United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940)

MR. JUSTICE ROBERTS, dissenting.

The judgment of reversal rests on the conclusion that New River is navigable -- a conclusion resting on findings of fact, made here de novo, and in contradiction of the concurrent findings of the two courts below. I am of opinion that the judgment of the Circuit Court of Appeals should be affirmed, first, because this court ought to respect and give effect to such concurrent findings which have substantial support in the evidence; secondly, because the evidence will not support contrary findings if the navigability of New River be tested by criteria long established.

1. A river is navigable in law if it is navigable in fact.{1} Indeed, the issue of navigability vel non is so peculiarly one of fact that a determination as to one stream can have little relevancy in determining the status of another. As this court has said, "each determination as to navigability must stand on its own facts."{2}

The evidence supports -- indeed, I think it requires -- a finding that, applying accepted criteria, New River is not, and never has been, in fact navigable. On this record, the rule of decision, many times announced by this Court, that the concurrent findings of fact of two lower courts, if supported by substantial evidence, will be accepted here, requires affirmance of the judgment. The rule applies not only to evidentiary facts, but to conclusions of fact based thereon. Moreover, it has been the basis of this court’s decision in a suit involving the question of navigability. Invoking the rule, this court, in Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 86, declined to review a judgment based on a concurrent finding of two lower courts that a stream "was not, and had never been, navigable within the adjudged meaning of that term."

The cases cited for the proposition that, where navigability was an issue, this court has reconsidered the facts found by the courts below to determine whether they have correctly applied the proper legal tests do not, when the questions involved are understood, lend support to the action of the court in this case.{3}

The petitioner, in effect, asks this court to convict the courts below of error in determining the credibility, weight, and relevance of the evidence. But that determination is peculiarly within their province, as this Court has often said. The doctrine applies in this case with especial force. The respondent says, without contradiction, that the Government, in its brief in the Circuit Court, stated: "It cannot be said that the New River presents a `clear case’ of navigability or non-navigability. . . ." Yet this court is asked to ignore concurrent findings on the subject.

If the evidence may fairly support these findings, the courts below can be convicted of error only in applying an erroneous rule of law to the facts found.

Examination of the opinions below shows that the courts faithfully followed the decisions of this court in applying the law to the facts. They adopted the definition{4} and applied the criteria this Court has announced in appraising the effect of the facts found.

As shown by the cases cited in the margin,{5} a stream, to be navigable in fact, must have "a capacity for general and common usefulness for purposes of trade and commerce." Exceptional use or capability of use at high water or under other abnormal conditions will not suffice. Moreover, the stream must be used, or available to use, "for commerce of a substantial and permanent character." Where the stream

has never been impressed with the character of navigability by past use in commerce, . . . commerce actually in esse or at least in posse is essential to navigability,

and "a theoretical or potential navigability, or one that is temporary, precarious, and unprofitable, is not sufficient." The most important criterion by which to ascertain the navigability of a stream is that navigability in fact must exist under "natural and ordinary conditions." Application of these tests by the court below to the evidence in the case led to but one conclusion -- that New River has not been, and is not now, a navigable water of the United States. If the findings below had been the other way, the Government would be here strenuously contending that they could not be set aside, as it successfully did in Brewer-Elliott Oil & Gas Co. v. United States, supra.

2. The petitioner contends that the application of the accepted tests to the facts disclosed amounts to a ruling of law, and asserts that error in their application is reviewable. As I read the court’s opinion, the argument is not found persuasive. While apparently endorsing it in the abstract, the court, instead of relying on it, adopts two additional tests in the teeth of the uniform current of authority. If anything has been settled by our decisions, it is that, in order for a water to be found navigable, navigability in fact must exist under "natural and ordinary conditions." This means all conditions, including a multiplicity of obstacles, falls, and rapids which make navigation a practical impossibility. The court now, however, announces that "natural and ordinary conditions" refers only to volume of water, gradients, and regularity of flow. No authority is cited, and I believe none can be found for thus limiting the connotation of the phrase. But, further, the court holds, contrary to all that has heretofore been said on the subject, that the natural and ordinary condition of the stream, however impassable it may be without improvement, means that if, by "reasonable" improvement, the stream may be rendered navigable, then it is navigable without such improvement; that "there must be a balance between cost and need at a time when the improvement would be useful." No authority is cited, and I think none can be cited which countenances any such test. It is, of course, true that, if a stream in its natural and ordinary condition is navigable, it does not cease to be so because improvements have bettered the conditions of navigation.{6} But the converse is not true -- that, where a stream in its natural and ordinary condition is nonnavigable, a project to build a canal along its entire course, or dams and locks every few miles at enormous expense, would render it a navigable water of the United States. Who is to determine what is a reasonable or an unreasonable improvement in the circumstances, or what is a proper balance between cost and need? If these questions must be answered, it is for Congress -- certainly not for this court -- to answer them. If this test be adopted, then every creek in every state of the Union which has enough water, when conserved by dams and locks or channeled by wing dams and sluices, to float a boat drawing two feet of water, may be pronounced navigable because, by the expenditure of some enormous sum, such a project would be possible of execution. In other words, Congress can create navigability by determining to improve a nonnavigable stream.

