Franklin v. United States

4o9 mortgaged were asserts, shown showing mortgage that sub- brought removed lawfully sisting lien property and the could situation thus sold County not be The note from Gem and could ambit of the statute. con disposed January, or secured in 1929. otherwise without became due called the mortgagee.1 Attention usual course it would have become sent pro statutes, years of which barred from that to two Idaho limitation five property 5-216, An- mortgaged personal date. Idaho vides that if Section Code county face, where the notated. On its had ceased is removed from the note validity record, and, obligation, mortgage be an enforceable is filed thereby mortgage mortgage being barred, is not affected debt the lien of the would, course, property Appellant be removed with unless fail with it. 2 The mortgagee. any prove consent of the made no offer to fact which written statute, 17-3907, An might Idaho Code or other have tolled the statute § “Every mortgagor notated, mortgage a sub- follows: would have rendered the pursuance property mortgaged sisting question. lien as of the time -- case, Title chapter provisions posture In this no there was who, mort -, Code, while such in excluding Idaho error the exhibits. or in whole gage unsatisfied remains Affirmed. county or wilfully part, removes recorded, mortgage is where such counties sells, any conceals, or destroys, or property mort disposes of the manner thereof, any part without gaged, or mortgage, of the holder consent larceny.” guilty of proffered Appellant says that exhib- value of FRANKLIN et v. UNITED STATES. bearing had a al. material since, light property, the use No. 7583. particularly the statutes —more these Appeals, Circuit. Sixth Circuit Court been latter —none of it could have Jan. moved, rented, disposed of or otherwise mortgagee’s consent assignee. is said that the exhibits appellee in evidence had been received necessity have would been under disposition showing consent to such or have been obtained could had in the absence assignee; and that perforce showing jury must such property use that the determined posi- appellee inwas value of which rental tion to itself. avail evidence doubt whether collateral We material or would of this sort was Obviously its event. admissible inquiries to remote reception lead would unduly the issue and tending to confuse HAMILTON, Judge, dissenting. Circuit However, assuming that trial. prolong the provable proper might be fact necessary case, to show that it was at least Concededly ap- a lien. in fact property, owner of pellee was the freely an owner presumed it is belongs of that which dispose vise impediment to removal use No him. appear unless appellee could not have used there was was evidence There property in it there. Gem Coun for such demand 2 44-1007, Idaho Code Annotated. § practically tend out at into the 1,300 angles bank, from the Arkansas n 4,000 river, the feet the bed into above surface ordi- of the at the nary stage; prior construction that dikes, oppo- of the the in the river current appellants’ away site not lands was (Sam Memphis, Tenn. Costen, of Sam bank, against the the Tennessee where Crabtree, R. and Carl Costen, C. Charles lay; purpose lands that the effect the Tenn., on Graves, all of Memphis, the construction was of the river almost current force the appellants. brief), for course, away from its natural river, right angle (Wil- the Tenn. across Memphis, Draper, G. R. side, against Mooney, R. the bank on the Tennessee McClanahan, P.C. liam J. improve Tenn., navigation; in order the that as a Memphis, Draper, all of G. current, change result of such within United States. brief), for the year completion the after all dikes HAM- SIMONS, ALLEN and Before appellants’ but a few en- acres of land was Judges. ILTON, Circuit tirely away, washed former loca- and its tion became the bed and channel com- Judge. ALLEN, Circuit river; merce the that the the result of presented question principal construction dikes was an intention- (cid:127) United by the construction whether complete al direct invasion and destruction bed bank and on the of dikes property. purpose for the River Mississippi of of alleges The declaration further that im- in order current changing paid compensation provided been or after resulted prove navigation, paid the damages for averred to have appellants’ away of washing year in the sustained, and that the destruction of river, con- opposite side of proximate lands was a direct and proper- private appropriation of stitutes dikes; sult of Amend- purview of the inevitable, such destruction was and that United Constitution ment to the known such result would occur was well to interposed A States, A. demurrer U. C.S. agents the Government and its Dis- sustained the declaration to trict Court. construction; that the construction dismissing judgment From the appro- taking constituted a dikes prosecuted. appeal is .this declaration the- priation appellants’ of an ease- separately instituted actions Two thereon for use within ment scope owned undi- whom appellants, each meaning Amend- of the Fifth 1,100 acres interest vided one-fourth ment to the Constitution