Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Plaintiff-appellee is a municipality of the Commonwealth of Pennsylvania. This litigation arose out of alleged damage to its sewer system claimed to have been due to the construction in 1928 by the Department of the Army of a lock and dam on the Allegheny River about five and a half miles below Ford City. Suit was filed September 20, 1960, solely on the authority of a special jurisdictional act of Congress (P.L. 86-538, 74 Stat. 252) which eliminated laches and any statute of limitations in connection therewith. The amended complaint is based upon the Fifth Amendment, "* * * nor shall private property be taken for public use without just compensation."
In 1928, plaintiff owned and operated, as it still does, a gravity flow sewer system which flowed into the Allegheny. At that time, defendant, in connection with its work of improving the navigation on the Allegheny by deepening its channel, built a lock and dam across its bed at Logansport. It is admitted that the Allegheny River generally and particularly at Ford City, is a navigable stream. It is stipulated that after the erection of the lock and dam, the pool elevation at Ford City approximated 770 feet mean sea level (hereinafter ft. m.s.l.) for protracted periods. Plaintiff claims that the installation of the lock and dam caused a rise of about 10 feet at the Ford City sewer outlet which caused serious damage to the system, the city's streets and necessitated constant pumping operations.
As its first point appellee urges that appellant's appeal is out of time. What happened was that the issue of liability was tried to the court. Judgment as to liability was entered January 29, 1963. That was an interlocutory order not appealable. Victor Talking Machine Co. v. George, 69 F.2d 871 (3 Cir. 1934), 105 F.2d 697 (3 Cir. 1939), cert. den. 308 U.S. 611, 60 S. Ct. 176, 84 L. Ed. 511; Milbert v. Bison Laboratories, 260 F.2d 431 (3 Cir. 1958). The trial judge recognized this at a pretrial conference April 16, 1962 when he was reminded by counsel of a previous discussion with him concerning the Government appeal situation in the event there was a finding against the Government, with particular reference to the "* * * question of having a stay order entered [as to the damage issue] so that we might pursue the question of appeal in case of adverse ruling." The court as to this said, "The statement I heretofore made, I retract that and will not do that. * * * I will not give you a certificate of appeal." Subsequently the suit was called for trial on the damage branch. At that time a stipulation of what was really a contingent settlement was entered into by the parties through their attorneys which was expressly "* * * without prejudice to the right of the Government to appeal as to liability and without prejudice to the Borough of Ford City to attack such appeal." The order of the court of November 4, 1963, notes that "* * * stipulation and agreement of counsel for both parties in the above entitled matter having been filed, judgment of damages is hereby entered * * *." Notice of appeal by the defendant was filed the following day, November 5, 1963. The appeal was within time and is properly before this court.
It is accepted by the plaintiff and the trial judge, as it must be, that the navigational servitude of the Federal Government allows it to take private property without compensation when it is controlling and regulating navigable waters in the interest of commerce. This governmental right extends to the entire bed of the stream involved, including the lands below the ordinary high-water mark; the converse of this is also true i.e. "* * * the Government must compensate for any taking of fast lands which results from the exercise of the power." United States v. Virginia Electric & Power Co., 365 U.S. 624, 627-628, 81 S. Ct. 784, 788, 5 L. Ed. 2d 838 (1961). However, the Government, in the exercise of the navigation servitude can raise the water level above the ordinary high-water mark and not be liable. If the value of the property is due to the flow of the stream and the riparian location, there is no actual taking of property which requires compensation because of the Fifth Amendment. United States v. Willow River Co., 324 U.S. 499, 65 S. Ct. 761, 89 L. Ed. 1101 (1945); United States v. Twin City Power Co., 350 U.S. 222, 76 S. Ct. 259, 100 L. Ed. 240 (1956). That rule makes the dominant practical issue before us, whether the Government by its construction of the lock and dam raised the Allegheny River ordinary high-water mark in the area of the Ford City sewer outlet. If it did, the defendant is responsible for any damage caused plaintiff by reason thereof.
