#### LUTHER J. BAILEY AND JAMES E. FULGHAM v. THE UNITED STATES1

[No. C-778.

Decided April 19, 1926]

*On the Proofs*

*Eminent domain; improvement of nmtgable waters.*— The taking by the United States of oyster lands in the vicinity of Hampton-. Roads below low-water mark was within the sovereign’s right to improve navigation and did not amount to a taking of private-property for public use, for which the lessees, renting from the State of Virginia, would be entitled to just compensation..

*The Reporter's*statement of the case:

*Mr. Philip S. Peyser^*for the plaintiffs. *Mr. Theodore D-Peyser*was on the briefs.

*Mr. Howard W. Amelia*with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

*78The court made special findings of fact, as follows:

I. The plaintiffs, Luther J. Bailey and James E. Fulgham, leased from the State of Yirginia in 1915 a tract of submerged land, comprising substantially 26^ acres, in the vicinity of the Jamestown Exposition site in said State, for the purpose of planting and growing oysters thereon.

The land was located in Willoughby Bay between the arch and pleasure pier of the exposition grounds on the southerly side of the bay; and its location, size, and shape are correctly shown on plats designated as claimants’ Exhibits “A” and “ C ” and Government’s Exhibit No. 7, filed as exhibits in the cause and made part of this finding by reference.

II. The lease would run for twenty years if the annual rental was paid and the custom obtained, on the part of the State of Yirginia, to grant to lessees of oyster lands the preference and right of renewal of leases where such renewals are desired. Surveys of the land were made and recorded with the proper official, and the corners of the land were marked with stakes. The rental payable to the State was one dollar per acre per annum, payable annually, and was shown to have been paid up to the year 1920.

III. The tract of land in question was what is termed “submerged land,” covered with about 5 feet of water at low tide. The bottom was firm, solid ground, adapted to and suitable for growing oysters, and, at the time it was leased by plaintiffs, was about the only tract of available oyster land in that vicinity that was not under lease and occupied.

IY. During the years 1915 and 1916 plaintiffs planted upon said land something over 17,000 bushels of seed oysters and about 3,000 bushels of oyster shells. The cost and value of the oysters planted was 35 cents per bushel and of the oyster shells 5 cents per bushel. The expense incident to planting the oysters and shells is not shown, nor is the number of acres or the extent of the area planted shown. The tide or current of water flowing over oyster beds is an important element in developing oysters, and it is shown that there was a strong tide or current of water flowing over *79this particular tract at the time it was occupied by plaintiffs for the purpose stated.

Y. The period of time necessary to develop a bed of salable oysters varies according to the nature of the ground and the flow of the tide or current of water over it. Where the ground is firm and solid and the flow of the current of water is strong, the development is more rapid than where the ground is soft and the flow of the current of water is slow, and this is shown to be an important element as affecting the value of oyster grounds and oyster beds.

YI. Plaintiffs were in 1917, and had been for several years prior thereto, engaged in fishing and the growing of and dealing in oysters in the vicinity where the land in question is located, and were more or less familiar with all lines of the business, including the value of oysters, oyster lands, oyster beds, and oyster leases.

VII. Plaintiffs during the year 1916 took several hundred bushels of oysters from the more advanced and developed parts of the beds, by the tonging process. Small quantities of oysters were removed from time to time, amounting in all to approximately 3,000 bushels. The growth of the oysters and the number found on these occasions indicated a yield of approximately two to one. The last 450 bushels were taken by the dredging process the latter part of December, 1917, or the early part of 1918, and after the development of the naval base was under way. The oysters thus taken were sold on the open market in the vicinity where produced at an average price of 70 cents per bushel in the rough and as taken from the beds by the dredge.

VIII. On June 15, 1917, there was passed by Congress and approved by the President an act authorizing and empowering the President to take over for the United States the title to what is known as the Jamestown Exposition site, which act provides as follows:

“ Naval operating base, Hampton Eoads, Virginia: The President is hereby authorized and empowered to take over for the United States the immediate possession and title, including all easements, rights of way, riparian and other rights appurtenant thereto, and including all the rights and properties of railway, electric light, power, telephone, tele*80graph, water, and sewer companies, of the tract of land known as the Jamestown Exposition site, on Hampton Roads, Virginia, and of such lands adjacent thereto as lie north of Ninety-ninth Street and Algonquin Street, the entire property being bounded on the north and west by Hampton Roads and Willoughby Bay, on the east by Boush Creek, and on the south by Ninety-ninth and Algonquin Streets.