of the Tennessee, east bank located on the land in provides private prop- Mississippi River, consolidat- shall not be taken use with- District Court. by agreement ed just compensation. out land in declaration avers that upon the The Government demurred and so elevated above is fertile question grounds: fully use- waters ful at all times owner of an undivided (1) That acting farming; pros- interest the land cannot one-fourth ecute co-tenants; Mississippi River Flood Control under Act, joining the other the action 702a-702n, C., U. S. Sections Title 702a-702n, the inclusive, 33 U.S.C.A. § alleged facts do not (2) That the certain in 1931 constructed United States purview taking stitute a Fifth' Mississippi River dis- a short dikes Amendment; appellants’ land opposite tance ' Mississippi River Flood (3) That Arkansas of the river. side recovery provide for Act does not Control alleges, in further sub- The declaration averred; and damage stance, the dikes were constructed action, any, (4) the cause That parallel piling, rows two driving of the and close jurisdic- tort, court has no and that the together with together, bound tort action tion of a between with crushed and filled cable steel rock, States. being character such as ef- the demurrer the court sustaining flow permanent obstruction of the fect a river; grounds except joinder all that of ex- ruled water in the question judgment Congress, parties. necessary While that use of necessary pur- bottom of proper here, the river urged it is not again upon pose holding of placing our therein structures in aid of init view of consider navigation, thereby case. other branches public use, owner’s a question, main decision of The very subject title was in nature to tak- presents a case namely, whether the navigation.” use in the of interest compensation, property without ing of Amendment, power depends improve navigation in The to violation navigable power United States cludes the divert power upon closing lia- stream chan and its of one of its question the dikes in construct supra. Georgia, nels. South damage described as caused Carolina v. bility for the Congress pow Mississippi River That case holds that the The by the construction. placed er to order obstructions specifically authorized Flood Control Act navigable States, in the exer- waters of the ei work, Congress, United and the regulate navigation express power change inter- or to ther assist of its cise 8, 3, 1, of (Art. forcing cl. Unit direction into Sec. one channel commerce state A.) Constitution, may im rather than the other. In the U. S. C. ed States Ogden, making navigation. 9 of the United prove improvements, Gibbons v. such 1, 23; consequential Carolina v. States not liable for dam 6 L.Ed. South Wheat. 782; States, supra; 4, age. Bed L.Ed. Gilman Gibson v. United Georgia, 93 U.S. 23 States, 217, 713, 18 192 U.S. 24 Philadelphia, 724, 3 L.Ed. ford v. United S.Ct. Wall. v. 414; 238, 48 L.Ed. United Valley Au v. Ashwander v. Tennessee 96. thority, Jackson States, 466, 1, 1011, 230 33 L.Ed. 288, U.S. S.Ct. 57 U.S. 56 80 L. 297 S.Ct. case, "Riparian Cf. 243 1363. United States v. being Ed. 688. 316, 327, 380, 61 37 S.Ct. obligation L.Ed. 746. subject ownership “consequential meaning improvement the term dam consequences of suffer the Transpor age” in Northern navigation in exercise of the dom is illustrated Chicago, 635, 25 L. tation Co. v. 99 U.S. right government re inant 336, States, Ed. which held that acts done in the Gibson gard.” v. United 166 U.S. governmental proper powers 269, exercise 17 41 L.Ed. S.Ct. 996. See directly encroaching upon private Bridge and not States, Union Co. United 204 also v. 364, 523; property, consequences 367, though their S.Ct. Han use, impair its do not Bridge States, Co. constitute nibal 221 U.S. 603, 194, meaning within constitutional 31 S.Ct. 55 L.Ed. Cf. 699. Lewis provision. Oyster Briggs, Blue Point Co. v. 229 U.S. 82, 1083; 87, 33 S.Ct. 57 L.Ed. Wil case the construction In instant United link v. 240 U.S. proper govern- exercise dikes 808; v. directly power, did mental Co., Chandler-Dunbar Water Power 229 U. private property. The dikes encroach 33 S.Ct. S. 57 L.Ed. upon appellants’ point at no touch said, case court page last 33 S.Ct. It the Arkansas side river. are on page 671: alleged a result constrxxc- completion year tion, after the "This title of the owner up- of fast land dikes, few all but a acres the shore of a navigable on river to the bed * * * away. This de- land was washed averment of the river is subordinate erosion, gradual held such as was scribes navigation, and however States, supra, give Bedford United helpful in protecting against owner recovery. rise to parties, acts third of no avail the exercise of great pow- and absolute urged But it that the doctrine Unit Congress improvement er of over the Lynah, ed States 349, navigable power rivers. That 539; use Pumpelly Bay 47 L.Ed. v. Green control comes from the regulate Co., and United Wall. commerce between the states and requires with for- Cress, supra, a different eign nations. includes Pumpelly Lynah In the conclusion. every subjects navigable river to the con- by the the erection