United States v. 8,968.06 ACRES OF LAND, ETC., TEXAS

• Decision Date: 24 September 1970
• Docket Number: Civ. A. No. 68-G-29.
• Citation: 318 F. Supp. 698
• Parties: UNITED STATES of America, Plaintiff, v. 8,968.06 ACRES OF LAND MORE OR LESS, Situated IN CHAMBERS AND LIBERTY COUNTIES, TEXAS, Defendant.
• Court: U.S. District Court — Southern District of Texas

318 F. Supp. 698

UNITED STATES of America, Plaintiff, v. 8,968.06 ACRES OF LAND MORE OR LESS, Situated IN CHAMBERS AND LIBERTY COUNTIES, TEXAS, Defendant.

Civ. A. No. 68-G-29.

United States District Court, S. D. Texas, Galveston Division.

September 24, 1970.

Anthony J. P. Farris, U. S. Atty., Frank C. Cooksey, Asst. U. S. Atty., Houston, Tex., Dollie M. Smith and Robert M. McKee, U. S. Dept. of Justice, Washington, D. C., for plaintiff.

Harold R. DeMoss, Jr., and Patrick Oxford, of Bracewell & Patterson, Houston, Tex., for defendant.

MEMORANDUM AND ORDER:

NOEL, District Judge.

This case involves a taking of land by the United States for the Wallisville Reservoir Project, which is dedicated in part to the improvement of navigation. The tract in controversy comprises almost 9,000 acres on the Trinity River, beginning approximately two and one-half miles from its mouth and extending about twelve miles upstream. Used for agriculture many years, the property is now bisected by an interstate highway and is about thirty-five minutes driving time from downtown Houston. The riparian nature of the land, and the significance of that factor for the issue of valuation, give rise to the present dispute.

In accordance with what they consider to be established principles of condemnation law, defendants intend to show that the land is suited for recreational/residential development by reason of its proximity to the populous metropolitan Houston area and to the Trinity River. In particular, defendants would show that the property is well suited for channel-cut subdivision — a type of land development which contemplates the digging of private channels within a residential subdivision in such a manner as to provide each lot with access to a channel, with the soil from the channel cuts being used to raise the elevation of the building site lots.

The United States has filed a motion in limine asking that all evidence of value which arises from or is attributable to access to or utilization of navigable waters be excluded on the issue of valuation. If granted in the requested form, this motion would effectively frustrate the primary land use showing which defendants propose to make.

The ground upon which this issue will be joined is a line of cases culminating in United States v. Rands, 389 U.S. 121, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967). In that case, the Supreme Court held that the owner of land along the Columbia River in Oregon was not entitled to be compensated for its potential value as a port site when it was taken by the United States. The theory of the case was that since the Government, in the exercise of its dominant "navigational servitude," has the power to totally exclude private port owners from access to navigable waters, to compensate for the loss of port value would be to create private claims in the public domain. More simply, the Fifth Amendment does not require that a riparian landowner be paid for the loss of those elements of value which did not belong to him in the first place. In defining the scope of the Rands case, it is necessary to take some note of the historical development of the navigational servitude doctrine.

It has been undisputed since Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824), that the power of Congress to regulate commerce includes the power to regulate navigation with foreign nations and among the states. This power comprehends control, to the extent necessary, of all the navigable waters of the United States. Gilman v. Philadelphia, 3 Wall. 713, 18 L.Ed. 96 (1866). Insofar as the riparian right of access to the navigable part of a stream is a property right, it is enjoyed "subject to the obligation to suffer the consequences of the improvement of navigation in the exercise of the dominant right of the Government in that regard." Gibson v. United States, 166 U.S. 269, 276, 17 S.Ct. 578, 580, 41 L.Ed. 996 (1897).

This right, power, or privilege of the Government has been given many tags. These include public right of navigation,¹ dominant power in respect of navigation,² dominant power to control and regulate navigable waters,³ superior navigation easement,⁴ and dominant navigational servitude.⁵ Although the aptness of the last description has been questioned on Hohfeldian grounds,⁶ it appears to have become the accepted usage and will be used here. Similarly, there is a variety of viewpoints as to the origin of the servitude.⁷ It has been variously attributed to Magna Carta,⁸ the common law,⁹ and the Commerce Clause. As the last view prevails in the federal cases, and was recently endorsed in Rands, it shall be followed insofar as it is relevant to this decision.

