Cubbins v. Mississippi River Commission

204 F. 299 | E.D. Ark. | 1913

TRIEBER, District Judge

(after stating the facts as above). The right of the states bordering on the Mississippi river and its tributaries to construct and maintain levees along the banks of said river has been exercised from time immemorial, and until the filing of this bill has never been questioned in the courts. All the territory embraced in the bill lying on the western bank of the Mississippi river was a part of the Louisiana Territory acquired by the United States from France, and under the laws of France, as well as Spain, the former owners of that territory, in force prior to and at the time of the purchase by the United States, the lands in that territory abutting on the rivers and bayous were subject to a servitude in favor of the public whereby such portions thereof as were necessary for the purpose of making and repairing public levees could be taken without compensation to the owners. The state of Louisiana by statute asserted this right ever since the purchase by this government, and the validity of this claim was expressly sustained by the Supreme Court in Eldridge v. Trezevant, 160 U. S. 452, 463, 16 Sup. Ct. 345, 40 L. Ed. 490. Whether such servitude exists in the other states acquired by the Louisiana purchase it is unnecessary to determine in this case, as it never has been the policy of those states to claim -or exercise it. Board of Levee Inspectors v. Crittenden, 94 Fed. 613, 36 C. C. A. 418, where this claim was set up in behalf of a levee district created by the state of Arkansas. In Hagar v. Reclamation District, 111 U. S. 701, 705, 4 Sup. Ct. 663, 665 (28 L. Ed. 569), the Supreme Court speaking on that subject, said:

“In some states the reclamation is made by building levees on the banks of the streams which are subject to overflow; in other states by ditches to carry off the surplus water, Levees or embankments are necessary to protect lands on the lower Mississippi against annual inundations. The expense of such work may be charged against parties specially beneflted, and may be a lion upon the property. All that is required in such case is that the charges shall be apportioned in some just and reasonable mode, according to the benefit received.”

In Leovy v. United States, 177 U. S. 621, 625, 20 Sup. Ct. 797, 798 (44 L. Ed. 914), it was held:

“Subject, then, to the paramount jurisdiction of Congress over the navigable waters of the United States, the state of Louisiana has full power to authorize the construction and maintenance of levees, drains, and other structures necessary and suitable to reclaim swamp and overflowed lands within her limits.”

In Manigault v. Springs, 199 U. S. 473, 479, 26 Sup. Ct. 127, 130 (50 L. Ed. 274), the court, after quoting from numerous cases relating to the power of the states to authorize the erection of bridges, said:

“While all of these cases turned upon the power of the state to authorize the erection of bridges, the same principle applies where the Legislature deems it necessary to the public welfare to make other improvements for the reclamation of swampy and overflowed lands, though certain individual proprietors may thereby be subjected to expense.”

[1] The authorities as to the power of a state to construct levees or drains to protect the lands bordering on rivers from inundation are too numerous to make it necessary to cite them. The conclusion reached by this court from an examination of them is that under the police power every sovereign state has the power to construct and maintain levees and provide for the drainage of swamps, when deemed necessary for the general welfare of its people for the protection of the health and property.

In Manigault v. Springs, supra, in discussing the question whether such legislation is a proper exercise of the police power, the court said:

“Of this we have no doubt. Although it was not an exercise of that power in its ordinarily accepted sense of protecting the health, lives, and morals of the community, it is defensible in its broader meaning of providing- for the general welfare of the people by the reclamation of swampy, overflowed, and infertile lands, and the erection of dams, levees, and dikes for that purpose. AVe have often held that private interests are subservient to that right, except where property is taken for which compensation must be paid, and must give way to any general scheme for the reclamation or improvement of such lands.”

Congress recognized this right at an early date by not only permitting the exercise of this power, but materially aiding the states by liberal donations and appropriations. By an act approved March 2, 1844 (chapter 87, 9 Stat. 352), Congress donated all of the swamp and overflowed lands owned by the national government in the state of Louisiana'to that state for the purpose of aiding it “in constructing the necessary levees and drains to reclaim the swamp and overflowed lands therein.” By Act April 28, 1850, c. 84,9 Stat. 519, it granted the same kind of aid to the state of Arkansas. and “each of the othei; states of- the Union in which such swamp and overflowed lands, known and designated as aforesaid, may be situated.” Since then millions of dollars have been appropriated by the national' Congress almost annually to aid in the construction and maintenance of leVees; Congress being of the opinion that the construction and maintenance of these levees a.re an aid to and an improvement of navigation on these rivers. No provisions of the national Constitution, or of this state have been called to the attention of the court which prohibit the exercise of that power, nor can the court find any such prohibition in either of these instruments.