“ That if said lands and appurtenances and improvements thereof shall be taken over as aforesaid, the United States-shall make just compensation therefor, to be determined by the President, and if the amount thereof, so determined by the President, is unsatisfactory to the person entitled to receive the same, such person shall be paid seventy-five per centum of the amount so determined by the President and shall be entitled to sue the United States to recover such further sum as, added to said seventy-five per centum, will make up such amount as will be just compensation therefor, in the manner provided for by section twenty-four, paragraph twenty, and section one hundred and forty-five of the-Judicial Code.

“ Upon the taking over of said property by the President as aforesaid, the title to all property so taken over shall immediately vest in the United States.

“For the payment of compensation for said property so taken over, $1,200,000, or so much thereof as may be necessary; and toward the equipment of the same as a naval operating base, including piers, storehouses, oil-fuel storage, training station, and recreation grounds tor the fleet and other purposes, $1,600,000; in all, $2,800,000: *Provided,*That the appropriation herein shall be available only for the acquisition of the entire property bounded on the north and west by Hampton Roads and Willoughby Bay, on the east by Boush Creek, and on the south by Ninety-ninth and Algonquin Streets, together with all easements, rights of' way, riparian and other rights appurtenant thereto, and all the rights and properties of railway, electric light, power, telephone, telegraph, cable, water, and sewer companies: *Provided further,*That the Secretary of the Navy is authorized to expend public money in the development of said tract of land without reference to the requirements of section three hundred and fifty-five of the Revised Statutes.”

IX. On June 28, 1917, the President of the United States,, in pursuance of the act of Congress set out in the preceding; paragraph, issued the following proclamation:

*81(Acquisition of the Jamestown Exposition site for naval purposes)

By the President of the United States of America

A PROCLAMATION

WheReas the act of Congress to supply urgent deficiencies in appropriations for the Military and Naval Establishments, approved June fifteenth, nineteen hundred and seventeen (Public, Number Twenty-three, Sixty-fifth Congress) contains the following provision:

“Naval operating base, Hampton Roads, Virginia: The President is hereby authorized and empowered to take over for the United States the immediate possession and title, including all easements, rights of way, riparian and other rights appurtenant thereto, and including all the rights and properties of railway, electric light, power, telephone, telegraph, water, and sewer companies, of the tract of land known as the Jamestown Exposition site, on Hampton Roads, Virginia, and of such lands adjacent thereto as lie north of Ninety-ninth Street and Algonquin Street, the entire property being bounded on the north and west by Hampton Roads and Willoughby Bay, on the east by Boush Creek, and on the south by Ninety-ninth and Algonquin Streets.

“ That if said lands and appurtenances and improvements thereof shall be taken over as aforesaid the United States shall make just compensation therefor, to be determined by the President, and if the amount thereof, so determined by the President, is unsatisfactory to the person entitled to receive the same, such person shall be paid seventy-five per centum of the amount so determined by the President and shall be entitled to sue the United States to recover such further sum as added to said seventy-five per centum will make up such amount as will be just compensation therefor, in the manner provided for by section twenty-four, paragraph twenty, and section one hundred and forty-five ■of the Judicial Code.

“ Upon the taking over of said property by the President as aforesaid, the title to all property so taken over shall immediately vest in the United States.

“For the payment of compensation for said property so taken over, $1,200,000, or so much thereof as may be necessary; and 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 *82other purposes, $1,600,000, in all, $2,800,000: *Provided,*That the appropriation herein shall be available only for the acquisition of the entire property bounded on the north and west by Hampton Boads and Willoughby Bay, on the east by Boush Creek, and on the south by Ninety-ninth and Algonquin Streets, together with all easements, rights of way, riparian and other rights appurtenant thereto, and all the rights and properties of railway, electric light, power, telephone, telegraph, cable, water, and sewer companies: *Provided*further, That the Secretary of the Navy is authorized to expend public mone}^ in the development of said tract of land without reference to the requirements of section three hundred and fifty-five of the Bevised Statutes.”

