272 F. 839 | 6th Cir. | 1921
This proceeding in error is brought to reverse the judgment of the District Court, Northern District of Ohio, Eastern Division, in an action brought by the United States against the Pennsylvania & Take Erie Dock Company under favor of section 11903, General Code of Ohio, to recover possession of real estate situated in Fairport Harbor, Lake county, Ohio. The plaintiff avers in its petition that it has a legal estate in and is entitled to the immediate possession of a strip of submerged land 1,103 feet long and IS feet wide, extending from the mouth of Grand river in Fairport Plarbor, Lake county, Ohio, into Lake Erie.
The defendant in its answer admitted that it was in possession of the property described in the petition, and denied that the plaintiff has any legal estate therein, or that it is entitled to the possession thereof. Upon the trial of the cause the defendant disclaimed title, and denied that it was in possession of the portion of this strip of land sought to be recovered by the plaintiff in this action, lying north of a point 492.30 feet north of the north line of Second street in the village of Fairport. This controversy is therefore narrowed to the question of the title and right of possession of the United States to the southern end of this strip, 15 feet wide and 492.30 feet in length, ex
It is contended on the part of the defendant in error that this proceeding in error presents no question for the consideration of this court, for the reason that by stipulation of parties this cause was submitted to the court without the intervention of a jury, and that the court made no special findings of fact within the meaning of sections 649-700, R. S. It is conceded by the plaintiff in error that such special findings of fact are necessary to- a review of the questions here presented, but it insists that such findings appear in the memorandum opinion of the trial court. The court in its opinion did make some findings of ultimate facts, but it is not clear that such findings were intended as special findings for‘the purposes of this review, or that the findings made are such special findings as are contemplated by the sections above cited. The court, however, does find as ultimate facts:
First. That between 1827 and 1838 the plaintiff constructed a pier in Fairport harbor, beginning at the north line of Second, street in the village of Fairport, hake county, Ohio, and extending for a distance of 133 feet in a slightly northwesterly direction, thence due north to its northern terminus in hake Erie; that the southern end for a distance of 254 feet was of pile construction, 9 feet in width, and the residue of crib construction, 14 feet in width.
Second. That after 1838 the United States government did not expend any money upon the maintenance and repair of the south portion of this pier now in controversy, but that in 1844 and subsequent to that time the government did expend considerable sums of money in repairing the northern portion of the pier, to which the defendant disclaimed title and possession.
Third. That subsequent to 1838, and about 1844, the government abandoned the south 492.30-foot portion of this pier.
Fourth. That the license issued June 22, 1889, by the United States government to the defendant’s predecessor in title, to- use this pier, did not cover the south 492.30 feet, which is here in controversy.
Fifth. That the original wooden pier 9 feet in width, constructed by the plaintiff prior to 1839, is no longer in existence, and that it did not occupy the same position as defendant’s present concrete construction.
There are other findings of fact of minor importance; but all of these other findings, to some of which reference will be made later in this opinion, are entirely consistent with the ultimate facts found by the court as above stated.
If it were conceded that these findings of fact by the trial court as they appear in the memorandum opinion are such special findings as are required by section 700, R. S., then this record presents but two questions: First. Are the facts found by the court sufficient to support this judgment? Second. Is there any evidence upon which such findings could be made?
In this case the power of the government to construct this pier in' aid of navigation did not require that it should forever maintain that pier in that particular place. It could change it to any other location, whenever it determined that such other location would be more advantageous for navigation purposes, and undoubtedly it could abandon it altogether when the need for its maintenance no longer existed. The purpose of these piers was to narrow the channel, so that the velocity of the current would be increased sufficient to carry the sand out of the river mouth into the deeper waters of the lake. Capt. Maurice recommended that the channel should be narrowed to 150 feet between the piers.- This recommendation was not approved, and the piers were constructed 200 feet apart. If experience had shown that Capt. Maurice was right about it, then the government, in order to accomplish the purpose for which it had exercised this dominant power in aid of navigation, would have been compelled to change the location of one or both of these piers, and if it had done this it would hardly be claimed that it had not abandoned the original location. It likewise follows that if, by reason of the existence of this pier, or for any other reasons, the accretions to the adjacent land extended the river bank out into the lake along all or part of this pier, this new-made land might be just as effectual to accomplish the narrowing of the channel of the mouth of the river as the pier itself, and the reasons for the exercise.of this dominant power, by the continued maintenance of a pier, might thereby wholly disappear. In the years following the construction of this pier, the shore line to the east of it was extended by accretions to and beyond a point 492.30 feet north of the north line of Second street. In 1844 the plaintiff’s predecessors in title were adjudged to be the owners of that land, and immediately caused the same to be platted into five lots. These lots would in and of themselves. form a river bank, answering the same purpose for which the pier was originally constructed. Under these changed conditions, it would seem that there would be no more purpose in the government maintaining this pier along this newly-made river bank than there would have been purpose in projecting it south of the north line of Second street.
