U.S. v. Harrell

• Citation: 926 F.2d 1036
• Decision Date: 15 March 1991
• Docket Number: No. 89-7432,89-7432
• Parties: The UNITED STATES of America and The United States Corps of Engineers, Walter M. Gollatte, Lewis Perry Howard, Tony Howard, Andy Parnell, and Kirk Samples, Plaintiffs-Appellants, v. C.E. HARRELL, Jr., Sidney M. Harrell, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1036

926 F.2d 1036

The UNITED STATES of America and The United States Corps of Engineers, Walter M. Gollatte, Lewis Perry

Howard, Tony Howard, Andy Parnell, and Kirk Samples, Plaintiffs-Appellants, v. C.E. HARRELL, Jr., Sidney M. Harrell, Defendants-Appellees.

No. 89-7432.

United States Court of Appeals,

Eleventh Circuit.

March 15, 1991.

Eugene A. Seidel, Asst. U.S. Atty., Mobile, Ala., for plaintiffs-appellants.

Thomas R. Boller, Mobile, Ala., for Gollatte, et al.

John A. Bryson, U.S. Dept. of Justice, Lands Div., Appellate Section, Washington, D.C., for the U.S.

Halron W. Turner, Edward Turner, Chatom, Ala., and Louis E. Braswell, Mobile, Ala., for defendants-appellees.

J.P. Courtney, III, Lyons, Pipes & Cook, P.C., Marion A. Quina, Jr. and Neil C. Johnston, Mobile, Ala., for amicus, Alabama Wildlife, etc.

Appeal from the United States District Court for the Southern District of Alabama.

Before HATCHETT and CLARK, Circuit Judges, and MORGAN, Senior Circuit Judge.

CLARK, Circuit Judge:

Appellants challenge the district court's determination that Lewis Creek is not a navigable waterway of the United States. Because we agree with the district court that Lewis Creek is not navigable in fact and is not subject to the navigational servitude of the Tombigbee River, we affirm. In so concluding, we concur in the reasoning applied by the district court in reaching its decision.

I. Facts

The Tombigbee River is a major artery of commerce, determined to be navigable by the United States Corps of Engineers for more than one hundred years. Lewis Creek, the subject of this action, is a tributary of the Tombigbee River located in southern Alabama about forty miles north of Mobile. The creek rises to the west of the Tombigbee, and as it winds eastwardly toward the river, it enters the defendants Harrells' property just west of the Southern Railroad trestle. Further downstream, Lewis Creek enters Harrell's Landing, a small pool of water, branches out into a number of unidentifiable fingers, meanders through a swamp, and empties into Three Rivers Lake, which flows about a mile before joining the Tombigbee. The stretch of Lewis Creek at issue here runs from the railroad trestle to the point at which the creek empties into Three Rivers Lake.

Eastern Washington County, in which the defendants' property is located, abuts the Tombigbee River and consists primarily of hardwood riverbottom lands. During the wet season, lasting generally from the latter part of December until late March, the Tombigbee River periodically overflows it banks and floods the bottomland. The hardwood forests in this bottomland contain commercially valuable stands of tupelo gum, cypress, wild pecan, willow, hickory and various types of oak. All of these species of trees are terrestrial, rather than aquatic; however, they will grow on land subject to intermittent flooding. With the exception of some cypress and tupelo stands, however, they will not grow in soil that is permanently or heavily flooded. During the dry seasons, the Harrells also have used the bottomlands for hunting dear and turkey, for growing and harvesting timber, and in previous years, for grazing cattle and hogs.

Private plaintiffs in this action are individuals who have commercially fished in Lewis Creek at times of high water, gaining access either by boating up the creek from the Tombigbee or with the permission of riparian owners. The defendants are riparian owners on both sides of Lewis Creek who claim the stretch of creek that runs through their property is private and who have sought to exclude plaintiffs from using this stretch of Lewis Creek for fishing.

On October 8, 1982, the Circuit Court of Washington County, Alabama determined and entered judgment that Lewis Creek was a non-navigable stream. The court enjoined appellants Walter W. Gollatte and Lewis Perry Howard from the use of Lewis Creek.

Subsequently, the United States and the United States Army Corps of Engineers, realigned plaintiffs, were consulted by the plaintiffs and, after inspection of the area, advised plaintiffs in a letter dated July 30, 1984 that because this stretch of Lewis Creek was "below the ordinary high water mark of the Tombigbee River," this reach of Lewis Creek "is a navigable water of the United States up to the Southern Railroad bridge at Toinette, Washington County." The private plaintiffs brought this action in the district court for the Southern District of Alabama, again seeking a declaration that Lewis Creek is a navigable waterway to which they have a right of public access.

