Franklin v. United States , 101 F.2d 459 ( 1939 )

ALLEN, Circuit Judge.

The principal question presented is whether the construction by the • United States of dikes on the bank and in the bed of the Mississippi River for the purpose of changing the current in order to improve navigation, which resulted after a year in the washing away of appellants’ land on the opposite side of the river, constitutes an appropriation of private property within the purview of the Fifth Amendment to the Constitution of the United States, U. S. C. A. A demurrer interposed to the declaration was sustained by the District Court. From the judgment dismissing the- declaration .this appeal is prosecuted.

Two actions instituted separately by appellants, each of whom owned an undivided one-fourth interest in 1,100 acres of land in Tennessee, located on the east bank of the Mississippi River, were consolidated by agreement in the District Court.

The declaration avers that the land in question is fertile and so elevated above the waters of the Mississippi as to be fully useful at all times for farming; that acting under the Mississippi River Flood Control Act, Title 33, U. S. C., Sections 702a-702n, inclusive, 33 U.S.C.A. § 702a-702n, the United States in 1931 constructed certain dikes in the Mississippi River a short distance above and opposite appellants’ land and upon the Arkansas side of the river.

The declaration further alleges, in substance, that the dikes were constructed by the driving of two rows of piling, parallel and close together, bound together with steel cable and filled between with crushed rock, their character being such as to effect a permanent obstruction of the flow of the water in the river; that they extend out into the river practically at right angles from the Arkansas bank, from 1,300 ■to 4,000 feet into the bed of the river, and above the surface of the water at any ordinary stage; that prior to the construction of the dikes, the current in the river opposite appellants’ lands was away from and not against the Tennessee bank, where the lands lay; that the purpose and effect of the construction was to force the current of the river away from its natural course, almost at a right angle across the river, and against the bank on the Tennessee side, in order to improve navigation; that as a result of such change of current, within one year after the completion of the dikes all but a few acres of appellants’ land was entirely washed away, and its former location became the bed and channel of commerce of the river; that the result of the construction of the dikes was an intentional direct invasion and complete destruction of the property.

The declaration further alleges that no compensation has been paid or provided to be paid for the damages averred to have been sustained, and that the destruction of the lands was a direct and proximate result of the construction of the dikes; that such destruction was inevitable, and that such result would occur was well known to the Government and its agents at the time of construction; that the construction of the dikes constituted a taking or appropriation of appellants’ lands or of an easement thereon for public use within the scope and meaning of the Fifth Amendment to the Constitution of the United States, which provides that private property shall not be taken for public use without just compensation.

The Government demurred upon the grounds:

(1) That the owner of an undivided one-fourth interest in the land cannot prosecute the action without joining the other co-tenants;

(2) That the facts alleged do not constitute a taking within the purview of the F if th' Amendment;

(3) ' That the Mississippi River Flood Control Act does not provide for recovery for the damage averred; and

(4) That the cause of action, if any, is in tort, and that the court has no jurisdiction of a tort action against the United States.

In sustaining the demurrer the court ruled on all grounds except that of joinder of necessary parties. While that question is again urged here, it is not necessary to consider it in view of our holding upon other branches of the case.

The decision of the main question, namely, whether the case presents a taking of property without compensation, in violation of the Fifth Amendment, depends upon the power of the United States to construct the dikes in question and its liability for the damage described as caused by the construction. The Mississippi River Flood Control Act specifically authorized this work, and the Congress, in the exercise of its express power to regulate interstate commerce (Art. 1, Sec. 8, cl. 3, United States Constitution, U. S. C. A.) may improve navigation. Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23; South Carolina v. Georgia, 93 U.S. 4, 23 L.Ed. 782; Gilman v. Philadelphia, 3 Wall. 713, 724, 18 L.Ed. 96. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688. This being the case, "Riparian ownership is subject to the obligation to suffer the consequences of the improvement of navigation in the exercise of the dominant right of the government in that regard.” Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578, 580, 41 L.Ed. 996. See also Union Bridge Co. v. United States, 204 U.S. 364, 27 S.Ct. 367, 51 L.Ed. 523; Hannibal Bridge Co. v. United States, 221 U.S. 194, 31 S.Ct. 603, 55 L.Ed. 699. Cf. Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82, 87, 33 S.Ct. 679, 57 L.Ed. 1083; Willink v. United States, 240 U.S. 572, 580, 36 S.Ct. 422, 60 L.Ed. 808; United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 33 S.Ct. 667, 57 L.Ed. 1063. In the last case the court said, at page 62, 33 S.Ct. at page 671:

"This title of the owner of fast land upon the shore of a navigable river to the bed of the river * * * is subordinate to the public right of navigation, and however helpful in protecting the owner against the acts of third parties, is of no avail against the exercise of the great and absolute power of Congress over the improvement of navigable rivers. That power of use and control comes from the power to regulate commerce between the states and with foreign nations. It includes navigation and subjects every navigable river to the control of Congress. All means having some positive relation to the end in view which are not forbidden by some other provision of the Constitution are admissible. If, in the judgment of Congress, the use of the bottom of the river is proper for the purpose of placing therein structures in aid of navigation, it is not thereby taking private property for a public use, for the owner’s title was in its very nature subject to that use in the interest of public navigation.”

