to said State." Section 4 extends this provision to the other States. Although the act has no direct bearing on this case, it recognizes an intent on the part of Congress to allow the States to regulate the disposal of overflowed lands, as the legislature shall deem best for the public interests. That the act of the General Assembly in question was passed upon this theory is indicated by its recitals, that "by reason of the drainage and protection of said lands from overflow, their taxable value will be greatly enhanced, and without the dam provided for in this bill a large part of the land bordering on said creek will eventually become abandoned and valueless, as some portions of it now are," and that this "is the only feasible and practicable scheme for the drainage of said lands.” This was the reason given for the passage of the act of the General Assembly of Delaware in the Black Bird Creek case, already cited. Chief Justice Marshall observed (p. 251): “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." Several subsequent decisions have confirmed the power of the State to deal, in the absence of Congressional legislation, with their rivers, for the purposes of their internal improvement, such as Withers v. Buckley, 20 How. 84, wherein the right of Mississippi to change the channels or courses of rivers within the State for the purpose of improvement was sustained, and Atkinson v. Philadelphia &c. R. R. Co., 2 Fed. Cases, 105, Case 615, a decision by Mr. Justice Baldwin of this court.

The whole subject was recently discussed in the case of Leovy v. United States, 177 U. S. 621, wherein was vindicated the right of the State of Louisiana to authorize the construction and maintenance of levees, drains and other structures necessary and suitable to reclaim swamp and overflowed lands, although there was evidence that the stream there concerned

(Red Pass) was useful for some minor purposes of interstate commerce: There was testimony that luggers or yawls chiefly used by fishermen to carry oysters to and from their beds sometimes went through this pass, but it was not shown that passengers ever went through it, or that freight destined for any other State was ever carried through it.

In delivering an exhaustive opinion in this case, Mr. Justice Shiras observed (p. 636): "We think that the trial court might well take judicial notice that the public health is deeply concerned in the reclamation of swamp and overflowed lands. If there is any fact which may be supposed to be known by everybody, and, therefore, by courts, it is that swamps and stagnant waters are the cause of malarial and malignant fevers, and that the police power is never more legitimately exercised than in removing such nuisances."

While, as already observed, there is a general allegation in the bill that Kinloch Creek was a navigable stream, and was capable of navigation by vessels in the Santee River and thence into the ocean, there is no allegation that it was ever used for that purpose, and the opinion of the court was that it certainly was not a navigable water of the United States, or a public highway under the laws of South Carolina. But, however this may be, we are of opinion that the State had full power, in the absence of legislation by Congress, to authorize the construction of this dam for the avowed purposes of this act.

2. The second assignment of error, that the plaintiff was deprived of his property without compensation, and hence without due process of law, is also unsound.

The only allegation of the bill in that connection is that the construction of the dam was not only a destruction of plaintiff's right of navigation and of his access to his lands through Kinloch Creek, but has caused the water to fall back to some extent on the plantation on Minim Creek, just opposite the mouth of Kinloch, so as to compel the plaintiff to raise his dikes. We do not think the overflow to the minor extent indicated constitutes, a taking of property within the meaning of

the law, when the damage can be prevented by raising the banks, or that if the damage stated did in fact result, that it would justify the interposition of a court of equity.

The question whether the overflow of lands constitutes "a taking" within the constitutional provision has been discussed in several cases in this court. Pumpelly v. Green Bay Co., 13 Wall. 166; Transportation Company v. Chicago, 99 U. S. 635; Gibson v. United States, 166 U. S. 269; Scranton v. Wheeler, 179 U. S. 141; Atwater v. Trustees, 124 N. Y. 602.

