Archer v. United States

Court of Claims

Archer v. United States

47 Ct. Cl. 248, 1912 U.S. Ct. Cl. LEXIS 118, 1911 WL 1351

CourtUnited States Court of Claims

DecidedFebruary 12, 1912

DocketNo. 30471

StatusPublished

Cited by2 cases

This text of 47 Ct. Cl. 248 (Archer v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Archer v. United States, 47 Ct. Cl. 248, 1912 U.S. Ct. Cl. LEXIS 118, 1911 WL 1351 (cc 1912).

Pincite

Opinion

Barnet, J.,

delivered the opinion of the court:

This case now comes before this court upon motions for a new trial by both parties. Upon the hearing of these motions a new trial was allowed, and the whole case was heard and considered on its merits. The former findings and opinion have been withdrawn and new findings made, and this revised opinion is submitted.

This is a suit to recover damages for the “ taking ” of the lands of the claimants by the Government in the construction of the improvements on the Mississippi River. The claimants are the owners of a plantation containing about 6,000 acres in the State of Arkansas and situated within a bend on the Mississippi River and comprising nearly all of the land within said bend. Before the Government began its improvements upon this river the local authorities at different points along its course below Cairo, Ill., had built levees, the purpose of which was to prevent the river at its high stages from overflowing the lands in their rear. It does not appear that these locally constructed levees materially raised the flood of the river at any point, but that the surplus waters found their way through numerous openings into basins of large area, and thence into the Gulf. During periods of high water the lands of the claimants had always been subject to occasional overflow, but not to such an extent as to materially impair their value. The levees constructed by local authorities, and afterwards adopted and added to by the Government, as hereinafter stated, were located at places considerably back from the river, so as to leave between them and the river, or, as might be said, between the levees on both sides of the river, lands which were not affected by them unless the flood tide of the river was permanently raised. The lands in question in this case belonged to that class.

Before the Government began its improvements the local authorities had built a levee, a fragment of which is shown upon the map following, and which it will be seen was situated somewhat back from the claimants’ plantation and from the narrow neck of land joining their plantation to the mainland.

[260]*260In 1883 the Government began the work of improving the navigation of the Mississippi River and has continued it ever since. The plan adopted seems to have been to adopt the local levees as far as practicable from Cairo down, to build new levees in intervening spaces, and thus unite them into one complete system for raising the waters of the river by confining it within a narrower channel and preventing its partial escape into the basins before mentioned. This object has been and is being further accomplished, and it appears that its waters have thus been raised approximately 6 feet in times of high water. This result has been to greatly improve and raise the value of much territory outward from this system of levees, but to cause more frequent overflow of the lands left between them and the river. It appears, however, that, notwithstanding this apparent result of the river improvements, the plantation of the claimants was sufficiently above the flood tide of the river to remain valuable agricultural lands and to be subject only to occasional overflow.

It appears that in 1903-4, in order to prevent threatening danger to the levee near the neck of land connecting the plantation of the claimant and the mainland, as well as to preserve the integrity of the neck of land itself and prevent the river from cutting through it, the Government constructed a “dike,” hereinafter called the Leland Dike, running diagonally out from the main line of the levee and extending 662 feet upon the Chicot plantation. In the period of high water of 1904 this dike was partially destroyed and claimants’ plantation considerably injured, whereupon in 1907 the Government extended said dike farther to the northeastward, and so far that it went 2,700 feet still farther into and upon the claimants’ plantation. The effect of said dike at times of high water is to deflect the flood water’s of the river to the eastward over and across a large portion of claimants’ plantation in such volume and with such force as to scour out and destroy much of its top soil, wash away the tenant houses which were situated thereon, and leave a deposit of sand and gravel on its surface, which has already totally destroyed its value for agricultural purposes (and it has no other); and it is unneces[261]*261sary to state that this deposit will increase from year to year.

This description of the locus in quo will be better understood by an examination of the map herein. The land to the northeast of the line marked “Leland line” is the-farm of the claimant, the line colored yellow is the levee, and the pink line A-B is the dike mentioned. The land submerged with sand and gravel is situated within the fretted dark line northeastward of the dike.

From this statement it will be seen that there is no question but that this land so destroyed has been “ taken ” within the meaning of the fifth amendment to the Constitution, and the only question before us is whether the Government is liable for this taking.

It is contended by the Government that it is not liable for this taking of the claimants’ lands for the reason that the levees in question were pai’tly constructed by the local authorities, so that the taking was not alone by the United States, but jointly with others. It is argued that such a joint taking is not a taking by the United States within the meaning of the amendment referred to. While the findings show that Point Chicot plantation was more frequently and deeper overflowed in consequence of the extension of the levee system by the United States, no part of it was destroyed nor materially damaged until the dike was extended and erected. Hence it can not be said that claimants’ land was taken in consequence of the levee system, but directly in consequence of the erection of the dike, and that was the work of the United States alone. In this connection it should also be remarked that the levee system as constructed and kept up by the local authorities had not materially damaged these lands, and it was not until this system had reached “the state of completion which now exists” and said dike had been erected that they •were inundated with sand and gravel. (Findings II and VI.) Hence, both by the construction of the dike and the completion and joining as a whole of this levee system, the United States alone has taken the claimants’ lands. This joining .of the locally constructed levees and erection of the dike was in furtherance of the Government project alone — the [262]*262confinement of the river within its banks and thereby to improve navigation:

At the time of the erection of the Leland Dike the injury to the plaintiffs’ land, which had theretofore been caused by the joining of the levee system, was consequential only and had not amounted to a taking, and hence is immaterial to be computed in this case, the Government’s liability beginning at the time of its absolute destruction. It is true that the flood heights of the Mississippi River had been raised by the joining together as a whole of the levee system, and that this fact made the erection of the Leland Dike more destructive to the plaintiffs’ land than it otherwise would have been, but the findings show, and it is not denied, that the erection of the dike was the proximate cause of the flooding of Chicot plantation with sand and gravel.

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