Kincaid v. United States

• Citation: 35 F.2d 235
• Decision Date: 13 August 1929
• Docket Number: No. 355.,355.
• Parties: KINCAID v. UNITED STATES.
• Court: U.S. District Court — Western District of Louisiana

35 F.2d 235 (1929)

KINCAID v. UNITED STATES.^*

No. 355.

District Court, W. D. Louisiana, Monroe Division.

August 13, 1929.

Wm. C. Dufour, John St. Paul, Jr., and T. J. Freeman, all of New Orleans, La., Harry H. Russell, of Monroe, La., C. J. Ellis, of Rayville, La., and Streett & Burnside, of Lake Village, Ark., for plaintiff.

Philip H. Mecom, U. S. Atty., of Shreveport, La., J. D. Modisette, Sp. Asst. U. S. Atty., of Jennings, La., and John C. Dyott, Sp. Asst. U. S. Atty., of St. Louis, Mo.

DAWKINS, District Judge.

This is a suit in equity against the United States, the Secretary of War, Chief of Engineers, the Mississippi River Commission, and its individual members, and the district engineer in charge of work in this district, to enjoin the construction of certain levees and other works contemplated by the Act of Congress approved May 15, 1928, 70th Congress, Pub. No. 391, commonly known as the Flood Control Act (33 USCA §§ 702a-702m, 704).

The plaintiff alleges that he is the owner in fee simple of 160 acres of land, with improvements thereon of the value of $9,000, situated between the levees to be constructed on either side of the Bœuf river basin and within the channel through which a portion of the waters from the main stream of the Mississippi river will be diverted at flood stage by what is called a "fuse plug" outlet, located just below Arkansas City, in the state of Arkansas; that the purpose is to use this basin as a diversion channel to lower the level of water in the Mississippi river and to carry it into Red river at or near the head of the Atchafalaya; that the effect will be to relieve the pressure on the main levees and to protect property on both sides of the Mississippi from Cape Girardeau, Mo., to the Passes, as a part of the adopted project to control flood waters in the Mississippi valley, and that it is not intended in any way for the benefit of the property within said floodway or diversion channel, but on the contrary, the same will be destroyed and rendered valueless. The plaintiff further alleges as follows:

"The water that will flow into the Bœuf floodway or diversion channel will all be diverted from the main channel of the Mississippi river. The main levee of the Mississippi river at this point will be retained, but will be raised above and below so that, at this point, it will be lower than the levee above and below, and will constitute what Major General Jadwin terms in his report as a fuse-plug levee. The purpose of leaving this levee lower, or creating a fuse-plug levee, is solely for the purpose of having the water break over same at flood tide and flood this diversion channel or floodway. In other words, it is an uncontrolled spillway. Guide levees are to be constructed on each side of this basin. The width of the basin between the guide levees will be from approximately eight to eighteen miles wide, extending from Cypress creek to the Red river. The construction of these guide levees will have the effect of making a floodway or pocket for the flow of water intentionally diverted from the Mississippi river through this diversion channel, and this diverted water will have the effect of destroying the value of all property situated within the flood area. The project adopted by Congress in the Flood Control Act of May 15, 1928, specifically set apart this diversion channel or floodway as a part of the project, and, as stated above, the said agents of the government are now proceeding to construct the guide levees, so as to inclose this diversion channel and specifically define its boundaries and is designedly making this channel a floodway or diversion channel. The government, through its agents, the Secretary of War, Major General Jadwin, and the Mississippi River Commission, has publicly announced, and it is a notorious fact, that the property in this diversion channel is to be used as a floodway, and the Secretary of War, acting through Major General Jadwin, Chief Engineer, is, at this time, advertising for and receiving bids for the construction of the guide levees to enclose this channel which will have the effect of fixing the bounds of this diversion channel and floodway, and at floodwater it is intended by the use of what the government designates as fuse plugs or low places in the main levee, to flood this entire channel so fixed and designated by them as such, the lands and properties located between the guide levees and the main levee to be the floor of the floodway or diversion channel."

