delivered the opinion of the court.
This suit wаs brought to recover from the United States the value of property asserted to have been totally destroyed or rendered completely valueless as the result of
It becomes necessary to give a brief description of the topogrаphy of the country in which the property in question is situáted, in order to make clear its relation to the public work which it is asserted constituted a taking within the meaning of the Constitution. -
The.Valley of the Mississippi River, may. in a broad sense be said to commence at Cape Girardeau, Missouri, and to extend from there to''the mouth of the river, at the Gulf of Mexico. The river, however, in its course to the ocean does not run through the center of the vast fertile and allüvial plains which in a comprehensive and generic sense constitute the delta of-the Alississippi. On the contrary the situation of the riyer in this respect varies, occasioned by the fact that at divers places the upland or Mil ■country approaches to or constitutes the bank of the river. The difference in this regard is marked between the west and the east bаnks. The west bank is divided into four great basins — the St. Frances Basin, which ^extends from Cape Girardeau to Helena; the White River Basin, winch extends from Helena to the mouth of the Arkansas; the Ténsas Basin, wMch extends from the mouth of the Arkansas to the mouth of the Red River; and the Atchafalaya Basin, extending from the mouth of the Red River, to the Gulf. Practically'in the long sweep from Helena, where St. Francis Basin ends and the WMte -River .Basin
From Natchez where the hills or uplands constitute the bank of the river to Baton Rouge, the line of hill or upland does not follow the course of the river, but recedes therefrom for a certain distance and then ¿gain abuts, on the river, -this process being repeated from point to point until Baton Rouge is reached; Of necessity therefore be-..
These various areas constitute in the nature of things, minor basins having their own watershed. And between Natchez and Baton Rouge there are five of these minor basins, one between Natchez and Ellis .Cliffs, sixteen miles below Natchez, another between Ellis Cliffs and Fort Adams, thirty-nine miles below Ellis Cliffs, a third between Fort Adams and Tunica, seventeen miles below Fort Adams, and two othérs between Tunica and Bayou Sara, twenty-three miles below Tunica, and from Bayou Sara to Baton Rouge, a distance of thirty-five miles. These subordinate basins are included in a, general local ievee district known as the Homoehitto district. A dull and accurate statement concerning these basins, of their relation to levee building, and overflow, will be found in Document No.-1010, House of Representatives, 63rd Congress, third session, being a'ietter of- the Secretary of War trans-. mitting to the House of Representatives a full report of a survey made'by direction of Congress, by the Mississippi River Commission, of these basins. Of the hasin between Ellis Cliffs, and Fort Adams, the report of the Commission makes the following statement:
“Between Ellis Cliffs and Fort Adams, a distance of 39 miles by river, lies a basin whose protection from floods is greatly complicated by the presence of lakes, streams, and swamps. .
/‘It has a .total ’area of 59,412 acres, including 9,781 ■acres of cleared and 49,631 acres of wooded land, the assessed value of which is $204,739.'
“The systematic protection- of the basin as a whole isimpracticable without including drainage work of large propоrtions.
“It will be observed that there is a large amount of cleared land- which is now beiñg cultivated although meag'erly protected from floods by small private levees.'
“Owing-to the extent of swamp lands the cultivated area could not be greatly extended by thé construction of a levee along the river front.
“The benefits to be derived from the construction of a levée are relatively small as compared with the cost, and the work cannot be recommended.”
In February, 1894, the appellants or their predecessors in title for whom they have been' substituted on the record, filed their petition in the Court of Claims against the United States, alleging themselves to be the owners of various tracts of land in Adams County, Mississippi, composing three plantations. It was alleged as follows:
“2. That before and prior to the year 1890 said plantаtion from its natural situation, was comparatively high and exempt from overflow from the waters of- the Mississippi river, except at long intervals, and the occurrence of such overflows did not materially affect its productive capacity, or its value.
“That said -plantation was highly improved, well •stocked with laborers and tenants, yielded yearly large crops of cotton, corn and other products, and-was worth the sum of. fifty .thousand- dollars.
