Argument for Plaintiff in Error.

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in the interest of the improvement of the navigation of the Chicago river. Bridge Co. v. United States, 105 U. S. 470, 506.

The enforcement of the ordinance requiring the railroad company to lower its tunnel at its own cost would deprive the company of its property without due process of law. C., B. & Q. R. R. v. Chicago, 166 U. S. 235.

There was no reservation, express or implied, in the contract under which the tunnel was constructed that the company would lower or remove its tunnel in case it became an obstruction to navigation. When the ordinance was passed under which the tunnel was constructed, the State of Illinois had plenary power over the Chicago river. Escanaba Co. v. Chicago, 107 U. S. 683. This power included the right to construct a bridge over or across the river without a draw. Gilman v. Philadelphia, 3 Wall. 713. See also Transportation Co. v. Chicago, 99 U. S. 635, where the right of the city to construct a tunnel under the river at La Salle street was involved. The Supreme Court of Illinois had decided in McCartney v. C. & E. R. R. Co., 112 Illinois, 611, that where a railroad company constructed a bridge across the river under an ordinance passed by the city council, that in legal effect the bridge was constructed by the city of Chicago under its charter powers.

Relying upon this decision of the Supreme Court of Illinois, and on the authority and power given to the city of Chicago to construct tunnels under the river, the railway company entered into the contract under which the tunnel was constructed. The tunnels and bridges constructed by the city directly have long been obstructions to navigation.

The city of Chicago had no power to require or authorize any changes to be made in the bed of the Chicago river without the approval of the Secretary of War, and therefore the company was neither under obligation nor had the right to do the work required by the ordinance and the mandate of the court. § 10, River and Harbor Act of 1899; River and Harbor Act of 1890; Cummings v. Chicago, 188 U. S. 410; Chicago v. Law, 144 Illinois, 569; Lussem v. Sanitary District, 192 Illinois, 404.

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Argument for Defendants in Error.

Mr. James Hamilton Lewis and Mr. Granville W. Browning for defendants in error:

The writ of error should be dismissed for want of jurisdiction. The Supreme Court of Illinois decides that the question of fact, under the Illinois law, is finally settled by the Appellate Court that this tunnel is an obstruction to navigation of the Chicago river at the point where situated. West Chicago St. R. R. Co. v. The People, 214 Illinois, 18. When the decision of the highest court of a State is brought before this court by writ of error, the conclusions of fact found by the state court will not be reviewed. Telluride Power Co. v. Rio Grande &c. Ry., 175 U. S. 639; Egan v. Hart, 165 U. S. 189. This construction of the state statute will be adopted by this court. Bacon v. Texas, 163 U. S. 207; Allen v. Arguimbau, 198 U. S. 149.

Where the state court construes the charter of the company in such a manner that the subsequent legislation or ordinance can cut no figure, there is no Federal question and the writ of error will be dismissed. Henderson Bridge Company v. Henderson, 141 U. S. 679. The Illinois Supreme Court has construed plaintiff's charter rights-its contract-under the ordinance of 1888. As that construction was broad enough to dispose of the whole case, this writ of error must be dismissed. Before this court can be called upon to decide whether there has been an impairment of a contract it must first appear that there was a valid contract, subject to impairment. New Orleans v. Water Works Co., 142 U. S. 79; Bacon v. Texas, 163 U. S. 207; Baltimore & Potomac R. R. v. Hopkins, 130 U. S. 210; White v. Leovy, 174 U. S. 91; Central Land Co. v. Laidley, 159 U. S. 103; Yesler v. Commissioners, 146 U. S. 646.

Plaintiff's title is not disputed, nor its franchise, nor its right to maintain a tunnel under the river which will not interfere with navigation. The question of the title of the riparian owner is one of local law. Whitaker v. McBride, 197 U. S. 510.

Plaintiff's tunnel is now an unlawful structure. Plaintiff claims that without the ordinance of 1888 it has the right to maintain its tunnel in the bed of the river because it owns both

Argument for Defendants in Error.

201 U.S.

sides of the river at that point. To constitute a lawful structure in this navigable river there must be a grant from the State, or, in this case, by the city, the agent of the State, and since the United States Government has taken jurisdiction over the river, the Government also must give its consent. Cummings v. Chicago, 188 U. S. 410; Atlee v. Packet Co., 21 Wall. 389.

But whether the plaintiff's right rests on the ordinance of 1888 or rests on the ownership of both banks of the river, when the tunnel, by the growth of commerce, becomes an obstruction to navigation, it must be abated as a nuisance; it is an unlawful structure. Any structure in the bed of a navigable stream is erected and maintained subject to the paramount right of navigation. C., B. & Q. Ry. Co. v. The People, 212 Illinois, 103; United States v. Bellingham Boom Co., 176 U. S. 211.

Plaintiff's title is subject to the permanent right of navigation, and the maintenance of the tunnel is subject to the same right. The title to the soil under the bed of the river is in the plaintiff but it is a qualified title, subject at all times to the public easement of navigation.