When we consider the vast territory, the millions of people, the great value of the property affected by these periodical overflows, a government which would fail to take some steps to prevent the loss 'of life and destruction of property likefy to occur byjreason of these inundations which occur annually, and in'some years two and'three times, wotild be derelict in its duty to'its people. Whether the levee system is the best that can be devised for that purpose, or 'even whether'it is prejudicial, as claimed in the argument by counsel for complainant, is a matter to be determined by the legislative department of the government, and is not subject to review by the courts.

[2] It is unnecessary for the court to state what the effect of granting t|ie injunction as prayed by plaintiff in this case would be, as that is apparent to any one at all familial: with conditions prevailing in the Mississippi River Valley. But it is claimed that under the fifth and ■fourteenth amendments to the - Constitution of the United States neither the states ■ nor the national government have the power to construct or" maintain these levees to the great damage of many of the riparian owners situated as is the plaintiff, without first making compensation for the damage sustained. It will be noticed that there is no allegation in the bill that any part of plaintiff’s land was actually taken or invaded by any-of the defendants; the only allegation in the bill béing:-' ' • ■ .

“That by reason of the construction and maintenance of these levees his lands- are. frequently overflowed so that he -is interrupted in the profitable .use, occupation, and employment of said lands.”

There is nothing in the national Constitution imposing upon a state the duty of making compensation to the owner of lands for consequential. damages sustained by the construction or maintenance of an 'improvement beneficial to the people at large when there has been no actual taking of any of the property. Transportation Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336; Osborne, v. Mo. Pac. Ry. Co., 147 U. S. 248, 13 Sup. Ct. 299, 37 L. Ed. 155; NeW York City v. Pine, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ed. 820; De Lucca v. North Little Rock (C. C.) 142 Fed. 597.

' The Constitution of the state of Arkansas .now, and at the time of the construction of these levees, in forcé, provides (article 2, § 22):

;■ ‘The right of property is before and higher than any constitutional sanction; and private property shall notbfe taken,' appropriated or damaged for .p'üblic use,' without jüst compensation- 'therefor.”

And article 12, § 9, provides:

‘•No property, nor right of way, shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by the deposit of money, which corpora • tion, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.”

Whether these provisions of the Arkansas Constitution apply to lands in another state, or whether they apply to private corporations only and not to the state or its subsidiary agencies, it is unnecessary to determine in this action, as there is no claim for damages, but it may be well to refer to the construction placed upon these provisions of the Constitution by the highest court of the state. In Cribbs v. Benedict, 64 Ark. 555, 559, 44 S. W. 707, it was held that the provisions of article 12, § 9, of the Constitution, do not apply except when exercised through the instrumentality of a corporation, and that a drainage district created by the state is not a private corporation.

While the laws of the state of Arkansas provide that when the right of eminent domain is sought to be exercised by the taking of lands for a right of way, and the determination of the question in controversy in such proceedings is likely to retard the progress of the work of such railroad, the court or judge in vacation shall designate an amount of money to be deposited by such company subject to the order of the court, and, when the money is thus deposited, it shall be lawful for such company to enter upon such land and proceed with the work through and over the lands in controversy prior to the assessment and payment of damages for the use of the land. Sections 2955, 2956, Kirby's Digest of the Statutes of Arkansas. There is no provision of law authorizing such proceedings when the land is not actually taken or invaded, but only consequentially damaged, it would therefore be impossible for the commissioners of a levee district to proceed with the construction of the levee if it had to have the consequential damages caused thereby determined in advance ; for how could any one know what the effect of such construe - tion would be? De Lucca v. City of North Little Rock (C. C.) 142 Fed. 597, 600.

