An owner of land within the area of the Boeuf Floodway, part of
a diversion project embraced in the comprehensive plan of flood
control adopted by the Mississippi River Flood Control Act of 1928,
brought suit against the United States under the Tucker Act,
alleging that the Flood Control Act and operations contemplated by
and carried on pursuant to it involved damage to the land and a
taking of it for public use. A right to just compensation under the
Fifth Amendment and a right of recovery under the Flood Control Act
itself were asserted. The owner's use and possession of the land
had not been interfered with; there had been no flooding of the
land since the passage of the Act, and it appeared that the
floodway project in question had been abandoned.
1. Upon the facts of this case, there was no "taking" of the
land within the meaning of the Fifth Amendment. P. 308 U. S.
(a) A finding that the program of improvement under the 1928 Act
had not increased the flood hazard to which the owner's land
theretofore had been subject was amply supported by the record. P.
308 U. S.
(b) An undertaking by the Government to lessen the hazard of
damages by floods which were inevitable but for such undertaking
does not constitute a taking of those lands which are not afforded
as much protection as others. The Fifth Amendment does not require
payment of compensation to a landowner for flood damage not caused
in any wise by action of the Government. P. 308 U. S.
(c) The finding was justified that the benefit accruing to the
owner's land from the program of the 1928 Act outweighed any damage
occasioned. P. 308 U. S.
(d) The finding that the proposed Boeuf Floodway was a natural
floodway was supported by the evidence. P. 308 U. S.
(e) The claim that there was a taking of the land when the 1928
Act went into effect and work began pursuant to it, because the Act
involved an imposition of a servitude for the purpose of
intentional future flooding of the proposed floodway -- examined
and rejected. P. 308 U. S.
Page 308 U. S. 257
(f) The United States did not, by the 1928 Act, assume complete
control over all levees to the exclusion of the States and local
authorities. P. 308 U. S.
(g) The owner's "right of self-defense" against floods through
locally built levees was not taken away. None of the levees on
which the owner here could rely was "built by" or "acquired by" the
United States, and § 14 of the Act of March 3, 1899, is therefore
inapplicable. P. 308 U. S.
This conclusion is consistent with the administrative
construction of the Act.
2. The lands of the owner in this case having been not damaged,
but actually benefited, there was no right of recovery under the
1928 Act. P. 308 U. S.
101 F.2d 506, reversed.
Certiorari, 307 U.S. 621, to review the reversal of a judgment
for the Government in a suit under the Tucker Act, brought by a
landowner to recover compensation for property alleged to have been
taken by the Government for public use.
Page 308 U. S. 260
MR. JUSTICE BLACK delivered the opinion of the Court.
Respondent sued the United States under the Tucker Act,
] alleging that the
Mississippi Flood Control Act of 1928, [Footnote 2
] and construction contemplated by that Act,
involved an "intentional, additional, occasional flooding, damaging
and destroying" of her land located in Desha County, Arkansas. She
maintained that her property had thus been taken for a public use
for which the Government is required to pay just compensation by
the Fifth Amendment,. [Footnote
] In addition, she asserted a statutory right of recovery
under the Act itself. After full hearing, judgment for the
Government was entered in the District Court. [Footnote 4
] The Circuit Court of Appeals reversed.
] Because of the
importance of both the legislation and the principles involved, we
granted certiorari. [Footnote
A summary of the history behind the Mississippi Flood Control
Act of 1928 clarifies the issues here. Respondent's land is in the
alluvial valley of the Mississippi River. Alluvial soil, rich in
fertility, results from deposits of mud and accumulations produced
by floods or flowing water. Thus, floods have generously
contributed to the fertility of the valley. However, the floods
that have given fertility have with relentless certainty undermined
the security of life and property. And occupation of the alluvial
valley of the Mississippi has always been subject to this constant
Page 308 U. S. 261
To enjoy the promise of its fertile soil in safety has, for
generations, been the ambition of the valley's occupants. As early
as 1717, small levees were erected in the vicinity of New Orleans.
