POWER TO DIVERT AN INTERSTATE RIVER. iS9 to the facts in the cases.^ Important suggestions which bear upon the question in this case are made by Judge Treat in Rutz v. St. Louis,^ and by Mr. Justice McLean, in Palmer v. Commis- sioners of Cuyahoga Co.® "The rule which has been referred to" (as to non-remedy of Connecticut landowners) "is based upon the principle that the improvement of the navigation of navigable rivers within a State is part of the State's governmental duties, and that the work which is done towards such improvement is done in the discharge of the governmental powers of the State, and that the land of the riparian proprietor within the State is subject to the just exercise of this power ; and that when the State undertakes to exercise its govern- mental power, the public good is paramount to the consequential injury of land which is incidentally and necessarily affected by the improvement. The land is under the jurisdiction of the State,and the State derives the power to inflict remote and consequential injuries upon it by virtue of such jurisdiction. The owner of land abutting upon a navigable river owns it subject to the right of the State to improve the navigation of the river, because the land is within the governmental control of the State ; but it seems to me that the State obtains by virtue of its governmental powers no control over or right to injure land without its jurisdiction. Jurisdiction con- fers the power and the right to inflict consequential injury, but when no jurisdiction exists the right ceases to exist. It is a recog- nized principle that the statutes of one State in regard to real estate cannot act extra-territorially. As Connecticut has no direct juris- diction or control over real estate situate in another State, it can- not indirectly, by virtue of its attempted improvement of its own navigable waters, control or subject to injury foreign real estate. If this resolution is a bar to an action for any consequential injury to land, or to rights connected with land in Massachusetts, Connec- ticut is acting extra-territorially. " Let there be a decree enjoining the defendant against any farther raising of its present dam and against constructing a new dam or dams to a greater height than the height occupied by the respective portions of the present structure." Rutz V. City of St. Louis, 7 Federal Reporter, 438, was an action at law in the United States Circuit Court for the Eastern District 1 Escanaba Co. v. Chicago, 107 U. S. Rep. 678 ; Huse v. Glover, 15 Fed. Rep. 296. 2 7 Fed. Rep. 438.
- 3 McLean, 266.
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