Bedford v. United States 36 Ct. Cl. 474

THOMAS C. BEDFORD ET AL v. THE UNITED STATES.

[No. 20514.

Decided October 28, 1901.]

On the Proofx.

In the spring of 1876 the Mississippi breaks through Do Soto Point, taking a new course. The current striking against the west bank below ' Vicksburg is deflected thence upon the claimants’ land lower down the river. The cause of the deflection is the change in the course of the stream and the increased velocity of the current. Between 1878 and 1884 the Government constructs a revetment for • the purpose of preventing the further erosion of the bank. The revetment does not change the course of the river, but operates to keep it as it is. If the revetment were not built, the cut-off would continue to widen and the deflection of the stream upon the claimants’ land would grow less. The injury to the claimants’ land is an effect of natural causes; the injury caused by the Government is by interrupting the further progress of natural causes, i. e., the further change in the course of the river.

I.In 1878 the officers of the Government were authorized by statute s to improve the Mississippi River in the interest of navigation. The construction of a revetment intended to confine the river to its then existing channel was within the limits of their authority.

II.The power to control and improve navigable rivers is derived from the Constitution.

III. Riparian ownership is subject to the dominant right of the Government to improve navigation. Where the injury to private property is merely incidental to the exercise of the Government’s right, it is not a taking of private property for public use.

IV. Where though a continuing injury to riparian property will result, the Government is not bound to delay river improvements until a continuation of natural causes shall diminish the injury.

V. It is now settled that no implied contract can arise where the Government takes property claiming title thereto.

VI. Though the injury to a party’s lands may be diminished in course of time by further erosion of a river bank and the consequent shifting of the channel, and the Government by building revetments prevents that beneficial change, the fact remains that the injury is the effect of natural causes, as to which no contract can be implied.

*475 The Rejiorteri statement of the case:

The following are the facts of the case as found by the court:

I. The claimants herein, Thomas C. Bedford and Emma Bedford his wife, are citizens of the United States, residingat Vicksburg-, in the State of Mississippi.

II. In March, 1877, and November, 1889, George M. Bed-ford acquired by purchase sections 11, 12, 13, 11, 15, 16, 17, 20, 21, and 22 in township 15 north, range 15 east, containing 5,000 or 6,000 acres of land, together with cabins, other buildings, and fences thereon, lying and being in Madison Parish, in the State of Louisiana, which lands he continued to hold and possess until January, 1891, when he died intestate, leaving as his onty heir-at-law his brother, Thomas C. Bedford, .one of the claimants herein. Said Thomas C. Bedford claims to have been the owner of said described real estate in fee simple, and for the purpose of this suit is so found to have been, until the said lands were sold at judicial sale in May, 1895, to the claimant, Emma C. Bedford, his wife, to satisfy a mortgage theretofore executed by him on said described lands. His said wife Emma, claimant herein, now claims to be the owner of said described lands in fee simple, and for the purpose of this suit is so found to be.

At the time of the death of said George M. Bedford about 850 acres of said lands were cleared, and at the time the claimant, Emma Bedford, became the owner thereof by purchase, as aforesaid, about 1,300 acres of said lands were cleared.

III. Prior to the spring of 1876 the Mississippi River flowed around a narrow neck of land known as Do 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 narrowed 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 *476approach from the river to the docks along the river difficult if not impossible.

IV. 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 bjr 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 slightty 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 in-20 Stat. L., 363, 366; 21 Stat. L., 181, 470 ; 26 Stat. L., 450, 1116.

V. In making the improvement aforesaid the defendants did not recognize any right of property in the claimants in and to the right alleged to bo 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.

VI. 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 directed against and upon the lands of the claimants, situated about 6 miles below said cut-off, so as to overflow about 2,300 acres of their lands and wash away the buildings, fences, and other improvements thereon. About 400 acres of the lands so overflowed was prior to the death of the said George M. Bedford, through whom the claimants claim title, and about 900 acres oij which wore 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 Mayr 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, was in excess of §>3,000.

*477VIL 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 at 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 injuiy 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.

Mr. John O. Chaney for the claimants, Elijah V. Brook-shire ancl Dabney & Me Cabe wore on the brief:

It is alleged by the claimants that this is a taking of these lands under the right of eminent domain, and that the Fifth Amendment to the Constitution of the United States, namely: “Nor shall private property bo taken for public use without just compensation,” entitles the claimant' to compensation therefor.

The claimants also' hold that an implied promise to pay a just compensation for said lands arises upon the part of the United States.

In the case of Pumyelly against The Green Bay Compan y (13 Wall., 166) there was an appropriation of private property for a public use much like the case at bar.

It is not necessary that property should be absolutely taken, in the narrowest sense of that word, to bring the case within the protection of the constitutional provision. There may be such serious interruption to the common and necessary use of *478property as will be equivalent to a taking within the meaning of the Constitution.

The backing of water so as to overflow the lands of an individual, or anj- other superinduced addition of water, earth, sand, or other material or artificial structure placed on land, if done under statutes authorizing it for the public benefit, is such a taking as bjT the constitutional provisions demands compensation.

