Philadelphia Company v. Henry Stimson

• Decision Date: 04 March 1912
• Docket Number: No. 70,70
• Citation: 32 S.Ct. 340,223 U.S. 605,56 L.Ed. 570
• Parties: PHILADELPHIA COMPANY, Appt., v. HENRY L. STIMSON, Secretary of War
• Court: U.S. Supreme Court

223 U.S. 605

32 S.Ct. 340

56 L.Ed. 570

PHILADELPHIA COMPANY, Appt.,

v HENRY L. STIMSON, Secretary of War.

No. 70.

Argued November 16, 1911.

Decided March 4, 1912.

[Argument of Counsel from pages 605-607 intentionally omitted] Messrs. William L. Marbury, Morgan H. Beach, W. Graham Bowdoin, and Samuel McClay for appellant.

[Argument of Counsel from pages 607-611 intentionally omitted] Assistant Attorney General Knaebel for appellee.

[Argument of Counsel from page 611 intentionally omitted]

[Argument of Counsel from pages 611-613 intentionally omitted] Mr. Justice Hughes delivered the opinion of the court:

This suit was brought in the supreme court of the District of Columbia to set aside certain harbor lines in the harbor of Pittsburg, Pennsylvania, so far as they encroached upon land owned by the complainant, and to restrain the Secretary of War from causing criminal proceedings to be instituted against the complainant because of the reclamation and occupation of its land outside the prescribed limits. The court of appeals of the District affirmed a decree sustaining a demurrer to the bill, and the complainant appeals.

The allegations of the bill, in substance, are as follows:

The complainant, a corporation of the commonwealth of Pennsylvania, is the owner in fee of 'Brunot's island,' formerly Chartier's or Hamilton's island, in the Ohio river, in Allegheny county, Pennsylvania. In 1858, a statute was enacted in Pennsylvania, providing for the appointment of commissioners to ascertain and mark the lines of ordinary high and low water in the Allegheny, Monongahela, and Ohio rivers in the vicinity of Pittsburg. The act recited that the lines of land along the shores of the rivers had not been clearly ascertained, and it was important to all persons interested that their several rights and privileges should be defined. After the commissioners' surveys had been completed and the lines located, opportunity was to be afforded in the court by which they were appointed, for any needed corrections; and the map or plan finally determined upon was to be recorded. The statute declared that 'the lines so approved shall forever after be deemed, adjudged, and taken firm and stable for the purposes aforesaid.' Proceedings were had accordingly and the high- and low-water lines along the shore of Brunot's island were definitely fixed. In consequence the bill asserts that all the land, whether or not under water, inside of the commissioners' lines, became the property of the owners of Brunot's island; and that by virtue of the statute, and the action of the commissioners under it in fixing the high-water line as a permanent boundary, the right of the owners of the island to accretions beyond that line was taken away, while at the same time they were no longer subject to loss or diminution of their land by reason of its submergence 'through the avulsion of floods or freshets or through gradual erosion.'

Subsequent to the establishment, in 1865, of the state commissioners' line, a considerable portion of the shore of the island, 'on the so-called back channel, within the said high-water mark,' was washed away from time to time by heavy floods and freshets, so that a large part of the upland was slightly submerged, but not to an extent sufficient to permit of navigation. Some years ago, the United States government, in order to increase the depth of water in the harbor of Pittsburg, caused a dam to be constructed across the Ohio river a short distance below Brunot's island, known as the Davis island dam. And the effect of this dam, says the bill, by the increase of the depth of water in the channel, was to submerge Brunot's island to a far greater extent, and to make the water over the complainant's land navigable 'at certain times, and for certain purposes,' where it was not navigable before.

In 1895, the Secretary of War, claiming to act under the authority of § 12 of the act of Congress of September 19, 1890 [26 Stat. at L. 455, chap. 907], and knowing that the shore of Brunot's island had been washed away by floods and freshets, established a harbor line which ran across the complainant's land within the line of the state commissioners. It is further alleged that although the submerged land was generally covered by water, 'it was not ordinarily navigable water,' and 'has never constituted, nor does it now constitute, a part of the public navigable waters of the United States;' that no authority was conferred by the act of Congress upon the Secretary of War to regulate or interfere with the use of the complainant's land by the establishment of harbor lines upon the same; and that, even if the water over this land was in fact part of the public navigable waters of the United States, without being rendered thus navigable by the construction of the dam, still the Secretary of War had no right so to run the harbor line over the land in question as to deprive the complainant of its use and enjoyment. It was the right of the complainant, the bill avers, to repair the damage caused by floods and freshets, and to reclaim the submerged portion by filling in or wharfing, 'keeping at all times within the lines of the part that had been torn away by the violence of the waters.'

