United States v. Pennsylvania & Lake Erie Dock Co.

• Decision Date: 07 May 1921
• Docket Number: 3466.
• Citation: 272 F. 839
• Parties: UNITED STATES v. PENNSYLVANIA & LAKE ERIE DOCK CO.
• Court: U.S. Court of Appeals — Sixth Circuit

272 F. 839

UNITED STATES v. PENNSYLVANIA & LAKE ERIE DOCK CO.

No. 3466.

United States Court of Appeals, Sixth Circuit.

May 7, 1921

H. L Eastman, Asst. U.S. Atty., of Cleveland, Ohio (E. S. Wertz U.S. Atty., of Cleveland, Ohio, on the brief), for plaintiff in error.

Clan Crawford, of Cleveland, Ohio (Squire, Sanders & Dempsey, of Cleveland, Ohio, on the brief), for defendant in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge.

This proceeding in error is brought to reverse the judgment of the District Court, Northern District of Ohio, Eastern Division in an action brought by the United States against the Pennsylvania & Lake Erie Dock Company under favor of section 11903, General Code of Ohio, to recover possession of real estate situated in Fairport Harbor, Lake county, Ohio. The plaintiff avers in its petition that it has a legal estate in and is entitled to the immediate possession of a strip of submerged land 1,103 feet long and 15 feet wide, extending from the mouth of Grand river in Fairport Harbor, Lake county, Ohio, into Lake Erie.

The defendant in its answer admitted that it was in possession of the property described in the petition, and denied that the plaintiff has any legal estate therein, or that it is entitled to the possession thereof. Upon the trial of the cause the defendant disclaimed title, and denied that it was in possession of the portion of this strip of land sought to be recovered by the plaintiff in this action, lying north of a point 492.30 feet north of the north line of Second street in the village of Fairport. This controversy is therefore narrowed to the question of the title and right of possession of the United States to the southern end of this strip, 15 feet wide and 492.30 feet in length, extending from the north line of Second street, Fairport, to the north line of lot 5 of the lots platted on the new-made land lying north of Second street.

It is contended on the part of the defendant in error that this proceeding in error presents no question for the consideration of this court, for the reason that by stipulation of parties this cause was submitted to the court without the intervention of a jury, and that the court made no special findings of fact within the meaning of sections 649-700, R.S. It is conceded by the plaintiff in error that such special findings of fact are necessary to a review of the questions here presented, but it insists that such findings appear in the memorandum opinion of the trial court. The court in its opinion did make some findings of ultimate facts, but it is not clear that such findings were intended as special findings for the purposes of this review, or that the findings made are such special findings as are contemplated by the sections above cited. The court, however, does find as ultimate facts:

First. That between 1827 and 1838 the plaintiff constructed a pier in Fairport harbor, beginning at the north line of Second street in the village of Fairport, Lake county, Ohio, and extending for a distance of 133 feet in a slightly northwesterly direction, thence due north to its northern terminus in Lake Erie; that the southern end for a distance of 254 feet was of pile construction, 9 feet in width, and the residue of crib construction, 14 feet in width.

Second. That after 1838 the United States government did not expend any money upon the maintenance and repair of the south portion of this pier now in controversy, but that in 1844 and subsequent to that time the government did expend considerable sums of money in repairing the northern portion of the pier, to which the defendant disclaimed title and possession.

Third. That subsequent to 1838, and about 1844, the government abandoned the south 492.30-foot portion of this pier.

Fourth. That the license issued June 22, 1889, by the United States government to the defendant's predecessor in title, to use this pier, did not cover the south 492.30 feet, which is here in controversy.

Fifth. That the original wooden pier 9 feet in width, constructed by the plaintiff prior to 1839, is no longer in existence, and that it did not occupy the same position as defendant's present concrete construction.

There are other findings of fact of minor importance; but all of these other findings, to some of which reference will be made later in this opinion, are entirely consistent with the ultimate facts found by the court as above stated.