While the report of the engineers in 1844 shows that this pier was practically destroyed and useless throughout its entire length, the money appropriated by Congress was applied solely to the construction of a new pier from the north boundary of lot 5 to its original terminus in Lake Erie. For many years it was generally understood in that community that the government pier was that portion of the original construction north of the portion now in dispute, which north!
In a report forwarded to Col. Jared A. Smith, February 21, 1894, by F. S. Burrows, Assistant Engineer, the east pier is described as being 1,760 feet in length. This corresponds with the distances on the map accompanying this report, which map shows the inner end of the east pier about 500 feet north o'f the north line of Second street. The report also states that—
“About 1,100 feet from the outer end of the pier, the Dock Company has constructed a bulkhead of timbers and piles running normal to the pier for about 200 feet, then turning and running parallel to the pier until it intersects the shore line. The area included between the bulkhead and pier has been iilled, and track and platform laid, so that it can be utilized for handling and storing only. The part of this pier inside the bulkhead would seem to be no longer necessary as a contraction work, but might be useful as an ore dock.”
The map) shows this north end of the bulkhead to be 614 feet north of the point marked as “Inner End o'f U. S. Pier.” This agrees with the statement in the report as to the length of that portion of the pier. Another map (Plaintiff’s Exhibit 44) made by government engineers in 1903, following a survey made under authority of an act of Congress directing a .survey of the north and northwestern lakes, shows a “Pier Head Front Eight” at the north, extremity of this pier, and a “Pier Head Rear Eight” at the end of the ore dock, or substantially 500 feet north of the north line of Second street.
It is contended upon the part of the plaintiff in error that the fact that the defendant’s predecessor in title in 1888 applied for and accepted a license for this government pier, for which it agreed to pay an annual rental, and for which it did pay one year’s rental, completely estops this defendant from denying the title of the government to this strip of land. The trial court found that this license did not cover that portion of the pier or dock now in dispute, but, on the contrary, only the pier lying north of 492.30 feet north of the north line of Second street. This finding of the trial court is based upon the evidence that the Act of Congress of August 11, 1888, referred only to the east government pier “lying north of the present low-water mark.” This act was followed by the joint resolution of October 1, 1888, in which resolution it is stated that—
“Present low-water mark in the River and Harbor Bill of August 11, 1888, in the paragraph referring to Pairport Harbor, Ohio, is intended to mean the inner shore line represented on the map in report of Chief of Engineers of 1881.”
While no shore line on this map is designated as “inner shore line,”1 it is nevertheless, contended by counsel for plaintiff that the inner shore line means the shore line of 1826 shown on this map. It is im
Of these shore lines ^hat are shown to the right of the pier and in connection with it, the shore line of 1880 is the inner shore line; that is, the one nearest to the mainland, that actually connects with the pier, although the pier extends a little distance south thereof. The actual inner shore line that is shown at this place on the map is the shore line of 1844; but the south end of the pier does not extend quite so far south, so that it is doubtful if Congress could have intended by this resolution to have meant even the shore line of 1844. On the contrary, the presumption would naturally obtain that it meant the inner shore line sufficiently far north to come in contact with the south end of the nier as shown on the map, and that would be the shore line of 1880. However that may be, the application for the license filed with the Secretary of War by plaintiff’s predecessor in title refers to the Act of Congress of August 11, 1888. The license granted in pursuance of this request also refers to this act, but nothing whatever is said in reference to the joint resolution of October 11, 1888, either in this application or the license that was granted in pursuance thereof, to use this government pier north of the “present low-water mark.” For many years prior to the time this license was granted, the defendant’s predecessor in title had been, and then was, using the docks along its water front, and immediately after obtaining the licenses it took possession of 665 feet of the pier lying directly north of these docks, and extended .its tracks and hoisting machinery over that portion of the pier. After the failure'and refusal of the licensee
The owners of this new-made land, immediately after their title had been settled by the Supreme Court of Ohio, constructed numerous warehouses thereon, and built and maintained docks along the entire water front, using for this purpose whatever piling still remained there, although, as the trial court found, the evidence does not clearly establish whether these pilings that were used in the construction of the dock were part of the pilings that were used in the original pier constructed by the plaintiff, or of a later one constructed by abutting lot owners. This condition continued until the Civil War, when the business at this harbor was practically abandoned. In 1864 a government engineer reported that all the woodwork of the east pier above water was much decayed and required to be renewed. On the map accompanying this recommendation, he states in reference to the south end of this pier: “The old dock timbers being cut up for fuel, and warehouses along here not in use, going- to decay, and no business done in them.” In pursuance of this report, that portion of the government pier north of the property line of the five new lots was repaired.
