Greenleaf Johnson Lumber Co. v. United States

• Decision Date: 20 February 1913
• Citation: 204 F. 489
• Parties: GREENLEAF JOHNSON LUMBER CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

204 F. 489

GREENLEAF JOHNSON LUMBER CO. v. UNITED STATES.

United States District Court, E.D. Virginia.

February 20, 1913

The complainant, Greenleaf Johnson Lumber Company, is the owner in fee of certain property bordering on the Southern branch of the Elizabeth river, opposite the government navy yard at Norfolk, Va. It is engaged in the manufacture and sale of lumber, and in the conduct of its business erected many years ago, in front of its highland, extending out into the river a wharf and fill; the former being used for the shipment of the product of its mills, and the latter being used for the purpose of floating and holding rough logs prior to their manufacture. All of these improvements were made pursuant to authority obtained from the board of harbor commissioners of the port of Norfolk and Portsmouth, and the same, as originally constructed, extended out from the shore into the river to an imaginery line known in this harbor as the 'Port Warden's Line,' in effect the channel line or line of navigability. At the time these improvements were made, and for many years subsequent thereto, the government had established no harbor line or line of navigability in this branch of the river, but in 1890, pursuant to an act of Congress, the Secretary of War established such a line, and as established it was coincident in all respects with the previously established state line, and the property in dispute here was entirely within, or inland of, the same, and the line so continued in force and operation until February 1911, when, after due hearing, the Secretary of War changed its location, so that, as changed and re-established, it ran along the front of complainant's property some 200 and odd feet inland of the original line, the effect of which was to leave outside of such re-established line approximately an equal number of feet of complainant's wharf and fill.

Shortly after this, the Secretary of War gave notice to complainant to remove within 90 days its structures extending out beyond the re-established line, upon penalty of having them removed by the government, his action in this regard being, it is claimed, in accordance with Act Cong. March 4, 1911, c. 239, 36 Stat. 1265-1275, making appropriation for the widening of the channel of the Southern branch of the Elizabeth river opposite the property of the complainant. Complainant thereupon obtained from this court an injunction order restraining the Secretary of War, his agents and servants, from interfering with the possession of War, his agents and servants which the government was seeking to destroy. The Secretary of War duly appeared through the district attorney, filed a demurrer to the bill of complaint, and by agreement of parties at the hearing it was stipulated that the demurrer should be considered as a petition under section 12 of the act of March 3, 1899 (chapter 425, 30 Stat. 1151 (U.S. Comp. St. 1901, p. 3542), and should be treated by the court as an application on the part of the government pursuant to the terms of said section for a mandatory injunction to compel the removal of the obstruction complained of, in accordance with the notice of the Secretary of War hereinabove referred to.

Briefly speaking, therefore, the question which the court is now called upon to determine is the right and title of a riparian proprietor in a navigable waterway, as against the government, to improvements placed pursuant to lawful authority in the waterway in front of his high land, between low-water mark and the line of navigability, and the effect upon such right or title, if any, of a subsequent change in the line of navigability, the result of which is to leave a part of such improvements outside of the re-established line.

Starke, Venable & Starke and Jeffries, Wolcott, Wolcott & Lankford, all of Norfolk, Va., for complainant.

D. Lawrence Groner, U.S. Atty., of Norfolk, Va.

WADDILL District Judge (after stating the facts as above).

Several incidental questions arise upon the pleadings, which will be considered before passing to the merits, namely, the rights of riparian owners under the laws of Virginia in lands bordering on streams and under the waters thereof to the line of navigability, the ownership of the submerged lands, the rights of the federal government respecting the waters in question, and the status of the riparian owner as respects land below low-water mark.

The follow may be conceded as the settled law in Virginia regarding these matters, recognized and acquiesced in by the parties to this proceeding, save the fourth proposition, as to which they are not agreed:

First. That riparian owners have a fee-simple interest to low-water mark in lands bordering on navigable streams.

Secondly. That the ownership of the lands in the bed of a navigable stream below low-water mark is vested in the commonwealth, subject to the public easement or servitude in the federal government in furtherance of the ends of commerce and navigation.

Thirdly. That the use of the waters in question is subject to the paramount power and authority of the federal government thereto, in so far as it may determine to be necessary to further the ends of commerce and navigation.

Fourthly. Riparian owners have the right to erect wharves, or piers, or bulkheads, in water courses opposite their lands, provided navigation be not obstructed, nor the private rights of any person otherwise injured thereby, and that this right in Virginia, within the limitations mentioned, is not a mere license, but constitutes property in the owner.

A preliminary question is presented as to the power and authority of the Secretary of War to make the contemplated improvement, as well as of the lack of specific authority on his part to act, because of the failure of Congress to provide for the work by appropriate legislation. The act of Congress of March 3, 1899 (chapter 425, 30 Stat.L. 1151), confers large powers upon the Secretary of War respecting the rivers and harbors of the country, and the regulation of the navigation of the same, but whether in terms to do the specific work complained of need not be decided, since by the act of March 4, 1911 (chapter 239, 36 Stat. 1265-1275), provision is directly made for the improvement in question, namely, 'for the purchase of land and widening of channel,' and under this authority the executive branch of the government has the right to designate the hand that it will use to carry out and perform the directions of Congress. The act making the appropriation is a sufficient declaration of the will of Congress that the improvement is desired for the legitimate purposes of commerce and navigation, and hence there can be no legal objection made, either to the making of the contemplated improvement, or the instrumentality chosen to carry out the same, provided the rights of the riparian owner, if any, be properly safeguarded and protected. Here the act sufficiently fixes the location of the improvement, and the pleadings in this case admit that the complainant's lands are within the bounds of the same. South Carolina v. Georgia, 93 U.S. 4, 12, 23 L.Ed. 782; Gibson v. United States, 166 U.S. 269, 276, 17 Sup.Ct. 578, 41 L.Ed. 996; Scranton v. Wheeler, 179 U.S. 141, 157, 21 Sup.Ct. 48, 54 (45 L.Ed. 126). In the latter case, Justice Harlan, speaking for the court, and quoting from Chief Justice Fuller in the Gibson Case, said:

'The legislative authority for these works consisted simply in an appropriation for their construction, but this was an assertion of the right belonging to the government, to which riparian property was subject, and not of a right to appropriate private property, not burdened with such servitude, to public purposes.'

This brings us to the crucial question to be determined, namely, the status of a riparian owner, who has built a pier, or wharf, or bulkhead, in front of his land, by and with the assent of the constituted authorities, and within the established harbor lines, upon the federal government's concluding, in the interest of commerce and navigation, to widen the channel, necessitating the cutting off from his wharf or pier some 200 feet; that is to say, can the same be removed, destroyed, or taken by the government, without just compensation therefor, as required by the fifth amendment of the Constitution? The right of the government, in furtherance of the ends of commerce and navigation, to change harbor lines, to take the pier in question, or cut off and shorten the same, is conceded. In Gilman v. Philadelphia, 3 Wall. 724, 18 L.Ed. 96, the court said:

'Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose, they are the public property of the nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation interposed by the states or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of the offenders. For these purposes, Congress possesses all the powers which existed in the states before the adoption of the national Constitution, and which have always existed in the Parliament of England. ' Gibbons v. Ogden, 9 Wheat. 1, 196, 197, 6 L.Ed. 23; Gilman v. Philadelphia, 3 Wall. 713, 724, 18 L.Ed. 96; South Carolina v. Georgia, 93 U.S. 4, 10, 23 L.Ed. 782; McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248; Scranton v. Wheeler (a decision of Mr. Justice Lurton in the Circuit Court of Appeals for

...