United States v. Archer

Petition in the court of claims for the recover of $300,000 for damages alleged to have been caused by the oppicers and agents of the United States under the authority of an act of Congress creating the Mississippi River Commission by the construction and extending of a dike, known as the Leland dike, upon the land of petitioners, called the Point Chicot plantation.

A demurrer to the petition was overruled, and after answer and hearing judgment was rendered for claimants in the sum of $54,920, to review which this appeal is prosecuted.

The findings were necessarily voluminous; we condense them narratively as follows: Claimants' plantation prior to the construction of the levee system to the state of completion which now exists was of great value and in a high state of cultivation, being reclaimed lands comparatively free from overflows of the Mississippi river except at intervals, the recurrence of such overflows being so separated in point of time as not to materially affect either the value or the productive capacity of the plantation. It was highly improved with houses and cabins thereon and stocked with laborers and tenants, and yielded large crops.

It has been overflowed at certain rises of the water in the river (the rise in feet, according to certain data, is given from 1844 to 1910), and during the twenty years following 1891, after the levee system had been made effective, there were eight years during which it was not overflowed.

Gauges of the height of the water are taken at Memphis and Greenville. Claimants' plantation is overflowed whenever the water rises to 135 feet, Memphis datum, and it has been more or less overflowed every year except two years (1872 and 1889) during the eighteen years prior to 1891, up to which time the levee system had not been completed sufficiently to withstand great floods and the outlets unclosed; and during the twenty years following 1891, after the levee system had been made effective and the outlets closed by the United States and the local authorities, there were eight years, namely, 1894, 1895, 1896, 1900, 1901, 1902, 1905, and 1910, during which claimants' land was not overflowed.

The plantation is overflowed at a stage of 38 feet on the Greenville gauge, or whenever the surface water rises to 135 feet, Memphis datum, and the gauge readings show that of the fifteen years from 1882 to 1896, inclusive, there were only four years in which this stage was not exceeded, and that for the fourteen years from 1897 to 1910, inclusive, there were five years in which this stage of 38 feet on the Greenville gauge was not exceeded.

From time immemorial the waters of the river during its highest stages, when not contained within the low-water banks, have naturally found outlets through certain basins (they are mentioned) and through the rivers draining them into the Gulf of Mexico. And the plantations that were not overflowed so frequently before such outlets were closed by levee construction were consequently little injured by overflows.

Prior to 1883 the state and local authorities constructed a system of levees, miles of which were destroyed in 1882.

Beginning in 1883 the officers of the United States, under the authority of an act of Congress creating the Mississippi River Commission, and other acts amendatory thereof, adopted the so-called Eads plan, and in consequence thereof have projected and constructed levees on both sides of the river for various distances from Cairo, Illinois, to near the Head of the Passes, a distance of 1,050 miles from Cairo; and the local authorities along the river on both sides from Cairo to the Gulf have before and since also constructed and maintained levees at various places and of various lengths for the purpose of protecting and reclaiming land within their respective districts.

The levee lines so constructed by the United States and local authorities have been practically joined, with the result of confining the river within a narrow scope, increasing its velocity and elevation and the strength of its current. The highest elevation is approximately 6 feet in times of high water, and the plan of the United States was to increase the scouring power of the water, deepen the channel and improve navigation, and that of the local authorities to reclaim and to protect the land on both sides of the river from overflowing at times of high water.

From time immemorial the high-water bed of the river has been between the highlands on the east side and the highlands on the west side, and the claimants' plantation is within this boundary; that is, between the highlands on the Mississippi side and the highlands on the Arkansas side, and has been occasionally overflowed at times of high water, as stated above, before as well as since the construction of the levees.

From Cairo to the mouth of the Yazoo river the Mississippi river is practically leveed on both sides, except on the east side, where the highlands about on or very near the river in Kentucky and Tennessee, and there is a gap in the line of levees of 234 miles from the mouth of the Yazoo river to Baton Rouge, unleveed.

The extension of the levee system has resulted in an increased elevation of the general flood levels which subjects claimants' land to a deeper overflow than they were subjected to formerly, and consequently has somewhat reduced its value for agricultural purposes. The immediate cause of the deeper overflow on claimants' land is the increased elevation of the flood heights, which is the result of the general confinement of the flood discharge by the levee system as a whole.

During the flood waters of 1882 the levees failed throughout the length of the river. In 1884 the crevasses were still open in all basins. They were open and closed in subsequent years (which are given); they were all closed in 1904 to 1910. In consequence of the closing of the natural basins, outlets, and crevasses, overflowed lands on both sides of the river have been reclaimed and protected from overflow in times of high water and vast benefit has accrued to the states of Illinois, Kentucky, Tennessee, Mississippi, Arkansas, and Louisiana, but the land of claimants, situated between the levees, and outside thereof, and not protected thereby, has been subjected to repeated overflow, tending to diminish and impair its value, but to what extent does not satisfactorily appear from the evidence.

