Tilden v. United States, 2305.
| Decision Date | 21 December 1934 |
| Docket Number | No. 2305.,2305. |
| Citation | 10 F. Supp. 377 |
| Parties | TILDEN v. UNITED STATES. |
| Court | U.S. District Court — Western District of Louisiana |
Brian & Brian, of New Orleans, La., for plaintiff.
Philip H. Mecom, U. S. Atty., and E. A. Mottet, Asst. U. S. Atty., both of Shreveport, La.
Plaintiff was the owner of certain lands on the south bank of Red river in Rapides parish. Early in the fall of 1928 the government engineers, in collaboration with the local levee board, decided to construct, as an emergency measure, a levee across the front of plaintiff's said lands nearest the river. The buildings and improvements were first removed by the levee board to other portions of the tract, and in September of that year the government commenced construction of the levee under authority of the Act of Congress of May 15, 1928, commonly known as the Flood Control Act (33 USCA §§ 702a-702m). There were no prior proceedings of condemnation, but simply appropriation. Some 13.23 acres of land were thus taken, and the plaintiff thereafter, on December 23, 1932, filed this suit, claiming as damages for the value of the lands, improvements, and accessories of which he had been deprived, as follows:
Value of 13.23 acres of land taken
at $350 per acre ................ $4,630.50
Value of 20 pecan trees destroyed
or rendered valueless............ $3,000.00
Value of sundry other trees destroyed
or rendered valueless ........... $1,180.00
Value of underground cistern
outhouses, pens, etc. ........... $ 125.00
Value of fences destroyed ......... $ 250.00
Loss in reduction of value of remaining
land from destruction
of artistic surroundings.......... $1,000.00
Loss of use of Sandy Bayou for
watering purposes................ $ 500.00
__________
Total amount due petitioner $10,685.50
Counsel then discovered that the demand was in excess of $10,000, the maximum jurisdiction of this court under the Tucker Act (28 USCA § 41 (20), which was the only authority for suing the government in this forum, and on January 3, 1933, amended the petition and entered a remittitur of the $1,000 claimed as the "reduction of value of remaining lands" caused by the "destruction of artistic surroundings." The government contends that the plaintiff is limited in his right of recovery to the assessed value of the property taken or destroyed, as provided by section 6 of article 16 of the state Constitution of 1921 (amended in 1928). This is the principal legal question involved; that is, as to whether plaintiff is entitled to recover the full value of the property taken or its value for taxation purposes according to the assessment of the state for the preceding year, 1927. If the former, then the court will have to review the facts and find the value, but, if the assessment controls, we need only to refer to undisputed figures.
While it is true the levee board had the improvements moved off the land, it was done, I think, to facilitate the government in its undertaking to appropriate it for levee purposes. All of the 13.23 acres have been used or occupied by the levee, borrow pits, etc., so that admittedly it has been destroyed in so far as any useful purpose to the plaintiff is concerned. The taking by the government was under its own power of eminent domain which is inherent in sovereignty. Putting aside for the present any provision of the Louisiana law, the Fifth Amendment to the Federal Constitution, among other things, declares: "* * * Nor shall private property be taken for public use, without just compensation." Whenever the Secretary of War is authorized by law to institute in the name of the government proceedings "for the acquirement by condemnation of any lands, easements, or rights of way needed for a work of river and harbor improvement," proceedings for that purpose may be instituted, and, having done so, he may take possession and "proceed with such works * * * provided, That certain and adequate provision shall have been made for the payment of just compensation to the party or parties entitled thereto." (Italics by the writer.) Section 594, U. S. C., title 33 (33 USCA § 594). And "the jury or other tribunal awarding the just compensation or assessing the damages to the owner * * * shall take into consideration by way of reducing the amount of compensation or damages any special and direct benefits to the remainder of the property arising from the improvement. * * *" Section 595, U. S. C., title 33 (33 USCA § 595). Concededly, the action of the government in this case was under the Act of May 15, 1928, above referred to (sections 702a et seq., title 33, U. S. C. 33 USCA § 702a et seq.). Section 4 of that act (section 702d) declares:
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