[230 U.S. 1, 2] Messrs. Holmes Conrad and Waitman H. Conaway for appellants.
Assistant Attorney General Thompson and Mr. J. Harwood Graves, Assistant Attorney, for appellee.
Mr. Chief Justice White delivered the opinion of the court:
This suit was brought to recover from the United States the value of property asserted to have been totally destroyed or rendered completely valueless as the result of [230 U.S. 1, 3] certain public work 'done in pursuance of the acts of Congress authorizing it, for the public benefit, under the direction of the Mississippi River Commission and the Secretary of War and the United States engineers.' And it was charged that under the circumstances stated and the facts alleged, the property had been taken by the United States for public use 'within the meaning of the constitutional provision,' and it was averred that there was consequently imposed 'on the United States an implied obligation to make compensation for the property so taken and destroyed.'
It becomes necessary to give a brief description of the topography of the country in which the property in question is situated, in order to make clear its relation to the public work which it is asserted constituted a taking within the meaning of the Constitution.
The valley of the Mississippi river may in a broad sense be said to commence at Cape Girardeau, Missouri, and to extend from there to the mouth of the river at the Gulf of Mexico. The river, however, in its course to the ocean, does not run through the center of the vast fertile and alluvial plains which, in a comprehensive and generic sense, constitute the delta of the Mississippi. On the contrary, the situation of the river in this respect varies, occasioned by the fact that, at divers places, the upland or hill country approaches to or constitutes the bank of the river. The difference in this regard is marked between the west and the east banks. The west bank is divided into four great basins,-the St. Francis basin, which extends from Cape Girardeau to Helena; the White River basin, which extends from Helena to the mouth of the Arkansas; the Tensas basin, which extends from the mouth of the Arkansas to the mouth of the Red river; and the Atchafalaya basin, extending from the mouth of the Red river to the Gulf. Practically in the long sweep from Helena, where St. Francis basin ends and the White River basin [230 U.S. 1, 4] begins, to the ending of the Atchafalaya basin at the Gulf, there is no real topographical distinction between the basins, the west bank of the river in that great distance consisting of alluvial country having generally a very wide though varying expanse. The division into basins, putting out of view the St. Francis basin, is therefore merely the result of a consideration of the watershed of each basin, all the water, however, from each ultimately finding its way to the Gulf of Mexico, either through the Mississippi river, or in the lower basins in part, at least, by the means of streams flowing independently of the Mississippi river to the Gulf of Mexico. On the east bank the situation is different. In the long stretch from Cairo, Illinois, to a point a short distance below Memphis, generally speaking, the hills and uplands border the river and constitute its bank. From the point below Memphis to which we have referred, to Vicksburg, Mississippi, this is not the case, and there is a great basin known as the Yazoo basin, which, aside from peculiarities of its own, may be said to possess the same general characteristics as the basins on the west bank of the river. From Vicksburg where the uplands come to the river and constitute its bank, down to Baton Rouge, Louisiana, where the hills or uplands permanently recede from the river, a different condition from that which exists on the west bank obtains. As we are concerned only with the situation below Natchez, we put out of view any statement concerning the east bank between Vicksburg and Natchez, and refer only to the conditions existing on the east bank between Natchez and Baton Rouge.
From Natchez, where the hills or uplands constitute the bank of the river, to Baton Rouge, the line of hill or upland does not follow the course of the river, but recedes therefrom for a certain distance and then again abuts on the river, this process being repeated from point to point until Baton Rouge is reached. Of necessity, therefore, be- [230 U.S. 1, 5] tween the point of each departure of the uplands from the river to the point of reapproach, there is an area of alluvial country bounded on the west by the river and constituting its bank, on the east by the hills, which, as it were, like a festoon or semicircle inclose the alluvial area between the river, the base of the uplands or hills, and the points of departure from and approach to the river, as above stated.
