Mills v. United States

• Decision Date: 17 July 1891
• Citation: 46 F. 738
• Parties: MILLS et al. v. UNITED STATES.
• Court: U.S. District Court — Southern District of Georgia

46 F. 738

MILLS et al. v. UNITED STATES.

United States District Court, S.D. Georgia.

July 17, 1891

Lawton & Cunningham, for plaintiffs.

Marion Erwin, U.S. Atty.

Before PARDEE and SPEER, JJ.

SPEER J.

The plaintiffs filed their petition under the provisions of the act of congress of March 3, 1887, (24 St.at Large, p. 505,) to recover from the United States compensation for injury to the value of their lands caused by the erection of works by the government, for the improvement of the navigation of the Savannah river. The petition avers that the plaintiffs owned rice plantations on Hutchinson's island, in the Savannah river, and on the main-land opposite. These lands have been prepared at large expense for the purpose of rice cultivation, and have their chief value because of that fact. It is essential to the cultivation of rice on such plantations that there shall be a system of canals both for flooding and draining the rice field. The lands in question were drained into the front river-- that is, the river proper-- prior to the acts on the part of the government complained of. The bottoms of the plaintiffs' ditches and the sills of the trunks and flood-gates were above low-water mark, their system of drainage was complete; and it is complained that the erection by the government of what is called the 'cross-tides dam,' running from the upper end of Hutchinson's island to the lower end of Argyle island, cuts off all the flow of water from the stream connecting front and back rivers, has raised both the high and low water levels in front river, and has not only destroyed the facilities for draining these lands into front river, but has rendered it necessary to raise the levees around the rice fields, to prevent flooding the fields at high water. This it is alleged, has unfitted the lands for rice culture, and makes it necessary that new drainage into back river be provided where the water levels are suitable. The expense of doing this will amount to $10,000, and plaintiffs insist that they are thus damaged to that extent. This cross-tides dam was erected by the United States as a part of a system of harbor improvements, with the full knowledge of the fact that the drainage of plaintiffs' land would be thus impaired and destroyed. The case of the plaintiffs depend upon the following proposition: (1) The action of the government officials in erecting the cross-tides dam amounts to a taking of their property for public use without just compensation. (2) The right of drainage into the river is appurtenant to the land, and has been taken in the same manner. (3) The government by taking this property entered into an implied contract for the compensation of complainants. (4) Their right to this compensation is a claim arising under the constitution of the United States; and (5) also under an act of congress, to-wit, the act authorizing harbor improvements.

The defendant demurred to the petition upon the grounds: (1) That the plaintiffs have not set forth a cause of action against the government. (2) In so far as it is set forth, it is an action ex delicto, and of actions against the government sounding in tort the court has no jurisdiction. There are other grounds, but the decision must depend, in our opinion upon the grounds stated.

The material clauses of the act of congress under which it is sought to maintain this suit confers jurisdiction on the court of claims to try--

'(1) All claims against the United States founded upon the constitution of the United States or any law of congress except for pensions, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, or for damages liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty, if the United States were suable: provided, however, that nothing in this section shall be construed as giving to either of the courts herein mentioned jurisdiction to hear and determine claims growing out of the late civil war, and commonly knows as 'war claims,' or to hear and determine other claims which have heretofore been rejected or reported adversely by any court, department, or commission authorized to hear and determine the same.

'(2) That the district courts of the United States shall have concurrent jurisdiction with the court of claims as to all matters names in the preceding section where the amount of claims does not exceed one thousand dollars; and the circuit court of the United States shall have such concurrent jurisdiction in all cases where the amount of such claim exceeds one thousand dollars, and does not exceed ten thousand dollars. All causes brought and tried under the provision of this act shall be tried by the court without a jury.' 24 St.at Large, p. 505.

It appears from these provisions of the statutes that the government has, with somewhat unusual magnanimity, opened the portals of its courts to a very large class of litigants having claims against it. It is equally observable that certain marked and distinct limitations, upon this enlargement of the jurisdiction of the courts, were defined. It will be obvious, also, that it was not the purpose of this legislation to create new causes of action, but merely to provide a convenient forum for the adjudication of certain specified controversies.

The first, and the more important inquiry presented by the demurrer is this: The jurisdiction being granted, do the facts set out in their entirety constitute a cause of action between plaintiffs and the government? The entire declaration, with the bill of particulars must be considered in order to determine this question; otherwise a very partial, and, indeed, imperfect, view of the claim may be formed, and the questions are of importance, in contemplation of the extensive and generous appropriations annually made by the national legislature for the improvement of navigation, and the great volume of litigation which may depend upon the decision of cognate questions. It is insisted by the plaintiffs that the action of the government constitutes a taking of their property without just compensation, in violation of the fifth amendment of the constitution, which provides: 'Nor shall private property be taken for public use without just compensation. ' Do the averments show a taking of private property for public use, in the meaning of this provision of the constitution? In the case of Transportation Co. v. Chicago, 99 U.S. 640, decision by Mr. Justice STRONG, for the court, a statement of the law fundamental to this inquiry will be found. In that case the action was to recover damages for injuries alleged to have been sustained by the plaintiffs in consequence of the action of the city authorities in constructing a tunnel or passage-way under La Salle street, and under Chicago river where it crosses that street. The plaintiffs were the lessees of a lot, bounded on the east by the street and on the south by the river, and the injury of which they complained was that, by the operations of the city, they were deprived of access to their premises both on the side of the river and of the street, during the prosecution of the work. It is true in that case it was not claimed that the obstruction was a permanent one, and it appeared, as in the case now before the court, that there were no averments that the works were unnecessary. They were indeed indispensable for the construction of the tunnel. Also, it was argued that the erection of the coffer-dam was not only a public nuisance, but, as in this case, caused special damage to the plaintiff, for which the right of action was maintainable. The argument was met by the following observations by the court:

'That cannot be a nuisance such as to give a common-law right of action which the law authorizes. * * * A legislature may, and often does, authorize, and even direct, acts to be done which are harmful to individuals, and which, without the authority, would be nuisances; but in such a case, if the statute be such as the legislature has power to pass, the acts are lawful, and are not nuisances, unless the power has been exceeded. In such grants of power a right to compensation for consequential injuries caused by the authorized erection may be given to those who suffer, but then the right is a creature of the statute,-- it has no existence without it.'

It was there insisted that, though the city had the legal right to construct the tunnel, and to do what was necessary for its construction, subject to the condition that in doing the work there should be no unnecessary interference with private property, yet it was liable to make compensation for the consequential damage to persons specially injured. To this proposition the court withheld its assent. The learned justice adds--

'That acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking, within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the state or its agents, or give him any right of action. This is supported by an immense weight of authority.'

'The extremest qualification of the doctrine,' continues Justice STRONG, 'is to be found, perhaps, in Pumpelly v. Green Bay Co., 13 Wall. 166, and in Eaton v Railroad Co., 51 N.H. 504. In those cases it was held that permanent flooding of private property may be regarded as a taking. In these cases there was a physical invasion of the real estate of the private owners, and a practical ouster of their...