HUTCHESON, Chief Judge.
Suing under Sections 1346 and 1402, 28 U.S.C., for the claimed wrongful destruction by the United States, its agents and servants of timber on two tracts of land, appellee, plaintiff below, brought two separate suits against the United States to recover the damages resulting therefrom. Consolidated by stipulation and order and tried as one suit, there was a judgment for plaintiffs against the United States for $10,801. with interest at four percent from its entry. From that judgment the United States prose* [10]*10cutes an appeal seeking a reversal and rendition, while plaintiff-appellee appeals from so much of it as allows interest not from the injury but from the judgment and fixes it at four instead of five percent.
On its appeal, the United States, specifying many errors, presents four questions1 for our decision.
Since an affirmative answer to the first two questions will require a reversal of the judgment and will render unnecessary an answer to the last two, and since, for the reasons hereafter stated, we are of the clear opinion that an affirmative answer is required, we will not, in reaching the conclusion that the district judge was in error in his view of the case and the actions he took in it, undertake to decide or discuss the last two questions.
Mindful, as we are, of the thorough consideration the district judge gave to the case, as evidenced by his several opinions in it,2 and of his unusual opportunities, as an outstanding and greatly influential member of the Louisiana Constitutional Convention of 1921, and of the Supreme Court of Louisiana, to know and understand the constitution and laws of his native state, we yet find ourselves unable to agree with his conclusions as to the legal effect of the undisputed facts 3 [11]*11and constrained to hold the law of the case to be contrary to his opinion of it. On the basis of these facts, the United States defended the suit upon several propositions of law, with which we find ourselves in substantial accord.
The first and most important of these is thus stated and argued by it. The United States is not liable because it received the right of way from the levee board which correctly appropriated it without compensation under a riparian servitude, because:
The property is subject to a riparian servitude for levee purposes, and, under the civil law of Louisiana from ancient times, the owner of property bordering upon a navigable stream has been required to give without compensation so much of it as might be needed for the construction of levees and highways.4
While the right to the completely free use of the servitude was changed to some extent by Section 6 of Article 16 of the Louisiana Constitution of 1921, which provides “Lands and improvements thereon hereafter actually used or destroyed for levees or levee drainage purposes * * * shall be paid for at a price not to exceed the assessed value of the preceding year; provided, that this shall not apply to batture * * As was pointed out in Mayer v. Board of Commissioners, 177 La. 1119, 150 So. 295, whatever the section may give to owners of land is in the nature of a gratuity, and contrary to the conclusion of the district judge, the servitude was correctly exercised by the levee board for itself and for the United States.
The district court mistakenly assumed that the State of Louisiana or its agencies must accord notice and a hearing to exercise the right which it has to appropriate and use a property interest which it owns in the use of the lands for levees, and, on that mistaken assumption, incorrectly held that the property was not effectively appropriated. This was a mistaken view, because the property here was not property taken from another by expropriation but was a public use of a public right already owned and the procedure required for an expropriation of private property was therefore not necessary to the exercise of the servitude already existing.5 In Danziger v. United States, D.C., 93 P.Supp. 70, 72, the court said, “There is no formal procedure which levee districts must follow in appropriating property”, while in Dickson v. Board of Commissioners, 210 La. 121, 26 So.2d 474, it was held that the state has the undoubted right and authority to appropriate such land to a use to which it is subject under its very title. No notice, therefore, was necessary in an appropriation of a right of way for a levee. Board of Commissioners of Red River, Atchafalaya and Bayou Boeuf Levee Dist. v. Trouille, 212 La. 152, 31 So.2d 700. Moreover notice was given to all persons shown by the tax assessor’s rolls to be the owners, and under the settled jurisprudence of Louisiana, no compensation is owed for exercise of this servitude, (1) if the land in question is batture, [12]*12for Art. 16, § 6 forbids payment for bat-ture used or destroyed for levees, and (2) if it is not batture, the same article restricts compensation to properties which had been assessed.
The district court acknowledged that there existed a question of whether this was batture but did not decide it. However, this is the standard definition of batture, “The batture is that part of the river bed which is uncovered at the time of low water, but is covered annually at the time of ordinary high water; when it ceases to be covered at the time of ordinary high water, it ceases to be batture and becomes bank of the river.” Boyce Cottonseed Oil Mfg. Co. v. Board of Commissioners, 160 La. 727, 107 So. 506, 508; Ward v. Board of Levee Com’rs, 152 La. 158, 92 So. 769; 21 Tulane Law Review, 660-661; Art. 457 of the Louisiana Civil Code provides that “on the borders of the Mississippi and other navigable streams, where there are levees, established according to law, the levees shall form the banks”, and the undisputed facts show the land on which the timber stood to be batture. The property claimed by the appellee to have been damaged and destroyed was growing on land between the main line levee being enlarged and the river itself, and the evidence is uncontradicted that the entire property was overflowed annually or nearly so.
