Lyders

Appellant brought a suit seeking a decree declaring that Whaler Island was held by appellee in trust for him, and appeals from an adverse decree.

Crescent City Harbor is a bight on the California coast, having a length of about a mile, a width of about a half-mile, and facing south. Its western extremity is Battery Point. Whaler Island is about a half-mile south of the shore line of the harbor’s eastern extremity, and is a rocky island.

Prior to 1914, some eight reports by the Chief of Engineers, Department of War, had been made regarding improvements of Crescent City Harbor, in none of which was improvement recommended. Of these reports, the first was made in 1867, and the last in 1911. The Act of July 25, 1912, § 2 ( 37 Stat. 201 , 223, 230), made an appropriation and directed the Secretary of War to cause a preliminary examination and survey to be made of Crescent City Harbor “with a view to securing a suitable harbor”. Pursuant thereto reports were made and are contained in House Document No. 434, 64th Congress, 1st Session.

The District Engineer, on January 31, 1914, reported to the Chief of Engineers, and recommended that the harbor be improved by the United States at a…

(concurring).

I concur in the conclusion reached in the main opinion, but I do not do so solely upon the authority of Northern Pac. Ry. Co. v. McComas, 250 U.S. 387, 392 , 39 S.Ct. 546 , 63 L.Ed. 1049 . That case was decided upon the point that property there involved was appropriated by a physical entry thereon and possession thereof taken, which is not the case here. This is definitely pointed out in Lyders v. Ickes, 1936, 65 App.D.C. 379 , 84 F.2d 232, 234 . The court in the last cited case states the situation just as we have it before us, and I think arrived at the correct solution. I quote from the opinion:

“The Secretary was required, in determining. the issues presented, to interpret the Act of July 18, 1918 ( 40 Stat. 904 , 910), which provides, among other things:

“ ‘The improvement of Crescent City Harbor is hereby authorized in accordance with the report submitted in House Document Numbered Four hundred and thirty-four, Sixty-fourth Congress, first session, and subject to the conditions set forth in said document.’

“Several reports appear in the document referred to. The Secretary was also required to determine as a question of fact whether the report referred to…