United States v. Jones

• Decision Date: 10 December 1883
• Citation: 27 L.Ed. 1015,109 U.S. 513,3 S.Ct. 346
• Parties: UNITED STATES v. JONES, Adm'r, etc., and others
• Court: U.S. Supreme Court

109 U.S. 513

3 S.Ct. 346

27 L.Ed. 1015

UNITED STATES v. JONES, Adm'r, etc., and others.

December 10, 1883.

Sol. Gen. Phillips, for plaintiff in error.

N. S. Gilson, Geo. E. Sutherland, B. J. Stevens, and E. Mariner, for defendants in error.

FIELD, J.

By an act of congress, passed on the eighth of August, 1846, certain lands were ceded to Wisconsin to aid in improving the navigation of Fox and Wisconsin rivers, in that state, and in constructing a canal to unite the rivers, and thus form a connection between the waters of Green bay, in Lake Michigan, and the waters of the Mississippi. St. 1846, c. 170.

The state accepted the cession of the lands, and in August, 1848, created a board of public works, under whose superintendence it placed the construction of the improvement contemplated. The work, however, was not done under that board; the means furnished proved inadequate. Various other attempts, therefore, were made by different companies created by the state to carry out the improvement, and in furtherance of it congress ceded additional lands; but none of these at- tempts proved successful. The improvement was only partially made.

In 1866, by various transfers, which it is unnecessary to detail, the lands ceded by congress, and the works of improvement, including the locks, dams, canals, and other structures connected with it, became the property of a corporation known as the Green Bay & Mississippi Canal Company.

In July, 1870, congress passed an act 'for the improvement of water communication between the Mississippi river and Lake Michigan, by the Wisconsin and Fox rivers;' by which, among other things, the secretary of war was authorized to ascertain the sum which ought to be paid to the Green Bay & Mississippi Canal Company for the transfer of its property and rights of property in the line of water communication between Wisconsin river and the mouth of Fox river, including its locks, dams, canals, and franchises, or so much thereof as, in his judgment, should be needed; and for that purpose to join with the company in the appointment of a board of arbitrators.

In making their award, the arbitrators were required to take into consideration the amount of money obtained from the sale of lands ceded by congress to aid in the construction of the water communication which was to be deducted from the valuation found by them. 16 St. c. 210.

Under this act arbitrators were appointed, the value of the works ascertained, and an award made, the amount of which having been paid, the entire property was, in 1872, conveyed to the United States. Since then the United States has been the owner and in possession of the works, and congress has made various appropriations to carry on and complete the improvement.

The arbitrators, in making their award, proceeded upon the principle that the United States should pay for the works what their construction had cost the state, and the companies succeeding to its interests, after making a reasonable abatement for wear and decay, and deductting the amount obtained from the sale of the ceded lands. Some of the dams constructed had caused the lands of several parties to be overflowed, and in the estimate of the amount to be paid by the United States, no ac- count was taken of the liability of the company for such damages. The question, therefore, soon arose whether the payment of these damages devolved upon the United States, and this question was submitted by the committee on commerce of the house of representatives to the secretary of war, and by him was referred to the assistant judge advocate general. That officer held that liability for the damages incurred from the flowage of water on the lands of others, caused by the works constructed, followed the property transferred, and devolved on the United States. Upon this opinion a bill was prepared for the assumption by them of the company's liability for such damages, which was passed by congress and approved on the third of March, 1875. This act provided that whenever, in the prosecution and maintenance of the improvement mentioned, it should become necessary or proper, in the judgment of the secretary of war, to take possession of any lands, or the right of way over any lands, for canals of cut-offs, or to use any earth, quarries, or other material adjacent to the line of improvement and needful for its prosecution or maintenance, the officers in charge of the works might, in the name of the United States, take possession of and use the same, after having first paid, or secured to be paid, the value thereof, 'which may have been ascertained in the mode provided by the laws of the state' wherein the property lay.

The act also provided that in case any lands or other property were then or should be overflowed or injured by means of any part of the works of the improvement theretofore or thereafter constructed for which compensation was then or should become legally owing, and in the opinion of the officers in charge it should not be prudent to lower the dam or dams, the amount of such compensation might be 'ascertained in like manner;' that the department of justice should represent the interest of the United States in legal proceedings under the act and for 'flowage damages' previously occasioned, and that a portion of the appropriation made for the prosecution of the improvement, not exeeding in amount twenty-five thousand dollars, might be applied in payment for property and rights thus taken and used.

In the previous year, 1874, the legislature of Wisconsin had passed a law providing for ascertaining the compensation to be made for damages caused to lands by their being overflowed or otherwise injured, or taken by the United States in the construction of any public works. It declared, among other things, that in case the lands of any person had been overflowed or injured or taken, or if it should be found necessary or proper thereafter to overflow, injure, or take the lands of any person for or by reason of the construction of any dam, bridge, lock, or pier, or the repair or enlargement thereof, or the construction, repair, or enlargement of any canal or other works of the United States government in the improvement of any harbor, river, or stream of water in the state, the compensation for damages sustained by the owner or owners of the lands overflowed, injured, or taken might be ascertained, determined, and paid in the manner prescribed in chapter 119 of the Laws of 1872, entitled 'An act in relation to railroads and the organization of railroad companies,' for acquiring title to lands of railroad companies, and that all the provisions of such act properly applicable thereto should apply in the case of the overflow, injury, or taking of lands by the United States government for the purposes mentioned. Chapter 119 of the Laws of 1872, referred to in this act of 1874, prescribes the mode in which land may be condemned for railroad purposes. The company is to file a petition for the appointment of...