Cubbins v. Mississippi River Commission

• Decision Date: 09 April 1913
• Docket Number: 317.
• Citation: 204 F. 299
• Parties: CUBBINS v. MISSISSIPPI RIVER COMMISSION et al.
• Court: U.S. District Court — Eastern District of Arkansas

204 F. 299

CUBBINS v. MISSISSIPPI RIVER COMMISSION et al.

No. 317.

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

April 9, 1913

The complainant seeks by this bill to enjoin the Mississippi River Commission, created by an act of Congress, and also the commissioners of all the levee boards in the states of Missouri, Arkansas, Tennessee, Mississippi, and Louisiana from maintaining and repairing, as will be more fully set out hereafter, the levees along the banks on both sides of the Mississippi river which have been constructed by the different levee districts of these states, aided by the Mississippi River Commission under acts of Congress.

The bill alleges that the plaintiff is the owner of certain property situated in the county of Shelby, state of Tennessee, exceeding in value the sum of $3,000; that the alluvial valley of the Mississippi river extends from Cape Girardeau in the state of Missouri on both banks to the Gulf of Mexico, varying in width from 4 to 40 miles; that from time immemorial the waters of the Mississippi river during the high stages thereof, when not contained within the low water banks of the river, found outlet below Cairo, Ill into the St. Francis river basin in the state of Arkansas into the White river, Yazoo, Tensas, Atchafalaya, and Pontchartrain basins, and through the rivers draining these basins eventually into the Gulf of Mexico; that prior to the construction of the levees and the closing of the natural basins by the defendants the lands of the plaintiff were from 3 to 10 feet above the highest flood water of the Mississippi river, and the flood waters of that river did not overflow his lands nor interfere with the use and occupancy thereof, and that the outlets and drains provided by nature through the basins aforementioned were sufficient to carry off the waters, and prevent plaintiff's lands from being injured by overflow; that in about the year 1883 the officers and agents of the United States adopted the Eads plan for the improvement of the navigation of the Mississippi river, and the defendant, the Mississippi River Commission, acting in association with the other levee boards made defendants in this bill, and contractors, constructed, maintained, enlarged, and repaired, and are now engaged in the same work, levees on both sides of said river from Cairo, Ill., to near the head of the passes to the Gulf, a distance of 1,050 miles; that since 1883 this work has been under the direct supervision and control of the Mississippi River Commission; that the lines of levees so constructed, maintained, enlarged, and repaired have been joined by the defendants into a continuous line as contemplated by the Eads plan, so that the Mississippi river is now practically leveed on both sides; that the result of these acts has been that the flood waters of the Mississippi river are confined within and between said levee lines and the hills on the eastern bank, where there are no levees, and encompassed within a narrower high-water channel than heretofore; that by reason thereof the said waters have acquired an increased velocity and higher elevation of more than 6 feet, and that such velocity and elevation are being further increased, and the current is becoming stronger and more forceful; that in June, 1910, the grade established for levees by the Mississippi River Commission and used by the defendants was from 2 to 5 feet higher than the highest known water; that since that time the grade has been changed and increased to 3 to 5 feet above the highest known water, and the levees enlarged accordingly; that even such increased grade has proved to be insufficient to retain the flood waters of the Mississippi river for the purposes of the defendants, and that in the year 1912 the said waters flowed over the said lines of levees, and broke through the same in various and numerous places; that the defendants are now engaged in closing the gaps and breaks in said lines of levee and repairing the levee system as a whole, raising the grade thereof, and contemplate further increases in such grade and further enlargement of the said levees, and for these purposes have obtained large appropriations from the Congress of the United States; that the effect of closing by the defendants the natural outlets along said river and confining the flood waters between the levee system as a whole is to obstruct the natural high water flow of the waters of said river in and along its natural bed for the entire length, thereby raising the level of the water to such an extent that said flood waters within the last five years have attained a sufficient height to flow over plaintiff's land, and when there is as now a high-water stage in said river the waters thereof overflow and remain standing upon and over his lands to a depth of from 4 to 8 feet, so that he is now being interrupted in the profitable use, occupancy, and employment of said land; that as a result thereof, said water being held back by said levees at a higher elevation as aforesaid, his land is being covered with superinduced additions of sand, silt, and gravel from 6 inches to 3 feet in depth, and the houses and fences thereon being washed away, rendering the land and the houses thereon unfit for occupancy, causing the practical destruction thereof, and destroying its market value; that the defendants state and local levee boards are insolvent; that no proceeding for the condemnation of the said lands has ever been instituted by either of the defendants, and that no provision has been made by any act of Congress or any of the states, under which the local levee boards are organized, to pay for or give compensation for his said lands now being so damaged, injured, taken, and destroyed; that complainant has no adequate remedy in a court of law against any of the defendants; that, even if he had the right to sue any or all of the defendants in a court of law for the recovery of damages sustained by him, the injury is a continuing one, and will be repeated annually whenever the Mississippi river reaches its high-water stage, and any attempt to recover damages in a court of law would involve complainant in an interminable multiplicity of suits; that the plaintiff realizes fully the great worth and public utility of the levees and the objects for which the same are projected, as well as the great benefit to the people as a whole to be derived from the accomplishment and the successful achievement of such purposes, but he says that under the circumstances set forth in the bill it is not equitable nor just to him, nor to the numerous other persons whose lands are similarly situated, to inflict these tremendous hardships on them in the prosecution of such work; that by reason of these acts he has been deprived of his property without just compensation, in violation of the provisions of the Constitution of the United States.

