ereignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offense against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, their judicial tribunals can release him, and afford him redress." 1 All that is meant by the necessity of its appearing that the prisoner is held under authority, or claim and color of authority of the United States is, that it appears that the prisoner is held by an officer of the United States under what, in truth, purports to be authority of the United States; if that appears, then the validity thereof is to be determined by the courts of the United States under the national constitution and laws. 2 In the case of Duncan v. Darst, the prisoner was arrested and held by a marshal of the United States, in a civil cause in the United States court, by virtue of a capias ad testificandum, from which custody the State court assumed to discharge him in virtue of a State law in relation to insolvency, but the Supreme Court of the United States held that the State authorities had no such power.3 'Tarble's Case, 13 Wall. 410. * Tarble's Case, 13 Wall. 397, 411. * Duncan v. Darst, 1 How. 801. CHAPTER XXXIII. RIGHT OF COMMON IN WASTE PLACES AND WATERS, AND RIGHT OF EMINENT DOMAIN. I. IN THE TIDE WATERS AND WASTE PLACES. II. IN THE NAVIGABLE INLAND RIVERS AND LAND THEREUNDER. III. IV. RIGHT OF EMINENT DOMAIN. I. IN THE TIDE WATERS AND WASTE PLACES. Is in the People of the State. The right of common in the tide waters, rivers, and waste places of the several States appropriated to the use of their respective citizens is a property right, the ownership of which is in the people of each State, in their aggregate sovereignty. It is a right not of citizenship alone, but of citizenship and property combined. Limitation of Use Thereof. Each State may, subject, however, to freedom of commerce and to the power of Congress over the same, control and limit the use of the same at will, and may restrict the use thereof to its own citizens; for this common property in a State, or the use thereof, is not vested in citizens. of other States by force of that clause of the United States Constitution which declares that the citizens of each State are "entitled to all the privileges and immunities of citizens of the several States."3 II IN NAVIGABLE INLAND WATERS AND LAND THEREUnder. Belong to the States. The shores of and ground under the navigable waters belong to the States; not by grant from the general government, but because they never were parted with.* 1 Martin v. Waddell, 16 Pet. 367, 410; State v. Medbury, 3 R. I. 138. McCready v. Virginia, 4 Otto, 391, 395. McCready v. Virginia, 4 Otto, 391, 395; State v. Medbury, 3 R. I. 138. 4 Pollard . Hagan, 3 How. 212; People v. Tibbetts, 19 N. Y. 523; And upon terms of admission the same rights in that respect exists in the new States.1 But this ownership, or right of the several States, is subject to the paramount right of the national government in reference to the regulation of commerce.2 III. OWNERSHIP AND LOCAL JURISDICTION OF INTER-STATE In the absence of other express grant or arrangement, when two States have coterminous boundaries on such water, each takes jurisdiction to the center thereof, except as to the admiralty jurisdiction, and counties of such States expressed to be bounded by such waters will be held to extend to such coterminous State boundaries, in the center of the river or water, although in the law creating them they be said to extend to low water mark. By intendment of law they are limited only by the center of the water or stream.3 Right of Fishery. And each State and its citizens has the exclusive right of fishery in its own internal waters, and may prevent the taking thereof by citizens of other States. IV. RIGHT OF EMINENT DOMAIN. The right of eminent domain, not only on land but also over the soil under the navigable waters, for all municipal purposes, belongs exclusively to the States within their respective territorial jurisdictions, where not ceded to the United States; but it is a municipal authority, and one which may not be so used as to affect the exercise of any right of commerce or national domain of the national government, under the constitution of the United States and laws made in pursuance thereof;5 and except as regards the public lands belonging to the United States. Mumford v. Wardwell, 6 Wall. 423; 1 Pollard v. Hagan, 3 How. 212. People v. Tibbetts, 19 N. Y. 523; Mahler v. Norwich & New York Trans. Co., 35 N. Y. 352; Martin v. Mahler v. Norwich & New York 4 State v. Medbury, 3 R. I. 138. 