All private property is held subject to the necessities of
government and, the right of eminent domain underlies all such
rights of property.
When the United States government appropriates property which it
does not claim as its own, it does so under an implied contract
that it will pay the value of the property it so appropriates.
When it is alleged in an action that the government of the
United States in the exercise of its powers of eminent domain and
regulation of commerce, through officers and agents duly empowered
thereto by acts of
Page 188 U. S. 446
Congress, places dams, training walls and other obstructions in
the Savannah River in such manner as to hinder its natural flow and
to raise the water so as to overflow the land of plaintiff along
the banks to such an extent as to cause a total destruction of its
value, and the government does not deny the ownership, admits that
the work was done by authority of Congress, and simply denies that
the work has produced the alleged injury and destruction, the
circuit court of the United States has jurisdiction to inquire
whether the acts done by the officers of the United States under
the direction of Congress have resulted in such an overflow and
injury of the land as to render it absolutely valueless, and, if
thereby the property was, in contemplation of law, taken and
appropriated by the government, to render judgment against it for
the value of the property so taken and appropriated.
Where the government of the United States, by the construction
of a dam or other public works, so floods lands belonging to an
individual as to totally destroy its value, there is a taking of
private property within the scope of the Fifth Amendment.
The proceeding must be regarded as an actual appropriation of
the land, including the possession and the fee, and when the amount
awarded as compensation is paid, the title, the fee and whatever
rights may attach thereto pass to the government, which becomes
henceforth the full owner.
Notwithstanding that the work causing the injury was done in
improving the navigability of a navigable river and by the
Constitution Congress is given full control over such improvements,
the injuries cannot be regarded as purely consequential, and the
government cannot appropriate property without being liable to the
obligation created by the Fifth Amendment of paying just
compensation.
On February 4, 1897, defendants in error commenced their action
in the Circuit Court of the United States for the District of South
Carolina to recover of the United States the sum of $10,000 as
compensation for certain real estate (being a part of a plantation
known as Verzenobre) taken and appropriated by the defendant.
The petition alleged in the first paragraph the citizenship and
residence of the petitioners; in the second that they had a claim
against the United States under an implied contract for
compensation for the value of property taken by the United States
for public use; third, that they were the owners as tenants in
common of the plantation, and in the fourth and seventh
paragraphs:
"Fourth. That for several years continuously, and now
continuously, the said government of the United States of
America,
Page 188 U. S. 447
in the exercise of its power of eminent domain under the
Constitution of the United States and by authority of the acts of
Congress, duly empowering its officers and agents thereto, in that
case made and provided, did erect, build, and maintain, and
continuously since have been erecting, building and maintaining,
and are now building, erecting, and maintaining in and across the
said Savannah River, in the bed of the said Savannah River, certain
dams, training walls, and other obstructions, obstructing and
hindering the natural flow of the said Savannah River through, in,
and along the natural bed thereof and raising the said Savannah
River feet at the point of and above the said obstructions and dams
in the bed of the said Savannah River, and causing the said waters
of the Savannah River aforesaid to be kept back and to flow back
and to be raised and elevated above the natural height of the
Savannah River along its natural bed at the points of the said
dams, training walls, and obstructions, and at points above the
said dams, training walls, and obstructions in said river."
"Seventh. And your petitioners further show that the said acts
of the government of the United States as aforesaid have been done
and are being done lawfully by the officers and agents of the
United States under the authority of the United States in the
exercise of its powers of eminent domain and regulation of commerce
under the Constitution of the United States and the laws of
Congress for the public purpose of the improvement of the harbor of
Savannah and deepening the waters of the Savannah River at the port
of Savannah, a port of entry of the United States and seaport of
the United States of America situated within the State of Georgia,
on the Savannah River, and with the purpose of deepening and
enlarging the navigable channel and highway for commerce of the
said Savannah River for the public use, purpose, and benefit of
interstate and foreign and international trade and commerce, and
for other public purposes, uses, and benefits."
The remaining paragraphs set forth the effect of the placing by
the government of the dams, restraining walls, and other
obstructions in the river, together with the value of the property
appropriated by the overflow. The answer of the government
averred:
Page 188 U. S. 448
"First. That this defendant has no knowledge or information
sufficient to form a belief as to the truth of the allegations
contained in the first and third paragraphs of the said petition
and complaint."
"Second. That this defendant denies all of the allegations
contained in the second fourth, fifth, sixth, seventh, and eighth
paragraphs of the said petition and complaint except so much of the
fourth paragraph as alleges that the said United States heretofore
erected certain dams in the Savannah River pursuant to power vested
in it by law, and except so much of the seventh paragraph as
alleges that the said dams heretofore erected by the United States
were lawfully erected by its officers and agents."
For a further defense, the statute of limitations was pleaded.
The case came on for trial before the court without a jury, which
made findings of fact, and from them deduced conclusions of law and
entered a judgment against the defendant for the sum of $10,000.
The findings were to the effect that the plaintiffs were the owners
of the plantation, deriving title by proper mesne conveyances from
"a grant by the lord's proprietors of South Carolina," made in
1736. Other findings pertinent to the questions which must be
considered in deciding this case were as follows:
"IV. A certain parcel of these plantations, measuring about 420
acres, had been reclaimed by drainage, and had been in actual
continued use for seventy years and upwards as a rice plantation,
used solely for this purpose. This rice plantation was dependent
for its irrigation upon the waters of the Savannah River and its
ditches, drains, and canals, through and by which the waters of the
river were flowed in and upon the lands, and were then drained
therefrom, were adapted to the natural level of the said Savannah
River, and dependent for their proper drainage and cultivation upon
the maintenance of the natural flow of the said river in, through,
and over its natural channel along its natural bed to the waters of
the ocean."
"V. This portion of the plantation fronting on the river and
dedicated to the culture of rice, extended almost up to, if not
quite to, low water mark, and a large part of it was between
Page 188 U. S. 449
mean high water and low water mark, protected from the river by
an embankment. Through this embankment trunks or waterways were
constructed, with flood gates therein. The outer opening of the
trunk was about a foot or a little less above the mean low water
mark of the river, in which the tide ebbs and flows. When it is
desired to flow the lands, the flood gates are opened and the water
comes in. When it is desired to draw off this water and to effect
the drainage of the lands, the flood gates are opened at low water
and the water escapes. It is essential that the outlets of the
trunks or waterways should always be above the mean low water
mark."
"
* * * *"
"VII. For several years last past and at the present time, the
government of the United States, under its proper officers,
authorized thereto by the act of Congress, have been engaged in the
improvement of the navigation of the Savannah River, a navigable
water of the United States, this improvement being carried on by
virtue of the provisions of Section 8, Article I, of the
Constitution, giving to the Congress the power to regulate
commerce."
"VIII. In thus improving navigation of this navigable water the
United States has built and maintained, and is now building and
maintaining, in and across the Savannah River, in the bed thereof,
certain dams, training walls, and other obstructions, obstructing
the natural flow of said river in and along its natural bed, and so
raising the level of the said river above said obstructions, and
causing its waters to be kept back and to flow back and to be
elevated above its natural height in its natural bed."
"IX. This rice plantation Verzenobre is above these
obstructions. The direct effect thereof is to raise the level of
the Savannah River at this plantation, and to keep the point of
mean low water above its natural point, so that the outlet of the
trunks and waterways above spoken of in the bank of said
plantation, instead of being above this point of low water mark, is
now below this point. Another direct result was that, by seepage
and percolation the water rose in the plantation until the water
level in the land gradually rose to the height
Page 188 U. S. 450
of the increased water level in the river, and the superinduced
addition of water in the plantation was about eighteen inches
thereby. By reason of this, it gradually became difficult, and has
now become impossible, to let off the water on this plantation or
to drain the same, so that these acres dedicated to the culture of
rice have become boggy, unfit for cultivation, and impossible to be
cultivated in rice."