The district court held that defendant's construction had raised the ordinary high-water mark. Its authority for this is a quotation from the decision in United States v. Chicago B & Q R. Co., 90 F.2d 161, 170 (7 Cir. 1937), cert. den. 302 U.S. 714, 58 S. Ct. 33, 82 L. Ed. 551, which states: "The river bed is the land upon which the action of the water has been so constant as to destroy vegetation. It does not extend to nor include the soil upon which grasses, shrubs and trees grow." From this the judge concluded that the ordinary high-water mark of the Allegheny was where vegetation is destroyed. Actually this is not the teaching of Harrison v. Fite, 148 F. 781, 783 (8 Cir. 1906), upon which the Chicago B & Q R. Co. expressly relies. Harrison holds primarily that the bed of a river "* * * is that soil so usually covered by water that it is wrested from vegetation and its value for agricultural purposes is destroyed." Howard v. Ingersoll, 54 U.S. 381, 13 How. 381, 14 L. Ed. 189 (1851), upon which Harrison in turn is based and which is the leading opinion on the particular point, makes it very clear that the vegetation test for a navigable stream's ordinary high-water mark means not that within such line all vegetation has been destroyed by the water covering the soil but that the soil has been covered by water for sufficient periods of time to destroy its value for agricultural purposes. The Howard opinion, p. 415, defining the outer line of the bed of the river there involved said:
"It neither takes in overflowed land beyond the bank, nor includes swamps or low grounds liable to be overflowed, but reclaimable for meadows or agriculture, or which, being too low for reclamation, though not always covered with water, may be used for cattle to range upon, as natural or uninclosed pasture. But it may include spots lower than the bluff or bank, whether there is or is not a growth upon them, not forming a part of that land which, whether low or high, we know to be upland or fast lowland, if such spots are within the bed of the river. Such a line may be found upon every river, from its source to its mouth. It requires no scientific exploration to find or mark it out. The eye traces it in going either up or down a driver, in any stage of water."
This principle is followed in a great number of well considered opinions some of which are cited below*fn1 We are satisfied that the sound law as to what constitutes the river bed of a navigational stream is as carefully outlined in the Harrison opinion i.e. the land upon which the waters have visibly asserted their dominion, the value of which for agricultural purposes has been destroyed. The value for agricultural purposes is destroyed where terrestrial plants not all plant life ceases to grow. Just as definitely the same law is that the bed of such stream "* * * does not extend to or include that upon which grasses, shrubs and trees grow though covered by the great annual rises." Harrison v. Fite, supra 783.
The vegetation test is useful where there is no clear, natural line impressed on the bank. If there is a clear line, as shown by erosion, and other easily recognized characteristics such as shelving, change in the character of the soil, destruction of terrestrial vegetation, and litter, it determines the line of ordinary high-water. Rutten v. State, 93 N.W.2d 796, 799 (N.D.1958); Diana Shooting Club v. Husting, 156 Wis. 261, 145 N.W. 816 (1914); Willis v. United States, 50 F. Supp. 99 (W.Va.1943). Also a test of the distinct line is the destruction of terrestrial vegetation so these are not really two separate tests but must, of necessity, complement each other.
Another important consideration in determining the line is the character of the bank or shore at the particular site in issue. If it is difficult to ascertain the line of ordinary high-water at this site, recourse may be had to other sites along the same stream to determine the line. Diana Shooting Club v. Husting, supra, 145 N.W. at 820.
Having the above fundamentals in mind, the factual situation before us is simply determined. Appellee depended upon its witness Shannon for the fixing of the 1928 pertinent Allegheny River ordinary high-water mark. This was Shannon's first attempt to determine such a location. He minored in engineering and majored in forestry. He was asked by appellee's attorney, "You are in practice at this time as an engineer in forestry. Is that correct?" He answered:
"Well, I have a firm of professional service individuals, providing services in engineering, forestry, surveying, landscape architecture and other related fields such as architecture, photogrammetry,"
He said he was engaged by appellee "concerning an observation of vegetation along the Allegheny River." Then he was asked by the attorney for the appellee, "What did you do ...