In the New Jersey case of Sinnickson v. Johnson, cited in the Pumpelly case, Judge Dayton, in his opinion therein, said:

“That this power to take private property reaches back of ••all constitutional provisions; and it seems to have been a settled principle of universal law that the right to compensation .is an incident to the exercise of that power; that the one is inseparably connected with the other; that they may be said to exist, not as separate and distinct principles, but as parts of •one and the same principle.”

At the time of the rendition of this decision the State of New •Jersey had no constitutional provision on the subject.

The State of New York had no constitutional provision on the subject in Chancellor Kent’s time when he, in the case of Carder v. Newburgh, granted an injunction against diverting •a stream through plaintiff’s land from its usual course because the act of the legislature authorizing it made no provision for compensating him for the injury done.

In the last-named case it is laid down as a clear principle of natural equity that the individual whose property is thus sacrificed must be indemnified.

Said case was where the diversion of the water from plaintiff’s land was considered a taking of private property for public use, and therefore, like overflowing the land, be called only consequential damage or injury.

In Angelí on Water Courses, section 465a, it is laid down as -a rule that a serious interruption to the common afid necessary use of property is a taking of it, and that it is not necessary that the land be absolutely taken.

In the Great Falls Mfg Company's case (112 U. S. R., 645) :it was found that the property rights of said company had been appropriated by the agents of the Government under authority of appropriations made by Congress for the construction *479of the dam in the Potomac River at Great Falls, whereby the above property rights were occupied by the United States.

See also Kohl v. United States, 91 U. S., 367; Samford v. United States, 101 U. S., 341; Boom Co. v. Pete'j'son, 98 U. S., 403; United States v. Jones, 109 U. S., 513; Barron v. Baltimore, 7 Peters, 243; Withers v. Buckley, 20 How., 84.

Grotius was an early authority on the right of eminent domain. He said:

“We have elsewhere said that the property of subjects is under the eminent dominion of the State, so that the State, or he who acts for it, may use or even alienate or destroy such property, not only in cases of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded •civil society must be supposed to have intended that private ends should give way. But it is to be observed that when this is done) the State is bound to make good the loss to those who lose their property. ”

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 its Fifth Amendment it declared that private property shall not be taken without just compensation. (The United States v. Gettysburg Electric liioy. Co., 160 U. S., 668;' High Bridge Limber Co. v. The United States, 37 U. S. App., 234; Barron., etc. v. Mayor of Baltimore, 7 Peters, 243.)

What, therefore, is just compensation ? “In determining the value of land appropriated for public purposes, the- same considerations are to be regarded as in a sale between individuals.” (Boom Co. v. Patterson, 98 U. S., 403.)

The following cases are cited as to compensation: Shoemaker v. United States, 147 U. S. R., 282; Monongahela Nam. Co. v. United States, 148 U. S. R., 312; United States v. Gettysburg Electric Bwy. Co., supra.

The question in the case is, therefore, one of fact.

“Did the United States, by the construction of the revetment for the protection of the harbor at Vicksburg, appropriate the claimant’s land to a public use?” We answer that it did.

*480 Mr. TYillia/m H. Button (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:

By the common law of England, the dominion of the sea, and of rivers in which the tide ebbs and flows, and of all lands below the high-water mark of such waters, was in the King. He hold it on account of its value to the public, subject to a trust in favor of all his subjects, whereby there might be preserved to them the advantages of navigation and of fisheries, and other .privileges pertaining to such waters.

The American colonies were claimed by England by the right of discovery and were subject to the same laws. Upon the Revolution these rights and titles passed to the people of the various States, and are now-held by them, subject to the limitations placed upon them by the Constitution of the United States. {Martin v. Waddell, 16 Peters, 367; Weber v. State Harbor Commissioners, 18 Wall., 57; Illinois Central JRaiWoad Company v. Illinois, 146 U. S. R., 387.)

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 the Supreme Court, in the case of Genesee Chief v. 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.

The geographical conditions in England were the origin of the rule, all navigable waters there, as a matter of fact, being-tide waters. There were no great lakes or rivers in which the tide did not ebb and flow. Consequently, the reason of the rule does not exist in the United States.

It appears that in the JJnited States title to the lands below high-water mark in all navigable waters is in the various States, subject only to such control thereof by the United States Government as has been delegated to it by the Constitution. In the absence of such.control the States themselves 'can make any regulations in regard thereto, which they may see fit. {Wilson v. Black Bird Creek Marsh Co., 2Pet., 205.)

The power granted to the United States by the Constitution is found in Article I, section 8, which grants to the Congress of the United States the power “to regulate commerce with foreign nations and among the several States.”

*481The power of Congress operates as á limitation upon the power of the States in their control over navigable waters within their limits, and wherever Congress has exercised the power so delegated to it, its will is supreme. (Gibbons v. Ogden., 9 Wheat., 196; Gilman v. Philadelphia, 3 Wall., 744; see also Paine v. Wheeling, 14 How., 421; Wisconsin v. Puluth, 96 U. S. R., 379.)