Until 1883, piecemeal flood protection for separate areas was
attempted through uncoordinated efforts of individuals,
communities, counties, districts, and States. Experience
demonstrated that these disconnected levees were utterly incapable
of safeguarding an ever increasing people drawn to the fertile
valley. Under what was called the Eads plan, the United States,
about 1883, undertook to cooperate with, and to coordinate the
efforts of, the people and authorities of the various river
localities in order to effect a continuous line of levees along
both banks of the Mississippi for roughly nine hundred and fifty
miles -- from Cape Girardeau, Missouri, to the Gulf of Mexico.
] Recurrent floods,
even after the eventual completion of this tremendous undertaking,
led to the conclusion that levees alone, though continuous, would
not protect the valley from floods. And, in 1927, there occurred
the most disastrous of all recorded floods. In congressional
discussion of the 1928 Act, it was said -- as the evidence here
discloses -- that
"There were stretches of country [in Arkansas] miles in width
and miles in length in which . . . every house, every barn, every
outbuilding of every nature, even the fences, were swept away. It
was as desolate as this earth was when the flood subsided.
Respondent's land, under fifteen to twenty feet of water, was
left bare of buildings of any kind in this 1927 flood.
The 1928 Act here involved accepted the conception -- underlying
the plan of General Jadwin of the Army Engineers -- that levees
alone would not protect the valley from floods. Upon the assumption
that there might be
Page 308 U. S. 262
floods of such proportions as to overtop the river's banks and
levees despite all the Government could do, this plan was designed
to limit to predetermined points such escapes of floodwaters from
the main channel. The height of the levees at these predetermined
points was not to be raised to the general height of the levees
along the river. These lower points for possible flood spillways
were designated "fuse plug levees." Flood waters diverted over
these lower "fuse plug levees" were intended to relieve the main
river channel, and thereby prevent general flooding over the higher
levees along the banks. Additional "guide levees" were to be
constructed to confine the diverted flood waters within limited
floodway channels leading from the fuse plugs. The suggested fuse
plug which respondent claims would damage her property was to be at
Cypress Creek, within two to two and one-half miles of her land,
and her land lies in the path of the proposed floodway to stem from
this particular fuse plug.
The 1928 Act provided for a comprehensive ten-year program for
the entire valley, embodying a general bank protection scheme,
channel stabilization and river regulation, all involving vast
expenditures of public funds. However, before any part of this
program was actually to be carried out, the Act required extensive
"to ascertain the best method of securing flood relief in
addition to levees, before any flood control works other than
levees and revetments are undertaken."
Lands intended for floodways were, pending completion of the
floodways, to enjoy the protection already afforded by levees.
The District Court found:
Respondent's land lies in that part of the Boeuf Basin which the
plan of the 1928 Act contemplated as a diversion channel or
Floodway. This Basin has always been
Page 308 U. S. 263
a natural floodway for waters from the Mississippi, [Footnote 9
] and respondent's lands, and
other lands similarly situated, have been repeatedly overflowed by
deep water despite the presence of strong levees. [Footnote 10
] The United States has not
caused any excessive flood waters to be diverted from the
Mississippi through the proposed Boeuf fuse plug (at Cypress Creek)
or floodway, and respondent's property has not been subjected to
any servitude from excessive floodwaters which did not already
exist before 1928. She still enjoys the same benefits from the
Cypress Creek drainage system as when it was created before 1928,
and the government program has not "in any wise, nor to any extent
increased the flood hazard thereto." No work was ever commenced or
done within the area of the proposed Boeuf floodway, and the fuse
plug heading into it was never established. This floodway as a
whole has been abandoned, and the Eudora floodway substituted.
