Jackson v. United States

47 Ct. Cl. 579 | Ct. Cl. | 1912

Lead Opinion

Booth, J.,

delivered the opinion of the court:

The question now before the court arises on claimants’ and defendants’ motion.to amend findings and for a ne-w trial.

This is one of a class of cases involving an alleged taking of private land in the course of the improvement of the Mississippi Biver by the United States in aid of navigation. The original petition was filed in 1894, in which the ad dam-num was stated at $107,257.50. Defendants’ demurrer to this petition was overruled in 1896 (31 C. Cls., 319), since which time three supplemental petitions have been filed increasing the aggregate damages claimed to $569,702.50. The lands of claimants lie on the east bank of the Mississippi Biver, about 40 miles below Natchez, in Adams County, Miss., embracing a total of 4,265.05 acres, segregated by description into four plantations, as follows: Cerro Gordo. Black I-Iills, Alloway, and Wakefield. The petition alleges that prior to the year 1890 said plantations were comparatively high and so situated as to be exempt from the over ■ flow waters of the Mississippi Biver except at long intervals, and that the occurrence of such overflows did not materially affect their productive capacity or their value; that about 1883 the officers and agents of the United States, in pursuance of an act of Congress creating the Mississippi Biver Commission, and by subsequent acts passed to aid in the improvement of the navigation of said stream, have projected and constructed, and are now constructing, a system of public works, consisting of levees and embankments, for the purpose of confining the flood waters of said river between the lines of said levees and embankments, thereby securing an increased elevation and force to the current of said river in order to scour and deepen the channel; that in the prosecution of said work by the officers of the commission, they have adopted and made use of the various State systems of public levees and private levees constructed^ for the reclamation of overflowed lands lying alongside the river wherever the same are available; that on the east side of said river from Vicksburg to Baton Rouge no levees have been constructed, the officers of the commission availing themselves of the highlands skirting the same and have adopted the lands between the levees on the west and the foothills on the east as the channel of the river, and the lands here claimed for lie therein. The petition concludes with a general averment that as a result of the adoption of the Eads plan, involving the reclamation of the flood waters of the river by the erection of levees and embankments and detouring same into its channel, it has thereby increased its flood heights to such an extent as to annually inundate the premises of the claimants, destroying their value as agricultural lands, and leaving thereon a deposit of silt and sand of such proportions as to force their abandonment.

Claimants’ contention rests entirely upon the assertion of a right under the fifth amendment to the Constitution of the United States to compensation for private property appropriated by the United States for governmental purposes. The defendants interpose two defenses. First, that the damages accruing were consequential in character, and second, that the public works complained of were constructed by the cooperation of the United States and the various local authorities, with no means at hand to ascertain the extent of their respective liabilities.

The distinction between consequential damages occasioned riparian owners by the construction of governmental public works in navigable streams, and a taking of private property in furtherance of the same, is most generally a difficult and nice question of law. The rule is well settled that where officers of the United States appropriate to a public purpose the private property of another, admitting it to be such, an implied obligation arises to pay for the same. (South Carolina v. Georgia, 93 U. S., 4; United States v. Great Falls Manufacturing Co., 112 U. S., 645; United States v. Lynah, 188 U. S., 445.)

In Pumpelly v. Green Bay Company (18 Wall., 166) the Supreme Court overruled a contention that a taking of private property within the meaning of the fifth amendment to the Constitution was limited to the identical lands physically taken, and extended the liability in such cases to other lands actually invaded by “ superinduced additions of water, earth, sand, or other material * * * so as to effectually de-story or impair its usefulness.” In the Pumpelly case the lands involved were totally submerged by overflow waters and had been so since the completion of the public works and for at least six years subsequent thereto; they were adjacent to the impediment placed by the defendants across the stream and were so situated that the result of the improvement was to retard the natural flow of the water and accumulate such a volume of same at the situs of the works as to back up the overflow upon and over the plaintiff’s lands. It in effect amounted to a physical invasion and a practical ouster of the plaintiff’s possession. To the same effect are United States v. Great Falls Mfg. Co. (112 U. S., 645); United States v. Lynah (188 U. S., 445); United States v. Williams (188 Ib., 485).

In the Lynah case, supra, a case especially, relied upon by the claimants, the findings show, and from the opinion it is clearly deducible, that it is not a departure from the previous rulings of the court upon this subject. Mr. Justice Brewer, in speaking for the court, says:

“ It is clear from these findings that what was a valuable rice plantation has been permanently flooded, wholly destroyed in value, and turned into an irreclaimable bog, and this as the necessary result of the work which the Government has undertaken.”

While there was dissension as to the full import of the findings, there was no dispute as to the rule of law. Again it is observable that in the Lynah case the improvements complained of were placed in the bed of the river having the same disastrous effects as in the Pumpelly case.

In United States v. Welch (217 U. S., 333) and United States v. Grizzard (219 U. S., 180) the Supreme Court extended tbe quantum of compensation recoverable for an actual physical taking of private property under the fifth amendment so as to embrace not only the market value of the lands actually taken, but to the remainder affected by such invasion, including the right of access to a public road destroyed by permanent flooding.

While what constitutes an actual taking is difficult of ascertainment, it is clear from the opinions that to constitute an actual taking there must be an actual invasion of the lands amounting to a practical ouster of claimant’s possession, an actual overflow of such a permanent character as to imply an intent to take, and a correlative obligation to pay for the lands so taken. (Peabody v. U. S., 43 C. Cls., 5.) The Supreme Court has said that “the acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the constitutional provision.” In Transportation Company v. Chicago (99 U. S., 635)—from which the above quotation is taken — the court held the municipality exempt from liability for damages unavoidably caused an adjoining property owner by obstructing a street and a portion of the river in the course of constructing a tunnel under the Chicago Eiver.