From these cases there can be no doubt that the United States was not transcending its powers in constructing these revetments upon the banks of the Mississippi River for the purpose of improving the navigation of that river.

These rights of navigation and its regulation constitute part of the eminent domain of the United States. The eminent domain consists not only of the right to appropriate private property for public use upon just compensation, but it also includes many rights of a public nature which the Government already possesses without any affirmative action. This distinction is often lost sight of, but is important. (Cooley on Constitutional Limitations, p. 643.)

In the case at bar the United States exercised its right of eminent domain in controlling and using property which it already possessed, and not in any manner in taking private property which it did not possess. It was simply claiming its own. The cases cited abundantly establish the proposition that the United States already had such an ownership in the property it used for improving the navigation of the river' that it might do so without compensating anybody therefor.

Whenever the United States exercises its right to improve . navigation, it does so without compensation as for private property taken. It has been repeatedly held that it has this right.

In South Carolina v. Georgia (93 U. S. R., 4), the United States instituted a scheme for improving the navigation of the Savannah River by closing, for all practical purposes, the channel on- one side of an island to the great damage of property on that side of the river. The court, nevertheless, held that in taking this action the United States-was within its well-defined powers, and that it could do so without compensating property owners who were damaged thereby,

*482In Wisconsin v. Dulmth (96 U. S. R., 379), the United States constructed a canal to improve the navigation of Lake Superior in the interests of the city of Duluth. The result of the work was an inj ury to the city of Superior. The suit was brought by the State of Wisconsin to vindicate the rights of the latter city, and was founded entirely upon the damages which would be sustained by that city. It was held by the court, however, that Congress, in carrying out such improvements of navigation, was exercising rights which it possessed without any affirmative action, and that no relief could be had.

In GiVmaoi v. Philadelphia (3 Wall., 713), the right to regulate and improve navigation which exists in the various States in the absence of inconsistent action by the United States was discussed. It is evident that the power of the States to regulate navigation in the absence of such regulation by the United States is plenary.

In that case the legislature of Pennsylvania had authorized the building of a bridge over the Schuylkill River, which prevented the passage of a certain class of vessels; but it was held that in so doing the State had but exercised one of its prerogatives, and no recourse could be had.

In Stockton v. Baltimore and New York Railroad Company (32 Fed. Rep., 9), the action was brought to restrain the defendant from buildiiig a bridge across navigable water, which bridge was authorized by an act of Congress. It was contended that the United States could exercise its prerogative to regulate commerce only upon paying just compensation to the State within which the bridge was constructed.

In the Hawkins Point Light-House Case(39 Fed. Rep., 77), the plaintiff maintained that the United States could not appropriate without compensation lands submerged under navigable waters for the purpose of a light-house. The court held, however, that the United States already possessed such an easement in said property that it could so use it without compensation.

In this case there was no question but that the general title to the lands appropriated was in the plaintiff, and that he suffered damage.

A case much like the one at bar is Gibson v. TLvited States (166 U. S. R., 272). The claimant owned a farm bordering *483upon the Ohio River near Pittsburg, which was valuable as a market garden. She had wharves upon the river and used them for the purpose of transporting the produce of her'farm to the city of Pittsburg. Congress authorized an improvement of the Ohio River by the construction of a dike, which diverted the water entirely from the claimant’s frontage and made it impossible for her to ship her produce by water. This caused her great damage. The court held, through Mr. Chief Justice Fuller, that she could not recover. The United States was simply exercising a right which it had always possessed, and to which her property had always been subject.

It seems, therefore, that in building these revetments the United States was exercising a right to use its own property under an easement which it had always possessed in favor of the general public. It was using its own property. These doctrines would be of little force if they were qualified by the principle that the United States must pay compensation to everyone who is consequentially injured by the exercise of such rights. Such a qualification would amount almost to a denial of the right itself, and such a qualification has been repudiated by all the cases above cited.

If every revetment or dike or dam that is built by the United States to improve navigation results in liability to riparian owners who have been incidentally damaged thereby, such a principle would practically put an end to all such improvements.

A different case is presented where private property is actually taken, as in the instance suggested in Stockton v. Baltimoi'e and New York Bcdlroad Company (supra) of taking the statehouse at Trenton. Where such private property is taken, it, of course, must - be upon the condition of paying therefor.

Such was the case of Monongahela Navigation Company v. United States (148 U. S. R., 312), where a lock and dam that had already been constructed were appropriated by the United States.

Such also is the case of Pumpelly v. Creen Bay and Mississippi Ccmcd Company (13 Wall., 166), in which some 640 acres of land were immediately appropriated by the construction of certain improvements.

*484Such also is the case'when docks are taken by legislative authority, as was decided by Mr. Justice Field in Railway Company v. Renwich (102 U. S. R., 180).

The nature and extent of this control by the United States of navigable waters and the lands under them is illustrated in the case of Mississippi Boom Company v. Patterson (98 U. S. R., 403). Patterson owned- a series of islands parallel to and a short distance from the western bank of the Mississippi River in Minnesota. The islands were condemned by the boom company for the purpose of establishing a boom for logs. One question considered in the case was whether a grant by the State of Minnesota of exclusive privileges to boom logs was valid. It was held that the United States could authorize other parties to so do, and presumably without compensation.

