General Box Co. v. United StatesGeneral Box Co. v. United States
Lead Opinion
delivered the opinion of the Court.
General Box Company, an owner of trees of commercial value along the main stem of the Mississippi River in Louisiana, brought this action to recover from the United States the value of its timber destroyed by the Government through its duly authorized agent, a contractor.
The trees grew upon land belonging to others and located between the low- and high-water mark of the river. Such land is known in Louisiana as “batture.”
The location of the operation giving rise to this action was at the Brabston Levee in the Fifth Louisiana Levee District. The first step taken by the United States to obtain the permission of the State to use the State’s servitude in the batture here in issue was the filing of the federal plans with the State District Engineer. The plans were approved by the Engineer and the local Levee Board was so notified.
“It is desired that this District be furnished a formal statement by your Board that rights-of-way are available for the construction of the enlargement and granting the United States a right of entry to prosecute the work. This statement may be in the form of a letter signed by the President of the Board.”
“The Board of Commissioners of the Fifth Louisiana Levee District hereby is glad to comply with your request and render you any assistance possible.”
On July 9 that letter was spread upon the minutes of the Board. We accept that, as did the Court of Appeals, as a ratification by the Board of the act of its President. On July 10 the contractors who were to execute the levee work were authorized by the United States to proceed within 20 days, and the clearing of the batture was commenced on July 22.
No notice was given to petitioner of the intention to bulldoze its trees off the batture. On September 12 the petitioner discovered that the trees were being destroyed, and an objection was promptly made.. The contractor, however, refused to halt its operations, relying upon its contract with the Government.
Petitioner brought two actions in the District Court under the Tucker Act, 28 U. S. C. § 1346 (a)(2), to recover the value of the destroyed timber.
One of the defenses relied upon by the United States throughout this litigation is a claim that it is not liable to petitioner for the timber losses because it received rights-of-way on the land involved from the Levee Board, and that the Levee Board legally appropriated those rights-of-way without compensation under its riparian servitude. Petitioner concedes that under the civil law of Louisiana the property on which its trees were standing, being batture, is subject to a riparian servitude for use by the State of Louisiana in constructing and repairing levees, and that historically the owner of such
Petitioner in effect does claim, however, that the State did not effectively exercise the riparian servitude for the reason that the appropriation here was arbitrary and therefore beyond the power of the State. This contention is based upon the fact that no notice of the proposed destruction was given to petitioner. It is argued that under Louisiana law, which of course defines the bounds of the riparian servitude, the power possessed by the State by reason of the servitude is not an unlimited and arbitrary power;
The Louisiana courts have made no pronouncement which directly controls this question. But see Board of Comm’rs v. Trouille,
. . while in all of the remaining states of the Union lands necessary for levee purposes can only be used after expropriation and proper indemnification, in Louisiana the state has the right to act first, i. e., the authority to appropriate such land to a use to which it is subject under its very title, and talk later.
“. . . And however unfair it may seem to the owners of this type of land they are without right to complain because their acquisition of such land was subject by law to this ancient servitude and theprivate mischief must be endured rather than the public inconvenience or calamity.” 210 La., at 132, 136 ,26 So. 2d, at 478, 479 .
The court further stated that the rights of the State under the servitude can be exercised in the way found to be “most expeditious from an engineering, economical, and practical standpoint.”
Since, as we hold, petitioner’s property was effectively appropriated by state authorities pursuant to the servitude, the United States cannot be liable to petitioner for the value of the property. The State, as owner of the servitude, legally could have destroyed the timber without prior notice and without any opportunity for mitigation of losses, and yet be free of liability to petitioner. The destruction, it seems to us, was consistent with the
The petitioner sought compensation for the destruction of the trees based upon a claim that the “destruction of said timber was [a] taking . . . within the meaning of the Fifth Amendment to the Federal Constitution.” But this property was not taken by the United States in the exercise of its power of eminent domain. In effect, the timber was “owned” by Louisiana for levee purposes, and the United States succeeded to that “ownership” by “conveyance.” Louisiana furnished its batture as required by the law of both the United States and Louisiana for use in protecting the property in the State from floods. Petitioner did not assert in its complaints or in its question presented on petition for certiorari that the destruction violated the Due Process Clause of the Fifth Amendment.
