THOMAS C. BEDFORD and Emma Bed¬ ford, Appts., v.

UNITED STATES.

(See S. C. Reporter's ed. 217-225.)

Eminent domain — what constitutes a tak¬ ing.

The injury from overflow and erosion to the lands of a riparian proprietor as the result of the action of the Mississippi river through a series of years is not such a direct conse¬ quence of the construction by the Federal government farther up the stream of a revet¬ ment along the banks, which did not change the course of the river as it then existed, but operated to prevent further changes, as

Note. — As to lohat constitutes a takinp of property by eminent domain — see note to Mem¬ phis & C. R. Co. v. Birmingham, S. & T. River It. Co. 18 L. R. A. 16G.

192 U. S.

Bedford v. United States.

217-219

to make such governmental action a taking of private property for public use within the meaning of the 5th Amendment to the Fed¬ eral Constitution.

[No. 23.]

Argued December 9, 1903. Decided January IS, 1901,.

APPEAL from the Court of Claims to re¬ view a judgment dismissing a petition for an award of damages to real property, alleged to be the result of the construc¬ tion of certain public works by the United States. Affirmed.

See same case below, 36 Ct. Cl. 474.

Statement by Mr. Justice McKenna: The appellants were owners of land on the Mississippi river in the state of Louisiana, amounting to 5,000 or 6,000 acres, upon which were cabins, other buildings, and fen¬ ces. They brought suit in the court of claims for damages to their lands, alleged to have resulted from certain works of the United States. The damages consisted, as found by the court, of the erosion and overflow of about 2,300 acres of the land. The works of the government, and their operation, are described by the court in the following find¬ ings: 4

“Prior to the spring of 1876 the Missis-

sippi river flowed *around a narrow neck of land known as De Soto point; and, in going around this point, flowed by the city of Vicksburg in a southwesterly direction. In the spring of 1876 De Soto point became so narrow by erosion that the river broke through, leaving De Soto point as an island, thereby shortening the distance of the stream about 6 miles, and taking its course immediately to the south with great veloc¬ ity against the Mississippi bank at what is known as the cut-ofl of 1876. The result was that the city of Vicksburg was left some miles away from the main channel of the river, and the old channel in front of the city was continually filled up, making the approach from the river to the docks along the river difficult, if not impossible.

“Between 1878 and 1884 the United States constructed about 10,700 feet of revetment along the banks of the Mississippi river at Delta point, Louisiana, for the purpose of preventing the further erosion of that point. The revetment consisted of willow mattress¬ es weighted down by stones, and were placed on sand banks below high-water mark. The revetment was neither upon nor in contact with the claimant’s land. The object of the construction was to prevent the navi¬ gable channel of the river from receding farther from the city of Vicksmirg, which had been left some distance from the main 192 U. S.

channel of the river by the cut-off of 1876, as aforesaid. The revetment was repaired slightly in 1860 and 1889, and more ex¬ tensively in 1894, all of which work was paid for from time to time out of the ap¬ propriations made therefor by Congress, as found in 20 Stat. at L. 303, 366, chap. 181;

21 Stat. at L. 181, chap. 211; 21 Stat. at L. 470, chap. 136; 26 Stat. at L. 450, chap.

907; 26 Stat. at L. 1116.

“In making the improvement aforesaid, the defendants did not recognize any right of property in the claimants in and to the right alleged to be affected, and did not assume to take private property in and by the construction of the revetment, but pro¬ ceeded in the exercise of a claimed right to improve the navigation of the river.

“After the cut-off at De Soto point in 1876, and the construction of the revetment, as aforesaid, the channel and current *of the

Mississippi river were gradually directed toward the lands of the claimants, situated about 6 miles below said cut-off, and did, about the year 1882, reach said lands and thereafter erode and overflow about 2,300 acres of their lands, which overflow has ever since continued. About 400 acres of their lands so eroded and overflowed was prior to the death of said George M. Bedford, through whom the claimants claim title, and about 900 acres of which were overflowed thereafter and prior to said judicial sale, and the residue after said sale. Of the lands so overflowed about 1,300 acres thereof were cleared and in cultivation, of which about 700 acres were so cleared prior to May 2,

“The damage to the claimants, and each of them, by reason of the washing away of their lands during their respective owner¬ ship, as aforesaid, is an excess of $3,000.

