445 F.2d 1180
UNITED STATES of America, Plaintiff-Appellee,
422,978 SQUARE FEET OF LAND, IN the CITY AND COUNTY OF SAN
FRANCISCO, and Unknown Owners, Defendants, State
of California, Defendant and Appellant.
United States Court of Appeals, Ninth Circuit.
July 21, 1971, As Modified on Denial of Rehearing Aug. 23, 1971.
Wayman M. Robertson, Jr., Assst. Atty. Gen. (argued), Evelle J. Younger, Atty. Gen., San Francisco, Cal., for defendant-appellant.
Edmund B. Clark, Atty., Dept. of Justice (argued), Shiro Kashiwa, Asst. Atty. Gen., Washington, D.C., James L. Browning, U.S. Atty., J. Harold Weise Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.
Before CHAMBERS, BROWNING and CARTER, Circuit Judges.
JAMES M. CARTER, Circuit Judge:
This is an appeal from an order of the district court dismissing a complaint in condemnation. The State of California appeared in the action as an owner claiming rights in the subject property and resisted the motion of the United States to dismiss. The State's appeal raises questions of whether the United States exercised a navigational easement in connection with the subject property and whether the statute of limitations under the Tucker Act ran against the State. We affirm.
On November 18, 1940, the United States entered and took physical possession of submerged lands in San Francisco Bay, including a wharf facility, then designated Facility No. 70, located on the submerged land and owned by the State. Possession of the land was taken for use of the United States in connection with the San Francisco Naval Shipyard, designated Facilities No. 68 and 70, it was constructing on adjacent uplands.
In 1944, the State requested that the United States enter into a lease providing for payment of rental for its occupancy of the property. In the ensuing communications concerning a lease, the United States refused to agree to anything more than a nominal rental. The United States remained in possession without entering into a lease or paying rent until October 2, 1967, when it sold Facilities No. 68 and 70, but not the submerged land, to the State for $3,200,000.
During the period the United States was in possession of the subject property, the State never brought an action to recover compensation. On March 9, 1955, the United States filed a condemnation action against the property of which it was in possession, designating the interest to be acquired as 'a term for years beginning March 9, 1955, and ending June 30, 1955, extendible yearly thereafter until June 30, 1965.' Neither a declaration of taking nor an order of possession was filed pursuant to the complaint. The State appeared in the action, and the United States filed an amended complaint on March 22, 1960 and sought dismissal of the action with prejudice to the State's right to recover compensation or, in the alternative, judgment declaring that the United States took possession in exercise of its navigation servitude, for which no compensation was required to be paid.
On August 31, 1964, the United States moved to dismiss the complaint with prejudice to any claim the State had to compensation or, in the alternative, for judgment that the United States had taken possession of the property in exercise of its navigational servitude, for which no compensation was payable. On June 1, 1965, the district court, finding that the United States had not shown 'clear congressional authorization' for the exercise of the navigation servitude, denied the motion and the subsequent request by the United States for a recitation permitting interlocutory appeal.
On July 17, 1968, the United States again moved to dismiss the complaint or, in the alternative, for summary judgment determining the State to be entitled to no compensation, on the ground that any claim the State had to compensation was barred by its failure to sue under provisions of the Tucker Act, 28 U.S.C. 1346(a)(2) and 1491, within its six-year period of limitation, 28 U.S.C. 2401 and 2501.
The district court entered an order on November 14, 1968 dismissing the complaint in condemnation without comment. The State's appeal presents two major questions: (1) Is the State of California entitled to compensation for the use by the United States of submerged land in San Francisco Bay, in connection with a naval shipyard, or did the United States exercise a navigational easement over such land? (2) Where the United States in 1940 took possession of property owned by the State, is any right that the State had to compensation barred by its failure to bring an action under the Tucker Act within six years?
* The United States contends that the State is not entitled to compensation for the Government's use of submerged land in San Francisco Bay in connection with a naval industrial shipyard. Its argument that the owner of land under navigable waters does not have a compensable right as against the United States for use of such submerged land for a navigation purpose is supported by language in a long line of opinions of the Supreme Court.