The prayer of the bill is that an injunction be granted enjoining and restraining all of the defendants, their officers, agents, and contractors, from constructing, maintaining, or repairing any levee or levees along the said Mississippi river.

The only defendants who were served with process and who have entered their appearance are the St. Francis Levee District and the Cotton Belt Levee District Commissioners, who have filed a motion to dismiss upon the ground that the bill fails to state facts sufficient to entitle plaintiff to the relief prayed.

Barnette E. Moses, of Memphis, Tenn., for complainant.

T. A. Turner, of Jonesboro, Ark., and H. F. Roleson, of Marianna, Ark., for St. Francis Levee Dist.

Moore, Vineyard & Satterfield, of Helena, Ark., for Cotton Belt Levee Dist.

TRIEBER District Judge (after stating the facts as above).

The right of the states bordering on the Mississippi river and its tributaries to construct and maintain levees along the banks of said river has been exercised from time immemorial and until the filing of this bill has never been questioned in the courts. All the territory embraced in the bill lying on the western bank of the Mississippi river was a part of the Louisiana Territory acquired by the United States from France, and under the laws of France, as well as Spain, the former owners of that territory, in force prior to and at the time of the purchase by the United States, the lands in that territory abutting on the rivers and bayous were subject to a servitude in favor of the public whereby such portions thereof as were necessary for the purpose of making and repairing public levees could be taken without compensation to the owners. The state of Louisiana by statute asserted this right ever since the purchase by this government, and the validity of this claim was expressly sustained by the Supreme Court in Eldridge v. Trezevant, 160 U.S. 452, 463, 16 Sup.Ct. 345, 40 L.Ed. 490. Whether such servitude exists in the other states acquired by the Louisiana purchase it is unnecessary to determine in this case, as it never has been the policy of those states to claim or exercise it. Board of Levee Inspectors v. Crittenden, 94 F. 613, 36 C.C.A. 418, where this claim was set up in behalf of a levee district created by the state of Arkansas. In Hagar v. Reclamation District, 111 U.S. 701, 705, 4 Sup.Ct. 663, 665 (28 L.Ed. 569), the Supreme Court speaking on that subject, said: 'In some states the reclamation is made by building levees on the banks of the streams which are subject to overflow; in other states by ditches to carry off the surplus water. Levees or embankments are necessary to protect lands on the lower Mississippi against annual inundations. The expense of such work may be charged against parties specially benefited, and may be a lien upon the property. All that is required in such...