Cape Charles City Harbor, Va., Letter from the Secretary of War

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WAR DEPARTMENT,
OFFICE OF THE CHIEF OF ENGINEERS,
Washington, December 6, 1912.

From: The Chief of Engineers.
To: The Secretary of War.
Subject: Preliminary examination of Cape Charles City Harbor, Va.

1. There is submitted herewith, for transmission to Congress, report dated June 10, 1911, by Lieut. Col. M. M. Patrick, Corps of Engineers, on preliminary examination of Cape Charles City Harbor, Va., with a view to straightening the north side of channel at the entrance and increasing the width of the channel to 200 feet, called for by the river and harbor act approved February 27, 1911.

2. The improvement of this locality was undertaken by the United States in 1890 under a project providing for the dredging of a channel through Cherrystone Inlet 100 feet in width and through the bar 20 feet in width, 16 feet deep at mean low water, the dredging of an entrance channel 100 feet in width of the same depth, dredging over the entire area of the protected and inclosed harbor to a depth of 14 feet at mean low water, and the construction of stone jetties to protect the channel leading into the basin. The jetties have been built and the basin and channels have been dredged and redredged to their projected depths.

3. Cape Charles City Harbor is the southern terminus of the New York, Philadelphia & Norfolk Railroad Co., and is connected by car ferry with Norfolk, Va., 37 miles distant.

4. The district officer states that the present entrance channel is of ample width and depth for all vessels using the harbor except those belonging to the New York, Philadelphia & Norfolk Railroad Co. The commerce of the harbor is large but it appears that about 99 per cent of it is handled by the railroad company, which owns and operates the car ferry to Norfolk, Va. This company owns all the land around the harbor, all the water front, and all the docks and terminals. The district officer believes that the improvements already made by the United States are adequate to meet the needs of all traffic except that carried in the vessels of the railroad company, and he is of the opinion that the improvement and maintenance of the channels at this locality necessary for the operation of the vessels of the railroad company are proper charges against the business of the company as an essential part of its terminal facilities, and he therefore expresses the opinion that the locality is not worthy of further improvement by the United States. The division engineer recommends the authorization of a survey to determine the needs of the harbor.

5. This report has been referred, as required by law, to the Board of Engineers for Rivers and Harbors, to whose report herewith, dated December 4, 1911, attention is invited. In connection with its consideration of the case the board gave hearings on July 10 and October
16, 1911, to parties interested in the proposed improvement. From later correspondence it developed that as title to the channel and harbor, as well as all lands bordering on the harbor, is claimed by the New York, Philadelphia & Norfolk Railroad Co., and although the use of same by the public is permitted the privileges allowed may be rescinded at any time at the pleasure of the railroad company. After full study of the questions involved, the board concurs with the district officer in believing the locality unworthy of further improvement by the General Government at the present time.

6. After due consideration of the above-mentioned reports I concur in general with the views of the district officer and the Board of Engineers for Rivers and Harbors, and therefore, in carrying out the instructions of Congress I report that the improvement by the United States of Cape Charles City Harbor, Va., with a view to straightening the north side of channel at the entrance and increasing the width of the channel to 200 feet is not deemed advisable at the present time.

H. TAYLOR,
Lieut. Col., Corps of Engineers,
Acting Chief of Engineers.

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REPORT OF THE BOARD OF ENGINEERS FOR RIVERS AND HARBORS.

[Third indorsement.]

THE BOARD OF ENGINEERS FOR RIVERS AND HARBORS,
Washington, December 4, 1911.

1. Respectfully returned to the Chief of Engineers, United States Army.

2. This examination of Cape Charles City Harbor is called for with a view to straightening the north side of channel at the entrance and increasing the width of the channel to 200 feet. The present project adopted in 1890 requires the dredging of a channel through Cherrystone Inlet 100 feet wide and through the bar 200 feet wide and 16 feet deep at mean low water and dredging of an entrance channel 100 feet wide of the same depth and dredging ever the entire area of the protected and inclosed harbor to a depth of 14 feet at mean low water, the channel leading into the basin to be protected by stone jetties. The estimated cost of the project was $142,340. To June 30, 1910, there had been expended by the United States $119,143.84. The basin and channels have been dredged and redredged to their projected depth and the jetties have been constructed. It is reported that vessels of 12 feet draft can enter the inner basin at mean low water.

