Franklin v. United States

• Decision Date: 31 August 1936
• Docket Number: No. 4247,4248.,4247
• Citation: 16 F. Supp. 253
• Parties: FRANKLIN v. UNITED STATES. GRAVES v. SAME.
• Court: U.S. District Court — Western District of Tennessee

16 F. Supp. 253

FRANKLIN v. UNITED STATES.

GRAVES v. SAME.

Nos. 4247, 4248.

District Court, W. D. Tennessee, W. D.

August 31, 1936.

Costen & Crabtree, of Memphis, Tenn., for plaintiffs.

R. G. Draper, Asst. U. S. Atty., of Memphis, Tenn., for the United States.

MARTIN, District Judge.

These cases are before the court on demurrers of the United States to the declarations filed by the plaintiffs. Each of the plaintiffs own undivided one-fourth interests in a certain piece of land containing eleven hundred acres and located on the east bank of the Mississippi river in Tipton county, Tenn. Plaintiffs allege that, for more than twenty-five years prior to the injury complained of, their land was rich, fertile, well-drained, highly cultivated and highly productive, and that its elevation was such that the waters of the Mississippi river did not hinder or prevent its full and complete use as farming property; and that each and every year valuable crops of cotton and other crops were produced upon said land. Plaintiffs aver that, because of its location, fertility, drainage and freedom from crop destruction by the flood waters of the Mississippi river, their said land, prior to the operations of the United States complained of, had a reasonable market value of more than $100 per acre.

The declaration avers that the Mississippi River Flood Control Act of Congress, enacted May 15, 1928, 45 Stat. 534, (33 U.S.C.A. §§ 702a to 702m) in section 702a, 33 U.S.C.A., provides, inter alia, for flood control of the Mississippi river in its alluvial valley, and for its improvement from the Head of Passes to Cape Girardeau, Mo. (in which area the land of plaintiffs was situated) in accordance with the engineering plan set forth and recommended in the report submitted by the Chief of Engineers to the Secretary of War, dated December 1, 1927, and printed in House Document 90. The sum of $325,000,000 was by said section of said act appropriated for the aforesaid purpose, and the unexpended balances of appropriations made by former laws for the flood control work and improvement on the Mississippi river were made available for expenditure.

It is pleaded in the declaration that section 702b, 33 U.S.C.A., asserts that the flood control contemplated by the act is a national concern, and is in the interest of national prosperity, the flow of interstate commerce, and the movement of United States mails; and it is alleged that the engineering plan adopted and approved by the act includes not only the construction of levees along the Mississippi river, but all work having for its purpose improvement of the navigation of said river, such as dredging and building of dykes. The declaration stresses section 702c, 33 U.S.C.A., section 3 of said act in respect to the following language contained therein: "No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place; Provided, however, That if in carrying out the purposes of sections 702a to 702m of this title it shall be found that upon any stretch of the banks of the Mississippi River it is impracticable to construct levees, either because such construction is not economically justified or because such construction would unreasonably restrict the flood channel, and lands in such stretch of the river are subjected to overflow and damage which are not now overflowed or damaged by reason of the construction of levees on the opposite banks of the river it shall be the duty of the Secretary of War and the Chief of Engineers to institute proceedings on behalf of the United States Government to acquire either the absolute ownership of the lands so subjected to overflow and damage or floodage rights over such lands."

The plaintiffs aver that, pursuant to and acting under authority of said Act of Congress, the United States of America, through its duly authorized agents and agencies, the Mississippi River Commission and United States Army Engineers, did in 1931, authorize and begin the construction of certain dykes in the Mississippi River, a short distance above and opposite the lands of the plaintiffs and upon the opposite or Arkansas side of the Mississippi river.