“3. That about the year 1883 the officers and agents of the United States, in pursuance of the act of Congress creating the Mississippi River Commission, and of the subsequent acts for the improvement of the navigation of the Mississippi River, adopting the so-called Eads’ plan, projected, .and have constructed,, and are constructing,. a system of public works for the purpose of so сonfining the waters of-the river between lines of embankment,- .or levees, as to- give increased eleVation and velocityand force fco the current in order to scour and deepen the channel, and have thus caused an increased and abnormal elevation of at least four feet to the waters of the river at ,t'h.e high water or flood stage; and for said purposes have adopted and made use of systems of public and private levees, originally constructed for the reclamation of overflowed lands, on the west bank from the highlands of Arkansas to the mouth of the Red river, and from the mouth of the Red river to the Passes, and on the east bank from the highlands of Tennessee to the mouth of the Yazoo river, and from Baton Rouge to the Passes; but from the mouth of the Yazoo river to Baton Rouge, instead of adopting and constructing levees, have made use of the highlands skirting the river for said purpose, and have thus placed the plantations of petitioners, and others similarly situated between the lines of embankment, and exposed to the full force of the currents of the river, with such increased and abnormal flood level.
"And are so raising, enlarging, strfengthening, adding to and constructing such levees, as to cause the plantations of petitioners, and others so situated to be flooded annually by the waters of the river, and to destroy, the crops, growing and grown thereon, and to drown the live stock, and to undermine and wash away the buildings, fences and other improvements, and to fill up the drains and ditches, and to wash off. the soil, and to cover the lands with sand and gravel, and to render them unfit for cultivation, and' to entirely destroy their value.
"4. That in pursuance of the said plan for the improvement of the navigation of the river, the said officers and agents of the United States have undertaken1 to close the Atchafalaya river, a natural outlet carrying off near one-third of the surplus waters'of the Mississippi, and to force the waters of the Red river and its tributaries, from their natural course through the Atchafalaya river to the Gulf of Mexico, into the channel of the Mississippi river,and have so obstructed, and are so obstructing, the passage of the surplus waters through the Atchafalaya as to cause the waters of the rivers at the flood stage to annually back up and overflow the lands of petitioners, and to destroy the crops, growing and grown thereon, and to deposit thereon superinduced additions of water, earth, sand and gravel, so as to render them unfit for cultivation, and to entirely destroy their value.
"5.- That by reason of the premises aforesaid the lands of petitioners, which before, from their natural situation, were comparatively high and secure from overflow, have been flooded annually by the waters of the rivers thus confined, in the years 1890, 1891, 1892 and 1893, and the crops growing and grown thereon, have been each year destroyed by said overflows, so caused, and the live stock drowned, and buildings and fences. and other improvements undermined and "washed away, and the ditches and drains filled up and the soil washed off, and covered with sand, and earth and gravel, so as to render them unfit for cultivation, and to entirely destroy their value, to the injury and damage of- petitioners, as follows, to-wit: . . .” ■.
Following an enumeration of loss of crops and personal property in the years 1890, 1891, 1892 and 1893 and the fixing of the value of the land at $50,000, recovery was prayed of $107,257.50, asserted- to-be due because , finder the facts alleged there had been a taking of the property by the United States for public use.
A demurrer to this petition was overruled on June 1, 1896. The nature of the ruling is indicated by the following excerpt from the opinion, reported in 31 Ct. Cls. 318:
"The petition findoubtedly sets up losses which are in. the nature of consequential damages, of which the court has-not jurisdiction. The Government-may have increased the effect of the flood wrongfully of rightfully by the erection of its levees; but it did not in the constitutionalsense of the term take the claimant’s cotton, mules, corn, cattle, and sheep for public use. Such a claim is not founded on an implied contract; and of it the court has .not jurisdiction; But the petition does allege thаt ‘the value of the land and the improvements destroyed was $50,000;’ and that taking- is. presented by allegations so closély resembling those in the Pumpelly v. Green Bay Company Case that this court does not feel at liberty to say that they present no valid cause of action.”