Numerous decisions covering the entire scope of consequential injuries as distinguished from a taking under the fifth amendment of the Constitution, are discussed and cited in the case of Heyward v. United States (46 C. Cls., 484); it is unnecessary to again discuss them here.

In Bedford v. United States (192 U. S., 225)—a case of extreme significance to the issue here raised — the Supreme Court in distinguishing the difference between consequential damages and a taking of private lands for public purposes, declined to attach responsibility to the Government for constructing certain improvements in the Mississippi Eiver in such a way as to result in a complete and permanent submerging of certain portions of the claimant’s lands. The findings of the court in the Bedford case disclose the following situation: Prior to 18t6 the channel of the Mississippi Eiver was around a narrow neck of land known as De Soto Point; in the spring of that year De Soto Point, yielding to constant erosion and the force of the current of the river, became so narrow that the river broke through, thereby detouring the main channel from in front of the city of Vicksburg to a distance some miles away in a southerly direction. The effect of this complete change in the channel of the river was to force the water with great velocity against the Mississippi bank at what is known as the cut-off of 1876. • The United States in 1878 and subsequent years, in pursuance of acts of Congress, erected along the new banks of the river near the cut-off some 10,700 feet of revetments, the purpose being to prevent further erosion of the banks of the new-made channel, which, if continued, would necessarily carry the main channel of the river farther away from the city of Vicksburg. In the consummation of this purpose and because of the revetment work the waters of the river were deflected toward the land of the claimant, situated some 6 miles below the same, and subsequently permanently submerged them. In answering the plaintiff’s contention, the opinion uses the following language :

“ The contention asserts a right in a riparian proprietor to the unrestrained operation of natural causes, and that works of the Government which resist or disturb those causes, if injury result to riparian owners, have the effect of taking private property for public uses within the meaning of the fifth amendment of the Constitution of the United States. The consequences of the contention immediately challenge its soundness. What is its limit? Is only the Government so restrained ? Why not as well riparian proprietors ? Are they also forbidden to resist natural causes, whatever devastation by floods or erosion threaten their property? Why, for instance, would not, under the principle asserted, the appellants have had a cause of action against the owner of the land at the cut-off if he had constructed the revetment? And if the Government is responsible to one landowner below the works, why not to all landowners ? The principle contended for seems necessarily wrong. Asserting the rights of riparian property it might make that property valueless. Conceding the power of the Government over navigable rivers, it would make that power impossible of exercise, or would prevent its exercise by the dread of an immeasurable responsibility. ”

We have given at length and in great detail the substantially agreed upon findings respecting the hydraulics of the Mississippi River. The evidence upon which they are predicated consists of the numerous reports of the Mississippi River Commission and various other reports of the authorized officers of the Government in the course of said work. From said findings it is apparent that said stream from Cairo, Ill., to the Gulf of Mexico is one of great sinuosity; its innumerable bends with scarcely a single line of direct current have made it susceptible to great overflows in times of anything like abnormal conditions. In fact, overflows are so frequent, and the use of riparian lands for agricultural purposes so precarious, that it is indispensable to protect them by lines of levees and embankments. The alluvial valley of the river extending from Girardeau, Mo., to the Gulf of Mexico has been divided into six large basins (four on the west bank and two on the east); through the medium of these large and extensive formations the flood waters of the stream have from time immemorial been discharged, passing consecutively from one to the other until they reach the Gulf. Within the limits of the respective basins are millions of acres of alluvial lands which have been at least partially reclaimed by the construction of private levees or their inclusion in local levee districts formed under local laws. These vast drainage basins in their natural state have in themselves been of inestimable value to the riparian owners of lands not situated therein, for the flood waters of the river escaping through them rapidly absorbed the surplus waters suddenly projected upon the higher lands and saved them from extreme injury.

The lands here involved are situated at the southeastern limits of the Lower Tensas Basin opposite what is known as the Bougere Crevasse. They are not protected or reclaimed by levees and lie in that extensive zone some 263 miles in length extending from near Vicksburg, Miss., to Baton Rouge, La., on the east side of the river where the Government has not seen fit to construct any levees or embankments or any other improvements to aid in the navigation of the river, the nearest Government levee to claimants’ land being on the opposite side of the river in the State of Louisiana and the nearest Government levees on the east bank, one being 157 miles north and one 96 miles south in the State of Mississippi. They are alluvial lands situated within the Delta of the river, and have been and of necessity must have been subject more or less to the overflow waters of the river. It is conceded that there is nothing peculiar in their location and that they have always been subject to overflow in times of high water. They lie, it is true, between the banks of the river on the west and the so-called highlands or foothills of the river on the east. The Bougere Crevasse occurred during the flood of 1869, and until it was subsequently closed served in part at least as a channel through which the flood waters upon claimants’ lands were speedily reduced.