AND whereas it is a military necessity to take possession of the said above-mentioned tract of land, together with all easements, rights of way, riparian, and other rights and privileges appurtenant or appertaining thereto, and to begin without delay the development of said tract for *the uses*and purposes of the naval service of the United States:

Now, THEREFORE, KNOW ALL MEN BY THESE PRESENTS I That

I, Woodrow Wilson, President of the United States of America, by virtue of the power and authority vested in me by the said act of Congress approved June fifteenth, nineteen hundred and seventeen, do hereby, on behalf of the United States, take title to and possession of the tract of land known as the Jamestown Exposition site on Hampton Boads, Virginia, and of such lands adjacent thereto as lie north of Ninety-ninth Street and Algonquin Street, the entire property being bounded on the north and west by Hampton Boads and Willoughby Bay, on the east by Boush Creek, and on the south by Ninety-ninth and Algonquin Streets; together with all roads, streets, and alleys therein, and all easements, rights of way, riparian and other rights, franchises, and privileges whatsoever appurtenant or appertaining thereto, including all fixed and immovable property within said tract of land, now owned or claimed by any individual or by any railway, electric light, power, telephone,, telegraph, cable, water, or sewer company or companies, which said tract of land is more particularly described by metes and bounds as follows:

All that tract of land in the County of Norfolk, State of Virginia, situate on Hampton Boads and Willoughby Bay, beginning at the point of intersection of the north line of Algonquin Street prolonged in an easterly direction with the line of low-water mark on the west side of the main channel of Boush Creek;

*83Thence north eighty-two degrees (82) west two thousand one hundred and fifty-seven feet (2,157') more or less, along the north line of Algonquin Street;

Thence south eighty-eight degrees (88) six minutes (6') west three thousand four hundred and eighty-two and nine-tenths feet (3,482.9'), continuing along the north line of Algonquin Street to the east line of Maryland Avenue;

Thence south eighty-eight degrees (88) six minutes (6') west one thousand seven hundred and twenty feet (1,720') along the north line of Ninety-ninth Street to the east line of .Maryland Circle;

Thence crossing Maryland Circle north seventy-four degrees (74) forty-eight minutes (48') west one hundred and thirty-six feet (136') to the point of intersection of the ' west line of Maryland Circle prolonged with the north line of Ninety-ninth Street prolonged;

Thence south eighty-eight degrees (88) six minutes (6') west six hundred feet (600') more or less, along the north line of Ninety-ninth Street to the point of intersection with the line of low-water mark of Hampton Hoads;

Thence in a general northerly and easterly direction following the meanders of the line of low-water mark of the waters of Hampton Hoads and Willoughby Bay to the southeast end of the spit of land at the mouth of Boush Creek;

Thence following the line of low-water mark of the main channel of Boush Creek to the point of beginning, which line of low-water mark on Boush Creek has approximately the following courses and distances: Beginning at the southeast end of said spit of land; thence north sixty-eight degrees (68) west one thousand eight hundred and forty feet (1,840') more or less; thence south thirty-nine degrees (39) west four hundred feet (400') more or less; thence south thirty-eight degrees (38) east one thousand and thirty feet (1,030'), more or less; thence south sixteen degrees (16) west six hundred and fifty feet (650'), more or less, to said point of beginning;

Containing in all four hundred and forty (440) acres, more or less;

Together with all riparian rights, privileges, easements, and other rights whatsoever appurtenant or appertaining in any way to said described tract of land in the waters lying between the low-water line of said tract and the bulkhead of Port Warden’s line to the west of said tract, as said line is now or may hereafter be established, and in the waters lying between the low-water line of said tract and a bulkhead or Port Warden’s line to the northerly and easterly of said tract, as said line may hereafter be established the *84said tract of land being shown in outline on the map or •drawing attached hereto and made a part of this proclamation.

The said land above described, together with all the aforesaid rights and privileges, appurtenant or appertaining thereto, is hereby declared to be, and the same is set aside for use for naval purposes and is placed under the exclusive control of the Secretary of the Navy, who is authorized and directed to take immediate possession thereof in accordance with the terms of said act on behalf of the United States for the purposes aforesaid.

The Secretary of the Navy is further authorized and directed to take such steps as may in his judgment be necessary for the purpose of conducting negotiations with the owners of property or rights whatsoever therein within the said tract of land for the purpose of ascertaining the just compensation to which said owners are entitled in order that payment therefor may be made in accordance with the provisions of the act aforesaid.