In Pensacola Telegraph Company v. Western Union Telegraph Company (96 U. S. 'R., 1) the statute of the United States authorizing any telegraph company to construct its lines over, under, or across the navigable streams or waters of the United States was considered. In speaking of the rights of Congress to grant these privileges, Mr. Chief Justice Waite said:

“These are all within the dominion of the National Government to the extent of the national powers, and are, therefore, subject to legitimate Congressional regulation. No question arises as to the authority of Congress to provide for the appropriation of private property to the uses of the telegraph, for no such attempt has been made. The use of public property alone is granted.”

The fact that in building these revetments the United States was in the exercise of its rights, the existence and extent of which have been discussed in. the above cases, is a matter of great importance, for the reason that no person can recover damages for the legitimate exercise by the Government of a governmental function. It is not a case of acquiring the right to do something, but is a case of doing something which the United States already had the right to do. If it was the desire of the United States to build an arsenal or lay out a highway upon private property, it would have no right to do so without acquiring such right by condemnation proceedings. When, however, it had once acquired that right, it could not *485be successfully claimed that it would be liable to anybody for the building of the arsenal or the laying out or improvement of the highway. Any damages incident to such actions would be deemed to have been considered in the assessment of damages in the condemnation proceedings. There can be no distinction between the exercise of such a right that must be acquired in such a manner and the exercise of a right already possessed which needs no acquiring at all. Whatever may be the rule as to consequential damages that may be recovered during the process of acquiring such a right, the cases are everywhere uniform to the effect that none can be recovered on account of the exercise of the right when once acquired. This was early held in England. In the case of British Oast Plate Manafadncrers Gompany v. Meredith (4 T. R., 794) certain street commissioners raised the grade of a street. The result was great damage to an abutting owner. The court held that no action would lie, Lord Kenyon saying:

“The interest of individuals must give way to the accommodation of the public.”

The case of Callendar v. Marsh (1 Pick., 418} is a leading case in the United States. The city of Boston, under legislative authority, excavated'a street in front of the plaintiff’s premises. The result rendered the plaintiff’s house insecure and liable to collapse. The court held, however, that he had no' action. It was stated that when the street was condemned this liability must have been paid for.

In Pontiac v. Garter (32 Mich., 154) Judge-Cooley said:

“The injury in all these cases is incidental to an exercise of public authorhy which in itself must be assumed to be proper because it is had by a. public body coming within its jurisdiction and not charged with malice or want of good faith. ”

In Smith v. The Corporation of Washington (20 Howard, 135) the plaintiff sued for the consequences of certain improvements in the street in front of her residence in Washington.

The court reviewed the cases and approved Callendar v. Marsh (supra).

In Hamilton v. Viclcsburg Company(119 U. S. R., 280), it was held that the inconvenience resulting from the erection of a bridge on navigable waters under Federal authority was *486 damnum absque injuria on the ground that it was an exercise of a govermental function.

The same thing was held in Worthern Trcmsportation Company v. Chicago (99 U. S. R., 635). In that case, the city of Chicago, acting under legislative authority, constructed a tunnel under the Chicago River. In doing so, the excavation of the street shut off almost entirely the plaintiff’s access to valuable business property, and the cofferdams constructed in the river cut off entirely his access to valuable docks. • After stating that the city, by virtue of an act of the legislature of Illinois and certain actions of the city council, had authority to build the tunnel, the court held that the plaintiff’s contention that although this work could lawfully be done, yet it could only be done provided adequate compensation for the consequential damages should be made could not be maintained.

These cases establish the principle that whenever the Government exercises one of its rights, people must suffer the consequences. This is not only true when the result is a temporary interruption of the use of property, as in Hamilton v. Vicksburg Company, but also when such action results in the destruction of property, unless measures are taken for its preservation, as in the Massachusetts case. They fully establish a distinction between the damages that can be recovered when the Government is acquiring a right and those which can not be recovered when the Government is exercising aright already acquired.

A person can not be held liable for the use of a right of way which he has reserved out of property sold by him, although he would undoubtedly have to pay compensation for procuring that right of way that would cover all such damages in case he attempted to buy it or to acquire it of another person. Such is the situation of the United States in regard to its right to build these revetments. The people of the various States reserved to themselves this very right, and subsequently transferred it to the United States. In reserving it, they impressed all other property that might come within the influence of the use of such rights with the burden of being subject to such influences; and in exercising those rights, the United States can not be held liable in damages for the reason that *487it is exercising a right over property which it has always possessed.

A forcible illustration of these principles is to be found m the law of Louisiana, which permits the taking of. property for levee purposes without compensation either for the propertj’ that is actually occupied by the levees, or for property that is injuriousljr affected by their construction.

