A few additional facts drawn from the record will serve to clarify the issues. In 1940, the respondent owned a residential real estate development in Norfolk, Virginia, located on the east side of Mason Creek, a navigable tidewater which extended inland about four or five miles from the navigable waters of Willoughby Bay. West of Mason Creek, and adjacent to Willoughby Bay, was located the Hampton Roads Naval Operating Base, which maintained a Naval Air Station with shore facilities for seaplanes. It was this station which, under the authority of Congress, the Navy Department enlarged and improved. In order to provide suitable waters for the operation of large seaplanes, the Navy, acting in conjunction with the War Department, 30 Stat. 1121, 1151–1155, dredged Willoughby Bay to a depth of 10 to 15 feet below mean low water. Additional lands, adjacent to the base, were bought or condemned by the government, on both the east and west sides of Mason Creek. The materials dredged from the bay were in part deposited in Mason Creek between the shores of lands owned by the government adjacent to the bay. By this process, the bed of Mason Creek was at that point raised to the level of its shores, thereby becoming incorporated as an integral and useful part of the Naval Operating Base. This fill, reinforced by bulwarks, dykes and retaining walls, cut off the remainder of Mason Creek, along which respondent's land bordered, from any navigable outlet to Willoughby Bay and the sea. It also blocked off the tidal movements which previously had provided an element of freshness in Mason Creek's waters, thereby resulting in a standing and stagnant pool. This condition, at the request of property owners, was later alleviated by digging a channel in the stream's bed, and 248 Stat. 957; 53 Stat. 590-592; 53 Stat. 757, 772-773. 637582° 46- -29 vert, much smaller in en grate, placed where its to the bay, closed it to stas the findings below that ete culvert were inadequate lyf movement, and that as a of Man Creek became "semi-stagthem the same freshness they had before the project was navigability of the c of that part of the m. able to its proximity creek in its natural e work was done. ment for respondent involves no physfast lands. Its property was more than made in Mason Creek. The only land sation was awarded because of mud and at part of the creek's bed between high arks. That Virginia recognizes respondland' cannot give respondent a right fits market value is impaired as a result he United States in the interest of imagation. United States v. Chicago, M., .. 312 U. S. 592, 596-598, set at rest any concerning the dominant power of the control and regulate navigable waters in mmerce, without payment of compensaander state law may hold "technical" legal himself and others than the government) avigable stream's bed. ment's answer, so i we gr 4 rives a riparian owner acquire a unique distinct from that held by all others, to and enjoyment of navigable waters and to ensation from the government because dest privilege by an authorized governmental ty, 124 Va. 358, 97 S. E. 802; Hite v. Town of Luray, SS.E. 2d 369. es v. Chandler-Dunbar Co., 229 U. S. 53, 60, 62, 68, 72; Peeler, 179 U. S. 141, 163. 5 change in a stream. Respondent's property was always subject to a dominant servitude; it did not have a vested right to have this navigable stream remain fixed and unaltered simply because of the consequent reflected additional market value to adjacent lands. Whatever market value of riparian lands may be attributable to their closeness to navigable waters, does not detract from the government's "absolute" power," in the interests of commerce, to make necessary changes in a stream. In short, as against the demands of commerce, an owner of land adjacent to navigable waters, whose fast lands are left uninvaded, has no private riparian rights of access to the waters to do such things as "fishing and boating and the like," for which rights the government must pay." Riparian rights of access to navigable waters cannot, as against the government's power to control commerce, be bought and sold. Third. It is argued that the foregoing rule of governmental non-liability is inapplicable to this case. Since the Navy Department originated this plan with a view to improvement of shore facilities, we are asked to hold that neither the dredging in Willoughby Bay nor the deposit of the dredged material in Mason Creek bore any real or substantial relation to commerce or navigation. Such a holding was the basis of the District Court's judgment. The Circuit Court held that the dredging in Willoughby Bay was, but the deposit in Mason Creek was not, related to commerce or navigation. We cannot agree. The "fact that purposes other than navigation will also be served could not invalidate the exercise of the authority con 5 Scranton v. Wheeler, supra, 159-160; Stockton v. Baltimore & N. Y. R. Co., 32 F. 9, 20. • United States v. River Rouge Co., 269 U. S. 411, 419; Gilman v. Philadelphia, 3 Wall. 713, 724-5. 7 Gibson v. United States, 166 U. S. 269; Scranton v. Wheeler, supra. Opinion of the Co 'T.S. have connecting it with the bay by a c T First. The judgment for ical invasion of its fast land a mile from the fill made i for which compensation silt deposits was that pa and low water marks. ent's title to such lan to compensation if its of work done by the provement of navig St. P. & P. R. Co.," remaining doubt c government to co the interest of con tion to one who u title (as between to a part of the Second. No. private right have access t recover con prived of t 3 Scott v.. 175 Va. 219 4 United Scranton ona V. Constitu of determinPaced in such Arcise itself or re, the War Depon when, and to be altered or obervised, the program s night arise in which igment of this specially ha case. two separate, although Se waters, and looked to is water facilities, the envas designed to achieve one at there were two bodies of ce one program related, does ... power as to either, for its Justify one unified program sters to the end that comsered." er the Commerce Clause to obng the dredged soil in Wil andur Co., supra, 62–67; PennsylFe Co., 18 How. 421. Seces, 204 U. S. 364, 377-388; Green237 U. S. 251, 268; South Caro Co. v. Garrison, supra, 268; United wer Co., 311 U. S. 377, 424; Arizona Power Co., supra, 426-437; Okla08527-528. llabus. t was likewise authorized to r the same purpose. There is n at one place to foster it at anblocking be done by altering the ghthouses, jetties, piers, or a dam ..terial, the government's power is the stant case is derived from the same ority to regulate commerce. Since the :ded rested entirely upon the conclusion nt's property had been taken by "filling and n Creek," and since all of respondent's "riparwere subordinate to the government's power he stream, the judgment is Reversed. R. JUSTICE ROBERTS is of the opinion that the judgit should be affirmed for the reasons stated in the pinion of the Circuit Court of Appeals, 143 F. 2d 721. ESTATE OF PUTNAM; GUARANTY TRUST CO., EXECUTOR, v. COMMISSIONER OF INTERNAL REVENUE. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 534. Argued February 2, 1945.-Decided March 26, 1945. 1. Whether at the date of the death of a taxpayer a dividend has "accrued," within the meaning of § 42 of the Revenue Act of 1938, so as to be includible in computing income of the taxpayer, is a question of federal law. P. 395. 2. A dividend which was declared prior to the date of the death of a taxpayer (assumed to be on the cash receipts basis), but which by the terms of the declaration was payable to stockholders of record on a date subsequent to his death, was not at the date of the death 12 South Carolina v. Georgia, supra; Scranton v. Wheeler, supra; Arizona v. California, supra, 451–452. |