United States Cases Congress. trol of All corporation means having some quasi-public a dam by a positive relation backing permanent to the end in view resulted provision privately-owned forbidden are not some other ly abutting over waters, the Constitution navigable give are admissible. was held to If, in rise to damage. following That pay for the was an action implied damages contract of dam- the questions irriga- presented government construction aof The Cress Case project by non- tion body abutting which the parcels age to streams, by government water rose entire throughout effected appellant section. general manufacturing navigable streams. dams in lake, soda from holdings, stated the water of level scope these [page feet, supra, about Lynah, destroying 357] is that rose nineteen States v. appellant’s value property. government “where the floods public works a dam or other court assumed of lands causal connection between individual sub- belonging to the work of the rise Government and the is a destroy their value stantially waters consequent de- lake and the 5th Amend- scope the of appellant’s struction taking property, but said n 1 declared to flooding is a ment.” Such [page that “it does not follow that the 59] private invasion of actual constitute an government pay obligation under to proper- (San- Or, stated therefor, as property. elsewhere taking the 146, 44 States, 264 U.S. guinetti United done ties.” It declared that “what is 608), order “in S.Ct. conse- exercise of a and the the against the liability enforceable incidental, an create quences only incurring no liabil- necessary that at least government; it is ity,” held that there could be no recov- direct result be the overflow the structure,- ery.' actual, perma- an and constitute Gibson, In the Bedford and Jackson amounting to invasion the nent of of and permanent cases, supra, substantial and ipjury merely an appropriation private property damage resulting from property.” to the that similar in character to constructions doc- the apparent between conflict was to constitute attacked herein held not Cress Lynah, Pumpelly, and the trine taking. Bedford, Gibson, Cases, and the Jack- 2,200 Case, feet in In the Gibson a dike when it Cases, resolved supra, is son first had United length, in the been constructed the doctrine mind that the borne in River, Ohio in order States the general the from deviation cases is a three the water-flow in main channel centrate the said court rule, constituting, as the only It 400 river. was feet east Chicago, of the Co. v. Transportation Northern supra, de- substantially farm. the claimant’s qualifi- 642, “The éxtremest page * * landing stroyed the use the claimant’s *.” The court of the doctrine cation from land and reduced value of the Pum- point that in the out went on then per As there acre. was $600 $200 physical-invasion “there was a pelly Case physical invasion real estate and owner, real estate of possession, owner’s ouster actual possession.” In practical ouster quoted denied. court was recovery did not States case instant from Carolina v. approval' with South. nor oust the the land physically invade Transportation Co. Northern Georgia, and possession. The test of owner pre- supra, that Chicago, and held scope taking .the unlawful egress ingress to of the free vention Amendment is not extent of inva- land was not a direct claimant’s the sion, inva- injury. the character “It is consequence incidental but the resulting damage sion, amount govern- 'proper exercise of a lawful and it, damage long as the is substan- power. mental tial, question determines whether taking.” United States v. su- it , Case, alleged Bedford was In the 385. pra, page page 37 S.Ct. at consequence of the construction upon Mississippi, manner sweeping An illustration of the bank of the revetment Supreme upheld in which the Court lands were eroded over- the claimant’s the United States to make im- determined flowed. The court damage strictly provements liability consequential, without incurring and de- recovery. consequential damage We are unable is shown in the case to see nied principle Horstmann Co. between the difference Bed- John case. instant ford part by per- Grizzard, In United of claimant’s U. L.R.A.,N.S., flooding. manent S. been an actual there had 113 tion, ques- velocity force, Case, diverting In the Jackson wa- river, natural flow annually flooded tion had been Jackson construc- Mississippi, Case. due to the There the court held the altera- ters public tion of the current and the river flow system of continuous of a tion works, gave rise to no liability part so confin- purpose of “for the built United States. Here the cur- lines fact that between the river ing the waters rent was altered dikes constructed levees, increased embankment, give improvement no oc- cur- velocity and force elevation general casion for modifying the rule deepen chan- scour and in order to rent entry in absence of an actual plans executing their [page nel.” 1013.] private property, damage invasion of “by had the officers done the erection of lawful construction constructed they had levees which in a as a matter of law White front of along