This law and its origin was considered by the Supreme Court of the United States in the case of jEklriclge v. Treze-oant {160 U. S. R., 452). The State of Louisiana had constituted a board of State engineers for the purpose of improving the levee system of the State. Through the proper machinery a contract had been awarded to the defendant to construct a levee across the lands of the plaintiff. He proceeded to do this and plaintiff brought suit, claiming that such actions were in conflict with the Constitution of the United States. The bill admitted that the courts of Louisiana refused to grant compensation in such cases, but Mr. Justice Shiras considered it important to review the grounds upon which the Louisiana courts based their determinations, and found the basis of their action to be in article 661 of the Louisiana Civil Code, which is as follows:

“Servitudes imposed for the public or common utility relate to the space which is to be left for public use by the adjacent proprietors on the shores of navigable rivers and for the making and repairing of levees and other public or common works.”

In the case of Zanor v. Concordia (7 La. Annual, 150) a police jury, in pursuance of legislative authority, had built a levee on the complainant’s lands, which resulted in great damage to his property. The court, however, held that he was not entitled to compensation either for the land that was actually appropriated for the construction of the levee or for the damages it occasioned to the rest of his property.

It was the condition of the ancient grants of land on the Mississippi River, and sufficient depth was given to each contract, to prevent the exercise of the right from proving ruinous to the individual.

In Dubose v. Mississippi Commissioners (11 La. Annual, *488165) suit was brought for damages occasioned by the change, of location of certain levees; but the court said:

“The law concerning the expropriation of private property for public use does not appty to such lands upon the banks of navigable rivers as may be found necessary for levee purposes.”

In the later case of Bass v. State (34 La. Annual, 494) the State court again held the same thing, but seemed in a measure to base its holding upon the police power of the State. In commenting upon this decision the Supreme Court of the United States held that it could not have been intended to base the decision entirety upon this ground.

This construction of the decision of the Louisiana court was substantiated in the still later case of Buck v. New Orleans (43 La. Annual, 275).

In reviewing all these cases and deciding that the Louisiana doctrine was based upon an easement in favor of the State reserved in the ancient grants, the United States Supreme Court held that such principles were not in conflict with the Constitution. It must be apparent that if, bjr virtue of an easement in favor of the State of Louisiana, that State can appropriate without compensation the property of a- riparian owner for the purpose of constructing a levee, there can be no objection to the construction by the United States of works for the improvement of navigation in the exercise of a like easement that has been reserved to the United States for such purpose.

The discussion has thus far proceeded upon the idea that the United States did not proceed under its power to appropriate private property when it constructed these revetments. If, however, it had proceeded under that power and had taken the land on Delta Point under such rights for the purpose of constructing such revetments, it- still remains true that the consequences of which the claimants complain are not such that they could recover therefor.

The courts of the various States have had considerable difficulty in determining ivhat injuries to property may be termed a taking in such a sense as to entitle the party injured to compensation. This difficulty lias arisen largely from the different provisions of the various State constitutions. Some of them *489provide that property shall not be “ taken” without-compensation. Others provide that property shall not be “ taken or injured” without compensation. There is, however, more or less conflict in the constructions that the various courts have put upon the same words where they appear in the different constitutions. One frequent holding is that compensation can not be recovered except in cases where property has actually been invaded by the works in question. This is the principle applied by the English courts. {Me Cartlvy v. Metropolitan Bocvrd of Works, L. R. 8, C. P., 209.) This also seems to be the test that is favored by the Supreme Court of the United States.

In Gibson v. United States (supra) the court quotes with approval the case of Mononcjahela Navigation Company v. Goons (6 Watts & S., 101), in which the site of the plaintiff’s mill was destroyed by the backing up of water caused by the construction of a dam in the aid of navigation under State authority.

The court of Pennsylvania held that no compensation could be recovered because such injury was consequential, and there was no direct invasion of the plaintiff’s property by the works in question.

In approving this rule Chief Justice Puller said:

“Numerous subsequent cases sustain the rule thus laid down, which is, indeed, the general rule upon the-subject.”

This was in 1896.

In the Pumpelly Case before mentioned there is seemingly some conflict with this rule; but in that case the injury was near the works in question, was immediate, and was complete. And concerning that case Mr. Justice Strong said in the later case of Northern Transportation Company v. Chicago:

“The extremest qualification of the doctrine is to be found, perhaps, in Pwnpelly v. Green Bay' c& M. Canal Co. (13 Wall., 166),”

and this characterization of the Pumpelly Case was approved by Mr. Chief Justice Fuller.

Applying this test to the claimants’ case it is apparent that they are excluded from recovering compensation. The property right that they claim is invaded seems to be an inchoate *490right to prospective changes in the river which might prove beneficial to them after the lapse of some years. Just how beneficial they might prove they are unable to show.

It is evident that no such consequential or speculative injuries can come within the rule above laid down.

Other courts, however, have not applied the test indicated by these holdings, but have held that the true test is whether .the owner from whom the property is acquired would have been liable to an action in case he had employed his property as it was subsequently employed by the Government. In other words, that the Government acquires the exact right and title to the property that the person from whom it takes it had and acquires the right to use it in the same way; but if it uses it in a manner which would have subjected the former owner to a suit, then the Government will be liable. This seems to be the most sensible rule on the subject and is adopted by the New Hampshire court in Eaton v. Boston Oo. (51 N. H., 504) and Thompson v. Androscoggin Go. (54 N. H., 545).

