York Cove Corporation v. United States

• Decision Date: 23 September 1970
• Docket Number: 955.,Civ. A. No. 954
• Citation: 317 F. Supp. 799
• Parties: YORK COVE CORPORATION et al., Plaintiffs, v. UNITED STATES of America, Defendant and Third-party Plaintiff, v. T. A. LOVING AND COMPANY, Third-party Defendant. YORK COVE CORPORATION et al., Plaintiffs, v. T. A. LOVING AND COMPANY, Defendant and Third-party Plaintiff, v. UNITED STATES of America, Third-party Defendant.
• Court: U.S. District Court — Eastern District of Virginia

317 F. Supp. 799

YORK COVE CORPORATION et al., Plaintiffs, v. UNITED STATES of America, Defendant and Third-party Plaintiff, v. T. A. LOVING AND COMPANY, Third-party Defendant.

YORK COVE CORPORATION et al., Plaintiffs, v. T. A. LOVING AND COMPANY, Defendant and Third-party Plaintiff, v. UNITED STATES of America, Third-party Defendant.

Civ. A. Nos. 954, 955.

United States District Court, E. D. Virginia, Newport News Division.

September 23, 1970.

Edward Wolcott, Norfolk, Va., for plaintiffs.

William Gwatkin, III, Admiralty & Shipping Section, U. S. Department of Justice, Washington, D. C., for the United States.

William L. Shapero, Maurice B. Shapero, and Harold P. Juren, Norfolk, Va., for T. A. Loving & Co.

MEMORANDUM

WALTER E. HOFFMAN, Chief Judge.

These cases, involving common questions of law and fact, are actions in which the plaintiffs, alleged lessees and assignees of certain oyster planting grounds by reason of leases granted by the Virginia Commission of Fisheries, seek damages for the destruction or diminution in value of said oyster grounds in the York River adjacent to the Naval Weapons Station at Yorktown, Virginia. Civil No. 954 is an action under the Federal Tort Claims Act, 28 U.S.C., sections 1346(b), 2671-2680. Civil No. 955 is a direct action against T. A. Loving and Company (Loving), an independent contractor engaged by the Government to construct an addition to the pier facilities at the Naval Weapons Station. In third-party proceedings the Government and Loving claim indemnity against each other, but at all times each primary defendant has denied liability to the plaintiffs.¹

We start with the year 1918 when, by Presidential Proclamation dated August 7, 1918, 40 Stat. 1820, 1827-1828, the United States acquired property for a Navy Mine Depot on the southern shore of the York River, near Yorktown, Virginia. The described land, as supplemented by an additional Presidential Proclamation dated November 2, 1918, 40 Stat. 1868, 1871-1872, also contained the following language:

"Together with all riparian rights, privileges, easements and other rights whatsover, appurtenant or appertaining in any way to said above described tract of land and all privately owned rights in the waters lying between the low water line of said tract and the bulkhead or pier head line in the York River as such line or lines may be hereafter established."

By Act of Congress of July 1, 1918 Pub.L. No. 182, 65th Cong., 2d Sess., 40 Stat. 704, 722, 738), the Proclamation was authorized and specifically provided that the Government was to make just compensation for the lands taken, and further stated that the title to all property so taken for naval purposes was immediately vested in the United States.

At the time of the Presidential Proclamations there were 21 oyster leases in the waters adjacent to the Mine Depot, with 10 of these leases being in the York River between the low water mark and the pier head line. The United States paid compensation for these grounds, but the largest leaseholder, Claude J. Tignor, later brought suit in the Court of Claims. Ultimately Tignor was awarded a judgment in the sum of $14,625 for his grounds. Tignor v. United States, 65 Ct.Cl. 321 (1928). The Tignor lease encompasses the same grounds assigned to Robert J. Watkins and thereafter transferred to York Cove Corporation.

By Act of March 16, 1918, Acts Va.1918, c. 382, the General Assembly of Virginia ceded exclusive jurisdiction² to the United States for all purposes over any lands in Virginia acquired by the United States for military or naval purposes, whether before or after the enactment of the cession statute. The latter statute contained a proviso that "whenever such land or buildings shall abut upon the navigable waters of this State, such jurisdiction so ceded shall extend to and include such of the underwater lands adjacent thereto as lie between the low water mark and the bulkhead or pierhead line as now established or as such lines may be hereafter established." This cession of jurisdiction was to continue as long as the United States should own or occupy such lands or any right or interest therein.³