These various areas constitute, in the nature of things, minor basins having their own watershed. And between Natchez and Baton Rouge there are five of these minor basins, one between Natchez and Ellis Cliffs, 16 miles below Natchez, another between Ellis Cliffs and Fort Adams, 39 miles below Ellis Cliffs, a third between Fort Adams and Tunica, 17 miles below Fort Adams, and two others between Tunica and Bayou Sara, 23 miles below Tunica, and from Bayou Sara to Baton Rouge, a distance of 35 miles. These subordinate basins are included in a general local levee district known as the Homochitto district. A full and accurate statement concerning these basins, of their relation to levee building, and overflow, will be found in Document No. 1010, House of Representatives, 63d Congress, third session, being a letter of the Secretary of War transmitting to the House of Representatives a full report of a survey made by direction of Congress, by the Mississippi River Commission, of these basins. Of the basin between Ellis Cliff and Fort Adams, the report of the commission makes the following statement:
In February, 1894, the appellants or their predecessors in title, for whom they have been substituted on the record, filed their petition in the court of claims against the United States, alleging themselves to be the owners of various tracts of land in Adams county, Mississippi, composing three plantations. It was alleged as follows:
Following an enumeration of loss of crops and personal property in the years 1890, 1891, 1892, and 1893, and the fixing of the value of the land at $50,000, recovery was prayed of $107,275.50, asserted to be due because, under the facts alleged, there had been a taking of the property by the United States for public use.
A demurrer to this petition was overruled on June 1, 1896. The nature of the ruling is indicated by the following excerpt from the opinion, reported in 31 Ct. Cl. 318:
It is stated in the record that during the year 1908, first, second, and third supplemental petitions were filed, although they are not reproduced, but the court below in its opinion declares the aggregate damages claimed was $569,702.50. To these petitions a demurrer seems to have been filed by the United States, which was passed upon in 1910, the order on the subject reading as follows:
Besides the supplemental petitions just referred to and the action of the court thereon in the period of sixteen years which elapsed between the entry of the order overruling the first demurrer in 1896 and January 5, 1912, when what is styled a fourth supplemental petition was filed, many proceedings were had, such as a hearing, the making of findings of fact and conclusions of law, [230 U.S. 1, 10] filing of motions to set aside the same, to amend the findings, etc., etc., none of which we need particularly refer to because in the first place, although mentioned, they are not reproduced in the record, and in the second place, because we take it that the filing of the fourth supplemental petition was by permission of the court and with the consent of the United States, permitted for the purpose of restating the case of the claimants in its best possible aspect, so that, in the light of what had transpired, a final disposition of the controversy might be had. We so conclude because there is not the slightest indication in the record of any objection having been made to the filing of the fourth amended petition, and because obviously it had the significance which we attribute to it since the findings of fact which the court made the basis of the decree which is here under review in most important particulars, but copies and reproduces the allegations in the fourth supplemental petition. It becomes important, therefore, to exactly understand the issues presented by this petition before coming to consider and dispose of the case. And to this end, omitting all reference to averments relating to the mere description of the property involved or its value, we shall endeavor, not following the order of statement in the pleading, to accurately summarize its contents.
First. As to the situation of the lands, it was averred that said 'lands are situated at Jackson Point, in the Alluvial valley of the Mississippi, on the left bank of the river, 40 miles below Natchez and 25 miles above the mouth of Red river. That the basin in which the Jackson lands are situated commences at Ellis Cliffs, about 20 miles below Natchez, and extends to Fort Adams, about 50 miles below, with an average age width of 2 miles and a maximum width of 6 miles, and is one of six (6) small basins of the Homochitto basin,'-a description which, beyond doubt, fixes the location of the lands as within [230 U.S. 1, 11] the minor basin lying between Ellis Cliffs and Fort Adams, the area and description of which, as given in the recent report of the Mississippi River Commission, we have before reproduced.
Second. As to the condition of the property prior to the doing of the acts complained of, it suffices to say that it was alleged that by means of levee protection resulting from work done by the owners of the property along the river bank, the property had been protected, that crops of large value had been raised thereon, and that improvements provements had been put thereon, and that, as a result of this protection by the levees built by the owners, although the property was occasionally overflowed by breaks in the levee, the overflow when it came was not destructive or of such long duration as to prevent the making of a crop, and that the property was highly improved, stocked with implements, etc., as alleged in the original petition, and was of great productive capacity and of large value to the owners.