"X. By the raising of the level of the Savannah River by these
dams and obstructions, the water thereof has been backed up against
the embankment on the river and has been caused to flow back upon
and in this plantation above the obstruction, and has actually
invaded said plantation, directly raising the water in said
plantation about eighteen inches, which it is impossible to remove
from said plantation. This flooding is the permanent condition now,
and the rice plantation is thereby practically destroyed for the
purpose of rice culture or any other known agriculture, and is an
irreclaimable bog, and has no value."
"XI. By reason of this superinduced addition of water actually
invading the said rice plantation, and its destruction thereby for
all purposes of agriculture, plaintiffs have been compelled to
abandon the cultivation of said rice plantation and have been
forced to pursue their calling of planting rice on other
plantations below the dams. The direct result to plaintiffs is an
actual and practical ouster of possession from this rice
plantation, cultivated by themselves and family for many
years."
"XII. Beyond the backing up of the water on and in the
plantation by reason of the dams and obstruction, and the invasion
of these lands by this superinduced addition of water at and in the
plantation as above described, rendered necessary by the execution
of the government's plans, the United States is not in actual
possession of these lands."
"XIII. Up to this time, no other use has been discovered for
these lands than for rice culture, and the direct results above
stated have totally destroyed the market value of the lands. They
now have no value."
"XIV. The value of these rice lands before the obstructions
Page 188 U. S. 451
aforesaid were put into the river was about thirty dollars per
acre; between twenty-five and thirty dollars per acre. The value of
the rice plantation, 420 acres, thus destroyed, is ten thousand
dollars."
Upon these findings of fact, the important conclusions of law
were thus stated:
"V. The crucial question in this case is was there a taking of
this land in the sense of the Constitution?"
"The facts found show that, by reason of the obstruction in the
Savannah River the water has been directly backed up against the
embankment on the river and the banks on and in this plantation,
the superinduced addition of water actually invading it and
destroying its drainage and leaving it useless for all practical
purposes. The government does not in a sense take this land for the
purposes of putting its obstructions on it. But it forces back the
water of the river on the land as a result necessary to its
purpose, without which its purpose could not be accomplished. For
the purpose of the government, that water in the river must be
raised. The banks of this plantation materially assist this
operation, for by their resistance the water is kept in the
channel. The backing up of the water against the banks to create
this resistance raises the water in the plantation and destroys the
drainage of the plantation. This is a taking. 'It would,' says Mr.
Justice Miller,"
"be a very curious and unsatisfactory result if, in construing a
provision of constitutional law, always understood to have been
adopted for protection and security to the rights of the individual
as against the government, and which had received the commendation
of jurists, statesmen, and commentators as placing the just
principles of the common law on that subject beyond the power of
ordinary legislation to change or control them, it shall be held
that, if the government refrains from the absolute conversion of
real property to the uses of the public, it can destroy its value
entirely, can inflict irreparable and permanent injury to any
extent; can, in effect, subject to total destruction without making
any compensation, because in the narrowest sense of that word it
has not been taken for the public use."
"
Pumpelly v. Green
Bay
Page 188 U. S. 452
Co., 13 Wall. 177,
80 U. S.
178. In that case, the backing up of water on land was
held to be a taking."
"VI. The plantation of plaintiffs being actually invaded by
superinduced addition of water directly caused by the government
dams and obstructions backing up the water of the Savannah River,
and raising the water level at and in the rice plantation, and
making it unfit for rice cultivation or for any other known
agriculture, and plaintiffs having been compelled thereby to
abandon the plantation, and this actual and practical ouster of
possession being continued and permanent by reason of the permanent
condition of the flooding of the plantation, and the plantation
being thereby now an irreclaimable bog of no value,makes the action
of the government a taking of lands for public purposes within the
meaning of the Fifth Amendment, for which compensation is due to
the plaintiffs.
Pumpelly v. Green Bay
Co., 13 Wall. 182;
Mugler v. Kansas,
123 U.
S. 668."
"VII. The government has not gone into actual occupancy of this
land, but by reason of these dams and obstructions made necessary
by this public work and fulfilling its purpose the water in the
Savannah River has been raised at the plaintiffs' plantation and
has been backed up on it and remains on it so that the drainage has
been destroyed and ditches filled up and superadded water
permanently kept on the land and forced up into it, making it
wholly unfit for cultivation, and the plaintiffs have thereby been
practically and actually ousted of their possession. This is taking
of the land for public purposes, for which compensation must be
provided.
Pumpelly v. Green Bay
Co., 13 Wall. 181."
The case involving the application of the Constitution of the
United States was brought by writ of error directly to this
Court.
Page 188 U. S. 458
MR. JUSTICE BREWER delivered the opinion of the Court.
There are three principal questions in this case? First, did the
circuit court have jurisdiction?; second, was there a taking of the
land within the meaning of the Fifth Amendment?; and third, if
there was a taking, was the government subject to the obligation of
making compensation therefor?
Did the circuit court have jurisdiction? It may be premised that
this question was not raised in the circuit court, nor was it
presented to this Court on the first argument, but only upon the
reargument. This omission on the part of the learned counsel for
the government is certainly suggestive. Nevertheless, as the
question, now for the first time presented, is one of jurisdiction,
it must be considered and determined. To sustain the challenge of
jurisdiction, it is insisted by the government that there was no
implied contract, but simply tortious acts on the part of its
officers, and
Hill v. United States, 149 U.
S. 593, and
Schillinger v. United States,
155 U. S. 163, are
relied upon. Let us see what those cases were and what they
decided. In the former, the plaintiff sued to recover from the
United States for the use and occupation of land for a lighthouse.
The land upon which the lighthouse was built was submerged land in
Chesapeake
Page 188 U. S. 459
Bay. The government pleaded that it had a paramount right to the
use of the land, and that plea was demurred to. It was held that
the circuit court had no jurisdiction, and in the opinion delivered
by Mr. Justice Gray it was said, after referring to several cases
(pp.
149 U. S.
598-599):
"In
Langford v. United States, it was accordingly
adjudged that, when an officer of the United States took and held
possession of land of a private citizen, under a claim that it
belonged to the government, the United States could not be charged
upon an implied obligation to pay for its use and occupation."
"It has since been held that if the United States appropriates
to a public use land which they admit to be private property, they
may be held, as upon an implied contract, to pay its value to the
owner.
United States v. Great Falls Manufacturing Company,
112 U. S.
645, and
124 U. S. 124 U.S. 581. It has
likewise been held that the United States may be sued in the Court
of Claims for the use of a patent for an invention, the plaintiff's
right in which they have acknowledged.
Hollister v. Benedict
Manufacturing Company, 113 U. S. 59;
United States
v. Palmer, 128 U. S. 262. But in each of
these cases, the title of the plaintiff was admitted, and in none
of them was any doubt thrown upon the correctness of the decision
in
Langford's case.
See Schillinger v. United
States, 24 Ct.Cl. 278."
"The case at bar is governed by
Langford's case. It was
not alleged in this petition, nor admitted in the plea, that the
United States had ever in any way acknowledged any right of
property in the plaintiff as against the United States. The
plaintiff asserted a title in the land in question, with the
exclusive right of building thereon, and claimed damages of the
United States for the use and occupation of the land for a
lighthouse. The United States positively and precisely pleaded that
the land was submerged under the waters of Chesapeake Bay, one of
the navigable waters of the United States, and that the United
States, 'under the law, for the purpose of a lighthouse, has a
paramount right to its use as against the plaintiff or any other
person,' and the plaintiff demurred to this plea."
