Willink v. United States, 240 U.S. 572 (1916)
Uploaded by
Scribd Government DocsWillink v. United States, 240 U.S. 572 (1916)
Uploaded by
Scribd Government Docs240 U.S.
572
36 S.Ct. 422
60 L.Ed. 808
JENNIE A. WILLINK, Executrix, etc., Appt.,
v.
UNITED STATES.
No. 180.
Argued January 21, 1916.
Decided April 3, 1916.
Messrs. George A. King and William B. King, for appellant.
[Argument of Counsel from pages 573-574 intentionally omitted]
Assistant Attorney General Thompson for the United States.
[Argument of Counsel from pages 575-577 intentionally omitted]
Mr. Justice Van Devanter delivered the opinion of the court:
Henry F. Willink sued to recover as upon an implied contract for an alleged
taking of his property in the improvement of the harbor in the Savannah river at
Savannah, Georgia. A recovery was denied (38 Ct. Cl. 693; 49 Ct. Cl. 701), and
the claimant's executrix prosecutes this appeal.
The material facts disclosed by the findings are these: At Savannah the river is
navigable and within the ebb and flow of the tide. Opposite the city is
Hutchinson's island, a strip of which on the side towards the city was owned by
the claimant. He there conducted a plant for repairing vessels. Among his
facilities used in the business were a marine railway and a wharf. The former
extended into the river and was protected by sheet piling 'where in the water.' A
substantial portion of it lay below the mean high-water line, and the wharf
seems also to have been below that line, although its location is not precisely
stated. In the conduct of the claimant's business the vessels subjected to repair
were drawn out of the river and lowered into it by means of the railway, and to
prevent its lower end, 'which was under water at high tide,' from becoming
seriously obstructed by deposits of mud the piling was driven on both sides.
The piling was effectual for the purpose, but decayed in time and had to be
replaced.
3
Prior to 1887 many improvements had been made in the harbor, and in that year
a plan for further and extensive improvements was submitted to Congress, but
was not approved. Among other changes this plan contemplated a widening of
the river by cutting away a portion of Hutchinson's island, including that
whereon the claimant's facilities were situate. On May 4, 1889, the harbor line,
which theretofore had not reached the island or the claimant's facilities, was reestablished by the Secretary of War, under 12 of the act of August 11, 1888,
chap. 860, 25 Stat. at L. 400, 425, in such manner that a part of the claimant's
land and all of his facilities were brought within the harbor area. In 1890
another extended project, retaining the earlier proposal to widen the river by
cutting away a portion of the island, was submitted to Congress and was
approved. The estimated cost of this project was $3,500,000, which included
$45,000 for 'possible land damages' to the island. A part of the larger sum was
appropriated each year until the appropriations equaled the full estimate, which
was in 1895. The appropriation of July 13, 1892, chap. 158, 27 Stat. at L. 88,
92, was accompanied by a provision that 'contracts may be entered into by the
Secretary of War for such materials and work as may be necessary to complete
the present project of improvement, to be paid for as appropriations may from
time to time be made by law, not to exceed in the aggregate' so much of the
estimate as remained unappropriated. A contract was then made for cutting
away a portion of the island, including that whereon the claimant's facilities
were situate, but this work never was done or undertaken, and the
appropriations were otherwise exhausted and the project treated as completed.
In the summer of 1892 the condition of the claimant's wharf and piling became
such that it was necessary to rebuild the one and to renew the other. While he
was so engaged the engineer officer in charge of the harbor improvements
requested him to desist and to remove all of his facilities that were within the
harbor area as defined by the Secretary of War in 1889. The request was
followed by a letter from the United States attorney for that district, notifying
the claimant that in driving the piling he was obstructing navigation contrary to
the act of September 19, 1890, chap. 907, 26 Stat. at L. 426, 454, 455, and that
unless he desisted and 'all piling outside of the bulkhead line' was removed, he
would be prosecuted. Because of this request and notice he ceased work upon
the piling and wharf, but did not remove any of his facilities or surrender them
or his land to the United States or any of its officers. On the contrary, he
continued to operate his plant and use his marine railway and other facilities as
best he could. Theretofore he was able to haul up on the railway and repair
vessels of considerable draft, and the chief profit in his business came from that
work; but thereafter, the renewal of the piling being prevented, deposits of mud
filled up the entrance to the railway to such an extent that he was obliged to
confine his work to smaller vessels. Even then it was necessary to be almost
constantly dredging the entrance. This condition continued until December,
1897, when the Secretary of War re-established the harbor line as it was prior
to May 4, 1889. The expense incurred by the claimant in dredging was $7,697,
and the loss consequent upon his inability to handle the larger vessels was
$12,500.