A recent case is that of United States v. Lynah, 188 U. S. 445, wherein it was held that where the Government had placed dams and other obstructions in the Savannah River in such manner as to hinder its natural flow, and to raise the water so as to overflow plaintiff's lands and to cause a total destruction of their value, the proceeding must be regarded as an actual appropriation of the land, and created an obligation upon the Government to make compensation for the land. The case was distinguished from that of Mills v. United States, 46 Fed. Rep. 738, wherein the damage consisted in obliging the plaintiff to raise the levees around his rice fields to prevent the flooding of the fields in high water. "Obviously," said the court, in commenting upon that case, "there was no taking of plaintiff's lands, but simply an injury which could be remedied at an expense, as alleged, of $10,000, and the action was one to recover the amount of this consequential injury. The court rightfully held that it could not be sustained." A still more recent case is that of Bedford v. United States, 192 U. S. 217, in which it is held that damages to lands by flooding as a result of revetments erected by the United States along the banks of the Mississippi River to prevent erosion of the banks from natural causes, are consequential and do not constitute a taking of the lands flooded within the meaning of the Constitution.

We think the rule to be gathered from these cases is that where there is a practical destruction, or material impairment of the value of plaintiff's lands, there is a taking, which de

mands compensation, but otherwise where as in this case plaintiff is merely put to some extra expense in warding off the consequences of the overflow.

The damage claimed by the plaintiff in the interruption of access to his lands and the impairment of his right to navigate the creek does not demand separate consideration. We have repeatedly held that where the Government of the United States has, for the purposes of improving the navigation of a river, erected piers or other structures by which access to plaintiff's land is rendered more difficult, there is no claim for compensation. Gibson v. United States, 166 U. S. 269; Scranton v. Wheeler, 179 U. S. 141. We see no reason why the same principle should not apply to cases where the state legislature, exercising its police power, directs a certain dam to be built, and thereby incidentally impairs access to lands above the dam. In both cases the sovereign is exercising its constitutional right-in one case in improving the navigation of the river, and in the other in draining its low lands. and thereby enhancing their value for agricultural purposes.

It is suggested that the agreement of 1903 created an easement of access to plaintiff's land, Ladd v. Boston, 151 Massachusetts, 585; Hogan v. Barry, 143 Massachusetts, 538, and that the statute of South Carolina must be construed as overriding private rights of property, and not merely as putting an end to the rights of the public, and as giving to plaintiff a claim for damages for the taking of that easement. But it does not necessarily follow that an injunction should issue. Apparently this covenant did not apply to the millsite, since this was purchased after the covenant was made, but, however this may be, a court of equity is not bound to enjoin a public work authorized by statute, until compensation is paid, where no property is directly appropriated. This is particularly true where the damage is difficult of ascertainment at the time and a reasonable provision is made by the law for compensation. Sweet v. Rechel, 159 U. S. 380; Backus v. Fort Street Union Depot Co., 169 U. S. 557; Cherokee Nation v.

Southern Kansas Ry. Co., 135 U. S. 641; Beasley v. Texas & Pacific Ry. Co., 191 U. S. 492; Haverhill Bridge Proprietors v. Essex County Commissioners, 103 Massachusetts, 120; Parker v. Catholic Bishop, 146 Illinois, 158. The state cases are numerous on this point.

In view of the incidental character of the damage probably resulting to plaintiff's land from the erection of this dam, and the careful provision of the act that the defendants shall be liable for such damage, we do not think, at least in the absence of an allegation that the defendants are financially irresponsible, that a court of equity would be authorized to enjoin the erection until the damages, which, if they exist at all, must be very difficult of ascertainment, shall be paid. .

3. It is also assigned as error that the act of 1903 is obnoxious to the following provisions of the constitution of South Carolina, Article III, section 34, that "The General Assembly of the State shall not enact local or special laws concerning any of the following subjects, or for any of the following purposes, to wit: . . II. To lay out, open, alter or work roads or highways."

As the case comes from a Federal court. the question is properly before us.

Admitting that, for the purposes of transit and travel, a river may be considered a highway-and that seems to have been adjudged by the Supreme Court of South Carolina, Heyward v. Chisholm, 11 Rich. 253,-we think that, in connection with the words "To lay out, open, alter or work roads," the word "highway" is used in its ordinary sense, and as an equivalent to a public road. The power given by this section is evidently inapplicable to water highways, which are neither laid out, opened, altered or worked in the ordinary sense of these words.

4. It is also urged that the act was passed without the formality required by the Revised Statutes of South Carolina of 1893, in which it is declared that no bill for the granting of any privilege or immunity, or for any other private purpose