Kincaid v. United States

• Decision Date: 13 December 1929
• Docket Number: No. 305.,305.
• Citation: 37 F.2d 602
• Parties: KINCAID v. UNITED STATES et al.
• Court: U.S. District Court — Western District of Louisiana

37 F.2d 602 (1929)

KINCAID v. UNITED STATES et al.

No. 305.

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

December 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 complainant.

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

DAWKINS, District Judge.

In the former opinion rendered in this case on the motion to dismiss, for the reason that the petition disclosed no cause or right of action, this court reviewed the allegations of the bill of complaint at length, 35 F.(2d) 235. The government was dismissed as an unnecessary party, but otherwise the motion was overruled, and the remaining defendants, the Secretary of War, Mississippi River Commission, Chief of Engineers, and subordinate officers thereafter answered, putting at issue the material allegations of the petition. The case has now been submitted upon its merits.

The record shows that complainant owns 160 acres of land within the Bœuf Basin, between the east guide levees contemplated by the adopted plan for flood control and the hills on the west bank of the Ouachita river. This property, together with the buildings and improvements thereon, is worth under normal conditions about $9,000, and, while the complainant does not reside on it personally, he cultivates about 120 acres thereof, with the assistance of his father and brother. There is attached to this opinion a copy of a map showing the proposed locations of the levee along the Bœuf Basin, from which it will be seen that the property involved lies about midway between the guide levees on the east and the hills on the west, which are from 10 to 12 miles apart. The west guide levee will end just below the city of Monroe, which is some 40 miles northwest of complainant's land, while the one on the east will extend a few miles south of his property. From the end of the east guide levee south to the vicinity of Bayou des Glaises, in Avoyelles parish, the area between the levees on the west bank of the Mississippi river and the hills west of the Ouachita river, except for the high ground of Sicily Island, will be left exposed to the waters of the Bœuf Basin, Bayou Mason, and Tensas river, as well as the backwaters of the Ouachita and Black rivers. There is a ridge or strip of high land, known as "Macon Ridge," which begins in Chicot county, Arkansas, and extends south into and through Louisiana, passing in the vicinity of the town of Delhi, to a point near Sicily Island, in Catahoula parish. This ridge separates the valleys of the Bœuf and Tensas rivers, which converge below the end of Macon Ridge and several miles south of the lower end of the east guide levee. The hills on the west bank of the Ouachita come up to the water's edge in the locality of Harrisonburg, La., and between this point and the south end of Macon Ridge is situated a circular shaped elevation of appreciable area, called Sicily Island, which impedes the outflow from the Bœuf Basin. The result is that, while this basin has an average width of about 15 miles, it spreads out toward the south end to probably 20 miles, but closes in at Sicily Island, with outlets on either side thereof which are only a few miles in width. This condition at present causes backwater to accumulate in the area immediately south of complainant's property, and will continue to do so after construction of the proposed guide levees. When the Mississippi reaches such a stage that the fuse-plug levee just below Arkansas City will break, under the plan, about one-third of the total volume of water passing that point at the time will be turned down the Bœuf floodway and into the area just described.

In a general way, the adopted project, commonly called the "Jadwin Plan," contemplates diverting from the Mississippi river in the vicinity of Cairo, Ill., sufficient water to insure that the main channel will carry the remainder safely to the mouth of the St. Francis river. The water so diverted will be carried through a by-pass or floodway to a point near Helena, Ark., where it will return through the mouth of the St. Francis and join that coming down the main river. From Helena south the levees on the west bank of the Mississippi will be maintained at sufficient height to hold all of this water to a point about 12 miles distant from a similar levee on the south bank of the Arkansas river. Through this gap the White river passes into the Mississippi about midway between the lower end of the levee on its west bank above mentioned and the mouth of the Arkansas. Lying between these levees to the north and west of the 12-mile gap will be located a pool or basin for backwater of some 1,200 square miles, into which will be poured all of the waters of the White and its watershed, as well as the overflow on the north bank of the Arkansas for a distance upstream to the locality of Pine Bluff. It is not contemplated that levees will be built along this stretch of the Arkansas river. When this basin of 1,200 square miles is filled, its outlet, together with all water coming down the White and Arkansas rivers, will be discharged through the 12-mile gap above described. This combined volume will be added to that in the main stream of the Mississippi, which, as previously shown, will consist both of its own waters brought down from Cairo and the quantity which will have returned from the St. Francis Basin at Helena. Then for a few miles the Mississippi, which will have a width between the levees on either side of approximately 4 miles, will carry it all until it reaches the fuse plug levee below Arkansas City.