In the other case, it appeared that the architect of the capitol
contracted with G. W. Cook for the laying of pavement in the
Page 188 U. S. 460
capitol grounds. The contractor in laying the pavement
infringed, as petitioners claimed, upon rights granted to them by
patent. Thereafter this suit was brought not against the party
guilty of the alleged infringement, but against the United States,
which had accepted the pavement in the construction of which, as
petitioners claimed, the contractor had infringed upon their
rights. In the opinion, it was said (p.
155 U. S.
170):
"Here, the claimants never authorized the use of the patent
right by the government; never consented to, but always protested
against it, threatening to interfere by injunction or other
proceedings to restrain such use. There was no act of Congress in
terms directing, or even by implication suggesting, the use of the
patent. No officer of the government directed its use, and the
contract which was executed by Cook did not name or describe it.
There was no recognition by the government or any of its officers
of the fact that in the construction of the pavement there was any
use of the patent, or that any appropriation was being made of
claimant's property. The government proceeded as though it were
acting only in the management of its own property and the exercise
of its own rights, and without any trespass upon the rights of the
claimants. There was no point in the whole transaction, from its
commencement to its close, where the minds of the parties met or
where there was anything in the semblance of an agreement. So not
only does the petition count upon a tort, but also the findings
show a tort. That is the essential fact underlying the transaction
and upon which rests every pretense of a right to recover. There
was no suggestion of a waiver of the tort or a pretense of any
implied contract until after the decision of the Court of Claims
that it had no jurisdiction over an action to recover for the
tort."
How different is the case at bar! The government did not deny
the title of the plaintiffs. It averred in the answer simply that
it had "no knowledge or information sufficient to form a belief,"
but did not couple such averment with any denial, nor did it
pretend that it owned the property or had a paramount proprietary
right to its possession. It did not put in issue the question of
title, but rested upon a denial that the acts its officers
Page 188 U. S. 461
had done by its direction had overflowed the land and wrought
the injury as alleged, or that such overflow and injury created an
implied contract, and also upon the bar of the statute of
limitations. Nowhere in the record did it set up any title to the
property antagonistic to that claimed by the plaintiffs. It simply
denied responsibility for what it had caused to be done, and
pleaded that, if it had ever been liable, the statute of
limitations had worked a bar. No officer of the government, as in
the
Langford case, claimed that the property found by the
court to be the property of the plaintiffs belonged to the
government. While there was no formal admission of record that the
land belonged to the plaintiffs, the case was tried alone upon the
theory that the government could not be held responsible for what
it had done. It did not repudiate the actions of its officers and
agents, but, on the contrary, in terms admitted that they acted by
authority of Congress, and that all that they did was lawfully
done. So that, if the overflow and destruction of this property
was, as we shall presently inquire, a taking and appropriation
within the scope of the Fifth Amendment to the Constitution, the
jurisdictional question now presented is whether such
appropriation, directed by Congress, created an implied contract on
the part of the government to pay for the value of the property so
appropriated. Let us see what this Court has decided. In
United
States v. Great Falls Manufacturing Company, 112 U.
S. 645, Congress having made an appropriation therefor,
a dam was constructed across the Potomac with the view of supplying
the City of Washington with water. In the construction of such dam,
certain lands belonging to the plaintiff were taken, although such
lands were not by the act of Congress specifically ordered to be
taken. The property so taken not having been paid for, plaintiff
brought this action in the Court of Claims to recover the value
thereof, and it was held that the action might be maintained, and
in the opinion it was said (p.
112 U. S.
656):
"It seems clear that these property rights have been held and
used by the agents of the United States, under the sanction of
legislative enactments by Congress; for the appropriation of money
specifically for the construction of the dam from the
Page 188 U. S. 462
Maryland shore to Conn's Island was, all the circumstances
considered, equivalent to an express direction by the legislative
and executive branches of the government to its officers to take
this particular property for the public objects contemplated by the
scheme for supplying the capital of the nation with wholesome
water. The making of the improvements necessarily involves the
taking of the property, and if, for the want of formal proceedings
for its condemnation to public use, the claimant was entitled at
the beginning of the work to have the agents of the government
enjoined from prosecuting it until provision was made for securing
in some way payment of the compensation required by the
Constitution -- upon which question we express no opinion -- there
is no sound reason why the claimant might not waive that right and,
electing to regard the action of the government as a taking under
its sovereign right of eminent domain, demand just compensation.
Kohl v. United States, 91 U. S. 367,
91 U. S.
374. In that view, we are of opinion that the United
States, having by its agents, proceeding under the authority of an
act of Congress, taken the property of the claimant for public use,
are under an obligation, imposed by the Constitution, to make
compensation. The law will imply a promise to make the required
compensation where property to which the government asserts no
title is taken pursuant to an act of Congress as private property
to be applied for public uses. Such an implication being consistent
with the constitutional duty of the government, as well as with
common justice, the claimant's cause of action in one that arises
out of implied contract within the meaning of the statute which
confers jurisdiction upon the Court of Claims of actions founded
'upon any contract, express or implied, with the government of the
United States.'"
In
Great Falls Manufacturing Company v. Attorney
General, 124 U. S. 581, an
action which, like the preceding, grew out of provisions made by
Congress to supply water to the City of Washington and in which the
relief sought was the removal of all structures on the premises or,
if it should appear that the property had been legally condemned,
the framing of an issue, triable by jury, to ascertain the
plaintiff's damages and a judgment for the amount thereof, it was
said, referring to the
Page 188 U. S. 463
contention that there were certain defects in the proceedings
taken by the government (p.
124 U. S.
597):
"Even if the Secretary's survey and map and the publication of
the Attorney General's notice did not, in strict law, justify the
former in taking possession of the land and water rights in
question, it was competent for the company to waive the tort and
proceed against the United States, as upon an implied contract, it
appearing, as it does here, that the government recognizes and
retains the possession taken in its behalf for the public purposes
indicated in the act under which its officers have proceeded."
In
Hollister v. Benedict Manufacturing Company,
113 U. S. 59, an
action by the assignees of a patent against a United States
collector for infringement, the law is thus stated (p.
113 U. S.
67):
"If the right of the patentee was acknowledged, and, without his
consent, an officer of the government, acting under legislative
authority, made use of the invention in the discharge of his
official duties, it would seem to be a clear case of the exercise
of the right of eminent domain, upon which the law would imply a
promise of compensation, an action on which would lie within the
jurisdiction of the Court of Claims, such as was entertained and
sanctioned in the case of
United States v. Great Falls
Manufacturing Company, 112 U. S. 645."
In
United States v. Palmer, 128 U.
S. 262, an action in the Court of Claims by a patentee
against the government to recover upon an implied contract for the
use of the patented invention, it appeared that the petitioner was
the patentee of certain improvements in infantry equipments which
were adopted by the Secretary of War as a part of the equipment of
the infantry soldiers of the United States, and, sustaining the
jurisdiction of the Court of Claims, it was said (p.
128 U. S.
269):
"No tort was committed or claimed to have been committed. The
government used the claimant's improvements with his consent, and
certainly with the expectation on his part of receiving a
reasonable compensation for the license. This is not a claim for an
infringement, but a claim of compensation for an authorized use two
things totally distinct in the law, as
Page 188 U. S. 464
distinct as trespass on lands is from use and occupation under a
lease."