5 Pollard v. Hagan, 3 How. 230. CHAPTER XXXIV. JURISDICTION OVER STATE BOUNDARY RIVERS. I. ADMIRALTY JURISDICTION OF UNITED STATES. II. III. THE TERRITORIAL STATE BOUNDARY AS TO THINGS PERMANENT. I. ADMIRALTY JURISDICTION OF UNITED STATES. Jurisdiction Over Boundary Rivers. When by the fundamental laws, or constitutions, or terms of their admission into the Union as States, certain of our States have navigable rivers for coterminous boundaries, with concurrent jurisdiction in each over the waters of such rivers, as to matters of rightful State jurisdiction, yet the United States at the same time have admiralty and maritime jurisdiction over every part of such navigable waters from shore to shore, in maritime and admiralty cases. This jurisdiction of the national government and courts extends to all matters and things of a maritime character, and to the regulation of commerce thereon and intercourse of a commercial nature between States bordering on, or reached by means in part of such navigable waters or river. 1 II. THE TERRITORIAL STATE BOUNDARY AS TO THINGS PERMANENT. Islands and Other Local Objects. When by the constitutions and laws of two adjoining States they have for boundary between them the main channel of a navigable river, and also have concurrent jurisdiction over the whole river in its entire width from shore to shore; yet, notwithstanding such concurrent jurisdiction, neither of them, or their courts, has jurisdiction or cognizance of objects of a fixed and permanent nature situated at the Genesee Chief . Fitzhugh, 12 How. 443. See ante, Chap. XXVIII., where the general subject of admiralty is discussed. opposite shore, or beyond such main channel, and within the territorial boundary of the other State.1 Territorial Boundary. The actual territorial boundary of each is the main channel of the river; and this is the limit of jurisdiction over permanent objects, natural or artificial." Jurisdiction of Permanent Objects. But in the very nature of things, jurisdiction of permanent objects is exclusive in the State on whose side of the main channel they are situated. Concurrent jurisdiction of the abutting States over permanent objects, as islands situated in the river, or permanent erections at either shore, would be utterly impracticable in the administrative affairs of State, as rendering owners and residents of such property liable to taxation, and other liabilities and duties of citizenship and ownership, to each of the States. Hence, it can never be intended in law that jurisdiction which is concurrent over a river is concurrent also over islands and other permanently fixed objects therein. Nor does the reason of the law of concurrent jurisdiction apply to such objects whose true location in reference to the center of the main channel can always be known or ascertained; but it was to obviate the difficulty of showing on which side thereof occurrences of judicial cognizance had taken place that concurrent jurisdiction was resorted to in law. III. CONCURRENT STATE JURISDICTION AND ITS EXERCISE OVER THE WHOLE RIVER, EXCEPT AS TO THINGS PERMANENT. The existence of concurrent jurisdiction in two States over a river that is a common boundary between them, as more particularly referred to in Section I. of this Chapter, vests in each of such States, and in the courts thereof, except as to things permanent, and except as to maritime and commercial matters cognizable by the national government and courts, jurisdiction both civil and criminal, from shore to shore, of all matters of rightful State cognizance occurring upon such river in all parts thereof where it forms such common boundary. Such concurrent juris 1 Gilbert v. Moline Water Power and Manuf'g Co., 19 Iowa, 319; Miss. & Mo. R. R. Co. v. Ward, 2 Black, 485. Miss. & Mo. R. R. Co. v. Ward, 2 Black, 485; Gilbert v. Moline Water Power and Manuf'g Co., 19 Iowa 319, 323. 3 Gilbert v. Moline Water Power and Manuf'g Co., 19 Iowa, 319; State v. Mullen, 35 Iowa, 199; State v. Cameron, 2 Pinn. 490. For a somewhat |