It is stated in the record that during the year 1908, first, second and third supplemental petitions were filed, although they are not reproduced; but the court below in its opinion declares the aggregate damages claimed was $569,702.50. To these petitions a demurrer .seems to have been filed by the United States, which was passed upon in 1910, the order on the subject reading as follows:
'‘Within the former ruling in this case (31 Ct. Cls., 318), the demurrer' to the original and supplemental' petitions, in so far as they or either of them aver a taking of real estate — within six years from the date of filing of said petitions — -by overflow proximately caused by thе construction of levees or other public works in the improvement of the navigation of the Mississippi River pursuant to acts of Congress and within the ruling of the cases of Pumpelly v. Green Bay Company (13 Wall., 166 ). and United States v. Lynah (188 U. S., 445 ), is overruled.
But as to the alleged annual destruction of crops and personal property on said land so taken by overflow the demurrer is sustained.”
Besides the supplemental petitions just referred to and the action of the court thereon in the period of sixteen years which- elapsed between the entry of the order overruling the first demurrer in 1896 and January 5, 1912, when what is styled a fourth supplemental petition was filed, many proceedings were had, such as a hearing, the making of findings of fact and conclusions of law,
First. As to the situation of the lands, it- was averred that said “lands are situated at Jackson Point, in the Alluvial Valley of the Mississippi, on the left bank of the river, 40 miles below Natchez and 25 miles above the mouth of Red River. That the basin in which the Jackson lands are situated commences at Ellis Cliffs, about 20 miles below Natchez, and extends to Fort Adams, about fifty miles below, with an average width of 2 miles and a maximum width of 6 miles,.and is оne of six (6).. small basins of the Homoehitto Basin,” a description which beyond doubt-, fixes the location of the lands as within'
Second. As to the Condition of the property prior to the doing of the acts complained of, it Suffices to say that it was alleged that by means of levee protection resulting from work done by the owners of the property along the river bank, the property had been protected, that crops of large value had been raised thereon, and that improvepients hád been put. thereon and that as a result of this protection by the levees built by the owners, although the property was occasionally overflowed by brеaks in the levee, the overflow when it came was not destructive or of such long duration as to prevent the making of a crop, and that the property was highly improved, stocked with implements, etc., as alleged in the original petition, and was bf great productive capacity and of large value to the owners.
Third. The facts from which it was alleged the property had been so injured, or destroyed by work done by officers of the.United States as to constitute a taking of the property by the United States for which adequate compensation was due,.are stated under the following headings:
a.
That about the year 1883 the officers and agents of the United States, “in pursuance of the Act of Congress, creating the Mississippi River Commission, and of the ■subsequent acts for the improvement of the navigation of the-Mississippi River', adopted the so-called Eads plan, by Act of Congress approved March 3, 1881, in consequence whereof have projected, and have constructed, and are constructing a continuous system of public work^, for the purpose of so confining the flood waters of the river between lines of embankment, or levees, as •to -give increased elevation and velocity and force, to the currents, in order to scoiir and deepen the channel,
b. That for time beyond the memory of' man the flood waters of the Mississippi River, passing Helena, Arkansas, where the highlands abut on the river, had escaped into the White River and Upper Tensas Basins, and passed in part through various designated bayous, rivers or streams -which as we have previously' said in describing the White- River and Tensas basins on the west bank carried to the Gulf independently of the Mississippi waters which enter into or overflow these great watersheds: It being moreover, however, alléged that if they — ■ that is, the waters passing Helena and which did. not escape Into the White River and Tensas Basins — “ever reached the lands of claimants in .sufficient volume to 'flow them were, speedily reduced by crevasses, on the west' bank, which allowed them to escapе into the Atchafalaya Basin, and thus relieved the lands of claimants,”
That in executing' their plans as above described the, officers of the United States had by the levees which they had constructed .or maintained along the front of the White River and Tensas Basins, prevented the flow of a large volume of water into those basins which would have- found its way to the Gulf without returning to the Mississippi as- above stated, and had thus increased largely the volume, of. Water flowing past the •'claimants’ land afid which therefore in time of flood-would rest against the levee, which protected their lands from overflow.
