General Box Company v. United States/Opinion of the Court

General Box Company, an owner of trees of commercial value along the main stem of the Mississippi River in Louisiana, brought this action to recover from the United States the value of its timber destroyed by the Government through its duly authorized agent, a contractor.

The trees grew upon land belonging to others and located between the low- and high-water mark of the river. Such land is known in Louisiana as 'batture.' Since colonial days batture has been subject to a servitude of the State for use in the construction and maintenance of levees. It may be used for these purposes without the payment of compensation to the owner. The United States cooperates with Louisiana in the containment of the Mississippi within levees. To carry out federal plans in the area in controversy, the United States requires, and Louisiana agrees to furnish, the necessary rights-of-way 'without cost' for the construction of levees. Louisiana has given general authority to its Levee Boards to donate to the United States the necessary 'lands, movable or immovable property, rights of way, or servitudes' for flood control use. The Fifth Louisiana Levee District, the one here involved, agreed to meet the requirements of the Federal Flood Control Act.

The location of the operation giving rise to this action was at the Brabston Levee in the Fifth Louisiana Levee District. The first step taken by the United States to obtain the permission of the State to use the State's servitude in the batture here in issue was the filing of the federal plans with the State District Engineer. The plans were approved by the Engineer and the local Levee Board was so notified. On June 10, 1947, the Levee Board received the drawings from the United States District Engineer with the following request for authority:

'It is desired that this District be furnished a formal     statement by your Board that rights-of-way are available for      the construction of the enlargement and granting the United      States a right of entry to prosecute the work. This statement     may be in the form of a letter signed by the President of the      Board.' Under a standing resolution, adopted September 12, 1945, the President of the Board was empowered to honor applications for such authority. On June 12, 1947, the Board President responded to the United States Engineer, quoting the words of the request and adding:

'The Board of Commissioners of the Fifth Louisiana Levee     District hereby is glad to comply with your request and      render you any assistance possible.'

On July 9 that letter was spread upon the minutes of the Board. We accept that, as did the Court of Appeals, as a ratification by the Board of the act of its President. On July 10 the contractors who were to execute the levee work were authorized by the United States to proceed within 20 days, and the clearing of the batture was commenced on July 22.

No notice was given to petitioner of the intention to bulldoze its trees off the batture. On September 12 the petitioner discovered that the trees were being destroyed, and an objection was promptly made. The contractor, however, refused to halt its operations, relying upon its contract with the Government.

Petitioner brought two actions in the District Court under the Tucker Act, 28 U.S.C. § 1346(a)(2), 28 U.S.C.A. § 1346(a)(2), to recover the value of the destroyed timber. The suits were consolidated for trial, and ultimately a single judgment was entered against the United States in the amount of $10,801 plus interest. Both the United States and petitioner took appeals to the Court of Appeals, the former on the merits and the latter from so much of the judgment as fixed the interest at 4% from date of judgment. The Court of Appeals reversed, holding the United States to be free from liability. We granted certiorari to examine the liability of the United States for proceeding to clear this land without notice to petitioner, the owner of the trees, and thus without granting petitioner a reasonable opportunity to salvage the timber.

One of the defenses relied upon by the United States throughout this litigation is a claim that it is not liable to petitioner for the timber losses because it received rights-of-way on the land involved from the Levee Board, and that the Levee Board legally appropriated those rights-of-way without compensation under its riparian servitude. Petitioner concedes that under the civil law of Louisiana the property on which its trees were standing, being batture, is subject to a riparian servitude for use by the State of Louisiana in constructing and repairing levees, and that historically the owner of such property has been required to permit State use without compensation of such part thereof as might be needed for levee purposes. And it is not denied that the timber on this land, as well as the land itself, is subject to the exercise of the servitude for levee purposes.

