In Bedford v. United States, 192 U.S. 217, the Government's acts were of the character that every riparian owner has the legal right to perform, i.e., to protect his own lands from overflow by the building of structures to prevent the overflow.Summary of this case from Horstmann Co. v. United States
Argued December 9, 1903. Decided January 18, 1904.
Damages to land by flooding as the result of revetments erected by the United States along the banks of the Mississippi River to prevent erosion of the banks from natural causes are consequential and do not constitute a taking of the lands flooded within the meaning of the Fifth Amendment to the Federal Constitution. Gibson v. United States, 166 U.S. 269, followed; United States v. Lynah, 188 U.S. 445, distinguished.
Mr. John C. Chaney for appellants:
There is no difference between the taking of land by the Government for a navigable waterway for steamboat traffic for the public good and that of backing up water over a man's land through a public dam constructed so as to work such a result, as held in United States v. Lynah, 188 U.S. 445. The revetment as well as the dam appropriates the land and deprives the owner of its use.
It was a public statute which authorized the dam, and it was a public statute which authorized the building of the revetment. The officers of the law derived their authority, in both instances, from the same source. Gibson v. United States, 166 U.S. 273; Gilman's case, 3 Wall. 713, distinguished, and see the Great Falls case, 112 U.S. 645; Pumpelly v. Green Bay Co., 13 Wall. 181; Mill's case, 46 F. 738.
The officers and agents of the United States took appellants' lands under sanction of authority and the Government is bound to make just compensation. The building and maintaining the revetment was duly authorized by Congress, as follows: 20 Stat. 363, 366; 21 Stat. 181, 470; 26 Stat. 450, 1116. An implied contract consequently arose to pay for the appropriation of this property. Great Falls case, supra; Kohl v. United States, 91 U.S. 367.
The law will imply a promise to make the required compensation, where property, to which the Government asserts no title, is taken, pursuant to an act of Congress, as private property to be applied for public uses. Such an implication being consistent with the constitutional duty of the Government, as well as with common justice, the claimants' cause is one that arises out of implied contract, within the meaning of the statute which confers jurisdiction upon the court of claims of actions founded upon any contract, express or implied, with the Government of the United States. Sanford v. United States, 101 U.S. 341; Boone Co. v. Peterson, 98 U.S. 403; United States v. Jones, 109 U.S. 573; Barron v. Baltimore, 7 Pet. 243; Withers v. Buckley, 20 How. 84, and see Sinnickson v. Johnson and Gardner v. Newburgh, cited in Pumpelly v. Green Bay Co., 13 Wall. 181; Angell on Water Courses, § 465 a.
The power to take private property for public uses belongs to every independent government. It is an incident of sovereignty, and does not require constitutional recognition. This power is recognized by the Constitution of the United States wherein, by its Fifth Amendment, it declared that private property shall not be taken without just compensation. United States v. Gettysburg Electric Ry. Co., 160 U.S. 668; High Bridge Lumber Co. v. United States, 37 U.S. App. 234; Barron, etc., v. Mayor of Baltimore, 7 Pet. 243; Hallister v. Benedict Manufacturing Co., 113 U.S. 59; United States v. Palmer, 128 U.S. 262; United States v. Berdan Fire Ins. Co., 156 U.S. 552; South Carolina v. Georgia, 93 U.S. 4, 13; Wisconsin v. Duluth, 96 U.S. 379.
It is clear that what was a valuable plantation has been permanently swept away "as the necessary result of the work which the government has undertaken." Pumpelly v. Green Bay Co., supra, says this is a "taking" of appellants' lands for public use, as stated in the opinion of the court in the Lynah case. See also Angell on Water Courses, § 465 a; Hooker v. New Haven N. Co., 14 Conn. 146; Rowe v. Granite Bridge Co., 21 Pick. 344; Canal App. v. The People, 17 Wend. 604; Lockland v. North M.R.R. Co., 31 Mo. 180; Stevens v. Prop'r of Middlesex Co., 12 Mass. 466; Monongahela Nav. Co. v. United States, 148 U.S. 312; Scranton v. Wheeler, 179 U.S. 141; Transportation Co. v. Chicago, 99 U.S. 635.
Even if we are to restrict the ownership of appellants' lands to mere riparian rights, it is unfair to appropriate them without compensation. By the Encyclopedias England makes compensation where it takes such rights under its eminent domain.
The theory of our Government is that the rights of the individual when subordinated to the public necessities shall be compensated for. Private property is subject to public uses only when paid for. It matters not for what special purpose private property may be taken, it is subject to the limitations of payment cast by the Fifth Amendment.
Mr. Assistant Attorney General Pradt, with whom Mr. Special Attorney William H. Button was on the brief, for the United States:
This is a case sounding in tort and the Court of Claims has no jurisdiction of an action sounding in tort. Schillinger v. United States, 155 U.S. 161; United States v. Lynah, 188 U.S. 445.