In the latter case the court said that the test was whether the use to which the Government intended, to apply the property—

“would have been an exercise of his (the former owner's) right of property, which right has been taken from him by the public power of eminent domain, and being thus taken by the public and appropriated to its own use may be rightfully exercised by a duly authorized public agent.”.

If this is the test, and is applied to the claimants’ case, they still can not recover.

The owner of the land on Delta Point would have had an undoubted right, after the cut-off, to take such measures as were within his power to preserve his land from destruction, even though, in doing so, he would prevent conditions which might become more favorable to the owners below him. An owner always has the right to protect his own property'from destruction, and in acquiring the owner’s rights the United States had the same privileges.

It is admitted that if these revetments had not been built the result would have been a speedy destruction of the property at Delta Point, and a speedy destruction of the naviga*491tion rights of the city of Vicksburg. Consequently, if the private owner at Delta Point had himself constructed these revetments, he would not have been liable in an action in favor of the claimants.

Messrs. Dabney da McGithe for the claimants in reply:

Our view is that the questions of law arising on this record are narrowed down to one, and that a discussion of any others would be a work of supererogation. The Fifth Amendment to the Constitution of the United States provides, among other things, that private property shall not be taken for public use without just compensation. This provision, being a part of the fundamental law of the land, is to be liberally construed in favor of the citizen against the Government.

We have shown that the claimants’ property was necessarily and intentionally destroyed in order to preserve and protect the harbor of Vicksburg, and it seems clear to us that the only question of law arising in the case is whether or not the destruction of claimants’ property under such circumstances, amounts to a talamg, within the meaning of the Amendment just quoted. If its destruction under the circumstances named does not amount to a taking, then the claimants are without remedy and must bear the loss themselves; but if, on the other hand, such destruction does amount to a taking, then no amount of refinements and distinctions which may have been made by this or that court will be allowed to defeat their rights under this plain provision of the Constitution, which was designed and intended to protect the citizen against the Government.

What, then, is a taking, within the meaning of the Constitution ? On this point there are numerous decisions by the Supreme Courts of the different States, and also by the Supreme and Federal courts of the United States, and, as might be expected, there is some conflict in the opinions of these different courts; but the conflict is more apparent than real, as most of these cases can be reconciled by a proper reading and understanding of them. It is not our intention to undertake to review these cases. To do so could not result in any good. W e shall only refer to a few of the leading ones which bear directly upon the legal question involved.

*492A leading case on this subject is the Evansville ds Crawford R. R. Co. v. Dick (9 Ind.,-433). In that case the Supreme Court of Indiana said:

“A proper construction of the word ‘taken’ is synonymous with seised, inj%t,red, destroyed, deprived of.”

Decisions maintaining substantially the same construction of the word ‘ ‘ taken ” may be found in the reports of nearly all the States in the Union, and we find substantially the same construction of that word announced by the Supreme Court of the United States in the following cases, namely:

Pumpelly v. Green Bay <& Miss. Canal Company (13 Wall.. 166). In this ease the defendant, the Green Bay and Mississippi Canal Company, constructed, under authority of an act of the legislature of the Territory of Wisconsin, a dam across Fox River, the northern outlet of Lake Winnebago. The effect of this dam was to back the water over Pumpelij-’s land and hold it there, so that Pumpelly -was deprived of the use of the same. In that case the defendant was held liable under a provision of the constitution of Wisconsin, reading substantially as follows:,

“The property of no person shall be taken for public use without just compensation therefor.”

In a line with the Pumpielly Case (supra) are the following-cases in the United States Supreme Court:

Monongahela Navigation Company v. United States (148 U. S. R., 312), Railway ComjMny v. Renuncie (102 U. S. R., 180), Great Falls Mfg. Company x. United States (112 U. S. R., 646), Gilson v. United States (166 U. S. R., 272).

And the following decisions by the Supreme Court of the different States:

Eaton v. Boston C. dbM. R. R. Co. (51 N. II., 504), Thomp-sonv. Androsooggin River Imp. Co. (54 N. H., 545), Bottonts V. Brewer (54 Ala., 288), Martin ex.piarte (13 Ark., 198), Davis v. Sacramento (59 Cal., 596), IRll v. Ward (2 Gil (III.), 285), Trustees of Wabash cé Erie Canal v. Spears (16 Ind., 441), Hebron Gravel Road Co. v. Harvey (90 Ind., 192), Leex. Pembroke Pt'on Co. (57 Me., 481), Barrett v. Bangor (70 Me., 335), Estabrooks v. Peterborough c§ Shirely R. R. Co. (12 Cush., 224), Treat v. Bates (27 Mich., 390), Grand Rapids Boom Co. *493v. Jarvis (30 Mich., 308), Werner v. Mississippi té Rum River Boom Co. (23 Minn., 534; S. C., 30 Minn., 477), McKenzie v. Same (29 Minn., 288), Mississippi Central R. R. Co. v. Mason (51 Miss., 234), Silver CreeTc Nav. and Imp. Co. v. Mangum (64 Miss., 682), Barnes v. City of Hannibal (71 Mo., 449), Young v. City of Kansas (27 Mo., 101), Omaha da Rep. Yalley R. R. Co. v. Standen (22 Nebr., 343), Kastman v. Amoskeag Mfg. Co. (44 N. H., 143), Amoskeag Mfg. Co. v. Qoodale (46 N. H., 53),' Sinnickson v. Johnson 17 N. L., 129), Delaware, etc., Canal Co. v. Lee (22 N. J. L., 243), Trenton Water Power Co. v. Raff {36 N. J. L., 335), Crittenden v. Wilson (5 Cow., 165), Barclay R. R. db Coal Co. v. Ingham (36 Pa. S., 194), Willey v. Iluntet' (57 Vt., 479), Arimond v. Creen Bay <& Mississippi Canal Co., (31 Wis., 316).

These cases hold (although some of them go much farther) that where, in .the exercise of the power of eminent domain, private property is invaded by water, and destroyed, and the owner ousted of the possession, use, and occupation of the same, there has been a taking within the meaning, of the Constitution, and thej” are decisive of -this case. Here there was an invasion, a destruction, and a permanent ouster.

But counsel for the defendant denies the legal liability of the defendant on numerous grounds, which for convenience of answer we have arranged and numbered, the arrangement and numbering being ours. Summed up, they are substantially as follows:

(1) That the facts of this case do not show a taking within the meaning of the Fifth Amendment of the Constitution of the United States.

- (2) That in putting in the revetment the defendant was proceeding under the right given to it by Article I, section 8 of the Constitution of the United States, which grants the power to Congress to regulate commerce with foreign nations and among the several States, and not under its power to appropriate private property for public use, and was the exercise of a governmental power, and the wrong, if any was committed, is damnum absque vnjxiria.

(3) That the claimants’ lands abutting on the Mississippi River were subject to a servitude in favor of the public, whereby such portions thereof as were necessary for the *494purpose of improving the navigation of the Mississippi River could be taken without compensation.

(4) That the individual owner of Delta Point would have had the right to revet that Point, and would not have been responsible for any damage to claimants’ lands which may have resulted therefrom, and that the defendant might, for the same reason, revet that Point and not be liable.

1. In support of the first proposition set out above, counsel for the defendant cites numerous cases in which the defendant was held not to be liable, upon the ground that the facts of that particular case did not show a taking within the meaning of the Constitution. We admit that there is a line of cases holding, in substance, that where there has been no actual taking, no possessio pedis, and where the invasion is slight, the damages consequential, and no ouster of the claimants, there has been no taking within the meaning of the Constitution. The case of Northern Transportation Go. v. Chicago (99 U. S. R., 635) may be said to be a leading case holding to this view. Moreover, it may be said to be a very extreme case. But the same view, substantially, is held in the following other-cases:

South Carolina v. Georgia (93 U. S. R., 4); Wisconsin v. DuJ/uth (96 U. S. R., 379); Gibson v. United States (166 U. S. R., 272); Monongahela Navigation Go. v. Goons (60 Watts & S., 101). And these cases are relied upon very largely by the counsel for the defendant in support of his contention that claimants’ property has not been taken within the meaning of the Constitution.

But a slight examination of these cases by the court will show that they are by no means in point here. In none of these cases was there an invasion, or destruction of the property, or an ouster of the claimants, and in some of the decisions referred to, the denial of the liability of the defendant was put by the court on that precise ground. In fact, the principle that an invasion, destruction, and ouster amount to a taking within the meaning of the Constitution, runs through every one of the cases mentioned; and we have not been able to find a single case in which there was an invasion, destruction, and ouster, which was held not to be a taking, within the meaning of the Constitution.

*495Here, there was an invasion by water, an absolute destruction of tbe property, and a complete ouster of the claimants from the use, occupation, and possession of the property for which suit is brought, and the cases cited by counsel for defendant have no application.

2. To prove the second proposition set out above, counsel for the defendant argues at great length, and cites numerous decisions to prove that the defendant, the United States, has an easement in the Mississippi River, and that it had the right, as the owner of such easement, to revet Delta Point, under Article I, section 8, of the Constitution, which gives to Congress the power to regulate commerce with foreign nations and among the several States, and that in exercising that power, which is governmental in its nature, the defendant is never responsible for the consequences, though injury and damage may result to private property.

We admit that under repeated decisions of the Supreme Court of the United States, ending with the case of Genesee ' Chief v. FitsrSugh (12-How., 433), the United States has an easement in the Mississippi River, and that it has the right to improve the.river in the interest of navigation and commerce with foreign nations and among the several States; but we deny that, because defendant has this power and that the power is .governmental in its nature, it has the right, in the exercise of the same, to appropriate private property for public use without just compensation therefor, and on the contrary claim that the defendant can no more take private property, for public use without compensation, in the exercise of its governmental powers, than it can where it is not proceeding under those powers.

