                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-1996

United States v. 30.54 Acres of Land
Precedential or Non-Precedential:

Docket 95-3237,95-3296




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Recommended Citation
"United States v. 30.54 Acres of Land" (1996). 1996 Decisions. Paper 112.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/112


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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                          ______________

                      Nos. 95-3237 & 95-3296
                          ______________


                     UNITED STATES OF AMERICA

                                v.

                       30.54 ACRES OF LAND,
             MORE OR LESS, SITUATED IN GREENE COUNTY,
                   COMMONWEALTH OF PENNSYLVANIA

                  James V. Filiaggi and Josephine Filiaggi,
                  Husband and Wife, Lawrence E. Filiaggi
                  and Helen Filiaggi, Husband and Wife,
                  and L&J Equipment Company, Inc.,
                                            Appellants*

                        *Pursuant to Rule 12(a), F.R.A.P.


         _______________________________________________

         On Appeal from the United States District Court
             for the Western District of Pennsylvania
               (D.C. Civil Action No. 92-cv-00033)
                       ___________________


                       Argued June 4, 1996

            Before: SCIRICA and ROTH, Circuit Judges
                   and O'NEILL, District Judge*

                      (Filed   July 24, l996)


                        LAWRENCE G. ZURAWSKY, ESQUIRE (ARGUED)
                        Zurawsky & Keck
                        428 Forbes Avenue
                        415 Lawyers Building
                        Pittsburgh, Pennsylvania 15219




*The Honorable Thomas N. O'Neill, Jr., United States District
Judge for the Eastern District of Pennsylvania, sitting by
designation.
                          MICHAEL D. DeMARCO, ESQUIRE
                          DeMarco & Associates
                          707 Grant Street
                          946 Gulf Tower
                          Pittsburgh, Pennsylvania 15219

                             Attorneys for Appellants


                          JACQUES B. GELIN, ESQUIRE (ARGUED)
                          United States Department of Justice
                          P.O. Box 23795
                          L'Enfant Plaza Station
                          Washington, D.C. 20026

                          BONNIE R. SCHLUETER, ESQUIRE
                          Office of the United States Attorney
                          633 United States Post Office
                            & Courthouse
                          Pittsburgh, Pennsylvania 15219

                             Attorneys for Appellee


                          __________________

                          OPINION OF THE COURT
                           __________________


SCIRICA, Circuit Judge.

         The United States Army Corps of Engineers prohibited
the use of the landowners' coal loading facility and coal tipple
because they posed a danger to navigation on the Monongahela
River. The landowners now seek just compensation for the
deprivation of the use of their property under the Fifth
Amendment to the Constitution and Section 111 of the River and
Harbors Act of 1970, 33 U.S.C.   595a (1988). Because the
navigational servitude was a preexisting limitation on the
landowners' title to riparian land, we hold the Corps' exercise
of the servitude to prohibit the use of the landowners' property
was not a taking under the Fifth Amendment or Section 111.
                          I. Background
         James Filiaggi and others (the "landowners") owned
132.55 acres on the Monongahela River in Greene County,
Pennsylvania. A coal loading facility was located on the tract,
and a coal tipple, grounded on the property, extended
approximately one hundred feet into the Monongahela River. The
tipple and coal loading facility have been used for loading coal
into barges since 1914.
         On January 7, 1992, in connection with the Grays
Landing Lock and Dam Project, the United States, on behalf of the
Army Corps of Engineers, filed a complaint and declaration of
taking in the United States District Court for the Western
District of Pennsylvania. The United States acquired 30.54 acres
of the landowners' tract at a cost of $86,700. The Government
did not acquire the remaining 102 acres of the tract on which the
coal loading facility was located and on which the tipple was
grounded.
         Although the United States acquired neither the coal
loading facility nor the tipple, the Army Corps of Engineers
subsequently prohibited their operation. The Corps of Engineers
concluded:
         the loading and unloading of the barges at
         the tipple site will [create a hazard to
         navigation]. Due to the close proximity of
         the tipple to the lock and dam (approximately
         1,000 ft.) the operation of the coal loading
         facility poses a safety hazard to the river
         boat pilots who would be required to maneuver
         in and about it and about the danger zone of
         the lock and dam. The operation of the
         facility also poses a hazard to the operation
         of the lock and dam. Specifically, if a
         barge or a river boat were to break away,
         there would be little if any response time to
         prevent it from going over the dam or causing
         damage thereto. The Corps of Engineers is
         responsible for the control and regulation of
         the navigation of the Monongahela River. It
         will not permit coal loading operations to
         continue in the area of the tipple.
App. at 47-48.
         The landowners sought over $300,000 in compensation for
the loss of the use of the tipple, coal loading facility, and the
remaining 102 acres in the district court. They argued the
Government's prohibition on the use of the tipple and coal
loading facility resulted in a taking by depriving them of all
economically reasonable use of their remaining 102 acres. SeeLucas v.
South Carolina Coastal Council, 505 U.S. 1003 (1992).
They also argued that Section 111 of the River and Harbors Act
mandates a determination of compensation for the remaining tract
based upon its use as a coal loading facility for barges.
         On the United States' motion for summary judgment, the
district court held that the United States did not take the
landowners' property by prohibiting the use of the tipple and
coal loading facility. See Memorandum Opinion, United States v.
30.54 Acres of Land, More or Less, Situated in Greene County,
Commonwealth of Pennsylvania, No. 92-33, slip op. at 5 (W.D. Pa.
March 15, 1995). Rather, it concluded, the United States had
regulated the use of a navigable river under the "navigational"
servitude, and although economic loss resulted, no compensation
was due. Id. at 5-6. The district court also held that Section
111 of the River and Harbors Act does not apply to regulation of
navigable waterways under the navigational servitude, id. at 7,
and therefore the landowners were not entitled to compensation.
         The district court had jurisdiction over this eminent
domain action under 28 U.S.C.   1358. We have jurisdiction over
final orders of the district court under 28 U.S.C.   1291.
              Our review of the district court's grant of
summary judgment is plenary. Western United Life Assur. Co. v.
Hayden, 64 F.3d 833, 837 (3d Cir. 1995).
                         II. Discussion
         A.   The "Navigational Servitude" and Compensation for
              Takings of Riparian Land
         The Fifth Amendment to the United States Constitution
requires the payment of just compensation for private property
taken for public use. U.S. Const. Amend. 5. But the United
States is not constitutionally required to pay for economic
losses resulting from the exercise of its "navigational"
servitude--its power to regulate the use of navigable waterways--
because navigable waterways have always been under the exclusive
control of the federal government under the Commerce Clause. As
stated by the Supreme Court in United States v. Rands, 389 U.S.
121 (1967):
         The Commerce Clause confers a unique position
         upon the Government in connection with
         navigable waters. . . . [T]hey are the public
         property of the nation, and subject to all
         the requisite legislation by Congress. This
         power to regulate navigation confers upon the
         United States a "dominant servitude," which
         extends to the entire stream and the stream
         bed below the ordinary high-water mark. The
         proper exercise of this power is not an
         invasion of any private property rights in
         the stream or the lands underlying it, for
         the damage sustained does not result from
         taking property from riparian owners within
         the meaning of the Fifth Amendment but from
         the lawful exercise of a power to which the
         interests of riparian owners have always been
         subject. Thus, without being
         constitutionally obligated to pay
         compensation, the United States may change
         the course of a navigable stream or otherwise
         impair of destroy a riparian owner's access
         to navigable waters, even though the market
         value of the riparian owner's land is
         substantially diminished.
Id. at 122-23 (citations omitted); see also Owen v. United
States, 851 F.2d 1404, 1408 (Fed. Cir. 1988).
         The navigational servitude does not relieve the
Government of its obligation to pay just compensation for takings
of fastlands above the high-water mark. But the Constitution
"permits the Government to disregard the value arising from [the]
fact of riparian location in compensating the owner when fast
lands are appropriated." United States v. Rands, 389 U.S. at
123-24. The value of land that arises from its riparian location
"does not inhere in these parcels," "but depends on use of water
to which the [landowner] has no right as against the United
States."  Id. at 124.
         Congress can, of course, provide relief where the
exercise of the navigational servitude causes economic loss, even
though the United States is not constitutionally required to pay
compensation. One instance of congressional action to grant such
relief is Section 111 of the River and Harbors Act of 1970, 33
