Gulf & I. Ry. Co. of Texas v. Davis

• Decision Date: 07 June 1928
• Docket Number: No. 179.,179.
• Citation: 26 F.2d 930
• Parties: GULF & I. RY. CO. OF TEXAS et al. v. DAVIS, Secretary of War, et al.
• Court: U.S. District Court — Southern District of Texas

26 F.2d 930 (1928)

GULF & I. RY. CO. OF TEXAS et al. v. DAVIS, Secretary of War, et al.

No. 179.

District Court, S. D. Texas, at Galveston.

June 7, 1928.

Terry, Cavin & Mills and Ballinger Mills, all of Galveston, Tex., for plaintiffs.

H. M. Holden, U. S. Atty., and Howell Ward, Asst. U. S. Atty., both of Houston, Tex., for defendants.

HUTCHESON, District Judge.

Plaintiffs bring their petition against Dwight F. Davis, Secretary of War, Julien L. Schley, resident engineer, and H. M. Holden, United States district attorney, alleging that heretofore plaintiff Gulf & Interstate Railway had operated a line of railroad between the city of Galveston and the city of Beaumont under the authority of the state of Texas so to do; that on July 1, 1914, they had leased said line of railroad to plaintiff Gulf, Colorado & Santa Fé Railway Company, under legislative authority; that the railroad crosses a certain water course commonly known and designated as Mud Bayou, the bottom stringers of the bridge across Mud Bayou being 3.7 feet above mean low tide, and 1.5 feet above mean high tide; that said bridge has been continuously maintained and operated in approximately the same condition since its construction in 1896; that in April, 1927, a notice was served upon plaintiffs by Julien L. Schley, district engineer, for a public hearing upon the possible need for the alteration of the bridge of the Gulf & Interstate Railroad across Mud Bayou to provide for the Intercoastal Waterway, Sabine river to Galveston section; that at the time of the hearing evidence was presented showing that Mud Bayou was not a navigable stream, and was not a part of the navigable waters of the United States, and that no evidence whatsoever to the contrary was introduced in said hearing; that thereafter, on September 21, 1927, a notice was served on plaintiff Gulf, Colorado & Santa Fé Railway Company by Hanford McNider, Acting Secretary of War, to alter the bridge so as to provide "a draw with unlimited vertical clearance, and a horizontal clearance between fenders of 80 feet to the center line of the channel," the notice requiring one year from that date for the completion of said bridge; that the alteration of the bridge as required would cause an expenditure of over $200,000, with operating charges of over $9,000 per year; that section 18 of the Act of March 3, 1899 (33 USCA § 502; Comp. St. § 9970), under which the proceedings taken by the War Department purported to be authorized, has no application to the stream in question, because the same is a nonnavigable waterway.

Plaintiffs then allege: "Mud Bayou is not a navigable waterway of the United States. It is not used, and never has been used, and is not susceptible of use, in its natural and ordinary condition as a highway for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water. It is a crooked, sinuous, winding stream, over which no character or trade or commerce has ever been conducted. It has its origin in what is called Mud Lake, some distance to the east of the bridge mentioned. Mud Lake is simply a shallow depression in the marsh that rainwater collects in at times after heavy rains. The whole country from Mud Lake to the mouth of Mud Bayou is nothing but a marsh, entirely uninhabited, producing no article of commerce, and is fit for nothing but the winter pasture of cattle. Mud Bayou, from its source down to its mouth, is nothing more than a drain for said marsh. The entire course of Mud Bayou lies wholly within the State of Texas. It is in no way nor manner in its natural state a possible avenue of interstate or foreign commerce. It has never been used for the transportation of or any purpose in connection with, interstate or foreign commerce and is not in its natural state susceptible or capable of such use." And further that because of the notice issued by the Secretary of War, and the position taken by the government engineers, the plaintiffs are in danger of constant and repeated prosecution; the statute providing for continuous prosecution for each month of delay — concluding with a prayer for injunction against the Secretary of War, the resident engineer and the United States district attorney from requesting, instructing or prosecuting any proceedings against the plaintiffs on account of their failure to construct the bridge as requested.

The defendants answered, admitting all of the allegations of plaintiffs' bill, except those which declare that Mud Bayou is not a navigable stream; the answer alleging: "Mud Bayou has heretofore been used as a highway for commerce, and is now susceptible in its ordinary and natural condition as a highway for interstate commerce."

The issues having been joined, the case was fully heard on oral evidence, which established beyond question that the stream is not now being used, never has been used, and there is no probability of its ever being used, in its natural condition, as a highway for commerce over which trade and travel are or will be conducted in the customary modes of trade or travel on water. But the government contends that it is susceptible of use for the purposes of navigation, and that that susceptibility is such as to make it a navigable water of the United States within the meaning of the decisions.

Both plaintiffs and defendants rely with equal confidence upon the statement in The Daniel Ball, 10 Wall. 563, 19 L. Ed. 999 — "Those rivers must be regarded as public, navigable rivers in law which are navigable in fact; and they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States, within the meaning of the acts of Congress, in contradistinction from the navigable waters of the states, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water."

Plaintiffs declare that the controlling factor in the determination of the question is the presence or absence of commerce, actual or potential; defendants, the presence or absence of water capable of bearing commerce, should any arise; and it is this difference in emphasis, and not any dispute of fact, which makes the controversy between the litigants, and furnishes the only difficulty in determining it. Here the facts are all one way. The stream is, as alleged by plaintiffs, "a crooked, sinuous, winding, and narrow stream over which no character of trade or commerce has ever been, or in all probability ever will be, conducted. It has its origin in what is called Mud Lake, some few miles to the east of the bridge mentioned. Mud Lake is simply a shallow depression in the marsh, that rainwater collects in at times after heavy rains. The whole country from Mud Lake to the mouth of the bayou is nothing but a marsh, entirely uninhabited, providing no article of commerce, and fit for nothing but the pasturage of cattle. Mud Bayou from its source down to its mouth is nothing but a mere drain for the marsh. The entire course of Mud Bayou lies wholly within the state of Texas. It is not in any way or manner, nor has it ever been, nor in all probability will it ever be, an avenue of interstate or foreign commerce, because there has never been any interstate or foreign commerce carried on or to be carried over it, and in the absence of some changes in its condition, or in the condition of the surrounding country, it will never be.

Plaintiffs offered the testimony of Mr. White, who stated that he had lived all of his life within about 14 miles of Mud Bayou; that he was 70 years old, and had known the country for 60 years; that there had never been any use of Mud Bayou by boats, never been any people living on or around Mud Bayou, and that there had never been any use of the country at that point, except for grazing cattle; that he had never heard of it being a navigable stream, had never seen any goods or merchandise taken up the stream, and had never heard of any. No other witness, either for the plaintiffs or the defense, disputed this testimony, except that one witness stated that a small boat had gone up to the bridge with some ties on it, that had been washed off of the bridge and track during the 1900 storm.

The only testimony as to navigation at all in that vicinity was the testimony that East Bay Bayou, into which Mud Bayou empties, had been navigated to a point about 6 miles by water below the bridge for the purpose of supplying a settlement called High Island; that no navigation had ever gone above that point, and that there had never been anything in Mud Bayou, or any part of it, to call for or justify navigation.

Defendants concede these facts, but declare it to be established by the decisions that navigability cannot be tested alone by the past or the present; that it must be tested by the future as well, and that, if the stream in question contains sufficient water to carry commerce over it, it must be held to be potentially navigable, and protected against the time when commercial conditions shall make it actually available. They...