In
United States v. Berdan Fire-Arms Company,
156 U. S. 552, a
judgment of the Court of Claims against the United States on an
implied contract for the use of an improvement in breech-loading
firearms was sustained although there was no act of Congress
expressly directing the use of such improvement. In the opinion, it
was said (p.
156 U. S.
567):
"While the findings are not so specific and emphatic as to the
assent of the government to the terms of any contract, yet we think
they are sufficient. There was certainly no denial of the
patentee's rights to the invention, no assertion on the part of the
government that the patent was wrongfully issued, no claim of a
right to use the invention regardless of the patent, no disregard
of all claims of the patentee, and no use, in spite of protest or
remonstrance. Negatively at least, the findings are clear. The
government used the invention with the consent and express
permission of the owner, and it did not, while so using it,
repudiate the title of such owner."
And then, after quoting from several of the findings, it was
added (p.
156 U. S.
569):
"The import of these findings is this: that the officers of the
government, charged specially with the duty of superintending the
manufacture of muskets, regarded Berdan as the inventor of this
extractor ejector; that the difference between the spiral and flat
spring was an immaterial difference; that therefore they were using
in the Springfield musket Berdan's invention; that they used it
with his permission as well as that of his assignee, the
petitioner, and that they used it with the understanding that the
government would pay for such use as for other private property
which it might take, and this, although they did not believe
themselves to have authority to agree upon the price."
The rule deducible from these cases is that, when the government
appropriates property which it does not claim as its own, it does
so under an implied contract that it will pay the value of the
property it so appropriates. It is earnestly contended in argument
that the government had a right to appropriate this
Page 188 U. S. 465
property. This may be conceded, but there is a vast difference
between a proprietary and a governmental right. When the government
owns property or claims to own it, it deals with it as owner and by
virtue of its ownership, and if an officer of the government takes
possession of property under the claim that it belongs to the
government (when in fact it does not), that may well be considered
a tortious act on his part, for there can be no implication of an
intent on the part of the government to pay for that which it
claims to own. Very different from this proprietary right of the
government in respect to property which it owns is its governmental
right to appropriate the property of individuals. All private
property is held subject to the necessities of government. The
right of eminent domain underlies all such rights of property. The
government may take personal or real property whenever its
necessities or the exigencies of the occasion demand. So the
contention that the government had a paramount right to appropriate
this property may be conceded, but the Constitution in the Fifth
Amendment guarantees that, when this governmental right of
appropriation -- this asserted paramount right -- is exercised, it
shall be attended by compensation.
The government may take real estate for a post office, a
courthouse, a fortification, or a highway, or in time of war it may
take merchant vessels and make them part of its naval force. But
can this be done without an obligation to pay for the value of that
which is so taken and appropriated? Whenever in the exercise of its
governmental rights it takes property the ownership of which it
concedes to be in an individual, it impliedly promises to pay
therefor. Such is the import of the cases cited as well as of many
others.
The action which was taken resulting in the overflow and injury
to these plaintiffs is not to be regarded as the personal act of
the officers, but as the act of the government. That which the
officers did is admitted by the answer to have been done by
authority of the government, and although there may have been no
specific act of Congress directing the appropriation of this
property of the plaintiffs, yet if that which the officers of the
government did, acting under its direction, resulted in an
appropriation,
Page 188 U. S. 466
it is to be treated as the act of the government.
South
Carolina v. Georgia, 93 U. S. 4,
93 U. S. 13;
Wisconsin v. Duluth, 96 U. S. 379;
United States v. Great Falls Manufacturing Company,
112 U. S. 645.
Congress for many successive terms appropriated money for the
improvement of the Savannah River. 21 Stat. 470, 480; 22 Stat.194,
200; 23 Stat. 140; 24 Stat. 321, 331; 25 Stat. 413; 26 Stat. 442;
27 Stat. 101; 28 Stat. 351. These appropriations were in the River
and Harbor bills, and were generally of so much money for improving
the river, but some deserve special mention. Thus, in 21 Stat. 470,
it was provided that "one thousand dollars may be applied to
payment of damages for land taken for widening the channel opposite
Savannah." In 24 Stat. 331, the Secretary of War was directed to
cause a survey to be made of the "Savannah River from cross-tides
above Savannah to the bar, with a view to obtaining twenty-eight
feet of water in the channel." The appropriation in 25 Stat. 413
was for the improvement of the river, "completing the present
project and commencing the extended project contained in the report
of engineer for year ending June 30, 1887." And by the same
statute, 431, among the matters referred to the Secretary of War
for survey and examination was
"whether the damage to the Verzenobre freshet bank in 1887 was
caused by the work at cross-tides, and whether the maintenance of
said bank is essential to the success of the work at cross-tides,
and what will be the cost of so constructing said bank as to
confine the water of said river to its bed."
The report of the engineers for the year 1887, referred to in
the section above quoted, shows that part of the work which was
being done by the government was in the construction of training
walls and wing dams by which the width of the waterway was
reduced.
Further, the same year, 25 Stat. 94, an act was passed, entitled
"An Act to Facilitate the Prosecution of Works Projected for the
Improvement of Rivers and Harbors," which authorized the Secretary
of War to commence proceedings
"for the acquirement by condemnation of any land, right of way,
or material needed to enable him to maintain, operate, or prosecute
works for the improvement of rivers and harbors for which
provision
Page 188 U. S. 467
has been made by law; . . .
Provided, however, that
when the owner of such land, right of way, or material shall fix a
price for the same which, in the opinion of the Secretary of War,
shall be reasonable, he may purchase the same at such price without
further delay."
Thus, beyond the effect of the admission in the answer and
beyond the presumption of knowledge which attends the action of all
legislative bodies, it affirmatively appears, not only that
Congress was making appropriations from year to year for the
improvement of the river, but also that it had express notice of
damage to the banks along this very plantation; that the works
which were being done by the engineers had in view the narrowing of
the width of the waterway; that land would be damaged as the result
of those works, and that it authorized the Secretary of War to take
proceedings in eminent domains to acquire the land, right of way,
and material which might be necessary for maintaining, operating,
or prosecuting works of river improvement, or, if the price could
be agreed upon, to purchase the same.
This brings the case directly within the scope of the decision
in
United States v. Great Falls Manufacturing Company,
supra, where, as here, there was no direction to take the
particular property, but a direction to do that which resulted in a
taking, and it was held that the owner might waive the right to
insist on condemnation proceedings, and sue to recover the
value.
It does not appear that the plaintiffs took any action to stop
the work done by the government, or protested against it. Their
inaction and silence amount to an acquiescence -- an assent to the
appropriation by the government. In this respect, the case is not
dissimilar to that of a landowner who, knowing that a railroad
company has entered upon his land and is engaged in constructing
its road without having complied with the statute in respect to
condemnation, is estopped from thereafter maintaining either
trespass or ejectment, but is limited to a recovery of
compensation.
Roberts v. Northern Pacific Railroad,
158 U. S. 1,
158 U. S. 11;
Northern Pacific Railroad v. Smith, 171 U.
S. 260, and cases cited in the opinion.
The case, therefore amounts to this: the plaintiffs alleged
Page 188 U. S. 468
that they were the owners of certain real estate bordering on
the Savannah River; that the government, in the exercise of its
powers of eminent domain and regulation of commerce, through
officers and agents duly empowered thereto by acts of Congress,
placed dams, training walls, and other obstructions in the river in
such manner as to hinder its natural flow and to raise its waters
so as to overflow the land of plaintiffs, and overflow it to such
an extent as to cause a total destruction of its value. The
government, not denying the ownership of plaintiffs, admitted that
the work which was done by their officers and agents was done by
authority of Congress, but denied that those works had produced the
alleged injury and destruction. We are of opinion that, under these
pleadings and the issues raised thereby, the circuit court had
jurisdiction to inquire whether the acts done by the officers of
the United States under the direction of Congress had resulted in
such an overflow and injury of the plaintiff's land as to render it
absolutely valueless, and if thereby the property was, in
contemplation of law, taken and appropriated by the government, to
render judgment against it for the value of the property so taken
and appropriated.
