The opinion of the court was delivered by: GOURLEY
Jurisdiction in this civil non-jury proceeding is based on a special act of Congress, Public Law 86-538, 74 Stat. 252.
Due to the factual and legal intricacies and complexities which existed, on stipulation of counsel and with the approval of the Court, the proceeding was tried solely as to liability.
The complexity is reflected by reference being made to the report of the Judiciary Committee of the House of Representatives in which the matter was most thoroughly considered and the involvements were such that it was the judgment of the House Judiciary Committee that the issues and differences should be resolved by the judicial rather than the legislative branch of the government.
Since 1898, the Borough of Ford City (hereinafter sometimes referred to as Borough) has owned and operated a sewage collection system. The system was operated with little or no difficulty until after 1928 when the United States completed construction of Lock and Dam No. 6, on the Allegheny River, about five miles downstream from Ford City. Since the construction of the lock and dam, Ford City has had continuous difficulty, to a substantial degree, with the sewage system. This action is brought to recover damages to the sewage system resulting from the construction, by the United States, of Lock and Dam No. 6, on the Allegheny River.
The questions presented are (1) whether the ordinary high-water mark was raised by the government in connection with the construction on the Allegheny River of Lock and Dam No. 6; (2) if so, whether it was raised to a point about at or above that of the elevation of portions of the sewage system of the Borough; and (3) whether the normal pool level of the river was raised to an elevation above that of the pre-dam ordinary high-water mark.
It is the considered judgment of the Court that each of said questions should be answered in the affirmative.
DISCUSSION OF APPLICABLE LEGAL PRINCIPLES
The Fifth Amendment to the Constitution requires payment of just compensation for a taking of private property for public use. The Borough sewage system is clearly 'property.' While there may be no property right to discharge sewage into the river, Commonwealth v. Emmers, 221 Pa. 298, 70 A. 762 (1908), a question which we do not at this time decide, at best, acceptance of this argument would only affect the amount of damages to be received, and not the right to receive damages.
The navigational servitude of the federal government allows it to appropriate, without compensation, when exercising the power of the government to control and regulate navigable waters in the interest of commerce. United States v. Virginia Electric & Power Co., 365 U.S. 624, 627-628, 81 S. Ct. 784, 5 L. Ed. 2d 838 (1961). The dominant power of the federal government extends to the entire bed of the stream, which includes the lands below ordinary high-water mark. United States v. Virginia Electric & Power Co., supra; United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S. Ct. 885, 94 L. Ed. 1277 (1950); United States v. Chicago, M., St. P. & Pac. R.R., 312 U.S. 592, 61 S. Ct. 772, 85 L. Ed. 1064 (1941). The exercise of the power below the ordinary high-water mark, or within the bed of the stream, is not an invasion of any private property right in such lands for which the United States must pay compensation. Ibid.
Thus, it seems to be well settled that, under the Commerce Clause, United States Constitution, Article 1, Section 8, Clause 3, the United States has the power to improve its navigable waters in the interest of navigation without liability for damages resulting to private property within the bed of the navigable stream. United States v. Kansas City Life Ins. Co., supra.
The ordinary high-water mark is the line which separates fast lands from the river bed. United States v. Kansas City Life Ins. Co., supra; see United States v. Virginia Electric & Power Co., supra; United States v. Twin City Power Co., 350 U.S. 222, 76 S. Ct. 259, 100 L. Ed. 240 (1956). The bed of a river is 'that portion of its soil which is alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn.' United States v. Chicago, M., St. P. & Pac. R.R., 312 U.S. 592, 596, 61 S. Ct. 772, 85 L. Ed. 1064 (1941); Alabama v. Georgia, 64 U.S. (23 How.) 505, 515, 16 L. Ed. 556 (1859). This river bed is also the 'land upon which the action of the water has been so constant as to destroy vegetation. It does not extend to nor include the soil upon which grasses, shrubs and trees grow.' United States v. Chicago, B. & Q.R. Co., 90 F.2d 161, 170 (7th Cir.), cert. denied, 302 U.S. 714, 58 S. Ct. 33, 82 L. Ed. 551 (1937); see Oklahoma v. Texas, 260 U.S. 606, 632, 43 S. Ct. 221, 67 L. Ed. 428 (1923).
Even if the questions presented as to the raising of the ordinary high-water mark and the normal pool level are answered in the affirmative and the government is deemed to have exceeded its navigational servitude or privilege, plaintiff cannot recover if the value, or monetary worth, of its sewage system is attributable solely to the flow of the stream and to the riparian location. See United States v. Virginia Electric & Power Co., supra; United States v. Twin City Power Co., 350 U.S. 222, 76 S. Ct. 259, 100 L. Ed. 240 (1956). When the United States utilizes or regulates 'the flow of the water of a navigable stream there is no 'taking' of 'property' in the sense of the Fifth Amendment because the United States has a superior navigation easement which precludes private ownership of the water or its flow.' United States v. Grand River Dam Authority, 363 U.S. 229, 231-232, 80 S. Ct. 1134, 4 L. Ed. 2d 1186 (1960).
The rule that the United States may improve its navigable waters in the interest of navigation without liability for damages resulting to private property within the bed of the navigable stream would unquestionably have application to the situation where the United States constructs a dam in the interest of improving the navigable stream, and damage resulting from the construction would constitute an invasion of the property rights of the Borough only if the construction of the dam raises the ordinary high-water mark beyond that which existed prior to the construction of the dam or the normal pool level beyond the pre-dam ordinary high-water mark. United States v. Kansas City Life Ins. Co., supra.
So, when the federal government improves navigable streams by means of locks and dams in the interest of navigation and thereby raises the ordinary high-water mark of the navigable stream or the normal pool level beyond the pre-dam ordinary high-water mark, and private property is damaged in whole or in part, said taking on the part of the government is in subordination to the Fifth Amendment and subject to the responsibility of the government for damages that are sustained as a proximate result thereof. See United States v. Virginia Electric & Power Co., supra; United States v. Cress, 243 U.S. 316, 37 S. Ct. 380, 61 L. Ed. 746 (1917).
In short, the United States is liable for the destruction of the property owner's rights where the destruction is caused by raising the ordinary high-water mark of the navigable stream or the normal pool level beyond the pre-dam ordinary high-water mark, even though the ordinary high-water mark or normal pool level was raised in the interest of navigation or in pursuance of improving a navigable stream. United States v. Kansas City Life Ins. Co., supra. Furthermore, if the navigational servitude is exercised above the ordinary high-water mark, beyond the bed of the river, it is irrelevant that damage might have been ...