The United States in the creation of the Mississippi Biver Commission and the numerous appropriations granted to forward the work, contemplated a most comprehensive scheme involving the reclamation of the flood waters of the river, and by a system of levees and embankments erected upon the banks of either side of the same to prevent its overflow, confine this enormous volume of water in the main channel of the river, thereby securing an increased velocity to the current, which would eventually deepen the channel. The mere assertion is sufficient demonstration that as a result of this project the flood heights of the river would be materially increased, for it is quite apparent that the enormous volume of water previously escaping through these immense basins having been deflected into the main channel of the river would result in causing lands unprotected by levees or embankments tobe subject to more frequent and indeed more serious inundations. In the prosecution of this general plan the United States have made use of and are now using the levees available for the purpose which were constructed by private owners of land or by State and local drainage districts. They have also connected this necessarily disjointed system of levee improvement by constructing new levees and embankments where none theretofore existed, until at present they have substantially a continuous line of levees on the west bank of the river from some distance south of Cairo, Ill., to the Gulf of Mexico, and at such points on the east side as in the judgment of the Engineer officers of the Army serve the purposes of the improvements.

The findings show, and it is conceded, that as a result of the system employed by the United States, in connection with the State and local authorities, the lands of the claimants have been and are now more frequently overflowed than before the construction of the levees. It is indisputable that a large portion of claimants’ plantations have been practically destroyed for agricultural purposes by additional super-induced deposits of silt and sand of sufficient depth to render some portions of them valueless. It is not questioned that the claimants involved have suffered great loss in their inability to annually harvest crops or cultivate to maturity the products usually raised upon said lands.

One contention of the claimants extremely vital to the case, set forth in the petition and emphasized in the briefs, fails for want of proof. It is this, that the Mississippi River Commission has adopted as the main channel of the river from Vicksburg to Baton Rouge the lands between the levees on the west and the highlands on the east, and for this reason have not constructed any levees or embankments on the east side of the river. To sustain this contention the court must indulge an inference from the general plan of the public works. There is an utter absence of any such express intent found in the numerous reports of the commission. The officers of the commission have upon numerous occasions in their reports urged upon Congress some equitable legislative relief for the numerous sufferers in this particular locality, and have described in detail their unfortunate situation and predicament, but we have been unable to find (and certainly can not conjecture) that it was part of the general plan of improvement to appropriate as the channel of the river this most extensive area of private lands extending along the river bank to a total length of some four or five hundred miles, and increasing the width of the channel in some instances more than a mile. The damages would indeed be immeasurable, and the court could not sustain the judgment asked for in the absence of strong and convincing proofs. The testimony to sustain such contention, if it could be sustained, is easily accessible from living witnesses, and so clearly subject to positive proof that inferences and implications from other testimony in the record are unwarrantable. It would indeed be an anomalous proceeding to predicate a judgment for hundreds of thousands of dollars upon an ex parte report found in official reports to Congress of the Mississippi River Commission. The discussion of this subject unanimously approved in the first opinion of the court was sufficient warning to claimants that the court was unwilling to rest this particular contention upon the evidence introduced to sustain it. The intentional taking of a vast acreage of lands is a transaction quite too solemn to depend for adjudication upon indistinct and recommendatory reports, when the transaction itself is so clearly susceptible to positive proof.

The Bedford case establishes that the United States, in the exercise of its plenary power and authority over the navigable streams of the country in aid of commerce and navigation, can by public works resting only against the banks of the channel prevent the same from erosion and preserve its natural identity; that consequences, however injurious, resulting from such procedure are but natural results, consequential in character, and damnum absque injuria. The improvement of the Mississippi River through the instrumentality of a congressional commission manifestly purposed not only the reclamation of the extensive flood waters of the stream, but the erection of such permanent structures along its banks as would prevent the same from erosion and successfully resist the increased velocity of the current and the increased flood heights of the river. The Government was not concerned in the reclamation of riparian lands and was without authority to expend money for the purpose. (Act Mar. 3, 1881; 21 Stat., 468-474.) It was alone concerned in an endeavor to establish settled conditions, throw the escaping flood waters back into their natural channel, and keep them there. It undertook to preserve the channel of the river, the channel the river itself had made in its meanderings from its source to its mouth.

The claimants’ lands, unfortunately situated as were the lands of Bedford, suffered from this improvement in that they were more frequently overflowed than theretofore, and the resultant deposits were more extensive.

The findings show, and it is conceded, that said lands are not and never have been permanently submerged; that in the years 1894-1896, 1900-1902, 1905, and 1910 they were not overflowed at all; that despite partial overflows from 1898 to 1908 the claimants have harvested and sold $328,008.98 worth of cotton therefrom; that as late as the season of 1909 claimant E. H. Jackson had 500 acres in cultivation, and claimant Mattie W. Jackson in 1910 was enabled to realize profit from her plantations which were not overflowed. Aside from the question of permanent submerging, even if same prevailed, the claimants under the authorities cited could not recover. The United States was clearly within the scope of its authority in preserving the banks of the river; and if thereby the perpetual continuance of the great basins of drainage made by the overflow waters of the river which had served as natural outlets for the same were destroyed, it was but the incidental result of the prosecution of the work, and the United States is not to be held liable in damages for pursuing its general plan of improvements alongside the established channel of the river whereby it prevents the water which should be in the channel from escaping elsewhere.

This case is not like the case of Barden v. City of Portage (79 Wis., 126); no artificial structures were placed on or near the claimants’ lands; no waters were deflected toward the same; the public works complained of simply destroyed their existing means of drainage made by the uncertain flow and course of an exceedingly crooked and unreliable water course. Prior to 1859 claimants had no outlet through the Bougere Crevasse. There was no absolute certainty that it would continue to be a means of drainage for the lands, for an unusual flood height, a sudden change in the elevations of the basins, or the making of a new channel by the river itself might have destroyed its usefulness and thereby subjected claimants to injuries as extensive as here claimed for. The United States closed the crevasse by the construction of levees on the banks of the river and the flood waters theretofore escaping through this channel were retarded and remained longer on the claimants’ lands, just as in the Bed-ford case the United States held intact the new-made channel of the river and thereby submerged 2,300 acres of the plaintiff’s lands which would have remained high and dry if the water had continued in its old channel. The fact that claimants’ lands were not so frequently subject to ovei’flow under the natural conditions that existed prior to the construction of the levees does not obligate the Government, in the lawful prosecution of public works in aid of navigation and commerce, to avoid a disturbance of those natural conditions or otherwise incur extensive liabilities.

