Bedford v. United States, 192 U.S. 217 (1904)
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Scribd Government DocsBedford v. United States, 192 U.S. 217 (1904)
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Scribd Government Docs192 U.S.
217
24 S.Ct. 238
48 L.Ed. 414
THOMAS C. BEDFORD and Emma Bedford, Appts.,
v.
UNITED STATES
No. 23.
Argued December 9, 1903.
Decided January 18, 1904
The appellants were owners of land on the Mississippi river in the state of
Louisiana, amounting to 5,000 or 6,000 acres, upon which were cabins,
other buildings, and fences. They brought suit in the court of claims for
damages to their lands, alleged to have resulted from certain works of the
United States. The damages consisted, as found by the court, of the
erosion and overflow of about 2,300 acres of the land. The works of the
government, and their operation, are described by the court in the
following findings:
'Prior to the spring of 1876 the Mississippi river flowed around a narrow
neck of land known as De Soto point; and, in going around this point,
flowed by the city of Vicksburg in a southwesterly direction. In the spring
of 1876 De Soto point became so narrow by erosion that the river broke
through, leaving De Soto point as an island, thereby shortening the
distance of the stream about 6 miles, and taking its course immediately to
the south with great velocity against the Mississippi bank at what is
known as the cut-off of 1876. The result was that the city of Vicksburg
was left some miles away from the main channel of the river, and the old
channel in front of the city was continually filled up, making the approach
from the river to the docks along the river difficult, if not impossible.
'Between 1878 and 1884 the United States constructed about 10,700 feet
of revetment along the banks of the Mississippi river at Delta point,
Louisiana, for the purpose of preventing the further erosion of that point.
The revetment consisted of willow mattresses weighted down by stones,
and were placed on sand banks below high-water mark. The revetment
was neither upon nor in contact with the claimant's land. The object of the
construction was to prevent the navigable channel of the river from
receding farther from the city of Vicksburg, which had been left some
distance from the main channel of the river by the cut-off of 1876, as
aforesaid. The revetment was repaired slightly in 1866 and 1889, and
more extensively in 1894, all of which work was paid for from time to
time out of the appropriations made therefor by Congress, as found in 20
Stat. at L. 363, 366, chap. 181; 21 Stat. at L. 181, chap. 211; 21 Stat. at L.
470, chap. 136; 26 Stat. at L. 450, chap. 907; 26 Stat. at L. 1116.
'In making the improvement aforesaid, the defendants did not recognize
any right of property in the claimants in and to the right alleged to be
affected, and did not assume to take private property in and by the
construction of the revetment, but proceeded in the exercise of a claimed
right to improve the navigation of the river.
'After the cut-off at De Soto point in 1876, and the construction of the
revetment, as aforesaid, the channel and current of the Mississippi river
were gradually directed toward the lands of the claimants, situated about 6
miles below said cut-off, and did about the year 1882, reach said lands
and thereafter erode and overflow about 2,300 acres of their lands, which
overflow has ever since continued. About 400 acres of their lands so
eroded and overflowed was prior to the death of said George M. Bedford,
through whom the claimants claim title, and about 900 acres of which
were overflowed thereafter and prior to said judicial sale, and the residue
after said sale. Of the lands so overflowed about 1,300 acres thereof were
cleared and in cultivation, of which about 700 acres were so cleared prior
to May 2, 1895.
'The damage to the claimants, and each of them, by reason of the washing
away of their lands during their respective ownership, as aforesaid, is an
excess of $3,000.
'The cause of the deflection of the river upon the claimants' land was the
cut-off, which shortened the distance of the stream 6 miles, and thereby
increased the velocity of the current, and forced the current to turn, when
it struck the Mississippi bank, at an abrupt angle. The revetment did not
change the course of the river as it then existed, but operated to keep the
course of the river at that point as it then was. If the revetment had not
been built, the cut-off would have continued to widen toward the
Louisiana bank, and the channel would have continued to move in the
same direction. With the widening of the cut-off and the shifting of the
channel the angle of the turn below the cut-off would have gradually
become less abrupt, and the deflection of the stream upon the claimants'
land would have grown less, and the consequent injury to the claimants'
land would have been decreased. To what extent the injury would have
been decreased is conjectural. The injury done to the claimants' land was
an effect of natural causes; the injury caused by the government was by
interrupting the further progress of natural causes, i. e., the further change
in the course of the river, and is also conjectural.'
