Sponenbarger v. United States

• Decision Date: 27 February 1939
• Docket Number: No. 11090.,11090.
• Citation: 101 F.2d 506
• Parties: SPONENBARGER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

101 F.2d 506 (1939)

SPONENBARGER et al. v. UNITED STATES.

No. 11090.

Circuit Court of Appeals, Eighth Circuit.

February 8, 1939.

Rehearing Denied February 27, 1939.

Lamar Williamson, of Monticello, Ark. (E. E. Hopson, of McGehee, Ark., and Williamson & Williamson, of Monticello, Ark., on the brief), for appellant Mrs. Julia Caroline Sponenbarger.

Fred Armstrong, of St. Louis, Mo. (Thompson, Mitchell, Thompson & Young, Henry Davis, and Bryan, Williams, Cave & McPheeters, all of St. Louis, Mo., on the brief), for appellant Mercantile-Commerce Bank & Trust Co., et al.

Fred A. Isgrig, U. S. Atty., of Little Rock, Ark. (John C. Dyott and John S. Gatewood, Sp. Assts. to Atty. Gen., on the brief), for the United States.

Before STONE, WOODROUGH, and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

Appellant Sponenbarger owns forty acres of land in Desha County, Arkansas. August 11, 1934, she filed action in the District Court of the United States for the Eastern District of Arkansas, under the Tucker Act (28 U.S.C.A. § 41(20) for compensation for the alleged taking of her said property, claiming that its fair market value was reduced as a result of the establishment of Boeuf Floodway, which includes the land in question, under authority of the Mississippi River Flood Control Act of May 15, 1928 (33 U.S.C.A. § 702a et seq.). The destructive flood of 1927 aroused the Congress into recognition of the fact that flood control of the Mississippi River is a national problem and a national responsibility. Accordingly, December 1, 1927, the Chief of Engineers, Major General Edgar Jadwin, submitted a report to the Secretary of War embodying a project for the flood control of the Mississippi River. This report was printed as House Document Number 90, Seventieth Congress, First Session. The project submitted was commonly called the "Jadwin Plan" in honor of its author. May 15, 1928, Congress enacted a Flood Control measure (45 Stat. 534 et seq.) based upon this report of General Jadwin. Such parts of this Act as are deemed essential or material to the issues here under consideration are:

From Sec. 1. "That the project for the flood control of the Mississippi River in its alluvial valley and for its improvement from the Head of Passes to Cape Girardeau, Missouri, 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 Numbered 90, Seventieth Congress, first session, is hereby adopted and authorized to be prosecuted under the direction of the Secretary of War and the supervision of the Chief of Engineers: Provided, That a board to consist of the Chief of Engineers, the president of the Mississippi River Commission, and a civil engineer chosen from civil life to be appointed by the President, by and with the advice and consent of the Senate, * * * is hereby created; and such board is authorized and directed to consider the engineering differences between the adopted project and the plans recommended by the Mississippi River Commission in its special report dated November 28, 1927, and after such study and such further surveys as may be necessary, to recommend to the President such action as it may deem necessary to be taken in respect to such engineering differences and the decision of the President upon all recommendations or questions submitted to him by such board shall be followed in carrying out the project herein adopted. The board shall not have any power or authority in respect to such project except as hereinabove provided."

From Sec. 2. "In view of the great expenditure estimated as approximately $292,000,000, heretofore prior to May 15, 1928, made by the local interests in the alluvial valley of the Mississippi River for protection against the floods of that river; in view of the extent of national concern in the control of these floods in the interests of national prosperity, the flow of interstate commerce, and the movement of the United States mails; and, in view of the gigantic scale of the project, involving flood waters of a volume and flowing from a drainage area largely outside the States most affected, and far exceeding those of any other river in the United States, no local contribution to the project herein adopted is required."

From Sec. 3. "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 this Act 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."

From Sec. 4. "The United States shall provide flowage rights for additional destructive flood waters that will pass by reason of diversions from the main channel of the Mississippi River: Provided, That in all cases where the execution of the flood-control plan herein adopted results in benefits to property such benefits shall be taken into consideration by way of reducing the amount of compensation to be paid. 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."

From Sec. 9. "The provisions of sections 13, 14, 16, and 17 of the River and Harbor Act of March 3, 1899 sections 407, 408, 411, 412 and 413 of this title are hereby made applicable to all lands, waters, easements, and other property and rights acquired or constructed under the provisions of this Act sections 702a to 702m of this title."

May 27, 1929, the Secretary of War submitted to Attorney General Mitchell an inquiry "whether the project in House Document, 70th Congress, 1st Session, is the legal project to be executed in accordance with law, and whether this project is already fixed and not subject to review by this administration". The Attorney General pointing out that only "engineering differences" were to be inquired into by the special board, created by the Act, "all other differences between the plans, if any, having been definitely resolved by Congress in favor of the plan of December 1, 1927", and that "questions such as the obligation to provide flowage rights, or to make compensation in connection therewith, do not fall within the term `engineering differences'", advised the Secretary of War that "the project set forth in House Document No. 90, 70th Congress, 1st Session, is the legal project to be executed in accordance with the law". Opinions of Attorneys General, vol. 36, p. 80.

The district court, having made findings of fact submitted by the defendant United States, held generally that "it cannot be successfully contended that plaintiff's land has been appropriated by the defendant, thereby giving rise to an implied contract to compensate the owner." 21 F.Supp. 37. Accordingly, judgment was awarded defendant, appellee herein.

As stated by the trial court, the Jadwin Plan, adopted by the Flood Control Act of May 15, 1928, embodied an extensive flood control program in the Mississippi Valley from Cape Girardeau, Missouri, to the Head of the Passes in Louisiana.

"That portion of the plan of immediate concern in this case deals with the suggested treatment of the Mississippi River from the White and Arkansas Rivers on the north, to the Red River on the south, usually referred to as the `Middle Section'."

The court in its opinion thus states succinctly the Jadwin Plan provision for the Boeuf Floodway and the essential features of the Floodway:

"The Jadwin plan made provision for a floodway starting shortly south of the mouth of the Arkansas River, at Cypress Creek, thence southwardly along the basin of the Boeuf River to the backwater area of the Red River in the State of Louisiana. The source of this floodway, as planned, extended along the levee on the west side of the Mississippi River from Rohwer to Luna Landing, a distance of thirty miles.

"The essential features of the proposed floodway, as they were set forth in the plan adopted, were (1) a section of the riverside levee at Cypress Creek, designated a fuse plug, across the upper end of the floodway, of less height than the contiguous levee, or the levee on the opposite side of the river; this was to be provided by leaving intact and unaltered the then existing riverside levee, built and maintained at the 1914 grade and section, as established by the Mississippi River Commission. The grade of this fuse plug section was equivalent to 60.5 feet on the gauge at Arkansas City. When the river reached that stage, the water would run over the levee and into the floodway. (2) The grade of the riverside levees above and below the fuse plug section, as well as that on the east side of the river, was to be raised three feet, to effect the entry of excess flood water into the floodway. (3) A system of guide levees, on the east and the west side of the floodway to hold the water in the designated channel, and prevent it from spreading out on the lands on either side."

Appellants claim that a servitude was impressed upon plaintiff Sponenbarger's property equivalent to a taking thereof by the enactment of the Flood Control Act of May 15, 1928, and...