The opinion of the court was delivered by: MARSH
In this case plaintiff seeks injunctive relief against the defendant. The case was tried to the court without a jury. The court makes the following findings of fact, conclusions of law and decree:
1. The Allegheny River is and was during all times here material a navigable stream of the United States, which flows into the Ohio River in the Commonwealth of Pennsylvania, and the existing system of eight locks and dams on the Allegheny River affords slack water navigation from Pittsburgh, Pennsylvania, to above East Brady, Pennsylvania, a distance of about 72 miles, and its waters are used for navigation by towboats, pleasure craft and other vessels.
Motor boats up to 40 feet in length dock at Rexhide Rubber Company on the opposite side of the river from the defendant's former stripping operation.
Pleasure craft can and do navigate the river at Mile Post 68.5 and upstream to at least Mile Post 72 at East Brady.
At Mile Post 68.5 the river is approximately 1000 feet wide (Government Exhibit 32).
There is a commercial dock supplying gasoline to these craft at Mile Post 69.
2. The defendant, M. H. Bigan, has been engaged in the business of stripping coal since 1943, and about June 1, 1956, began an operation to strip coal owned by Edward Dewey by the open pit method on the right side of the Allegheny River facing downstream at a distance of approximately 68.5 Miles above Pittsburgh, Pennsylvania, within this judicial district. The stripping operation was on top of a wooded hill adjacent to the Allegheny River.
3. The coal seam was at an elevation approximately 500 feet higher than the bed of the river, and from high water mark, following the slope of the hill to the adjacent edge of the coal vein, approximately one-fourth of a mile.
4. The Commonwealth of Pennsylvania owned the land overlying the coal which defendant was stripping; the side of the hill adjacent to the river above high-water mark was owned by parties other than the defendant.
5. In removing the overburden on the river side of the project, the defendant deposited the said overburden on an abandoned mine road which was variously estimated by defendant's witnesses as being between 35 and 100 feet below the brow of the hill. This road was about 100 feet wide and paralleled the river for some distance. Other than the aforesaid road, there was nothing except trees and underbrush to prevent the overburden from falling down the hillside, and, if in sufficient quantity, into the river itself.
7. Acting on the telephone call, Regis C. Dean, a navigation inspector, on July 25, 1956, proceeded up to a point on the river opposite the defendant's stripping operation and observed directly below said operation two swaths barren of trees, and at the base of each swath a pile of earth and stones closely adjacent to the river below the stripping operation. He proceeded to the operation itself and observed that large quantities of material had been deposited on the top of the hill. He talked with defendant's superintendent, Schmidt, and advised him it was unlawful to dump into the river, and gave him a copy of §§ 13 and 16 of the Rivers and Harbors Act of 1899, 33 U.S.C.A. §§ 407, 411. He further observed that a bar extended out into the river about 50 feet directly below the stripping operation and extending out from the upstream pile of debris at the bottom of the hill. This bar consisted of stone, earth, trees and limbs of trees. He inspected the operation again on August 16, 1956 and observed that the stripping equipment had been moved off, and the top of the hill leveled, but the condition at the bottom of the hill had not changed, and the bar remained in the river.
8. A cloudburst occurred on or about June 22, 1956, which was the worst in the area since 1910; it encompassed the area of the stripping operation. The water from this cloudburst caused considerable quantities of the excavated overburden deposited by defendant on the aforesaid mine road to move toward the river. This movement of the overburden displaced some ground on the hillside and uprooted the trees in its path and pushed same toward the river.
The two piles at the bottom of the hill closely adjacent to the river were formed by stones which fell down the hillside from shovel action, by excavated overburden, and by earth and trees from the hillside which moved down as a result of the cloudburst.
The bar in the river was formed by stones, earth and trees; all of the trees in the river came from the hillside and the trees and some earth from the hillside were pushed into the river by the force of the descending excavated overburden. From the evidence we find as a fact that some of the stones and earth from the excavated overburden were included in the material forming the bar in the river.
9. The bar aforesaid has existed in the river since July 25, 1956 to about one week prior to trial and probably still exists.
10. The report of the District Engineer (Exhibit 33) that the obstruction constitutes a hazard to navigation and affects adversely the navigability of the Allegheny River was not shown to be arbitrary or capricious.
11. The acts of the defendant resulting in the piles on the bank and the bar in the river were performed without the consent of Congress and without the consent, approval or permission of the Secretary of the Army of the United ...