The facts in the case of Archer v. United States (No. 30471), decided December 4, 1911, are so entirely different from the facts in this case the decision of the court in that case can not apply here. In the Archer case the findings show that the officers of the United States, to protect the channel of the Mississippi River, actually invaded and took possession of more than 31 acres of the lands of Archer and constructed thereon a spur dike, made out of his own soil, some 662 feet in length. The result was to deflect the current of the river over and across the lands of the claimant, in consequence of which they were rendered valueless. The Archer case is similar in most respects to Pumpelly v. Green Bay Co., supra, and Lynah v. United States, supra.

The great basins of the Mississippi reclaimed the lands of riparian owners on the opposite sides of the river from where they were formed and forced those within their limits to erect levees and embankments or abondon their farms for cultivation. The-public works of the United States in the aid of navigation incidentally closed these immense outlets, not in this case by a physical invasion of claimant’s property, not by- appropriating any portion of their soil for levees, nor by proceedings in eminent domain, but by a system of levees built and adopted where previously built on the banks of the river to prevent the water from getting out of the channel and becoming so low as to impede and retard navigation. The bed of the stream was not disturbed; no dams or cross-tide dams, jetties, or other improvements retarded the flow of the water and backed it up and upon claimants’ lands. The United States simply took the banks of the river as they found them and sought to preserve them in statu quo. The condition now is what it would have been had the overflows been restrained long years ago. The character of the work done was not essentially different from dredging; without doubt the governmental authorities had full power and authority to deepen the channel by dredging, and if they adopted a different means better suited and perhaps more inexpensive, which in effect accomplished the same purpose, the results are the same. Surely it could not be said from the adjudicated cases that the United States is disabled from increasing and preserving from erosion the banks of a navigable stream and thus forestalling by an important improvement the continuance of a condition which if allowed to continue would eventually destroy the usefulness of the river as a commercial highway without incurring, as was said by the court in the Bedford case, “ immeasurable responsibility.” Claimants’ lands from their natural state were burdened with the servitude of a dominant right in the Government of the United States to improve the river in aid of navigation and commerce.

The Mississippi Eiver Commission, in its annual report for 1894 at page 2713, reviews at length the subject of injuries to private lands situated in the alluvial basins of the river. The whole tenor of their observations indicate an apparent indecisiveness as to the extent of responsibility attaching to the United States and the State and local authorities. In speaking of the erection of private levees by the owners of riparian lands in this particular locality, whereby the same could be reclaimed and protected, the commission uses this language:

“ It must be recognized that the result will be to inflict some and perhaps great hardships upon the owners of lands in the unprotected areas described. Just how great the increase of burden cast upon those lands from this cause will be can not now be foreseen. They have always been liable to overflow by the highest floods, and they have always escaped overflow in some years. It is probable that this will continue to be true in the future as in the past. There may be, however, some floods which, unconfined, would not overflow them, but which, confined, will overflow them, and the injury in such case would doubtless be of that immediate and proximate character which constitutes recognized ground of legal redress.

‘‘But the subject is one with which the commission does not feel authorized to deal. In making recommendations for the expenditure of money in the construction of levees it has felt bound to make such application of it as would probably secure the largest aggregate of beneficial results. Some of the minor areas mentioned are large and valuable enough to warrant the expenditure of the money necessary to protect them by levees, while others are not. As to the former, the work is at present simply deferred to await the completion of other work which is considered more important. As to the latter, the construction of levees by the United States would seem to be an expenditure of money merely or mainly for the purpose of repairing a private wrong. This the commission regards as beyond its jurisdiction.”

From the report it would seem that it is not impossible for claimants to protect their lands from overflow by private levees and embankments, and Finding VI shows that it had been done. If so, the duty is cast upon them and the damages claimed thereby materially minimized, if not fully prevented. (Manigault v. Springs, 199 U. S., 473-483.)

It is difficult to see from the record in this case wherein the improvements constructed by the United States on the banks of the Mississippi have resulted in such an invasion of claimants’ lands as to amoimt to a practical ouster of possession. True, they are not in all respects as they were previous to the improvements, and doubtless their cultivation and value have been impaired. No doubt when they were purchased by the present owners a change in the situation as it then existed was not contemplated, but the ownership of riparian lands on navigable waters is always subject to the consequences of governmental improvement of the stream in aid of navigation. (Gibson v. United States, 166 U. S., 269.)

An argument sustained only by' a contrasting of facts in this case with those found in the Bedford case is more than minimized by the fundamental rule of law established by the Supreme Court in the Bedford case. The Bedford case sustains the contention that the power of the United States in making public improvements in aid of navigation and commerce is not limited to a maintenance of natural conditions. If it was, improvements would be valueless and vast appropriations wasted. In this case the Bougere Crevasse, which is in fact the crux of the whole situation, is, as its name implies, a breach in the banks of the river made by the flow of the stream itself. If the Government is powerless under the law to close this breach either by revetment or levee and maintain the integrity of the river banks, then it is difficult to see how efficient public works could possibly accomplish *their designed purposes. The Government has the undoubted right to maintain the stream in its natural condition — i. e., as it would naturally be if these extensive crevasses had never occurred. However advantageous natural crevasses may be for drainage purposes to riparian owners, nevertheless they may be closed by the United States in improving the navigation of a stream in aid of commerce, and if nothing more is done the resulting damages are consequential.

