City of Philadelphia v. Standard Oil Co. of Pennsylvania , 79 F.2d 764 ( 1935 )

THOMPSON, Circuit Judge.

The appellant is a city of the first class of the commonwealth of Pennsylvania. The appellee is a Delaware corporation which owns riparian rights along the Schuylkill river, a navigable stream partly within the appellant’s corporate limits. Cities of the first class are authorized by the Pennsylvania Act of July 22, 1913, P. L. 911 (53 PS Pa. § 4351), to construct retaining structures or bulkheads along the banks of navigable streams within their corporate limits for the purpose of protecting the channel of the stream. The act imposes the duty upon any riparian owner, who uses the “retaining structure for the purpose of constructing, extending, altering, improving or repairing, any wharf, or other building in the nature of a wharf, or other harbor structure, or for other wharf purposes,” to pay the appellant for the part used. The appellant built bulkheads along the banks of the Schuylkill river, under authority of the Pennsylvania Act of 1913, supra. The appellee constructed two wharves, one 60 feet and the other 35 feet 8 inches in length, and physically incorporated in that construction a part of the bulkheads. In addition, the appellee dredged the channel of the river for at least 895 feet 10 inches to a sufficient depth outside its northerly wharf to float vessels having a draught of 12 feet and outside its southerly wharf, to a sufficient depth to float vessels having a draught of 30 feet, and constructed ten dolphins in front of the bulkheads, thus forming a basin for its steamers. The appellee tendered $11,249.22 in payment for the use it had made of 95 feet 8 inches of the bulkheads in the construction of the two wharves, hut refused to pay the appellant for the alleged use of the bulkheads in the construction of the steamer basin, on the grounds that the act was unconstitutional if construed so as to require an individual to pay for a public improvement, and that neither the dredging of the river bottom, nor the placing therein of the dolphins or buoys for mooring its vessels to form its ship basin came within any of the purposes set out in the act imposing liability upon riparian owners. The appellant brought an action in assumpsit to recover $79,907.89. By stipulation of the parties, the case was tried by the court without the intervention of a jury. The court entered judgment for the appellant for the amount admitted to be due. This appeal is from the denial of judgment for the full amount claimed.

The court held the act to be constitutional, but found on the facts that the appellee was not liable to reimburse the appellant for more than the portion of the bulkheads used in the construction of the two wharves. It found that the appellee had not physically incorporated the bulkheads in the construction of its steamer basin; that the appellee had made some use of the bulkheads, but that the use was not such as to entitle the appellant to be reimbursed under the strict wording of the act, since the steamer basin was not a “wharf, or other building in the nature of a wharf, or other harbor structure,” nor was the use for a steamer basin included in the phrase “for other wharf purposes.”

In view of the waiver of jury trial, the facts as found by the judge have the same effect as though found by a jury. 28 USCA § 773. On the facts as found, we are of the opinion that the court did not err in concluding that the use made by the appellee of the bulkheads in the construction and maintenance of its steamer basin was not within the terms of the act, and that the act did not render the appellee liable for payment for the use of so much of the bulkheads as was not applied to the construction of its two wharves. The District Court, in a careful and painstaking opinion, has analyzed clearly, and discussed fully, all the issues involved. We find no reversible error in its findings of fact or conclusions of law.

The judgment of the court below is affirmed.