United States v. Commodore Park

• Decision Date: 23 June 1944
• Docket Number: No. 5223.,5223.
• Citation: 143 F.2d 720
• Parties: UNITED STATES v. COMMODORE PARK, Inc.
• Court: U.S. Court of Appeals — Fourth Circuit

143 F.2d 720 (1944)

UNITED STATES v.COMMODORE PARK, Inc.

No. 5223.

Circuit Court of Appeals, Fourth Circuit.

June 23, 1944.

Vernon L. Wilkinson, Attorney, Department of Justice, of Washington, D. C. (Norman M. Littell, Asst. Atty. Gen., and Harry H. Holt, Jr., U. S. Atty., of Hampton, Va., on the brief), for appellant.

W. R. Ashburn, of Norfolk, Va., for appellee.

Before SOPER, DOBIE, and NORTHCOTT, Circuit Judges.

SOPER, Circuit Judge.

Commodore Park, Incorporated, the owner of real estate in the City of Norfolk, Virginia, brought this suit under the Tucker Act, 28 U.S.C.A. § 41(20), to recover compensation for land and riparian rights alleged to have been taken by the United States in the enlargement of the Hampton Roads Naval Operating Base, especially its aviation facilities, and in the improvement of the navigability of the adjacent waters of Willoughby Bay.The defense was that the acts complained of were performed by the United States in the exercise of its control over commerce and navigation and that no liability to the plaintiff arose therefrom, although certain riparian rights, which the plaintiff had previously enjoyed, were destroyed in the course of the work.The District Judge entered a judgment for the plaintiff and this appeal followed.

The plaintiff acquired a tract of farm land in Norfolk, Virginia, on August 20, 1940 for a real estate development and subsequently expended large sums in improving it for residence purposes, dividing it into lots and erecting houses.When the land was purchased it bordered upon a navigable stream known as Mason Creek which extended southerly from Willoughby Bay for a distance of four or five miles.The land was located on the east side of the creek about one and a quarter miles from the point where it entered the bay and the lots bordering on the creek were deemed especially desirable for residential purposes.

During the summer of 1940 certain plans that had been in the process of formation by officers of the United States for some time came to a culmination.It was decided to enlarge the aviation shore facilities at the Naval Air Station which was then located on the west side of Mason Creek and the south side of Willoughby Bay.The first Supplemental National Defense Appropriation Act of June 26, 1940, 54 Stat. 599, 607, 608¹, appropriated certain sums for the national defense for the fiscal year ending June 30, 1941, including $18,000,000 for additional shore facilities, additional aviation storage facilities, buildings, store houses, accessories and the acquisition of land at the Naval Base.Pursuant to this Act a contract was executed on June 29, 1940 by the United States and a contract for a project, entitled Aviation Shore Facilities, which called for the construction of "bulkheads, dredging, and fill and preparation of landing field" as well as the erection of certain structures, changes in the location of roads, pipe lines and the like at a total estimated cost of $13,700,000.

It was contemplated under this contract that a large seaplane operating base should be developed on the south shore of Willoughby Bay.To this end it was planned to improve the navigability of Willoughby Bay by dredging it to depths from 10 to 14 feet below mean low water so as to provide sufficient areas and depths of water for large patrol seaplanes; and it was also planned to deposit the dredged materials in creeks, sloughs and low areas bordering on Mason and Boush Creeks behind bulkheads, and if necessary, to fill all or a large part of Boush Creek.In recognition of the authority vested in the War Department in regard to the obstruction of navigable waterways by §§ 9and10 of the Rivers and Harbors Act of March 3, 1899, 30 Stat. 1151,33 U.S.C.A. §§ 401,403, application was made to the War Department for permission to do the work and permission was granted in due course.Subsequently, on May 13, 1941, the War Department authorized as an amendment of the plan that Mason Creek be permanently closed to all navigation.

The United States proceeded to condemn all the remaining land on the west side of Mason Creek to the head waters thereof as an addition to the Naval Station on this side of the creek and also condemned nearly all the land on the east side of the creek except the land of the plaintiff, none of which was condemned.Condemnation proceedings took place in 1940, 1941 and 1942 and included some 2,000 acres of land.In the course of the dredging operations 18,000,000 cubic yards of mud and silt were taken from the bed of Willoughby Bay and deposited in the creeks and condemned areas south of Willoughby Bay.Mason Creek was filled to a point near the plaintiff's land and a retaining wall was constructed.For this distance the natural channel of the creek, which was about 550 feet wide at the mouth, was filled from side to side and to a height equal to the highest point of the adjoining land; and immediately opposite the land a pond or sink was left.