The rulings of the Supreme Court in the Bedford case alone preclude a judgment for the claimants, and the petition is dismissed. It is so ordered.

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Dissenting Opinion

Howky, J.,

dissenting:

The cause of action arises out of the authorized acts of certain officers and agents of the defendants in so improving the channel of the Mississippi River as to take the certain lands described in the petition of the plaintiffs for public purposes and use. The importance of a right determination of the issues can not well be overestimated.

In so far as plaintiffs are concerned, a result adverse to the right to recover can neither be depreciated nor underrated because, when it shall be determined, if at all, that their land has not been appropriated for public use, and consequently has not been taken within the meaning of the fifth amendment to the Constitution, then these plaintiffs will be effectually deprived of rights of property so valuable to them as to have accomplished their ruin.

The private right involved, important as the result must be to that right, can not be compared, however, to those larger questions disclosed on the face of the record as to whether the acts of the Government affecting these lands, and other lands similarly situated, amount to a taking of property for which compensation, should be made, or whether these acts resolve themselves into a question of consequential injury only, for which damages can not lawfully be awarded.

The findings establish that the lands for whose taking compensation is asked are located within the limits of a narrow strip of country in the Homochitto Basin, on the left bank of the river, 40 railes below Natchez, Miss., and 25 miles above the mouth of Bed Biver, and between the Mississippi Biver and the highlands east of it between Vicksburg and Baton Bouge. This basin has an average width of 2 miles. The bluff behind the lands is known as the foothills, and is being used as the only obstruction to flood waters, and serves the purpose of levees, leaving to flood invasion the lands fronting the river in the basin. The reason of the Government for refusing to build levees on the basin banks of the river grew out of the fact that the cost of building levees within that basin was greater than the value of the lands which such levees would protect. The frontage of the lands along the river in that basin is so short that the back water of floods entering through the opening left at the lower end for local drainage of the basin will reach to the inner foot of the levee and submerge nearly if not all of the inclosed land. The complete reclamation of the lands in this basin is only practicable by treating them as polders and establishing an artificial drainage by pumps and floodgates. The surveys of the Government confirm and prove that the cost of the levees “in most cases” would exceed the value of the land. The foothills back of this basin were near enough to serve the purposes of a levee line in times of high water.' For these reasons the Government did not construct any levees in that district known as the basin.

The Mississippi Biver Commission suggested three ways of dealing with the problem of protecting these lands or compelling the owners to abandon them, to wit: (1) To aid the owners of the inundated lands in building levees; (2) to compensate the owners in damages for their injuries; and (3) to buy the lands and devote them to forestry.

The lands in suit have been subject to overflow since 1828 from the river. In periods of overflow a deposit of silt and sand has been precipitated during seasons of high water, but the water quickly passed off. The private levee on the Jackson lands saved the property from overflow in 1899 and 1904. The overflow, of the lands caused by the progress of the Government work brought heavier deposits to the land, and the effect of the frequent and successive overflows beginning in the year 1906 and extending through 1909 was to drive away the tenants, cover 1,700 acres with sand and silt deposits from 6 inches to 6 feet in depth; to cause the land to grow up with weeds, young willows, and cottonwood from 6 to 15 feet in height; and to lift from their foundations and wash into the fields many of the buildings, houses, and cabins formerly on the lands, and to cany away the flooring from these houses and fencing on the land through the action of the swift currents of the water so that the lands have been destroyed for agricultural purposes and have no market value.

The work of levee improvement continued to June 30,1910. The Mississippi River Commission up to that time had allotted to levees nearly $28,000,000. The commission had closed what is known as the Bougere crevasse, opposite the lands named in this case. That crevasse had remained open from 1859 until 1902 or 1903, since when it has been practically closed to a point near the mouth of Red River by the improvements on that side of the river, the effect of which has been to throw the water back onto the lands described by the petition in this case. The levee closing the crevasse was 29 miles in length and 23 feet in height, furnishing a continuous line of levee opposite the Jackson lands. The effect of the closure in times of flood is to produce an increased flood stage of about 4 feet of water on the Jackson lands in addition to the increased elevation of 6 feet in the flood height. The levee opposite the lands here named was constructed by authority alone of the United States.

By closing the natural outlets along the river the overflows from the waters of the Mississippi occurred at such frequent intervals and remained for such a long duration of time, the land has become useless because of the heavy deposits of sand.

Before the Government undertook improvements on the west bank of the Mississippi River opposite the land of these plaintiffs, levees sufficiently high and strong to hold tbe flood waters in the channel of the river had never been built. Consequently, in periods of overflow the water remained for a short time only on the Jackson land, escaping through “ the natural outlets and crevasses into the basins and from said basins into the Gulf of Mexico.” The outlets and drains provided by nature were such as to accommodate the flood waters, and the lands of these plaintiffs were not ■overflowed as frequently before, the outlets were closed by the levee construction of the United States, “ and, consequently, were but little injured by the overflows.”

But the effect of the adoption of the foothill levee line was to keep the lands between the new levee line and the river submerged too long to enable the owners to cultivate the land.

The plan of the United States was to increase the velocity and scouring power of the water and to deepen the channel of the Mississippi River for two purposes: (1) To improve the river for navigation, and (2) reclaim and to protect the land on the west from overflow in times of high water.

