Greenleaf-Johnson Lumber Co. v. Garrison

WAD DILL, District Judge. This cause is now before the court upon the bill and answer, the demurrer having been overruled, upon the proofs orally adduced, with the arguments of counsel thereon, whereupon, it appearing to the court that the case now made is different from that admitted by the pleadings at the hearing on the demurrer, in this: (a) That a doubt is raised as to whether or not the complainant's wharves were placed out into the navigable waters of the Elizabeth river, as at present, pursuant to lawful state authority; and (b) that the character, location, and extent of the so-called log pond is set forth more in detail, and made plainer in the testimony. The conclusions reached are: [1] (1) That it is fairly inferable from all the testimony that the wharves and piers of the complainant, in the waters of the Elizabeth river, were erected in their present location pursuant to lawful authority, and that there is therefore no reason for changing or modifying the views heretofore expressed as respects this phase of the case. See 204 Fed. 489, 494, where it is said: “I11 the judgment of the court, the eases in effect agree that Where the interest involved is property, and the same is lawfully in the stream, and what, is proposed is to take it, as distinguished from merely injuriously affecting it, it can only he done upon making just compensation therefor. The contrariety of views that apparently prevail grows out of the existence or nonexistence of some one of the conditions indicated, and arises generally in cases injuriously affecting the high lands, or resulting in incidental injury or damage to the same, or to the riparian owner’s rights appertaining thereto.” [2] (2) That as to the log pond, the same being a part of the navigable stream of the Elizabeth river, the waters of which flow in and out of said pond, through floodgates at either end-thereof, the complainant, as against the government, has acquired in such waters below low-water mark and in the lands beneath the same over which the water flows no title in or right thereto for which the government should pay in using the same in connection with river and harbor improvements.