The Navy Mine Depot was erected and the property has been continuously in use to the present day. On May 15, 1926, the Commonwealth of Virginia leased back from the United States all submerged lands in the York River adjacent to the Mine Depot lying between the low water line and the pier head line. This area included the York Cove holdings which are the subject of this controversy. The purpose of this lease was to enable Virginia to sub-lease the submerged lands for oystering purposes. The lease further provided that "the sub-leases will not be permitted to interfere with any naval activities in the waters of the York River," and "that the Government under no circumstances will be held liable for damages to the oyster beds so sub-leased." The lease between Virginia and the United States was for five years, with the right of renewal, but was revocable at any time at the option of the United States. The lease expired on May 15, 1931, and was not renewed. Actually the Virginia Commission of Fisheries did not assign any oyster grounds under this five-year lease. With the exception of a limited area not pertinent to this case, Virginia has never obtained any relinquishment of the interest of the United States in the submerged lands encompassed in the five-year lease.

On October 9, 1936, the Secretary of the Navy, acting for the United States, and the Commissioner of Fisheries, acting for the Commonwealth of Virginia, executed an agreement with respect to certain submerged lands lying upstream from Sandy Point, whereby the United States consented to the use of the submerged lands for oystering purposes under certain conditions, one of which provided "that the Government under no circumstances will be considered or held liable for damages to any oyster beds or other property within the area covered by this instrument." The agreement, indeterminate but revocable at any time at the option and discretion of the Secretary of the Navy, further provided that oystering operations shall not be permitted to interfere with naval activities in the waters of the York River and, upon demand of the Secretary of the Navy, oyster ground leases would be terminated. Pursuant to this agreement the Virginia Commission of Fisheries assigned certain oyster grounds to the Chesapeake Corporation, these grounds adjoining the uppermost lease allegedly held by the plaintiffs and sometimes referred to as the Hansen lease. However, below Sandy Point, the United States has not entered into any agreement as to the use of the submerged lands, nor has it otherwise released its exclusive jurisdiction granted by the cession statute of 1918.

At an undisclosed time the Navy Mine Depot became known as the United States Naval Weapons Station. Prior to March 1959, the Navy proposed to expand its explosive-handling pier facilities at the Weapons Station, thus necessitating deeper channels in the pier area and increasing the navigability of the York River. On April 1, 1960, the Commanding Officer of the Weapons Station notified the Virginia Commission of Fisheries by letter that additions to the deep water pier facilities were to be constructed within two years, and that the existing security areas would be doubled in an upstream direction. On June 27, 1961, the project was authorized by Congress, and funds were appropriated on September 26, 1961. Prior to the expansion project the pier facilities consisted of a pier running from the shore to the channel, a distance of approximately 1,950 feet, connecting with another pier paralleling the channel extending upstream about 1,000 feet. The expansion project contemplated an extension of the parallel-channel pier about 1,250 feet further upstream, with the upstream end being connected with a new pier running to the shore a distance of approximately 2,600 feet.

By letter dated October 6, 1961, the Navy advised the Army Corps of Engineers of the expanded project, including a provision for a 35-foot channel depth along the new parallel-channel pier and a 16-foot depth along the pier coming out from shore. The Navy recommended the expansion of an existing prohibited area for security and safety reasons due to the hazards incident to handling high explosives. At that time the prohibited area was approximately 900 yards square, covering the piers at Stony Point extending about 450 yards upstream and downstream, and about 900 yards from the shore to the York River channel. The expanded project would nearly double the size of the prohibited area. Acting upon the Navy's recommendation the District Engineer, on October 17, 1961, issued Public Notice No. 61-26, advising the general public of the requested expansion of the prohibited area, and inviting criticism or protests. None were forthcoming and, on December 7, 1961, the District Engineer recommended approval of the Navy's request to the Secretary of the Army. On February 26, 1962, the Secretary of the Army, acting pursuant to his authority delegated to him under the Rivers and Harbors Act of 1917, 33 U.S.C., section 1, prescribed a navigation regulation expanding the prohibited area. It was accordingly published in the Federal Register on March 14, 1962, 27 F.R. 2465.

At this point we divert to review the actions of the plaintiffs and their predecessors. On February 17, 1959, Robert J. Watkins,⁴ later the principal officer of York Cove Corporation, filed an application with the Virginia Commission of Fisheries seeking an oyster ground lease for 250 acres in the York River downstream from Sandy Point, which area was apparently below the space where the United States had consented to the assignment of oyster grounds by the Commission of Fisheries pursuant to the agreement of October 9, 1936. No action was taken on this application and it lapsed by operation of law. Code...