the maintained consequential, recovery and that no can be flow basins, prevented the Tensas river and of apart from statute. basins those of water into large volume * * * largely the increased thus and had correctly sustained demurrer past the claimants’ flowing volume with reference to the third therein waters the flood confining of land.” The Mississippi River Flood Con- stated. The lines levees’ Mississippi between the of the not, trol does to construction de- Act velocity, a increased an given them declaration, enlarge lia- scribed in elevation, stronger more and and a higher 33, bility of the United States. Title U.S. destruc- current, caused the forceful C., 702c, 702c, ap- Section 33 U.S.C.A. § livestock, drowning of crops, the section, tion plicable relates to the away of build- washing undermining and levees, the ings, of or the failure to construct and washing improvements, fences not to the construction of dikes in the river- soil, destruction and the entire off of the bed. land. of the the value correctly The demurrer was sustained ground. action, the fourth to cause of urge that appellants case instant In any, Sanguinetti inis tort. v. constructing the purpose in alleged since the States, supra. But the United States is river, current change the to dike was tort, liable in jurisdiction federal court no has They contend that results. invasion a direct against of a tort action right have to riparian owner United States. Ball Engineering Co. v. unchanged in him to come J. river Co., G. White & 250 U.S. 39 S.Ct. against in right as is their condition. 393, 63 L.Ed. 835. (United v. States riparian owners dividual Co., supra, Power judgment Water is affirmed. Chandler-Dunbar 667; v. Cubbins Missis 33 S.Ct. page at Commission, 351, 366, SIMONS, sippi Judge (concurring). River Circuit 1041), not as 36 S.Ct. by I concur in the conclusion reached power paramount of opinion, controlling general and in the. improve navigation. United to reasoning. however, with clear, It is Water Power Chandler-Dunbar analysis from authorities therein 667; 70, 33 S.Ct. Cubbins v. Co., page made, the discussion of them in Commission, page Mississippi River dissenting opinion, con- there is 671; Hughes United 36 S.Ct. holdings flict between the Pumpelly in the 1374, 46 57 L.Ed. 33 S.Ct. U.S. Lynah Cases the one hand and the power Congress L.R.A.,N.S., 624. The Gibson, Bedford and Cases on the Jackson expanse whole stream. to extends other, pointed respect a conflict out in Garrison, Lumber Co. v. some of them Mr. Chief Greenleaf-Johnson Secretary White Justice War, S. Associate Fuller and Harlan Justices 939. The United States Ct. opinion dissenting Lynah in the Case. riparian responsible owners is generalizations any event damages the deflection consequential been, as cases have indicated in the earlier lawfully by reason of structures waters Case, subject excep- made Horstmann n navigation. in aid of constructed subsequent cases. tions practical place the distinction To between the can see distinction be- two We upon changing the current of authorities the river lines tween here, waters, liability against confining the an enforceable concentrat- create give them there must be ing increased eleva- Government an actual them as to amounting permanent the land built that their invasion of taken lands would be merely destroyed it, and not appropriation to an as a result construction. 'of the property, may sound injury be to the Mississippi body is river a vast applica- principle but difficult of becomes continually water nel, changing its or chan- bed differences specific because tion in cases abruptly, slowly sometimes other times what invasion in view as to amounts to insiduously riparian Owners privately appropriation. servitude subject hold their lands to the servitude forming the banks and bed owned right levees, to construct a stream to interests of keep river dikes revetments and a natural streams servitude confined to such prop- ordinary within its channels. When inas condition and natural damaged the enforce- taken are in fact. United States exercise ment this servitude there 37 S.Ct. right eminent domain and the said, however, It there compensation stitutional making limitation the com- under Government prerequisite inapplicable before clause, powers, merce like other must compelled owner because the exercised in subordination to the impressed only obligation to submit to me, Amendment. seem how- original property by the by law ever, principle, conceding the grant law under the common spect riparian lands subservient independ- acquired or held and land was power, exercise of a constitutional domain, no ently of eminent scope grant, the reasonable can of its compensation due. sort is no taking when the fronting Those who own land yield lands are in fact made Gov- to the gain is made all that response servitude, ernment away and lose all is carried alluvion reason of their location by always due to movement subject. abrasion the natural been The in- Cress Case However, shore of the stream. some its non-navigable volved lands tributaries broken is an under never moved or navigable assumed, of a stratum