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United States v. Robertson Terminal Warehouse

September 3, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ROBERTSON TERMINAL WAREHOUSE, INC., ET AL., DEFENDANTS.
UNITED STATES OF AMERICA, PLAINTIFF,
v.
HERBERT BRYANT, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

This action was filed by the United States to quiet title to lands along the Potomac River waterfront in Alexandria, Virginia. The United States asserts that it has title to all land--both submerged and fast*fn1 --east of the January 24, 1791, high water mark ("1791 mark") on the Virginia side of the Potomac River and seeks a declaration from this court that it is the owner of, and entitled to possess, this land. The United States has named numerous holders of record title*fn2 as defendants, including Old Dominion Boat Club ("Old Dominion"). Old Dominion holds record title to two tracts of land in the disputed area known as the North and South Tracts. Asserting that it has the right to possess the fast land on these tracts, even if this fast land is east of the 1791 mark,*fn3 Old Dominion moves for summary judgment. Upon consideration of the motion, the opposition thereto, the parties' supplemental briefing, and the record of this case, the court concludes that Old Dominion's motion must be granted in part and denied in part.

I. BACKGROUND

To understand the United States' title claim, some historical background is necessary. Before the American Revolution, the King of England granted Lord Baltimore all land within what is now the state of Maryland, including the bed of the Potomac River to the high water mark on the Virginia shore.*fn4 After the American Revolution, all of Lord Baltimore's land and title thereto, including the bed of the Potomac River, passed to the state of Maryland. Morris v. United States, 174 U.S. 196, 225-30 (1899). In 1791, Maryland ceded land to the United States for the District of Columbia. Id. at 230. This cession included the bed of the Potomac River to the high water mark on the Virginia shore.*fn5 Accordingly, the bed of the Potomac River to the high water mark on the Virginia shore has been part of the District of Columbia since 1791. United States v. Herbert Bryant, 543 F.2d 299, 302 (D.C. Cir. 1976) ("Any land, either submerged or fast, on the District of Columbia side of the 1791 high-water mark remained in the District of Columbia since it was part of the 24 January 1791 Maryland cession to the United States.").

Since 1791, owners of waterfront property on the Virginia side of the Potomac River have added fast land to their properties by laying fill and constructing wharves on its bed. Id. at 300-01 (noting that land at issue consists of submerged and artificially created fast land); Pl.'s Opp'n Ex. 4 ("Report on Survey of Deeds and Related Materials" by Dr. John H. Moore, demonstrating that significant portion of fast land on Alexandria waterfront is man-made). Fill consists of material artificially placed on the bed of the river to raise the bed of the river and create new fast land. Wharves are solid or open pile structures that are parallel or perpendicular to a riverbank.*fn6

The United States contends that these additions were built on top of land to which the United States has title--the bed of the Potomac River east of the 1791 mark.*fn7 The United States contends that, as a result, it has title to all of these additions.

II. ANALYSIS

Old Dominion moves for summary judgment, asserting that it has the right to possess all the fast land on the North and South Tracts, even if this land is east of the 1791 mark.*fn8 While recognizing that the United States holds title to the bed of the Potomac River to the 1791 mark, Old Dominion nevertheless asserts that it is entitled to possess the fast land on the North and South Tracts. Old Dominion makes several arguments in support of its position.

First, Old Dominion asserts that the United States holds only trust title to the bed of the Potomac River, rather than fee title. According to Old Dominion, the United States holds this land pursuant to two forms of trust: (1) a trust for the public purposes of navigation and fishery, and (2) a trust for future states. Old Dominion contends that the trust title of the United States is extinguished when the bed of the Potomac River is no longer navigable and that the construction of wharves and fill on the North and South Tracts rendered the bed of the river underneath these structures unnavigable. When the bed of the Potomac River is rendered unnavigable, Old Dominion asserts, title to the unnavigable portions reverts to the holder of record title, here Old Dominion.

Second, Old Dominion asserts that it has title to the fast land on the North and South Tracts pursuant to the doctrine of accretion. The doctrine of accretion provides that riparian owners*fn9 have title to land deposited on their property due to the action of the adjoining body of water. For example, a river's current may deposit sediment on a riparian owner's property. Old Dominion asserts that, even though the fast land on the North and South Tracts may not have been created as a result of action by the Potomac River's waters, the doctrine of accretion is broad enough to grant Old Dominion title to this fast land.