However, work done under the 1928 Act has shortened the river by
cut-offs and dredging, and the river has been lowered five or six
feet, with the greatest improvement in the vicinity of the proposed
fuse plug. Levee protection to lands such as plaintiff's has not
been reduced. In fact, plaintiff's land has been afforded
additional protection by virtue of the fact that this government
improvement program has materially reduced the crest of the river
at all times, including flood crests, and her land has also been
protected by the Government's reconstruction of levees on the
Arkansas River pursuant to its general program. In 1935, her
property would have been flooded but for the work done by the
Government which has kept her land free of overflow since 1928.
Page 308 U. S. 264
such as respondent's located immediately behind levees along the
main stem of the Mississippi are liable to be inundated and
destroyed by the breaking of riverfront levees and from natural
crevassing, regardless of the height and strength of the levee.
Loss in market value of respondent's property since 1927 has not
been caused by any action of the Government, but is due to the
flood of 1927, the depression, and other causes unconnected with
the governmental program under the 1928 Act. The United States has
in no way molested respondent's possession or interfered with her
right of ownership. She has remained in uninterrupted possession of
her property, operating it as a farm and borrowing money upon it as
From these findings, the District Court concluded as a matter of
(1) Respondent's property had not been taken within the meaning
of the constitutional prohibition against taking without
(2) Under the facts of this case, respondent had no statutory
right of recovery under the 1928 Act itself.
In reversing the District Court's judgment, the Circuit Court of
Appeals decided that the Boeuf floodway had not been abandoned by
the Government, but was in operative existence notwithstanding that
the proposed guide levees along the floodway had not been built,
and levees on the Mississippi both immediately above and below the
proposed fuse plug had not been raised above the height of what
would have been the fuse plug levee. The Circuit Court of Appeals
"By the provisions of this plan of flood control . . . ,
[respondent's land] is subjected to a planned and practically
certain overflow in case of the major floods contemplated and
described. No one can foretell when such may occur, but that is the
only remaining uncertainty. . . . If and when such floods do occur,
serious destruction must be conceded. "
Page 308 U. S. 265
Upon these conclusions, the Circuit Court held that there was a
taking of respondent's property.
This record amply supports the District Court's
finding that the program of improvement under the 1928 Act had not
increased the immemorial danger of unpredictable major floods to
which respondent's land had always been subject. Therefore, to hold
the Government responsible for such floods would be to say that the
Fifth Amendment requires the Government to pay a landowner for
damages which may result from conjectural major floods even though
the same floods and the same damages would occur had the Government
undertaken no work of any kind. So to hold would far exceed even
the "extremest" [Footnote
] conception of a "taking" by flooding within the meaning of
that Amendment. For the Government would thereby be required to
compensate a private property owner for flood damages which it in
no way caused.
An undertaking by the Government to reduce the menace from flood
damages which were inevitable but for the Government's work does
not constitute the Government a taker of all lands not fully and
wholly protected. When undertaking to safeguard a large area from
existing flood hazards, the Government does not owe compensation
under the Fifth Amendment to every landowner which it fails to or
cannot protect. In the very nature of things, the degree of flood
protection to be afforded must vary. And it is obviously more
difficult to protect lands located where natural overflows or
spillways have produced natural floodways.
The extent of swamps and overflowed lands in the Boeuf floodway,
and the history of recurrent floods that have passed through it,
support the District Court's finding that the proposed Boeuf
floodway is a naturally created floodway. And the Government's
problem was by
Page 308 U. S. 266
channel stabilization, dredging, cut-offs, or any effective
means, to prevent diversions from the Mississippi at all points, if
possible. But if all diversions could not be prevented, the
Government sought to limit the flooding to the least possible
number of natural spillways heading into natural floodways. If
major floods may sometime in the future overrun the river's banks
despite -- not because of -- the Government's best efforts, the
Government has not taken respondent's property. And this is true
although other property may be the beneficiary of the project. The
Government has not subjected respondent's land to any additional
flooding above what would occur if the Government had not acted,
and the Fifth Amendment does not make the Government an insurer
that the evil of floods be stamped out universally before the evil
can be attacked at all.