river. It was there up since creation this is fast. land. though decided, and owners of such rights lands had greater owners than the people im- these make On fast lands the bordering upon of lands navigable stream. provements free and build homes and are principle But if of natural servitude improvement from the servitude of is confined to bordering lands nav- streams subject and abrasion. of lands to alluvion igable in in fact their and natural description appellants’ The lands condition, the support Cress Case does not shows them to natural embankment have a present claimants. along or levee the river shore and in their subject natural state not overflow HAMILTON, Judge (dissent- Circuit ordinary high washing and water above ing). is both the friend mark. I opinion am unable to concur in the enemy It furnishes a man. broad the Court. the nation and across highway commerce ap- threat of appellee, long been_a flood waters have purpose for its this who live in its disaster to the thousands must admit peal, the truth all the facts valley. plead appellants’ in- fertile petitions well in all may fairly tendments and inferences that people living From the earliest times reasonably be drawn therefrom and sought protection alluvial its shores light will be these facts considered in the its floods. The inhabitants first appellants. favorable most by protection their own local constructed Appellants allege up the throwing reason of earthern mounds around their of the dikes combinations plantations, construction the current of the then there were protect- oppo- changed and forced to the and communities which river of owners levees, proximate larger shore and as a re- areas. Levee districts site direct ed their formed and in thereof lands theretofore were later chartered each sult mark, twenty-seven ordinary high until there about had been state valley proper part the bed river alluvial in and in the addition to became They commerce. of it. The United channel of further north States Gov- its al- those protection appellee, part in flood making in im- took no un- lege that ernment that time before and since provement, knew the dikes were has been til for good. inequality, river to confine constant effort justice. the antithesis of channel. days con- these objective, when men women áre accomplish To oppressed common harried quarters many of levees has struction practice. world, lie appellants courts, a troubled deciding is useful to riv- Hatchee government issues between shore in Tennessee on the er citizens, Arkansas and its opposite simple to bear in on the mind the valley is words of Bill Rights Basin guaran- Francis shore is St. swamps tee the liberties we vast area of cherish. The conclud- up made of a ing chan- clause confine bayous. It is difficult to Amendment private property because shall pub- side but Arkansas be taken for nel on the purposes lic just easily compensation confined it is without higher land great com- affirmance of a shore. The doctrine establish- Tennessee ed common protection when law for petition appellants’ plained of location, private property light geographic equality of burden sidered notice, citizenship. judicial principle It is may take of universal which we appellee law that wherever purpose proper- was the own shows it to divert recognized government, a free prac- the channel of tically all rights other shore constantly shifting Arkansas become worthless government possesses Tennessee shore certain firmer and uncontrollable be- appellants over the every doing this the fast land citizen. high- channel the river and came the Nature, bounty, gave in its all of shores. er and receded great people highways commerce, made up in- making sea, lakes and and no rivers cannot exist The nation right to possess dividual has the use great demands of individuals. public. All them to the exclusion of service war the quire them in time of acquire property who bound water’s and the sacrifice of of their bodies edge subject streams preserva- take it necessary lives which imposed by conquering the servitude im- enemy law the whole. An tion of provement tyrannize people, purpose of the stream for country also a hence try navigation. pow- coun- has the devotion to Government the individual’s er do necessary whatever it rests deems sacrifice but not disinterested purpose position keeping of free individ- the in co-operative in the on his peace clear bed and the of the stream the crest of to One also ual state. ordinary high of water mark. How- property for the his required to contribute be ever, by contribu- this Fifth of nation but this the the limited benefit appro- Amendment and cannot be priate to suitably used distributed. What- tion must navigation property the the subject good of perish ever exists the ordinary lying high the citizen water country the own- and includes the navigable of a un- property. not mark stream. It the The should ership of State dams, dikes, piers, prop- fettered erect the arbitrarily with uses of interfere other bridges and and structures erty individuals title which purpose improving nav- expropriates for streams the benefit of whatever it igation ex- only but it could