Assuming, as we must on a motion to dismiss the bill for want of equity, that the allegations in the complaint are true, and also assuming that they are sufficient to make these districts responsible for the damages sustained by plaintiff, why has he not a complete and adequate remedy at law? If the land has become utterly worthless, then the proper measure of damages would be the value of the land before the injury was inflicted; if the value of the land has not been utterly destroyed but materially damaged, then the depreciation of its value by reason of the alleged unlawful acts of the defendants would be the proper measure of compensation. Plaintiff in his bill charges that he has no adequate remedy at law, but the only reasons he sets out for this allegation are that “such injury is a continuing one, and will be repeated annually whenever the Mississippi river reaches its high-water stage, and that if it be attempted by complainant to recover damages in a court of law from any or all of the defendants for such continuous and repeated injuries to said lands, it would involve complainant in an interminable' multiplicity of suits,” and that “the defendants, state and local levee boards or districts have expended practically all their funds in their effort to construct, enlarge, maintain, and repair the said levees, and that they are now insolvent.”

That there need be no multiplicity of suits requires no argument, as the damages may be recovered in one action as hereinafter stated. The claim that the levee districts have expended all of their funds in constructing and maintaining levees, and for this reason are insolvent, is disposed of by the fact that there is in every act of the legislature of the state of Arkansas under which- these districts have been created a provision for the assessment of taxes on all lands comprising each district, so that any judgment recovered against the district may be collected by levying and collecting the taxes on these lands, and, if the commissioners fail to levy such tax to satisfy any judgment recovered against it, they may be compelled to do so by writ of mandamus issued by the court which rendered the judgment. For the purpose of having the damages sustained by the plaintiff assessed, the defendants have the right, under the seventh amendment to the Constitution of the United States, if the action is instituted in the national court, or under article 2, § 7, of the Constitution of the state of Arkansas, if plaintiff elects to prosecute his action in the state court, to a trial by a jury. For a court of equity to assume jurisdiction in such a case would be to deprive them of that constitutional guaranty. Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. 712, 35 L. Ed. 358; Cates v. Allen, 149 U. S. 451, 13 Sup. Ct. 883, 977, 37 L. Ed. 804; Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276, 34 L. Ed. 873; Lewis Pub. Co. v. Wyman (C. C.) 168 Fed. 756, 762.

Nor ■ is there any necessity for an apportionment of damages, which it was claimed by counsel for plaintiff in argument would prevent an adequate remedy at law. The allegations in the bill charge all the defendants as being tort-feasors, acting in conjunction with each other; and the law is elementary that each and all joint tort-feasors are responsible for the entire damage caused by their unlawful acts. There is no necessity therefore for an apportionment of damages, nor is it even necessary to join all of them in one action. If the allegations in the bill are true, the plaintiff may sue all or any of the defendants, their agents, and contractors, or any others who in any wise assisted or aided in the commission of the torts complained of, and recover in such an action all the damages he may be entitled to. '

[3] Other reasons why plaintiff is not entitled to an injunction, the sole relief prayed for, are that, assuming for the purposes of this, case that the injury suffered by the plaintiff could have been prevented by an injunction when the levee was first being constructed, a person cannot stand by without objection and see the work, which will damage his properly, clone at an expense of millions of dollars, and, when completed, ask a court of equity to enjoin the repairing or maintenance of the same. The bill alleges that this work was begun in 1883 under the supervision of the government, and the courts will take judicial notice of the fact that levees have been constructed on the banks of the Mississippi river for over a century,, and that millions have been expended in the work, but not until 1913, after the levees have all been completed, was this bill filed. Upon such a state of facts plaintiff is not only guilty of such laches as will prevent a court of equity from granting him relief, but he is estopped from claiming it. Duke of Leeds v. Earl of Amherst, 2 Phil. Chy. Cases, 117, decided hy Eord Cottingham, and followed by American courts generally; St. Julien v. Morgan’s Railway Co., 35 La. Ann. 924; Organ v. Memphis & Little Rock Ry. Co., 51 Ark. 235, 244, 11 S. W. 96.

The same principle has been applied in actions of ejectment when a railroad company had appropriated lands for a right of way without first having made compensation therefor. United States v. Great Falls Mfg. Co., 112 U. S. 645, 656, 5 Sup. Ct. 306, 28 L. Ed. 846; Kittell v. Railway Co., 56 Vt. 96; Goodin v. Cincinnati, etc., Co., 18 Ohio St. 169, 98 Am. Dec. 95; Harlow v. Marquette, etc., Ry. Co., 41 Mich. 336, 2 N. W. 48; Reichert v. Railway Co., 51 Ark. 491, 11 S. W. 696, 5 L. R. A. 183.