It is provided by section 649, R.S. (Comp. St. Sec. 1587), that where a jury is waived the findings of fact by the court shall have the same effect as the verdict of a jury. Section 700, R.S. (Comp. St. Sec. 1668), provides, among other things, that 'when the finding is special, the review may extend to the determination of the sufficiency of the facts found to support the judgment. ' Section 1011, R.S. (Comp. St. Sec. 1672), provides that 'there shall be no reversal in the Supreme Court or in a Circuit Court * * * for any error of fact. ' It necessarily follows that, unless these findings of fact are findings within the meaning of section 700, R.S., the judgment of the trial court must be affirmed. On the other hand, if we accept these findings as such special findings required by section 700, R.S., then, if they are sustained by any substantial evidence, they are conclusive upon this court, regardless of how convincing the argument may be that upon the evidence the finding should have been different. United States v. Fidelity Co., 236 U.S. 512, 35 Sup.Ct. 298, 59 L.Ed. 696; Dooley v. Pease, 180 U.S. 126, 131, 132, 21 Sup.Ct. 329, 45 L.Ed. 457; Stanley v. Supervisors, 121 U.S. 547, 7 Sup.Ct. 1234, 30 L.Ed. 1000; Rutan, Collector, v. Johnson, 231 F. 369, 145 C.C.A. 363; Chautauqua Institution v. Zimmerman, 233 F. 371-375, 147 C.C.A. 307; Mayes, Collector, v. Jones & Co. (C.C.A.) 270 F. 121.

If it were conceded that these findings of fact by the trial court as they appear in the memorandum opinion are such special findings as are required by section 700, R.S., then this record presents but two questions: First. Are the facts found by the court sufficient to support this judgment? Second. Is there any evidence upon which such findings could be made?

Upon the question of the sufficiency of the findings to support the judgment there can be little or no controversy. The third and fifth findings not only sustain the judgment as given, but imperatively demand that such a judgment be entered. If the plaintiff has failed to establish title and the right to possession in itself, it must fail in this action, regardless of whether the defendant has any title or right to possession, for the defendant cannot be ousted of possession by one having no superior right or property interest therein.

Upon the second question, as to whether there is any evidence upon which such findings could be made, the answer must also be in the affirmative. Upon the first finding, as to the construction of the 9-foot wooden pier some time between 1827 and 1838, there is no controversy. It does not affirmatively appear, however, that Congress made any specific appropriation of this property for pier purposes. On the contrary, on March 3, 1825, it appropriated $1,000 for completing the pier at the mouth of Grand river. No prior legislation upon this subject was offered in evidence, except the Act of May 15, 1820, appropriating $6,600 for a lighthouse to be built at the mouth of Grand river in the state of Ohio. Other evidence, however, tends to establish that this lighthouse was not constructed upon this pier, so that evidently this act of Congress has no application to the issues here involved. The court divided the evidence introduced on the trial into three periods. From 1825 to 1844, from 1844 to 1888, and from 1888 to 1917.

Counsel for the defendant in error, in the discussion in their brief of the evidence covering the first period, calls the attention of this court 'to some additional facts that we believe have a bearing upon a correct determination of this case. ' In view of the authorities above cited, it would seem unnecessary to say that this court cannot consider 'additional facts not found by the court,' but must limit its consideration of this case solely to the special findings of fact made by the trial court. Notwithstanding the claim of the defendant in error that the evidence introduced covering this first period does not show a construction of a government pier as found by the court, but rather merely an appropriation of money to complete a pier which may have been commenced or partly constructed by adjacent landowners, we are of the opinion that this evidence taken in connection with the report, plan, and estimate submitted in 1826 by Capt. T. W. Maurice relative to the improvement of the mouth of Grand river, sufficiently sustains this finding of the trial court.

The major contention of the plaintiff in error is that the third finding of the court, that the government abandoned the south 492.30-foot portion of this pier, is not sustained by the evidence. This finding is a mixed finding of fact and law, that is equally binding upon this court as a finding of fact only where there is evidence upon which the facts involved in such finding could be made, if such facts sustain the legal conclusion, necessarily a part of this finding. Rutan, Collector, v. Johnson et al., supra.

It is insisted by the plaintiff in error that shortly subsequent to the Act of March 3, 1825, appropriating $1,000 for completing the pier at the mouth of Grand river, the United States government appropriated this strip of submerged land and constructed a pier thereon. This claim is sustained by the first finding of the trial court above stated. It is further contended by the...