If, however, the land was not batture, Art. 16, § 6 of the Louisiana Constitution limits recovery for lands and improvements thereon other than batture to a price not to exceed the assessed value for the preceding year. The appellee did not allege or show that either the lands on which the timber stood or the timber itself was assessed for the preceding year and the courts of Louisiana have uniformly held that it is necessary for the plaintiff in a suit for compensation for property used or destroyed for levee purposes to allege that the property was assessed for taxes in the preceding year and to allege that the- amount of the assessment was, for that is all that the plaintiff could have a right of action for. Dickson v. Board of Com’rs, 210 La. 121, 26 So.2d 474, and cases cited.
Whatever, then, if the matter were of first impression, might be thought of the correctness of such a view against a view that the Constitution did not mean to provide that the assessment of the property was essential to the constitutional grant of compensation but merely intended to set up a measure of the value of the property which could be satisfied, if the property was not assessed, by showing the amount for which other similar property was assessed, the law of Louisiana has been differently and positively declared by its courts, and we are bound by that declaration.
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HUTCHESON, Chief Judge.
Suing under Sections 1346 and 1402, 28 U.S.C., for the claimed wrongful destruction by the United States, its agents and servants of timber on two tracts of land, appellee, plaintiff below, brought two separate suits against the United States to recover the damages resulting therefrom. Consolidated by stipulation and order and tried as one suit, there was a judgment for plaintiffs against the United States for $10,801. with interest at four percent from its entry. From that judgment the United States prose* [10]*10cutes an appeal seeking a reversal and rendition, while plaintiff-appellee appeals from so much of it as allows interest not from the injury but from the judgment and fixes it at four instead of five percent.
On its appeal, the United States, specifying many errors, presents four questions1 for our decision.
Since an affirmative answer to the first two questions will require a reversal of the judgment and will render unnecessary an answer to the last two, and since, for the reasons hereafter stated, we are of the clear opinion that an affirmative answer is required, we will not, in reaching the conclusion that the district judge was in error in his view of the case and the actions he took in it, undertake to decide or discuss the last two questions.
Mindful, as we are, of the thorough consideration the district judge gave to the case, as evidenced by his several opinions in it,2 and of his unusual opportunities, as an outstanding and greatly influential member of the Louisiana Constitutional Convention of 1921, and of the Supreme Court of Louisiana, to know and understand the constitution and laws of his native state, we yet find ourselves unable to agree with his conclusions as to the legal effect of the undisputed facts 3 [11]*11and constrained to hold the law of the case to be contrary to his opinion of it. On the basis of these facts, the United States defended the suit upon several propositions of law, with which we find ourselves in substantial accord.
The first and most important of these is thus stated and argued by it. The United States is not liable because it received the right of way from the levee board which correctly appropriated it without compensation under a riparian servitude, because:
The property is subject to a riparian servitude for levee purposes, and, under the civil law of Louisiana from ancient times, the owner of property bordering upon a navigable stream has been required to give without compensation so much of it as might be needed for the construction of levees and highways.4
While the right to the completely free use of the servitude was changed to some extent by Section 6 of Article 16 of the Louisiana Constitution of 1921, which provides “Lands and improvements thereon hereafter actually used or destroyed for levees or levee drainage purposes * * * shall be paid for at a price not to exceed the assessed value of the preceding year; provided, that this shall not apply to batture * * As was pointed out in Mayer v. Board of Commissioners, 177 La. 1119, 150 So. 295, whatever the section may give to owners of land is in the nature of a gratuity, and contrary to the conclusion of the district judge, the servitude was correctly exercised by the levee board for itself and for the United States.