Affirmed.
Notes
Batture is “that part of the river bed which is uncovered at the time of low water, but is covered annually at the time of ordinary high water.” (Italics omitted.) Boyce Cottonseed Oil Mfg. Co. v. Board of Comm’rs,
See Wolfe v. Hurley,
Federal Flood Control Act of May 15, 1928, 45 Stat. 534, as amended, 33 U. S. C. § 702a et seq.
33 U. S. C. § 702c.
La. Const., 1921, Art. XVI, § 5. And see note 6, infra.
Act No. 75, Acts of 1940, La. Rev. Stat., 1950, 52:2. And see Act No. 76, Acts of 1938, La. Gen. Stat., 1939, § 6869.3.
The Board of Commissioners of the Fifth Louisiana Levee District adopted general resolutions in 1928 and 1929, in consideration of the benefits of the Flood Control Act, agreeing to “[p]rovide without cost to the United States all rights of way for levee foundations and levees on the main stem of the Mississippi River.”
On May 19, 1947, the State District Engineer wrote to the President of the Levee Board as follows:
“We are in receipt of a letter from Colonel John R. Hardin, District Engineer, New Orleans District, U. S. Engineers, dated May 9 together with project plans of the proposed enlargement of the Brabston and Ashland Levees south of Vidalia, Louisiana.
“We have examined these plans and it is recommended that your Board concur with Colonel Hardin in enlarging these two low sections of levee in accordance with plans, provided that provisions are made for draining existing gravel road on crown of old levee.”
“Due to the fact that in emergency levee work delays are at times caused by the necessity of waiting for rights-of-ways until the next regular Board meeting, Commissioner Yerger offered the motion, seconded by Commissioner Guenard, and unanimously approved, that the President of the Board, Mr. A. T. Shields, be and he is hereby authorized and empowered on behalf of the Board of Commissioners, Fifth Louisiana Levee District, to grant rights of way where the need is immediate, the proper right-of-way resolutions to be passed in the regular manner at the following Board meeting.”
Although alternative claims were made under the Federal Tort Claims Act, 28 U. S. C. § 1346 (b), they were abandoned while the cases were still in the District Court. See
The Board of Commissioners of the Fifth Levee District was made a third party defendant in the District Court pursuant to a motion of the United States. It was and is the Government’s position that, if it is liable to petitioner, it is entitled to judgment over against the Board. The District Court ruled that the United States was liable and that it, and not the Levee Board, must pay the award.
Cf. Lacour v. Red River, A. & B. B. Levee Dist.,
Petitioner suggests that the destruction of the timber in this case was not for “levee purposes,” but rather was undertaken merely for the purpose of saving the Government money. This contention is based on the fact that the only reason the trees were destroyed was because the contractors were permitted under their contract to bulldoze the standing trees — a less expensive method for clearing land than removing the stumps of cut timber. But in order for the use of the timber to be for “levee purposes,” it is not necessary that the trees themselves be employed in the construction or improvement of the levee. It is sufficient if the trees were destroyed in connection with a levee project. Cf. Lacour v. Red River, A. & B. B. Levee Dist., supra; La. Const., 1921, Art. XVI, § 6.
Petitioner relies on language in Peart v. Meeker,
La. Const., 1921, Art. I, § 2.
Cf. Eldridge v. Trezevant,
Concurrence Opinion
concurring.
The conflicting views between two members and the rest of this Court on the law of Louisiana relevant to the issue in this case prove once more what a precarious business it is for us to adjudicate a federal issue dependent on what the Court finds to be state law, when the highest court of a State has not given us authoritative
Dissenting Opinion
dissenting.
