(concurring).
I concur in what Judge Hutcheson has written and in the disposition given the case. I agree in what Judge Waller has written -to the effect that any artificial dredging by Hunter of land which he owned would not deprive him of his title to the land which he thus put below water by this means.
I do not agree that the nature of this suit as a condemnation suit has ever changed. The United States, desiring immediate possession of the land in controversy to make a shipyard, surveyed the land desired, and described it by courses and distances in the petition and named ten persons, including Turner and the State of Alabama, as persons claiming an interest, and made them as well as “all persons, firms and corporations, known or unknown, having any right, title or interest”, defendants to the proceeding. A fee simple title was prayed to be vested in the United States on payment into the registry of the Court of just compensation and an order was asked for immediate possession. The order for immediate possession was made, which recited that the United States had by Act of Congress made a certain and adequate provision for payment of just compensation and that the funds are available for payment. Turner answered that he was the sole owner and entitled to all the compensation to be fixed. The State of Alabama at first claimed taxes only. The United States moved for a determination of the title, asserting that Turner had owned land to the north but the land condemned was made by artificial filling of land theretofore submerged by the tide and was filled under authority of a deed from the State of Alabama to the United States, and that questions of fact were to be investigated, and there were “grave doubts of the title and ownership of any person or persons in said land, and of the kind of title”, and that it was necessary to determine the title of every part of the land to make possible a proper determination of the value and the right of the various persons. A special master was appointed to this end. Thereupon the United States added a paragraph to its original petition, alleging itself to have title to all or a part of the lands under a deed from the State of Alabama, and an interest in the servitude for public navigation which impaired the value of the fee and prayed that its title and interest be fixed to ascertain the extent of the taking and the measure of just compensation. The State of Alabama also amended its claim and asserted that all the land belonged to Alabama, as now or formerly submerged by tidal waters. These three claims went to the Master for consideration.
While no money was paid into court, the credit of the United States was substituted by the statutes applicable. The primary object was attained of getting immediate and undisputed possession. Any right or title of the United States was not waived, but the United States, I think, stood like any other claimant of the pledged fund. Turner, Alabama and the United States had initially the same burden of identifying what land or interest, if any, each owned. *649Neither had any presumption as against the other. It did not become a suit in ejectment, or trespass to try title, but remained a condemnation suit with a problem to be solved as to whose land had been taken, the burden being on each claimant to identify his land. The burden of course may shift as the evidence progresses.
It would be well for the survey made for the condemnation to be retraced on the land (or water) so that court and witnesses can tell precisely what they are dealing with. The building of the shipyard has altogether changed the appearance of things. I have not been able to satisfactorily locate the land condemned on the maps of thg harbor, or that testified about as in the former possession of Turner.
HUTCHESON, Circuit Judge, concurs in the foregoing opinion.