United States v. Gray Line Water Tours of Charleston

• Decision Date: 20 December 1962
• Docket Number: No. 8687.,8687.
• Parties: UNITED STATES of America, Appellee, v. GRAY LINE WATER TOURS OF CHARLESTON, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

311 F.2d 779 (1962)

UNITED STATES of America, Appellee, v. GRAY LINE WATER TOURS OF CHARLESTON, Appellant.

No. 8687.

United States Court of Appeals Fourth Circuit.

Argued October 5, 1962.

Decided December 20, 1962.

deRosset Myers and Edward K. Pritchard, Charleston, S. C., for appellant.

Elizabeth Dudley, Atty., Dept. of Justice (Ramsey Clark, Asst. Atty. Gen., Terrell L. Glenn, U. S. Atty., and Roger P. Marquis, Atty., Dept. of Justice, on brief), for appellee.

Before SOBELOFF, Chief Judge, BRYAN, Circuit Judge, and HUTCHESON, District Judge.

ALBERT V. BRYAN, Circuit Judge.

Storied Fort Sumter, South Carolina, now a National Monument, situated on an island in Charleston Harbor, is accessible to tourists and other visitors only by small vessels landing at the island pier. The fort with its appurtenances is in the control of the National Park Service under the Secretary of the Interior. The question here is whether the Secretary may restrict to a duly selected concessioner the privilege of fare-charging craft to discharge and embark passengers at the pier. The District Court has upheld the precedence of the concession and enjoined appellant Gray Line Water Tours of Charleston, a former carrier for hire of Fort Sumter visitors, from such use of the pier. Error in the decree is assigned by Gray Line in three independent aspects:

1. Neither the Park Service, nor the Secretary, nor the United States has the power to bar the landing of any other fee-carrier at the pier, because it is not on or within the monument.

2. There is no authority for the award of a preferential concession of this kind.

3. In any event, the United States arbitrarily and capriciously, through the National Park Service, awarded the concession to someone other than the appellant.

The judgment of the District Court we find unexceptionable and, so, affirm.

In 1840, under appropriate State and Federal legislation, South Carolina conveyed to the United States 125 acres described as a certain bank or shoal within Charleston Harbor on which foundations had been laid for Fort Sumter.¹ By Act of Congress, approved April 28, 1948, 16 U.S.C. §§ 450ee, 450ee-1, 62 Stat. 204, the Secretary of the Army was required to transfer to the Secretary of the Interior control of the "structure known as Fort Sumter * * * together with such buildings and other improvements as are appurtenant to such site." At the same time the Director of the National Park Service under the authority of the Secretary of the Interior was given "the supervision, management, and control of such national monument, and shall maintain and preserve it for the benefit and enjoyment of the people of the United States, subject to the provisions of sections 1, 2-4 * * * of this title 16 U.S.C."

By section 3 of that title the Secretary of the Interior was authorized to make "such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service" and "may also grant privileges, leases, and permits for the use of the land for the accommodation of visitors * * *".

As authorized, the Secretary of the Interior issued the following regulation:

"No person, firm, or corporation shall engage in or solicit any business or erect or maintain buildings or other structures on federally owned lands within any park or monument except when authority therefor has been granted pursuant to a revocable permit issued by an authorized officer or employee of the National Park Service." Emphasis added. 16 C.F.R. § 1.31(a) (2).

In the transfer from Army to Interior the Fort Sumter reservation was described as "containing approximately 2.4 acres, together with buildings and other improvements as are appurtenant thereto". A map accompanied it and bore the legend: "Boundary extends 100 yards beyond mean low water." At this time — June 1948 — the boat pier projected about 273 feet from the wall of the fort. Later it was replaced by the present pier built by the United States and reaching not more than 220 feet outshore from the wall.

Gray Line in its contention that the pier was not on or within Fort Sumter first adverts to what was transferred to the Secretary of the Interior, that is 2.4 acres which, concededly, covers only the fort and its walls. Even to expand the area as far as mean high water would require 3.8 acres, continues the appellant, and thus the pier head was never within the Interior Secretary's dominion.

This conclusion, we think, shrinks the transfer by Army to Interior, for it included "buildings and other improvements * * * appurtenant" for the fort. The wharf, in our understanding, is by necessary implication an appurtenance to the fort. The evidence discloses no other ready access to the fort. Sheets v. Selden's Lessee, 2 Wall. 177, 69 U.S. 177, 187-188, 17 L.Ed. 822 (1864). When a vessel comes alongside the pier debarking or taking on passengers we think this is, practically, an activity on or within the pier itself, and thus on or within Fort Sumter.

But this point need not be dilated, for the pier was certainly well within the 125-acre conveyance to the United States, and the United States rather than the National Park Service or the Interior Secretary sues here for the protection of its property. The grant from South Carolina vested title in the United States not only to the fort but also to that portion of the 125 acres consisting of harbor bottom within the metes and bounds of the deed. No restriction in the use, nor reservation of a reversionary interest, in the underwater land can be spelled out of the deed or the subsequent history of the area conveyed. Appleby v. City of New York, 271 U.S. 364, 382, 46 S.Ct. 569, 70 L.Ed. 992 (1926); United States v. 2.02 Acres of Land, 51 F.Supp. 56, 60 (S.D.N.Y.1943), aff'd, 143 F.2d 688 (2d Cir.), cert. denied, 323 U.S. 726, 65 S.Ct. 59, 89 L.Ed. 583 (1944); cf. Barclay v. Howell's Lessee, 6 Pet. 498, 31 U.S. 498, 507, 8 L.Ed. 477 (1832); United States v. 16 Parcels...