,c:.
That for . the purpose of carrying out their plans, the- officers had built -a..levee to close a very extensive
d. Because yet further to give effect- to their plans, the officers of the United States had prevented large quantities of water which otherwise would have reached the Gulf through the Atchafalaya river, from taking that course, by works designed to retain water in the Mississippi, thus causing the water to back up against claimants’' levee, and- greatly increasing the dangér of overflow.
e. That the plantations of petitioners are located within the limits of a narrow strip of land lying between the low water bank of the Mississippi River and the highlands east of it between Vicksburg and Baton Rouge, where the highlands skirt very closely to the river bank and are not protected by levee construction other than that built by the claimants, which has been , destroyed and washed away by the recent flood waters of said river after the levee system had practically reached a state of completion and the United States had closed the Bougere Crevasse, as hereinafter alleged.
“That the United States has not attempted to connect the levee line on the east side of said river by the construction of levees on said irregular and narrow strip of land lying between Vicksburg and Baton Rouge for the reason that the cost of said levee construction, as shown by the Mississippi River Commission’s Report for 1896, and the report and survey of the small basins in the Homochitto levee district between Ellis Cliff and Fort Adams, made in 1895 by Col. Geo. B. McC. Derby, the engineer, officer in- charge of said district, would exceed the value of the land lying between the river and the foothills, (of which
The court below made .elaborate findings of fact, contained in twenty-five numbered paragraphs. The first four-relate to the title of the claimants to the land and we need not review them. Bindings 5; 6, 7, 8, and 9 relate to the condition of the river prior to the work done by the Government, to the escaping of water into the White River and Tensas Basins as alleged, and to the increased pressure brought upon the levees protecting the lands of-the claimants, to the greater frequency of overflow of ■ such lands, etc., etc., some of these'findings as,we have said, being in the very words of the allegations of the supplemental and amended petition of 1912. Concerning the work done by the officers of the United States, findings numbered 10, 11 and 15 contain the following:
“X.
“Prior to the year 1883 the States and local authorities had constructed unconnected lines of levees for the protection and reclamation of lands subject to overflow from the mouth'- of Red River to the mouth of Arkansas and from the motith of the Yazoo to the highlands below Memphis. The flood waters of 1882 destroyed miles .of these :levees.
“Beginning about the year 1883 and continuing to the present time, the officers and agents of the United States, pursuant to an act of Congress creating the Mississippi River Commission and the other acts amendatory thereof, and for the improvement of the Mississippi River for navigation, adopted a plan, the so-called Eads plan,and in consequence thereof have projected and constructed and maintain — and are now engaged in constructing and maintaining certain lines of levees on both sides of the river at various places for various distances from Cairo, 111.-, to near the Head of the Passes, a distance of 1,050 miles by river from Cairo, and the local authorities or organizations of the States bordering along the river on both sides from Cairo to the Gulf have before and since 1883 constructed and are now constructing and maintaining certain lines of lévees at various places and of various lengths for the purpose of protécting and reclaiming lands within their respective districts from overflow in times of high water.
“The levee lines so constructed by the United States and local authorities have been joined, thus giving a continuous line of levees, as contemplated by the Eads plan, with the result that the flood water's of the Mississippi River to a great extent are confined within and between said levee lines and encompassed within a narrower scope than heretofore, acquired an increased velocity and higher elevation and the current thereof has become stronger and more forceful.
“The plan of the officers and agents of the United States so acting was to increasе said velocity and scouring power of the water and to scour and deepén the channel of the Mississippi River and thereby improve it for navigation, and the purpose of the officers and agents of the State and local authorities constructing lines of levees at various points along and on both sides of the river was to reclaim and to protect land from overflow in times of high water. By so doing, the waters being thus confined within a narrower compass, as above indicated, have attained a higher elevation of approximately 6 feet in times of high water.
“XI.