From the evidence establishing these facts, and particularly the map accompanying the recommendation, and the written statement thereon, the trial court properly found that the government pier contemplated in this report, and which was restored and rebuilt in pursuance thereof, was north of the portion now in dispute. It would seem that, if this north portion was in such a dilapidated condition as to require substantially to be rebuilt within six years after the work of its construction was completed, the southern end of pile construction was in equally bad condition, and that it would also have been repaired, had the government concluded that it was necessary, in view of the changed condition, to maintain this pier along the water front of the new-made land. The conclusion would seem inevitable that it then and there abandoned that portion of the pier. Certainly the failure to show by the evidence that it had expended any money whatever upon that portion of the pier since that time, either in renewal or in repair, compels such a conclusion. On the other hand, the evidence is convincing that the adjacent proprietors built and maintained docks along this water front since shortly after 1844, and these docks have been entirely removed and replaced with others of different width, and evidently in a large part upon a different location. This entire dock is now in line with the government pier north thereof. This removal of the old piers and the construction of new ones were continued after the act of Congress of 1876, making it an offense for any person to injure or destroy a government pier, and the government has not attempted
The trial court did not predicate its finding that the plaintiff had abandoned this property merely upon evidence of nonuse for more than half a century, but rather upon positive acts of the government indicating an intention to abandon, coupled with its acquiescence in the actions of adjacent proprietors in taking possession, asserting ownership, exercising absolute control, and spending large sums of money in the rebuilding, maintenance, and repair of this pier, practically ever since their title to the new-made land was settled by the Supreme Court of Ohio in 1844.
While the court made no specific finding as to estoppel on the part of the government to reclaim this land, nevertheless the evidence tending to prove that its conduct had been such as to estop it from making such claim equally applies to the question of abandonment. In the case of United States v. Stinson, 197 U. S. 200-204, 25 Sup. Ct. 426, 49 L. Ed. 724, the Supreme Court held that, while laches or limitations ' do not of themselves constitute a distinct defense as against an action by the United States to assert a right in property, nevertheless it affirmed the judgment of the lower court in that case, which judgment was based upon the declaration that “the substantial consideration underlying the doctrine of estoppel applies to the government as well as to individuals.” Applying this doctrine to the facts of this case, in connection with the presumption that the United States government intended to act fairly in its dealings with its citizens, the finding of the
If, however, the” evidence wholly failed to sustain the finding that the government had abandoned this portion of the pier as originally constructed by it, nevertheless the further finding of the trial court that the present concrete dock constructed by the defendant does not occupy the same location as the original government pier would necessarily defeat the plaintiff’s action, for it claims this property solely and only by reason of the fact that this original pier was located upon the identical strip of land described in the petition. The burden was upon the plaintiff to prove this allegation by a preponderance of the evidence. Nor was it necessary for the court to find positively that this concrete pier occupies a different location. It would have been entirely sufficient for the court to have found that the plaintiff failed to establish this averment of the petition by a preponderance of the evidence.
The plaintiff in its petition avers that it has a legal estate and is entitled to the possession of a strip IS feet wide and 1,103 feet long extending from the mouth of the Grand river in Fairport Harbor. By the disclaimer of the defendant, this inquiry is now limited to the south end of this strip 492.30 feet. The petition describes this strip as the identical location of the defendant’s concrete dock running due north and south from Second street, 15 feet wide, and at least the entire length of 492.30 feet. In support of its claim the plaintiff has shown that prior to 1838 it constructed a pier in aid of navigation 9 feet in width for a distance of 254 feet north from Second street in the village of Fairport; that the southern 133 feet of this pier was constructed in a northwesterly direction, and from there on due north; that the northern end of this pier was of crib construction 14 feet in width. Certainly this evidence does not prove that plaintiff is the owner of' the 15-foot strip upon which, the plaintiff’s concrete dock is now located, and which runs due north from Second street to its northern terminus. The fact that this dock runs due north from Second street establishes beyond question that it has departed from the location of the original 9-foot pier. Whether it covers any part of that pier is not shown by any evidence in this case. From an examination of the original map submitted by Capt. Maurice in 1827, it would seem that this concrete dock necessarily departs to a considerable extent from the course of the original 9-foot pier, and it is altogether possible that only the extreme southern portion thereof is covered in part, if at all, by the concrete dock. Nor does the evidence indicate where this concrete dock would again intercept the original 14-foot crib construction running due north from the north end of the 9-foot pier.
It is therefore apparent that this finding of the trial court that the pier constructed by the plaintiff prior to 1838 did not occupy the same position as defendant’s present concrete construction is sustained by some evidence. Even if the court had made no such finding, beyond question a part of this concrete pier is not upon the location of the
For the reasons above stated, the judgment of the District Court is affirmed.
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