1996 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
 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.