Third. The facts from which it was alleged the property had been so injured or destroyed by work done by officers of the United States, as to constitute a taking of the property by the United States, for which adequate compensation was due, are stated under the following headings:
a. That about the year 1883 the officers and agents of the United States, 'in pursuance of the act of Congress creating the Mississippi River Commission, and of the subsequent acts for the improvement of the navigation of the Mississippi river, adopted the so-called Eads plan, by act of Congress approved March 3, 1881, [21 Stat. at L. 468, chap. 136] in consequence whereof have projected, and have constructed, and are constructing, a continuous system of public works, for the purpose of so confining the flood waters of the river between lines of embankment, or levees, as to give increased elevation and velocity and force to the currents, in order to scour and deepen the channel, [230 U.S. 1, 12] and have thus caused an increased and abnormal elevation of at least 9 feet to the waters of the river at the high water of flood stage; and for said purpose have adopted and made use of systems of public and private levees, originally constructed for the reclamation of overflowed lands, on the west bank, from the highlands of Arkansas to the mouth of the Red river, and from the mouth of the Red river to the Passes . . .'
b. That for time beyond the memory of man the flood waters of the Mississippi river, passing Helena, Arkansas, where the highlands about on the river, had escaped into the White river and Upper Tensas Basins, and passed in part through various designated bayous, rivers, or streams which, as we have previously said in describing the White river and Tensas basins on the west bank, carried to the Gulf, independently of the Mississippi, waters which enter into or overflow these great watersheds. It being moreover, however, alleged that if they-that is, the waters passing Helena, and which did not escape into the White River and Tensas basins-'ever reached the lands of claimants in sufficient volume to flow them were speedily reduced by crevasses on the west bank, which allowed them to escape into the Atchafalaya basin, and thus relieved the lands of claimants.'
That in executing their plans as above described, the officers of the United States had by the levees which they had constructed or maintained along the front of the White river and Tensas basins, prevented the flow of a large volume of water into those basins, which would have found its way to the Gulf without returning to the Mississippi, as above stated, and had thus increased largely the volume of water flowing past the claimants' land, and which therefore, in time of flood, would rest against the levee which protected their lands from overflow.
c. That for the purpose of carrying out their plans, the officers had built a levee to close a very extensive [230 U.S. 1, 13] break or crevasse in the levees on the west bank, opposite to, or nearly so, to the lands of the claimant on the east bank, known as the Bougere crevasse, which carried off a great volume of water and relieved the pressure on the claimants' levee, and thus additionally, by retaining such water in the river, augmenting the risk of overflow by increasing the danger of a break in the levees of claimants.
d. Because yet further to give effect to their plans, the officers of the United States had prevented large quantities of water which otherwise would have reached the Gulf through the Atchafalaya river, from taking that course, by works designed to retain water in the Mississippi, thus causing the water to back up against claimants' levee, and greatly increasing the danger of overflow.
e. That the plantations of petitioners are located within the limits of a narrow strip of land lying between the low water bank of the Mississippi river and the highlands east of it, between Vicksburg and Baton Rouge, where the highlands skirt very closely to the river bank, and are not protected by levee construction other than that built by the claimants, which has been destroyed and washed away by the recent flood waters of said river after the levee system had practically reached a state of completion, and the United States had closed the Bougere crevasse, as hereinafter alleged.
The court below made elaborate findings of fact, contained in twenty- five numbered paragraphs. The first four relate to the title of the claimants to the land and we need not review them. Findings 5, 6, 7, 8, and 9 relate to the condition of the river prior to the work done by the government, to the escaping of water into the White river and Tensas basins, as alleged, and to the increased pressure brought upon the levees protecting the lands of the claimants, to the greater frequency of overflow of such lands, etc., etc.; some of these findings, as we have said, being in the very words of the allegations of the supplemental and amended petition of 1912. Concerning the work done by the officers of the United States, findings numbered 10, 11, and 15 contain the following:
The remainder of the findings are but cumulative, and we do not pause to state them.
The court concluded, in view of the authority of the United States over navigation, and its right to construct works for that purpose, that there was no liability on the [230 U.S. 1, 18] part of the United States, basing its views on this subject upon Bedford v. United States, 192 U.S. 225 , 48 L. ed. 417, 24 Sup. Ct. Rep. 238. The petition was therefore dismissed.