He also alleges that his said land is at this time in a high state of cultivation, and has thereon his residence and other valuable buildings; that it now lies back of the Mississippi river levees, and is protected at all times from the waters of that river, "if the levees hold"; that if the proposed plan is carried out it is purposely intended that his property, with that of others, will form the bed of said diversion channel and serve as a storage basin for waters of the Mississippi, making it wholly unfit for farming, for which it is solely valuable; that this will in effect be the taking of petitioner's property by the government without due process of law and without just compensation, contrary to the Fourteenth and Fifth Amendments to the Federal Constitution; and that defendants are now advertising for bids for the construction of said guide levees, and unless restrained bids will be received and contracts let therefor in due course.

It is also further alleged as follows:

"That the acts of the defendants in setting apart this property as a floodway and diversion channel and in advertising for and receiving bids for the doing of the proposed work, to wit, the construction of the guide levees and the contemplated acts of the defendants in the awarding of contracts therefor, has already had the effect of casting a cloud upon the title of complainant to his said lands and properties and have materially affected his use and enjoyment of same, and have materially affected and impaired the value thereof. That, the result of setting apart this area as a floodway or diversion channel and the publication by defendants of said advertisements for bids for the construction of the guide levees, this property has not only deteriorated in value, but complainant's title to same has been seriously clouded, his use of same has been seriously affected, and complainant would be unable to borrow money on said lands, sell or dispose of same, or interest persons in operating said lands for farms or for any other purpose, owing to the fact that the Government has indicated that it has taken possession or intends to take immediate possession of this property for a diversion channel or a floodway. That, as a result of making this area, in which complainant's lands and those of others are situated, a floodway or diversion channel, these lands will be rendered unfit for agricultural or any other purpose. That the title to complainant's lands is seriously clouded by said acts, and his ability to use said properties or obtain credit thereon is seriously affected, and, as stated above, this property is well worth the sum of $9,000.

"Complainant would further state: That although the Flood Control Act of May 15, 1928, § 4 33 USCA § 702d above recited, and the Constitution of the United States, Fifth Amendment, which provides: `* * * Nor shall any person * * * be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation' — require the United States government to justly compensate complainant for his property taken, damaged, or destroyed, the defendants herein are not complying in any way either with the constitutional provision or with the provision of section 4 of the Flood Control Act. Without having obtained complainant's property, without having commenced any condemnation proceeding, they are proceeding to take over property in this area, inclose same with levees, and designedly overflow same during floodwater. That no condemnation proceeding has been commenced against complainant for this property, no compensation has been paid him or offered him, but the said agents of the United States government are seeking to award contracts for the immediate construction of the guide levees and to make a diversion or floodway channel in this area. That the damage to this complainant will be irreparable. That it is a well-known fact that any suit against the United States to recover money for damages or property is subject to interminable delays and is very expensive.

"Complainant would further state that if said contracts for the guide levees are awarded before complainant has been compensated for his property or secured in the payment of compensation for same, the contracts would involve such large sums that complainant would be unable to give bond sufficient to enjoin same and thus protect his property from confiscation by reason of the proposed unlawful acts of the defendants. That complainant has no remedy at law and if said contracts are awarded he will immediately suffer irreparable injury and loss. Complainant would further state that under section 4 of the Flood Control Act of May 15, 1928, it is provided that the Secretary of War may cause proceedings to be instituted for the acquirement by condemnation of any lands, easements, or rights of way which, in the opinion of the Secretary of War and the Chief of Engineers, are needed in carrying out this project. The Secretary of War and the Chief of Engineers have already agreed and notoriously announced that property in the Bœuf floodway or area is necessary to carry out the project. The said section 4 provides that `when the owner of any land, easement, or right of way shall fix a price for the same which, in the opinion of the Secretary of War is reasonable, he may purchase the same at such price.' Complainant has never fixed a price upon his land, nor...