All persons residing within said tract of land or owning movable property therein are hereby notified to vacate the said tract of land and to remove therefrom all movable property prior to the first day of August, nineteen hundred and ■seventeen.

IN witNess whereoe, I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the city of Washington this twenty-eighth day of June in the year of our Lord one thousand nine hundred and seventeen and of the independence of the United States the one hundred and forty-first.

[seal.] Woodrow Wilson.

By the President:

Bobert Lansing,

*Secretary of State.*

(No. 1379)

X. In the month of December, 1917, defendant began the construction of a bulkhead across the land under lease to, and *upon*which plaintiffs had planted the oyster bed heretofore described, and inclosed therein 10¶& acres of the 26^-acre tract under lease to plaintiffs. The bulkhead was constructed by driving a row of timber piles, with sheet piling between, across the land and placing a timber cap thereon, and then filling the space between the line or *85row of piling, forming the bulkhead, and the shore line of the bay with material dredged from the bottom of the bay outside the bulkhead. The 10x% acres were converted into dry ground on a level with the adjoining land, and a considerable portion of that part of the 26x% acres lying outside of the bulkhead was covered to some depth with mud and sediment from the dredging operations, though it remained submerged and covered with water of varying depth.

XI. The construction of the bulkhead and filling in of the space between it and the original shore line of the bay was a part of the program for constructing and providing* a naval operating base at Sewall’s Point, Hampton Roads, Va., for the various uses of the United States Navy, including base for submarines, fitting out and landing field for air and sea planes, and other naval operations and purposes.

XII. Willoughby Bay was at the time in question a navigable body of water connected with Hampton Roads, and the construction of the bulkhead and the other work in connection therewith were done under detailed plans prepared and furnished by the Navy Department and after consultations with and the approval of the district engineer representing the War Department. A copy of said detailed plans was filed and introduced as evidence in the cause, marked *“*Government’s Exhibit No. *5-C-777*and 0-778,” and is made a part of this finding by reference.

XIII. The construction of the naval base, including building of the bulkhead and dredging and filling in the area between the bulkhead and the original shore line of the bay, was done under authority of the Secretary of War, a permit therefor having been duly issued by the War Department providing as follows:

PERMIT

Whereas, By section 10 of an act of Congress approved March 3, 1899, entitled “An act making appropriations for the construction, repair, and preservation of certain public works ón rivers and harbors, and for other purposes,” it is provided that it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, road-*86stead, haven, harbor, canal, navigable river, or other water of the United States outside established harbor lines or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill or in any manner to alter or modify the course, location, condition, or capacity of any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same:

AND wheeeas, Application has been made to the Secretary of War by the Navy Department, Bureau of Yards ana Docks, for authority to construct piers and bulkheads and to reclaim certain areas of land behind the bulkheads, at the Naval Operating Base, Sewall Point, Hampton Roads, Virginia, the plans for which have been recommended by the Chief of Engineers;

Now, therefore, This is to certify that the Secretary of War hereby authorizes the said work of pier and bulkhead construction and reclamation of land by filling in behind bulkheads, the general plans of which work are hereto attached, upon the following conditions:

1. That it is to be understood that this authority does not give any property rights either in real estate or material, or ■any exclusive privileges; and that it does not authorize any injury to private property or invasion of private rights, or any infringement of Federal, State, or local laws or regulations, nor does it obviate the necessity of obtaining *Statu assent*to the work authorized. It *merely expresses the assent of the Federal Government so far as concerns the public rights of navigation.*See *Cummings*v. Chicago, 188 U. S. 410.

2. That the work shall be subject to the supervision and approval of the Engineer officer of the United States Army in charge of the locality, who may temporarily suspend the work at any time if, in his judgment, the interests of navigation so requires.

3. That if any pipe, wire, or cable is herein authorized, it shall be placed and maintained with a clearance not less than that shown by the profile on the plan attached hereto.

