2. When the Government chooses not to condemn land, but to bring
about a taking by a continuing process of physical events, the
owner is not required to resort either to piecemeal or to premature
litigation to ascertain the just compensation for what really is
"taken." P. 331 U. S.
3. When the Government takes part of a tract of land by
flooding, it must pay for the damage caused by resulting erosion to
the remainder of the tract. Pp. 331 U. S.
4. If the resulting erosion is in fact preventable by prudent
measures, the cost of that prevention is a proper basis for
determining the damage. P.
331 U. S. 751
5. When the Government takes land by flooding, it must pay the
full value thereof even though the owner subsequently, with the
consent of the War Department, reclaims most of it by filling. P.
331 U. S.
6. Nothing in the record of this case justifies this Court in
setting aside concurrent findings by the two courts below that the
landowner was entitled to compensation for an easement for the
intermittent flooding of his land above the new permanent water
level created by the Government's dam. P. 331 U. S.
152 F.2d 865 affirmed.
In suits under the Tucker Act, Judicial Code § 24(20), 28 U.S.C.
§ 41(20), respondents recovered judgments against the Government
for the value of easements taken
Page 331 U. S. 746
by it to flood permanently part of their land, for damages by
erosion to parts of their land, and for an easement for
intermittent flooding of parts of their land. The Circuit Court of
Appeals affirmed. 152 F.2d 865. This Court granted certiorari. 328
U.S. 828. Affirmed,
p. 331 U. S.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
These are two suits brought under the Tucker Act, Judicial Code,
§ 24(20), 28 U.S.C. § 41(20), to recover the value of property
claimed to have been taken by the Government. The suits were
consolidated for purposes of the trial, and, though they present
minor differentiating factors, they may here, as below, be disposed
of by a single opinion.
In order to improve the navigability of the Kanawha River, West
Virginia, Congress authorized construction of the Winfield Dam,
South Charleston. Act of August 30, 1935, 49 Stat. 1028, 1035, in
connection with H.Doc.No.31, 73d Cong., 1st Sess., pp. 2-4. The
water above the dam was to be impounded to create a deeper channel
and to raise the river pool level in that area. Notice of the
proposed pool elevation was given to abutting landowners on July 1,
1936, and the dam was completed and officially accepted by the
United States on August 20, 1937. The river was to be raised by
successive stages from 554.65 feet to 566 feet above sea level.
That level was not reached until September 22, 1938. As a
Page 331 U. S. 747
of the raising of the river the land belonging to the
respondents was permanently flooded. In addition, erosion
attributable to the improvement damaged the land which formed the
new bank of the pool.
Respondents recovered judgment for the value of an easement
taken by the United States to flood permanently land belonging to
them. Damages were also awarded for the erosion, based on the cost
of protective measures which the landowners might have taken to
prevent the loss. In addition, the court found that the United
States had also acquired an easement for intermittent flooding of
part of the land belonging to the defendants, and allowed judgment
for the value of such an easement. The Circuit Court of Appeals
affirmed the District Court's judgment. 152 F.2d 865. We granted
certiorari, 328 U.S. 828, because important questions were raised
relevant to the determination of just compensation for the taking
of private property by the Government.
The principal attack by the United States
against the judgments is that both actions were outlawed. The
applicable statute of limitations is six years. The complaints were
filed on April 1, 1943. The Government argues that the statute
began to run on October 21, 1936, when the dam began to impound
water. In any event, it maintains that the six years began to run
not later than on May 30, 1937, when the dam was fully capable of
operation, the water was raised above its former level, and the
property of the respondents was partially submerged for the first
time. While, on the latter view, the time for taking had not run
under the statute, Dickinson's claim would be barred because he
acquired the land after that date.
The Government could, of course, have taken appropriate
proceedings to condemn, as early as it chose, both land and flowage
easements. By such proceedings, it could have fixed the time when
the property was "taken."
Page 331 U. S. 748
The Government chose not to do so. It left the taking to
physical events, thereby putting on the owner the onus of
determining the decisive moment in the process of acquisition by
the United States when the fact of taking could no longer be in
controversy. These suits against the Government are authorized by
the Tucker Act either as claims "founded upon the Constitution of
the United States" or as arising upon implied contracts with the
the discussion of jurisdiction both in
the opinion of the Court and in the concurring opinion in
United States v. Lynah, 188 U. S. 445
in Temple v. United States, 248 U.
.) But whether the theory of these suits be that
there was a taking under the Fifth Amendment, and that therefore
the Tucker Act may be invoked because it is a claim founded upon
the Constitution, or that there was an implied promise by the
Government to pay for it, is immaterial. In either event, the claim
traces back to the prohibition of the Fifth Amendment, "nor shall
private property be taken for public use, without just
compensation." The Constitution is "intended to preserve practical
and substantial rights, not to maintain theories." Davis v.
