United States v. Crow, Pope & Land Enterprises, Inc.

• Decision Date: 21 March 1972
• Docket Number: Civ. A. No. 15844.
• Citation: 340 F. Supp. 25
• Parties: UNITED STATES of America v. CROW, POPE & LAND ENTERPRISES, INC.
• Court: U.S. District Court — Northern District of Georgia

340 F. Supp. 25

UNITED STATES of America v. CROW, POPE & LAND ENTERPRISES, INC.

Civ. A. No. 15844.

United States District Court N. D. Georgia, Atlanta Division.

March 21, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., for plaintiff.

Moreton Rolleston, Jr., Atlanta, Ga., for defendant.

ORDER

ALBERT J. HENDERSON, Jr., District Judge.

In this suit, the federal government seeks to enforce Sections 10 and 13 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. §§ 403¹ and 407² more commonly referred to as the "1899 Refuse Act", against the defendant, a real estate developer and apartment complex owner. Jurisdiction is founded on 28 U.S.C. § 1345.

By its answer, the defendant contends that 33 U.S.C. § 401 et seq., is inapplicable to the waters here involved; that the plaintiff's interpretation of the pertinent statutes would constitute an illegal and unconstitutional deprivation of the defendant's property without just and adequate compensation therefor; and that if allowed to proceed, the plaintiff's actions amount to an illegal attempt at selective enforcement. The defendant also brings what is denominated as a counterclaim against John W. Stokes, Jr., United States Attorney for the Northern District of Georgia, for trespass upon the defendant's property.

Prior to the hearing on the plaintiff's demand for preliminary injunction, the court entered a consent decree disposing of all matters pertaining to preliminary relief while reserving all issues of liability. Further, it was stipulated by the parties that the preliminary hearing would constitute the final hearing on the issue of navigability. This order is based on the evidence then presented and the stipulation of the parties thereafter submitted to the court.

The defendant's property, known as Riverbend, is located on the west bank of the Chattahoochee River and slightly south of Powers Ferry Bridge. When describing distances and locations on the Chattahoochee River, it is desirable to refer to their mileage from the confluence of the Chattahoochee and Flint Rivers as determined by the United States Army Corps of Engineers. Therefore, for ease of reference, the property in question is located at approximately mile 306 (understood to mean the distance from the juncture of the Chattahoochee and Flint Rivers). The segment of the Chattahoochee River relevant to the present inquiry is that portion between Peachtree Creek (mile 300.54) and Buford Dam (mile 348.82), i. e., a distance of 47.78 miles. Located north of Buford Dam is the Buford Reservoir (or Lake Sidney Lanier), which, in a different context (admiralty), has previously been determined to be non-navigable, see, In Re Henry H. Stephens, 341 F.Supp. 1404, Civil Action No. 8749 (N.D.Ga. March 31, 1965).³ Consequently, since the navigability of the river below Peachtree Creek will not be considered in this order, it is an evidentiary question as to where along the course of the river between its mouth and its source navigability ceases. United States v. Rio Grande Dam and Irrig. Co., 174 U.S. 690, 19 S. Ct. 770, 43 L.Ed. 1136 (1899).

Following a hearing on the stipulated issue of navigability, counsel for each party was directed to submit written arguments, proposed findings of fact and conclusions of law. The parties have complied with that direction and the case is ready for decision.

The court has reviewed the admissible evidence presented by the parties hereto and makes the following:

FINDINGS OF FACT

1. The Chattahoochee River (hereinafter sometimes referred to as the "river") is an interstate waterway over 400 miles in length running in a generally southwesterly direction from its source in northeast Georgia, to the Georgia-Alabama state lines where it bends to a generally southerly direction. In the southwest corner of the state, it unites with the Flint River to form the Apalachicola River, which, in slightly more than 100 miles, crosses the Florida pan-handle to empty into the Gulf of Mexico. Specific locations along the Chattahoochee River are stated in miles from a specific point of reference determined to be the confluence of the Chattahoochee and Flint Rivers.

2. The defendant's property is located at approximately mile 306 on the river. The river near the defendant's property is quite shallow and the current is swift. Peachtree Creek, Morgan Falls Dam and Buford Dam are locted at miles 300.54, 312.62 and 348.82 respectively.

3. Columbus, Georgia (mile 170.7) was the head of steamboat navigation in the early 1800's, and bateaux (flat bottomed boats) could carry 70 bales of cotton from Franklin, Georgia (mile 239.9) to West Point, Georgia (mile 201.4). No other commercial craft has ever navigated the river above Columbus.

