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Lake and Lake Michigan-the land, where the proposed cut is to be, having first been secured-provided thereby private interests are not seriously impaired or private rights destroyed.

It is an incident to the sovereignty of the United States, and a right recognized in the constitution, in that clause which prohibits the taking of private property without just compensation, that it may take private property for public use of the necessity or expediency of which Congress must judge, but the obligation to make compensation is concomitant with the right. Bonaparte v. Camden & Amboy R. R. Co., 1 Baldw. 220; Dickey v. Maysville, &c. Turnpike Road Co., 7 Dana, 119. In the last case the court say, "The national power to use the land of a citizen or State for an armory or fortification is undoubted and irresistible; the constitutional obligation to pay the owner a just equivalent, if it be demanded, is equally undoubted and irresistible."

The case involved the right to carry the United States mail over the road of a turnpike company without payment of toll, and at page 115 the court say, "The right to use private property for a mail route-as for any other national purpose, being qualified by the constitutional condition that a just compensation be made for the use, unless the owner voluntarily waive it-does not imply an authority to take, or to use for post-office or postroad purposes, the land or the house of a citizen, or the railroad or McAdamized road of associated citizens, without paying to the owner or owners a just compensation." The principle of that case is directly in point.

The legislature of the State, or the Congress of the United States, possesses whatever power exists in either government to take private property for public use, and to provide compensation. If now the power to take may be exercised alone,-when we find that the lawmaking power is alone judge of the necessity or expe

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diency of taking,-there will be found no check to its most arbitrary exercise. And as was said by Chief Justice MARSHALL, in Fletcher v. Peck, 6 Cranch, 135, if any limits to legislative power be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation?

To divert a stream from its natural channel into an artificial one, for the purpose of affording improved navigation and benefiting commerce, may be a work of great public concernment and advantage, but if thereby a riparian owner is wholly or injuriously deprived of the use of its waters, which he is employing advantageously as an incident to his land, it is taking the private property of such owner in and to the use of that water for public use, and unless just compensation is made, is against both the principles of the common law and the provisions of the constitution of the United States, and courts have no alternative but to so administer the law as to secure and protect such rights in a proper case.

4. It was urged upon the argument that the United States is prosecuting the White River harbor improvement, and as a sovereign power, cannot be restrained. The United States cannot be brought before the court as a party defendant in the record; the courts cannot restrain the president of the United States as the executive power of the government, nor Congress, the lawmaking power; but when Congress makes an appropriation to improve a harbor, and commits the direction of the work and expenditure of the money appropriated to the war department, which employs its agents to carry forward the work, neither the war department nor its agents will be exempt from the restraining power of the court, if either seek to execute the law in an unconstitutional manner, by taking private property against the consent of the owner, without compensation.

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The war department is not acting as the executive, nor as the agent of the executive power, but ministerially. If the court has jurisdiction of the subject matter and person of the defendants, I know of no rule which would exclude from the process of injunction any person on account of the character or capacity in which he acts, although such character or duty be conferred or imposed upon him by the law of a State or of Congress. 1 Baldw. 206.

5. One further question is suggested by the argument and from the considerations which I have given, viz: When is compensation to be made? Or may private property be taken or private rights be impaired before compensation made, if by some law provision is made for ascertaining and making compensation? I regard the just rule to be, that the taking of private property should not be allowed until compensation is actually made, thus imposing on the owner no burthen of seeking or pursuing expensive remedies, and leaving him exposed to no risk or expense in obtaining compensation. 1 Baldw. 227.

6. If, then, the facts of this case bring the complainants within the rules of law as indicated in my views already expressed, the work which is being prosecuted by defendants should be prevented by injunction.

I have already stated most of the allegations of the bill in substance. Complainants therein state that the strip of land between the outlet of White Lake and Lake Michigan, is in part a mere sand bank, and westerly winds blow this sand into the river in great quantities, so that the channel is kept navigable only by the action of the current and by artificial means. Great expense is necessary every year, on the part of parties interested, to keep the channel clear of the sand which drifts in. They also say that, in their judgment, the opening of the new channel must result in the rapid closing of the old outlet. The wider, straighter, shorter

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and deeper channel proposed will naturally and necessarily result in causing the waters of White Lake to seek the level of Lake Michigan through the new channel. And they say that any diminution of the accustomed supply of water in the present outlet would tend to injure their property, since there is now hardly enough; and that if the current should cease to flow, even though the water should remain as deep as at present, the expense of getting logs from White Lake to the bayou would be seriously increased and the value of their property diminished.

The evidence in support of the bill is the affidavit of Colonel J. D. Webster, who from 1838 to 1854 was an officer of the topographical engineers of the United States army, and for several years had charge of government harbor improvements on Lake Michigan, is familiar with the shores of the lake, has given great attention and reflection to the action of the winds and currents thereof. He states that the effect of the new channel will be that almost the entire water passing from White Lake to Lake Michigan will flow through the new channel, and that there will remain but little or no current in the old channel. That in consequence it will be gradually but surely filled with sand, and within a few years closed for all practical and useful purposes. But this opinion is based upon causes operating in the absence of the use of artificial means to aid this channel by dredging out the sand, as now employed.

He thinks no considerable effect, in keeping the present channel open after the completion of the new, would result from the running back into Lake Michigan of the waters which are by strong westerly winds blown into White Lake.

The defendants, in opposition to the motion for injunction, present three affidavits, no answer having been filed. Colonel J. B. Wheeler, of the United States

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army, who, under instructions from the secretary of war, has charge of the work of constructing the proposed new channel, gives full information as to the surveys for the work, the report to the war department, and among other items, the report says: "It is hardly possible that any reasonable expenditure of money upon this (the present) entrance and portion of the river or outlet would give us a harbor suitable to the wants and necessities of the general commerce on Lake Michigan." And further, in reference to the locality of the proposed new channel, it is said: "By examining this locality we see that there is deep water in both lakes near the shore, and that, there, the distance between the twelve feet waters in each, is only twelve hundred and fifty feet. This, then, is the place where the channel should be made."

The secretary of war transmitted this information to Congress, and the appropriation was thereupon made, and Colonel Wheeler was directed to proceed with the work accordingly. Colonel Wheeler says: "Whether the opening of the new channel will necessarily close the old one, is a subject of speculation."

John D. Sturtevant states his residence at White Lake since 1861, and from his observations as to the action of the waters on the east shore of Lake Michigan, it is his opinion that the effect of opening the new channel, as proposed, will not be as stated in the bill and by Colonel Webster in his affidavit, but that the present outlet will not be filled or closed.

The affidavit of Charles Mears, a resident on the east coast of Lake Michigan since 1838, states that in that year he built a saw mill on White Lake, and manufactured lumber there for twenty years; that he has had experience in improving harbors on this shore at six different points; has been a careful observer of the action and effects of the winds and currents at White Lake and other points. He gives it as his judgment