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Show MISSISSIPPI RIVER LITIGATION 709 all its details which would be applied between individuals. If we sup- pose a case which did not fall within the power of Congress to regulate, the result of a declaration of rights by this court would be the estab- lishment of a rule which would be irrevocable by any power except that of this court to reverse its own decision, an amendment of the Constitution, or possibly an agreement between the States sanctioned by the legislature of the United States. The difficulties in the way of establishing such a system of law might not be insuperable, but they would be great and new. Take the question of prescription in a case like the present. The reasons on which prescription for a public nuisance is denied or may be granted to an individual as against the sovereign power to which he is subject have no application to an independent state. See 1 Oppen- heim, International Law, 293, §§ 242, 243. It would be contradicting a fundamental prinoiple of human nature to allow no effect to the lapse of time, however long, Davis v. Mills, 194 U.S. 451, 457, yet the fixing of a definite time usually belongs to the legislature rather than the courts. The courts did fix a time in the rule against per- petuities, but the usual course, as in the instances of statutes of limi- tation, the duration of patents, the age of majority, etc., is to depend upon the lawmaking power. It is decided that a case such as is made by the bill may be a ground for relief. The purpose of the foregoing observations is not to lay a foundation for departing from that decision, but simply to illustrate the great and serious caution with which it is necessary to approach the question whether a case is proved. It may be imagined that a nui- sance might be created by a State upon a navigable river like the Danube, which would amount to a casus belli for a State lower down, unless removed. If such a nuisance were created by a State upon the Mississippi the controversy would be resolved by the more peaceful means of a suit in this court. But it does not follow that every matter which would warrant a resort to equity by one citizen against another in the same jurisdiction equally would warrant an interference by this court with the action of a State. It hardly can be that we should be justified in declaring statutes ordaining such action void in every instance where the Circuit Court might intervene in a private suit, upon no other ground than analogy to some selected system of municipal law, and the fact that we have jurisdiction over controversies between States. The nearest analogy would be found in those cases in which an ease- ment has been declared in favor of land in one State over land in another. But there the right is recognized on the assumption of a con- currence between the two States, the one, so to speak, offering the right, the other permitting it to be accepted. Manville Co. v. Worcester, 138 Massachusetts, 89. But when the State itself is concerned and by its legislation expressly repudiates the right set up, an entirely different question is presented. Before this court ought to intervene the case should be of serious magnitude, clearly and fully proved, and the principle to be applied should be one which the court is prepared deliberately to maintain against all considerations on the other side. See Kansas v. Colorado, 185 U.S. 125. |