Any structure put under the river bed must be at plaintiff's risk, and must be removed or lowered whenever navigation requires. The People v. West Chicago R. R. Co., 203 Illinois, 551; C., B. & Q. Ry. Co. v. The People, 212 Illinois, 103; Chicago v. Laflin, 49 Illinois, 172; Stockton v. B. & N. Y. Ry., 32 Fed. Rep. 9; Braxon v. Breslet, 64 Illinois, 488; Hawkins Point Light House Case, 39 Fed. Rep. 87; Illinois Central R. R. v. Illinois, 146 U. S. 458; Scranton v. Wheeler, 179 U. S. 163; S. C., 57 Fed. Rep. 809; Parmenter v. Attorney General, 10 Price, 412; Sage v. Mayor, 154 N. Y. 61; Attorney General v. Johnson, 2 Wils. Ch. 87; Attorney General v. Richards, 2 Const. 603. The State could give the city the power to lessen or destroy the navigability of the river, or to enable plaintiff so to do, only by explicit language, if at all. There can be no pretense that it has attempted so to do. Chicago v. Blair, 149 Illinois, 310; Coquard v. Oquawaka, 192 Illinois, 355; Kiel v. Chicago, 176 Illinois, 137; Smith v. McDowell, 148 Illinois, 51.

The city has power to order this obstruction removed or lowered. Under the Cities and Villages Act of 1872 the city has the power to construct tunnels and regulate the use thereof, and to deepen, widen, alter or change the channel of water courses. It has jurisdiction on all waters within or bordering upon the same to the extent of three miles beyond the limits of the city. While the authority of Congress is paramount, if there were a difference of opinion, the power is cumulative and concurrent. Lake Shore & Mich. S. Ry. v. Ohio, 165 U. S. 365; Cummings v. Chicago, 188 U. S. 410.

Plaintiff is not entitled to compensation. The decisions of the state Supreme Court in this case are conclusive on this point and are binding on this court. In these decisions are found a construction of the rights of a riparian owner on a navigable stream entirely within the State, a construction of the Horse and Dummy Act, and a construction of plaintiff's contract. Neither of these is a Federal question, and wherever such matters are construed by the state courts, this court follows the construction of the state court. West Chicago St. R. R. Co. v. The People, 214 Illinois, 9; The People v. West Chicago St. R. R. Co., 203 Illinois, '551; C., B. & Q. Ry. Co. v. The People, 212 Illinois, 103; Transportation Co. v. Chicago, 99 U. S. 635; Gibson v. United States, 166 U. S. 269, 276; United States v. Bellingham Bay Boom Co., 176 U. S. 211; Scranton v. Wheeler, 179 U. S. 159; S. C.,57 Fed. Rep. 803; Bridge Co. v. United States, 105 U. S. 470; State v. The Wheeling Bridge Co., 13 How. 518; United States v. Moline, 82 Fed. Rep. 592; Hawkins Point Light House Case, 39 Fed. Rep. 77; Stockton v. B. & N. Y. Ry., 32 Fed. Rep. 9; State v. Sargent, 45 Connecticut, 358; New Orleans Gas Co. v. Drainage Commissioners of N. O., 197 U. S. 453.

MR. JUSTICE HARLAN delivered the opinion of the court.

This case presents some questions of jurisdiction and constitutionality arising out of the relative rights and duties of the city of Chicago and the West Chicago Street Railroad ComVOL COI—33

pany in respect of a tunnel maintained by that company under the South Branch of Chicago river at or near Van Buren street in that city.

The judgment in the Circuit Court of Cook County, Illinois, was in favor of the railroad company, but it was reversed in the Appellate Court, First District, the former court being directed to give to the city the relief asked. Upon appeal to the Supreme Court of Illinois a judgment was rendered in favor of the city.

The contention of the company is that the judgment under review cannot be sustained consistently either with the contract clause of the Constitution of the United States or with the due process of law enjoined by the Fourteenth Amendment. The case presented by the record is substantially as will be now stated.

On or about April 2, 1888, the City Council of Chicago adopted in due form the following ordinance:

"Whereas, the board of directors of the West Chicago Street Railroad Company, on the second day of April, 1888, by and at the request of the Mayor of the city of Chicago, adopted the following resolution: Resolved, That the West Chicago Street Railroad Company, in consideration of the passage and approval by the Mayor of the three ordinances passed by the City Council of Chicago on the thirtieth day of March, 1888; one granting to the West Division Railway Company the right to change its motive power from horse to cable or electric power; one granting to the Chicago Passenger Railway Company the right to make the same change; and one granting to the West Chicago Street Railroad Company the right to construct its tracks on Jefferson street between Madison and Washington streets, and to use horse, cable or electric power thereon, hereby agrees by and with the city of Chicago at its own expense to construct a tunnel under the Chicago river and acquire the necessary right of way therefor on a route to be located by said company between Madison and Twelfth streets, with the east terminus at Fifth avenue or west thereof, and