Thus to reclaim and protect the land on the west bank of the Mississippi the Government has dispossessed plaintiffs from their land on the east bank.

The issues are strictly issues of law and can not properly be determined without keeping closely in view the findings and their effect upon the rights of the parties.

The findings import verity. They must be accepted as true in obedience to the rule of the Supreme Court, from which there can be no departure without abrogating the rule itself. The appellate court will refuse to look elsewhere for the facts except as they appear in the findings and official reports of which judicial notice will be taken and not in the opinion of my brethren of the majority.

The majority here is of opinion that the Mississippi River Commission has not adopted as the main channel of the river from Vicksburg to Baton Rouge the lands between the levees on the west and the highlands on the east, because of “ an utter absence of any such express intent found in the numerous reports of the commission; ” and it is suggested in the principal opinion that the adoption of the line suggested should be proven “ from living witnesses ” because “ the intentional taking of a vast acreage of land is a transaction too solemn to depend for adjudication upon indistinct and recommendatory reports when the transaction itself is so clearly susceptible to positive proof.”

The “intent” is not in issue, and what the Mississippi Eiver Commission “intended” is not material. What the commission did and the effect of what it did is material. If the intention of an official body be material enough to be made an issue living witnesses could not be heard to prove the intention except by stating what others did, not what they thought.

The material thing, then, to be considered is what the findings show on this point, though it does not seem to me to be very material to state anything about it in view of the fact that it appears from the comments of the majority of the court that the Mississippi Eiver Commission did officially report as the main channel of the river the lands between the levees on the west and the highlands on the east. If this is not the “adoption” of a plan it is nothing. It was the adoption of plan enough to destroy the lands of these plaintiffs.

As the findings are agreed to by the plaintiffs and the Attorney General, the matter of the “ adoption ” of the foothills as the permanent levee line of the river is the only subject matter of difference between the parties on the facts. The “ adoption ” being something in the nature of a conclusion, the specific findings must settle any differences on this matter if it be of any importance.

Finding XI shows that the extension of the general levee system since the United States adopted its use and assumed “permanent control” of the levees has resulted in an increased elevation of general flood levels, thereby subjecting plaintiffs’ lands to deeper overflow than they were subjected to formerly or would be subjected to now if the levee system was not in existence and consequently has destroyed the value of the lands for agricultural purposes caused by the abandonment since 1908. Taking the findings altogether and with knowledge of the fact that the old and broken pieces of levees were taken by the Government and' connected together and new levees built and the new and the old works were strengthened and that the works are now in that condition, it may fairly be stated that the line suggested and in actual use has been adopted by the Government.

The case does not involve any question of immeasurable responsibility either in law or in fact, because: (1) The Government of the United States does not undertake public work beyond its resources. (2) There is nothing in proof to indicate or to justify the court in inferring that the pecuni-ury responsibility of the Government is without its present ability to pay. (3) Immeasurable responsibility arises for remote and consequential damage and where the consequences of improving navigation in the interest of commerce between the States are of such overwhelming character as restrains the Government from undertaking public work so momentous as to make impossible the exercise of the right to improve. That is not this case. The matter before the court is unlike any class of cases (or, for that matter, unlike any one case) where it appeared that the object of the work was merely to preserve the conditions created by natural causes. (4) Though the property is no longer valuable to the owners because it can not be used for agricultural or grazing purposes, nevertheless the lands are capable of growing many kinds of valuable timber and can be made to produce material for revetments and other work necessary to improve the natural channel of the river.

While the market value of the lands has been destroyed and they are no longer useful to the owners or to anyone at the present time, they have yet a prospective and speculative value in that the future may prove the property of considerable value to the United States. This prospective value, it is true, is in the indefinite future and necessarily depends upon the growth of timber. When the conditions as to value are met as the consequence of the timber growth, the Government as the rightful owner will have to its credit something for what it ought now to pay. But if it be speculation merely as to whether in time the lands will become valuable, the reason is not diminished for extending compensation for a taking that may be everlasting and for which taking the present owners are without remedy except as provided by law.

As a matter of common knowledge, appearing from the public records and from the files of this court and estimates probably appearing in the official reports of the Mississippi Fiver Commission, there are plantations destroyed by the character of the improvements of the Government exceeding but little over 100 farms and the whole body of land thus taken being not worth probably over $1,000,000. From the sources of the great river to its mouth similar conditions .do not exist (and probably never will exist) elsewhere.

Federal power over commerce among the several States is broad enough to enable the legislature to carry out one of the great objects of our Union. This was long ago settled in Gibbons v. Ogden, 6 Wheat., 204, and was accompanied with the statement that this power “ is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.”

But the Supreme Court never meant to say, nor did it imply, that the power to improve may be exercised to such an extent that public work may be undertaken and carried on without compensation to the citizen owner where his property has been taken for the benefit of the public. The exercise of the power to the “ utmost extent ” is accompanied by, and goes hand in hand with, the fifth amendment, which prescribes limitations on the power to improve navigation unless means enough are used to pay such owner when public •exigencies dispossess him of his property.

When it shall be held by courts that the Government can constitutionally spend millions in carrying water to lands otherwise arid, and when it shall further be held that the appropriation of the lands of one person may be made by the United States in the name of and for the improvement of a river and which incidentally includes protection to the lands of a person on one side of that river without compensation which can not be provided for a landowner on the other side who becomes ousted and merely because of the dread of large responsibility, it will be time enough to say, in the language of an illustrious Englishman, that when courts can be influenced by considerations of mere cost, regardless of the protection provided by the organic law for those in the enjoyment of private property, such country is hastening to decay.