The power to improve navigation includes the power to divert a navigable stream by the closing of one of its channels. South Carolina v. Georgia, supra. That case holds that the Congress has power to order obstructions to be placed in the navigable waters of the United States, either to assist navigation or to change its direction by forcing it into one channel of the river rather than the other. In the making of such improvements, the United States is not liable for consequential damage. Gibson v. United States, supra; Bedford v. United States, 192 U.S. 217, 24 S.Ct. 238, 48 L.Ed. 414; Jackson v. United States, 230 U.S. 1, 33 S.Ct. 1011, 57 L.Ed. 1363. Cf. United States v. Cress, 243 U.S. 316, 327, 37 S.Ct. 380, 61 L.Ed. 746. The meaning of the term “consequential damage” is illustrated in Northern Transportation Co. v. Chicago, 99 U.S. 635, 25 L.Ed. 336, which held that acts done in the proper exercise of governmental powers and not directly encroaching upon private property, though their consequences may impair its use, do not constitute a taking within the meaning of the constitutional provision.

In the instant case the construction of the dikes was a proper exercise of governmental power, and they did not directly encroach upon private property. The dikes at no point touch upon appellants’ land, but are on the Arkansas side of the river. It is alleged that as a result of the constrxxction, within one year after the completion of the dikes, all but a few acres of the land was washed away. This averment describes a gradual erosion, such as was held in Bedford v. United States, supra, to give rise to no recovery.

But it is urged that the doctrine of United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L.Ed. 557, and United States v. Cress, supra, requires a different conclusion. In the Pumpelly and Lynah Cases the erection by the United States or by a quasi-public corporation of a dam which resulted in backing water permanently over privately-owned land abutting on navigable waters, was held to give rise to an implied contract to pay for the damage. The Cress Case presented questions of damage to parcels of land abutting on non-navigable streams, effected by government dams in navigable streams. The general scope of these holdings, as stated in United States v. Lynah, supra, is that [page 357] “where the government by the construction of a dam or other public works so floods lands belonging to an individual as to substantially destroy their value there is a taking within the scope of the 5th Amendment.” ¹ ■ Such a flooding is declared to constitute an actual invasion of private property. Or, as elsewhere stated (Sanguinetti v. United States, 264 U.S. 146, 44 S.Ct. 264, 265, 68 L.Ed. 608), “in order to create an enforceable liability against the government; it is at least necessary that the overflow be the direct result of the structure,- and constitute an actual, permanent invasion of the land, amounting to an appropriation of and not merely an ipjury to the property.”

The apparent conflict between the doctrine of the Lynah, Pumpelly, and Cress Cases, and the Gibson, Bedford, and Jackson Cases, supra, is resolved when it is borne in mind that the doctrine in the first three cases is a deviation from the general rule, constituting, as the court said in Northern Transportation Co. v. Chicago, supra, at page 642, “The éxtremest qualification of the doctrine * * *.” The court then went on to point out that in the Pumpelly Case “there was a physical-invasion of the real estate of the private owner, and a practical ouster of his possession.” In the instant case the United States did not physically invade the land nor oust the owner from possession. The test of an unlawful taking within .the scope of the Fifth Amendment is not the extent of the injury. “It is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking.” United States v. Cress, supra, at page 328, 37 S.Ct. at page 385.

An illustration of the sweeping manner in which the Supreme Court has upheld the power of the United States to make improvements without incurring liability for consequential damage is shown in the case of John Horstmann Co. v. United States, 257 U.S. 138, 42 S.Ct. 58, 66 L.Ed. 171, That was an action for damages following the construction of a government irrigation project by which the body of the ground water rose throughout the entire section. The appellant was manufacturing soda from the water of a lake, the level of which rose about nineteen feet, destroying the value of appellant’s property. The court assumed causal connection between the work of the Government and the rise of waters of the lake and the consequent destruction of appellant’s property, but said that [page 59] “it does not follow that the government is under obligation to pay therefor, as for the taking of the properties.” It declared that “what is done may be in the exercise of a right and the consequences only incidental, incurring no liability,” and held that there could be no recovery.'

