Garrison v. Greenleaf Johnson Lumber Co.

• Decision Date: 01 June 1914
• Docket Number: 1239.
• Citation: 215 F. 576
• Parties: GARRISON, Secretary of War, et al. v. GREENLEAF JOHNSON LUMBER CO.
• Court: U.S. Court of Appeals — Fourth Circuit

215 F. 576

GARRISON, Secretary of War, et al. v. GREENLEAF JOHNSON LUMBER CO.

No. 1239.

United States Court of Appeals, Fourth Circuit.

June 1, 1914

John L Jeffries, of Norfolk, Va. (L. D. Starke and Jeffries Wolcott, Wolcott & Lankford, all of Norfolk, Va., on the brief), for plaintiff.

D Lawrence Groner, U.S. Atty., of Norfolk, Va. (Hiram M. Smith Asst. U.S. Atty., of Richmond, Va., on the brief), for defendants.

Before PRITCHARD and WOODS, Circuit Judges, and DAYTON, District judge.

WOODS Circuit Judge.

The complainant, owner of about eight acres of land on the Elizabeth river opposite the navy yard at Norfolk, Va., brought this suit to enjoin the Secretary of War from threatened removal of its wharf and other structures used in its business as a manufacturer and shipper of lumber. The District Court overruled a demurrer to the bill and after hearing the answer and testimony on issues of fact granted a permanent injunction, holding that removal of the wharves and other structures would be taking private property without compensation.

There is little dispute as to the facts. Under the law of Virginia the complainant, as riparian owner, has fee-simple title to low-water mark in the bed of the river. At some time before the year 1873, the complainant built a wharf for shipping its manufactured lumber, and by means of piles enclosed enough water surface to make a pond for logs floated down the river for manufacture. As nearly as can be ascertained the first port warden or harbor line, which indicated the limit beyond which riparian owners could not use the water front, was established at this point in the river in 1876, by harbor commissioners under authority conferred by statute law of Virginia. When the harbor line was established it turned out that the complainant's wharf and log pond was outside the line of navigation. In 1883 or 1884 the wharf and other structures were improved and enlarged to their present dimensions, still not extending beyond the line of navigation. In 1890 the same harbor line was adopted by the Secretary of War in behalf of the United States under authority conferred by act of Congress, as the national government's limit of navigable water. On June 12, 1911, the Secretary of War under the authority of an act of Congress established a new navigation or harbor line, which brings a portion of complainant's structures within the navigable area of the river. The complainant was notified of the change, and the necessity of the removal of its structures; and negotiations for settlement of complainant's claim for compensation indicated an acknowledgment of the right of compensation by the officials of the office of the Secretary of War. Agreement could not be reached as to the value, and condemnation proceedings were instituted on behalf of the government. While these proceedings were pending, the Secretary of War taking the position that the complainant had assumed the risk of establishment and change in the line of navigation when it located its structures, abandoned the condemnation proceedings and notified complainant of his intention to remove whatever portion of its structures fell within the new line of navigation. Thereupon the complainant, claiming the right of compensation, brought this suit for injunction.

The general principles under which the relative rights of the owner of the shore of navigable water and of the state, and of the United States are to be determined have been so often and so elaborately set out by the Supreme Court of the United States and other tribunals that they require no discussion. The extent of the title and of the rights of the riparian owner in the soil under navigable water is fixed by state law, and under the law of Virginia the complainant owned the soil under the water to low-water mark. But all state laws and regulations with respect to navigable waters, and all rights acquired under them, are subject to the paramount right of the United States to appropriate any portion of the submerged soil for purposes of navigation. Hence the appropriation by the United States for purposes of navigation of the soil under the water to which the complainant has title under the state law is not a taking of private property, and the complainant has no right to compensation therefor.

Under this principle, that the use and title of the riparian owner is subject to the dominant right of the United States, it has been held that it is not taking private property to require a bridge to be changed or removed, or a tunnel to be lowered, or to erect dams or dykes which incidentally cut off access to deep water, or access to a landing in the channel, or to flood lands by the erection of revetments along the banks of a navigable stream. Gilman v. Philadelphia, 3 Wall. 713, 18 L.Ed. 96; Illinois Cen. R.R. v. Illinois, 146 U.S. 446, 13 Sup.Ct. 110, 36 L.Ed. 1018; Shively v. Bowlsby, 152 U.S. 1, 14 Sup.Ct. 548, 38 L.Ed. 331; Gibson v. United States, 166 U.S. 269, 17 Sup.Ct. 578, 41 L.Ed. 996; Scranton v. Wheeler, 179 U.S. 141, 21 Sup.Ct. 48, 45 L.Ed. 126; Bedford v. United States, 192 U.S. 217, 24 Sup.Ct. 238, 48 L.Ed. 414; C., B. & Q. Ry. Co. v. Illinois ex rel. Grimwood, 200 U.S. 561, 26 Sup.Ct. 341, 50 L.Ed. 596, 4 Ann.Cas. 1175; West Chicago R.R. v. Chicago, 201 U.S. 506, 26 Sup.Ct. 518, 50 L.Ed. 845; Union Bridge Co. v. United States, 204 U.S. 364, 27 Sup.Ct. 367, 51 L.Ed. 523; Monongahela Bridge Co. v. United States, 216 U.S. 177, 30 Sup.Ct. 356, 54 L.Ed. 435; Hannibal Bridge Co. v. United States, 221 U.S. 194, 31 Sup.Ct. 603, 55 L.Ed. 699; Philadelphia Co. v. Stimson, 223 U.S. 605, 32 Sup.Ct. 340, 56 L.Ed. 570. This dominant right of the United States is thus stated in Union Bridge Co. v. United States, supra:

'Although the bridge, when erected under the authority of a Pennsylvania charter, may have been a lawful structure, and although it may not have been an unreasonable obstruction to commerce and navigation as then carried on, it must be taken, under the cases cited, and upon principle, not only that the company when exerting the power conferred upon it by the state, did so with knowledge of the paramount authority of Congress to regulate commerce among the States, but that it erected the bridge subject to the possibility that Congress might, at some future time, when the public interest demanded, exert its power by appropriate legislation to protect navigation against unreasonable obstructions.' In Scranton v. Wheeler, supra, the court uses this language:

'The primary use of the waters and the lands under them is for purposes of navigation, and the erection of piers in them to improve navigation for the public is entirely consistent with such use, and infringes no right of the riparian owner. Whatever the nature of the interest of a riparian owner in the submerged lands in front of his upland bordering on a public navigable water, his title is not as full and complete as his title to fast land which has no direct connection with the navigation of such water. It is a qualified title, a bare technical title, not at his absolute disposal, as is his upland, but to be held

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