Tempel v. United States, No. 29

• Court: United States Supreme Court
• Writing for the Court: BRANDEIS
• Citation: 39 S.Ct. 56,248 U.S. 121,63 L.Ed. 162
• Decision Date: 09 December 1918
• Docket Number: No. 29
• Parties: TEMPEL v. UNITED STATES

248 U.S. 121 39 S.Ct. 56 63 L.Ed. 162 TEMPEL

v.

UNITED STATES.

No. 29. Argued Nov. 5, 1917. Decided Dec. 9, 1918.

Page 122

Messrs. Timothy F. Mullen and Thomas B. Lantry, both of Chicago, Ill., for plaintiff in error.

[Argument of Counsel from page 122 intentionally omitted]

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Mr. Solicitor General Davis, for the United States.

Mr. Justice BRANDEIS delivered the opinion of the Court.

The Chicago river, its branches and forks lie wholly within the state of Illinois.¹ Their aggregate length is about 35 miles. Originally the stream was a sluggish creek, nearly stagnant during much of the year and, in part, navigable only for rowboats and canoes or for

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floating of logs. The United States surveyed the river in 1837, but made no improvement above its mouth until 1896. Before the latter date, however, extensive improvements had been made from time to time by the city and by riparian owners. The river had become the inner harbor of Chicago and, measured by its tonnage, was one of the most important waterways of the globe. In number of arrivals and departures of vessels it led all the harbors of the United States. In tonnage it was second only to New York.²

In 1896 Congress made an appropriation 'for improving the Chicago river, in Illinois, from its mouth to the stock yards on the South branch and to Belmont avenue on the North branch, as far as may be permitted by existing docks and wharves, to be dredged to admit passage by vessles drawing sixteen feet of water.' Act of June 3, 1896, c. 314 (29 Stat. 202, 228). This act was amended by the Act of June 4, 1897, c. 2 (30 Stat. 11, 47), which, as interpreted by the War Department, permitted a slight widening of the stream in certain places. The General Assembly of Illinois by resolution of April 22-23, 1897, gave assent to the United States acquiring by purchase or condemnation 'all lands necessary for widening the Chicago river and its branches.' In 1899 Congress directed a survey with a view to creating a deeper channel and adopting 21 feet 'as the project depth for the improvement in lieu of that fixed by the Act of June third, eighteen hundred and ninety-six.' Act of March 3, 1899, c. 425 (30 Stat. 1121, 1156). No widening beyond the banks of the de jure stream was specifically authorized by this act, nor by any subsequent act. From time to time other appropriations were made by Congress for these improvements of the river, and work

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was carried on thereunder.³ About 12.5 miles of the river was improved by the government; and of this about 5 miles consisted of that part of the North branch which lies between the main river and Belmont avenue.

Early in 1899 Tempel became the owner of certain land on the bank of the North branch below Belmont avenue. He leased his land for a brickyard; and by the terms of the lease the lessee was permitted to dredge the bottom of the river in front of the premises for the purpose of making brick from the clay thereunder. But the lessee was directed not to interfere with the upland; and he covenanted to deliver up the premises in the condition in which they were demised. Nevertheless, from time to time during a period of five years between 1889 and 1899, the lessee dug away, to a depth of from 6 to 14 feet, a large strip of the upland, extending in some places to a considerable width. In its natural state the stream opposite the plaintiff's property varied in width from probably 50 to 150 feet, and could be used only for floating logs and for travel by rowboats or canoes; but before 1889 riparian owners had dug a channel and possibly greatly widened the stream, and schooners navigated to a point beyond Belmont avenue. Between 1890 and 1899 boats drawing 5 to 8 feet of water were navigating the North branch up to Belmont avenue. In 1896 the river in front of Tempel's property was in varying depths of from 6 to 14 or 15 feet.

The United States did not do any dredging in front of

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Tempel's property until 1899. Then it dredged a channel to the depth of 17 feet, about 30 feet wide—the excavation being made wholly in the then bed of the stream as submerged. It next dredging there was in 1909 when this channel was deepened to 21 feet and widened to 60 feet, the excavation being again made wholly in the then bed of the stream as submerged. All of the dredging, both in 1899 and in 1909, which was not within the bed of the river in its natural state, was done within the limits of the strip of upland which had been submerged through the dredging done by the lessee prior to 1899. During the period from 1889 to 1899, the stream in front of Tempel's premises was in constant and increasing use for the purpose of public navigation. The government does not appear to have had knowledge of the fact that dredging had been done before 1899 by the lessee without the consent of Tempel or that the river had been widened by excavation. The reports of the Secretary of War show that he never specifically authorized, for the purpose of widening the river, the appropriation of any of the property herein involved and that the government believed, when it dredged in front of Tempel's property in 1899 and again in 1909, that the submerged land, in which the dredging was done, was either a part of the natural bed of the river, or that it had been dedicated by the owner for purposes of navigation, or that it had in some other manner become a part of the de jure stream.⁴ No

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objection was made by Tempel, until 1910, to the use, for navigation, of the river in front of his property; and he did not file any complaint as to the dredging of 1899. He had no knowledge, until 1910, of the dredging which had been done by his lessee, nor of that done by the government.

Promptly after learning of the dredging, Tempel demanded of the government possession of that part of the land submerged which had formerly constituted a part of his upland. The demand was refused; and in 1911 he brought, in the District Court of the United States for the Northern District of Illinois, this suit, under the Tucker Act (Judicial Code, § 24, par. 20; Comp. St. 1916, § 991 [20]), to recover the value of property which he claimed had been taken by the government. The complaint alleged that the river in front of his premises was, at the time he acquired the same and theretofore, a creek used only for surface drainage and was 'not a navigable stream either in law or in fact'; that the government 'in the latter part of the year 1909 completely excavated a channel through the same' for the purpose of making said North branch navigable; and that it holds possession thereof by virtue of the resolution...