3. This artificial harbor is the southern terminus of the New York, Philadelphia & Norfolk Railroad, and is connected by car ferry with Norfolk, 37 miles distant. As shown within, the tonnage passing through this harbor is very large. It is nearly all handed by the railroad company which owns and operates the car ferry.

4. The district officer reports that the straightening and widening of the channel would be of material advantage in handling the railroad boats; that the improvements already made by the United States are adequate to meet the needs of all traffic except that carried in these boats, and in view of all the facts it is his opinion that the harbor is not worthy of further improvement by the United States. For reasons given, the division engineer favors a survey and further investigation.

5. Those in interest were duly advised of the tenor of the district officer's report, and, on July 10, 1911, a hearing was given at the office of the board, at which several representatives of the railroad company and of the town of Cape Charles appeared, and on October 16 an opportunity was again given for the presentation of data bearing upon the questions involved. Several papers presented are forwarded herewith. Attention is particularly invited to the letter of Mr. W. A. Patton, president of the New York, Philadelphia & Norfolk Railroad Co., of October 5, 1911, bearing upon the title to the lands covered by this artificial harbor and the channel leading thereto; to a copy of the board's letter of November 13, 1911, addressed to Mr. Patton relative to cooperation on the part of the railroad company by the cession of certain properties to the United States for public use; and to Mr. Patton's reply, dated November 20, 1911. From these papers it will be seen that the title to the channel and harbor under consideration, as well as to all lands bordering on the harbor, is vested in the New York, Philadelphia & Norfolk Railroad Co., and, although the public is permitted to use the channel and harbor, it is by the sufferance of said railroad company, which
allows certain privileges that may be rescinded at any time at the pleasure of the railroad company.

6. After mature consideration of all the facts and circumstances, the board has arrived at the conclusion that the expenditures made upon this harbor by the United States in the interests and for the benefit of general commerce and navigation and the facilities afforded are fully commensurate with the amount of that general commerce, which is reported as about 38,000 tons, while that carried by the railroad company amounts to about two and one-half million tons, the greater part of which is through commerce. It seems but reasonable that the terminal facilities required at the meeting point of water and rail transportation should, so long as both are owned and controlled by one company, be provided by that company, just as they are on any other portion of the line. In the opinion of the board these should not, so long as these conditions exist, be provided by the United States. The board therefore concurs with the district officer, in believing the locality unworthy of further improvement by the General Government, at the present time.

7. There are no questions of terminal facilities, water power, or other subjects so related to the improvement proposed as to render it advisable in the interests of general commerce and navigation.

For the board:

WM. T. ROSSELL,
Colonel, Corps of Engineers,
Senior Member of the Board.

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PRELIMINARY EXAMINATION OF CAPE CHARLES CITY HARBOR, VA.

ENGINEER OFFICE, UNITED STATES ARMY,
Norfolk, Va., June 10, 1911.

SIR: 1. In compliance with the directions contained in letter, office of the Chief of Engineers, 7th of April, 1911, I have the honor to submit the following report upon the preliminary examination of Cape Charles City Harbor, Va., with a view to straightening the north side of channel at the entrance and increasing the width of the channel to 200 feet, directed by the river and harbor act approved 27th of February, 1911.

2. The first and only previous preliminary examination of Cape Charles City Harbor was made in 1888; the reports upon this examination and upon a survey of this locality will be found in the Report of the Chief of Engineers for 1890, pages 9711 et seq.

3. The Harbor at Cape Charles City, Va., is an artificial rectangular basin, its area about 10 acres and it has all been dredged to a depth of 14 feet at mean low water. Cape Charles City is the southern terminus of the New York, Philadelphia & Norfolk Railroad, part of the Pennsylvania Railroad system, and from this terminus freight and passengers are transferred by water to and from Norfolk, Va., a distance of about 37 miles.

4. The project for its improvement, based upon the preliminary examination and survey above mentioned, was adopted by Congress in 1890, and has not since been modified. This project provided for dredging the harbor and an entrance channel 100 feet wide to a depth of 14 feet below mean low water, also for dredging a channel
through Cherrystone Inlet and bar 100 and 200 feet wide, respectively, and 16 feet deep at mean low water; the project also included the building of stone jetties on either side of the harbor entrance extending out to deep water.

