#### JOHN MONK v. THE UNITED STATES.

[No. 34179.

Decided November 21, 1921.]

*On the Proofs.*

*'Riparian rights; eminent- domain.*— A company owning land abutting on navigable tidewater in the State of Virginia subdivided the same into lots and streets and dedicated the subdivision thereof to the public, reserving, however, from said dedication a strip of land ten feet wide between high water and the western line of a street 80 feet wide forming the western boundary of said subdivision, with all riparian rights. A part of said strip with all riparian rights between a frontage of 200 feet on said street and a frontage of 300 feet on the port warden’s line was sold and conveyed to a pier company, at which time, due to erosion, the 10-foot strip had entirely washed away and the said street was covered with water at high tide and part of it at low tide. Afterwards, through court proceedings, the title to the riparian rights so conveyed were acquired by the plaintiff, and while in his ownership and possession the title to and possession thereof were, taken by the United States under the act of June 15, 1917, 40 *430Stat, 207. *Held,*that under the laws of the State of Virginia the owner of such riparian rights is the possessor of property which is valuable and is entitled to just compensation when it is taken for public use by the United States.

*The Reporter's*statement of the case:

*Mr. Theodore J. Wool*for the plaintiff. *Mr. D. Todd Wool*and *Walcott,*Walcott, *Lankford & Rear*were on the briefs.

*Mr. Percy M. Gox,*with whom was *Mr. Assistant Attorney General Robert II.*Lovett, for the defendant.

The following are the facts of the case as found by the court:

I. In the year 1901 the Norfolk-Hampton Roads Company, a corporation, having its principal place of business at Norfolk, Virginia, had title to and owned a tract of land at Sewells Point, Va., lying on or abutting the waters known as Hampton Roads or Willoughby Bay. In June, 1901, said tract, or approximately 100 acres thereof, was subdivided and platted by said company into blocks, building lots, streets, and roadways, and a subdivision was formed which became known as “ Pine Beach.” Said property adjoined the ground subsequently used by the Jamestown Exposition Company for holding its exposition, and lay north of Ninety-ninth Street and Algonquin Street.

In conformity with the statutes of Virginia *(Virginia*Acts, 1889-90, p. 35, sec. 2510A, *Code of*Virginia, 1904), the map or plat of said property, or of the west portion of the same (the part material to this case) was duly filed and recorded in the office of the clerk of Norfolk County and was recorded in map book No. 5, at page 66, in that office. In subdividing said property and laying off streets thereon there was laid off and designated upon said plat a roacl-'way called “ Hampton Roads Boulevard,” having an indicated width of 80 feet. Following as it does the general contour of the shore line, the west line of said boulevard makes a considerable curve at Sewells Point, and the apex of the curve is at or about the center of the east line of the property claimed by plaintiff as originally conveyed to him.

At the time said plat was recorded the west line of said boulevard was nearly parallel to the line of the then existing *431high-water mark, and said western line of the boulevard, being the side nearer the water, was located approximately 10 feet eastward of said high-water mark. There was thus left a strip of land about 10 feet in width between the western side of said roadway and the high-water mark. An easement in the said boulevard and other roadways on the map or plat was dedicated as such to the public in accordance with the Virginia statutes. Upon the map or plat filed and recorded, as stated, there was a legend describing by metes and bounds the general subdivision, which otherwise complied with said statutes and also stated “ the strip of land or beach between Hampton Roads Boulevard and the water, with all riparian rights, are reserved to the company.”

II. On or about March 14, 1907, the said Norfolk-Hampton Roads Company conveyed to a corporation known as the Exposition Deepwater Pier Corporation, certain of the said property above mentioned for a recited consideration in the deed of $10,000. The metes and bounds of the property and rights that were conveyed are more particularly described in the deed of conveyance executed by said grant as follows:

“ Beginning on the western line of Hampton Roads Boulevard at what would be the southern line of One hundred and fourth Street if One hundred and fourth Street was projected in a straight line across Hampton Roads Boulevard and out into the waters of Hampton Roads or Willoughby Bay; thence in a westerly direction along what would be the southern line of One hundred and fourth Street if the same was projected in a straight line two thousand seven hundred and fifteen (2,715) feet, more or less, to the port warden’s line; thence in a northerly direction along the port warden’s line three hundred (300) feet; thence in an easterly direction parallel with what would be the southern line of said One hundred and fourth Street if projected as aforesaid eleven hundred (1,100) feet; thence in a southeastwardly direction seventeen hundred and seventy-five (1,775) feet, more or less, to a point on the western line of Hampton Roads Boulevard, a distance of two hundred (200) feet from the point of beginning.”

