Opinion · Supreme Court of the United States
Bedford v. United States
192 U.S. 217
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1904-01-18
- Topic
- general
How later courts describe this case
- distinguishing between damage to property and a taking of property
- damages to lands by flooding as the result of revetments erected by the United States along the banks of the Mississippi River to prevent erosion of the banks from natural causes are consequential and do not constitute a taking of the land flooded within the meaning of the Fifth Amendment
Citator
Bedford v. United States has been questioned or limited by later authorities: relies on overruled authority: 23 S. Ct. 349 (overruled by United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad, 312 U.S. 592 (1941)). Read them before relying on it. 139 later decisions cite it.
- Authority status
- caution
- Cited by
- 139 opinions
Headnotes
- Constitutional Law — Fifth Amendment Taking Damage to land from flooding that results from the government's construction of revetments along a riverbank to prevent erosion by natural causes is consequential damage, not a taking of the flooded land within the meaning of the Fifth Amendment; the Constitution distinguishes between damage and taking, and that distinction must be observed in applying the constitutional provision. 192 U.S. at 222
- Constitutional Law — Riparian Rights A riparian proprietor has no right to the unrestrained operation of natural causes, and government works that resist or disturb those causes do not effect a taking of private property merely because injury results to riparian owners; to hold otherwise would subject the government's power over navigable rivers to an immeasurable responsibility and could render riparian property valueless. 192 U.S. at 222
- Constitutional Law — Taking Distinguished from Consequential Damage A taking requires an actual invasion and appropriation of land, as where government works obstruct the natural flow of a river and directly cause the permanent flooding of a plantation; where government works along a riverbank merely resist the erosion of the banks by the river and the resulting injury to downstream land is an incidental consequence of those works, the injury is consequential damage and not a compensable taking. 192 U.S. at 223-224
BEDFORDv. UNITED STATES,192 U.S. 217(1904)
24 S.Ct. 238
BEDFORDv. UNITED STATES.
APPEAL FROM THE COURT OF CLAIMS.
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 five thousand or six
thousand 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 twenty-three hundred 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
Page 218
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 six 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 said banks
below high-water mark. The revetment was neither upon nor in
contact with the claimants' lands. 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 1886
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 in20 Stat. 363, 366;
21 Stat. 181, 470;26 Stat. 450, 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
Page 219
of the Mississippi River were gradually directed toward the lands
of the claimants, situated about six 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 in 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
six 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' lands 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
Page 220
not entitled to recover, and dismissed their petitions. 36 C. Cl. 474.
There is no difference between the taking of land by the Government for a navigable waterway for steamboat traffic for the public good and that of backing up water over a man's land through a public dam constructed so as to work such a result, as held inUnited Statesv.Lynah,188 U.S. 445. The revetment as well as the dam appropriates the land and deprives the owner of its use.
It was a public statute which authorized the dam, and it was a public statute which authorized the building of the revetment. The officers of the law derived their authority, in both instances, from the same source.Gibsonv.United States,166 U.S. 273;Gilman's case, 3 Wall. 713, distinguished, and see theGreat Falls case,112 U.S. 645;Pumpellyv.Green BayCo., 13 Wall. 181;Mill's case, 46 F. 738.
The officers and agents of the United States took appellants' lands under sanction of authority and the Government is bound to make just compensation. The building and maintaining the revetment was duly authorized by Congress, as follows:20 Stat. 363, 366;21 Stat. 181, 470;26 Stat. 450, 1116. An implied contract consequently arose to pay for the appropriation of this property.Great Falls case, supra; Kohlv.United States,91 U.S. 367.
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 claimants' cause is 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.Sanfordv.UnitedPage 221States,101 U.S. 341;Boone Co. v.Peterson,98 U.S. 403;United Statesv.Jones,109 U.S. 573;Barronv.Baltimore, 7 Pet. 243;Withersv.Buckley, 20 How. 84, and seeSinnicksonv.JohnsonandGardnerv.Newburgh, cited inPumpellyv.Green Bay Co., 13 Wall. 181; Angell on Water Courses, § 465a.
The power to take private property for public uses belongs to every independent government. It is an incident of sovereignty, and does not require constitutional recognition. This power is recognized by the Constitution of the United States wherein, by itsFifthAmendment, it declared that private property shall not be taken without just compensation.United Statesv.Gettysburg Electric Ry. Co.,160 U.S. 668;High Bridge LumberCo. v.United States, 37 U.S. App. 234;Barron, etc., v.Mayor of Baltimore, 7 Pet. 243;Hallisterv.BenedictManufacturing Co.,113 U.S. 59;United Statesv.Palmer,128 U.S. 262;United Statesv.Berdan Fire Ins. Co.,156 U.S. 552;South Carolinav.Georgia,93 U.S. 4,13;Wisconsinv.Duluth,96 U.S. 379.