“The cause of the deflection of the river upon the claimants’ land was the cut-off, which shortened the distance of the stream 6 miles, and thereby increased the velocity of the current, and forced the current to turn, when it struck the Mississippi bank, at an abrupt angle. The revetment did not change the course of the river as it then ex¬ isted, but operated to keep the course of the river at that point as it then was. If the revetment had not been built, the cut-off would have continued to widen toward the Louisiana bank, and the channel would have continued to move in the same direction.

With the widening of the cut-off and the shifting of tlie channel the angle of the turn below the cut-off would have gradually be¬ come less abrupt, and the deflection of the stream upon the claimants’ land would have grown less, and the consequent injury to the claimants’ land would have been de¬ creased. To what extent the injury would

415

219,220.223

have been decreased is conjectural. The injury done to the claimants’ land was an effect of natural causes; the injury caused by the government was by interrupting the further progress of natural causes, i. e., the further change in the course of the riv¬ er, and is also conjectural.”

The court deduced from the facts that the

claimants were "not entitled to recover, and dismissed their petitions. 36 Ct. Cl. 474.

the United States. Oct. Term,

ligation cast by the 5th Amendment, of pay¬ ing just compensation.

United States v. Lynah, J88 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349 ; Mononga- hela Nav. Go. v. United States, 148 U. S. 312, 37 L. ed. 463, 13 Sup. Ct. Pep. 622; Scranton v. Wheeler, 179 U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48.

Permanent Hooding of private property may be regarded as a taking.

Northern Transp. Go. v. Chicago, 99 U. S. 635, 25 L. ed. 336.

Assistant Attorney General Pradt argued the cause, and, with Mr. William. H. Button, filed a brief for defendant in error:

A riparian owner may preserve existing conditions, although he may not erect con¬ structions which will change those condi¬ tions. Subject to this limitation, he may preserve his property irrespective of the con¬ sequences to his neighbors.

Angell, Water Courses, 7tff ed. § 333; Barnes v. Marshall, 68 Cal. 569, 10 Pac. 115; Gulf, G. A S. F. R. Go. v. Clark, 41 C. C. A. 597, 101 Fed. 678.

It would seem that the same principle will apply to the United States in its protection of the property interests intrusted to its care.

The damage is too remote to constitute a taking.

Northern Transp. Go. v. Chicago, 99 U. S. 642, 25 L. ed. 338; Gibson v. United States, 166 U. S. 273, 41 L. ed. 1001, 17 Sup. Ct. Rep. 578; Scranton v. Wheeler, 179 U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48.

Damages that are speculative and conject¬ ural in their nature cannot be recovered.

Howard v. Stillwell A B. Mfg. Co. 139 U. S. 199, 35 L. ed. 147, 11 Sup. Ct. Rep. 500; Central Trust Co. v. Clark, 34 C. C. A. 354, 92 Fed. 293.

Mr. Justice McKenna delivered the opin¬ ion of the court:

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 appel¬ lants 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 nav¬ igation of said river, and for the better¬ ment 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 compen¬ sation. The contention asserts a right in a

192 U. S.

Mr. John C. Chaney argued the cause, and, with Messrs. E. T. Brookshire and Dab¬ ney A McCabe, filed a brief for appellants:

Land, not being subject to servitude to navigation, was appropriated outright by the government, to a public use, and the Consti¬ tution guarantees payment therefor.

United States v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349; United States v. Great Falls Mfg. Co. 112 U. S. 645, 28 L. ed. 846, 5 Sup. Ct. Rep. 306; Pumpelly v. Green Bay cG M. Canal Co. 13 Wall. 181, 20 L. ed. 561.

