Moore v. Hampton Roads Sanitation Dist. Com'n

Decision Date13 July 1977
Docket NumberNos. 75-1576,s. 75-1576
Citation557 F.2d 1030
PartiesWilliam A. MOORE et al., Appellants, v. HAMPTON ROADS SANITATION DISTRICT COMMISSION and City of Newport News, Appellees. William A. MOORE et al., Appellees, v. HAMPTON ROADS SANITATION DISTRICT COMMISSION, Appellant, and City of Newport News, Defendant. William A. MOORE et al., Appellees, v. The CITY OF NEWPORT NEWS, Appellants, and Hampton Roads Sanitation District Commission, Defendant. to 75-1578.
CourtU.S. Court of Appeals — Fourth Circuit

William Mills Krieger, Newport News, Va. (Edward J. Passarelli, Richard Cornelius, Newport News, Va., C. Jackson Simmons, White Stone, Va., and James S. Insley, Poquoson, Va., Alfred Pelaez, Pittsburgh, Pa., Duquesne University School of Law, on brief), for appellants in No. 75-1576 and appellees in Nos. 75-1577 and 75-1578.

Herbert V. Kelly, Newport News, Va. (E. D. David, Newport News, Va., W. M. Martin, III, Hampton, Va., Jones, Blechman, Woltz & Kelly, Newport News, Va., on brief), for appellees in Nos. 75-1576 and appellants in Nos. 75-1577 and 75-1578.

Before CRAVEN, Circuit Judge, FIELD, Senior Circuit Judge, and THOMSEN, Senior District Judge. *

THOMSEN, Senior District Judge.

Claiming jurisdiction under 28 U.S.C. 1331 (federal question jurisdiction) and 28 U.S.C. 1333 (admiralty and maritime jurisdiction), plaintiffs' complaint alleged that the value of oyster beds in the Warwick River leased to them by the Commonwealth of Virginia has been destroyed as a result of improper operation of a sewage disposal system by defendants, City of Newport News (City) and Hampton Roads Sanitation District Commission (Commission). From a judgment entered in favor of defendants after trial, plaintiffs have appealed. 1 Plaintiffs base their claims against the City on alleged negligence, nuisance and taking of their property without just compensation; they base their claims against the Commission only on an alleged taking.

Leases of underwater beds for cultivation and harvesting of oysters are granted by the Commonwealth for a term of 20 years at an annual rental of $1.50 per acre or fraction thereof, renewable by the lessee after each term, and are treated as chattels real under Virginia law. Va.Ann.Code, 1973 Repl.Vol., § 28.1-109(12).

The Warwick is a small river which empties into the James a short distance northwest of Hampton Roads. The few miles with which we are concerned, in which the oyster beds leased to plaintiffs are located lie between the lower part of Fort Eustis and the City of Newport News and are navigable and tidal. The State Health Commissioner has closed and reopened the Warwick River or portions thereof to direct marketing of oysters a number of times since 1941.

The City has for many years operated pumping stations which pump sewage to sewage plants operated by the Commission. On several occasions these pumping stations have overflowed into the Warwick River. In 1962 the State Health Commissioner prohibited the harvesting of oysters in the entire river for a short period; that closure is not the basis of any claim in this case. By 1966 portions of the river had been released from that prohibition; however, in 1966 one or more pumping stations overflowed and the State Health Commissioner again closed, due to the high coliform counts, the northern portion of the river in which the beds of several plaintiffs were located. In 1972 there were additional pumping station overflows and the central portion of the river, in which the beds of some of the plaintiffs are located, was closed. The statute under which the closures were made permits transplanting of oysters from closed areas into approved areas if a special permit is obtained. Va.Ann.Code, 1973 Repl.Vol., § 28.1-179. Some of the plaintiffs took advantage of this provision, but the evidence indicates that the results were not satisfactory.

During all material times the Sanitation Commission has operated sewage treatment plants in the area. Since 1967 the Commission has operated the James River Sewage Treatment Plant, which discharges treated sewage into the water at the mouth of the Warwick. In that year the State Health Commissioner closed for the direct marketing of oysters and other shell fish (in accordance with Food and Drug Administration requirements) a buffer zone around the outfall opening. 2

The case came on for trial before a jury on issues of liability, issues of damages being reserved. At the conclusion of plaintiffs' evidence the district judge directed a verdict in favor of defendant Commission, ruling that no case against it had been proved on any ground. 3 At the conclusion of all the evidence, the judge submitted to the jury three "inquiries", which the jury answered to the effect that: (1) the high coliform count in the Warwick River which was the reason for the 1966 and 1972 closures was proximately caused by the maintenance and operation of the sewer system of the City; (2) the City was guilty of negligence in the operation and maintenance of its sewer system as the same affected the Warwick River; and (3) such negligence was a proximate cause of conditions requiring the closure of the Warwick River.