Although of doubtful proper name and uncertain ancestry, there is nothing ambiguous about the drastic consequences which may result from the operation of this doctrine upon owners of riparian fast lands whose property is affected by a navigational improvement project. They are not entitled to restrain injury or to receive compensation for damage incidental to such improvements. In South Carolina v. Georgia, 93 U.S. 4, 23 L.Ed. 782 (1876), the State of South Carolina filed an equity bill in the Supreme Court to enjoin the damming of a channel on the Savannah River, pursuant to an Act of Congress, complaining that the effect would favor the Port of Savannah to the detriment of South Carolina. In dismissing the bill, the Court held that Congress was empowered to eliminate the channel on the Carolina bank if the overall purpose of the project was to serve navigation. Nor is the Government bound to respond in damages when riparian land loses value as a result of access to navigable water being cut off by a navigational improvement. In Gibson v. United States, supra, the loss of access to a dock from which a farmer marketed her produce, by virtue of the construction of a Government dike, was held to be noncompensable. Accord, Scranton v. Wheeler, 179 U.S. 141, 21 S. Ct. 48, 45 L.Ed. 126 (1900). In a more recent case, United States v. Commodore Park, Inc., 324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017 (1945), the riparian land was residential property located upon a navigable creek emptying into a navigable bay. The Government dredged the bay, casting silt into the mouth of the creek, thereby damming it and causing it to stagnate. The resulting attrition in the riparian owner's land value was held to be noncompensable. "Respondent's property was always subject to a dominant servitude: it did not have a vested right to have this navigable stream remain fixed and unaltered simply because of the consequent reflected additional market value to adjacent lands." 324 U.S. at 391, 65 S.Ct. at 805.

In the cases cited above, the Governmental activity for the improvement of navigation was limited to that area of the bed and banks which lies below the ordinary high-water mark. The result of noncompensation for damages incidental to such activity was entirely consistent with the traditional scope of the servitude, which extends to the entire bed of the stream and includes lands below ordinary high-water mark. United States v. Chicago, M., St. P. & P.RR. Co., 312 U.S. 592, 61 S.Ct. 772, 85 L.Ed. 1064 (1941); United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101 (1945). However, when the Governmental activity involves a physical invasion of fast lands, the Fifth Amendment requires that compensation be paid. In United States v. Kansas City Life Insurance Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277 (1950), the Government's maintenance of the Mississippi River at an artificially high level caused subterranean flooding of agricultural fast lands located on a non-navigable tributary. This was held to be a taking of property in the constitutional sense. Pointing out that the navigational servitude is bounded by the high-water mark, the Court stated "* * * (I)t is consistent with the history and reason of the rule to deny compensation where the claimant's private title is burdened with this servitude but to award compensation where his title is not so burdened." 339 U.S. at 808, 70 S.Ct. at 890. Like any other direct taking of private property for a public use, the taking of fast lands adjacent to navigable waters is subject to the requirement that just compensation be paid. As the Supreme Court stated in Monongahela Navigation Co. v. United States, 148 U.S. 312 at 336, 13 S.Ct. 622 at 630, 37 L.Ed. 463 (1893):

Congress has supreme control over the regulation of commerce, but if, in exercising that supreme control, it deems it necessary to take private property, then it must proceed subject to the limitations imposed by this fifth amendment, and can take only on payment of just compensation. The power to regulate commerce is not given in any broader terms than that to establish post offices and post roads; but, if Congress wishes to take private property upon which to build a post office, it must either agree upon the price with the owner, or in condemnation pay just compensation therefor.

It being clear that the navigable servitude doctrine does not suspend the Fifth Amendment, a question arises as to the effect of that doctrine upon the measure of value of riparian property which is taken for the improvement of navigation. The question is answered by four Supreme Court cases.

In United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063 (1913), the Government condemned riparian land along a navigable river, upon which a water company was operating a power facility. In computing the award for the fast lands taken, the trial court included their value for use as a factory site in connection with the development of power.¹⁰ The Supreme Court held that the inclusion of that element was erroneous because "The government had dominion over the water power of the rapids and falls, and cannot be required to pay any hypothetical additional value to a riparian owner who had no right to...