4. That so far as any material is dredged in the prosecution of the work herein authorized it shall be removed, evenly and no large refuse piles shall be left. It shall be deposited to the satisfaction of the said Engineer officer and in accordance with his prior permission or instructions either on *87shore above high water or at such dumping ground as maybe designated by him, and where he may so require, within or behind a good and substantial bulkhead or bulkheads, such as will prevent escape of the material into the waterway; and so far as the pipe, wire, or cable is laid in a trench, the formation of permanent ridges across the bed of the waterway shall be avoided, and the back filling shall be so done as not to increase the cost of future dredging for navigation. If the material is to be deposited in the harbor of New York, or in its adjacent or tributary waters, or in Long Island Sound, a permit therefor must be previously obtained from the Supervisor of New York Harbor, Army Building, New York City.

5. That there shall be no unreasonable interference with navigation by the work herein authorized.

6. That if inspections or any other operations by the United States are necessary in the interests of navigation, all expenses connected therewith shall be borne by the permittee.

7. That the permittee assumes all responsibility for damages to the work or structure herein authorized, and for damage caused by it or by his work in connection therewith to passing vessels or other craft, and that he shall not attempt in any way to prevent free use by the public of the area at or adjacent to the work or structure.

8. That if future operations by the United States require an alteration, in the position of the structure of work herein authorized, or if, in the opinion of the Secretary of War, it shall cause unreasonable obstruction to the free navigation of said water, the permittee will be required, upon due notice from the Secretary of War, to remove or alter the structural work or obstructions caused thereby without expense to the United States so as to render navigation reasonably free, easy, and unobstructed; and if, upon the expiration or revocation of this permit, the structure, fill, excavation, or other modification or the watercourse hereby authorized shall not be completed, the permittee, at his own expense, and to such extent and in such time- and manner as the Secretary of War may require, shall remove all or any portion of the uncompleted structure of fill and restore to its former condition the navigable capacity of the watercourse. No claim shall be made against the United States on account of any such removal or alteration.

9: That if the display of lights and signals on any work hereby authorized is not otherwise provided for by law such lights and signals as may be prescribed by the Bureau of Lighthouses, Department of Commerce, shall be installed and maintained by and at the expense of the permittee.

*8810. That the permittee shall notify the said engineer officer at what time the work will be commenced, and as far in advance of the time of commencement as the said engineer-officer may specify, and shall also notify him promptly, in writing, of the commencement of work, suspension of work, if for a period of more than one week, resumption of work, and its completion.

11. That if the structure of work herein authorized is not completed and written notice of completion is not filed with the aforesaid engineer officer on or before the 31st day of December, 1920, this authorization, if not previously revoked or specifically extended, shall cease and be null and void.

12. That the officer of the Navy Department in immediate-charge of the work shall consult from time to time, during-construction, with the District Engineer, of the Engineer Department at Large, Norfolk, Virginia, and shall submit to the said District Engineer, plans in detail of The work before commencing any particular section thereof.

Witness my hand this 10th day of November, 1917.

Wm. M. INGRAHAM, *Assistant Secretary of War.*

Form No. 4.

W. D., J. A. G. O.

Ed. 1,000-1917.

XIV. As a part of the improvement connected with the construction of the naval base was the dredging of a 9-foot channel in Willoughby Bay just outside of and parallel with the bulkhead and extending across the tract of land under lease to and upon which plaintiffs had planted the-17,000 bushels of oysters. The dredging of this channel, in addition to acquiring material for filling in behind the bulkhead, was to enable light-draft vessels to reach various parts of the naval base.

XV. On February 11, 1918, the following notice was sent to J. W. Fulgham, the plaintiff in No. C-777, and at the-same time the plaintiffs in this action received a similar notice stating as follows:

“ Notice is hereby given you that there is a possibility of encroachment upon your oyster grounds during the course of development of this naval base by the Government. This notice is given that you may take such steps as you think necessary in the premises.

“A. O. Dillingham,

“ *Rear*Admiral, *TJ. 8. NP*

*89At the time this notice was sent Bear Admiral Dillingham was the officer in charge of construction work at the naval •base.