The expression "fuse plug" was coined, no doubt, because of the fact that, in operation, this stretch of levee will break, or be washed out, when the river reaches a predetermined height of 60½ feet, in similar fashion to what happens when a current of electricity attains a designed voltage sufficient to blow out the fuse in electrical machinery. It simply means that the levees above and below this stretch of about 20 miles will be strengthened and raised approximately 3 feet higher than the fuse plug, and when the water in the Mississippi reaches 60½ feet it will begin to flow over. It is contemplated that this will cause a crevasse through the fuse-plug levee, which will gradually widen to include the whole of 20 miles, if the condition of the Mississippi requires. The former Chief of Engineers and author of the project, stated in his examination before the flood control committee of the House of Representatives that the soil of this piece of levee would be softened with sand or otherwise, to be sure that it would break without undue danger to those above and below, although the government's chief hydraulic expert, in his testimony in this case, stated that he did not so understand the purpose.

With a flood at the maximum contemplated by the plan, the quantity of water passing down the Bœuf Basin, it is estimated, will be between 900,000 and 1,250,000 second feet, with the result that complainant's property, as well as all other lands therein, will be submerged. The depth, of course, will vary according to the conditions and stages of water in the Mississippi, the Tensas, Black, and Ouachita rivers at the time, but may reach a maximum of approximately 16.4 feet on the plaintiff's land. In the opinion of some of the engineers, the velocity will not be very great, but will be sufficient to destroy the buildings and improvements in the floodway which are not anchored to the ground. The duration of the water upon these lands will also depend upon conditions prevailing in the lower Mississippi Valley, including the Ouachita, Black, Red, and Atchafalaya rivers, but will probably be from 30 to 60 days. The high waters of the Mississippi and its tributaries usually come in the spring of the year, and the question of whether the lands in this floodway may be cultivated after the waters have passed off will depend upon the time at which the break occurs, as well as the conditions just mentioned. If it should be in the late spring, say about the 1st of May, and the waters should remain for 60 days, it would be somewhere between the 1st and middle of July before the plaintiff and others similarly situated could begin cultivation. By the time their improvements sufficient to enable them to plant were restored, it would be too late in the season to raise anything, except late corn and forage crops, for the staple crop of cotton could not be planted with any reasonable hope of success. It is true that plaintiff and others as far from the fuse-plug levee would have time to move their live stock, household furniture, and farming implements out of the path of the flood; but, of course, the opportunity for fleeing to high ground would diminish in exact proportion to the nearness of the land to the point of the levee's breaking. It is well known that in a large part of the area between the guide levees of the Bœuf Basin, as well as below where the levees end to the Bayou des Glaises section, live stock is allowed to range in the woods and swamps to such extent as would require several days to herd and drive them to safety.

Contrasted with these conditions, with which plaintiff and others within the floodway will have to deal, those fortunate enough to own property behind the levees will be fully protected, including their improvements, live stock, etc., and can pursue their farming and other activities in perfect safety. Those within the floodway will live under a constant menace, for no one can tell in what years meteorlogical conditions will require the use of their lands for the purpose intended by the plan; i. e., a floodway. The government engineers estimate that this will probably...