The City thereafter filed a motion for judgment n. o. v. which the district judge granted on the grounds that the action against the City is barred (1) by the doctrine of sovereign immunity, and (2) by the failure of the plaintiffs to give the City the 60-day statutory notice of their claims provided for in Va.Ann.Code, 1957 Repl.Vol., § 8-653, as it read before the 1973 amendment thereto. 4 Plaintiffs' appeal challenges both of these rulings, as well as the district court's ruling that there was no exercise of eminent domain by the Commission. Before resolving these questions, we will discuss the issue raised by defendants' cross-appeals (see n. 1, above).

The City and the Commission challenge the ruling of the district court that there is no longer an unqualified public right to discharge sewage into tidal streams. The Commission argues that it has not been shown to have violated any provision of Virginia law governing water pollution, and therefore the closing of oyster grounds by the State Health Commissioner due to a pollution hazard was a risk to which the lessees were subject when they took their leases. The City argues that occasional discharges of untreated sewage into the Warwick River do not violate the legislative policy against pollution, and that the oystermen took their leases subject to the risk of such occasional discharges.

The common law right of the public to dump sewage in tidal streams was recognized in a line of cases applying Virginia law decided during the period 1916 to 1939. Hampton v. Watson, 119 Va. 95, 89 S.E. 81 (1916); Darling v. Newport News, 123 Va. 14, 96 S.E. 307 (1918), aff'd, 249 U.S. 540, 39 S.Ct. 371, 63 L.Ed. 759 (1919); Commonwealth ex rel. Atty. Gen. v. Newport News, 158 Va. 521, 164 S.E. 689 (1932); DuPont Rayon Co., Inc. v. Richmond Industries, Inc., 85 F.2d 981 (4 Cir. 1936); Old Dominion Land Co. v. Warwick County, 172 Va. 160, 200 S.E. 619 (1939). In Darling, the Supreme Court, speaking through Justice Holmes, agreed with the Virginia court that "when land is let under the water of Hampton Roads, even though let for oyster beds, the lessee must be held to take the risk of the pollution of the water". 249 U.S. at 543, 39 S.Ct. at 372. The Court held that the grant was subject to the right of the State to authorize the City of Newport News to discharge its sewage into the Roads, and that the consequent pollution of the plaintiff's oysters was neither a taking of his property without due process nor an impairment of his contract rights.

Since 1939, however, Virginia has imposed ever-stronger controls on the discharge of sewage into state waters. A Virginia statute now prohibits the discharge of raw sewage into such waters. Va.Ann.Code, 1973 Repl.Vol., § 62.1-44.5. We conclude that whether or not the discharges of raw sewage by the City can be characterized as occasional, they are not now protected by the public policy of the State, and plaintiffs' rights to cultivate oysters are not subject to a right of the City to violate state law. 5

The Commission, however, has not been shown to have violated any statutory or regulatory provision. The public right to discharge sewage into the Warwick has been qualified by the legislature only to the extent provided by the pollution control statutes. The Commission, in exercising its statutory right to discharge treated sewage into the Warwick, abridged no rights of the plaintiffs, who took their leases subject to the risk of closure due to lawful discharges.

Because we agree with the district judge that there was no evidence sufficient to prove a case against the Commission on grounds of negligence, nuisance or a taking by the Commission, the judgment in its favor must be affirmed, whether Virginia law or admiralty principles should be applied. 6 The case against the City, however, requires us to consider whether its liability on grounds of negligence, nuisance and eminent domain is controlled by Virginia law, maritime law or other federal law.

The Warwick River in the area of the beds involved in this case is a navigable stream, subject to the ebb and flow of the tides. Harvesting oysters and clams, like fishing, is a traditional maritime activity; the cultivation of oysters is so closely related to the harvesting of oysters that interference with cultivation which impairs harvesting also meets the situs and nexus tests established by Executive Jet Aviation v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), and comes within the admiralty and maritime jurisdiction. Union Oil Co. v. Oppen, 501 F.2d 558, 560-63 (9 Cir. 1974); Potomac River Ass'n Inc. v. Lundeberg Md. Sea. Sch., Inc., 402 F.Supp. 344, 358 (D...

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