Before we take up the contentions advanced by the appellants to establish that the court below was wrong in deciding that there was no liability on the part of the United States, we consider it necessary, lest misconception otherwise might result, to refer to what we deem to be grave errors committed by the court in certain particulars, even although, in passing upon the merits, we shall consider the case in such an aspect as to cause it to be unnecessary to review the errors in question for the purpose of passing on the merits. In the first place, it is apparent that in many important respects matters which the court below has stated as findings of fact are mere conclusions of law. This is true, for instance, of the broad conclusion embodied in the findings of fact as to the relation of the United States to levee work, and the power of the Mississippi River Commission over all such work, by whomsoever performed. In the second place, treating it as a question of law, we think the error is apparent from a consideration of the statutes and the official reports relating to the subject, which we may judicially notice. It is true indeed, that when the Eads theory, illustrated by the successful jettying of the mouth of the river under a contract made with Captain Eads, came to be understood, and it also came to be appreciated that the most efficient way to improve the navigation of the river was to utilize the vast power of the river, by confining its waters within its banks, thus directing its energies to cutting out a deeper channel, Congress legislated to the accomplishment of such result by the creation of the Mississippi River Commission, and by conferring the power upon that body to improve the navigation of the river, and to build levees for that purpose with the appropriations which were made from time to time to carry out these great purposes. But nothing in [230 U.S. 1, 19] that legislation justifies the conclusion that, irrespective of navigation, Congress assumed control of the entire work of protection from overflow by levees, to the displacement of the state or local authorities. On the contrary, the reports of the Commission and the public documents and history connected with the same leave no room to doubt that, as necessarily the levees built by the United States in aid of navigation at the same time afforded protection from overflow, and thus served a twofold purpose, that thereby renewed energy was stimulated in state and local authorities to undertake the work of building levees for protection, so that one continuous and complete system of protection would be evolved. It is of course true, also, that the intelligent work of the Mississippi River Commission furnished a standard which served in a sense to control and direct the co-operating energies of others. The gravity of the error, as expressed in the findings of the court below, is illustrated by the fact that it treated the injury alleged to have been suffered as arising alone from the acts of the United States, when in truth, if there was such injury, it could only have resulted from the concurrent action of the United States, the states and their subordinate agencies, including individuals, all acting to the realization of a common end, that is, an efficient and continuous line of levees, although action was impelled by different considerations. This is illustrated by the statement made by the Mississippi River Commission in its annual report for 1894, pp. 2713-2715, where, in referring either to the claim of damage made in this case or to one like it, it was said:
But passing, for the sake of argument, these considera- [230 U.S. 1, 20] tions, let us look at the case in the light of the findings as made.
It is apparent, taking the broadest possible view in favor of the claimants, that the grievance which they allege they have suffered can only rest upon three grounds:
1st. The building by the officers of the United States of lines of levees along the bank of the river for the purpose of retaining the water in the river, treating, for the sake of the argument, all acts done by the local authorities in building levees or closing breaks as acts of the United States.
2d. The failure of the United States to build on the east bank of the river along the minor basins which we have fully described, a line of levees so as to afford means of protection from the increased danger of overflow arising from the fact that the lines of levees along the river on the west bank and elsewhere had been raised and strengthened and extended, thus, at least, beyond doubt, temporarily increasing the level of the flood in times of high water.
3d. The performance of work by the United States tending to diminish the outflow of water from the river through streams which flowed from it, to the end that a more efficient body of water might remain in the stream for the purpose of accomplishing the deepening of the channel, and thus more effectively improving the navigable capacity of the river.