II. Discussion

In determining whether Lewis Creek is a navigable waterway of the United States within the meaning of section 10 of the Rivers and Harbors Act, 33 U.S.C. Sec. 403, ¹ and whether appellants have a resulting right of access, we consider, first, whether Lewis Creek is navigable in fact; second, whether Lewis Creek, as a result of the Tombigbee floodwaters, is subject to the navigational servitude of the United States; and, finally, whether appellants have a right of public access to Lewis Creek under Alabama law. We review the district court's findings of fact under a clearly erroneous standard of review; its application of law to those facts is subject to de novo review. ²

A. Navigability in Fact.

The district court, in making findings of fact, determined that Lewis Creek, as it flows through the defendants' land, is a "small, narrow, shallow, obstructed, partially dry creek that is incapable of any type of waterborne commerce." The creek, the court found, only becomes capable of use for such commerce "when the flood waters of the Tombigbee River break out of their banks on the main course of the river and back up across the intervening lands of others into the non-navigable bed of Lewis Creek." ³ The parties agree that absent the effect of the Tombigbee floodwaters on Lewis Creek, the creek itself is not a navigable waterway of the United States.

In United States v. Appalachian Electric Power Company, the Supreme Court held that a river is "navigable in fact" when it is used or susceptible of being used in its ordinary condition to transport commerce. ⁴ The court further held that "[w]hen once found to be navigable, a waterway remains so." ⁵ Navigable in fact, as the Court had previously held, means navigable in law. ⁶ The Corps of Engineers' regulations promulgated pursuant to the Rivers and Harbors Act incorporate the Appalachian Electric definition, defining navigable waters of the United States as "those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce." ⁷

The district court, in concluding that Lewis Creek was not now and had not previously been navigable in fact, found that the original course of Lewis Creek as it exited the Harrells' Landing pool to the North was never used and was never susceptible for use in transporting commerce. The court also considered the effect of a dam which at one time had been constructed to divert the waters that flowed down the original course of the creek into a man-made ditch. The ditch had been channeled by the Cochran Lumber Company with the intention of creating a water flow capable of carrying timber from its mill. The court found that this ditch, sometimes referred to as Lewis Creek, proved to be as unsuccessful as the original creek itself for transporting logs and, thus, was not capable then or now of supporting commerce. The ditch, the court noted, is no more than several feet wide, is dammed up by beavers in numerous places, and has fallen trees and logs throughout its course.

It is clear that a stream, to be navigable, need not be open to navigation "at all seasons of the year, or at all stages of the water." ⁸ However, as the district court correctly reasoned, "susceptibility of use as a highway for commerce should not be confined to 'exceptional conditions or short periods of temporary high water.' " ⁹

Because we hold that the district court's findings of fact are not clearly erroneous, we conclude that Lewis Creek is not, and never has been, navigable in fact. Lewis Creek currently is impassable under ordinary conditions prevailing throughout the year. Only when unpredictable, infrequent, and temporary flooding of the Tombigbee River occurs during parts of the winter months does Lewis Creek become passable; in some years, these floods do not occur at all. As to past usage, we hold that the district court correctly determined that Lewis Creek had not been used as an avenue of commerce. The court thoroughly reviewed evidence of prior usage, including use by the Cochran Lumber Company of the manmade ditch channeled to float timber down the creek. ¹⁰ As the court noted, this attempt to make Lewis Creek navigable also

proved unsuccessful and ultimately was abandoned because even with the construction by Cochran Lumber Company of a lock or dam ... there never was an adequate enough supply of water to float the lumber down the Creek, except in times of unusually high water, which did not occur with sufficient regularity to justify using the Creek as a means to transport timber in any form. ¹¹

Moreover, as the Supreme Court has held, "[t]he mere fact that logs, poles, and rafts are floated down a stream occasionally and in times of high water does not make it a navigable river." ¹² Therefore, we hold that Lewis Creek is not navigable in fact.

B. Navigational Servitude.

As noted previously, the parties agree that absent the effect of the Tombigbee floodwaters on Lewis Creek, the creek itself is not a navigable waterway of the United States. Moreover, as we held above, even considering the effect of the Tombigbee floodwaters on Lewis Creek, the creek is not navigable in fact and, therefore, not navigable in law. However, a separate question, considered below, is whether the navigational servitude of...