law authorising the erection of a dam, and the formation
of banks which will draw off the pestilence, and give to those who have before
suffered from disease, health and vigour, is unconstitutional?
The power given by the constitution to congress to regulate commerce,
may not be exercised to prevent such measures; and there has been no legislation
by congress under the constitution, with which the proceedings of the defendants
under the law of Delaware have interfered.
OPINIONBY: MARSHALL
OPINION:
[*250] [**414] Mr Chief Justice MARSHALL delivered the
opinion of the Court.
The defendants in error deny the
jurisdiction of this Court, because, they say, the record does not show that the
constitutionality of the act of the legislature, under which the plaintiff
claimed to support his action, was drawn into question.
Undoubtedly the plea might have stated in terms that the act, so far as
it authorized a dam across the creek, was repugnant to the constitution of the
United States; and it might have been safer, it might have avoided any question
respecting [***11] jurisdiction, so to frame it. But we think it
impossible to doubt that the constitutionality of the act was the question, and
the only question, which could have been discussed in the state court. That
question must have been discussed and decided.
The
plaintiffs sustain their right to build a dam across the creek by the act of
assembly. Their declaration is founded upon that act. The injury of which they,
complain is to a right given by it. They do not claim for themselves any right
independent of it.They rely entirely upon the act of assembly.
The plea does not controvert the existence of the act, but denies its
capacity to authorise the construction of a dam across a navigable stream, in
which the tide ebbs and flows; and in which there was, and of right ought to
have been, a certain common and public way in the nature of a highway. This plea
draws nothing into question but the validity of the act; and the judgmen of the
court must have been in favour of its validity.Its consistency with, or
repugnancy to the constitution of the United States, necessarily arises upon
these pleadings, and must have been determined. This Court has repeatedly
decided in favour of its jurisdiction [***12] in such a case. Martin
vs. Hunter's lessee(n1), [*251] Miller vs. Nicholls (n2), and
Williams vs. Norris (n3), are expressly in point. They establish, as far as
precedents can establish any thing, that it is not necessary to state in terms
on the record, that the constitution or a law of the United States was drawn in
question. It is sufficient to bring the case within the provisions of the 25th
section of the judicial act, if the record shows, that the constitution or a law
or a treaty of the United States must have been misconstrued, or the decision
could not be made. Or, as in this case, that the constitutionality of a state
law was questioned, and the decision has been in favour of the party claiming
under such law.
n1 1 Wheaton,
355.
n2 4 Wheaton, 311.
n3 12
Wheaton, 117.
The jurisdiction of the Court being
established, the more doubtful question is to be considered, whether the act
incorporating the Black Bird Creek Marsh Company is repugnant to the
constitution, so far as it authorizes a dam across the creek. The plea states
the creek to be navigable, in the nature of a highway, through which the tide
ebbs and flows
The act of assembly by which the
plaintiffs [***13] were authorized to construct their dam, shows
plainly that this is one of those many creeks, passing through a deep level
marsh adjoining the Delaware, up which the tide flows for some distance. The
value of the property on its banks must be enhanced by excluding the water from
the marsh, and the health of the inhabitants probably improved. Measures
calculated to produce these objects, provided they do not come into collision
with the powers of the general government, are undoubtedly within those which
are reserved to the states. But the measure authorised by this act stops a
navigable creek, and must be supposed to abridge the rights of those who have
been accustomed to use it. But this abridgement, unless it comes in conflict
with the constitution or a law of the United States, is an affair between the
government of Delaware and its citizens, of which this Court can take no
cognizance.
The counsel for the plaintiffs in error
insist that it comes [*252] in conflict with the power of the United
States "to regulate commerce with foreign hations and among the several
states."
If congress had passed any act which bore upon
the case; any act in execution of the power to regulate [***14]
commerce, the object of which was to control state legislation over those small
navigable creeks into which the tide flows, and which abound throughout the
lower country of the middle and southern states; we should feel not much
difficulty in saying that a state law coming in conflict with such act would be
void.But congress has passed no such act. The repugnancy of the law of Delaware
to the constitution is placed entirely on its repugnancy to the power to
regulate commerce with foreign nations and among the several states; a power
which has not been so exercised as to affect the question.
We do not think that the act empowering the Black Bird Creek Marsh
Company to place a dam across the creek, can, under all the circumstances of the
case, be considered as repugnant to the power to regulate commerce in its
dormant state, or as being in conflict with any law passed on the subject.
There is no error, and the judgment is affirmed.
This cause came on to be heard on the transcript of the
record from the high court of [**415] errors and appeals of the
state of Delaware, and was argued by counsel; on consideration whereof this
Court is of opinion, that there is no error in the judgment [***15]
of the said high court of errors and appeals of the state of Delaware; whereupon
it is considered, ordered and adjudged by this Court, that the judgment of the
said court in this cause, be, and the same is, hereby affirmed with costs.