The Great Falls case, 112 U.S. 645, was an implied contract and the Langford case, 101 U.S. 341, was not. Appellant's land was miles away from the revetment. The Government has never parted with the original right to navigable waters. Gibson case, 166 U.S. 272; Shively v. Bowlby, 152 U.S. 1; Martin v. Waddell, 16 Pet. 367; Weber v. State Harbor Commissioners, 18 Wall. 57; Illinois Central R.R. Co. v. Illinois, 146 U.S. 387.
Upon the American Revolution all the rights of the Crown and of Parliament vested in the several States, subject to the rights surrendered to the National Government by the Constitution of the United States. In England these rights only extended to waters in which the tide ebbs and flows. This was the early doctrine of the United States, but this court, Genesee Chief v. Fitzhugh, 12 How. 443, held that that test was not applicable, and that the true test was whether or not the waters were in fact navigable, and see Scranton v. Wheeler, 179 U.S. 141, and the Michigan case of Lorman v. Benson, cited therein; Stockton v. Balt. N.Y.R.R. Co., 32 F. 9, 20; Gilman v. Philadelphia, 3 Wall. 725; Cooley's Const. Lim. p. 643.
The United States is not responsible for the causes of the destruction of appellants' property but the injury is the effect of natural causes.
The United States did not undertake to appropriate any property but simply to preserve the property intrusted to its care, that is, the commercial interests of Vicksburg. Angell on Water Courses (7th ed.), § 333; Barnes v. Marshall, 68 Cal. 569; Farquharson v. Farquharson, 3 Bligh Pr. N.S. 421; Gulf R.R. Co. v. Clark, 101 F. 678, and cases cited.
The damage is too remote to constitute a taking. Transportation Co. v. Chicago, 99 U.S. 642; Gibson v. United States, 166 U.S. 269. The damages are not, and cannot be, proven, but are conjectural and speculative and cannot be recovered. Howard v. Stillwell Co., 139 U.S. 199; Central Trust Co. v. Clark, 92 F. 293; Cahn v. Telegraph Co., 40 F. 40.
There is no dispute about the power of the government to construct the works which, it is claimed, caused the damage to appellants' land. It was alleged by appellants that they were constructed by the "United States in the execution of its rights and powers, in and over said river and in pursuance of its lawful control over the navigation of said river and for the betterment and improvement thereof." And also that the works were not constructed upon appellants' land, and their immediate object was to prevent further erosion at De Soto Point. In other words, the object of the works was to preserve the conditions made by natural causes. By constructing works to secure that object appellants contend there was given to them a right to compensation. 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.
There is another principle by which the rights of riparian property and the power of the government over navigable rivers are better accommodated. It is illustrated in many cases.
The Constitution provides that private property shall not be taken without just compensation, but a distinction has been made between damage and taking, and that distinction must be observed in applying the constitutional provision. An excellent illustration is found in Gibson v. United States, 166 U.S. 269. The distinction is there instructively explained, and other cases need not be cited. It is, however, necessary to refer to United States v. Lynah, 188 U.S. 445, as it is especially relied upon by appellants. The facts are stated in the following excerpt from the opinion:
"It appears from the fifth finding, as amended, that a large portion of the land flooded was in its natural condition between high-water mark and low-water mark, and was subject to overflow as the water passed from one stage to the other; that this natural overflow was stopped by an embankment, and in lieu thereof, by means of flood gates, the land was flooded and drained at the will of the owner. From this it is contended that the only result of the raising of the level of the river by the government works was to take away the possibility of drainage. But findings nine and ten show that, both by seepage and percolation through the embankment and an actual flowing upon the plantation above the obstruction, the water has been raised in the plantation about eighteen inches, that it is impossible to remove this overflow of water, and, as a consequence, the property has become an irreclaimable bog, unfit for the purpose of rice culture or any other known agriculture, and deprived of all value. 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."
The question was asked: "Does this amount to a taking?" To which it was replied: "The case of Pumpelly v. Green Bay Co., 13 Wall. 166, answers this question in the affirmative." And further: "The Green Bay Company, as authorized by statute, constructed a dam across Fox River, by means of which the land of Pumpelly was overflowed and rendered practically useless to him. There, as here, no proceedings had been taken to formally condemn the land." In both cases, therefore, it was said that there was an actual invasion and appropriation of land as distinguished from consequential damage. In the case at bar the damage was strictly consequential. It was the result of the action of the river through a course of years. The case at bar, therefore, is distinguishable from the Lynah case in the cause and manner of the injury. In the Lynah case the works were constructed in the bed of the river, obstructed the natural flow of its water, and were held to have caused, as a direct consequence, the overflow of Lynah's plantation. In the case at bar the works were constructed along the banks of the river and their effect was to resist erosion of the banks by the waters of the river. There was no other interference with natural conditions. Therefore, the damage to appellants' land, if it can be assigned to the works at all, was but an incidental consequence of them.