5. Up to the 30th of June, 1910, there had been expended by the United States under this project, $119,143.84; the north jetty, built out 750 feet by the railroad company, had been extended about 875 feet, the south jetty had been constructed for a length of about 232 feet, the inner harbor, the entrance channel, and the channels through Cherrystone Inlet and bar had been dredged to their project dimensions.

6. Prior to the date when any work was done by the United States at Cape Charles City Harbor the railroad company had dredged the greater portion of the harbor to a depth of about 11 feet and had also dredged an entrance channel to a depth of about 10 to 12 feet. At that time the railroad company had also constructed bulkheads, wharves, freight and passenger docks, offices, etc., which have since been maintained, modified, and enlarged.

7. In 1890, when the present project was adopted for the improvement of this harbor, it is reported that the total amount of freight shipped by boat to and from the harbor was approximately 400,000 tons. Since that date the commerce of the harbor has increased rapidly. In 1901 it amounted to over 900,000 tons and for the calendar year 1910 it is reported to have been 2,567,704 tons. The articles shipped to and from this harbor, and which make up the above-mentioned tonnage, include lumber, agricultural products, groceries, dry goods, agricultural implements, and manufactured articles. At certain seasons of the year there are also brought into the harbor for shipment considerable quantities of fish, oysters, and other sea food. It has been impossible to ascertain with accuracy the quantities of each of the different classes of freight, nor has it been possible to determine the gross value of all of the shipments. Fifty dollars per ton is said to be a most conservative average value of the freight which passes in and out of this harbor.

8. In addition to this freight traffic it is reported that 145,801 passengers entered and left Cape Charles City Harbor by the railroad boats during the calendar year 1910.

9. While it is evident from the above that the commerce of Cape Charles City Harbor is quite considerable in amount, it is worthy of remark that the bulk of this large freight movement consists of through freight which is transported in cars on car floats without breaking bulk to and from Norfolk and Portsmouth, Va.; some freight and express matter is carried on the ferryboats. The car floats and the tugs which tow them are owned by the railroad company which also owns the boats which convey passengers to and from the railroad terminus at Cape Charles City.

10. As the business of the railroad company has grown, the sizes of its tugs and barges have increased and they have made more frequent trips in and out of the harbor. At times these vessels have had difficulty in entering and leaving the harbor, and it is reported that owing to the narrowness of the entrance channel and to some shoaling which has taken place therein there have been a number of accidents at or near the mouth of the harbor, and that under certain conditions of wind and tide it is difficult for tugs, barges, and passenger ferries
to avoid trouble in the narrow entrance channel whose axis is at about right angles to the general trend of the tidal currents in Chesapeake Bay in this vicinity.

11. As the load draft of the tugs and the passenger ferry steamers is but little less than the available depth of the water in the entrance channel to the harbor, the suction created by the passage of these boats through this channel causes a considerable inrush of water from its sides, and this has brought with it sand from the southern side of the channel and caused some shoaling to take place.

12. There is no doubt that the operation of the railroad boats would be greatly facilitated by the improvement of the entrance channel, by straightening it along its northern side, and by increasing its width to about 200 feet; to my mind, however, it is a grave question whether this work of improvement should be undertaken by the General Government. It is a fact which can not be controverted that for all other vessels, except those belonging to the New York, Philadelphia & Norfolk Railroad Co., which enter and leave Cape Charles City Harbor, the present entrance channel is of ample width and ample depth. No complaint has been received here from any source except from the railroad company as to the lack of proper facilities at this harbor or at its entrance.

13. Cape Charles City Harbor is really an adjunct of this railroad company, and it is a fair statement that 99 per cent of all commerce of whatever kind entering or departing from this harbor is tributary to the said railroad company. The railroad company owns all the land around the harbor, owns every foot of the water front, owns all docks and all terminals, and the question simply is whether it is the business of the General Government to make further improvements in this harbor, or whether such work should be done by the railroad company itself.