The district court mistakenly assumed that the State of Louisiana or its agencies must accord notice and a hearing to exercise the right which it has to appropriate and use a property interest which it owns in the use of the lands for levees, and, on that mistaken assumption, incorrectly held that the property was not effectively appropriated. This was a mistaken view, because the property here was not property taken from another by expropriation but was a public use of a public right already owned and the procedure required for an expropriation of private property was therefore not necessary to the exercise of the servitude already existing.5 In Danziger v. United States, D.C., 93 P.Supp. 70, 72, the court said, “There is no formal procedure which levee districts must follow in appropriating property”, while in Dickson v. Board of Commissioners, 210 La. 121, 26 So.2d 474, it was held that the state has the undoubted right and authority to appropriate such land to a use to which it is subject under its very title. No notice, therefore, was necessary in an appropriation of a right of way for a levee. Board of Commissioners of Red River, Atchafalaya and Bayou Boeuf Levee Dist. v. Trouille, 212 La. 152, 31 So.2d 700. Moreover notice was given to all persons shown by the tax assessor’s rolls to be the owners, and under the settled jurisprudence of Louisiana, no compensation is owed for exercise of this servitude, (1) if the land in question is batture, [12]*12for Art. 16, § 6 forbids payment for bat-ture used or destroyed for levees, and (2) if it is not batture, the same article restricts compensation to properties which had been assessed.
The district court acknowledged that there existed a question of whether this was batture but did not decide it. However, this is the standard definition of batture, “The batture is that part of the river bed which is uncovered at the time of low water, but is covered annually at the time of ordinary high water; when it ceases to be covered at the time of ordinary high water, it ceases to be batture and becomes bank of the river.” Boyce Cottonseed Oil Mfg. Co. v. Board of Commissioners, 160 La. 727, 107 So. 506, 508; Ward v. Board of Levee Com’rs, 152 La. 158, 92 So. 769; 21 Tulane Law Review, 660-661; Art. 457 of the Louisiana Civil Code provides that “on the borders of the Mississippi and other navigable streams, where there are levees, established according to law, the levees shall form the banks”, and the undisputed facts show the land on which the timber stood to be batture. The property claimed by the appellee to have been damaged and destroyed was growing on land between the main line levee being enlarged and the river itself, and the evidence is uncontradicted that the entire property was overflowed annually or nearly so.
If, however, the land was not batture, Art. 16, § 6 of the Louisiana Constitution limits recovery for lands and improvements thereon other than batture to a price not to exceed the assessed value for the preceding year. The appellee did not allege or show that either the lands on which the timber stood or the timber itself was assessed for the preceding year and the courts of Louisiana have uniformly held that it is necessary for the plaintiff in a suit for compensation for property used or destroyed for levee purposes to allege that the property was assessed for taxes in the preceding year and to allege that the- amount of the assessment was, for that is all that the plaintiff could have a right of action for. Dickson v. Board of Com’rs, 210 La. 121, 26 So.2d 474, and cases cited.
Whatever, then, if the matter were of first impression, might be thought of the correctness of such a view against a view that the Constitution did not mean to provide that the assessment of the property was essential to the constitutional grant of compensation but merely intended to set up a measure of the value of the property which could be satisfied, if the property was not assessed, by showing the amount for which other similar property was assessed, the law of Louisiana has been differently and positively declared by its courts, and we are bound by that declaration.
The fact that appellee’s timber was owned separately from the land is not, and cannot be, a controlling factor under the law as it was in Louisiana prior to the Constitution or as the Louisiana courts now construe it to be under the amendment.
Finally, the United States urges upon us, and we agree, that it is •not liable under any provision of state or federal law. It is not liable under state law because state law does not apply to it. It is not liable under federal law because, taking in right of the state of Louisiana, it succeeds to the rights of the state, and if, as we have seen, no compensation was due from the state, none is due from the United States, which acts in the place of and for the state. Danziger v. United States, D.C., 93 F.Supp. 70; Pruyn v. Nelson Bros., 180 La. 760, 157 So. 585; Wolfe v. Hurley, D.C., 46 F.2d 515; United States ex rel. and for Use of Tennessee Valley Authority v. Powelson, 319 U.S. 266, 63 S.Ct. 1047, 87 L.Ed. 1390.
Further, there is no basis in fact or in law for the claim of the plaintiff that the United States, through its contractors, tortiously destroyed the timber. Plaintiff has expressly disclaimed suing under the federal tort claims act. It based and bases its claim upon an implied contract to recover for the timber taken and since as we have held, the tim[13]*13ber had been already taken by the levee board under its right of appropriation, the "United States could not be said to have taken it from the plaintiff under an implied promise to pay for it, and plaintiff’s claim on this score must fail too.
We are of the clear opinion that the district judge was wrong in giving judgment against the United States and that the judgment must be reversed and here rendered for it.
Reversed and rendered.