The far-reaching benefits which respondent's land enjoys from
the Government's entire program preclude a holding that her
property has been taken because of the bare possibility that some
future major flood might cause more water to run over her land at a
greater velocity than the 1927 flood, which submerged it to a depth
of fifteen or twenty feet and swept it clear of buildings.
Enforcement of a broad flood control program does not involve a
taking merely because it will result in an increase in the volume
or velocity of otherwise inevitably destructive floods where the
program, measured in its entirety, greatly reduces the general
flood hazards and actually is highly beneficial to a particular
tract of land.
The constitutional prohibition against uncompensated taking of
private property for public use is grounded upon a conception of
the injustice in favoring the public as against an individual
property owner. But, if governmental activities inflict slight
damage upon land in one respect and actually confer great benefits
when measured in the whole, to compensate the landowner further
Page 308 U. S. 267
be to grant him a special bounty. Such activities, in substance,
take nothing from the landowner. While this Court has found a
taking when the Government directly subjected land to permanent
intermittent floods to an owner's damage, [Footnote 12
] it has never held that the
Government takes an owner's land by a flood program that does
little injury in comparison with far greater benefits conferred.
] And here, the
District Court justifiably found that the program of the 1928 Act
has greatly reduced the flood menace to respondent's land by
improving her protection from floods. Under these circumstances,
respondent's land has not been taken within the meaning of the
Even though the Government has not interfered
with respondent's possession, and as yet has caused no flooding of
her land, [Footnote 14
respondent claims her property was taken when the 1928 Act went
into effect and work began on its ten-year program, because the Act
itself involves an imposition of a servitude for the purpose of
intentional future flooding of the proposed Boeuf floodway. But,
assuming for purposes of argument that it might be shown that such
supposed future flooding would inflict damages greater than all
benefits received by respondent, still this contention amounts to
no more than the claim that respondent's land was taken when the
statutory plan gave rise to an apprehension of future flooding.
This apprehended flooding might never occur, for many reasons --
one of which is that the Boeuf floodway might never be begun or
completed. As previously pointed out, the Act directed
comprehensive surveys before
Page 308 U. S. 268
utilization of any means of flood control other than levees and
revetments. In general language, it adopted a program recommended
by the Chief of Army Engineers, but Congress did not sweep into the
statute every suggestion contained in that recommendation.
Since it envisaged a vast program, the Act naturally left much
to the discretion of its administrators and future decisions of
Congress. [Footnote 15
Recognizing the value of experience in flood control, Congress and
the sponsors of the Act did not intend it to foreclose the
possibility of changing the program's details as trial and error
Here, it is clear that those charged with execution of the
program of the 1928 Act abandoned the proposed Boeuf floodway and
substituted another. Whatever the original general purpose of
Congress as to that floodway and its fuse plug at Cypress Creek,
congressional hearings, reports, and legislation have approved
their abandonment. Thus, respondent's contention, at most, is that
the Government should pay for land which might have been in a
floodway if that floodway had not been abandoned. We think this
contention without merit. [Footnote 16
Respondent's "right of self-defense" against
floods through locally built levees has not been taken away. The
1928 Act does not represent a self-executing assumption of complete
control over all levees to the exclusion of the States and local
authorities. Respondent's argument that it does rests upon § 9 of
the Act, making § 14 of the Act of March 3, 1899 (33 U.S.C.
Page 308 U. S. 269
§ 408), which forbids interference with levees, "applicable to
all lands, waters, easements, and other property and rights
acquired or constructed under the provisions of this  Act."
But § 14 of the 1899 Act relates only to levees and other
structures "built by the United States," and no local levees on
which respondent could rely have as yet been "built by the United
States" or "acquired . . . under the provisions of" the 1928 Act.