U.S.C.   595a. Section 111 provides that in cases of takings of
above the high-water mark real property, just compensation will
be calculated on the basis of a tract's riparian location, even
though United States v. Rands makes clear that the Constitution
does not require consideration of the tract's location. Section
111 provides, in relevant part:
         In all cases where real property shall be
         taken by the United States for the public use
         in connection with any improvement of rivers,
         harbors, canals, or waterways of the United
         States, and in all condemnation proceedings
         by the United States to acquire lands or
         easements for such improvements, the
         compensation to be paid for real property
         taken by the United States above the normal
         high water mark of navigable waters of the
         United States shall be the fair market value
         of such real property based upon all uses to
         which such real property may reasonably be
         put, including its highest and best use, any
         of which uses may be dependent upon access to
         or utilization of such navigable waters.
33 U.S.C.   595a. While Section 111 alters the method of
calculation of just compensation for takings of above high-water
mark riparian land, it does not alter the underlying
determination of what constitutes a taking under the Fifth
Amendment. Nor does Section 111 alter any other aspect of
established law on the navigational servitude.
         B.   Takings under Lucas v. South Carolina Coastal
              Council
         The landowners argue that the Government's prohibition
on the use of the tipple and coal loading facility stripped the
102 acres remaining in their possession of all economically
reasonable uses. Relying on Lucas v. South Carolina Coastal
Council, 505 U.S. 1003 (1992), they assert that this prohibition
constituted a taking under the Fifth Amendment.
         Lucas established that economic regulations can result
in a taking, even though the Government does not formally condemn
property. "[W]hen the owner of real property has been called
upon to sacrifice all economically beneficial uses in the name of
the common good, that is, to leave his property economically
idle, he has suffered a taking." Id. at 1019 (emphasis in
original). But Lucas also noted that when "the logically
antecedent inquiry into the nature of the owner's estate shows
that the proscribed use interests were not part of his title to
begin with," id. at 1027, regulations proscribing such uses do
not result in a taking.
         The Supreme Court explicitly recognized the
navigational servitude as a pre-existing limitation on riparian
landowners' estates. See id. at 1028-29 (citing the navigational
servitude as a case when "we assuredly would permit the
government to assert a permanent easement that was a pre-existing
limitation upon the landowner's title.") (emphasis in original).
Because the navigational servitude is a pre-existing limitation
on the title of riparian property--indeed the limitation is
almost as old as the republic itself, see Gibbons v. Ogden, 22
U.S. (9 Wheat) 1, 189-193 (1824)--exercise of the servitude
cannot constitute a taking, even where it deprives a landowner of
all economically reasonable use of his land. United States v.
Cherokee Nation of Okla., 480 U.S. 700, 704 (1987) ("the damage
sustained does not result from taking property from riparian
owners within the meaning of the Fifth Amendment but from the
lawful exercise of a power to which the interests of riparian
owners have always been subject"); United States v. Rands, 389
U.S. at 122 (same). Accordingly, even were the landowners to
establish that the Government's prohibition on the use of the
tipple and coal loading facility deprived them of all
economically reasonable uses of their land (and they have not yet
established this fact), there was no taking. From the time the
tipple and coal-loading facility commenced operation in 1914, the
landowners' right to operate them was subject to the navigational
servitude and the possibility that the Government might exercise
the servitude to prohibit their use. Exercise of the servitude
did nothing more than realize a limitation always inherent in the
landowners' title. It was not a taking.
         C. Section 111 of the River and Harbors Act of 1970
         The landowners argue that Section 111 of the River and
Harbors Act of 1970, 33 U.S.C.   595a, requires the Government to
compensate them for the prohibition on the use of the tipple and
coal loading facility. They note that Section 111 applies to
condemnation proceedings and to "cases where real property shall
be taken . . . for the public use in connection with any
improvement of rivers." They assert the Government's prohibition
on the use of the tipple and coal loading facility was a "taking"
within the meaning of Section 111.
         There is no reason to suppose that Congress referred to
takings in Section 111 in any other than a constitutional sense.
As discussed, the Government's exercise of the navigational
servitude to prohibit the use of the tipple and coal loading
facility was not a taking under the Fifth Amendment.
Accordingly, it would appear that Section 111, by its terms, does
not apply.
         In any event, Section 111 only applies to "real
property taken by the United States above the high water mark."
Here the United States did not acquire above the high-water mark
real property (other than the original 30.54 acres); rather, it
prohibited use of the tipple--a structure jutting one hundred
feet into a navigable waterway. Section 111 does not require
compensation for prohibition of the use of such a structure. Cf.United
States v. Certain Parcels of Land, Etc. (City of Valdez),
666 F.2d 1236, 1238 (9th Cir. 1982) ("private improvements
connected to fastlands but located in the navigable waters may be
altered or removed by the Government to improve navigation
without compensating the owner").
         The landowners also argue that Section 111 "was adopted
to limit or abrogate the harsh provisions of the earlier doctrine
of the `navigational servitude,'" and therefore the navigational
servitude does excuse payment of just compensation. But Congress
did not express an intent to abolish the navigational servitude
or to provide compensation for all economic losses occasioned by
regulation of navigable waterways. The legislative history of
Section 111 indicates that Congress intended to modify the rule
of United States v. Rands only to the extent of paying full
compensation based on riparian location in cases of actual
acquisition of above the high-water mark real property. Section
111 "makes no change in existing law" with respect to other
aspects of the navigational servitude. H. R. Rep. No. 1665, 91st
Cong. 2d Sess. 30-31 (1970). We will not alter long-established
law or abridge the navigational servitude in the absence of
explicit legislation from Congress.
                         III. Conclusion
         The Government's exercise of the navigational servitude
to prohibit use of the tipple and coal loading facility did not
result in a taking of the landowners' property. The navigational
servitude was always a limitation inherent in the landowners'
title, and therefore exercise of the servitude was not a taking.
         Nor was there a taking within the meaning of Section
111 of the River and Harbors Act. Its provisions do not apply.
We will affirm the judgment of the district court.
