Franklin v. United States

SIMONS, Circuit Judge

(concurring).

I concur in the conclusion reached by the. controlling opinion, and in general with its reasoning. It is clear, however, from the analysis of the authorities therein made, and from the discussion of them in the dissenting opinion, that there is conflict between the holdings in the Pumpelly and Lynah Cases on the one hand and the Gibson, Bedford and Jackson Cases on the other, a conflict pointed out in respect to some of them by Mr. Chief Justice White and Associate Justices Fuller and Harlan in the dissenting opinion in the Lynah Case. In any event the generalizations of the earlier cases have been, as indicated in the Horstmann Case, made subject to exceptions in subsequent cases. ■

To place the distinction between the two lines of authorities upon the ground that to create an enforceable liability against the Government there must be an actual

*464permanent invasion of the land amounting to an appropriation of it, and not merely an injury to the property, may be sound in principle but becomes difficult of application in specific cases because of differences in view as to what amounts to invasion and appropriation. The servitude of privately owned lands forming the banks and bed of a stream to the interests of navigation is a natural servitude confined to such streams as in their ordinary and natural condition are navigable in fact. United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746. It was there said, however, that the power of the Government under the commerce clause, like other powers, must be exercised in subordination to the Fifth Amendment. It would seem to me, however, conceding the principle, that in respect to riparian lands subservient to the exercise of a constitutional power, within the reasonable scope of its grant, there can be no taking of private property when the lands are in fact made to yield to the Government in response to the servitude, to which by reason of their location they have always been subject. The Cress Case involved lands on non-navigable tributaries of a navigable river. It was there assumed, though not decided, that the owners of such lands had rights no greater than the owners of lands bordering upon a navigable stream. But if the principle of natural servitude is confined to lands bordering streams navigable in fact in their ordinary and natural condition, the Cress Case does not support the present claimants.