neches-river-conservation-district-v-brigadier-general-l-e-seeman , 252 F.2d 327 ( 1958 )

252 F.2d 327

NECHES RIVER CONSERVATION DISTRICT, Appellant,
v.
Brigadier General L. E. SEEMAN, Division Engineer, Southwest
Division, Corps of Engineers, United States Army, and
Colonel Harry O. Fischer, District Engineer, Fort Worth
District, Corps of Engineers, United States Army, Appellees.

No. 16661.

United States Court of Appeals Fifth Circuit.

Feb. 13, 1958, Rehearing Denied March 27, 1958.

J. Chrys Dougherty, Thomas G. Gee, Austin, Tex., for appellant.

Ireland Graves, John W. Stayton, Robert J. Hearon, Jr., Austin, Tex., for appellant.

John C. Ford, Asst. U.S. Atty., Dallas, Tex., Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, Fred W. Smith, Alfred H. O. Boudreau, Jr., Attys., Dept. of Justice, Washington, D.C., Heard L. Floore, U.S. Atty., Ft. Worth, Tex., David R. Warner, Atty., Dept. of Justice, Washington, D.C., for appellees.

Will Wilson, Atty. Gen. of Texas, James N. Ludlum, First Asst. Atty. Ge., James W. Wilson, Asst. Atty. Gen., for Texas State Board of Water Engineers, amicus curiae.

Before HUTCHESON, Chief Judge, TUTTLE, Circuit Judge, and HANNAY, District Judge.

TUTTLE, Circuit Judge.

1

This is an appeal from an order of the trial court dismissing a suit by the appellant seeking to enjoin the building of a dam and reservoir on the Angelina River in Texas, and is a companion case with Anderson v. Seeman, 5 Cir., 252 F.2d 321.

2

The appellant, plaintiff below, not attacking the constitutionality of the Rivers and Harbors Act of 1945, 50 Stat. 10, as it related to this particular dam, charges only that that Act, correctly construed, forbids the United States Government to build the dam without first obtaining permission from the Texas Board of Water Engineers.

3

We have dealt fully with this contention also made by the individual landowners who were the plaintiffs in the companion suit. Having determined that issue against the contention of the appellant here, we need not consider the other interesting and somewhat troublesome grounds for affirming the judgment of the trial court urged upon us by the Government, i.e. (1) The plaintiff has failed to allege such injury as would entitle it to an injunction, and (2) The complaint fails to show any right in plaintiff to assert on behalf of the State of Texas any claim that the rights of the State will be invaded by the proposed construction.

4

Deciding, as we do, that the law authorizing the construction of this dam cannot be construed as requiring the permission of the State before it is built, we must agree with the trial court that the complaint fails to assert a claim on which relief could be granted.

5

The judgment is affirmed.