14. An examination of the passenger and freight tariff schedules of the New York, Philadelphia & Norfolk Railroad shows that between Norfolk, Va., and points on its own line north of Cape Charles City the rates charged for both passenger and freight service are greater than between Cape Charles City and the same points. In other words, for carrying freight and passengers on its boats between Norfolk, Va., and Cape Charles City the railroad company makes a charge and receives a certain revenue.

15. The United States improves and maintains channels which are used by general commerce, but where individuals or corporations own the water front along such channels and establish thereon docks or terminals the General Government, as a rule, does not dredge channels leading in to such docks, nor does it increase the depth available alongside them. Such work is almost invariably done by the private owners.

16. The harbor at Cape Charles City, an artificial one, as stated above, on the eastern side of the Chesapeake Bay, bears just about the same relation to the bay channels which are improved by the United States and used by general commerce as do the docks or piers along any stream or in any harbor to the channels therein.

17. The maintenance and the betterment of the railroad tracks on land are regarded as proper charges against its operating revenue; it is difficult to see why the maintenance and any necessary improvement of its harbor are not likewise properly chargeable against the revenue derived from the charges for freight and passenger traffic
borne on the railroad company's own boats to and from Cape Charles City. This same railroad company owns or makes use of a dock and terminal facilities in Norfolk Harbor, but the United States has not dredged channels into nor along them. It seems to me that Cape Charles City Harbor and its entrance channel present a very similar case; the harbor itself is nothing more than a basin alongside the railroad docks, to which the entrance channel gives access from the water of Chesapeake Bay.

18. The harbor and channel have been improved by the United States sufficiently to meet the needs of all traffic except that carried on the railroad company's own boats, which have somewhat outgrown the facilities thus provided. After careful consideration of all the facts, I am of the opinion that Cape Charles City Harbor and the entrance channel thereto are not worthy of further improvement by the United States.

19. The question of terminals in Cape Charles City Harbor has been treated above; in this harbor there are no public docks, nor is there any land owned by the public upon which such docks could be constructed. Cape Charles City Harbor and the entrance channel thereto being tidal waters, no question of water power development enters into the discussion of their improvement.

Respectfully submitted.

MASON M. Patrick,
Lieut. Col., Corps of Engineers.

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THE CHIEF OF ENGINEERS, UNITED STATES ARMY
(Through the Division Engineer).

[First indorsement.]

OFFICE OF THE DIVISION ENGINEER,
SOUTHEAST DIVISION,
Savannah, Ga., June 15, 1911.

1. Respectfully forwarded to the Chief of Engineers, United States Army.

2. I do not fully agree with the district officer that the fact that by far the greater portion of the commerce of this port is carried upon vessels belonging to a single company is a good and sufficient reason why the United States should make no further improvement there.

3. It seems certain that there is a commerce of 2,500,000 tons per annum, worth, at a very low estimate, $100,000,000. Whether this is carried by one company or by a hundred different ones seems to me not to be the real question, but rather the question is whether this commerce is valuable to the public and whether the business is so carried on that the public enjoys a fair share of the benefit resulting from it.

4. I think that this harbor is worthy of a survey to find out what it needs, and in connection with the survey I think that an investigation should be had to see whether or not an unjust or unlawful or oppressive monopoly is being built up here, for, unless such is the case, it seems to me on the face of it to be worthy of improvement.

DAN C. KINGMAN,
Colonel, Corps of Engineers,
Division Engineer.

[For report of the Board of Engineers for Rivers and Harbors, see p. 3.]

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LETTER OF THE NEW YORK, PHILADELPHIA & NORFOLK RAILROAD CO.

NEW YORK, PHILADELPHIA & NORFOLK RAILROAD CO.,
Philadelphia, October 5, 1911.

GENTLEMEN: Referring to the appeal made to and now pending before your board from the adverse recommendation of Lieut. Col. Mason M. Patrick, United States Engineer Corps, concerning the proposed improvement by widening of the artificial channel which connects the harbor at Cape Charles with the waters of Cherrystone Creek, wherein a partial hearing was had by the board on the 10th of July, 1911, and the question then raised respecting the title to the lands which will be required for the contemplated widening of the artificial channel, I beg hereby on behalf of the New York, Philadelphia & Norfolk Railroad Co. to make answer to the said last-mentioned question as follows:

Although the legal title to the lands which will be needed for and embraced in the contemplated widening of said artificial channel, if effected, is vested in the New York, Philadelphia & Norfolk Railroad Co., as is also the title to the lands whereon the artificial channel as now constructed has been maintained and used continuously for a long period, nevertheless the said artificial channel as now existing has continuously since its completion been open and available without charge of any kind for all purposes of navigation to the public, as fully and completely, to all intents and purposes, as if the same had been a natural instead of an artificial waterway. And this condition has been acquiesced in and assented to in such manner and to such extent by the New York, Philadelphia & Norfolk Railroad Co. as to constitute in both law and fact a dedication of the said channel to the use of the public for the general purposes of navigation, and has been continuously used and availed of for such purposes by the public to a large extent. Pursuant to due authorization by and acting for and on behalf of the said New York, Philadelphia & Norfolk Railroad Co. I do hereby declare and make known that, if and when the said artificial channel shall have been improved by widening in the manner and to the extent contemplated, the said channel thus improved shall at all times be and remain open and available to the public for the general purposes of free navigation, and wholly without any charge for such use, as fully and completely in all respects as the present channel is or as the improved channel would be if the same were a natural instead of an artificial waterway.

It may be pertinent and appropriate in this connection to state that the harbor at Cape Charles, connected with the waters of Cherrystone Creek by means of this artificial channel, is likewise open and available to the public for all proper purposes of or incidental to free navigation without any harbor fees or charges for anchorage therein, and the same is constantly being availed of and used by a large number of vessels of all descriptions in the course of commerce, and on the occurrence of severe storms is not infrequently availed of and used by smaller vessels as a harbor of refuge. In addition to the original cost of constructing this harbor and the artificial channel connecting the same with the waters of Cherrystone Creek (which was wholly borne and defrayed by the railroad company) considerable moneys have been appropriated by Congress and duly expended for improvement of the same; and when the matter of appropriation was under consideration by the Committee on Rivers and Harbors of the House of Representatives in 1902, a question was raised in said committee respecting the character and status of the harbor, which was explained and answered to the satisfaction of the committee by my letter addressed to S. C. Neale, Esq., under date of March 8, 1902, a copy whereof is herewith transmitted for the Information of the board.

I have the honor to be, very respectfully,

W. A. PATTON, President.

THE BOARD OF ENGINEERS FOR RIVERS AND HARBORS.

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LETTER OF LIEUT. COL. LANGFITT.

THE BOARD OF ENGINEERS FOR RIVERS AND HARBORS,
Washington, November 13, 1911.

DEAR SIR: The board has had under consideration your letter of October 5, 1911, and other communications filed in support of the improvement of Cape Charles City Harbor, Va.

Before taking final action on this matter, the board would like to have an expression from your company now owning this artificial harbor and the lands, wharf, and dock facilities bordering thereon, as to whether the company would be willing to cooperate with the United States in the matter of the further improvement of this
harbor to the extent of conveying to the United States free of cost all rights of ownership in the channel of approach, the channel between the jetties, the area covered by the inner harbor up to the harbor or dock lines, and will dedicate in perpetuity for the use of the general public a suitable frontage on the inner basin for wharfage purposes, together with right of way connecting with, the streets of Cape Charles City.

As it is incumbent upon the board to submit its report before the convening of the next session of Congress, if possible to do so, an early reply is respectfully requested.

Very respectfully,

W. C. LANGFITT,
Lieutenant Colonel, Corps of Engineers,
Senior Member Present.

Mr. W. A. PATTON,
President New York, Philadelphia & Norfolk Railroad Co.,
Philadelphia, Pa.

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LETTER OF THE NEW YORK, PHILADELPHIA & NORFOLK RAILROAD CO.

NEW YORK, PHILADELPHIA &NORFOLK RAILROAD CO.
Philadelphia, November 20, 1911.