The result was that the riparian rights appertaining to the land in its prior condition, including the right of access to the navigable waters of the creek and the bay, the utilization of the creek in its natural condition and the advantageous surroundings which it contributed to the adjoining property, were destroyed.The findings of the District Court in this respect were as follows:

"Mason's Creek afforded a ready, convenient outlet from plaintiff's land into Willoughby Bay, and Hampton Roads by motor boats and other vessels of light draft.That stream, so far as the evidence discloses, had never been improved by Governmental action, but, in its natural state, was a very attractive tidal, navigable stream.

* * * * * *

"The shores on the westward and northwestward sides of plaintiff's land bordered on the navigable part of Mason's Creek and were high, firm, sandy shores, slanting down gradually between high and low water marks.The waterfront lots on that side before the filling and closing above described, were desirable for waterfront residential property.The presence of navigable water and the riparian rights such as fishing, boating, and the like, incident to the land, contributed very substantially to both its intrinsic and fair market value.

"By filling and closing Mason's Creek all of plaintiff's riparian rights were permanently taken.The part of Mason's Creek not filled was converted into a lake without any outlets, sewers and surface drainage emptied therein and the water became stagnant and filthy.The water used in conveying through pipes the dredged materials from the Bay to the parts of Mason's Creek filled, overflowed the bulkheads and dykes and carried great quanties of mud and silt into the parts of Mason's Creek not filled, and much of it settled along the shore and to a substantial depth on plaintiff's land lying between high and low water marks, and permanently converted that land into undesirable spongy mud bottom."

The District Judge also found that the unfavorable conditions resulting from the work led to vigorous protests by nearby residents and in consequence the Navy Department constructed a culvert from the unfilled part of the creek to the bay and also dredged a channel in the remaining part of the stream deeper than that which had previously existed.Sufficient drainage to prevent an overflow under normal conditions was thereby provided but the water in the unfilled part of the creek remained semi-stagnant and was not fresh and clean as it had previously been in the open creek.This relief dredging gave rise to the additional claim on the part of the plaintiff that mud and silt had been deposited on its land, not only between high and low water mark but also above high water mark.But the District Judge disallowed this part of the claim as he found that no material damage had been suffered in excess of the benefit which the plaintiff had derived from the partial filling of low marshes, inlets and coves on its property.No appeal was taken by the plaintiff.

The ultimate conclusions of the court were that the plaintiff's riparian rights in Mason Creek appertaining to 13 of the lots in Commodore Park were taken and its lands lying between high water and low water marks in the stream were partially taken by the deposit of mud and silt thereon in consequence of the permanent closing of Mason's Creek and the permanent taking of a large part of the bed of the stream as a spoils area for the deposit of mud and silt dredged from Willoughby Bay.The court also found that the dredging in Willoughby Bay was done in the course of and as an incident to enlarging and expanding the aviation shore facilities of the Hampton Roads Naval Operating Base for the purpose of national defense and not for the purpose of aiding navigation or commerce.Upon these findings the court concluded that the plaintiff was entitled to compensation for this taking of its riparian rights and partial taking of its land and entered a judgment in the sum of $7,870 with interest at 4 per cent from September 1, 1941.

The position of the United States is that since Willoughby Bay and Mason Creek were both navigable waters of the United States when the improvement of the naval base was undertaken, they were within the control of the Government and any private riparian rights in the waters or bed of Mason Creek incident to the ownership of the lands bordering upon the stream were subservient to the dominant power of Congress to improve navigation under the Commerce Clause of the Constitution, Const. art. 1, § 8, cl. 3.This legal proposition is firmly established and cannot be denied.In United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 596, 597, 313 U.S. 543, 61 S.Ct. 772, 775, 85 L.Ed. 1064, it was said:

"* * * And the determination of the necessity for a given improvement of navigable capacity, and the character and extent of it, is for Congress alone.Whether, under local law,² the title to...