[4] But, if there were no other defects in the bill, plaintiff would not be entitled to an injunction as prayed for therein. Injunctions are not matters of right, and while they are issued, not in the arbitrary or whimsical will, but in the judicial discretion of the court,, guided by the established principles, rules, and practice in equity,, regard must be had for the comparative injury which will be sustained if the injunction were granted or refused. If it appears that the granting of the injunction, although plaintiff may be ordinarily entitled to it, would inflict such great damage on the defendants or the public that that suffered by the plaintiff, if the injunction is refused,, will be relatively insignificant, an injunction must be refused. New York City v. Pine, supra; Kansas v. Colorado, 206 U. S. 46, 117, 27 Sup. Ct. 655, 51 L. Ed. 956; McCarthy v. Bunker Hill, etc., Co., 164 Fed. 927, 92 C. C. A. 259; Shubert v. Woodward, 167 Fed. 47, 54, 92 C. C. A. 509; In re Arkansas Railroad Rates (C. C.) 168 Fed. 720, 722.

In Parker v. Winnipiseogee, etc., Co., 2 Black, 545, 552 (17 L. Ed. 333), the Supreme Court said:

“Even after a right has been established at law, a court of chancery will not, as of course, interpose by injunction. It will consider all the circumstances, the consequences of such action and the real equity of the ease.”

It is a well-known fact that since the construction of these levees millions of acres of swamp lands and lands subject to annual inundation have been reclaimed and become the homes of hundreds of thousands of citizens. What was theretofore a wilderness has been made into a garden spot. To do away with the levee system at the present time would destroy these lands, and make the, inhabitants of that country homeless. No court of equity would be Justified'in lending its aid when such results would necessarily follow.

Equity rule 22 (33 Sup. Ct. xxv), now in force, provides:

“If at any time it appears that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be transferred to the law side and be there proceeded with, with only such alterations in the pleadings as shall be essential.”

[5] If the plaintiff had claimed damages in his bill as an alternative relief in case the court held that he is not entitled to an injunction, it would have been the duty of the court to transfer the case to the law side, provided the allegations of the bill showed that he is entitled to such relief; but no such relief is asked in the bill nor do the allegations show that he would have a cause of action on the law side of the court. A transfer would therefore be a useless act. By his own statement the plaintiff’s cause of action is barred by the statute of limitations, and there are no allegations to remove that bar. Whenever the nuisance is of a permanent character, or'its construction or continuance are necessarily injurious, the damage is original, and may be at once fully compensated. In such a case the statute of limitation begins to run from the construction of the nuisance. That is the rule established by the highest court of this state. St. L., I. M. & S. Ry. Co. v. Morris, 35 Ark. 622; Little Rock & Ft. Smith Ry. Co. v. Chapman, 39 Ark. 463, 43 Am. Rep. 280; St. L., I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, 12 S. W. 331, 6 L. R. A. 804, 20 Am. St. Rep. 174; Woods on Limitation (3d Ed.) § 180.

[6] In McCoy v. Plum Bayou Levee District, 95 Ark. 345, 352, 129 S. W. 1097, 29 L. R. A. (N. S.) 396, it was held that:

“A levee district which builds a levee so as to protect lauds from overflow of the waters of a stream at flood time will not under the Constitution and statutory provisions of the state of Arkansas become liable for injuries to land lying between the levee and the river, resulting from flood waters being raised higher between the levee and the river than before the levee was constructed.”

In Monongahela Nav. Co. v. Coons, 6 Watts & S. (Pa.) 101, plaintiff’s millsite was destroyed by the backing up of water by a dam built by a canal company under authority of law for the improvement -of navigation, and the Supreme Court of Pennsylvania held this to be a mere consequential damage resulting from the prior right to improve navigation, that it was damnum absque injuria, and that such flooding ■did not amount to a taking under the Constitution. This case was •cited with approval and followed in Gibson v. United States, 166 U. S. 269, 273, 17 Sup. Ct. 578, 41 L. Ed. 996. See, also, St. Louis S. W. Ry. Co. v. Miller Levee Dist. No. 2 (D. C.) 197 Fed. 815, 822. While'under the laws regulating pleading and practice of this state, as •construed by the Supreme Court, the statute of limitations is not available by demurrer in actions at law, but must be pleaded, there is this ■exception.; That if the complaint shows that sufficient time has elapsed to bar a cause of action, and also the nonexistence of any ground of .avoidance, the statute is available on demurrer. Collins v. Mack, 31 Ark. 684; Hutchinson v. Hutchinson, 34 Ark. 164.

The motion to dismiss the bill is sustained.