It is clear that what was a valuable plantation has been permanently swept away "as the necessary result of the work which the government has undertaken."Pumpellyv.Green Bay Co.,supra, says this is a "taking" of appellants' lands for public use, as stated in the opinion of the court in theLynahcase. See also Angell on Water Courses, § 465a; Hookerv.NewHaven N. Co.,14 Conn. 146;Rowev.Granite BridgeCo., 21 Pick. 344;Canal App. v.The People, 17 Wend. 604;Locklandv.North M.R.R. Co.,31 Mo. 180;Stevensv.Prop'r of Middlesex Co.,12 Mass. 466;MonongahelaNav. Co. v.United States,148 U.S. 312;Scrantonv.Wheeler,179 U.S. 141;Transportation Co. v.Chicago,99 U.S. 635.
Even if we are to restrict the ownership of appellants' lands to mere riparian rights, it is unfair to appropriate them without compensation. By the Encyclopedias England makes compensation where it takes such rights under its eminent domain.
The theory of our Government is that the rights of the individualPage 222when subordinated to the public necessities shall be compensated for. Private property is subject to public uses only when paid for. It matters not for what special purpose private property may be taken, it is subject to the limitations of payment cast by theFifthAmendment.Mr. Assistant Attorney General Pradt, with whomMr. SpecialAttorney William H. Buttonwas on the brief, for the United States:
This is a case sounding in tort and the Court of Claims has no jurisdiction of an action sounding in tort.Schillingerv.United States,155 U.S. 161;United Statesv.Lynah,188 U.S. 445.
TheGreat Falls case,112 U.S. 645, was an implied contract and theLangford case,101 U.S. 341, was not. Appellant's land was miles away from the revetment. The Government has never parted with the original right to navigable waters.Gibsoncase,166 U.S. 272;Shivelyv.Bowlby,152 U.S. 1;Martinv.Waddell, 16 Pet. 367;Weberv.State HarborCommissioners, 18 Wall. 57;Illinois Central R.R. Co. v.Illinois,146 U.S. 387.
Upon the American Revolution all the rights of the Crown and of Parliament vested in the several States, subject to the rights surrendered to the National Government by the Constitution of the United States. In England these rights only extended to waters in which the tide ebbs and flows. This was the early doctrine of the United States, but this court,Genesee Chiefv.Fitzhugh, 12 How. 443, held that that test was not applicable, and that the true test was whether or not the waters were in fact navigable, and seeScrantonv.Wheeler,179 U.S. 141, and the Michigan case ofLormanv.Benson, cited therein;Stocktonv.Balt.N.Y.R.R. Co., 32 F. 9, 20;Gilmanv.Philadelphia, 3 Wall. 725; Cooley's Const. Lim. p. 643.
The United States is not responsible for the causes of the destruction of appellants' property but the injury is the effect of natural causes.Page 223
The United States did not undertake to appropriate any property but simply to preserve the property intrusted to its care, that is, the commercial interests of Vicksburg. Angell on Water Courses (7th ed.), § 333;Barnesv.Marshall,68 Cal. 569;Farquharsonv.Farquharson, 3 Bligh Pr. N.S. 421;Gulf R.R. Co. v.Clark, 101 F. 678, and cases cited.
The damage is too remote to constitute a taking.Transportation Co. v.Chicago,99 U.S. 642;Gibsonv.United States,166 U.S. 269. The damages are not, and cannot be, proven, but are conjectural and speculative and cannot be recovered.Howardv.Stillwell Co.,139 U.S. 199;CentralTrust Co. v.Clark, 92 F. 293;Cahnv.TelegraphCo., 40 F. 40.
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 inGibsonv.United States,166 U.S. 269. The distinction is there instructively explained, and other cases need not be cited. It is, however, necessary to refer toUnited Statesv.Lynah,188 U.S. 445, as it is especially relied upon by appellants. The facts are stated in the following excerpt from the opinion:
"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 thePage 225possibility of drainage. But findings nine and ten 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 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."
The question was asked: "Does this amount to a taking?" To which it was replied: "The case ofPumpellyv.Green Bay Co., 13 Wall. 166, 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 theLynahcase in the cause and manner of the injury. In theLynahcase 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.Judgment affirmed.Page 226