4. In the 1890's, a gold dredging, flat bottom, barge operated for three to five years on the river adjoining the barge owner's property in what is now Fulton and Gwinnett Counties. Around the turn of the century, raft-type ferries would traverse the river at several points. The barge and the ferries would use poles, ropes and the current as their means of locomotion, and would draw no more than two feet of water.

5. Evidence of farmers and moonshiners using the river to transport their wares is scant, and, if true, appears without specificity as to location and frequency.

6. Presently, only light pleasure craft, e. g., canoes, kayaks, rubber innertubes and rafts, drawing only a few inches of water, can and do float down the river.

7. No craft of any kind has ever proceeded upstream due to the rapid current and frequent obstructions.

8. The topography of the river and surrounding property reveals a hill bound region between Roswell, Georgia (mile 323.7) and Atlanta (mile 306.2) with perpendicular rock cliffs on both sides of the water. The fall is very great, the current is rapid, and the channel is filled with projecting rock. The river alternately expands and contracts and follows a generally winding course through what remains a greatly wooded territory.

9. There are an unknown number of rapids, shoals or similar obstructions in the area here concerned. However, taken from the original 1878 and 1879 surveys and studies of the river by the Corps of Engineers, there are below what is now Buford Dam at least 18 areas of shoals and/or reefs some of which are up to two miles in length with a fall ranging from a gentle 0.30 foot to 19.95 feet. Between Roswell and Atlanta the fall averages 5.7 feet per mile.

10. The gradient of the river between those areas of interference appears to be rather uniform and regular.

11. The only admissible evidence as to the quantity of water involved, indicates that peak flows are of short duration while minimum flows are of longer duration. In addition, the release of water from Buford Dam significantly alters the water flow at different times of the week.

12. The United States Army Corps of Engineers consider a channel at least 100 feet wide, nine feet deep, with locks 50 feet wide as sufficient to accommodate and sustain useful commerce. These dimensional prerequisites obtain on the river from its confluence with the Flint River up to Columbus where a project depth of three feet is authorized to Franklin, Georgia. Locks of at least 50 feet in width exist at the Jim Woodruff Lock and Dam (mile 0.0), the Columbia Lock and Dam (mile 46.5), and the Walter F. George Lock and Dam (mile 75.2).

13. The West Point Dam (under construction 30 miles south of Franklin, Georgia), the Morgan Falls Dam and the Buford Dam do not have locks which would permit through navigation by any vessel.

14. There is no evidence, admissible or inadmissible, that matter or refuse placed in the Chattahoochee River would float or be washed downstream to any other portion of the river.

15. The Georgia Legislature, by enactments approved in 1820, 1826, 1835 and 1852, indicated its desire to improve the navigability of the Chattahoochee River. No findings were ever reported following the implementation of this legislation, nor is there any indication of the work actually performed.

16. It is the conclusion of the Corps of Engineers, based upon the 1878 and 1879 surveys of the river between Thompson's Bridge (Gainesville, Georgia) and the Western and Atlantic Railroad crossing (Atlanta, Georgia) that the section "... was susceptible of ready improvibility sic at a reasonable cost to accommodate vessels normal to the river at that time."

17. The Annual Report of the Chief of Engineers for 1880, as adopted by the Corps of Engineers on January 12, 1972, states that the needed improvements for a channel 80 feet wide and three feet deep between Gainsville and Atlanta would require either 12 locks and dams, with an average lift of 12 feet, seven of which will be between Roswell and Atlanta, or 28 locks, with seven to 16 feet in lift, averaging 11 feet, at an approximate 1880 cost of $1,523,655.00. No adjustment has been made by the recent report to account for the subsequent construction of Buford and Morgan Falls Dams. The 1880 monetary estimate is based primarily upon the needed improvements being constructed from locally available timber. No evidence was offered to reflect the present cost of improvements required by the report.

18. Citing as the need for the stated improvements, the Corps of Engineers, in the 1880 Report and adopted in January, 1972, stressed the following:

Above Atlanta the counties north of the river are without transportation, except by wagonroads. The improvement of the river would afford a cheap and certain means of getting to market a large and very rich agricultural section. The great gold region lies upon the waters of this stream and around the head of the proposed improvement. Much of this country is rich in magnetic iron ore and other minerals of great value.

19. While no other evidence was presented as to the present need of the Atlanta area for such...