In the Gibson, Bedford and Jackson cases, supra, substantial and permanent damage to private property resulting from constructions similar in character to that attacked herein was held not to constitute a taking.

In the Gibson Case, a dike 2,200 feet in length, had been constructed by the United States in the Ohio River, in order to concentrate the water-flow in the main channel of the river. It was only 400 feet east of the claimant’s farm. It substantially destroyed the use of the claimant’s landing and reduced the value of the land from $600 to $200 per acre. As there was no physical invasion of the real estate and no actual ouster of the owner’s possession, recovery was denied. The court quoted with approval' from South. Carolina v. Georgia, and Northern Transportation Co. v. Chicago, supra, and held that the prevention of the free egress and ingress to the claimant’s land was not a direct invasion, but the incidental consequence of the lawful and 'proper exercise of a governmental power.

, In the Bedford Case, it was alleged that in consequence of the construction of a revetment upon the bank of the Mississippi, the claimant’s lands were eroded and overflowed. The court determined that the damage was strictly consequential, and denied recovery. We are unable to see any difference in principle between the Bed-ford and the instant case.

In the Jackson Case, the land in question had been flooded annually by the waters of the Mississippi, due to the construction of a continuous system of public works, built “for the purpose of so confining the waters of the river between lines of embankment, or levees, as to give increased elevation and velocity and force to the current in order to scour and deepen the channel.” [page 1013.] In executing their plans 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 * * * and had thus increased largely the volume of water flowing past the claimants’ land.” The confining of the flood waters of the Mississippi between the levees’ lines had given them an increased velocity, a higher elevation, and a stronger and more forceful current, which caused the destruction of crops, the drowning of livestock, the undermining and washing away of buildings, fences and improvements, the washing off of the soil, and the entire destruction of the value of the land.

In the instant case appellants urge that since the alleged purpose in constructing the dike was to change the current of the river, a direct invasion results. They contend that the riparian owner has a right to have the river come to him unchanged in its natural condition. This is their right as against individual riparian owners (United States v. Chandler-Dunbar Water Power Co., supra, at page 70, 33 S.Ct. 667; Cubbins v. Mississippi River Commission, 241 U.S. 351, 366, 36 S.Ct. 671, 60 L.Ed. 1041), but not as against the paramount power of the United States to improve navigation. United States v. Chandler-Dunbar Water Power Co., at page 70, 33 S.Ct. 667; Cubbins v. Mississippi River Commission, at page 369, 36 S.Ct. 671; Hughes v. United States, 230 U.S. 24, 33 S.Ct. 1019, 57 L.Ed. 1374, 46 L.R.A.,N.S., 624. The power of Congress extends to the whole expanse of the stream. Greenleaf-Johnson Lumber Co. v. Garrison, Secretary of War, 237 U.S. 251, 263, 35 S.Ct. 551, 59 L.Ed. 939. The United States is not responsible to riparian owners for consequential damages from the deflection of waters by reason of structures lawfully constructed in aid of navigation.

We can see no practical distinction between changing the current of the river here, and confining the waters, concentrating them so as to give them increased elevation, velocity and force, and diverting the natural flow of the river, as in the Jackson Case. There the court held that the alteration of the current and of the river flow gave rise to no liability on the part of the United States. Here the fact that the current was altered by the dikes constructed for the improvement of navigation is no occasion for modifying the general rule that in absence of an actual entry upon and invasion of private property, the damage done by the erection of lawful construction in a navigable river is as a matter of law consequential, and that no recovery can be had apart from statute.

The demurrer was correctly sustained with reference to the third ground therein stated. The Mississippi River Flood Control Act does not, as to the construction described in the declaration, enlarge the liability of the United States. Title 33, U.S. C., Section 702c, 33 U.S.C.A. § 702c, the applicable section, relates to the construction of or the failure to construct levees, and not to the construction of dikes in the riverbed.

The demurrer was correctly sustained as to the fourth ground. The cause of action, if any, is in tort. Sanguinetti v. United States, supra. But the United States is not liable in tort, and the federal court has no jurisdiction of a tort action against the United States. Ball Engineering Co. v. J. G. White & Co., 250 U.S. 46, 57, 39 S.Ct. 393, 63 L.Ed. 835.

The judgment is affirmed.

1 In United States v. Grizzard, 219. U. S. 180, 31 S.Ct. 162, 55 L.Ed. 165, 31 L.R.A.,N.S., 1135, there had been an actual taking of part of claimant’s land by permanent flooding.