Third, Old Dominion argues that, even if it does not have title to fast land east of the 1791 mark, riparian owners have the right to lay fill and construct wharves on the beds of navigable waters appurtenant to their properties, even if they do not have title to the underlying beds. Old Dominion asserts that it is a riparian owner of property because it has title to land appurtenant to the Potomac River. Accordingly, Old Dominion maintains that, even though the United States may have title to the bed of the Potomac River, Old Dominion has a right to lay fill and construct wharves on top of the bed of the Potomac River, as well as a right to possess these structures. Old Dominion contends that, while it has a right to lay fill and construct wharves, this right is a qualified right because it is subject to the United States' authority to regulate navigation on the Potomac River. Such regulation, Old Dominion argues, is accomplished through harbor lines established by the Army Corp of Engineers.*fn10 Old Dominion asserts that, so long as fill and wharves are within harbor lines, it has the right to possess these structures. Old Dominion contends that all fill and wharves on the North and South Tracts are within all relevant harbor lines.

Fourth, Old Dominion argues that the United States' action is barred by various equitable defenses. With respect to such defenses, Old Dominion contends that the instant action is defeated by the doctrine of laches and principles of estoppel. Old Dominion further contends that the United States' action is barred because Congress has ratified (i.e. approved) of the existence of privately-owned fill and wharves on the Alexandria waterfront.

Old Dominion lastly argues that it is a bona fide purchaser of land on the Alexandria waterfront. As a result, Old Dominion argues, the United States cannot assert title to this land.

The United States rejoins that Old Dominion does not have title to fast land east of the 1791 mark because the United States has fee simple title to this land. Because it has fee simple title, the United States contends that Old Dominion cannot acquire title to this land absent an express grant from Congress.

The United States next argues that Old Dominion does not have a right to lay fill or construct wharves on the bed of the Potomac River. The United States asserts that riparian rights within the District of Columbia are governed by Maryland law as it existed in 1801. Under this law, the United States asserts, absent explicit statutory authorization, riparian owners have no right to lay fill or construct wharves on the bed of the Potomac River. The United States further maintains that, even if Old Dominion has a right to lay fill and construct wharves, this right is--as Old Dominion concedes--a qualified right that is subject to regulation by the United States. The United States agrees with Old Dominion that, to the extent riparian owners have the right to lay fill and construct wharves, riparian owners can do so only shoreward of harbor lines established by the Army Corp of Engineers. The United States contends that there is some land on Old Dominion's South Tract that falls outside (i.e. riverward) of the applicable harbor lines. The United States also argues that, to the extent riparian owners can lay fill and construct wharves, they can do so only if the public has access to these structures. The United States asserts that because Old Dominion has used the North and South Tracts solely for private purposes, Old Dominion's use of this land is improper.

Lastly, and predictably, the United States asserts that none of the equitable defenses raised by Old Dominion have merit.

A. Nature of the United States' Title to the Bed of the Potomac River

Old Dominion recognizes that the United States has title to the bed of the Potomac River, but asserts that the United States holds only "trust title." Old Dominion contends that the United States holds title to the bed of the Potomac River pursuant to two forms of trust: (1) a trust for navigation and fishery, and (2) a trust for future states. Old Dominion argues that this trust title is extinguished whenever the Potomac River is no longer navigable due to the construction of fast lands, and that title reverts to the holder of record title, here, Old Dominion.

The United States rejoins that it has fee simple title, not trust title, to the bed of the Potomac River. The United States asserts that, as holder of fee simple title, it has full control over the bed of the Potomac River. The United States contends that, as a result, its title to the bed of the Potomac River is not extinguished when fast lands are constructed on top.

Neither party is correct. The United States holds fee title, not just trust title, to the bed of the Potomac River. The term "fee simple" does not adequately describe the nature of the United States' title, however. The United States' fee title in the bed of the Potomac River is subject to a public trust for navigation and fishery, and the United States cannot use or dispose of the bed of the Potomac River in such a way that would interfere with this trust.

1. The English Common Law Basis for the United States' Title

The nature of the United States' title in the bed of the Potomac River has its origins in English common law. Prior to the American Revolution, the King of England held fee title to all the navigable waters in the American territories, and this fee title was known as the "jus privatum." Shively v. Bowlby, 152 U.S. 1, 11-13 (1894); Martin v. Waddell, 41 U.S. 367, 409-10 (1842). This fee title was subject to a public right of navigation and fishery, known as the "jus publicum." Shively, 152 U.S. at 11-13; Martin, 41 U.S. at 411-12; Boone v. United States, 944 F.2d 1489, 1494, n.10 (9th Cir. 1991) (stating that the jus publicum is "the sovereign's right to jurisdiction and control over navigable waters for the benefit of the public"). Althoughthe King was empowered to convey the fee title/jus privatum to others, this title was always subject to the public right of navigation and fishery/jus publicum. Martin, 41 U.S. at 409-10. In other words, despite having fee title to the bed of navigable waters, neither the King nor those to whom the King granted title could interfere with the public right of navigation and fishery on these waters.

As described supra, before the American Revolution, the King of England granted Lord Baltimore fee title to the area now known as the state of Maryland. This grant included title to the bed of the Potomac River to the high water mark on the Virginia shore. Morris, 174 U.S. at 225-30. Accordingly, Lord Baltimore was vested with both the jus privatum and jus publicum in the bed of the Potomac River. Id. at 12; Shively, 152 U.S. at 11-13. After the American Revolution, Lord Baltimore's land passed to the state of Maryland. Morris, 174 U.S. at 225-30. Thus, the state of Maryland held the jus privatum in the Potomac River, subject to the jus publicum. In 1791, Maryland ceded title to the bed of the Potomac River, within the boundaries of the District of Columbia, to the United States. As a result of Maryland's cession, the United States now holds the jus privatum in the bed of the Potomac River to the 1791 mark, subject to the jus publicum.

2. The United States Has Fee Title in the Bed of the Potomac River, Subject to A Trust for the Public Right of Navigation and Fishery

As holder of the jus privatum, the United States has fee title to the bed of the Potomac River. The United States contends that the nature of this fee title is similar to the nature of fee simple title held by individuals who hold estates in lands. The United States is incorrect. Unlike such individuals, the United States does not have full discretion regarding the use of the Potomac River. See Coxe v. State, 39 N.E. 400, 405 (N.Y. 1895) ("The title of the state to the . . . shores of tidal rivers is different from the fee simple which an individual holds to an estate in lands."). The United States cannot use the Potomac River in such a manner that would interfere with the jus publicum--the public right of fishery and navigation in the Potomac River. Shively, 152 U.S. at 48-50. In other words, while the United States has fee title to the bed of the Potomac River, the United States also holds this title subject to a trust for the public right of navigation and fishery. See Smith v. Maryland, 59 U.S. 71, 74 (1855) ("this soil is held by the state, not only subject to, but in some sense in trust for, the enjoyment of certain public rights."); Marine Ry & Coal Co. v. United States, 265 F. 437, 441 (D.C. Cir. 1920) (stating that title to the bed of the Potomac River is in the United States and that this title "is held in trust for the nation and subject to public uses").

Old Dominion argues that the United States holds the bed of the Potomac River solely in trust for the public right of navigation and fishery. While the premise of Old Dominion's argument is unclear, it appears that Old Dominion ignores the fact that the United States holds fee title in the bed of the River. Old Dominion appears to assert that the United States holds the bed of the Potomac River solely for the purpose of protecting the public right of navigation and fishery. Old Dominion contends that this trust title is eliminated whenever fast lands render the Potomac River unnavigable.

Old Dominion provides no authority to support the proposition that the United States holds the bed of the Potomac River solely in trust for purposes of protecting the public right of navigation and fishery. Neither does Old Dominion provide any authority to support the proposition that the United States' trust title drops out whenever fast lands are constructed on top of the bed of the Potomac River. As discussed supra,the United States holds the bed of the Potomac River in fee title, subject to a publictrust for navigation and fishery. The fact that the United States' fee title is subject to this trust neither diminishes nor alters the fact that the United States holds fee title to the bed of the River. Accordingly, the United States has fee title to the bed of the Potomac River regardless of whether fast lands are constructed on top of its bed.

3. The United States Does Not Hold the Bed of the Potomac River Solely in Trust for Future States

Old Dominion also argues that the bed of the Potomac River within the District of Columbia is held solely in trust for a future state, and that this trust title is extinguished whenever fast lands are constructed on top of the bed of the River. According to Old Dominion, the bed of the Potomac River is held in trust because: (1) the United States may retrocede land to Maryland, including the bed of the Potomac River, and/or (2) the District of Columbia may one day become a state.

Old Dominion's argument is without merit. Again, Old Dominion provides no authority to support the proposition that the United States' title is extinguished whenever fast lands are constructed on top of the bed of the Potomac River. Furthermore, in support of its argument that the United States holds the bed of the Potomac River solely in trust for future states, Old Dominion relies on, and misreads, Pollard's Lessee v. Hagan, 44 U.S. 212 (1845). Pollard's Lessee states that the United States holds the beds of navigable waters in territories in trust for future states, and that when these future states are formed, these states obtain full title to this land. 44 U.S. at 221-23, 230. This finding was premised on the fact that the United States has "no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a state or elsewhere, except in the cases in which it is expressly granted." Id. at 223 (emphasis added).

What Old Dominion ignores is that Pollard's Lessee makes clear that the District of Columbia is a territory in which the United States is expressly granted the power to exercise municipal jurisdiction and sovereignty. Id. at 223. Pollard's Lessee states that "[b]y the 16th clause of the 8th section of the 1st article of the Constitution, power is given to Congress 'to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may . . . become the seat of government of the United States." Id. As a result, "[w]ithin the District of Columbia . . . the national and municipal powers of government, of every description, are united in the government of the union.'" ...


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