A part of the levee system runs back of claimants' plantation, not touching the same, and between it and the plantation is a stretch of ground lower than the main body of the plantation, and in periods of high water the water, rising and passing over and upon said land, has, by reason of its lowness, first gone thereupon, and its main current was across said land, and not upon the plantation, which, while in extreme high water it would be flooded, did not have the full force of the current of the river, but was covered in part or in whole by slacker water. The current during highwater seasons struck against the levee back of claimants' plantation, eroding and washing it away, to the great danger of its existence and the inundation of the lands to the rear thereof and diverting the water from the channel of the river. A breach or crevasse in the levee would have entailed damage to it and to the adjacent landowners, and impaired the efficacy of the levee system as projected, constructed, and maintained by the officers of the Mississippi River Commission in accordance with the plans heretofore stated.

In addition to the danger to the levee, the current, impinging upon the banks of the stream and the neck of the land adjoining Point Chicot to the mainland, cutting into it, threatened to and would have, if permitted to continue, cut through the neck of land, thus straightening the channel and making the plantation an island.

In order to prevent the threatened danger to the levees and the neck of land, the officers of the United States, acting under the authority of the acts of Congress, and the Mississippi River Commission, constructed what is known as the Leland dike, running diagonally and at an angle from the main line of levee on the Arkansas side across and on the land of claimants to a point 662 feet beyond where the line of the plantation begins, their object being to divert the current of the stream during high waters from impinging upon the levee, and, by throwing it northeastward by the dike, to prevent the destruction of the levee and the cutting across the neck of land.

The dike first went into and on the land a distance of 662 feet, but, its end being exposed to the waters of the river and to its powerful current, the officers deemed it necessary to extend the dike a distance of some 2,700 feet farther upon the land of claimants, and did so extend it in 1907 without any condemnation of the land and with no remuneration therefor being made to claimants. A large part of the soil was used for this construction.

Before the United States joined the levee lines in accordance with the Eads plan, thus making the same continuous, there were occasional overflows of the plantation, but they have been made deeper and more forceful by the adoption of such system. But before the erection of the dike the overflows did not materially damage the plantation, and it remained still valuable for agricultural purposes. By the extension of the dike the high-water current of the river has been deflected over and across a large part of the plantation, but flows in the same direction as did a portion of the high waters of the river before the erection of the dike,-but with greater force and depth,-the escape of a portion of the high waters over and across the neck of land being thereby prevented, in consequence of which the overflows of the plantation have been greatly increased and intensified, the result of which has been to wash and scour out its top soil and to deposit upon a large part of the plantation great burdens of sand and gravel, and 3,696 acres have been thereby rendered totally unfit for cultivation or any other profitable use. This result has been caused partly by the joining of the levee systems and the erection of said dike, but directly and proximately by the erection of said dike.

The lines of levees constructed in part by the officers of the United States and in part by the officers and agents of the local organizations of the states bordering on the river to 1909 had a length of 1,548 miles and contained 229,729,354 cubic yards. The officers of the United States constructed 1,050 miles of the total. Since 1909 the authorities of the United States have built additional lines of levees containing 2,970,224 cubic yards, and the local authorities lines of levees containing 5,063,427 cubic yards, thus bringing the work of levee construction up to the year 1910.

The 3,696 acres of land damaged as stated was, at the time of the erection of the dike, of the value of $83,920, and 31 4/10 acres of the same is actually and wholly occupied by the United States by the construction of the dike, and the balance, to wit, 3,664 6/10 acres, has been destroyed and rendered wholly unfit for cultivation or any other profitable use. The land is described.

As an ultimate fact, the court finds, in so far as it is a question of fact, the 3,696 acres of land was somewhat impaired in value by the construction of the levee system, but that its use was totally destroyed by the erection of the Leland dike, and was thereby taken, its value at the time of such destruction and taking being $83,920.

Before this suit was brought George F. Archer, one of the claimants, brought a suit in the United States circuit court for the western district of Arkansas against the board of levee inspectors of Chicot county, Arkansas, for the damages arising from the erection of said dike and the taking of the 31 4/10 acres of land. A demurrer by the defendants to the complaint was overruled (128 Fed. 125); and thereafter and before the begining of this suit Archer discontinued the suit brought against the board.

The ownership of the plantation by the claimants was found. From the findings of fact the court concluded that claimants were entitled to a judgment of $54,920.

Solicitor General Davis and Robert Szold for appellant.

Mr. Percy Bell for appellees.

Statement by Mr. Justice McKenna:  Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court: