United States v. Turner, 12597.

• Decision Date: 10 June 1949
• Docket Number: No. 12597.,12597.
• Citation: 175 F.2d 644
• Parties: UNITED STATES et al. v. TURNER.
• Court: U.S. Court of Appeals — Fifth Circuit

175 F.2d 644 (1949)

UNITED STATES et al. v. TURNER.

No. 12597.

United States Court of Appeals Fifth Circuit.

June 10, 1949.

A. Devitt Vanech, Asst. Atty. General, Ralph J. Luttrell, D. Murnan Smith, Attys., Dept. of Justice, Washington D. C., Percy C. Fountain, U. S. Attorney, Mobile, Ala., Albert J. Tully, Charles Hoffman, Mobile, Ala., for appellants.

Palmer Pillans, Mobile, Ala., for appellee.

Before HUTCHESON, SIBLEY, and WALLER, Circuit Judges.

HUTCHESON, Circuit Judge.

Brought by the United States to condemn land described as a portion of Pinto Island near Mobile, Alabama, and to determine ownership of the land and the money awarded, the suit was fully tried on the issue of title by a master and on the issue of value by a jury.

The claim of the United States to the title was that most, if not all, of the land described, was, before its filling, submerged land of Mobile Bay lying below high tide and owned by the State of Alabama, and that the State had granted its title to the United States.

The claims of appellee were: (1) that Pinto Island, submerged and unsubmerged, was a defined area susceptible to grant as waste and unappropriated land of the United States and that, by title under the patentee, he is the owner of all of it, whether above or below mean high tide, which constituted the southern portion of the island; and (2) if not, that a considerable part of the land described is fast land which he owned, and that the filled in part became his as added by artificial accretion.

Referred to the master on the issue of title, there was a full hearing, followed by findings, and a report against the claims of appellee. The effect of these were: that all of the land condemned was submerged land, lying below mean high tide, which had been filled in; that the title to it before it was filled in was, therefore, not in appellee, but in the State of Alabama; and that its filling could not and did not divest the State's right and title to it and vest them in appellee.

Upon exceptions to the report, the district judge held: that the burden was upon the United States and the State of Alabama to overthrow appellee's claims to the land sought to be condemned by showing that none of it was fast land; or, failing in this, how much of it was not; that they had failed to carry this burden, and appellee must prevail. He held, too: (1) that the waters flowing over Pinto Island were not navigable, in fact; that the State of Alabama did not, therefore, own the submerged portions of it; that it was all patentable and title to it all passed to the patentee and his grantors; and (2) that if while it was submerged, the State did own the submerged portions, the owner of the fast land had the right to filll them and follow the fill toward deep water. So holding, he rejected the master's report, determined the title in favor of appellee, caused the issue of value to be tried to a jury, and entered judgment on the verdict for $60,650.00.

The United States, complaining not at all of that part of the judgment fixing the value of the land condemned, but only of that part of it which adjudged appellee to be its owners, is here insisting that the judgment as to title was wrong and must be reversed.

As appellant sees and states it, this appeal presents a single question.¹ As appellee sees it, appellant's question properly put becomes two.²

Appellant's statement of the question assumes that the evidence establishes without dispute that all of the land sought to be condemned was submerged land, that is below mean high tide until it was filled, and that no fact question was involved, only a question of law, whether appellee acquired title to it by his purchase, or, later, by filling it.

Appellee's statement of the question assumes that there is one question of fact, whether any of the land sought to be conveyed was fast land and how much, and two questions of law, to be resolved. One of these is whether because the bay was not navigable in fact over the flowed land, the entire island, that flowed as well as that unflowed by the tide, was subject to being, and was patented. The other was, if this is not so, whether, by filling it, appellee got title to it by artificial accretion.

Appellant urges upon us: that it is horn book law that title to land subject to the tidal flow of Mobile Bay is in the State of Alabama, and that if the evidence does not establish as matter of law, that no part of the land taken was fast land, it does fully support the master's finding that, at the time of taking, Turner had no natural fast land; that the district judge was, therefore, not justified in setting the findings of the master aside; and that his judgment should be reversed and here rendered.