“ From Cairo, 111., to near the mouth of-the Yazoo River, just north of Vicksburg, the Mississippi River is practicallyleveed on both sides, except on the east side, where the highlands abut on or near the river in Kentucky and Tennessee (from Port Jefferson, Ky., to a short distance south of Memphis, Tenn.) and thence on the west side-to near the Head of the Passes,-or to a point 1,050 miles by the fiver from Cairo, and on the east side from Baton Rouge to the same point near the Head of the Passes, leaving a gap in the line of levees of 234 miles in length, from the mouth of the Yazoo River to Baton Rouge, unleveed, where the foothills in some places hug closely to the'east bank of the river, and at other points are from 2 to 6 miles from the river, in which strip of territory the lands of claimants are located between the highlands and the river, as before stated.
“The extension of the general levee system by the United States and the local authorities, since the United States adopted to its use and assumed ‘permanent control’ of the levees theretofore- constructed by State and local authorities, has resulted in an increased elevation of the general flood levels, which subjects the claimants’ lands to deeper overflow than they were subject to formerly, or would be subject, to now, if the levee system were not in existeneé, and consequently has destroyed its value for agricultural and grazing purposes, causing its abandonment for that purpose since the year 1908. The immediate cause of the deeper overflow of claimants’ land is the increased elevation of flood heights which is the result of the general confinement of the flood discharge by the levee system- as a whole.
“ XV.
“Before the creation of the Mississippi River Commission by act of Congress, and the adoption of the Eads plan as aforesaid, the levee lines-along the Mississippi River theretofore constructed by State and local'authorities consisted of a broken chain of levees of insufficient height and strength to confine the flood waters, and hadbeen built without regard to a uniform grade line. The United States then caused a survey and report to be made py its officers and agents showing the condition and' location of levee lines theretofore constructed by State and local authorities as they then existed. This survey suggested a proposed continuous system of levees from Cairo to the Head of the Passes. In many instances it was a blanket survey which encompassed and took in the lines of levees theretofore constructed by State and local authorities as above stated. The project recommended by the Mississippi River Commission adopting the Eads plan for the systematic improvement of the river from Cаiro to the Head of the Passes was practically adopted by act of Congress approved March 3) 1881. The United States then undertook the projection and completion of a continuous line of. levees from Cairo to the Head of the Passes, as suggested by this survey and the Eads plan,, and as recommended by the Mississippi River Commission, and, in furtherance of that plan and as part of and supplementary thereto, adopted to .its use, and is now using, the levees theretofore constructed by' State and local authorities, thereafter making them much larger and stronger. Since that'time, levee construction, whether done by the United States or State and local authorities, has been in conformity with the grades and methods of construction adopted by the Mississippi River Commission, and the efficiency of the levеe system has been largely due to this fact.
“The extension of this levee system by the United States from Cape Girardeau, Mo., to the Head of the Passes was authorized by act of Congress in 1906.” (34 Stats. 208.)
The remainder of the findings are but cumulative and wre do not pause to state them.
■ The court concluded in view of the authority of the United States over navigation and its right to construct works for that purpose, that there was no liability on the
Before we take up the contentions advanced by the appellants to establish that the court below was wrong in deciding that there was no liability on the part of the United States, we consider it necessary, lest misconception otherwise might result, to refer to what we deem to be grave errors committed by the court in certain particulars, even although in passing upon the merits we shall consider the case in such an aspect as to cause it to be unnecessary to review the errors in question for the purpose of passing on the merits. In the first place it is apparent that in many important respects 'matters which the' court below has stated as findings of fact are mere conclusions of law. This is true for instance of the broad conclusion embodied in the findings-of fact as to the relation of the United States to levee work and the power of the Mississippi River Commission over all such work by whomsoever performed. In the second place, treating it as a question of law, we think the error is apparent from a consideration of the statutes and the official reports relating to the subject, which we may judicially notice. It is true indeed that when the Eads theory, illustrated by the successful jet tying of the mouth of the river under a contract made with Captain Eads, came to be understood and it also came to be appreciated that the most efficient way to improve the navigation of the river was to ultilize the vast power of the river, by confining its waters within its banks, thus directing its energies to cutting out a deeper channel, Congress legislated to the accomplishment of such result by the creation of the Mississippi River Commission, and by conferring the power upon that body to improve the navigation of the river and to build levees for that purpose with the appropriations which were made from time to time to carry out these great purposes. But nothing in
“The injury will not be traceable to levees built by the United States any more than to those built by the States' and local organizations. Neither can it be аttributed to the levees on any particular or limited portions of the river. It will be a result of the system as a whole.”’