Was there a taking? There was no proceeding in condemnation
instituted by the government, no attempt in terms to take and
appropriate the title. There was no adjudication that the fee had
passed from the landowner to the government, and if either of these
be an essential element in the taking of lands within the scope of
the Fifth Amendment, there was no taking.
Some question is made as to the meaning of the findings. It
appears from the fifth finding, as amended, that a large portion of
the land flooded was in its natural condition between high water
mark and low water mark, and was subject to overflow as the water
passed from one stage to the other; that this natural overflow was
stopped by an embankment, and in lieu thereof, by means of flood
gates, the land was flooded and drained at the will of the owner.
From this it is contended that the only result of the raising of
the level of the river by the government works was to take away the
possibility of drainage. But findings nine and ten show that, both
by seepage and
Page 188 U. S. 469
percolation through the embankment and an actual flowing upon
the plantation above the obstruction, the water has been raised in
the plantation about eighteen inches; that it is impossible to
remove this overflow of water, and, as a consequence, the property
has become an irreclaimable bog, unfit for the purpose of rice
culture or any other known agriculture, and deprived of all value.
It is clear from these findings that what was a valuable rice
plantation has been permanently flooded, wholly destroyed in value,
and turned into an irreclaimable bog, and this as the necessary
result of the work which the government has undertaken. Does this
amount to a taking? The case of
Pumpelly
v. Green Bay Company, 13 Wall. 166, answers this
question in the affirmative. And, on the argument, it was conceded
by the learned counsel for the government (and properly conceded in
view of the findings) that, so far as respects the mere matter of
overflow and injury, there was no substantial distinction between
the two cases. In that case, the Green Bay Company, as authorized
by statute, constructed a dam across Fox River by means of which
the land of Pumpelly was overflowed and rendered practically
useless to him. There, as here, no proceedings had been taken to
formally condemn the land. Referring to this, it was said (p.
80 U. S.
177):
"The argument of the defendant is that there is no taking of the
land within the meaning of the constitutional provision, and that
the damage is a consequential result of such use of a navigable
stream as the government had a right to for the improvement of its
navigation."
"It would be a very curious and unsatisfactory result if, in
construing a provision of constitutional law always understood to
have been adopted for protection and security to the rights of the
individual as against the government, and which has received the
commendation of jurists, statesmen, and commentators as placing the
just principles of the common law on that subject beyond the power
of ordinary legislation to change or control them, it shall be held
that, if the government refrains from the absolute conversion of
real property to the uses of the public, it can destroy its value
entirely, can inflict irreparable and permanent injury to any
extent; can, in effect, subject it to
Page 188 U. S. 470
total destruction without making any compensation because, in
the narrowest sense of that word, it is not taken for the public
use. Such a construction would pervert the constitutional provision
into a restriction upon the rights of the citizen as those rights
stood at the common law, instead of the government, and make it an
authority for invasion of private right under the pretext of the
public good, which had no warrant in the laws or practices of our
ancestors."
Reference was also made to the case of
Sinnickson v.
Johnson, 17 N.J.L. 129, in respect to which it was said:
"The case is mainly valuable here as showing that overflowing
land by backing the water on it was considered as 'taking' it
within the meaning of the principle."
Again, on page
80 U. S. 179,
it was said:
"But there are numerous authorities to sustain the doctrine that
a serious interruption to the common and necessary use of property
may be, in the language of Mr. Angell, in his work on Watercourses,
equivalent to the taking of it, and that, under the constitutional
provisions, it is not necessary that the land should be absolutely
taken."
And in a footnote, the following authorities were cited: Angell
on Water Courses, sec. 465
a;
Hooker v. New Haven &
Northampton Co., 14 Conn. 146;
Rowe v. Granite Bridge
Corporation, 21 Pick. 344;
Canal Appraisers v.
People, 17 Wend. 604;
Lackland v. North Missouri Railroad
Co., 31 Mo. 180;
Stevens v. Middlesex Canal, 12 Mass.
466.
It is clear from these authorities that, 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 Fifth Amendment. While
the government does not directly proceed to appropriate the title,
yet it takes away the use and value; when that is done, it is of
little consequence in whom the fee may be vested. Of course it
results from this that the proceeding must be regarded as an actual
appropriation of the land, including the possession, the right of
possession, and the fee, and when the amount awarded as
compensation is paid, the title, the fee, with whatever rights may
attach thereto -- in this case, those at least which belong to a
riparian proprietor
Page 188 U. S. 471
-- pass to the government, and it becomes henceforth the full
owner.
Passing to the third question, it is contended that what was
done by the government was done in improving the navigability of a
navigable river, that it is given by the Constitution full control
over such improvements, and that, if in doing any work therefor,
injury results to riparian proprietors or others, it is an injury
which is purely consequential, and for which the government is not
liable. But if any one proposition can be considered as settled by
the decisions of this Court, it is that although, in the discharge
of its duties, the government may appropriate property, it cannot
do so without being liable to the obligation cast by the Fifth
Amendment of paying just compensation.
In
Monongahela Navigation Company v. United States,
148 U. S. 312,
148 U. S.
336,, it was said:
"But, like the other powers granted to Congress by the
Constitution, the power to regulate commerce is subject to all the
limitations imposed by such instrument, and among them is that of
the Fifth Amendment we have heretofore quoted. Congress has supreme
control over the regulation of commerce, but if, in exercising that
supreme control, it deems it necessary to take private property,
then it must proceed subject to the limitations imposed by this
Fifth Amendment, and can take only on payment of just
compensation."
In that case, Congress had passed an act for condemning what was
known as "the upper lock and dam of the Monongahela Navigation
Company," and provided "that, in estimating the sum to be paid by
the United States, the franchise of said corporation to collect
tolls should not be considered or estimated," but we held that this
proviso was beyond the power of Congress, that it could not
appropriate the property of the navigation company without paying
its full value, and that a part of that value consisted in the
franchise to take tolls. So, in the recent case of
Scranton v.
Wheeler, 179 U. S. 141,
179 U. S. 153,
we repeated the proposition in these words:
"Undoubtedly compensation must be made or secured to the owner
when that which is done is to be regarded as a taking
Page 188 U. S. 472
of private property for public use within the meaning of the
Fifth Amendment of the Constitution, and, of course, in its
exercise of the power to regulate commerce, Congress may not
override the provision that just compensation must be made when
private property is taken for public use."
It is true that a majority of the Court held in that case that
the destruction of access to land abutting on a navigable river by
the construction by Congress of a pier on the submerged lands in
front of the upland was not a taking of private property for public
uses, but only an instance of consequential injury to the property
of the riparian owner. But the right of compensation in case of a
taking was conceded. There have been many cases in which a
distinction has been drawn between the taking of property for
public uses and a consequential injury to such property, by reason
of some public work. In the one class, the law implies a contract,
a promise to pay for the property taken which, if the taking was by
the general government, will uphold an action in the Court of
Claims, while in the other class, there is simply a tortious act
doing injury over which the Court of Claims has no jurisdiction.
Thus, in
Transportation Company v. Chicago, 99 U. S.
635, the city, duly authorized by statute, constructed a
tunnel along the line of LaSalle Street and under the Chicago
River.
