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Ancarrow v. Richmond, City of

Citation: 9 ELR 20421
No. No. 78-1178, 600 F.2d 443/(4th Cir., 06/05/1979)

Reversing a lower court's decision, the Fourth Circuit Court of Appeals holds that a suit by riparian landowners, alleging that their property along the James River was rendered valueless for development as a marina because of pollution from a nearby municipal sewage treatment plant and thus taken without compensation in violation of the Fourteenth Amendment, must be dismissed because it presents no federal claim upon which relief can be granted. The court of appeals first determines that plaintiffs have no cognizable claim under either common law or admiralty jurisdiction for damages arising from the city's sewage treatment plant discharges, which concededly do not violate applicable federal or state law.The Fourth Circuit upholds the district court's conclusion that an earlier state condemnation proceeding which placed a valuation on plaintiff's property is not a res judicata bar to the claims in this lawsuit because the taking alleged here occurred prior to and was independent of the condemnation proceeding. As to the Fourteenth Amendment claim, the court of appeals rules that plaintiffs were not deprived of a riparian right to public waters of a particular quality because under Virginia law this right is subject to the superior public right to pollute waters for sewage disposal. Nor were they unconstitutionally deprived of some right of beneficial location which prohibits the city from using the James River so as to diminish indirectly the value of their land because no such property right exists. Since plaintiffs can point to no property right that has been "taken" from them, the case must be remanded for dismissal of the complaint.

Counsel for Plaintiffs-Appellants
Stephen D. Annand, Robert C. Dunn
Cohen, Vitt & Annand
320 King St., Alexandria VA 22313
(703) 836-2121

Counsel for Defendant-Appellee
C. Tabor Cronk, Albert J. Fitzpatrick, Ass't City Attorneys
900 E. Broad St., Richmond VA 23219
(804) 780-8961

Joined by Widener and Phillips, JJ.