In re Condemnations for Imp. of Rouge River

• Decision Date: 21 May 1920
• Docket Number: 6157,6213.,6212
• Citation: 266 F. 105
• Parties: In re CONDEMNATIONS FOR IMPROVEMENT OF ROUGE RIVER.
• Court: U.S. District Court — Eastern District of Michigan

266 F. 105

In re CONDEMNATIONS FOR IMPROVEMENT OF ROUGE RIVER.

Nos. 6157, 6212, 6213.

United States District Court, E.D. Michigan, Southern Division.

May 21, 1920

[Copyrighted Material Omitted]

Alfred J. Murphy and Howell Van Auken, Sp. Assts. Atty. Gen., for petitioner.

A. C Angell, Stevenson, Carpenter, Butzel & Backus, Campbell Bulkley & Ledyard, Miller, Canfield, Paddock & Perry, Keena, Lightner, Oxtoby & Hanley, Corliss, Leete & Moody, Wilkinson & Hinkley, Routier & Nichols and Dohany & Hersch, all of Detroit, Mich., for respondents.

TUTTLE District Judge.

These are condemnation proceedings brought by the Secretary of War in the name of the United States, to take by right of eminent domain, certain lands owned by the respondents, for the purpose of improving the Rouge river, a navigable waterway located within this District and in the state of Michigan. The proceedings are based upon and involve the construction and validity of the Act of Congress of May 16, 1906, c. 2465, 34 Statutes at Large, 196 as amended by Act of June 29, 1906, c. 3628, 34 Statutes at Large, 632, being section 9881 of West's United States Compiled Statutes of 1918. This statute provides as follows:

'Whenever any person, company, or corporation, municipal or private, shall undertake to secure any land or easement therein needed in connection with a work of river and harbor improvement duly authorized by Congress, for the purpose of conveying the same to the United States free of cost, or for the purpose of constructing, maintaining, and operating locks, dry docks, or other works to be conveyed to the United States free of cost, and of constructing, maintaining and operating dams for use in connection therewith, and shall be unable for any reason to obtain the same by purchase and acquire a valid title thereto, the Secretary of War may, in his discretion, cause proceedings to be instituted in the name of the United States for the acquirement by condemnation of said land or easement, and it shall be the duty of the Attorney General of the United States to institute and conduct such proceedings upon the request of the Secretary of War: Provided, that all expenses of said proceedings and any award that may be made thereunder shall be paid by the said person, company, or corporation, to secure which payment the Secretary of War may require the said person, company, or corporation to execute a proper bond in such amount as he may deem necessary before said proceedings are commenced.'

By motions to dismiss and by answers various respondents have raised objections to the sufficiency of the petitions for condemnation, as matter of law, and to the legality of the proceedings and the constitutionality of the statute just quoted. The several defenses thus presented, formerly presentable by demurrer, or plea, have been argued in accordance with equity rule 29, and are now before the court for disposition.

The facts, as disclosed by the allegations in the pleadings and by the documents referred to therein, are, in substance and so far as the material circumstances are concerned, as follows: The Rivers and Harbors Act of July 27, 1916, chapter 260, 39 Statutes at Large, 409, directed the War Department to make a preliminary examination of the said Rouge river with a view to the possible improvement thereof.

In accordance with said act, on December 12, 1916, the district engineer officer of the United States army transmitted to the chief of engineers, through the division engineer, a report of the result of such preliminary examination. In this report, after referring to certain improvements previously made by the government in said river, the district officer proceeds with certain statements and recommendations, the substance of which may be gathered from the following quotations therefrom:

'The demand for further improvement of the Rouge river is due primarily to the location of a large industrial plant by the Ford Motor Company near the head of the present improved portion of the river. The construction of this plant has already been started, and when completed it will occupy a frontage on the Rouge of about 3,000 feet, immediately below Maples Road, and will give employment to about 15,000 people. There will be two blast furnaces requiring for full operation a supply of iron ore at the rate of about 6,000 tons per day during the navigation season, and having an output of about 1,000 tons of metal per day. It is contemplated to provide two more furnaces whenever they become necessary. In addition to the iron ore, which is to be brought in exclusively by water, the Ford Motor Company expects to ship about 50 per cent. of the factory product by water. For the economic handling of iron ore, it is desirable that the channel be sufficient for boats of 600 feet length, 65 feet beam, and 20 feet draft. * * * The Rouge river is used as part of the harbor front of the city of Detroit, and the freight handled by vessels making landings in the Rouge might very properly be grouped with other commercial statistics of water-borne commerce of the city of Detroit. * * * If the Ford Motor Company completes the two projected furnaces and operates them at full capacity, the ore required will amount to about 1,300,000 tons per year. The company has in view an ultimate furnace capacity of twice the initial, and expects to ship out by water about one-half of the output of the factory. Hence it seems that it may reasonably be expected that the Ford Motor Company's plant alone will add at least 1,300,000 tons to the annual freight movement upon the Rouge, and that before many years the in and out bound tonnage from this factory will be much in excess of this figure. The industries already making use of the river may be expected to increase their annual tonnage of water-borne freight. The rapid industrial growth of Detroit will, undoubtedly, not only result in a considerable growth in the business of those now owning docks on the Rouge, but will cause new industries to be established along that stream, provided the facilities for navigation in the Rouge are satisfactory for a heavy freight movement. It is believed that, within a few years after the completion of a channel suitable for the largest lake carriers, the total annual freight movement upon the Rouge will considerably exceed 3,000,000 tons, and that there will be a continual growth thereafter. * * *

'As previously stated, an improvement sufficient for the demands of commerce would practically convert the river into an artificial slip, following the general alignment of the natural river bed. No through commerce upon the Rouge river would result, but the harbor frontage of the city of Detroit would be increased, and the establishment of industries within reach of navigable water would be facilitated, with the resulting tendency toward increasing the total tonnage of freight moved upon the Great Lakes. The construction of the slip would be in the interest of practically all owners of land bordering it, and such owners would be more benefited than would other citizens of Detroit, but the increase in the freight traffic of the city expected to follow the completion of the improvement would be of general benefit. It has not been the practice of the government to assist in the construction of private slips, but it is believed that the conversion of the Rouge river into a slip will be of sufficient general benefit to cause it to be considered differently from other dock improvements. It is understood that in the past it has been considered proper to add to the harbor frontage of important cities at the expense of the general government, as, for example, in the case of the improvement of Harlem River and of some of the streams passing through important lake cities. My conclusion is that the general and the private benefit are so intermingled that the cost of the improvement ought to be divided between the United States and the locality, and that the proper basis for dividing the cost will be for the United States to undertake the actual work of the improvement and for the local interests to donate the necessary land and to assume the burden of ascertaining and settling claims for damages as well as the cost for making alterations in bridges when these cannot be required to be made at the expense of the owners.

'There is strong reason for believing that the improvement would result in a large increase in the freight movement upon the Rouge river; but until the cost of the improvement is ascertained it is impracticable to do more than make a rough comparison between the benefit to be expected and the cost of the work. * * * I do not believe there is much doubt that the project could not be considered one worthy of being undertaken by the general government, if the entire cost of the work is to be borne by the United States; but with the assumed distribution of costs, as mentioned above, there seems to be sufficient reason for considering the improvement to be worthy to the extent of authorizing the preparation of an estimate of cost.'

In transmitting the report of the district engineer just mentioned, the division engineer expressed disagreement with the opinion of the district engineer concerning the division of the cost of improvement of the Rouge river, on the ground that such improvement would be 'primarily in the interest of the Ford Motor Company,' and he recommended that, therefore, all of such costs should be borne by the 'local interests' thus to be benefited. This recommendation, however, as will be hereinafter noted, was not adopted or approved by the superior officers of the division engineer.

Afterwards on January 10, 1917, the Board of Engineers for Rivers and Harbors recommended to the chief...