The State argues that none of these cases involved the precise issue before us but involved questions of the compensability of private interests in the flow of navigable streams. We will not, however, refuse to follow such an often repeated and enduring expression of the law by the Supreme Court, absent an indication that the Court would reconsider its remarks should the issue come before it. We hold that the United States can use land submerged beneath navigable waters for a navigational purpose without compensating the owner of the land.
The State contends that the power of the United States to use submerged land for a navigational purpose was not invoked in this case because there was no express congressional authorization for the exercise of this power and possession of the subject property was not, in fact, taken for a navigational purpose. These contentions are not persuasive in light of United States v. Commodore Park, 324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017 (1945). There the Navy Department acting in conjunction with the War Department, enlarged and improved a Naval Air Station with shore facilities for seaplanes by dredging an adjacent bay to a depth suitable for the operation of large seaplanes. Teh dredged materials were deposited in a navigable creek adjacent to the bay, cutting off the creek from any navigable outlet to the bay and sea.
The project, in Commodore Park, was authorized by a statute that did not recite a navigational purpose. Further, the plan originated with a view to improvement of shore facilities by expanding the base onto the dredged materials deposited in the creek. Nevertheless, the Court held applicable the rule of nonliability for the exercise of a navigational easement.
'The 'fact that purposes other than navigation will also be served could not invalidate the exercise of the authority conferred, even if those other purposes would not alone have justified an exercise of Congressional Power.' Arizona v. California, 283 U.S. 423, 456 (51 S.Ct. 522, 526, 75 L.Ed. 1154).
'All the waters affected were navigable. The Constitution entrusted to Congress the responsibility of determining what obstructions may, or may not, be placed in such waters. This power Congress may exercise itself or through its duly authorized agents. Here, the War Department, selected by Congress to pass upon when and to
/2/ 26 U.S.C. 4701 (1964) provides in relevant altered or obstructed, permitted, and actually suprevised, the program accomplished. Even though cases might produced in or imported into the United behind the judgment of this specifically authorized agency, this is not such a case.' 324 U.S. at 391-392, 65 S.Ct. at 806. by subsection (a) shall be paid by the is compelled in this case by United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231 (1950) and Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239, 74 S.Ct. 487, 98 L.Ed. 686 (1954). We disagree. 'The legislative history and construction of particular enactments may lead to the conclusion that Congress
These statutes were repealed by Pub.L.No. 91-513, Tit. III, 1101(b)(3)(A), of the river to the public domain, and provided that private rights existing under state law should be compensable or otherwise recognized. Such were United States v. Gerlach Live Stock Co., supra, and Federal Power Commission v. Niagara Mohawk Power Corp., supra.' United States v. Twin City Power Co., 350 U.S. 222, 225, 76 S.Ct. 259, 261, 100 L.Ed. 240 (1956).
Here, the record shows Congressional authority under the Act of July 19, 1940, 54 Stat. 779 which authorized the expenditure of moneys for 'essential equipment and facilities at either private or naval establishments' for building naval vessels. Pursuant to this authority funds were appropriated by the 'Second Supplemental National Defense Appropriation Act' of 1941, 54 Stat. 872, 882. The Secretary of the Navy then recommended the project here involved and the President approved.
Neither here, nor in Commodore Park were there statutory provisions that aid to navigation or use of rights of navigation were relied upon. However, we may look to the project to determine whether it was intended as in aid to navigation and commerce. The parallel between Commodore Park and our case is very close.
Even if the United States were obligated to compensate the State for use of the subject property, the State's right to recover compensation was extinguished by its failure to bring an action within six years of the date the United States took permission of the property.
Under 28 U.S.C. 1491, the Court of Claims has jurisdiction of 'any claim against the United States founded either upon the Constitution * * * or any * * * implied contract with the United States.' The district courts have concurrent jurisdiction of such claims not exceeding $10,000, under 28 U.S.C. 1346(a)(2). Under 28 U.S.C. 2401 (action in the district court), and 2501 (proceeding in the Court of Claims) these claims are barred unless brought within six years after they first accrue. The sections above and 1496, 1497, 1501, 1503 and 2402 of Title 28 U.S.C., are generally referred to as the Tucker Act.