Petitioner in effect does claim, however, that the State did not effectively exercise the riparian servitude for the reason that the appropriation here was arbitrary and therefore beyond the power of the State. This contention is based upon the fact that no notice of the proposed destruction was given to petitioner. It is argued that under Louisiana law, which of course defines the bounds of the riparian servitude, the power possessed by the State by reason of the servitude is not an unlimited and arbitrary power; that it would be arbitrary, oppressive and unjust to exercise the State's rights under the servictude in the circumstances of this case without prior notice to petitioner; that therefore the attempt by the State to exercise the servitude without such notice was ineffective to cause an appropriation of the timber pursuant to the servitude. If Louisiana could not exercise its rights under the servitude without first giving notice to petitioner, the timber here involved was never successfully taken by the State free of an obligation to compensate for the taking. It would follow that the United States received no rights from the Levee Board permitting destruction of the trees by it free of that obligation. The Court of Appeals held, based upon its analysis of Louisiana law, that prior notice to petitioner was not a prerequisite to an appropriation of its timber for levee purposes. We ordinarily accept the determinations of the Courts of Appeals on questions of local law, and we do so here. Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 534, 69 S.Ct. 1233, 1235, 93 L.Ed. 1520; Huddleston v. Dwyer, 322 U.S. 232, 237, 64 S.Ct. 1015, 1018, 88 L.Ed. 1246.

The Louisiana courts have made no pronouncement which directly controls this question. But see Board of Com'rs of Red River, Atchafalaya and Bayou Boeuf Levee Dist. v. Trouille, 212 La. 152, 31 So.2d 700. The Supreme Court of Louisiana has, however, as recently as 1946, reviewed the long history of the riparian servitude. Dickson v. Board of Com'rs, 210 La. 121, 26 So.2d 474. In that case it was noted that:

' * *  * while in all of the remaining states of the Union      lands necessary for levee purposes can only be used after      expropriation and proper indemnification, in Louisiana the      state has the right to act first, i.e., the authority to      appropriate such land to a use to which it is subject under      its very title, and talk later. * *  *

'And however unfair it may seem to the owners of this type of     land they are without right to complain because their      acquisition of such land was subject by law to this ancient      servitude and the private mischief must be endured rather than the public      inconvenience or calamity.' 210 La. at pages 132, 136, 26     So.2d at pages 478, 479.

The court further stated that the rights of the State under the servitude can be exercised in the way found to be 'most expeditious from an engineering, economical, and practical standpoint.' 210 La. at pages 127, 138, 26 So.2d at page 480; Board of Com'rs of Tensas Basin Levee Dist. v. Franklin, 219 La. 859, 866, 54 So.2d 125, 127-128. The levee enlargement plan here called for bulldozing standing timber for reasons of economy-that operation admittedly being a less expensive method for clearing land than removing the stumps of cut timber. The servitude was developed so as to insure 'that the shores of navigable rivers and streams in this state would always be kept free for the public for levee * *  * purposes.' 210 La. at pages 131-132, i6 So.2d at page 478. This historical background makes clear that the rights of the State in property subject to the servitude are very broad. By law, and for the good of all, lands were made available to the State for levee purposes in as convenient a manner to the State as was necessary for the public welfare, and with little regard for the severity of the obligations imposed on the individual property owner. Nothing in the development of the servitude indicates that, before the State can exercise its obviously comprehensive rights, it must provide an opportunity to remove timber from batture.

Since, as we hold, petitioner's property was effectively appropriated by state authorities pursuant to the servitude, the United States cannot be liable to petitioner for the value of the property. The State, as owner of the servitude, legally could have destroyed the timber without prior notice and without any opportunity for mitigation of losses, and yet be free of liability to petitioner. The destruction, it seems to us, was consistent with the rights of the State under the servitude. Rather than undertake the levee project itself, Louisiana, through one of its agencies, donated its rights as against petitioner's timber to the United States. The United States, as donee of those rights, could exercise them to their full extent without incurring liability, just as its donor could have done.

The petitioner sought compensation for the destruction of the trees based upon a claim that the 'destruction of said timber was (a) taking * *  * within the meaning of the Fifth Amendment to the Federal Constitution.' But this property was not taken by the United States in the exercise of its power of eminent domain. In effect, the timber was 'owned' by Louisiana for levee purposes, and the United States succeeded to that 'ownership' by 'conveyance.' Louisiana furnished its batture as required by the law of both the United States and Louisiana for use in protecting the property in the State from floods. Petitioner did not assert in its complaints or in its question presented on petition for certiorari that the destruction violated the Due Process Clause of the Fifth Amendment.

Affirmed.