DEAR SIR: Having duly noted and carefully considered the proposition presented by your communication of the 13th instant concerning the artificial harbor constructed by the New York Philadelphia & Norfolk Railroad Co. at Cape Charles, Va., whereat the railroad of said company terminates, I beg to make answer thereto as follows:

Although as clearly and distinctly set forth and declared by my communication addressed to your board under date of October 5, 1911, the New York, Philadelphia & Norfolk Railroad Co, recognizes and concedes the right of the public, in conjunction with itself, at all times to avail of and use the artificial harbor at Cape Charles and the artificial channel connecting the same with the waters of Cherrystone Creek for general purposes of navigation and commerce, and has also accorded in the past, as it will likewise do in the future, the free use of said harbor and its docks thereon for traffic to be there landed or received, without any port or dock charges, as well as the free use of said harbor for craft seeking refuge when necessitated by severity of weather conditions, it must not he overlooked that both said harbor and channel are wholly artificial, and were each located and constructed by and at the expense of the railroad company, in order to provide at the southern terminus of its railroad the transportation facilities imperatively required to suitably accommodate the needs of interstate traffic and to properly discharge its obligation as a common carrier engaged in such traffic.

In view of this condition, it will be apparent that the railroad company could not, consistently with its duty and obligation as such common carrier of interstate traffic, make any further or larger concession for the use by the public of said artificial harbor and channel than as recognized, declared, and set forth in said communication of October 5 -- which would seem to be adequate for the needs of navigation and commerce, and all that, under the circumstances of the situation, could be fairly and reasonably desired or suggested -- and while herein reiterating and affirming all that is contained in said letter, the railroad company would not be justified in acquiescence and acceptance of the said proposition made by said letter of the 13th instant, and, consequently, is constrained to decline the same.

Very respectfully,

W. A. PATTON, President.

The BOARD OF ENGINEERS FOR RIVERS AND HARBORS.

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LETTER OF MR. S. C. NEALE.

WASHINGTON, D. C., November 21, 1911.

SIR: Referring to your favor of the 13th instant, I beg to inclose you a letter from Mr. W. A. Patton, president of the New York, Philadelphia -- Norfolk Railroad Co., in the matter of that company making certain concessions with reference to the harbor at its terminus at Cape Charles, Va.

I am, sir,
Your obedient servant,

S. C. NEALE,
Counsel, New York, Philadelphia & Norfolk Railroad Co.

The BOARD OF ENGINEERS FOR RIVERS AND HARBORS.

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LETTER OF THE NEW YORK, PHILADELPHIA & NORFOLK RAILROAD CO.

MARCH 8, 1902.

DEAR SIR: In reply to the letter from Hon. Theodore E. Burton, chairman of the Committee on Rivers and Harbors, addressed to you under date of March 4, I am glad to have the opportunity of correcting the impression which seems to exist in Mr. Burton's mind as to the harbor at Cape Charles being maintained for the exclusive benefit of the New York, Philadelphia & Norfolk Railroad Co, While it is true that the railroad company did construct the harbor and the approaches leading to it at a cost of over $100,000, at the same time the harbor has always been open and free to the public, and it is constantly being used by outside vessels of all descriptions, and no harbor fees or charges for anchorage have ever been collected. I regret that I can not give you the actual number of vessels outside of those controlled by the railroad company that make use of the harbor, but in the summer time, when trade is active, the number would run up to several hundred per month, consisting of boats of all kinds handling commodities to and from Cape Charles. Besides this, this port is extensively used in time of storms as a harbor of refuge for all the smaller vessels in that vicinity.

The best evidence that there is no desire on the part of the boat owners for any change in the existing arrangements is shown by the fact that during the 18 years the harbor has been in use we have not had a complaint from any vessel owner as to the charges or any other restrictions that our company has placed upon them in the use of the facilities which they are permitted to enjoy in the harbor.

Another point that it might be well to explain to Mr. Burton is that we do not ask the Government to spend any money in dredging the harbor itself; all that we ask is that the appropriation shall be for continuing the improvements which have been started at that point for protecting the approaches leading to the harbor. A stone jetty has already been constructed by the Government on the north side of the cut leading from the main channel to the harbor, and the Government engineers have recommended that a similar jetty be erected on the south side of the cut and that some necessary dredging be done in the cut, so as to make the approach to the harbor perfectly safe.

I hope that with these facts laid before Chairman Burton he may see his way clear to assist in securing the desired appropriation for this object, as you can assure him that the harbor is always open to shipping of all kinds without the payment of any harbor fees, and it is largely used by vessels trading there, as well as by those seeking protection from storms.

Yours, very truly,

W. A. PATTON, President.

Mr. S. C. NEALE,
Washington, D. C.