Congress adopted the Eads plan, which provided for a continuous line of levee construction from Cairo to the Gulf-Permanent control of the low, insufficient, and disconnected levees, which had been begun by local authorities and in some cases constructed by private landowners, was assumed by the Federal authority. Our tenth finding shows that the general improvement attempted to confine the waters in a narrower channel as the result of the increased elevations of the works on the banks of the big stream. This increased elevation produced more frequent and destructive overflows at all points where the levees were not strong enough to resist the force of the water.

Our twelfth finding shows the active closing of crevasses from year to year; and our thirteenth finding, taken in conjunction with the ninth, shows that, before the joinder of the levee line by the United States (pursuant to the Eads plan) and which made the higher banks as they were constructed continuous, there were occasional overflows of plaintiffs’ lands, but n,ot enough to prevent cultivation. The occasional deluges did not materially damage the lands for grazing and agricultural purposes nor affect their market value. On the contrary, the water (before the final public improvements) which flowed from above — not so much from love of motion as from want of rest — did not remain long enough to submerge the lands so as to prevent the planting of crops. The silt deposits enriched these lands where the water had quick opportunity to escape to a lower level. After the completion of the levee system by the construction of the higher embankments and the general confinement of the flood discharges within a narrower channel, the floods were so frequent as to make the unprotected land continue in a submerged condition too long to make the injury immaterial. These frequent and deeper overflows for the longer period of time had the effect of dispossessing the owners. If this con-, dition did not constitute an actual invasion it is difficult to find a definition of what such conditions did create.

Official reports (Miss. Riv. Com. Rep., 1910, p. 2938) show “perpetual inundation”; want of redress for the sake of improvements to lands behind the levees on the opposite side of the river. The closing of the Bougere crevasse immediately opposite plaintiffs’ lands finished the work of destruction and accomplished their ruin.

The majority of the. court do not say, but assume from some report, that “ it would seem ” that it was not impossible for plaintiffs to have protected their lands from overflow by private levees and embankments, and if so the duty was cast upon them so to do, and if done the damages claimed would be materially minimized, if not fully prevented, citing Manigault v. Springs, 199 U. S., 473.

The sixth finding of the court (adverted to in the principal opinion) does not sustain the assumption. Overflows were in part averted by' the private levee of plaintiffs at times. But the findings also show that when the crevasses opposite plaintiffs’ lands were closed and the work of public improvement was continued to the extent of piling up more earth on the opposite side of the river in the construction of levees and to such an extent as to raise the level of the water in the river as much as 6 feet, private levees were washed away as the result of the public improvements. The owners could no more protect themselves without the sacrifice of the lands to the full extent of their value than could the United States. We have the official report disclosing that it was cheaper to the United States for the owners to abandon the lands and be compensated by the Government than for the United States to build levees. Especially is this report to be taken as true when, as the result of Government work, the findings show that the private levees had been washed away. If it was more profitable for the Government to pay for these lands than to build levees to protect them it necessarily follows that their market value was totally destroyed by the improvements.

Private levees could not have been reconstructed to prevent the floods by plaintiffs in the case before the court for the obvious reason that such levees as plaintiffs had ever put on the property were next to the river on lands owned solely by the plaintiffs. They were without power to build levees above their own lands for want of ownership.

The case of Manigault v. Springs, supra, merely decides that when an owner is put to additional expense in warding off the consequences of an overflow there can be no recovery; but where there is a practical destruction or material impairment of value of lands by overflowing them as the result of the construction of dams there is a taking which demands compensation. No amount of expenditure would have availed these plaintiffs to have saved their lands.

The question resolves itself into the difference between consequential damages and a taking of private property for public purposes. Only three cases are cited in the majority opinion which seem to have any bearing upon this one issue in the case.

In Transportation Co. v. Chicago, 99 U. S., 635, there appeared to be an impairment of the use where the acts done did not directly encroach upon property of a private nature. But Findings VI, XI, and XVIII in the present case establish encroachment upon the lands of such character as to destroy. The superinduced additions of water, sand, and silt proved to be permanent deposits to the extent of burying the lands in mud and annihilating value as to compel abandonment of the property.

In Gibson v. United States, 160 U. S., 269, it appeared that there was no taking, no destruction, and no consequence except damage arising out of alleged inability to use a landing for the shipment of products from and supplies to a farm for the greater part of the gardening season. There was no water thrown back on the land. The Government neither attempted nor assumed to take private property. Subsequently, in United States v. Welch, 217 U. S., 333, an award was sustained for destruction of a right of way and also for damages to property destroyed for public purposes. Such “ destruction for public purposes may as well be a taking as would be an appropriation for the same end,” so the court said.

In Bedford v. United States, 192 U. S., 217, damages were claimed as the result of “ revetments to prevent erosion of the banks from natural causes.” But revetments did not change the natural course of the river. Said the learned judge, wbo delivered the opinion of the Supreme Court in the Bedford, case, “ There was no other interference with natural causes. ” The damage to the land, if any damages could have been assigned to the works at all, was but “ incidental consequences ” of something which the Government-had the right to do.