The claim of the State in this case derives from the proscription of the Fifth Amendment against taking of property without just compensation. The United States can exercise its power of eminent domain by taking physical possession of property without formal proceedings; when it does so, the property owner has a remedy under the above statutes, the Tucker Act, to recover just compensation. United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539 (1903); Hurley v. Kincaid, 285 U.S. 95, 52 S.Ct. 267, 76 L.Ed. 637 (1932); United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947); United States v. Dow, 357 U.S. 17, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958). 'The usual rule is that if the United States has entered into possession of the property prior to the acquisition of title, it is the former event which constitutes the act of taking.' United States v. Dow, supra, 357 U.S. at 22, 78 S.Ct. at 1044. See also, Intertype Corp. v. Clark-Congress Corp. (7 Cir. 1957), 240 F.2d 375. In this case, for the purposes of the statute of limitations under the Tucker Act, the taking, if any, occurred and the limitations period began to run when the United States began its physical possession of the subject property. The State's claim under the Tucker Act was barred by its failure to bring it within six years of this date.
The State argues that it never had a claim for relief under the Tucker Act, when the United States merely took possession because there appeared to be less than a taking of the fee, the interest taken was not defined and the United States could have abandoned the property. To the contrary, the state had a claim for relief under the Tucker Act whether the taking was permanent or temporary, even if there was ambiguity. United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). 'The possibility of such an abandonment exists whenever the Government enters into possession of property without filing a declaration of taking and without otherwise providing compensation for acquisition of the title. In any event, such an abandonment does not prejudice the property owner. It merely results in an alteration in the property interest taken-- from full ownership to one of temporary use and occupation. * * * In such cases compensation would be measured by the principles normally governing the taking of a right to use property temporarily.' United States v. Dow, supra, 357 U.S. at 26, 78 S.Ct. at 1046. 'Where * * * the property owner resorts to the courts * * * to recover compensation for what actually has been taken * * * and it appears that less than the whole has been taken and is to be paid for, such a right or interest will be deemed to pass as is necessary fairly to effectuate the purpose of the taking * * *'. United States v. Cress, 243 U.S. 316, 329, 37 S.Ct. 380, 385, 61 L.Ed. 746 (1917).
No circumstances in this case required postponement of the necessity of bringing suit or making claim. Unlike the taking in United States v. Dickinson, supra, where the Court held a suti for a taking, resulting from a continuous process of physical events, need not be undertaken until the situation stabilized, the taking here resulted from a single event, entering into possession. Unlike the taking in Oro Fina Consolidated Mines v. United States (1950), 92 F.Supp. 1016, 118 Ct.Cl. 18, the duration of the taking here was not dependent upon the continuation of an external event such as war. The United States began possession in 1940 and did not terminate it until 1967. The negotiations did not toll the Tucker Act period of limitations. Fattore v. United States (1963), 312 F.2d 797, 800, 160 Ct.Cl. 666.
The State contends that, even if it is barred from recovering under the Tucker Act, its right to compensation in the condemnation proceeding initiated by the United States in 1955 in the district court is unaffected. We disagree and hold that the running of the Tucker Act period of limitations precluded the State from recovering in the condemnation proceedings.
Filing the complaint in condemnation did not alone constitute a taking, 23 Tracts of Land, etc. v. United States (6 Cir. 1949), 177 F.2d 967, 970; United States v. 237,500 Acres of Land (S.D.Cal.1964), 236 F.Supp. 44, 46, aff'd sub nom. United States v. American Pumice Co. (9 Cir. 1968), 404 F.2d 336, but was only a method of adjudicating the contention of the United States that the State was not entitled to compensation. United States v. 93.970 Acres, 360 U.S. 328, 79 S.Ct. 1193, 3 L.Ed.2d 1275 (1959); United States v. San Geronimo Development Co. (1 Cir. 1946), 154 F.2d 78, cert. den. 329 U.S. 718, 67 S.Ct. 50, 91 L.Ed. 623 (1946); United States v. Turner (5 Cir. 1949), 175 F.2d 644, cert. den. 338 U.S. 851, 70 S.Ct. 92, 94 L.Ed. 521 (1949).
At the time of filing the condemnation action in 1955, neither a declaration of taking nor an order of possession was filed pursuant to the complaint. The United States had been in possession since 1940 and the six year statute of limitation had long run. There is no merit to the contention that the filing of the complaint in condemnation prevented the Government from asserting the defense of the statute of limitations.
The judgment is affirmed.