In 1907, the Secretary of War, claiming authority under § 11 of the act of Congress of March 3, 1899 [30 Stat. at L. 1151, chap. 425, U. S. Comp. Stat. 1901, p. 3541], against the complainant's protest, changed the harbor line. The report of the United States engineer at Pittsburg stated that the conditions of high and low water had not changed since 1895, but as, along a part of the shore of the island the harbor line of 1895 ran several hundred feet outside high-water mark as it then existed, it seemed advisable to change it so as to coincide with the actual high-water mark. A copy of the report with the order of the Secretary of War, dated February 23, 1907, was annexed to the bill and made a part of it. In this it is stated that the location of the proposed harbor lines was within the bed of the stream as it existed as a physical fact.

The bill further shows that to facilitate the delivery of coal for the operation of its power house on the island, the complainant desired to reclaim a part of it which had been submerged by establishing a coal wharf on the back channel, where both the harbor line of 1895 and that of 1907 'ran some distance landward of the said state commissioners' high-water line.' According to the proposed plans, the wharf or pier was to extend over the complainant's land and to cross both of the harbor lines to the state commissioners' line. While these plans were being perfected, the Secretary of War, through his representative, the United States engineer officer at Pittsburg, declared to the complainant that it had no right to build upon its land across either of the harbor lines, and he refused to permit the complainant to reclaim its land or to build its wharf thereon outside the harbor line of 1907. He threatened that if it undertook to do so, he would prevent it and cause the complainant and its employees 'to be prosecuted and fined by the authorities of the Federal government' for violations of the acts of Congress of September 19, 1890, and March 3, 1899. It was further charged that if the Secretary of War had authority to fix the original harbor line of 1895, that his power was exhausted by what was then done, and that the harbor line of 1907 was wholly unauthorized.

In consequence of the severe penalties prescribed by the acts of Congress for the construction of buildings piers, or wharves outside any harbor line established by the Secretary of War, and by reason of the defendant's threats of prosecution in case the complainant carried out its plan of reclamation and the construction of its wharf, the bill avers that the complainant is prevented from making use of its property; that the defendant's action constitutes a taking of its property for public use without just compensation; that it is subjected in its endeavor, so long as the harbor line remains unmodified, to a multiplicity of criminal prosecutions; and that the harbor line is a cloud upon its title.

The provisions of the acts of Congress, referred to in the bill, are set forth in the margin.

Section 12 of the act of September 19, 1890 (chap. 907, 26 Stat. at L. 426, 455), provided:

'Sec. 12. That section twelve of the river and harbor act of August eleventh, eighteen hundred and eighty-eight [25 Stat. at L. 425, chap. 860, U. S. Comp. Stat. 1901, p. 3526], be amended and re-enacted so as to read as follows:

'Where it is made manifest to the Secretary of War that the establishment of harbor lines is essential to the preservation and protection of harbors, he may, and is hereby authorized to, cause such lines to be established, beyond which no piers, wharves, bulkheads, or other works shall be extended or deposits made, except under such regulations as may be prescribed from time to time by him; and any person who shall wilfully violate the provisions of this section, or any rule or regulation made by the Secretary of War in pursuance of this section, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding one thousand dollars, or imprisonment not exceeding one year, at the discretion of the court, for each offense.'

Sections 11, 12, and 17 of the act of March 3, 1899 (chap. 425, 30 Stat. at L. 1121, 1151-1153, U. S. Comp. Stat. 1901, pp. 3541, 3542, 3544), are as follows:

'Sec. 11. That where it is made manifest to the Secretary of War that the establishment of harbor lines is essential to the preservation and protection of harbors, he may, and is hereby authorized to, cause such lines to be established, beyond which no piers, wharves, bulkheads, or other works shall be extended or deposits made, except under such regulations as may be prescribed from time to time by him; Provided, prescribed...