If on the side of the revetments and above on the banks a levee had been erected there would have been obstruction of the flow of the water. The revetments shown to have been constructed in the case of Bedford were placed below high-water mark. The purpose of revetment is to prevent erosion by the waters to high-water mark but not above. The purpose of a levee is to obstruct the flow of water, which in many cases either increases or causes erosion. The purpose in the present case in the construction of a levee was (and its effect was) to obstruct the flow of water when it should get above the high-water mark and not below that mark. Revetment work is entirely submerged when there is enough water in a river to reach a levee placed on top of the bank. The objects of revetment work and a levee are entirely different and serve distinct purposes.

The seventh finding in the case of Bedford discloses that “ the revetment did not change the course of the river as it then esisted, but operated to keep the course of the river, at that point, as it then was, * * * and the injury done to the claimant’s land was the effect of natural causes.” In the case at bar natural causes had never occasioned injury to plaintiffs’ lands and injuries would never have been occasioned hut for an interference with natural conditions.

From 1828 to the time when the Government by its works threw upon plaintiffs’ lands volumes of water and destroyed the attribute of ownership plaintiffs were able to cultivate their lands. Since then periodical overflows have been precipitated so as to deprive them of the use. The findings establish the permanent character of the taking and bring the present case within that of Pumpelly v. Green Bay Co., 13 Wall., 166, and that of United States v. Lynah, 188 U. S., 459. In the latter case the works were constructed in the bed of the river and obstructed the natural flow of its water, and as a direct consequence caused the overflow of Lynah’s plantation. That is precisely the condition in the case now before the court, except that instead of the works being placed in the bed of the river they were placed on the banks of the river, and the consequence of the one is as direct in the case at bar as the consequence was in Lynah's ease. The case of Williams v. United Slates, 188 ib., 485, following Lynatts case, shows a similar taking. The just compensation provided by the Constitution for such taking and guaranteed obviously “ requires that the recompense to the owner for the loss caused to him by the taking of a part of a parcel or single tract of land shall be measured by the loss.” Grizzard v. United States, 219 U. S., 180.

There are limitations upon the power not only of the rights of the Government where it is a proprietor, but likewise limitations upon its powers as a sovereign. Such limitations as to either the proprietary right or the authority of government as a sovereign operate to prevent the exercise of either right so as to destroy the essential uses of private property. Said the Supreme Court: “ To take away the essence and value of property without compensation is practically to take property and this is beyond the power even of sovereignty except by proper proceedings to that end.” Curtin v. Benson, 222 U. S., 78.

It will be observed that in the present case there was no necessity for the river to be scoured. (That, however, makes no difference, even if that necessity existed.)

The Mississippi River Commission made the foothills serve the purposes of a levee line compelling the water to return to the channel in times of high water. They state that in their report. And this statement is accompanied with another having as I see it a great bearing in the settlement of the issues. The commission said that the construction of levees was not important for the improvement of the river for navigation. We know that the channel of the river was not improved for purposes of navigation, because vessels of the greatest draft could float upon the bosom of the flood tides. It nowhere appears that the river was not deep enough at any time to be navigated after the subsidence of the flood waters. It is evident that the levees were raised in excess of 20 feet to protect the lands on the west side of the river from overflow. The consequences of the general confinement of the flood discharged by the levee “ as a whole ” had the effect of driving plaintiffs away.

Another fact must not be overlooked. Before the crevasse, known as the Bougere crevasse, occurred, as far back as 1859, the bank did not obstruct the high-water flow. This bank did not extend from 3 to 5 feet above the highest known water, as do the levees completed by the United States. Formerly, in times of flood, water went over the bank, and it was the overflow of the river’s bank which caused the crevasse. The record discloses that until 1890 there were only two serious overflows, one in 1882 and another in 1884. But even in those years the water went off in time to make a crop.

Many of the cases relating to the rights of riparian owners do not involve the question of obstruction of the natural flow of flood waters. But there are many cases highly persuasive which do deal with the question now before the court. In the early case of Rex v. Trafford, 20 Eng. C. L. R., 498, Lord Chief Justice Tenterden said that—

“ It has long been established that the ordinary course of water can not he lawfully changed or obstructed for the benefit of one class of persons to the injury of another. Unless, therefore, a sound distinction can be made between the ordinary course of water flowing in a bounded channel at all usual seasons, and the extraordinary course which its superabundant quantity has been accustomed to take at particular seasons the creation and continuance of these fenders can not be justified. No case has been found that will support such a distinction.” ‘

Though Trafford v. Rex was reversed because the facts in the case did not warrant a special verdict, the reversing court agreed in the principle laid down by the Court of King’s Bench, 21 Eng. C. L. R., 272.

There are very many cases which show the right to have a stream flow as it is wont by nature, which includes the right to have the water flow off from one’s premises as it is accustomed to do, and this right “ is property.”

There are also very many cases which show that where woiks are constructed below the land of a proprietor, such as a bridge or culvert or dam, or alteration of the channel, which cause the water to set back and overflow the land of such proprietor, there is a violation of such right and, if the works are authorized by law, there is a taking for which compensation must be made. The books are full of cases to this effect and may be found summarized in 1 Lewis’ Eminent Domain, sec. 80, p. 90, 3d ed. What possible difference can there be between cases like these and cases where works are constructed on one side of a river to the destruction of an owner’s land on the other side of the stream?

The doctrine of damnum absque injuria can have no appli- ■ cation here, because that principle is only applicable for “ those unexpected visitations whos.e comings are not foreshadowed by the usual course of nature and must be laid to the account of Providence, whose dealings, though they may afflict, wrong no one.” Pittsburgh R. R. Co. v. Gilleland, 56 Pa. St., 452; O'Connell v. East Tenn. Ry. Co., 87 Georgia, 261.

Barney, J., concurs in this dissent.