The power of eminent domain is an attribute of sovereignty, and belongs to the United States as a sovereignty, irrespective of the Fifth Amendment to the Constitution. It was not the purpose of that Amendment to give the power of eminent domain to the United States, because, as a Glovernment, it possessed that power before the Amendment was enacted. The purpose of the Amendment was simply to limit the Government in the exercise of that power, and to protect citizens against any encroachment by the Government upon their property. And it is a sufficient answer to counsel’s *496second proposition to say that the Amendment referred to does not make any exception whatever. Its plain language is that private, property shall not be taken for public use without just compensation; and it can make no difference, therefore, whether in the present case the United States was proceeding-under Article I, section 8, of the Constitution of the United States and its governmental powers, or under its power to appropriate private property to public use, the result must necessarily be the same.

Moreover, in several of the cases cited, where the defendant was held liable as for the appropriation of private property to public use, the defendant was proceeding under its governmental powers and not under its right to appropriate private property for public use. This point has, therefore, already been impliedly if not expressly determined against the defendant. In all the cases it is held that there must be a proper exercise of these governmental powers,- and where there has been an invasion and a destruction of the property, and an ouster of the owners, the defendant is held liable, notwithstanding the fact it may have been proceeding under its governmental powers. This doctrine is asserted and approved in the case of the Northern Transportation Company v. Chicago (99 U. S. B.., 635) and also in the case of Gibson v. United States {supra), although in both- of those cases judgment was given for the defendant. In the case of Ilaolcstach v. Keshena Imp. Co. (66 Wis., 439) it was held that the flooding of land in consequence of a duly authorized improvement of navigation is not damnum absque mjuria, as being properly incidental to the improvement of navigation. To the same effect are the cases decided by the Supreme Court of the United States, above referred to on this point. The flooding with water has always been held to be an invasion, and where the flooding is of a permanent character, it has always been held to amount to a destruction and ouster and, consequently, a taking. If the doctrine contended for by counsel for defendant be true, the defendant may destroy any property in the exercise of its governmental powers belonging to the citizen, and the citizen would be without redress. Such a doctrine is contrary to the spirit of our laws and usages, and in the face of the Fifth Amendment to the Constitution.

*4973. To prove the third proposition set out above, counsel for the defendant refers to the Civil Code of Louisiana, article 661, and certain decisions of the Supreme Court of the State of Louisiana, and the decision of the Supreme Court of the United States in the case of Jdldridge v. Trezevant (160 U. S. R.*, 152), which establish the doctrine existing in the State of Louisiana that lands abutting on the rivers and bayous in that State are subject to a servitude in favor of the public, whereby such portions thereof as are necessary for the purpose of making and repairing public levees, roads, etc., may be taken in pursuance of law without due or any compensation whatever.

The object of the servitude thus imposed by the laws of Louisiana upon the owner of lands abutting on the Mississippi River is mainly for levee purposes, and the consequent protection of the back lands of its citizens from the inundations of that river, and the servitude has no reference whatever to the public at large, outside of the citizens of that State, and it is not designed or intended for them or their benefit.

The claimants’ lands, if they were taken in this cause, were not taken for levee purposes, or for the benefit of the citizens of the State of Louisiana, nor to protect them in any way from the inundations of the Mississippi River; but thejr were taken for the purpose of preserving and protecting the harbor of Vicksburg, in the State of Mississippi, and the financial and commercial interests of its people — a purpose in which neither the State of Louisiana nor its citizens were interested.

While the State of Louisiana is willing to wrong its citizens to the extent of appropriating their property to public use for levee purposes and the protection of its other citizens, we hardly think that that State or its laws or its courts would justify anyone else in taking and destroying the property of a citizen of that State for the benefit of the people of some other State. The principles invoked and the authorities cited in support of them have no sort of application here, where the servitude claimed is foreign to the purpose for which it was created, and where the interests of the citizens of Louisiana, for whom it was created, are not to bo benefited, but the citizens of another and a different State are to reap all the benefits.

*4984. In support of the fourth proposition above set out, counsel for the defendant says that the individual owner of Delta Point would have had the right, after the cut-off, to have revetted Delta Point in order to protect that Point from destruction, and that he would not have been responsible for any damages which might have ensued to the claimants for the destruction of their lands, and that the United States had the same privileges. If we were to admit that the individual owner of Delta Point would have the right to revet that Point for the purpose of protecting his own interests, and that he would not be responsible to the claimants for the consequent destruction of their property, still it does not follow that the defendant had the same rights that he had. In the first place, Delta Point did not belong to the defendant. It did not acquire or undertake to acquire the title to Delta Point by purchase or by condemnation. Its occupation of that Point beyond the river bank was that of a trespasser, and it had no right whatever to so use property which did not belong to it as to injure or destroy the claimants’ lands.

Again, the purpose of the revetment was not to protect and preserve Delta Point from destruction, but to preserve and protect the harbor of Vicksburg. Its preservation, therefore, was onty a means to an end.