The court deduced from the facts that the claimants were not entitled to
recover, and dismissed their petitions. 36 Ct. Cl. 474.
Messrs. John C. Chaney, E. T. Brook shire, and Dabney & McCabe for
appellants.
[Argument of Counsel from pages 220-222 intentionally omitted]
Assistant Attorney General Pradt and Mr. William H. Button for appellee.
Statement by Mr. Justice McKenna:
Mr. Justice McKenna delivered the opinion of the court:
There is no dispute about the power of the government to construct the works
which, it is claimed, caused the damage to appellants' land. It was alleged by
appellants that they were constructed by the 'United States in the execution of
its rights and powers in and over said river, and in pursuance of its lawful
control over the navigation of said river, and for the betterment and
improvement thereof.' And also that the works were not constructed upon
appellants' land, and their immediate object was to prevent further erosion at
De Soto point. In other words, the object of the works was to preserve the
conditions made by natural causes. By constructing works to secure that object,
appellants contend there was given to them a right to compensation. The
contention asserts a right in a riparian proprietor to the unrestrained operation
of natural causes, and that works of the government which resist or disturb
those causes, if injury result to riparian owners, have the effect of taking private
property for public uses within the meaning of the 5th Amendment of the
Constitution of the United States. The consequences of the contention
immediately challenge its soundness. What is its limit? Is only the government
so restrained? Why not as well riparian proprietors, arel they also forbidden to
resist natural causes, whatever devastation by floods or erosion threaten their
property? Why, for instance, would not, under the principle asserted, the
appellants have had a cause of action against the owner of the land at the cutoff if he had constructed the revetment? And if the government is responsible
to one landowner below the works, why not to all landowners? The principle
contended for seems necessarily wrong. Asserting the rights of riparian
property, it might make that property valueless. Conceding the power of the
government over navigable rivers, it would make that power impossible of
exercise, or would prevent its exercise by the dread of an immeasurable
responsibility.
2
There is another principle by which the rights of riparian property and the
power of the government over navigable rivers are better accommodated. It is
illustrated in many cases.
The Constitution provides that private property shall not be taken without just
compensation, but a distinction has been made between damage and taking, and
that distinction must be observed in applying the constitutional provision. An
excellent illustration is found in Gibson v. United States, 166 U. S. 269, 41 L.
ed. 996, 17 Sup. Ct. Rep. 578. The distinction is there instructively explained,
and other cases need not be cited. It is, however, necessary to refer to United
State v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349, as it is
especially relied upon by appellants. The facts are stated in the following
excerpt from the opinion:
'It appears from the 5th 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 IX. and X. show that, both by seepage and percolation
through the embankment and an actual flowing upon the plantation above the
obstruction the water has been raised in the plantation about 18 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.'
The question was asked: 'Does this amount to a taking?' To which it was
replied: 'The case of Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20
L. ed. 557, answers this question in the affirmative.' And further: '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.' In both cases, therefore, it was said that there was an actual
invasion and appropriation of land as distinguished from consequential damage.
In the case at bar the damage was strictly consequential. It was the result of the
action of the river through a course of years. The case at bar, therefore, is
distinguishable from the Lynah Case in the cause and manner of the injury. In
the Lynah Case the works were constructed in the bed of the river, obstructed
the natural flow of its water, and were held to have caused, as a direct
consequence, the overflow of Lynah's plantation. In the case at bar the works
were constructed along the banks of the river, and their effect was to resist
erosion of the banks by the waters of the river. There was no other interference
with natural conditions. Therefore, the damage to appellants' land, if it can be
assigned to the works at all, was but an incidental consequence of them.
6
Judgment affirmed.