Let us primarily test the merits of the first ground of complaint,- that is, the building of levees. It is not averred that the land of the claimants bordering on the east bank of the river, in the absence of all levees, and in a state of nature, would not, in seasons of high water, be overflowed; and if it had been so alleged, it is certain there would be no right on the part of an individual to insist that primitive conditions be suffered to remain, and thus all progress and development be renderal impossible. When accurately [230 U.S. 1, 21] FIXED, THE COMPLAINT IS BUT THIS; THAT because the claimants had built a levee for the purpose of protecting their lands, and which answered that purpose, if levees were not built by others to protect their lands, actionable injury would be occasioned claimants when anybody else sought to protect his land from overflow, since to so do would increase the volume of water in the river and raise the flood level, to the detriment of claimants. In its essence, however, this but amounts to saying that because the claimants have built a levee along their property for the purpose of protecting it from overflow in times of high water, they have acquired the right to stereotype the conditions existing at the time they built their levee, even to the extent of preventing anyone from subsequently exerting his right to build a levee to protect his land. Nothing could more completely illustrate the accuracy of this statement than the averments in the supplemental petition concerning the closing of the Bougere crevasse, since those averments in their last analysis but charge that there was a right on the part of the claimants to subject a vast area of country on the west bank to the devastation resulting from the existence of so extensive a crevasse, simply because to close it would subject the levee of claimants across the river, to a greater pressure, consequent on the retaining of the flood water of the river within its banks. And indeed a like illustration is afforded by the averments as to the escape of water from the river on the west bank, and the spread of that water through the White river and Tensas basins until it ultimately reached the Gulf, by emptying into remote streams. To make the demonstration, if possible, clearer, let us suppose that by the acts of individuals for their own protection, sanctioned by the local laws, a complete line of levees had been built, accomplishing the very result which it is insisted brought about the injury here complained of. Would it be said that the claimants would have a resulting right of action in damages because [230 U.S. 1, 22] other owners had exerted the very right which the claimants had previously resorted to for the purpose of protecting their own land? If not, upon what imaginary ground can it be said that because a work which was lawful in and of itself, was done by the United States, therefore responsibility in favor of the claimants was entailed?
Coming to the second contention, we think it is disposed of by the following considerations:
In the first place, by the report of the commission to which we have referred, the impossibility was pointed out of building a levee along the line of the minor basin in which the land of claimants is situated, without destroying said land, because of its peculiar situation, unless a permanent system of pumping to take out the water which would gather in the watershed. In the second place, looked at from the point of individual right and corresponding responsibility, it is impossible to conceive by what principle it can be said that because an individual having a right to do so has built a levee to protect his land from overflow, and because his levee has accomplished that result by retaining the water in the river, that thereby there arose a duty on his part to build a levee to protect the land of another, or, in the alternative, to pay for such land.
Indeed, the propositions but assert, on the one hand, that the United States is liable because it did that which it had a right to do, and, on the other, that it is liable because it abstained from doing that which it was under no duty to do. Both the fundamental errors which the contentions involve are exemplified in the arguments used to sustain them, since it is urged that because the levees constructed on the bank of the river operated to keep the water in the river from flowing out, that thereby they served to bring water into the river from without, and that the mere abstention from building levees at a particular place or on a particular line operated to transfer the bank of the river [230 U.S. 1, 23] over to the foot of the hills, or to move the hills over to the river, so as to cause them to become its banks.
The third consideration, that is, the preventing of the outflow of water by work done in the tributaries, and the consequent increase in the volume of water in the river, cannot be tested from the point of view of individual authority, as the power to so do involves necessarily the exercise of governmental power. We therefore come to consider the proposition in that aspect. In doing so, however, it is to be observed that even if all the previous considerations which we have stated, concerning the nonliability to result from building levees, measured by the right of an individual to build a levee to prevent the water of a river from overflowing its banks and destroying his property, be put out of view, and the case therefore in all its aspects be tested by the scope of the governmental authority possessed by the United States, the absence of merit in all the claims is too clear to require anything but statement. We say this because the plenary power of the United States to legislate for the benefit of navigation, and to construct such works as are appropriate to that end, without liability, for remote or consequential damages, has been so often decided as to cause the subject not to be open. It was directly ruled as to work done by the Mississippi River Commission in Bedford v. United States, 192 U.S. 225 , 48 L. ed. 417, 24 Sup. Ct. Rep. 238, upon the authority of which case, as we have said, the court below placed its ruling, and as the underlying principles which controlled the decision in the Bedford Case, and which govern the subject, were again at this term, with much elaboration, stated and applied, we think it unnecessary to do more than refer to that ruling (United States v. Chandler-Dunbar Water Power Co. decided May 26, 1913, [ 229 U.S. 53 , 57 L. ed. --, 33 Sup. Ct. Rep. 667], and to direct that the judgment below be affirmed.