United States v. Donaldson-Shultz Co.

• Decision Date: 08 November 1906
• Docket Number: 659.
• Citation: 148 F. 581
• Parties: UNITED STATES v. DONALDSON-SHULTZ CO.
• Court: U.S. Court of Appeals — Fourth Circuit

148 F. 581

UNITED STATES v. DONALDSON-SHULTZ CO.

No. 659.

United States Court of Appeals, Fourth Circuit.

November 8, 1906

L. L Lewis, U.S. Atty.

H. I Lewis and Isaac Diggs, for appellee.

Before GOFF and PRITCHARD, Circuit Judges, and BOYD, District Judge.

BOYD District Judge.

An act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors and for other purposes. Approved March 3, 1899. 30 Stat 1121.

Sections 10 and 12 of the said act (30 Stat. 1151 (U.S. Comp. St. 1901, pp. 3541, 3542)) are as follows:

'Sec. 10. That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the chief of engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the chief of engineers and authorized by the Secretary of War prior to beginning the same.'

'Sec. 12. That every person and every corporation that shall violate any of the provisions of sections nine, ten and eleven of this act, or any rule or regulation made by the Secretary of War in pursuance of the provisions of the said section fourteen, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding twenty-five hundred dollars nor less than five hundred dollars, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court. And further the removal of any structures or parts of structures erected in violation of the provisions of the said sections may be enforced by the injunction of any circuit court exercising jurisdiction in any district in which such structures may exist, and proper proceedings to this end may be instituted under the direction of the Attorney-General of the United States.'

In January, 1905, the Donaldson-Shultz Company, the appellee in this case, was indicted in the District Court of the United States for the Eastern District of Virginia for violation of section 10 of this act; the charge in the indictment being substantially, that the said company, being a corporation under the laws of the state of Virginia, had, on the 1st day of October, 1902, unlawfully built in Urbanna creek, a navigable water of the United States, at a point in the said creek where no harbor lines had been established, to wit, at Urbanna, in the said district, a certain wharf, a wooden structure, 175 feet long and 20 feet wide, and that the same was built by the Donaldson-Shultz Company on plans not recommended by the chief engineer of the United States army or authorized by the Secretary of War, etc. And, further, that the said company, on the said day, did unlawfully create an obstruction to the navigable capacity of said Urbanna creek, a navigable water of the United States, at Urbanna, in the said district, by building a large wooden structure, etc., extending from the left-hand shore out into the channel limits of the said creek a distance of 10 feet, thereby causing an obstruction to the navigation of said creek, such obstruction being created by the said company without any authority so to do by the Congress of the United States, etc. On the 16th of January, 1905, the said company was tried upon this indictment in the District Court of the United States for the Eastern District of Virginia, at Richmond, upon the plea of not guilty, and the jury, which was sworn and impaneled in the case, rendered a verdict of not guilty. Whereupon, the said company was discharged. Thereafter, on the 31st of March, 1905, the United States Attorney for the Eastern District of Virginia, by direction of the Attorney General of the United States, brought a bill of complaint in the Circuit Court of the United States for the said district against the Donaldson-Shultz Company, setting forth the same facts, in substance, as those constituting the averments in the indictment upon which the company had been tried and acquitted. The bill further alleged that the said defendant corporation, although often requested so to do, had not removed the said wharf from the waters aforesaid, and particularly had not removed the same from the channel limits of the said creek, and that the existence of the said wharf was a serious and permanent obstruction to the navigation of the said Urbanna creek at the point aforesaid. The prayer of the complainant was for writ of mandatory injunction, requiring and compelling the Donaldson-Shultz Company, its officers, agents, and employes to remove the said wharf and obstruction from the said Urbanna creek, or at least to the extent that the same constitutes an obstruction to the navigation in the said creek. The company appeared in response to the...