UNITED STATES SUPREME COURT DECISIONS ON-LINE

Although the judgment of the state court rests partly on grounds of local or general law, and although the opinion may not expressly refer to the Constitution of the United States, if by its necessary operation the judgment rejects a claim based on a constitutional right specially set up in the answer, that the relief prayed cannot, in any view of the case, be granted consistently with the contract or due process clauses of the Constitution, this Court has jurisdiction to review under § 709, Rev.Stat.

In a navigable stream, the public right is paramount, and the owner of the soil under the bed can only use it so far as consistent with the public right, and a municipality through which a navigable stream flows cannot grant a right to obstruct the navigation thereof, nor bind itself to permit the continuance of an obstruction, and this rule is not affected clubjuris

Page 201 U. S. 507

by the fact that the person claiming a right to continue such an obstruction is the owner in fee of the bed of the stream.

A municipal ordinance giving permission to a street railroad company to construct a tunnel under a navigable stream, the law of the state providing that railways shall not be constructed so as to interrupt the navigation of any water in the state, does not amount to a contract under the contract clause of the Constitution so that the city could not subsequently require the company to lower the tunnel so as not to interfere with the increased demands of navigation; nor, in the absence of any provision to that effect, would it be construed as containing an implied covenant that the municipality would bear the expense of such alterations required by subsequent ordinances.

A municipality is under the duty of protecting the unobstructed navigation of navigable rivers under its jurisdiction, and it cannot be exempted therefrom by making agreements in regard thereto.

Courts may look through and behind mere forms, and interfere, whenever necessary, for the protection of private rights against an illegal, arbitrary exercise of governmental power.

The right of a railroad company to maintain a tunnel under a navigable river is subject to the paramount public right of navigation, and where it has been constructed under municipal ordinance and state law that it shall not interrupt navigation, the duty of not obstructing the navigation is a continuing one, and, if the increased demands of navigation at any time require a deeper channel than when the tunnel was originally constructed, it is within the power of the municipality to compel the railroad company, at the latter's own expense, to either remove the tunnel or lower it to conform with the necessities of commerce, and, as in this case, to the rule established by act of Congress, and such action of the municipality is not unconstitutional, and does not amount either to taking the property for public use without compensation or depriving the company of its property without due process of law. C., B. & Q. R. Co. v. Drainage Commission, 200 U. S. 251, followed.

The facts are stated in the opinion. clubjuris

Page 201 U. S. 513