5
Upon these facts, as before indicated, the court held that he was not entitled to
recover.
We reach the same conclusion, and for the following reasons:
There was no actual taking of any of the claimant's property, nor any invasion
or occupation of any of his land. As respects his upland, he was not in any wise
excluded from its use, nor was his possession disturbed. Something more than
the location of a harbor line across the land was required to take it from him
and appropriate it to public use. Yesler v. Washington Harbor Line, 146 U. S.
646, 656, 36 L. ed. 1119, 1122, 13 Sup. Ct. Rep. 190; Prosser v. Northern P. R.
Co. 152 U. S. 59, 65, 38 L. ed. 352, 356, 14 Sup. Ct. Rep. 528; Philadelphia
Co. v. Stimson, 223 U. S. 605, 623, 56 L. ed. 570, 578, 32 Sup. Ct. Rep. 340.
No taking resulted from the request that he remove his facilities, for it was
neither acceded to nor enforced. And the contract for cutting away a part of the
land was also without effect, because there was no attempt at performance.
Thus, at best, the asserted taking rested upon the acts of the engineer officer
and the district attorney in preventing the claimant from renewing his piling and
rebuilding his wharf. But in this no right of his was infringed. The river being
navigable and tidal, whatever rights he possessed in the land below the mean
high-water line were subordinate to the public right of navigation and to the
power of Congress to employ all appropriate means to keep the river open and
its navigation unobstructed. Gibson v. United States, 166 U. S. 269, 271, 41 L.
ed. 996, 998, 17 Sup. Ct. Rep. 578; Scranton v. Wheeler, 179 U. S. 141, 163,
45 L. ed. 126, 137, 21 Sup. Ct. Rep. 48; Philadelphia Co. v. Stimson, 223 U. S.
605, 634, 638, 56 L. ed. 570, 582, 584, 32 Sup. Ct. Rep. 340; United States v.
Chandler-Dunbar Water Power Co. 229 U. S. 53, 62, 57 L. ed. 1063, 1075, 33
Sup. Ct. Rep. 667; Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U.
S. 82, 88, 57 L. ed. 1083, 1085, 33 Sup. Ct. Rep. 679, Ann. Cas. 1915A, 232;
Greenleaf Johnson Lumber Co. v. Garrison, 237 U. S. 251, 263, 59 L. ed. 939,
945, 35 Sup. Ct. Rep. 551. The piling and wharf were below the mean highwater line, and so, if navigation was likely to be injuriously affected by their
presence, Congress could prevent their renewal without entitling him to
compensation therefor. See cases supra. By the legislation in force at the time,
Congress not only authorized the Secretary of War to establish the harbor lines,
but made it unlawful to extend any wharf or other works, or to make any
deposits, within the harbor area as so defined, except under such regulations as
the Secretary might prescribe, and laid upon the district attorney and the officer
in charge of the harbor improvements the duty of giving attention to the
enforcement of its prohibitive and punitive provisions (chap. 860, 12, 25 Stat.
at L. 400, 425; chap. 907, 11, 12, 26 Stat. at L. 426, 455, Comp. Stat. 1913,
9923). When the claimant attempted to renew the piling and rebuild the
wharf, they were not only below the mean high-water line, but within the
harbor area as defined under this legislation. Consistently with its prohibitions
he could not proceed with the work, except under a permissible regulation of
the Secretary of War. It is not contended that the work was thus made
permissible, and so the conclusion is unavoidable that the claimant was
proceeding in violation of the statute, and that the engineer officer and the
district attorney rightly requested him to desist. Such inconvenience and
damage as he sustained resulted not from a taking of his property, but from the
lawful exercise of a power to which it had always been subject. Gibson v.
United States, 166 U. S. 276, 41 L. ed. 1002, 17 Sup. Ct. Rep. 578; Bedford v.
United States, 192 U. S. 217, 224, 48 L. ed. 414, 417, 24 Sup. Ct. Rep. 238.
8
Judgment affirmed.
Mr. Justice McReynolds took no part in the consideration and decision of this
case.