be known just on com- the should be done the whole public reasonable offi- principle ercise care of a pensation to the owner. lawfully improve authorized thus rests, sanctity on cials much of own- not so navigation the result will divert- just on distribu- ership property, current into a new government. ing If the channel burdens of tion high needs, public, fast lands above the over for the use of the state property den mark, individual, taking under there is of an must not bur- propor- Amendment. with more than his its owner share. tionate issue in this The vital case is whether complained injuries According allegations appel- amount to appellants’ property taking of did lie with- pleadings, lants’ term, meaning of dangerous area flood the Mis- constitutional in the transferring governmental agen- its con- is sissippi river and not a possession public utility brought cy its own or into use which tribution keeping equal appropriating entering or in- but re- or benefit were them an prop- possession use of another’s qidred to contribute more than their share to the 466 States, seem might In the case of Bedford v. United his consent. without simple state- 217, 225, 238, 192 U.S. 48 L.Ed. by a 24 S.Ct. answered this could be 414, appellants decisions five ment, were the owners of but an- examination subject or six improved thousand land Supreme Court on the acres disappear Mississippi Lou- conflicts which River in the State apparent veals 1876, the closely analyzed. spring isiana. Prior when cases are river flowed neck around a narrow purpos rights of known as city DeSoto Point only extend es of Vicksburg, southwesterly direc- in a .proper beyond that state of stream 1876, In gradual tion. erosion, the spring of due to compensation. taken cannot be point through the river broke Bay Company, Wall. Pumpelly Green straightened channel, taking its 557; 182, United 166, 166, 20 L.Ed. 80 U.S. directly south, course great and moved with 37 S.Ct. velocity against Mississippi bank, Bird, U.S. 746; Packer v. 61 L.Ed. being several resulted its main channel 819; away Vicksburg. city of miles from the Irrigation & Grande Dam Rio States v. naviga- old channel became unfit for rThe 698, 19 U.S. Company, 174 longer and boats tion dock there. could States, 1136; Leovy 43 L.Ed. Between 1878 and the United States 914; 797, 44 L.Ed. 621, 631, 20 S.Ct. 10,700 constructed about feet revetment Q. Rail Chicago B. & United States along the banks of Delta 131, 106 Cir., A.L. 82 F.2d Company, road Point, purpose preventing fur- R. 942. ther erosion and to force the back current opinions of statements in general All into struction, former channel. After this con- proper exer- done courts that acts the channel and current direct- powers cise governmental gradually directed toward property, ly encroaching lands of the Bedfords which were situated impair its consequences may though their six miles about below DeSoto Point use, meaning taking within year are not about of 1882, reached these lands en- provision do not constitutional 2,300 and eroded overflowed acres. compensation, must be title the owner The cause up- deflection of the river peculiar to the facts light read on Bedford’s was its natural cut- done, case, are off, when this is each not the construction of the revetments pronouncements. j.udicial conflicts did course, not change its kept it but point Gibson v. at the placed where nature it. 996, United 17 S.Ct. revetment did not cause the Bed- erosion of in the Ohio River constructed a dike only ford’s land it, accelerated the ex- point off Neville Island nine miles about of which conjectural. court, tent 'appel- city Pittsburgh. denying west of the appellant damages, said lant owned a tract of the island [page words, “In object other 240]: high in fronting which a preserve was the works was the conditions improved. by and well state of cultivation She made natural causes.” on the island which landing had a States, In the case of Jackson shipped prod- by she loaded and river the By farm. of con- ucts of her reason the lands were the situated in Point Jackson dikes, the struction of was done un- valley the alluvial the on of congressional authority, ingress der and river, bank forty the left of the miles below egress by her landing to and from boats were twenty-five Natchez and miles above the destroyed, completely except during periods Red mouth of River. owners the high appellant water. had outlet property had built levees which in resulted except products of her farm over protecting from destructive it overflows neighbors land of her the the construc- many years highly and for it was improved, stocked, tion of the dike decreased great productive the value her capacity well per large farm from $200 acre. The Su- $600 and of value. The in States preme ruled Court that there was no inva- 1883 constructed a levee On the west bank taking appellant’s proper- opposite sion or actual the river ap- the lands of the damages consequen- her pressure and that pellants- were relieved the tial, entry upon augmented because was no her levees but risk the by flooding by or changing increasing the danger course overflow the aof By