The company claimed that it was deprived of access to its
premises by and during the construction. This deprivation was not
permanent, but continued only during the time necessary to complete
the tunnel, and it was held that there was no taking of the
property, but only an injury, and that a temporary injury, thereto.
In the course of the opinion, after referring to the
Pumpelly case,
supra, and
Eaton v. Boston,
Concord & Montreal Railroad Company, 51 N.H. 504, we said
(p.
99 U. S.
642):
"In those cases it was held that permanent flooding of private
property may be regarded as a 'taking.' In those cases there was
physical invasion of real estate of the private owner, and a
practical ouster of his possession. But in the present case, there
was no such invasion. No entry was made upon the plaintiffs' lot.
All that was done was to render for a time its use more
inconvenient. "
Page 188 U. S. 473
Chicago v. Taylor, 125 U. S. 161,
while recognizing and reaffirming the rule there laid down, was
decided upon the ground that a new rule was established by the
Illinois Constitution of 1870, which provided that "private
property shall not be taken or damaged for public use without just
compensation."
Montana Company v. St. Louis Mining &c.
Company, 152 U. S. 160,
held that a mere order for inspection of mining property was not a
taking thereof, because all that was done was a temporary and
limited interruption of the exclusive use.
Gibson v. United
States, 166 U. S. 269,
decided that where, by the construction of a dyke by the United
States in the improvement of the Ohio River, the plaintiff, a
riparian owner, was through the greater part of the gardening
season deprived of the use of her landing for the shipment of
products from and supplies to her farm, whereby the value of her
farm was reduced $150 to $200 per acre, there was no taking of the
property, but only a consequential injury.
See also Marchant v.
Pennsylvania Railroad, 153 U. S. 380;
Meyer v. Richmond, 172 U. S. 82. In
this connection,
Mills v. United States, 46 F. 738,
decided in the District Court for the Southern District of Georgia,
is worthy of notice by reason of its similarity in many respects
and its clearly marked distinction in an essential matter. It was
an action for injuries to a rice plantation on the banks of the
Savannah River resulting from works done by the United States in
improving the navigability of that river, apparently the very
improvement made by the government in the present case. The
condition of the claimant's rice plantation prior to the
improvement was substantially that of these plaintiffs' property,
and the lands were drained by opening the gates when the river was
at low water mark. The complaint was that the erection by the
government of what was called the "cross-tides dam," running from
the upper end of Hutchinson's Island to the lower end of Argyle
Island, cut off all the flow of water from the stream connecting
the front and back rivers, raised both the high and low water
levels in the front river, and not only destroyed the facilities
for draining these lands into the front river, but rendered it
necessary to raise the levees around the rice fields, to prevent
flooding the fields at high
Page 188 U. S. 474
water. This, it was alleged, unfitted the lands for rice culture
and made it necessary that new drainage into back river be provided
where the water levels were suitable. Obviously there was no taking
of the plaintiff's lands, but simply an injury which could be
remedied at an expense as alleged of $10,000, and the action was
one to recover the amount of this consequential injury. The court
rightfully held that it could not be sustained. Here there is no
finding, no suggestion, that by any expense the flooding could be
averted. We may, of course, know that there is theoretically no
limit to that which engineering skill may accomplish. We know that
vast tracts have in different parts of the world been reclaimed by
levees and other works, and so we may believe that this flooding
may be prevented, that some day all these submerged lands may be
reclaimed. But, as a practical matter and for the purposes of this
case, we must, under the findings, regard the lands in controversy
as irreclaimable and their value wholly and finally destroyed.
Therefore, following the settled law of this Court, we hold that
there has been a taking of the lands for public uses, and that the
government is under an implied contract to make just compensation
therefor.
The judgment is
Affirmed.
MR. JUSTICE BROWN concurring:
I concur in the opinion of the Court both with respect to its
jurisdiction and the merits of the case, but I am unable to assent
to the ground upon which our jurisdiction is rested. While I think
the overflowing of the lands in controversy constitutes a taking
within the meaning of the Fifth Amendment to the Constitution, I
see no reason for holding that there was an implied contract to pay
for them within the meaning of the Tucker Act. The taking appears
to me an ordinary case of trespass to real estate, containing no
element whatever of contract. In such case, there can be no waiver
of the tort.
Jones v. Hoar, 5 Pick. 285;
Smith v.
Hatch, 46 N.H. 146.
Page 188 U. S. 475
But I think our jurisdiction may be supported, irrespective of
the question of contract or tort, under that clause of the Tucker
Act which vests the Court of Claims with jurisdiction of "all
claims founded upon the Constitution of the United States or any
law of Congress."
As we had occasion to remark in
Dooley v. United
States, 182 U. S. 222,
182 U. S. 224,
the first section of the Tucker Act evidently contemplates four
distinct classes of cases: (1) those founded upon the Constitution
or any law of Congress, with an exception of pension cases; (2)
cases founded upon a regulation of an Executive Department; (3)
cases of contract, express or implied, with the government; (4)
actions for damages, liquidated or unliquidated, in cases
not
sounding in tort. The words "not sounding in tort" are in
terms referable only to the fourth class of cases.
In my view, claims founded upon the Constitution may be
prosecuted in the Court of Claims whether sounding in contract or
in tort, and wherever the United States may take proceedings in
eminent domain for the condemnation of lands for public use, the
owner of such lands may seek relief in the Court of Claims if his
lands be taken without such proceedings, whether such taking be
tortious or by virtue of some contract, express or implied, to that
effect. That the case under consideration is one of that class is
made clear by the Act of April 24, 1888, 25 Stat. 94, which
enacts
"that the Secretary of War may cause proceedings to be
instituted, in the name of the United States, in any court having
jurisdiction of such proceedings, for the acquirement by
condemnation of any land, right of way, or material needed to
enable him to maintain, operate, or prosecute works for the
improvement of rivers and harbors for which provision has been made
by law; such proceedings to be prosecuted in accordance with the
laws relating to suits for the condemnation of property of the
states wherein the proceedings may be instituted."
I fully concur in the opinion of the Court that
"the government may take real estate for a post office, a
courthouse, a fortification, or a highway, or in time of war it may
take merchant vessels and make them part of its naval force,"
but this cannot
Page 188 U. S. 476
be "done without an obligation to pay for the value of that
which is so taken and appropriated." I am also of opinion that,
whenever in the exercise of its governmental rights it takes
property the ownership of which it concedes to be in an individual,
it is bound to pay therefor, but I do not think that there is any
distinction between cases where the government impliedly promises
to pay by taking property with the assent of the owner and those
where it takes property forcibly and against the will of the owner.
It does not seem reasonable to hold that, where the invasion of the
owner's right to property is the greater, his remedy for the
recovery of its value should be less, and that he should be
compelled to resort to the tedious and unsatisfactory method of
appealing to the bounty of Congress for relief.
Suppose, for instance, in time of war and under threat of
invasion, it seizes upon vessels without the consent of the owner
and against his protest. There is certainly the same moral
obligation to pay for them as if they had been appropriated with
his consent, and I see no reason why an action for their value may
not be maintained in the Court of Claims. Yet, as I understand the
opinion of the Court in this case, it holds indirectly, if not
directly, that no such action would lie unless the property were
taken with the consent of the owner and under an implied contract
to pay for it. The consequences of recognizing such distinctions
seem to me so serious that nothing short of clear language in the
statute will justify it.
None such is even hinted at in
United
States v. Russell, 13 Wall. 623, one of the
earliest cases, wherein the owner of three steamers seized under
"imperative military necessity" sought to recover compensation for
their services. These steamers were impressed into the public
service and employed as transports for carrying government freight
for a certain length of time, when they were returned to the owner.
