US SUPREME COURT DECISIONS

While section 12 of the Act of Congress of September 19, 1890, forbade the construction or extension of piers, wharves, bulkheads, or other works beyond the harbor lines established under the direction of the Secretary of war in navigable waters of the United States "except under such regulations as may be prescribed from time to time by him," it does not follow that Congress intended in such matters to disregard altogether the wishes of the local authorities. Under existing enactments, the right of private persons to erect structures in a navigable water of the United States that is entirely within the limits of a state is not complete and absolute without the concurrent or joint assent of both the federal government and the state government. Cummings v. City of Chicago, 188 U. S. 410, and Willamette Bridge Co. v. Hatch, 125 U. S. 1, followed.

This writ of error brings up for review the final decree in a suit instituted in one of the courts of Oregon by the City of Portland and Port of Portland against James B. Montgomery, who died during the progress of the cause and was succeeded as defendant by his executrix, the present plaintiff in error.

The principal question in the case is whether, under the circumstances to be presently stated, Montgomery, as owner of land situated within the limits of Portland on the Willamette River, had the right to extend his wharves into the river beyond certain harbor lines established in 1892.

The City of Portland was authorized by its charter to regulate the building of wharves within its limits and to establish a line beyond which wharves should not be built nor piles driven. That provision was in force on and after February 19, 1891.

By an Act of the Oregon Legislature of February 18, 1891, the inhabitants of the Port of Portland were created a corporation

"to so improve the Willamette River at the cities of Portland, East Portland, and Albina, and the Willamette and Columbia Rivers between said cities and the sea, as that there shall be made and permanently maintained in said Willamette River

Page 190 U. S. 90

at said cities, and in the said Willamette and Columbia Rivers between said cities and the sea, a ship channel of good and sufficient width, and having a depth at all points at mean low water both at said cities and between said cities and the sea, of not less than 25 feet."

And, so far as was necessary to carry out that object, the corporation was given full control of those rivers at those cities and between them and the sea, to the full extent that the state could grant the same, and was authorized to remove such obstructions from them and erect such works in them as were found necessary or convenient in creating and maintaining the required channel. The power so conferred was to be exercised by a board of commissioners. Such a board had been appointed and organized prior to the institution of this suit.

A copy of the act incorporating the Port of Portland was sent to the Secretary of War, "who approved the same," and the work done by that port in improving the Willamette and Columbia Rivers was conducted in conjunction with the United States engineers in charge of those rivers, and who acted under instructions from the Secretary of War. The engineers annually reported to the Secretary the nature and amount of such work.

By the River and Harbor Act of July 13, 1892, amending the seventh section of the River and Harbor Act of September 19, 1890, it was provided:

"§ 7. That it shall not be lawful to build any wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty, or structure of any kind outside established harbor lines, or in any navigable waters of the United States where no harbor lines are or may be established, without the permission of the Secretary of War, in any port, roadstead, haven, harbor, navigable river, or other waters of the United States in such manner as shall obstruct or impair navigation, commerce, or anchorage of said waters, and it shall not be lawful hereafter to commence the construction of any bridge, bridge draw, bridge piers and abutments, causeway, or other works over or in any port, road, roadstead, haven, harbor, navigable river, or navigable waters of the United States, under any act of the legislative assembly

Page 190 U. S. 91

of any state until the location and plan of such bridge or other works have been submitted to and approved by the Secretary of War, or to excavate or fill or in any manner to alter or modify the course, location, condition, or capacity of [any port, roadstead, haven, harbor, harbor of refuge, or enclosure within the limits of any breakwater, or of] the channel of said navigable water of the United States unless approved and authorized by the Secretary of War: Provided, That this section shall not apply to any bridge, bridge draw, bridge piers and abutments the construction of which has been heretofore duly authorized by law, or be so construed as to authorize the construction of any bridge, draw bridge, bridge piers and abutments or other works under an act of the legislature of any state, over or in any stream, port, roadstead, haven or harbor, or other navigable water not wholly within the limits of such state."

26 Stat. 454; 27 Stat. 88, 110.

"§ 12. That section 12 * of the River and Harbor Act of August 11, 1888, be amended and reenacted so as to read as follows:"

"Where it is made manifest to the Secretary of War that the establishment of harbor lines is essential to the preservation and protection of harbors, he may and is hereby authorized to cause such lines to be established beyond which no piers, wharves, bulkheads, or other works shall be extended or deposits made, except under such regulations as may be prescribed from time to time by him, and any person who shall willfully violate the provisions of this section, or any rule or regulation made by the Secretary of War in pursuance of this section, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding one thousand dollars or imprisonment not exceeding one year at the discretion of the court, for each offense."

26 Stat. 426, 455. chanrobles.com-red

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On the 9th day of August, 1892, the Secretary of War, proceeding -- so the finding of facts states -- under section twelve of the act of 1890, caused certain harbor lines to be established in the Willamette River within the limits of Portland. And by an ordinance adopted December 12, 1892, the common council of the city adopted as its wharf lines the harbor lines so established.

On or about May 21, 1898, Montgomery applied to the Secretary of War to have the above harbor lines relocated or located farther out in front of certain water lots belonging to him, his complaint being that, as established in 1892, those lines were too far inland. By order of the Secretary, a public hearing was had on this application. A number of the leading businessmen of Portland attended and made protests against the proposed relocation. An account of this meeting, with all the papers relating to it, was sent to the chief of engineers, who made a report to the Secretary of War favorable to Montgomery's application. A map accompanied that report showing the proposed new line. Under date of September 23, 1898, Mr. Meiklejohn, Acting Secretary of War, approved Montgomery's application and assented to the proposed change or relocation of the harbor line.

Having been notified by the local United States engineer that the War Department had approved the new line, Montgomery began the construction of a wharf by the driving of piles partly outside of the line of 1892 and in front of his lots, but wholly inside of the relocated line as indicated on the above map. He did not drive any piles or place any obstruction in the river outside of the relocated line.

On or about November 2, 1898, the board of commissioners of the port took official action about the new line and Montgomery's construction of wharves beyond the line of 1892. They declared of record that the extension of wharves into the river outside of the line of 1892 would greatly damage the port and its shipping interests, and they ordered Montgomery and those acting under him to cease the construction of any wharf beyond that line and at once to remove any piling or other obstruction that he may have placed in the river in front of his property and chanrobles.com-red

Page 190 U. S. 93

beyond such wharf line. Subsequently, on November 23, 1898, the port commissioners took further action and declared that the wharf proposed by said Montgomery would interfere with the navigation of the river by creating shoal places in its now navigable waters, and obstruct the work of making and maintaining a channel in the river twenty-five feet in depth, as provided for in the act incorporating the Port of Portland.

Of this action by the local authorities Montgomery and those in his employment were notified in writing.

The suit was brought to prevent the continuance of the work upon which Montgomery entered. The defendant resisted the relief asked, and insisted that the action of the Secretary of War gave him complete authority to proceed despite any objections urged by the City and Port of Portland. The defense was sustained by a decree of the court of original jurisdiction, and the bill was dismissed. But that decree was reversed by the Supreme Court of Oregon, its conclusions of law being that the wharf lines established on the 12th day of December, 1892, were then and ever since have been the legal and authorized wharf lines of the Port of Portland, and that the respondent had no right to drive piles or extend any wharf beyond the wharf lines so established. The respondent, her attorneys, agents, servants, and employees were, by final order, enjoined from driving piles or putting any structure in the river outside of the wharf lines so established, and commanded to remove all piles driven or structures of any description erected therein, beyond said wharf lines. Portland v. Montgomery, 38 Or. 215. chanrobles.com-red

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