In fact, a proposal that the Government assume control of local
levees appeared in the original draft of the 1928 Act, but was
stricken out by amendment. [Footnote 17
] And the War Department, charged with its
administration, has treated the Act as leaving local interests free
to raise proposed fuse plug levees if they wish. [Footnote 18
It is argued that the 1928 Act itself requires
judgment for respondent even though her property was not "taken"
within the Fifth Amendment. The pertinent provisions are:
"No liability of any kind shall attach to or rest upon the
United States for any damage from or by floods or flood waters at
any place: Provided, however,
That if, in carrying out the
purposes of this Act, it shall be found that, upon any stretch of
the banks of the Mississippi River, it is impracticable to
construct levees either because such construction is not
economically justified or because such construction would
unreasonably restrict the flood channel, and lands in such stretch
of the river are subjected to overflow and damage which are not now
overflowed or damaged by reason of the construction of levees on
the opposite banks of the river, it shall be the duty of the
Secretary of War and the Chief of Engineers to institute
proceedings on behalf of the United States Government to acquire
either the absolute ownership of the lands so
Page 308 U. S. 270
subjected to overflow and damage or floodage rights over such
". . . The United States shall provide flowage rights for
additional destructive flood waters that will pass by reason of
diversions from the main channel of the Mississippi River. . .
This Court has previously decided that "the construction of
levees on the opposite" bank of the Mississippi River which
resulted in permanently flooding property across the river did not
amount to a "taking" of the flooded area within the Fifth
Amendment. [Footnote 19
need not here determine whether the provisions of the 1928 Act
would themselves grant a statutory right to recover if respondent's
land had been damaged as a result of levees constructed on the
river's opposite bank. For § 4 of the Act contains the further
"That in all cases where the execution of the flood control plan
herein adopted results in benefits to property, such benefits shall
be taken into consideration by way of reducing the amount of
compensation to be paid."
On this record, it is clear that respondent's lands were not
damaged, but actually benefited.
We do not find it necessary to discuss other questions
The judgment of the Circuit Court of Appeals is reversed, and
that of the District Court is affirmed.
28 U.S.C. § 41(20).
C. 569, 45 Stat. 534, 33 U.S.C. § 702a.
Cf. Jacobs v. United States, 290 U. S.
, 290 U. S.
21 F. Supp. 28.
101 F.2d 506.
307 U.S. 621. Respondent primarily claims that governmental
operations under the Flood Control Act have resulted in taking for
public use her lands lying in the proposed Boeuf Floodway. This
Floodway was originally intended to cover a vast area roughly
fifteen miles wide and one hundred and twenty-five miles long.
For the background of this legislation, see Jackson v.
United States, 230 U. S. 1
69 Cong.Rec. Part 8, p. 8191.
This Basin also was found to be a floodway for waters from the
Arkansas and "Flat" (White) Rivers.
Her lands were found to have been flooded in 1912, 1913, 1919,
1921, 1922, 1927.
Cf. Northern Transportation Co. v. Chicago,
99 U. S. 635
99 U. S. 642
Pumpelly v. Green Bay & M.
13 Wall. 166.
Jacobs v. United States, supra; United States v. Cress,
243 U. S. 316
United States v. Lynah, 188 U. S. 445
Pumpelly v. Green Bay & M. Canal Co., supra; cf.
Sanguinetti v. United States, 264 U.
Cf. Bauman v. Ross, 167 U. S. 548
167 U. S.
Cf. Marion & R. Valley Ry. Co. v. United States,
270 U. S. 280
270 U. S.
Cf. South Carolina v. Georgia, 93 U. S.
, 93 U. S. 13
. As to
when legislation does not constitute self-executing appropriation,
see Bauman v. Ross, 167 U. S. 548
167 U. S.
-597; Willink v. United States, 240 U.
Whether recovery at law could be had upon a similar contention
was left open by Hurley v. Kincaid, 285 U. S.
. Cf. Peabody v. United States, 231 U.
, 231 U. S.
69 Cong.Rec. Part 7, pp. 7114, 7115.
Com.Doc. No. 2, House Committee on Flood Control, 71st Cong.,
Jackson v. United States, supra, 230 U. S.