of the stream. in them. these break levees the United implied obligation wa- no pay the arose on large quantities prevented part government. reached of the otherwise ter, which river, Atchafalaya through the Gulf the foregoing principal are the cases course, caus- thus natural taking on which the lower court relied sustain- in levee appellants’ up to back ing it ing the appel- demurrer and on which the crops and ruin their overflow lee here relies affirmance. There a agricul- destroy of their land the value line of demarcation in each case from the purposes. grazing tural bar in that change the water was con- fined ordinary high the level water located appellants were by stream made There nature. was strip lying be- limits a narrow no artificial level, increase in width or flow- Mississip- the bank of tween low water in of these cases. be- highlands of it pi east river and Rouge where Baton Vicksburg and tween In of Pumpelly Bay the case v. Green river bank close to the highlands skirt Company, appellee supra, the had erected a by protected levee construc- were not river, dam across Fox the northern outlet (he appellants, other than built tion Winnebago, by of Lake wateis which the that in them claimed and it was of the lake high were raised so forc- na- in state levees and a absence of all ibly, violence, and with ap- overflow the ordinary they would not seasons ture pellant’s comple- land from the They had built overflowed. high tion the dam in to the commence- protect their which answer- levee to a suit, ment of the water coming in with were purpose other levees ed such violence up as to tear his trees and flow wa- increase the which would built roots, them, grass by the and wash with his level. flood river and raise the ter hay by away, up the tons to choke his ditches, up drains and fill to saturate damages, Supreme Court denying lands, injure parts some of his other pri- a decision rested its by bringing deposits leaving on them to construct had vate individual observed, also, of sand. is to prop- protection his own levee for the a Winnebago Lake waters of raised so with long so he did not interfere high with overflow violence all stream, and as flow of appellant lands of the from the time principle, the United corollary completion dam, until the States, sim- Boards and Levee suit, commencement of the was 1867. It agencies had the same ilar appellees insisted although doing wa- struct levees erected a dam in accordance with the act over the theretofore was forced levee ter congress, question that the lands in individual. constructed appropriated. Up- taken or had not been S., 264 Sanguinetti U. case of In the rendering court, on this contention announced, appeal, the decision on 13 Wall. constructed canal for opinion 176: “We are that the stat- navigation, the exca- improvement did ute not authorize the erection dam put on lower side was vated material which would raise the lake water of the levee, making a of which of the canal level.” continuation, practically dam reference the contention With dispose way most convenient appellees, that there was no constitutional helped prevent also material appellant’s land, and that During flood lower bank. erosion consequential damage was a result of such carry proved to period canal insufficient navigable stream as govern- use of a lands which overflowed the waters off the right improve- to make for ment had a it, appellant lying damaging said:, navigation, the its court ment of crops ex- and trees and some destroying to very curious flood- “It would be and unsatis- which would been tent the result, factory construing provision degree canal not if had the certain ed to a always law constitutional understood per- of constructed, none it was been adopted protection nor for se- manently length flooded for such have been rights curity prevent agricultural its the individual as use for Supreme government, and which against held has purposes. Court jurists, states- the United the commendation of States ceived not men, just as placing and commentators that it its nature an but was liable injury common consequential principles law on that sub- for which indirect 468 ject beyond power ordinary .legisla- If the riparian land of a owner above them, change tion or control shall be high it water perma mark government nently held that the refrains overflowed while improving naviga property absolute conversion real tion and he is thereby deprived of bene its public destroy its uses of it can ficial use enjoyment compen without entirely, irreparable sation, value can inflict it follows that principle same can, permanent extent, injury any ef- his land could be equally used for the erec fect, subject it to total destruction tion of a upon it, dam being as destruc because, any compensation, in the making tive as the other. transparent It is a fal word, lacy sense it is say narrowest of that to. that a citizen’s not taken taken for the use. Such a construc- when water so often it as to de overflows provi- prive pervert tion would the constitutional him of its use though still he retains rights of sion into a restriction worthless title. flowage citizen, rights the common as those stood at the owner’s consent and without government, law, compensation instead of is a taking of un authority invasion it an for the der make the Fifth Manigault Amendment. v. pretext private right under the of the Springs, 473, 484, 199 U.S. 127, 26 S.Ct. 50 274; in the good, which had no warrant 290 U. Jacobs 13, practices 18, our laws ancestors.” S. 96 A.L.R. 1. Where it is appropriated thus con under Lynah, 188 U.S. In the United States v. gressional authority, implied there is an 445, 485, dam promise part of the United by the United States had been constructed pay the owner its Hurley reasonable value. in such hinder the natural manner as to Kincaid, 95, 104, 52 S.Ct. result, and, necessary flow of a stream 76 L.Ed. 637. overflow the level of its waters and raise In all bordering states on Mississippi, plaintiff such the land of an extent as implied power there is an Legisla destruction, total value. It cause a ture and a fortiori in the Congress to take impossible to remove this overflow adjacent all the land to the river to the or consequence, property, in water and the dinary high water mark purposes bog, any become an irreclaimable unfit navigation and as pur an incident to that prop- held agricultural use. It was pose to control floods but it does not follow Govern- erty had been taken and that the from this that there is outside of compensation, up- just liable ment was apart and to right from the domain eminent payment Of which the title and lawfully by implied legislation direct or possession pass. any private take property above the ordi nary high water mark or take the it use of In United States v. L.Ed; damage deprive so it as to owner gov- 37 S.Ct. compensation. it without Yates Milwau lock means of a and dam had ernment kee, Wall. 19 L. the Cumberland. raised the Ed. 984. level, above its subjected perma- normally invaded were recognized prop- long impairing nently frequent overflows, implied is owned under limitation one-half value. them to the extent of yield to the necessities of trans- and must improvement had raised the waters A like portation obviously commerce Kentucky river in same manner restricted, implied limitation is otherwise to end the usefulness of a mill so as gone. the Fifth One Amendment fact necessary destroying the head of water determining for consideration lim- such findings plain made that it run it. atad the diminution when is the extent of temporary a case of overflow was not or of magnitude it reaches use of such consequential injury but a condition destroyed, property is there must be an in- “permanent liability to intermittent but compen- of eminent domain exercise evitably recurring taking. overflows” and it was to sustain the Panhandle sation Pipe Company High- overflowing in- Line State that such was a direct Eastern held Commission, vasion, taking. way amounting to a 563, L.Ed. 1090. petition allegations Treating .the appellants’ true, demurrer, as we must on The invasion of the case the current stream clearly legal princi- falls within the bar the diversion cannot be justified on that the