But passing, for the sake of argument, these considera
It is apparent, taking the broadest possible view in favor of the claimants, that the grievance which they allege they have suffered, can only rest upon three grounds:
,1st. The building by the officers of the United States of lines of levees along the bank of the river for the purpose of retaining the water in the river, treating, for the sake of the argument, all acts done by the local authorities in building levees or closing breaks as acts of the United States.
2nd; The failure of the United States to build on the east bank of the river along the minor basins which we have fully1 described, a line of levees so as to afford means of protection from the increased danger of overflow arising from the fact that the lines of levees along the river on the west bank and elsewhere had been raised and strengthened and .extended, thus at least beyond doubt temporarily increasing the level of the flood' in times of high water.
' 3rd. The performance of work by the United States tending to diminish the • outflow of water from the river through streams which flowed from it, to the end that a more efficient body of wafer might remain in the stream for the purpose of accomplishing the deepening of the channel- and thus more effectively improving the navigable capacity of the river.
Let us primarily test the merits of the first ground of complaint, that is, the building of levees. It is not averred that the land of the claimants bordering on the east bank of the river in the absence of all levees and in a state1 of nature would not in seasons of high water, be оverflowed; and if it had been so alleged it is certain there; would be no right on the part of an individual to insist that primitive conditions be suffered to remain and thus all progress and development be rendered impossible. When accurately
Coming to the second Contention, we think it is disposed. of by the following consideration's:
In the first place — by the; report of the Commission to which we have referred the impossibility was pointed out of building a levee along the line of the minor .basin in which the land of claimants is situated, without destroying said land, because of its peculiar situation, unless there was • a permanent system of pumping to take out the water which would gather in the watershed. In the second place —looked at from the point of individual right and corresponding responsibility, it is impossible to conceive by what principle it can be said that because an individual having a right to do so has built a levee to protect his land from overflow, apd because his levee has accomplished that result by.retaining the water in the river, that thereby there arose a duty on Ms part to build a levee to protect the land of another or in the alternative to -pay for such land.
Indeed, the propositions but assert on the one hand that the United States is liable because it did that which it had a right to do and on the other that it is liable because it abstained from doing that which it was under no duty to do. Both the fundamental errors which the contentions involve are exemplified in the arguments used to sustain them since, it is-urged that because the levees constructed on the bank of the river operated to keep the water in the river from flowing out, that thereby they served to bring water into the river from without, and that the mere abstention from building levees at a particular place or on a particular line Operated to transfer the bank of the river
The third consideration, that is, the preventing of the outflow of water by work done in the tributaries and the consequent increase in the volume of water in thé river, cannot be tested from the point of view of individual authority, as the power to so do involves necessarily the exercise of governmental power. We therefore come to consider the proposition in that aspect. In doing so, however, it is to be observed that even if all the previous considerations which we have stated concerning the non-liability to result from building levees, measured by the right of an individual to build a levee to prevent the water of a river from overflowing its banks and destroying his property, be put out of view, and the case, therefore in all its aspects be tested by the scope of the governmental authority possessed by the United States, the absence of merit in all the claims is too clear to require anything but statement. We say this because the plenary power of the United States to legislate for the benefit of navigation and to construct such works as are appropriate to that end, without liability, for remote or consequential damages, has been so often decided as to cause the subject not to be open. It was directly ruled as to work done by the Mississippi River Commission in
Bedford
v.
United States,
Affirmed.