The deed recited that “ the riparian rights of the property hereby conveyed are limited to the boundaries hereinabove' set out, and the said Hampton Roads Boulevard and One *432hundred and fourth Street are indicated on a plat of certain property now or formerly owned by the Norfollc-Hampton Roads Company * * * to which plat, as well as to the amendment to the same, reference is made.”

III. After it had acquired the property and rights mentioned in Finding II the Exposition Deepwater Pier Corporation caused to be constructed a pier haring a width of 32 feet and extending from a point near the west line of Hampton Roads Boulevard to a point some distance beyond the bulkhead line and a distance of approximately 1,100 feet. This pier was built as a terminal and was used as such for passenger steamers during the Jamestown Exposition. At the pierhead was a depth of water of about 16 feet, and passenger steamers readily landed on all sides of it during the exposition period. It rested upon piles. The work of constructing said pier had been done by a contracting firm of which the plaintiff, John Monk, was a partner, and for its construction the corporation became indebted to the contracting firm in a large sum, which it became necessary subsequently that the firm take legal proceedings to collect. Legal proceedings were instituted against the corporation to enforce mechanics’ or other liens by said firm and subject thereto the .property. On the 1st day of August, 1910, the Circuit Court of Norfolk County entered a decree directing the sale of the real estate of the Exposition Deepwater Pier Corporation described in the bill which said firm had filed, consisting of the pier and land upon which it was constructed. On the 17th day of September, 1910, the said property was sold by commissioners appointed by the court, and John Monk, the plaintiff, became the purchaser thereof at the price of $2,400. On the 14th day of October, 1910, the sale having been reported to the court, the same was duly confirmed by a decree of the court, and said commissioners were directed to execute a deed to the said. John Monk for the property so sold. Thereupon, on the 14th day of July, 1911, a deed was executed by said commissioners to the plaintiff conveying said land and property by the following description:

•!A1I that certain tract, piece, or parcel of land situate, lying, and being in Tanners Creek magisterial district, of the *433county of Norfolk, in the State of Virginia, together with the pier which has been erected thereon and bounded as follows, to wit:

“ Beginning on the western line of Hampton Roads Boulevard at what would be the southern line of 104th Street, if 104th Street was projected in a straight line across Hampton Roads Boulevard and out into the waters of Hampton Roads or Willoughby Bay; thence in a westerly direction along what would be the southern line of 104th Street if the same was projected in a straight line 2,715 feet, more or less, to the port warden’s line; thence in a northerly direction along the port warden’s line three hundred (300) feet; thence in an eastwards direction parallel with what would be the southern line of said 104th Street if projected as aforesaid, eleven hundred (1,100) feet; thence in a southeastwardly direction seventeen hundred and seventy-five (1,775) feet, more or less, to a point on the western line of Hampton Roads Boulevard, a distance of two hundred (200) feet from the point of beginning; and thence in a southwestwardlv direction along the western line of Hampton Roads Boulevard two hundred (200) feet to the point of beginning; also all riparian rights connected with the above-described tract or parcel of land.”

Reference was also made to said .map recorded in the clerk’s office as aforesaid.

IV. The said pier had been constructed of uncreosoted piles and lumber and fell rapidly into decay because of the ravages of the teredo. Plaintiff made no attempt to use the pier after its purchase by him as above stated. He made his permanent abode in California in 1913 and gave no attention to the pier standing at that time. When the requisition by the Government, hereinafter mentioned, was made, the superstructure of the pier had about 100 piles left, the most of which had been eaten away at the water plane by the teredo.