He was held entitled to recover, the Court holding that
"extraordinary and unforeseen occasions arise, however, beyond
all doubt, in cases of extreme necessity, in time of war, or of
immediate and impending public danger, in which private property
may be impressed into the public service, or may be seized and
appropriated to the public
Page 188 U. S. 477
use, or may be even destroyed without the consent of the
owner."
The case followed that of
Mitchell v.
Harmony, 13 How. 115, and was distinguished from
that of
Filor v. United
States, 9 Wall. 45.
While the cases reported prior to 131 U.S. are based upon the
original Court of Claims act, which limited the jurisdiction of
that court to
"claims founded upon any law of Congress, or upon any regulation
of an Executive Department, or upon any contract, express or
implied, with the government of the United States,"
and are therefore not strictly pertinent under the Tucker Act,
that of the
Great Falls Manufacturing Co., 112 U.
S. 645, is almost exactly in point, and is strongly
corroborative of the position here taken. This was a claim for land
taken at the Great Falls of the Potomac in the construction of an
aqueduct for bringing water to Washington. Proceedings were taken
in Maryland for condemnation, which were discontinued, and the
government took possession of the land. Whether such possession was
taken with or without the consent of the owner does not appear,
although there had been negotiations between the parties. The
claimant was held to be entitled to recover upon the ground that
the appropriation of the money for the construction of the
improvements was equivalent to an express direction by Congress to
take this particular property for the objects contemplated by the
scheme, and that there was no sound reason why the claimant might
not waive any right he might have to an injunction and elect to
regard the action as a taking by the government under its sovereign
right of eminent domain, and therefore demand compensation. The
case was not put upon the ground that the owner had consented to
the taking.
In
Langford's Case, 101 U. S. 341, the
action was brought to recover for the use and occupation of certain
lands and buildings to which the claimant asserted title, which
were seized for the use of the government under claim that they
were public property. It was admitted that, if the government takes
property for public use, acknowledging its ownership to be private
or individual, there arises an implied obligation to pay the owner
its value; but that it was a different matter when the
government
Page 188 U. S. 478
claimed the property as its own and recognized no superior
title. This was also the case in
Hill v. United States,
149 U. S. 593,
where the government erected a lighthouse upon submerged land which
it claimed as its own. The case was held to be governed by that of
Langford.
None of the more recent cases under the Tucker Act conflicts
with the position here taken: that wherever the United States may
proceed to condemn property under its sovereign right of eminent
domain, the owner may maintain a petition in the Court of Claims to
recover its value in case no such proceedings are taken. That act,
24 Stat. 505, first introduced among the cognizable claims all such
as were founded upon the Constitution of the United States, and
also introduced, after the words "for damages, liquidated or
unliquidated," the words "in cases not sounding in tort."
Construing this statute, it was held in the
Jones Case,
131 U. S. 1, that it
did not confer jurisdiction in equity to compel the issue and
delivery of a patent for public land, and in
Schillinger's
Case, 155 U. S. 163,
that the owner of a patent which had been infringed by the United
States could not recover damages for such infringement in the Court
of Claims, though it would be otherwise if the property had been
appropriated with the consent of the patentee and in view of
compensation therefor. Although there was in
Schillinger's
Case an appropriation of the right of a patentee to the
monopoly of his invention, the case was nothing more in its essence
than the infringement of a patent, and so the action was really one
for damages sounding in tort. While it is possible an individual
might be able to condemn the patentee's right by proceedings in
eminent domain, that remedy would be at least doubtful when the
government sought merely to appropriate so much of it as was
necessary for its own use. It would be an unprecedented exercise of
the right of eminent domain, and could scarcely be held to be a
claim arising under the Constitution. The case was not put upon the
ground that it was such a case, but that it was merely an action to
recover damages for infringement. Said the Court: "It is plainly
and solely an action for an infringement" and one sounding in tort.
The question whether it was a claim arising under the Constitution
was not
Page 188 U. S. 479
considered, except in the dissenting opinion of MR. JUSTICE
HARLAN, who said:
"The constitutional obligation cannot be evaded by showing that
the original appropriation was without the express direction of the
government, nor by simply interposing a denial of the title of the
claimant to the property, or property rights alleged to have been
appropriated."
If there were any doubt in that case of the power of the
government to condemn the right of the patentee by proceedings in
eminent domain, there is certainly none such in this case, where
the land was taken by the government with no pretense of consent by
the owner.
I think it is going too far to hold that the words of the Tucker
Act, "not sounding in tort" must be referred back to the first
class of cases -- namely, "those founded upon the Constitution" --
and that they should be limited to actions for damages, liquidated
or unliquidated, and hence the consent of the owner cuts no figure
in this case. I freely admit that, if property were seized or taken
by officers of the government without authority of law, or
subsequent ratification, by taking possession or occupying property
for public use, there could be no recovery, since neither the
government nor any other principal is bound by the unauthorized
acts of its agents. But, in endeavoring to raise an implied
contract to pay for an ordinary trespass to real estate, I think
the opinion of the Court misconceives the true source of our
jurisdiction.
MR. JUSTICE SHIRAS and MR. JUSTICE PECKHAM concurred in the
above opinion insofar as it holds that the Court had jurisdiction
on the ground stated therein, as well as upon the ground stated in
the opinion of the Court.
MR. JUSTICE WHITE, with whom concurs MR. CHIEF JUSTICE FULLER
and MR. JUSTICE HARLAN, dissenting:
The Court now holds that it has jurisdiction because, as a
Page 188 U. S. 480
legal conclusion from the findings of fact, it is held that the
property of the appellee has been taken for public use by the
United States, and the judgment below is affirmed on the merits for
the same reason. As, in my opinion, the findings of fact do not
support the conclusion that the property has been taken by the
United States, I dissent both on the subject of jurisdiction and on
the merits.
The findings of fact are in most respects sufficiently
reproduced in the opinion of the Court, and need not here be set
out in full. It results from the findings that the land is situated
on the Savannah River, that it is between high and low water mark,
and naturally subject to be overflowed, but that it is protected in
some measure from overflow by an embankment, and that through this
embankment sluices or waterways were placed, by means of which
water was let in on the land for irrigation in the cultivation of
rice, and was drawn off when the land was required to be drained in
order to carry on the same culture. This was done by gates in the
sluices, which were opened to allow the water to flow through the
waterways to the inner side of the embankment and thus flood the
land when it was requisite to do so, and by opening the gates at
low tide to allow the water to flow off when it was required to
drain the land. As the exact situation of the waterways through the
embankment is important, I reproduce the statement on the subject
contained in the findings:
"Through this embankment trunks or waterways were constructed,
with flood gates therein. The outer opening of the trunk was about
a foot or a little less above the mean low water mark of the river,
in which the tide ebbs and flows. When it is desired to flow the
lands, the flood gates are opened and the water comes in. When it
is desired to draw off this water and to effect the drainage of the
lands, the flood gates are opened at low water and the water
escapes. It is essential that the outlets of the trunks or
waterways should be above the mean low water mark."