XVI. On July 20, 1920, after the work had actually been -completed or was in the process of completion, the Secretary of War acquiesced and consented to certain supplemental and modified plans for the construction of naval •operating base at Sewall’s Point, Hampton Boads, Virginia, and such acquiescence was evidenced by the' following supplemental permit:

FORM NO. 5

Whereas, By section 10 of an act of Congress, approved March 3, 1899, entitled “An act making appropriations for ■the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes,” it is provided that it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, road-stead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of War; and it shall not be lawful to excavate •or fill, or in any manner to alter or modify the course, location, condition, or capacity of any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same:

And whereas, the Navy Department, Bureau of Yards and Docks (by the Aide for Public Works, Fifth Naval District, Norfolk, Virginia), has requested authorization ■of revised plans covering the construction of piers and bulkheads and the reclamation of land behind the bulkheads, at the Naval Operating Base, Sewall Point, Hampton Boads, Virginia, authorized by War Department permit dated November 10, 1917, issued pursuant to the legislative provision above cited to be executed according to general plans thereto attached;

Now, therefore, This is to certify that the Secretary of War hereby authorizes the execution of the aforesaid work *90in accordance witb said revised plans, which are hereto attached, upon the following conditions:

1. That it is to be understood that this authority does not give any property rights, either in real estate or material, or any exclusive privileges, and that it does not authorize any injury to private property or invasion of private rights, or any infringement of Federal, State, or local laws or regulations, nor does it obviate the necessity of obtaining *State assent*to the work authorized. It merely expresses the assent of the Federal Government so far as concerns the public rights of navigation. See *Cwnmmgs*v. CMeago, 188 U. S. 410.

2. That the work shall be subject to the supervision and approval of the District Engineer, Engineer Department at Large, in charge of the locality, who may temporarily suspend the work at any time if, in his judgment, the interests of navigation so require.

3. That if the display of lights and signals on any work hereby authorized is not otherwise provided for by law, such lights and signals as may be prescribed by the Bureau of Lighthouses, Department of Commerce, shall be installed and maintained by and at the expense of the permittee.

4. That this authorization supersedes that issued to the said Navy Department, Bureau of Yards and Docks, dated November 10, 1911, to “ construct piers and bulkheads, and to reclaim certain areas of land behind the bulkheads, at the Naval Operating Base, Sewall Point, Hampton Hoads,. Virginia.”

IN WITNESS wheReof, The Chief of Engineers has hereunto set his hand this 16th day of July, 1920, and the Secretary of War on the 21st day of July 1920, the former in token that he has recommended the authorization of the aforesaid work by the Secretary of War in accordance with the revised plans hereto attached in accordance with the terms and conditions above recited.

Newton D. BakeR,

*Secretary of War.*

Lansing H. Beach,

*Major*General, *Chief of Engineers.*

XVII. The naval operating base consisted of a training station for training recruits for the Navy; supply depot for supplying ships; air stations from which seaplanes operate in conjunction with the fleet, and at which they may be overhauled, equipped, and fitted out; submarine base for berthing submarines and from which they may operate; receiving ■ barracks; together with the diverse facilities necessary for-*91equipping and supplying the Navy in all its activities and operations.

XVIII. At or. near the northwest corner of the area comprising the naval operating base is what is designated the- “ submarine base,” which, in connection with the channel leading thereto from the main channel of Hampton Roads,, was dredged to a depth of 25 feet to provide berthing space for submarine craft and to enable such craft to get to and from the main channel. The material dredged from this-area was deposited back of the bulkhead and formed part of the reclaimed land in question.

XIX. In a northeasterly direction from plaintiff’s oyster beds and adjacent thereto the dredging was done to a depth of 8 or 9 feet for the purpose of providing tacking space,, or taking-off and landing for seaplanes, which requires not less than 6 feet of water for taking-off and landing purposes. The material dredged from this area was also deposited back of the bulkhead. The land reclaimed by the building of the bulkhead was used as a landing field for land aeroplanes; the original plan shows that this reclaimed area was to be used for aviation; some hangars were built upon it for housing seaplanes; subsequently some permanent hangars were built within the bulkhead; a revolving platform was built there for the purpose of training naval-aviators to land on gun turrets; at the other end of the land within the bulkhead, storehouses were built to hold the-supplies for the submarine flotilla and in connection with the-submarine basin; the reclaimed area behind the bulkhead was used for the erection of an air station, an air landing field and submarine base, and partially for a supply base: The primary object and purpose in dredging the several-areas referred to was to increase the depth of water over such areas and to procure navigable waters for the various kinds of water craft that would enter, utilize, and depart from the naval base.