Sewell’s Point, at or near which said pier was located, is exposed to the waters of Hampton Roads and the shores are subject to continuous wash by wave action. As a consequence of the erosion caused thereby the bluff line or high-water mark had moved eastward. At the time of the taking over of this property above mentioned from where, it was in 1901, when the Norfolk-Hampton Roads Company filed its plat of lots, the low-water mark had moved shoreward and eastward so that it encroached upon the west side of Hampton Roads Boulevard a varying distance throughout the *434length of the east line of the plaintiff’s said property as described in the deed to him. The bluff line as thus described was ascertained by an officer or agent of the Government directed to find the same and was by him located near the east line of the boulevard and east of its center line. The defendant caused another and a special survey to be made in November, 1917, to locate at the site of plaintiff’s property the mean low-water mark. The mean low-watér line so ascertained by this survey, which was made from the sea and by means of soundings and readings of the water levels taken and noted during a lunar month, and the results were placed upon a map similar to that used by the officer who made the survey in August. The line of the mean low water was located on the map and in a horizontal distance is not in error more than plus or minus 5 feet, which is as close as a survey of this character can be made. The mean low-water mark was about 25 feet east of the western side of Hampton Roads Boulevard at a prolongation of the south line of 104th Street and was east of the west line of the boulevard at a prolongation of the north line of 104th Street. The distance from this last-named point to the western line drawn at right angles as near as may be to the curve of the boulevard would make the distance less than 40 feet. There had been a gradual encroachment of the bluff line upon the shore at and about Sewells Point for many years, showing an average encroachment of from 6 to 8 feet per annum, and between the dates of August, when the first survey above mentioned was made, and that in November there was an approximate change of 2 feet. The survey made in August did not,show that the low-water mark had encroached upon the said boulevard as far as the center line thereof. In June, when the property was requisitioned, the encroachment had not extended to said center line. It does hot appear from the evidence that the State of Virginia by special grant conveyed any land to plaintiff. It appears that the port warden’s line had been established before plaintiff acquired the property and his deed recognized and called for the same. By statute in Virginia the riparian owner has fee-simple title to low-water mark. *Code of Virginia*(1904), section 1339.

*435At the time of the conveyance set out in Finding II to the Exposition Deepwater Pier Corporation there was no fast ]and or dry land at ordinary low water along the 200-foot line of the property conveyed west of Hampton Roads Boulevard. By the gradual erosion of the waters the 10-foot strip mentioned in the reservation in the deed in Finding I had been by this erosion of water swept away. At this time Hampton Roads Boulevard along this 200-foot line was cov.-ered at high water and part of it was covered at low water.

Y. By the act of Congress of June 15,1917 (40 Stat., 207), provision was made for a naval operating base at Hampton Roads, Virginia, and the President was authorized to take over for the United States the immediate possession and title, including all the easements, rights of way, riparian, and other rights appurtenant thereto, of the tract of land known as the Jamestown Exposition site, “ and of such lands adjacent thereto as lie north of Ninety-ninth Street and Algonquin Street.” and that upon the taking over of said property by the President the title to all of the property so taken over should immediately vest in the. United States. An appropriation was made for the payment of compensation to the owners, and this appropriation was made available for the acquisition of the entire property, bounded as stated, “ together with all the easements, rights of way, riparian, and other rights appurtenant thereto.” Thereafter, on the 28th day of June, 1917, the President of the United States issued his proclamation to the effect that by virtue of the authority vested by said act of Congress, and on behalf of the United States, he took title to and possession of the tract of land known as the Jamestown Exposition site and of such lands adjacent thereto as lie north of Ninety-ninth Street and Algonquin Street and all easements, rights of way, riparian and other rights, franchises and privileges whatsoever appurtenant or appertaining thereto, and declared that said land and the rights and privileges appurtenant thereto were to be, and were, set aside for use for naval purposes and were placed under the control of the Secretary of the Navy, who was authorized to take immediate possession thereof in accordance with the terms of said act for the purposes afore*436said. All persons residing witbin said tract of land were notified to vacate the same prior to the first of August, 1917, and the proclamation authorized the Secretary of the Navy to take the necessary steps for ascertaining the amount of just compensation that should be paid to the' owners of said property. . A copy of the proclamation was served, upon the plaintiff’s attorney.