The declaration charges the liability of the United States of America to the plaintiffs, in haec verba:

"Said dykes are permanent and were constructed by the driving of two rows of piling, parallel and close together, bound together with steel cable and filled between with crushed rock, and the character of the dyke is such as to effect a complete and permanent obstruction of the flow of the water in the Mississippi River. They extend out into the river practically at right angles with and from the Arkansas or west bank of said river, and from 1300 to 4000 feet into the bed of the Mississippi River. They are so built as to extend above the surface of the water at any ordinary stage. A map is attached hereto showing the location of and the length of said dykes with relation to the bed of said river and the land of plaintiff, and is marked Exhibit `A' and made a part of this declaration.

"Prior to the construction of said dykes, the current of said river opposite the lands of plaintiff was, because of the course of the river above, opposite and below same, distinctly and permanently away from and not against the Tennessee bank where said lands lay, and would have remained so but for the acts herein complained of.

"The purpose of the construction of said dykes was to force the current of said river away from its natural course, almost at a right angle across the river, and against the bank on the Tennessee side where said lands lay. The purpose of changing the current of said river was to force the channel of commerce at said point upon the Tennessee side to improve navigation. The direct effect of the construction of said dykes was to change the current of the river, theretofore away from and not against said land, and to direct and force violent and destructive current directly against the said Tennessee bank where said lands lay, and as a result thereof, within one year after the completion of said dykes, all but a few acres of said land was entirely and permanently washed away, and the location where it formerly lay, became the bed and channel of commerce of the Mississippi River. The result of said acts of defendant, its servants and agents in the construction of said dykes, directing said current against and washing away plaintiff's said land, was an intentional direct invasion of and complete destruction of said property of plaintiff.

"It was impracticable and not economically justifiable to construct levees to protect said lands, and said land prior to the construction of said dykes, was not overflowed and damaged by reason of the construction of levees, on the opposite side of the river. The construction of said dykes raised the water and caused same to overflow, damage and destroy these lands.

"No compensation has been paid or provided to be paid to plaintiff or anyone else for the taking, appropriation and destruction of plaintiff's said lands, or an easement thereon by defendant for the aforesaid purposes, nor have any proceedings been instituted by the Secretary of War and the Chief of Engineers on behalf of the United States Government, whether pursuant to provisions of said section 702c of the Flood Control Act, or pursuant to provisions of any other Federal Statute or law, to acquire absolute ownership of said lands so subjected to invasion, damage and destruction, or floodage rights over such lands.

"Said dykes are permanent, have completely destroyed the lands of plaintiff and the improvement thereon, and have deprived plaintiff of any further use or profit from same. The destruction of said lands was a direct and proximate result of the construction of said dykes, was inevitable and that such result would occur was well known to defendant and its duly authorized agents and agencies at the time said dykes were constructed. This destruction would not have occurred but for the acts herein complained of.

"The construction of said dykes by defendant, through its duly authorized officers and agents, by authority of said Act of Congress, constituted and was a taking or appropriation of plaintiff's said lands or of an easement thereon for the aforesaid public uses and purposes within the scope and meaning of the Fifth Amendment to the Constitution of the United States which provides that private property shall not be taken for public use without just compensation, and by reason of the premises, plaintiff has a claim against defendant under an implied contract for the value of property so taken and appropriated by it for said public uses and purposes.

"The construction of said dykes has not resulted and will not result in any benefit to the aforesaid lands of plaintiff.

"The value of plaintiff's said lands at the time of the aforesaid appropriation and taking thereof by defendant was in the sum of $75,000.00, and the value thereof after said appropriation and taking was nothing, and by reason of the premises, plaintiff is entitled to just compensation from defendant, and defendant is indebted to him in the sum of $10,000.00, with interest thereon at the rate of 6% per annum from the date of such taking and appropriation."

The demurrers of the United States of America state four grounds: (1) That the respective plaintiffs are not entitled to recover in their separate actions, for the reason that each is the owner of only an undivided one-fourth interest in the certain piece of land alleged to have been damaged or destroyed, and that an action of this character must be instituted by or in behalf of the joint owners of the unit or piece of land alleged to have been damaged, and that the maximum amount of recovery is $10,000 for all claims of damage to said 1100-acre "piece of land"; (2) that defendant is not liable to plaintiffs because the...