United States v. Hurley

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: MARTIN, Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices
• Citation: United States v. Hurley, 63 F.2d 137, 61 App. DC 360 (D.C. Cir. 1933)
• Decision Date: 16 January 1933
• Docket Number: No. 5692.,5692.
• Parties: UNITED STATES ex rel. GREATHOUSE et al. v. HURLEY, Secretary of War, et al.

61 App. DC 360, 63 F.2d 137 (1933)

UNITED STATES ex rel. GREATHOUSE et al. v. HURLEY, Secretary of War, et al.^*

No. 5692.

Court of Appeals of the District of Columbia.

Argued December 5, 1932.

Decided January 16, 1933.

Chester I. Long, S. W. McIntosh, and Spencer Gordon, all of Washington, D. C., for appellants.

Leo A. Rover, John W. Fihelly, Seth W. Richardson, and Gustave A. Iverson, all of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

VAN ORSDEL, Associate Justice.

This appeal is from a judgment of the Supreme Court of the District of Columbia denying a writ of mandamus to compel the Secretary of War to issue a permit for the construction of a wharf in the Potomac river on the Virginia shore, and within the limits of the District of Columbia. The permit was sought under the provisions of the Rivers and Harbors Appropriation Act of March 3, 1899, § 10, 30 Stat. 1151 (33 USCA § 403), as follows: "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."

It is conceded that the wharf here sought to be constructed is not within the limits of any established harbor line. It likewise appears that the plans were approved and recommended by the Chief of Engineers and disallowed by the Secretary of War upon the stated ground that the allowance of the permit would be against public policy.

Appellants insist that by the terms of section 7 of the compact of 1785 between Maryland and Virginia they acquired such property rights in the waters of the Potomac on the Virginia shore as entitles them, as a matter of right, to a permit at the hands of the Secretary of War. Under this contention we are again confronted with the compact of 1785 between Maryland and Virginia, relating to the mutual use of the waters of the Potomac river, and whether or not this compact is in force in the District of Columbia. It has been decided so frequently by the courts that it is not in force in the District of Columbia as to almost render the question moot. Evans v. United States, 31 App. D. C. 544; Herald v. United States, 52 App. D. C. 147, 284 F. 927; Marine Railway Company v. United States, 49 App. D. C. 285, 265 F. 437; Id., 257 U. S. 47, 42 S. Ct. 32, 34, 66 L. Ed. 124; Smoot Sand & Gravel Corporation v. Washington Airport, 283 U. S. 348, 51 S. Ct. 474, 75 L. Ed. 1109.

The Smoot Case, among other things, finally fixed the boundary line between Virginia and the District of Columbia at the high-water mark on the Virginia shore. In the Marine Railway Co. Case, the court, referring to the compact of 1785, said: "Without going into the history of the compact or reciting it, we only need to remark that it was a regulation of commerce, and while with a view to opening up a route to the West it provided in Article 6 that the Potomac should be considered as a common highway for the purposes of navigation and commerce to the citizens of Virginia and Maryland, and in Article 7 gave the citizens of each State full property in the shores of the river adjoining their lands and the privilege of carrying out wharves, etc., with a common right of fishing, it left the question of boundary open to long continued disputes. It may be laid on one side even if it ever was in force in the District of Columbia, which has been denied on the ground that the compact was abrogated so far as it affected this land by the grant of Virginia and was not revived by the grant of the United States. Evans v. United States, 31 App. D. C. 544, 550. See Georgetown v. Alexandria Canal Co., 12 Pet. 91, 9 L. Ed. 1012."

In the Evans Case, above cited, with approval on the point that the compact was abrogated so far as it affected the District of Columbia by the grant of Virginia and was not revived by the grant of the United States back to Virginia, we said: "The easements and privileges she possessed in the river, under the compact, were destroyed by the cession to the United States, and, having been lost, they could not be revived by the mere reconveyance of the territory ceded, unless expressly recreated in the act of retrocession. Regarding the easements and privileges granted in the compact, the act of retrocession is silent. There being no express revival, there could be no revival by implication."

Inasmuch as the compact was made between Virginia and Maryland acting in their character as states, the citizens of these commonwealths were not parties to the compact, and it remained within the power of the states, which established whatever rights inured to the citizens of either, to annul or modify the compact at will, consequently the exercise of sovereign authority over the compact, belonging to the states of Maryland and Virginia, passed to the United States with the cession to form the territory of the District of Columbia. Georgetown v. Alexandria Canal Company, supra.

With the cession there was a complete change of sovereignties. The United States superseded that of the states of Maryland and Virginia, and until it recognized the easements and privileges accorded the citizens of Virginia by the seventh paragraph of the compact, the compact became and remained inoperative within the District. Congress has never recognized in any respect the compact, or any rights under it. On the contrary it has by express legislation assumed absolute and complete jurisdiction and control over the Potomac river within the District to the high-water mark on the Virginia shore.

Article 7 of the compact provides as follows: "The citizens of each State, respectively, shall have full property in the shores of the Potowmack River adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river." It will be observed that the right to occupy the stream with wharves or other improvements is treated in the compact as merely a privilege in the nature of an easement that may be continued or destroyed by the joint action of the states at will. A riparian right only rises to the dignity of a vested property right in the stream when the title of the riparian proprietor extends to the bed of the stream. In that case the riparian right clearly is not an easement, as one cannot have an easement upon his own land. The same would be true of navigable streams where the state has extended the rights of the riparian owner beyond the border of the stream. But this rule has no application here. The compact did not change the line between the states of Maryland and Virginia. It continued at high-water mark; hence the "full property in the shores," mentioned in article 7, were not property rights in the sense that they vested a riparian owner with seisin or title to the bed of the river below high-water mark. The fee of the riparian owner in this instance stopped at the water's edge.

If the compact created in the citizens of Virginia a vested property right in the river, the authority of the states could not be exercised to its destruction without due compensation. But as we have observed, the privilege thus granted was subject to the will of the sovereignties of Maryland and Virginia as long as Maryland retained the title to the bed of the river and Virginia possessed merely the commercial rights granted under the compact; but when these sovereignties surrendered the territory composing the District of Columbia to the United States, all those rights and privileges passed to the new sovereign and were subject to its will and control, and until recognized by the United States they were extinguished. Not having been recognized, the act of recession to Virginia did not revive them.

It is urged by counsel for appellants that the Maryland Act of March 12, 1786,¹ by which the compact was ratified, has not been repealed and became a law of the District under the organic act of 1801 (2 Stat. 103), D. C. Code 1924, § 1636, continuing the laws of Maryland in force in the District of Columbia. The Maryland act merely imparted legal force to the compact, and since the compact, as ratified, never was in force in the District, the act of ratification never became a part of the law of the District.

It seems to be conceded by counsel for appellant in this case that there is no vested property right in the river, since they endeavor to attach to their clients the rights accorded under the compact on the basis of riparian ownership. Nothing is better settled than the common-law rule that "the title and the dominion in lands flowed by the tide were in the King for the benefit of the Nation. Upon the settlement of the Colonies, like rights passed to the grantees in the royal charters, in trust for the communities to be established." Shively v. Bowlby, 152 U. S. 1, 57, 14 S. Ct. 548, 38 L. Ed. 331. This right of dominion and control by the sovereignty extends to the states and in the District of Columbia to the United States. It...