Sponenbarger v. United States

• Decision Date: 23 December 1937
• Docket Number: No. 7984.,7984.
• Citation: 21 F. Supp. 28
• Parties: SPONENBARGER v. UNITED STATES.
• Court: U.S. District Court — Eastern District of Arkansas

21 F. Supp. 28

SPONENBARGER v. UNITED STATES.

No. 7984.

District Court, E. D. Arkansas, W. D.

October 20, 1937.

As Modified December 23, 1937.

Lamar Williamson, of Monticello, Ark., and E. E. Hopson, of McGehee, Ark., for plaintiff Julia Caroline Sponenbarger.

Fred A. Isgrig, U. S. Atty., of Little Rock, Ark., and John C. Dyott, Sp. Asst. to Atty. Gen., for the United States.

Henry Davis, of St. Louis, Mo. (of Bryan, Williams, Cave & McPheeters, of St. Louis, Mo.), for St. Louis Union Trust Co.

Hendrix Rowell, of Pine Bluff, Ark., and De Witt Poe, of McGehee, Ark., for Cypress Creek Drainage Dist., and Alex H. Rowell and William R. Humphrey, receivers.

J. W. House, of Little Rock, Ark., for Grady Miller, receiver of Southeast Arkansas Levee Dist.

Fred Armstrong, of St. Louis, Mo. (of Thompson, Mitchell, Thompson & Young, of St. Louis, Mo.), for Mercantile-Commerce Bank & Trust Co. and Mercantile Commerce Nat. Bank.

DAVIS, District Judge.

This action was instituted under the Tucker Act, 28 U.S.C.A. § 41 (20), for compensation for the alleged taking of plaintiff's property for a public purpose. Plaintiff owns forty acres of land in Desha county, Ark., the fair market value of which, it is alleged, was reduced from $5,000 to $1,000 as a result of the establishment of the Boeuf floodway, which included plaintiff's property, under authority of the Flood Control Act of May 15, 1928, 33 U.S.C.A. §§ 702a, 702b-702d, 702e-702g, 702h-702j, 702k, 702l, 702m.

The additional parties plaintiff were made parties upon motion of defendant.

The answer of defendant asserted (1) that the enactment of the Flood Control Act created no express or implied obligation to compensate plaintiff, and that no act of the government done under authority of the said statute constituted a taking of plaintiff's property; and (2) that the Boeuf floodway had by a subsequent act of Congress (June 15, 1936, 33 U.S.C.A. §§ 702a-1 to 702a-10) been abandoned and the Eudora floodway substituted in lieu thereof.

Following a destructive flood in 1927, Congress authorized the execution of an extensive flood control program in the Mississippi Valley, from Cape Girardeau, Mo., to the Head of the Passes in Louisiana. The Flood Control Act adopted a plan suggested by the Chief of Engineers, commonly called the "Jadwin plan," as the same was set out in Document No. 90, House of Representatives, 70th Congress, 1st Session. 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."¹

During periods of unusually high water in the Mississippi river, the stress on the levee system was increased at the mouth of the Arkansas and the White river. The levees in that vicinity did not withstand the flood waters of 1927, but crevassed at Medford, and Pendleton on the south side of the Arkansas, and at Mounds Landing on the east side of the Mississippi. To protect against floods approximating or equaling that of 1927, it was conceived to be necessary to relieve the riverside levees by diverting a substantial portion of the water from the channel of the river into a designed 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 30 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 3 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.

The Floodway Act created a board to adjust engineering differences between the adopted project and the plans suggested by the Mississippi River Commission, and to make recommendations to the President. The decision of the President on such matters was to be final. This decision was made on January 10, 1929, in a communication to the Secretary of War, in which he approved the construction of the levees in the Boeuf floodway.²

The execution of the flood control program was commenced in 1929, and has been continued to the present time. When this suit was filed in August, 1934, the status of the contemplated work in the middle section was this: The levee, for a distance of about 60 miles, from Yancopin, on the south bank of the Arkansas river, to Vancluse, on the west bank of the Mississippi, remained at the 1914 grade and section. This not only included the fuse plug section, but also about 15 miles of the original levee, both above and below the fuse plug section. The riverside levee, above and below the 60-mile Cypress Creek gap, had been raised about 3 feet to the 1928 grade and section, and the levee on the east bank of the Mississippi had likewise been raised to the new grade.

The reason that the long gap of the old levee was left intact, instead of merely the fuse plug section, is to be found in a provision of the Flood Control Act, to the effect that, pending completion of the floodway, lands within it are to have the same protection as lands on either side.³

The government did not proceed with the construction of the Boeuf floodway on account of "local opposition."⁴ In fact, its progress was enjoined.⁵ The Committee on Flood Control of the House of Representatives, on January 28, 1932, requested the Chief of Engineers to review the status of the works then in progress with the view of determining whether modifications should be made in the plan. The response was the report of the Chief of Engineers, dated February 12, 1935.

This report contained a complete review of the progress of the flood control program, and recommended the amendment of the Act of May 15, 1928, in certain instances, one of which affected the plan as applied to the "middle section" of the river. This recommendation was that the Boeuf floodway as provided in the Jadwin plan be abandoned, and the Eudora floodway be substituted in lieu thereof; the suggested new floodway to have its source on the west side of the Mississippi river, near the town of Eudora, Ark., about 100 miles south of the mouth of the Arkansas river. A back protection levee was to extend from the head of this floodway to the Arkansas river. The pertinent section of the report of the Chief of Engineers is printed in the footnote.⁶

Congress adopted the recommendations of the Chief of Engineers by the passage of the Overton Bill, approved June 15, 1936, 49 Stat. 1508, 33 U.S.C.A. 702a-1 to 702a-10.⁷ The plan of flood control thus provided for the section of the valley from the Arkansas river to the Red river is commonly referred to as the Markham plan.

A detailed description of the Eudora floodway or its operation is not conceived to be necessary in this case. Its general course is much the same as the Boeuf Basin, but it clings closer to the west bank of the Mississippi, passing on the east side of Macon ridge, and terminates in the backwater area of the Red river.

The total acreage of the Boeuf floodway is approximately 1,326,000 acres. In the Eudora floodway, there are 702,000 acres. The northern extension of this floodway to the Arkansas river would add 119,000 acres, making a total acreage of 821,000.

The plaintiff's land is also in the Eudora floodway, but reliance is not placed upon that fact in this case.

The Mississippi river between the Arkansas and the Red rivers follows a very winding course. There are levees on either side, but, in the main, these levees are many miles apart. Between those levees, the river winds back and forth from east to west, and west to east, forming loops, known as the Greenville bends, while the general course of the stream is to the south. During the progress of the execution of the flood control program, the government has undertaken to straighten the channel and increase its discharge capacity, by making a series of "cut offs," thus eliminating some of the bends. Eleven of these cut-offs have now been made, and a system of dredging installed to protect and improve the channel of the river. The engineers refer to this program as channel stabilization. The distance by river from the Arkansas to the Red rivers was 372.3 miles, and by reason of the cut-offs it has been shortened 100.6 miles.⁸

One purpose of this program is to increase the discharge capacity of the river. The engineering witnesses at the trial were in accord on the fact that as a result of this program the flood level of the river in the vicinity of the Cypress creek gap was lowered during the flood of February, 1937. But there was disagreement among the engineers as to whether this effect was temporary or permanent, and as to whether this practice was sufficiently free from hazard as to be advisable.

It was also contended by the plaintiff that the making of the cut-offs was not in...