It is now decided that there has been a taking of the property
by the United States, because it is thought that the findings
establish that the obstructions placed by the government
Page 188 U. S. 481
in the bed of the river at a point lower down the stream than is
the plantation, for the purpose of improving the navigation of the
river, have so raised the water as to cause it to flow over the
embankment at the plantation and flood the same, thus destroying
its value. On this subject, the Court says:
"Findings nine and ten show that, both by seepage and
percolation through the embankment and
an actual flowing upon
the plantation above the obstructions, the water has been
raised in the plantain above eighteen inches,"
etc. Whilst it is not disputable that the findings show a
percolation through the embankment, I can discover nothing in them
supporting the conclusion that the obstructions placed by the
government in the bed of the river below the point where the
plantation is situated have caused the water in the river to go
over the embankment at the plantation and flood the land. On the
contrary, to me it seems that the findings necessitate the
conclusion that the permanent damage which the property has
suffered arises solely from the fact that the drainage of the
plantation into the river has been rendered impossible. And this
because the work done by the government has resulted in raising the
mean low tide about twelve to fifteen inches, so as to cause the
water in the river at mean low tide to be above the point of
discharge of the waterways, thus rendering drainage through them no
longer possible. There may be a wide legal difference arising from
damage consequent on an interference with the drainage of property
situated, as this is, by work done by the government in the
improvement of navigation, and damage caused by the actual flooding
of such property resulting from such work. To determine whether the
findings show an actual flowing, or a mere injury to drainage,
findings VIII, IX, and X need to be considered. Let us see whether
they give support to the claim of actual flooding by an overflow of
the embankment at the plantation. Finding VIII says:
"VIII. In thus improving navigation of this navigable water, the
United States has built and maintained and is now building and
maintaining in and across the Savannah River, in the bed thereof,
certain dams, training walls, and other obstructions, obstructing
the natural flow of said river in and along its natural
Page 188 U. S. 482
bed, and so raising the level of said river above said
obstructions, and causing its waters to be kept back and to flow
back, and to be elevated above its natural height in its natural
bed."
Certainly there is nothing in this finding supporting the
inference that the government work has caused the river to overflow
the plantation embankment. Finding IX says:
"This rice plantation Verzenobre is above these obstructions.
The direct effect thereof is to raise the level of the Savannah
River at this plantation, and to keep the point of mean low water
above its natural point, so that the outlet of the trunks and
waterways above spoken of in the bank of said plantation, instead
of being above this point of low water mark, is now below this
point."
Here, then, is the statement that the effect resulting from the
government work was simply to raise the mean low water mark as
previously existing, so as to cause it to cover the waterways which
were -- as declared by the previous finding -- a little less than a
foot above the former low water mark. The finding continues:
"Another direct result was that, by seepage and percolation, the
water rose in the plantation until the water level in the land
gradually rose to the height of the increased water level in the
river, and the superinduced addition of water in the plantation was
about eighteen inches thereby. By reason of this, it gradually
became difficult, and has now become impossible, to let off the
water on this plantation or to drain the same, so that these acres,
dedicated to the culture of rice, have become boggy, unfit for
cultivation, and impossible to be cultivated in rice."
This but declares that, because the mean low state of the water
had been raised by the government work so as to cause it to be
about eight inches above the mouth of the waterways and to rest
against the embankment about eighteen inches, that percolation took
place and the drainage was destroyed, the result of the loss of
drainage being to render the plantation a bog, and no longer
suitable for the cultivation of rice. It is submitted nothing in
the findings hitherto referred to even intimates
Page 188 U. S. 483
that the effect of the work of the government caused the water
to flow over the embankment and flood the plantation. On the
contrary, the very opposite is the result of the findings.
Let me next consider the tenth finding. It reads as follows:
"By the raising of the level of the Savannah River by these dams
and obstructions, the water thereof has been backed up against the
embankment on the river and has been caused to flow back upon and
in this plantation above the obstruction, and has actually invaded
said plantation, directly raising the water in said plantation
about eighteen inches, which it is impossible to remove from said
plantation."
Now the flowing described here can only relate to the seepage
and percolation referred to in the previous finding. The words
"above the obstructions" relate not to the embankment on the
plantation, but to the obstructions put in the bed of the river by
the government below the point where the plantation is situated,
and therefore what the finding means is that above this
obstruction, the water is caused to flow back against, not over,
the embankment, as described in the previous finding. And this
finding shows besides that it was the impossibility of removing the
water which percolated or was the result of rainfall -- in other
words, the injury to the drainage -- which was the cause of the
damage.
Thus, eliminating all question of the flooding of the land by
the overflow of the embankment, the question for decision is this:
when a plantation or a portion thereof is situated on the bank of a
navigable river, below high water mark, and because of such
situation is dependent for its profitable operation upon drainage
into the river at mean low tide, does the United States appropriate
the property by the simple fact that, in improving the navigation
of the river, it raises the mean low tide slightly above the height
where it was wont theretofore to be, and by reason of which the
drainage of the land below high water mark is destroyed? It seems
to me to state this question is to answer it in the negative. The
owner of the land situated below high water mark acquired no
easement or servitude in the bed of the river by the construction
of an embankment along
Page 188 U. S. 484
the margin of his land at the river below high water, by which
he could forever exact that the level of the water within the
natural banks of the river could never be changed without his
consent, and thus deprive the United States of its control over the
improvement of navigable rivers conferred by the Constitution. If
damage by the loss of drainage into the river at mean low tide of
land so situated was caused by the lawful exercise by the United
States of its power to improve navigation, it was
damnum absque
injuria, and redress must be sought at the hands of Congress,
and cannot be judicially afforded by a ruling that a damage so
resulting constitutes a taking of the property by the United
States, and creates an implied contract to pay the value of the
property. Such a doctrine is directly -- as I see it -- in conflict
with the decisions of this Court in
Gibson v. United
States, 166 U. S. 269, and
Scranton v. Wheeler, 179 U. S. 141. The
far-reaching consequence of the doctrine now announced cannot be
overestimated.
But even under the hypothesis that the government work caused
the land to be overflowed by raising the water above the
embankment, I do not conceive that there would be a taking, even in
that case, of the property, for a remedy would be easily afforded
for any permanent injury to the land by raising the embankment. The
quantum of damages would thus not be the value of the property, but
the mere cost of increasing the height of the embankment so as to
prevent the water from flowing over it. The fact, then, that a
taking is now held to exist, and therefore the United States is
compelled to pay the value of the entire property, submits the
United States, in the exercise of a power conferred upon it by the
Constitution, to a rule which no individual would be subjected to
in a controversy between private parties. Nor is this answered by
the suggestion that there is a taking because the paying by the
United States of the sum of money necessary to raise the level of
the embankment so as to prevent the overflow would not compensate
the owner, as the property would still be worthless because of the
want of drainage. To so suggest is but to admit that the damage
complained of results from the inability to drain the land, which,
for the reasons already pointed out, does not, in my opinion,
constitute a taking.
Page 188 U. S. 485
Indeed, the reasoning hitherto indicated as to the assumed
overflow of the embankment is equally apposite to the damage by
loss of drainage. For injury to the drainage, the remedy would be
readily afforded by, if possible, draining the plantation elsewhere
than into the river, or by resort to the pumping appliances
necessary to lift out the water accumulating from rainfall or
percolation. The cost of doing these things would then be the
measure of damages. That a resort to these simple expedients is
unavailing as to this particular property because of its being
situated below high water mark does not, I submit, show that the
government has taken the property for public use, but simply
establishes that the property is so situated that it is subjected
to a loss necessarily arising from the fact that it is below high
water mark, and therefore absolutely dependent for its drainage on
the right of the owner to exact that the mean low tide of the river
should be forever unchanged. As the right to so exact does not
exist, the loss of drainage does not constitute an appropriation of
the property by the United States, and is but the result of the
natural situation of the land. If equities exist, Congress is alone
capable of providing for them.
I am authorized to say that THE CHIEF JUSTICE and MR. JUSTICE
HARLAN concur in this dissent.