If this criterion be the correct one, it is not seen how any stream can be found not to be navigable, nor is it seen why this court and other federal courts have been at pains for many years to apply the other tests mentioned when the simple solution of the problem in each case would have been to speculate as to whether, at "reasonable" cost, the United States could render a most difficult and forbidding mountain torrent suitable for the least pretentious form of water traffic. In the light of the court’s opinion, if this test be applied to the New River, it must, of course, be admitted that, by blasting out channels through reefs and shoals, by digging canals around falls and rapids, and possibly by dams and locks, the New River could be rendered fit for some sort of commercial use. What the expense would be, no one knows. Obviously it would be enormous. Congress in the past has undertaken to render the river navigable, and decades ago gave up the attempt. Still we are told that, at "reasonable" cost, the thing can be done, and so the stream is navigable.

In the light of the grounds upon which the decision of the Court is based, it hardly seems necessary to comment on the evidence, for it is, in the main, addressed to issues no longer in the case. The two courts below have analyzed it and examined it in detail, and reference to their carefully considered opinions suffices.{7} I think the conclusion reached by the courts below must stand unless the two novel doctrines now announced be thrown into the scale to overcome it.

MR. JUSTICE McREYNOLDS concurs in this opinion.

1. Oklahoma v. Texas, 258 U.S. 574, 585, 590-591; Arizona v. California, 283 U.S. 423, 452; Crowell v. Benson, 285 U.S. 22, 55.

2. United States v. Utah, 283 U.S. 64, 87.

3. The cases cited are United States v. Rio Grande Irrigation Co., 174 U.S. 690, 699, where this court said with respect to the findings: "We are not therefore disposed to question the conclusion reached," by the courts below; Leovy v. United States, 177 U.S. 621, where a judgment on a jury’s verdict was reversed for error in the judge’s instructions as to the criteria of navigability; Economy Light Co. v. United States, 256 U.S. 113, 117, where the court did not reexamine the facts, but affirmed the judgment of the Circuit Court of Appeals, as that court had correctly applied the test laid down in The Daniel Ball, 10 Wall. 557, and United States v. Holt State Bank, 270 U.S. 49, 55, where the courts below treated the question of navigability as one of local law to be determined by applying the rule adopted in Minnesota, and this court, though holding that they applied the wrong standard, as the question was one of federal law, affirmed the findings, instead of remanding the case, since the record disclosed that, according to the right standard, the water was navigable.

4. Cf. The Daniel Ball, 10 Wall. 557; The Montello, 11 Wall. 411, 415; United States v. Oregon, 295 U.S. 1, 23.

5. The Montello, 20 Wall. 430; United States v. Rio Grande Co., 174 U.S. 690; Leovy v. United States, 177 U.S. 621; Donnelly v. United States, 228 U.S. 243; United States v. Cress, 243 U.S. 316; Oklahoma v. Texas, 258 U.S. 574; United States v. Holt State Bank, 270 U.S. 49; United States v. Oregon, 295 U.S. 1; Harrison v. Fite, 148 F. 781; Gulf & I. Ry. Co. v. Davis, 26 F.2d 930; Davis v. Gulf & I. R. Co., 31 F.2d 109; United States v. Doughton, 62 F.2d 936.

6. Economy Light Co. v. United States, 256 U.S. 113.

7. 23 F.Supp. 83; 107 F.2d 769.