For the purpose of acquiring all of said land and rights $1,200,000 was appropriated. There.was also appropriated $1,600,000, in the language of the act, “ toward the ■ equipment of the same as a naval operating base, including piers, storehouses, oil-fuel storage, training station, and recreation grounds for the fleet and other purposes.”

VI, On July 21,1917, the Secretary of the Navy appointed a board and directed it to assemble at the navy yard in Norfolk for the purpose of considering the claims against the United States arising out of the taking over of the' property described in the said proclamation of June 28, 1917. The board was instructed to ascertain the fair and reasonable value of all the property and rights taken and make report thereon. The said board made an elaborate report relative to the different properties included in the general area and fixed what they regarded as reasonable compensation therefor. With reference to the property claimed by the plaintiff it was reported that the absence of high land in the Monk property was believed to reduce its value below that of adjoining property and leave its valuation at $6,100, and that the board believed that this amount should be further reduced on account of the exposed position of the area to $4,000, which latter amount the board considered to be the fair and reasonable value of the property in question. The report stated that •“ this valuation is based on the assumption that the present claimant had such property right as would, have enabled him to convey to thé United States a good fee-simple title to the property as of June 28,1917.”

On November 19, 1917, the said board notified the plaintiff that it had found the fair and reasonable value of the plaintiff’s property, subject to the establishment of a *good*fee-simple title in plaintiff as of June 28, 1917, to be $4,000. Said report of the board upon all of the properties and rights *437involved in their investigation was duly filed and was approved by the Secretary of the Navy under date of December 19, 1917, and was approved by the President under date of December 21,1917.

Thereafter it does not appear that the plaintiff made any effort to establish “ a good fee-simple title ” or to clear up the objections to his title by the Government.

On January 10,1918,' the attorney for the plaintiff notified the said board that its valuation of $4,000 was not satisfactory to plaintiff and that he would receive three-fourths of this amount and sue for such further sum as might be due him under the terms of said act.

Thereaftex-, the question coming before the Solicitor for the Navy Department, he expressed doubts as to whether the plaintiff had property rights which he could convey, and as a consequence of this view the Government has paid the plaintiff nothing.

VII. Pursuant to plans formulated by the Navy Department prior to the requisitioning of the said site for a naval opei’ating base, the United States in the fall of 1917, after it had acquired title as'aforesaid, in compliance with the provisions of said act of June 15, 1917, commenced dredging operations with the object and for the purpose of deepening and otherwise improving in connection with and as part of the development of the naval base site the navigable capacity of the Elizabeth River and Hampton Roads fronting the Pine Beach property and the site of the John Monk pier. The project provided for the construction, among other things, of a bulkhead on the Elizabeth River and Hampton Roads water fronts, from which bulkhead piers were to be erected extending out to the then pierhead line. Channels and slips were thereafter dredged between the site of the piers out to the main 35-foot channel in the river so as to permit deep-draft naval and merchant ships to approach the piers in order to load and discharge their cargoes. A line of bulkheading ivas constructed acrossjhe old site of plaintiff’s pier. This bulkheading was located about 1,000 feet from shore and the line bisected the old pier site approximately two-fifths its distance from the shore end. The shoal water between the shore and the bulkhead was filled in with the *438spoil dredged from the areas designated for the channels and pier slips. As a consequence of these works of river improvement approximately two-fifths of what had been the plaintiff’s pier site was filled with dredged material to an elevation of 10 feet above the mean-water plane, leaving the remaining three-fifths outside of and beyond the bulkhead.

VIII. The value of the property was, at the time of its taking by the Government, on June 28,1917, $10,000, no part of which has been paid by the Government.

Graham, Judge,

delivered the opinion of the court:

The facts in this case are quite fully set forth in the findings and it is therefore unnecessary to review them here.