A careful examination of the record, in the light of the findings of master and judge, convinces us that the evidence establishes beyond dispute: that nearly, if not quite, all of the land sought to be condemned is not true fast land but is land made by filling submerged land, that is land subject to tidal flow; and that if any of it at the time of the taking was natural fast land, it was only a small part.

It is at once apparent then that the question of fact as to whether at the time of the taking appellee had any true or natural fast land, is of minor importance in this case, and that the substantial, the important, questions in the case are questions of law arising as to the major part, if not the whole, of the land taken, the filled or made land.

Upon these questions, (1) whether Alabama had title to the submerged lands, and (2) whether, if it did, the owner of the fast land could acquire that title by filling them, the authorities leave in no doubt that the appellant has the right of it.

Upon his first point, appellee, in his excellent brief, citing the controlling authorities,³ concedes that to Alabama belongs the navigable waters and soils under them. His only point is that since the waters flowing the island are too shallow for actual navigation, it cannot be said thereof that, though a part of Mobile Bay, they are navigable waters.

That this will not do is made plain not only by the common sense view which permits no distinction upon the ground of navigability between the shallows and depths of navigable waters, and by the authorities cited by appellant in Note 3, supra, but by Mayor, etc. of Mobile v. Eslava, 9 Port., Ala., 577, 33 Am.Dec. 325, and United States v. Banister Realty Co., C.C., 155 F. 583, cited by appellee. The two cases on which the district judge relied below and appellee relies here, Toledo Liberal Shooting Co. v. Erie Shooting Club, 6 Cir., 90 F. 680, and United States v. Oregon, 295 U.S. 1, 55 S.Ct. 610, 79 L.Ed. 1267, are not at all in point. They had to do not with the shallow parts of navigable waters but with bodies of water which were held to be nonnavigable.

On the second point, whether, though the owner of fast lands does not have title to submerged land adjoining while it remains submerged, he may acquire title by filling it, we are in no more doubt that appellant is right, appellee wrong. That loss of land by erosion and its gain by natural accretion do affect the title of owners of fast land is conceded by all,⁴ and that if the lands taken had been added by natural accretion to appellee's fast land, he would have been entitled to it and to be paid for it, there is no doubt. Neither is there any that he may not by artificial filling of submerged land acquire the title from the State.⁵

The principal invoked by appellee which supports the right of a riparian owner on navigable waters to obtain access thereto does not give the owner any title to the lands by which he obtains this access. In addition this right of access exists only as a kind of way of necessity to reach navigation.⁶

While, therefore, the riparian right of access as a way of necessity to reach the deep or navigable portion of the water, including the right to fill in over the shore exists in Alabama, that right where it exists, does not and cannot ripen into title against the state and its grantees. It does not exist here because the filling was not done under any necessity to reach, or for the purpose of reaching, deep water.

There remains only the question whether the judgment should be reversed and rendered, or whether it should be reversed and remanded with directions to ascertain and precisely determine the amount of fast land owned by appellee which was taken in the condemnation, and how much of the amount awarded for the whole tract appellee is entitled to receive as compensation for the part taken from him.

In determining whether and how much fast land belonging to Turner was taken, we think the master gave too much weight to, permitted his judgment to be too much controlled by, maps and plattings, and the opinion of engineers thereon, too little by the oral testimony of Turner and others as to the fast land which he had in possession.

We are of the opinion, therefore, that instead of reversing and rendering, as contended for by appellant, on the ground that it was Turner's duty to establish his claim and that there is evidence to support the master's finding that no part of the land taken was fast land of Turner, justice requires that we reverse and remand with instructions to determine precisely the part of the land taken which was true fast land, that is originally fast land or formed by accretion, and what part of the fund awarded for the whole should be awarded to Turner.

Reversed and remanded.

SIBLEY, Circuit Judge (concurring).

I concur in what Judge Hutcheson has written and in the disposition given the case. I agree in what Judge Waller has written to the effect that any artificial dredging by Hunter of land which he owned would not deprive him of his title to the land which he thus put below water by this means.

I do not agree that the nature of this suit as a condemnation suit has ever changed. The United...