Mills, 194 U. S. 451
194 U. S. 457
One of the most theory-ridden of legal concepts is a "cause of
action." This Court has recognized its "shifting meanings" and the
danger of determining rights based upon definitions of "a cause of
action" unrelated to the function which the concept serves in a
particular situation. United States v. Memphis Cotton Oil
Co., 288 U. S. 62
288 U. S. 67
Property is taken in the constitutional sense when inroads are
made upon an owner's use of it to an extent that, as between
private parties, a servitude has been acquired either by agreement
or in course of time. The Fifth Amendment expresses a principle of
fairness, and not a technical rule of procedure enshrining old or
new niceties regarding "causes of action" -- when they are born,
whether they proliferate, and when they die.
Page 331 U. S. 749
We are not now called upon to decide whether, in a situation
like this, a landowner might be allowed to bring suit as soon as
inundation threatens. Assuming that such an action would be
sustained, it is not a good enough reason why he must sue then or
have, from that moment, the statute of limitations run against him
. If suit must be brought, lest he jeopardize his rights, as soon
as his land is invaded, other contingencies would be running
against him -- for instance, the uncertainty of the damage and the
risk of res judicata
against recovering later for damage
as yet uncertain. The source of the entire claim -- the overflow
due to rises in the level of the river -- is not a single event; it
is continuous. And as there is nothing in reason, so there is
nothing in legal doctrine to preclude the law from meeting such a
process by postponing suit until the situation becomes stabilized.
An owner of land flooded by the Government would not unnaturally
postpone bringing a suit against the Government for the flooding
until the consequences of inundation have so manifested themselves
that a final account may be struck.
When dealing with a problem which arises under such diverse
circumstances, procedural rigidities should be avoided. All that we
are here holding is that, when the Government chooses not to
condemn land but to bring about a taking by a continuing process of
physical events, the owner is not required to resort either to
piecemeal or to premature litigation to ascertain the just
compensation for what is really "taken." Accordingly, we find that
the taking which was the basis of these suits was not complete six
years prior to April 1, 1943, nor at a time preceding Dickinson's
ownership. In this conclusion, we are fortified by the fact that
the two lower courts reached the same conclusion on what is, after
all, a practical matter, and not a technical rule of law.
Page 331 U. S. 750
Nothing heretofore ruled by the Court runs counter to what we
have said. The Government finds comfort in Portsmouth Co. v.
United States, 260 U. S. 327
But, in that case, the problem was whether, by putting a gun
battery into permanent position with a view to converting an area,
for all practical purposes, into an artillery range, the Government
inevitably took an easement in the land over which the guns were to
be fired. The issue was not when a suit must be brought on a claim
in respect to land taken by the United States, which is the issue
before us, but whether there had been a taking at all.
The Government challenges the compensation
awarded for damage to the land due to erosion. It regards this
damage as consequential, to be borne without any right to
compensation. Peabody v. United States, 231 U.
, 231 U. S. 539
Of course, payment need only be made for what is taken, but for all
that the Government takes, it must pay. When it takes property by
flooding, it takes the land which it permanently floods as well as
that which inevitably washes away as a result of that flooding. The
mere fact that all the United States needs and physically
appropriates is the land up to the new level of the river does not
determine what in nature it has taken. If the Government cannot
take the acreage it wants without also washing away more, that more
becomes part of the taking. This falls under a principle, that in
other aspects, has frequently been recognized by this Court. It was
thus put in Bauman v. Ross, 167 U.
, 167 U. S.
"when part only of a parcel of land is taken for a highway, the
value of that part is not the sole measure of the compensation or
damages to be paid to the owner, but the incidental injury or
benefit to the part not taken is also to be considered. When the
part not taken is left in such shape or condition as to be, in
itself, of less value than before, the owner is entitled to
additional damages on that account. "
Page 331 U. S. 751
So also United States v. Welch, 217 U.
; United States v. Grizzard, 219 U.
. Compare Sharp v. United States,
191 U. S. 341
191 U. S. 355
Campbell v. United States, 266 U.
. Congress has recognized that damage to the owner
is assessed not only for the value of the part taken, but also "for
any injury to the part not taken." See
§ 6 of the Act of
July 18, 1918, 40 Stat. 911, 33 U.S.C. § 595. If the resulting
erosion which, as a practical matter, constituted part of the
taking was in fact preventable by prudent measures, the cost of
that prevention is a proper basis for determining the damage, as
the courts below held.
At considerable expense, and with the consent of
the War Department, Dickinson reclaimed most of his land which the
Government originally took by flooding. The Government claims that
this dissentitled him to be paid for the original taking. The
courts below properly rejected this defense. When the property was
flooded, the United States acquired the land and it became part of
the river. By his reclamation, Dickinson appropriated part of what
belonged to the United States. Whether the War Department could
legally authorize Dickinson's reclamation or whether it was in fact
a trespass, however innocent, is not before us. But no use to which
Dickinson could subsequently put the property by his reclamation
efforts changed the fact that the land was taken when it was taken,
and an obligation to pay for it then arose.
Judgment was also allowed against the United
States for taking an easement for intermittent flooding of land
above the new permanent level, and a value for such easements was
assessed. We find nothing in this record to justify our setting
aside these concurrent findings by two courts. United States v.
O'Donnell, 303 U. S. 501
303 U. S. 508
Allen v. Trust Co., 326 U. S. 630
326 U. S.
* Together with No. 78, United States v. Withrow,
on certiorari to the same Court.