United States v. Perma Paving Co.

• Decision Date: 02 June 1964
• Docket Number: 28495.,368,No. 367,Dockets 28494,367
• Citation: 332 F.2d 754
• Parties: UNITED STATES of America, Plaintiff, v. PERMA PAVING CO., Inc., and Anthony Rose, Defendants and Third-Party Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellee, v. The CITY OF NEW YORK, Defendant-Appellant and Third-Party Plaintiff-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

332 F.2d 754 (1964)

UNITED STATES of America, Plaintiff, v. PERMA PAVING CO., Inc., and Anthony Rose, Defendants and Third-Party Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellee, v. The CITY OF NEW YORK, Defendant-Appellant and Third-Party Plaintiff-Appellant.

Nos. 367, 368, Dockets 28494, 28495.

United States Court of Appeals Second Circuit.

Argued March 17, 1964.

Decided June 2, 1964.

Joel L. Cohen, New York City (Leo A. Larkin, Corp. Counsel of The City of New York, Seymour B. Quel, New York City, of counsel), for The City of New York.

Robert E. Kushner, New York City (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, James G. Greilsheimer, Asst. U. S. Atty., of counsel), for the United States of America.

Before FRIENDLY, HAYS and MARSHALL, Circuit Judges.

FRIENDLY, Circuit Judge:

The United States brought two actions in the District Court for the Southern District of New York to recover costs it had incurred in dredging a portion of the navigable channel of the Bronx River. One was against Perma Paving Company, Inc., and Anthony Rose, its president and sole owner, which, under a month-to-month lease, had occupied City-owned property bounded on the east by the Bronx River. Perma's overloading of this riparian land with bricks, granite, and fill was alleged to have caused shoaling in the channel in violation of 33 U.S.C. § 403. The other action, for the same grievance, was against the City, which impleaded Perma and Rose as defendants on a claim for indemnification. After consolidation of the actions and trial, Judge Murphy entered judgment finding that Perma, Rose and the City were jointly and severally liable to the United States and that the City was not entitled to indemnity from Perma and Rose. Damages were later stipulated in the amount of $56,963.16 and a final judgment was entered in that amount. From this the City appeals on the two grounds that the evidence was insufficient to establish wrongful acts on its part, and that the statutes do not entitle the United States to recover money damages for removal of an obstruction of the channel of a navigable stream caused by the misuse of riparian land.

A brief recapitulation of the testimony sufficiently answers the first point. The riparian land in question was in a marginal swamp area with low bearing capacity. The month-to-month lease issued by the City to Perma in October, 1953, and the accompanying permit from the Department of Marine and Aviation authorized Perma to "Fill in land to legal street grade and store fill, brick, granite etc." The legal street grade was a height of 10', but the City, without making any tests as to the bearing capacity of the land, later raised the permissible level of the fill to 20'. Under the lease, Perma covenanted to "comply with all rules, regulations and orders of federal, state and municipal authorities" and not to "fill or store materials to exceed the height as permitted in the permit issued by Marine and Aviation." In addition, the City reserved the right to terminate Perma's occupancy by service of a thirty day notice irrespective of violations. City inspectors came frequently on the land avowedly in an effort to see to it that the fill did not exceed the permitted limit and was not within 20' of the river bank.

In September, 1955, a federal employee found that because of undue shoaling he could no longer dock his boat at the Perma premises; he discovered that at the toe of the fill there was much "flotable material" subject to tidal action, that pilings had moved some distance into the water, and that at the edge of the river the fill was about 30' high for a distance of 500' along the bank. An employee of the Corps of Engineers testified that, shortly after receiving this report, he had found the existence of a large shoal of mud some five or six hundred feet in length along the Perma property extending into the channel and preventing navigation at low tide. This could be called a mud wave or a slide; "The tremendous height of the fill being placed on the marsh would force the mud conditions constituting the marsh out from underneath, pushing it towards where the deep water was."

This and other evidence amply warranted the judge in finding that the City, as well as Perma and Rose, had violated the governing federal statutes we shall now analyze. By the terms of its permits and by its periodic inspections, the City actively controlled the height and position of the fill. If it authorized and participated in uses of its riparian land which violated federal statutes, it cannot escape liability because its land was subject to a tenant's occupancy, which in any event was cancellable on thirty days notice. So we turn to the City's contention that the relevant federal statutes do not authorize the award of money damages for the removal of an obstruction illegally caused.

In response to the holding in Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629 (1888) that there was no federal common law prohibiting an obstruction to a navigable stream, Congress moved speedily to pass the Rivers and Harbors Act of 1890, 26 Stat. 426. This was later replaced by the Act of March 3, 1899, 30 Stat. 1121, whose provisions are found in 33 U.S.C. § 401 et seq. Section 10 of the Act of 1899, now 33 U.S.C. § 403, said 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 prohibited" and also that "it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of * * * the channel of any navigable water of the United States," save on prior recommendation of the Chief of Engineers and authorization by the Secretary of the Army. 33 U.S.C. § 406 makes a violation of the above a misdemeanor punishable by a fine of not more than $2,500 nor less than $500, or imprisonment for not exceeding one year, or both. It further provides that "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 district 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." 33 U.S.C. § 407 makes it unlawful, inter alia, "to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water * * * where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed." 33 U.S. C. § 411 makes violation of § 407 a misdemeanor punishable as above provided, and § 413 directs that "The Department of Justice shall conduct the legal proceedings necessary to...