We have at the root of this case a question of Louisiana law — whether the timber grown on batture is “property” and, if so, whether it may be confiscated without any opportunity to the owner to salvage or remove it. The timber concededly is of value. It is bought and sold and plays a significant role in the conduct of commercial enterprises.
Concededly this land between low- and high-water mark — the batture — may be used as the State chooses for the construction and maintenance of levees without compensation to anyone. But we have it on excellent authority that, under Louisiana law, private property on the batture may not be confiscated without reasonable opportunity of the owner to salvage it. The authority is the eminent district judge who decided this case, Hon. Ben C. Dawkins. Judge Dawkins, who was appointed to the federal bench in 1924, was a Louisiana lawyer of distinction. He not only practiced law in that State. From 1912-1918 he was a state district judge and from 1918-1924 an associate justice of Louisiana’s Supreme Court. He was a member of the Louisiana Constitutional Convention in 1921. Indeed, Judge Dawkins was the author of Art. XVI, § 6 of the Louisiana Constitution, which provides that batture may be taken for levee purposes without compensation. See General Box Co. v. United States,
Judge Dawkins relied on Pruyn v. Nelson Bros.,
“This servitude is limited only by the reasonableness of its use, and the administrative officers of the state of Louisiana are charged with determining that limit, subject to review by the courts only when oppression or injustice is shown and proved.”
Judge Dawkins ruled that what was done in this case amounted to “oppression or injustice” within the meaning of the Pruyn case. See
Mr. Justice Holmes wrote, in a case from Puerto Rico, of the special deference due local judges on rulings upon matters under the civil law. Diaz v. Gonzalez,
“This is especially true in dealing with the decisions of a Court inheriting and brought up in a different system from that which prevails here. When we contemplate such a system from the outside it seems like a wall of stone, every part even with all the others, except so far as our own local education may lead us to see subordinations to which we are accustomed. But to one brought up within it, varyingemphasis, tacit assumptions, unwritten practices, a thousand influences gained only from life, may give to the different parts wholly new values that logic and grammar never could have got from the books.”
I cannot read the Louisiana decisions without feeling that Judge Dawkins was right on the law.
“It is undoubtedly the duty of public officers charged by the State with the execution of its police power to make no greater sacrifice of private rights than the public welfare demands. In several cases this court has said that the power so conferred is not arbitrary, and that the citizen is not without remedy to subject it to judicial control in proper cases.”
Even if I am mistaken in this view of the Louisiana law, I would hold as a matter of federal law that the United States cannot rely on the state-created servitude to justify its own action, which borders on the wanton destruction of the property interests of the private owners of the timber. For all that appears, General Box was prepared to remove the timber without additional expense or delay to the United States.
The requirement of notice is deeply engrained in our system of jurisprudence. Mullane v. Central Hanover Bank,
The timber which was destroyed was on two tracts of land. In 1946 petitioner purchased the entire fee of one tract for $30,000 and resold it for $15,000 two months later, reserving the timber rights for 20 years. In 1947 petitioner purchased the timber rights on the second tract for a period of 10 years, paying $36,000 for these rights. The trial judge found that the total value of the timber destroyed was $10,801, and he entered a judgment for that amount plus interest.
None of the judges either of the Circuit Court or of this Court who voted to reverse Judge Dawkins is from the Louisiana Bar.
No Louisiana eases have been found in which notice was not given in time to allow property to be salvaged from the batture. In Board of Levee Commissioners v. Kelly,
In the present case, written notice was sent to the owners after the clearing in question was completed. In this notice, the owners were warned that work would begin on another levee. The letter-notice said, “We respectfully request that any buildings, timber or other obstacles which might be within the rights-of-way be removed prior to the time that the contractor begins work.”
The Court quotes from Dickson v. Board of Comm’rs,