ples foregoing cases. “consequential." damages were has domain to eminent applied phrase as judges meaning by which a broad acquired proceed- judicial misled. are sometimes intelligently and it used ings, should be meaning, proper regard its with due injuries which follow or losses immediate act, but are not direct

it. appel- which the injuries Here the complain result of were direct lants is al- of the dike. While it destroy all of leged the river did not months, lapse of twelve the land until the phrase continuous. The ravages consequential” should “immediate understood, in reference to the space occupies, through or the which the act it passes place it or the from which uninterrupted began, in reference to its but injury is If the progress and termination. inception inflicted the act direct, termination, tinues to complet- if it arises after act ed, by it, consequen- though it is occasioned Thus, digs a ditch di- tial. neighbor’s a stream of water onto his verts across the stream makes a dam which obstructs its current and checks upon complainant’s

throws back Jhe injury an immediate

the obstruction. lays The United States no claim to the ap- controversy title the land and the impracticable

pellants allege that it economically impossible to construct levees protect their them from the changed current of caused appellee. construction of the dikes appellants opinion I am the stated a good respective pe- cause action titions for unlawful under the Fifth Amendment the lower in sustaining court erred the demurrers and judgment should be reversed.

WOLF et al. EBLEN. 7934.

No. Appeals, Court Sixth

Circuit Circuit. Jan.

Case Details

Case Name: Franklin v. United States

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 20, 1939

Citation: 101 F.2d 459

Docket Number: 7583

Court Abbreviation: 6th Cir.