An implied contract consequently arises to pay for such appropriation of property.

United States v. Great Falls Mfg. Co. 112 U. S. 645, 28 L. ed. S46, 5 Sup. Ct. Rep. 306; Langford v. United States, 101 U. S. 341, 25 L. ed. 1010; Mississippi A R. River Boom Co. v. Patterson, 98 U. S. 403, 25 L. ed. 206; United Slates v. Jones, 109 U. S. 513, 27 L. ed. 1015, 3 Sup. Ct. Rep. 346; Barron v. Bal¬ timore, 7 Pet. 243, 8 L. ed. 672; Withers v. Buckley, 20 How. 84, 15 L. ed. 816; Hollister v. Benedict A B. Mfg. Co. 113 U. S. 59, 28 L. ed. 901, 5 Sup. Ct. Rep. 717 ; United States v. Palmer, 128 U. S. 202, 32 L. ed. 442, 9 Sup. Ct. Rep. 104; United States v. Berdan Firearms Mfg. Co. 156 U. S. 552, 39 L. ed. 530, 15 Sup. Ct. Rep. 420; United Slates v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349. See also South Carolina v. Georgia, 93 U. S. 4, 23 L. ed. 782; Wisconsin v. Duluth , 96 U. S. 379, 24 L. ed. 668.

A serious interruption to the common and necessary use of property is a taking of it, and it is not necessary that the land be abso¬ lutely taken.

Angell, Water Courses, § 405a.

This is a “taking” of appellants’ lands for public use.

Pumpelly v. Green Bay A M. Canal Co. 13 Wall. 181, 20 L. ed. 561; Angell, Water Courses, § 465a; Hooker v. New Haven A N. Co. 14 Conn. 146, 36 Am. Dec. 477 ; Roiee v. Granite Bridge Cory. 21 Pick. 344; Canal Appraisers v. People, 17 Wend. 004; Lack- land v. North Missouri R. Co. 31 Mo. 180; Stevens v. Middlesex Canal, 12 Mass. 400.

Although in the discharge of its duties the government may appropriate property, it cannot do so without being liable to the ob- 410

Supreme Court of

Rogers v. Alabama.

223-226

riparian proprietor to the unrestrained op- I eration of natural causes, and that works I of the government which resist or disturb those causes, if injury result to riparian owners, have the effect of taking private property for public use*# within the meaning of the 5th 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 alse 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 land- owner below the works, why not to all land- owners? The principle contended for seems necessarily wrong. Asserting the rights of riparian property, it might make that prop¬ erty 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 illus¬ tration is found in Gibson v. United States, 16G U. S. 2G9, 41 L. ed. 99G, 17 Sup. Ct. Rep. 5/8. 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. 445,47 L. ed. 539, 23 Sup. Ct. Rep. 349, as it is especially re¬ lied upon by appellants. The facts are stated in the following excerpt from the opinion :

“It appears from the 5th finding, as amended, that a large portion of the land flooded was, in its natural condition, be¬ tween 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 IX. 192 tr. s.

and X. show that, both by seepage and per¬ colation through the embankment and an ac¬ tual flowing upon the plantation above the obstruction, the water has been raised in the plantation about 18 inches; that it is impos¬ sible 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 agricul¬ ture, and deprived of all value. It is clear from these findings that what was a valu¬ able 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 re¬ plied: “The case of Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557, 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 ren¬ dered practically useless to him. There, as here, no proceedings had been taken to form¬ ally condemn the land.” In both cases, therefore, it was said that there was an ac¬ tual 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 ac¬ tion of the river through a course of years. The case at bar, therefore, is distinguishable from the Lynah Case in the cause and man¬ ner 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 nat¬ ural conditions. Therefore, the damage to appellants’ land, if it can be assigned to the works at all, was but an incidental conse¬ quence of them.

Judgment affirmed.