XX. The construction of the bulkhead and the dredging operations, together with filling in the area between the bulkhead and the original shore line of the bay, practically destroyed and rendered worthless for the purposes for which plaintiffs had leased and were using it, the entire tract of *9226^¡- acres of submerged land included in and by their lease.

XXI. The evidence of the value of the property in question, or, in other words, the extent of injury or damage done to plaintiffs’ oyster beds is conflicting, indefinite, and unsatisfactory. We have not been favored with facts showing the number of acres, or extent of the area, upon which the seed oysters had been planted, nor the yield or probable yield in quantity or value, annually or otherwise, of the oyster beds. The evidence presented is largely speculative and conjectural, unaccompanied by data or facts which might or would aid in forming an intelligent judgment of values or the extent of the injury done or damage sustained. It is shown by the opinions of witnesses that oyster lands in the vicinity of plaintiffs’ beds, meaning lands that have not been planted to oysters, were worth from $20 per acre to $100 per acre. It is also shown that the value of oysters planted on such oyster lands in the year 1916 was 45 to 50 cents per bushel in December, 1917, lying upon the bottom, or 60 to 65 cents per bushel dredged up, or taken from the beds, the expense of such dredging or taking being 15 cents per bushel.

XXII. If plaintiffs are to recover, measure of damages should be the value of their leasehold interest in and to the 26fV acres of oyster lands they had leased from the State of Virginia, plus the value of the oysters located and lying upon said lands, the sum and aggregate of which is ascertained to be $7,051.00.

XXIII. At the close of plaintiffs’ testimony, taken at Norfolk, Va., August 25 and 26, 1925, and in the presence of attorney for defendant, the following statement was made by plaintiffs’ attorney:

“For the purpose of the record it is stated that each of the claimants had filed a claim with the Secretary of the Navy, and has received no compensation whatever on account of said claim.”

No proof was offered in support of said statement.

The court were recover.

1

 Writ of certiorari denied.

*93Dowhey, Judge,

delivered the opinion of the court:

The plaintiffs were lessees of 26-130- acres of submerged land in Willoughby Bay, Virginia, off from the Jamestown Exposition site, which they had leased, under the laws of Virginia, for oyster culture and were using for that purpose.

By the act of June 15, 1917, Congress authorized the President to take over for the United States the possession and title of the tract of land known as the Jamestown Exposition site, on Hampton Roads, Virginia, with certain adjacent lands, “ including all easements, rights of way, riparian, and other rights appurtenant thereto,” etc., and the land was partially described as “ bounded on the north and west by Hampton Roads and Willoughby Bay.”

On June 28, 1917, the President issued his proclamation, set out in Finding IX, declaring it to be a military necessity to take possession of said land for the uses of the naval service of the United States, and taking possession thereof. In said proclamation the language of the act of Congress is followed in describing the property taken, but it is also described by metes and bounds. One course in the description is along the line of a named street to the point of intersection with the line of low-water mark of “ Hampton Roads ” from which the next course is “ in a general northerly and easterly direction following the meanders of the line of low-water mark of the waters of Hampton Roads and Willoughby Bay to ” a point where the line leaves these waters.

Thus the authority to take was limited to low-water mark, a boundary which is also important because under the laws of the State of Virginia riparian rights extended only to low-water mark. Submerged lands beyond that limit belonged to the State, and the rights which the plaintiffs acquired as lessees of the State were in such submerged lands.

In the development of a naval operating base upon and adjacent to the lands taken the defendant constructed a bulkhead which extended across plaintiffs’ leasehold at! ■ such point as to inclose within the bulkhead something over a third thereof. This portion was filled and converted into *94dry land by pumping in materials dredged from the outside in the dredging of channels and mooring places and was used as a part of the naval base, and in the dredging of a channel outside the bulkhead the portion of plaintiffs’ oyster beds outside the bulkhead was destroyed. Much of detail with reference to the work done, its jiurpose and effect, not necessary to repeat here, appears in the findings.

In connection with the construction of the bulkhead its exact location at this point in relation to low-water mark does not appear but, assuming plaintiffs’ oyster beds to have been properly located in submerged lands outside of low-water mark, the fact that the bulkhead cut off and inclosed a portion of the beds indicates that the bulkhead must have been built outside of low-water mark.

