Sound Marine & Machine Corp. v. Westchester County

• Decision Date: 05 December 1938
• Docket Number: No. 50.,50.
• Parties: SOUND MARINE & MACHINE CORPORATION v. WESTCHESTER COUNTY.
• Court: U.S. Court of Appeals — Second Circuit

100 F.2d 360 (1938)

SOUND MARINE & MACHINE CORPORATION v. WESTCHESTER COUNTY.^*

No. 50.

Circuit Court of Appeals, Second Circuit.

December 5, 1938.

James H. Hickey, of New York City, for appellant.

William A. Davidson, Co. Atty., of White Plains, N. Y. (Frank J. Claydon, of White Plains, N. Y., of counsel), for appellee.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

MANTON, Circuit Judge.

Appellant owns riparian property at Mamaroneck abutting the waters of Mamaroneck Harbor. In 1929, appellee laid a sewer pipe in the harbor across the channel in front of the premises in a way to diminish the depth of the channel from 10' mean low water to approximately 6.8' mean low water, and it is said that the depth of the water was less at extreme low tide.

Appellant uses its premises for boat building, repairing and storing yachts. An important feature of the use of this property for this business is its access by water for boats to be repaired or stored. Such access is furnished by Indian Creek, which flows along the side of appellant's property into an old channel leading from Long Island Sound to the southwest of Harbor Island. The boats may pass from this channel into a channel constructed by the United States Government in 1915; the latter leads to the northeast of Harbor Island. The government maps indicate the depth of the water in the old channel as 10' at mean low tide, but there is testimony that the channel seldom, if at any time, had such depth and, it is said, was in fact filled with mud and silt which required boats of 6' draft to wait until high tide to use it.

Pursuant to congressional authority, the War Department gave appellee permission to lay a sewer pipe for an outlet stretching from the Mamaroneck Pier into Long Island Sound. The sewer was to be laid in a trench under the bottom surface of the harbor so as not to interfere with navigation. Appellee secured from New York State an easement to cross the bottom of the harbor, which was State-owned land. The sewer was laid across the old channel but it is contended that it was not placed in a trench as specified. Soundings made show that as a result of the way it was laid, the distance from the top of the sewer pipe to the surface of the water, under conditions approximately mean low tide, was much less than the 10' depth indicated on the government maps of 1909. In any event, the depth at mean low tide across the piping is about five to six feet. The facts as to the original depth of the old channel are in dispute and no finding was made by the district court as to them. But appellant insists that even if the old channel had an actual depth of only 6 feet, the channel still remains, for purposes of navigation, at 10 feet, as fixed by the maps, and that this may be secured by dredging. The laying of the sewer pipe prevented such dredging. Appellant rests its claim upon the presence of the sewer pipe which thus interferes with its right of navigation in going to and from its property; it asserts that its right of access to the main channel has been interfered with and that this interference constitutes a nuisance. The libel seeks to abate the nuisance by injunction or in the alternative for compensatory damages. The court below found that there was no admiralty jurisdiction.

As authoritatively stated, the admiralty court is limited as to jurisdiction (Grace v. American Central Ins. Co., 109 U. S. 278, 3 S.Ct. 207, 27 L.Ed. 932), and the burden is upon the appellant to establish affirmatively the right to invoke such jurisdiction. Robertson v. Cease, 97 U.S. 646, 24 L. Ed. 1057. Pursuant to art. 3, § 2, cl. 1 of the Constitution, U.S.C.A. Const. art. 3, § 2, cl. 1, the jurisdiction of the district courts has been defined by Congress to extend to "all civil causes of admiralty and maritime jurisdiction" (28 U.S.C.A. § 41). Such jurisdiction is exclusive of the state courts except where the common law gives a concurrent remedy (28 U.S.C.A. § 371). Here federal jurisdiction must rest upon the right to pursue a remedy in admiralty. There is no diversity of citizenship.

There is no statutory definition of admiralty jurisdiction; its scope is fixed by the Constitution beyond the range of congressional alteration. The Blackheath, 195 U.S. 361, 369, 25 S.Ct. 46, 49 L.Ed. 236. We look, therefore, to traditional admiralty jurisdiction for guidance in deciding the question here presented. But an absence of the precise question having been presented to an admiralty court heretofore is not fatal to assuming jurisdiction if it exists. New situations arise from time to time which may call for a consideration of the jurisdiction of admiralty.

This riparian owner had the incorporeal right to free ingress and egress to abutting navigable waters. Town of Brookhaven v. Smith, 188 N.Y. 74, 80 N.E. 665, 9 L.R.A.,N.S., 326, 11 Ann.Cas. 1; Fort Plain Bridge Co. v. Smith, 30 N.Y. 44, 62; People v. Delaware & H. Co., 213 N.Y. 194, 200, 107 N.E. 506; People ex rel. Lehigh Valley Ry. Co. v. State Tax Comm., 247 N.Y. 9, 15, 159 N.E. 703; U.S. v. Cress, 243 U.S. 316, 321, 37 S.Ct. 380, 61 L.Ed. 746; Clark v. Peckham, 10 R.I. 35, 38, 14 Am.Rep. 654; Brayton v. City of Fall River, 113 Mass. 218, 230, 18 Am.Rep. 470. The authorities have had occasion from time to time, in maritime cases, to deal with physical invasion of corporeal rights of a maritime character, such as those appertaining to injuries inflicted on ships by other ships or by instrumentalities connected with land, or by ships on instrumentalities relating to navigation but physically connected with land. From the incident that in all such cases the thing injured or the thing injuring was clearly associated with the sea, came the rule that as to such torts admiralty jurisdiction was dependent upon the locality where the tort was committed, usually the sea or its tide waters. Philadelphia W. & B. R. Co. v. Philadelphia & Havre de Grace Steam Towboat Co., 64 U.S. 209, 215, 23 How. 209, 215, 16 L.Ed. 433. Under this rule a number of cases have sustained admiralty jurisdiction where a ship was damaged because of obstructions in navigable waters (Philadelphia, W. & B. R. Co. v. Philadelphia, etc., Co. supra); or a slip was damaged by negligent handling of a ship (Valvoline Oil Co. v. Steamtug Dalzell, 1936 A.M.C. 76); or a ship negligently destroyed beacons or other structures which aided navigation (The Blackheath, supra; The Raithmoor, 241 U.S. 166, 36 S.Ct. 514, 60 L.Ed. 937). But admiralty...