This is a claim for compensation for riparian or wharfage rights taken by the Government under the authority of the act of June 15, 1917, 40 Stat., 207, for the establishment of a naval operating base and authorizing the President to take over certain property near the city of Norfolk; Virginia, and all easements and riparian rights appurtenant thereto and make just compensation therefor. The property was taken over by the Government on the 28th of June, 1917, and the question is whether the plaintiff at that time possessed riparian rights for which it. was entitled to compensation.

The plaintiff claimed certain riparian rights, by virtue of its purchase from the commissioner of the court of Norfolk County, who sold them as the property of the Exposition Deepwater Pier Corporation, which had owned and operated a pier at that point during the period of the Jamestown Exposition. There is no question that the plaintiff owned and possessed all rights which the Exposition Deepwater Pier Corporation acquired by its purchase and possessed at the time of the conveyance to the plaintiff. The Exposition Deepwater Pier Corporation acquired its rights from the Norfolk-Hampton Roads Company by a deed conveying to it certain riparian rights, commencing on the western line of Hampton Roads Boulevard extending into the water a stated distance with a stated frontage on the bulkhead line and back to the western line of said Hampton Roads Boulevard. The rights conveyed to it were bounded, as will be seen, by a fixed monument which was a public highway known as Hampton Roads Boulevard. The grantor of these rights, the Norfolk-*439Hampton Roads Company, after owning for a number of years a tract of land of about 100 acres, laid out and platted it into lots and streets and recorded tlie plat. The recording of the plat under the laws of Virginia was a dedication of the streets to public use. Said Hampton Roads Boulevard was one of these streets. On this plat was a legend as follows:

> “ The strip of land or beach between Hampton Roads Boulevard and the water and all riparian rights are reserved to the company.”

This “ strip of land ” at the time was about 10 feet wide. The property being in the State of Virginia, the laws of that State control riparian rights. *Weems Steamboat Co.*v. *Peoples Steamboat*Co., 214 U. S., 345. The courts'of that State have held that riparian rights are property, in the soil up to the line of navigation, though covered by water, and not a mere easement to pass over the water. It is property in the soil to which to fasten and to build structures. *City of Norfolk*v. Cooke, 27 Gratt., 430. Also under the laws of Virginia the *“*flats ” or lands covered by water, commonly known as riparian rights, can be severed from the upland or fast land and alienated, giving the vendee title thereto and property rights therein, *Robbins*v. Walker, 119 Va., 222, and the vendee of such flats or riparian rights thereby becomes the possessor of property which is valuable and can only be deprived of it in accordance with law and is entitled to just compensation when it is taken for public use. *Taylor*v. *Commonwealth,*102 Va., 758.

It is important to bear in mind that there is no other claimant of these rights but the plaintiff. These rights are property and valuable, and at the time of the taking were owned and possessed by some one. It will be seen from the recital of title above that the source of title was the Norfolk-Hampton Roads Company, which, in platting these lots and locating Hampton Roads Boulevard, reserved therefrom a strip of land with all riparian rights. It conveyed these riparian rights to the Exposition Deepwater Pier Corporation and the plaintiff succeeded to the rights of the Exposition .Deepwater Pier Corporation under judicial sale. The shore line of the rights which were conveyed to the Exposi-*440lion Deepwater Pier Corporation, and subsequently to the plaintiff, was fixed by and along the western line of Hampton Eoads Boulevard. Hampton Beads Boulevard by its dedication became a public highway and a fixed monument. While not open and graded, it was still a public highway at the time the Government took over this property, and consequently at that time a fixed monument. It is true that part of it was covered with water at low-water mark, but the greater part of it was not. The mere fact that it was partially covered with water did not destroy it or obliterate it as a street and a fixed monument.

It is therefore plain, if the Norfolk-Hampton Koads Company possessed riparian rights and conveyed them to the Exposition Deepwater Pier Corporation, that the plaintiff, as successor to that company, took riparian rights and possessed them at .the time the Government took over this property, for which he is entitled to .compensation.

It follows from this that the plaintiff possessed a property right at the time of the taking by the Government of this tract of land and is entitled to just compensation therefor, which has been found to be $10,000.

Hat, *Judge;*Dowistey, *Judge;*Booth, *Judge;*and Campbell, *OMef*Justice, concur.