This being true it must also be true, as the facts found show, that the naval authorities who constructed the bulkhead did as a matter of fact take and use a part of plaintiffs’ oyster beds but it is not every such taking which imposes an obligation on the United States to pay. An essential element of a taking out of which there may arise the implied promise to pay upon which recovery is to be had in such cases, is authority to take. No officer of the United States can create an obligation against the United States to pay for property taken unless he had authority to take it. In the instant case the authority to take, emanating directly from Congress, was to take to low-water mark and this limitation properly and in more definite terms appears in the President’s proclamation. It can make no difference whether the naval authorities went beyond the prescribed limit through mistake or in flagrant exceeding of authority. The plaintiffs possessed no rights within the limits of the authorized taking.

But there is another principle upon which the defendant relies in justification of what was done and under which there is no liability to make compensation, and that is the dominant right of the sovereign to do whatever may be necessary, in navigable waters, for the improvement of navigation. There can be no doubt the plaintiffs’ rights in these submerged lands were subject to this dominant right of the *95sovereign without compensation. The only question is whether the United States, in doing what it did, was in the exercise of this dominant right.

This large tract of land embraced within the provisions of the act of Congress and the President’s proclamation was taken for the use of the Navy of the United States. The act specifically provided for compensation, and compensation was made not only for the fast lands, but for appurtenant riparian rights. To the full extent of the taking, the obligation to make compensation was thus discharged. The very purpose for which the land was taken indicates the necessity for contiguous waters and navigable waters. There can be no doubt, therefore, that the United States intended, first, to take property and pay for it, and second, to make it available for its intended purpose by exercising its right to improve the navigability of contiguous waters as might be necessary.

The right to improve navigation can not be limited to the light to provide necessary channels between fixed points, even commercially more than that is necessary. And to the full extent that determined necessity exists the right to supply the need also exists. In this instance it involved channels for passage, depth of water for docking and mooring, submarine basins, etc.

It is said by plaintiffs that “A taking for naval purposes is not for purposes of navigation.” This statement might, under some limitations, be true, but hardly so when the “ naval purposes ” directly involve navigation. It would be strange indeed if the sovereign might exercise its dominant right to provide necessary facilities for commercial vessels but could not provide any additional facilities made necessary for the use of naval vessels. If twenty-foot channels perchance served all necessary commercial purposes the dominant power had exhausted itself when they were supplied and deeper channels might not be provided for naval vessels. Or because commercial vessels need not dock at navy yards, facilities for naval vessels can not be supplied. And it is said that, “ Purposes of navigation implies a use for the public good ” from which it is argued that “ the im*96provement must be for a public use, in a public capacity, and not in a mere governmental capacity.” The distinction is rather difficult to comprehend and it is more difficult to comprehend that in the face of a great national emergency the furnishing of necessary facilities for the Navy is not for the common public good.

Again it is said that “ The Navy Department and the Secretary of the Navy were without authority to make an improvement for the purposes of navigation.” The argument is difficult to follow since the delegation of authority over navigable waters to the Secretary of War by Congress is recognized. But if the contention were well founded it could not serve the plaintiffs for it must result in the invoking of the well-established rule that unauthorized acts upon the part of its officers can impose on the United States no obligation to make compensation therefor. If plaintiffs were injured by such acts and they were in fact unauthorized their injuries resulted from a tort for which there is no redress in this court.

But we do not see proper basis for the contention that either the work in question was unauthorized or that it was not within the sovereign’s right to improve navigation. On the latter question the defendant has presented and discussed a number of the applicable authorities. We find it unnecessary to review them but cite the following: *Lewis Blue Point Oyster Co.*v. Briggs, 229 U. S. 82; *Rocky Point Oyster Co.*v. *Standard Oil Company of N. Y.,*265 Fed. 379; *Hardin*v. Jordan, 140 U. S. 371; *Scranton*v. Wheeler, 179 U. S. 141; *Greerdeaf Lumber Co.*v. Garrison, 237 U. S. 251; *Gibson*v. *United*States, 166 U. S. 269; *Tempel*v. *United*States, 248 U. S. 121.

We have concluded that the plaintiffs can not recover and that their petition must be dismissed.

Hat, *Judge;*Booth, *Judge;*and Campbell, *Chief Jus*tice, concur.

Graham, Judge, dissents.