City of Memphis, Tenn., v. Board of Directors of St. Francis Levee Dist.

• Decision Date: 06 March 1916
• Docket Number: 5757.
• Citation: 231 F. 217
• Parties: CITY OF MEMPHIS, TENN., v. BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DIST. et al.
• Court: U.S. District Court — Eastern District of Arkansas

231 F. 217

CITY OF MEMPHIS, TENN., v. BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DIST. et al.

No. 5757.

United States District Court, E.D. Arkansas, Western Division.

March 6, 1916

The plaintiff, a municipal corporation of the state of Tennessee lying on the east bank of the Mississippi river, brings this suit against the defendants, the board of directors of the St. Francis levee district, the Kansas City & Memphis Railway & Bridge Company, the St. Louis, Iron Mountain & Southern Railway Company, and the St. Louis & San Francisco Railroad Company, to recover $2,000,000 damages, alleged to have been sustained by it by reason of the destruction and injury caused to its waterworks plant, sewer system, streets bridges, and other property, by the building of levees embankments, and dikes on the Arkansas side of the Mississippi river, which is the boundary line between the states of Tennessee and Arkansas.

The material allegations in the complaint, after setting out the ownership of the property by the plaintiff, are that the alluvial valley of the Mississippi river extends from Cape Girardeau, in the state of Missouri, on both banks of the Mississippi river, to the Gulf of Mexico, varying in width from 4 to 40 miles above the mouth of the Red river, and to a much greater width below; that it is topographically divided into six large basins, of which four are on the west bank and two on the east bank, and into smaller basins; that from time immemorial the waters of the Mississippi river, during the annual high-water stage, were not confined within the low-water bank of the said river, but found outlets below Cairo, Ill., into the St. Francis river, and below the highlands near Helena, Ark., into the White River, Yazoo Tensas, Atchafalaya, and Pontchartrain basins, and through the rivers draining these basins, and these basins, in their natural condition, would disburden the Mississippi river and store temporarily the annual freshets or high waters of said river; that prior to the construction of levees and the building of dikes and embankments, and the closing of the natural basin of the St. Francis river, by the defendants the city of Memphis, and all parts thereof, was from 3 to 15 feet above the highest natural flood heights of the Mississippi river, and was not subject to overflow from the annual floods thereof, and the use and maintenance or operation of its water and sewer systems, or of the streets, pikes, highways, bridges, and bridge approaches, were not interfered with thereby; that between the years 1893 and 1899 the defendants the directors of the St. Francis levee district, jointly and in association and co-operation with various other levee districts, for the purpose of reclaiming the lands in the St. Francis river basin, and increasing their value, constructed a continuous line of levees from Point Pleasant, Mo., at the head of the St. Francis Basin, extending along the west bank of the Mississippi river, to a point about 28 miles north of the city of Memphis; that between the years 1899 and 1903 the levee district extended the said line of levees along the west bank of the Mississippi river to a point about 25 miles south of the city of Memphis, and since the year 1903 the said line of levees has been further extended along the west bank of the river to a point within a few miles of Helena, Ark.; that, since the beginning of the said continuous line of levees, the levee district has enlarged and increased the height of the said line of levees, until it has now reached a grade equal to 50 feet in height on the gauge of the Mississippi river opposite the plaintiff; that it has enlarged the said levees and increased the height thereof annually, so that when there is now a high-water stage of the Mississippi river the flood waters of the Mississippi river are shut out from the St. Francis River Basin, into which they naturally flowed, and are confined by the said levee line within a narrower high-water channel than heretofore.

The complaint then proceeds to charge that the other defendants, the railroads and bridge company, about the year 1891, constructed a series of embankments, or dikes, outside of the line of levees and extending from the western approach of the bridge over the Mississippi river to Memphis, owned and maintained by the bridge company, to, or nearly to, the line of levees built by the levee district, and have annually since then increased and enlarged same and added to the height thereof, the said dikes and embankments now extending more than 4 miles in a northwesterly direction from the banks of the Mississippi river, opposite the southern portion of the city of Memphis; that at the time of the construction of the line of continuous levees from Point Pleasant, Mo., to the point 28 miles above Memphis, and at the time of the continuation and extension of the said line of levees, to its present length, and at the time of the construction of the dikes and embankments by the railroad companies, the effect upon the natural and ordinary flood heights of the Mississippi river was not apparent, and could not be ascertained, nor could the injuries which resulted therefrom, and from the enlargements and increases in the heights be foreseen; that the dikes, embankments, and levees so constructed, enlarged, and increased in height by the defendants, obstructed and interfered with the natural flow of the waters of the Mississippi river in their natural high-water course, and caused the same to back up and acquire a height which would not be attained but for the obstruction of said waters by the dikes, embankments, and levees; that, when there is now a high-water stage of the river, the said waters, so held back, attain an unnatural elevation of more than 11 feet, and by reason thereof they were, during each of the years 1903, 1904, 1906, 1907, 1908, and 1909, backed upon and over a part of the northern section of the plaintiff, where are located the pumping plants of the water and sewerage systems of the plaintiff, and also over the streets, pikes, highways, bridges, and approaches thereto, in said northern section of the city of Memphis; that said dikes and embankments, and line of levees, are not of a permanent character, but they require constant care and attention, and prior to the year 1910 they were washed away and broken annually, at many times and places, by the high waters of the Mississippi river; that since the year 1910 the enlargements and increases in height have been such that the number of breaks therein have been lessened, and the said dikes and embankments and levees have become more effective in backing up and confining the said high waters of the Mississippi river, and since the year 1910 the increase in the elevation of said high waters, over the northern section of the plaintiff, has been more than 5 feet greater than in any previous height of said river; that between the years 1903 and 1909 these high waters backed upon and over the city of Memphis, and injured and interfered with the parts of said water and sewerage systems, and the streets and bridges, doing material injury thereto, the damages during these years amounting to large sums of money.

In the bill of particulars, filed by the plaintiff, no damages are set out as having been sustained prior to the year 1909.

The complaint further alleges that since the year 1909 the high waters of the river, so held back and confined by the actions of the defendants, have washed away and broken and totally destroyed parts of the pumping plants of the water and sewerage systems of the plaintiff, and parts of its streets, pikes, highways, bridges, and approaches thereto; that the value of the real and personal property so totally destroyed within the last six years, by reason of these acts, exceeds $250,000, as set out in the bill of particulars for the different years; that, in addition to this damage, the plaintiff was required to expend large sums of money, amounting to $1,488,066.88, as enumerated in the bill of particulars, all of which expenditures were necessary to prevent further and repeated injury to the property of the plaintiff; that all of these injuries were the direct and proximate result of the unnatural backing up and confinement and obstruction of the waters of the river, by the dikes, embankments, and levees, so constructed and enlarged, and increased in height, by the said defendants.

It is further alleged that, by the Constitution of the state of Tennessee, no property can...