United States v. Kansas City Life Ins Co

• Decision Date: 05 June 1950
• Docket Number: No. 1,1
• Citation: 339 U.S. 799,94 L.Ed. 1277,70 S.Ct. 885
• Parties: UNITED STATES v. KANSAS CITY LIFE INS. CO. Re
• Court: U.S. Supreme Court

339 U.S. 799

70 S.Ct. 885

94 L.Ed. 1277

UNITED STATES

v KANSAS CITY LIFE INS. CO.

No. 1.

Reargued March 29, 1950.

Decided June 5, 1950.

Mr. Marvin J. Sonosky, Washington, D.C., for petitioner.

Mr. Stanley Bassett, Kansas City, Mo., for respondent.

Mr. Justice BURTON delivered the opinion of the Court.

The respondent, Kansas City Life Insurance Company, obtained judgment in the Court of Claims against the United States for $22,519.60, with interest from August 8, 1938. 109 Ct.Cl. 555, 74 F.Supp. 653. This sum was awarded as just compensation for the destruction of the agricultural value of respondent's farm land by the United States in artificially maintaining the Mississippi River in that vicinity continuously at ordinary high-water level. The land was not in any sense within the bed of the river. It was one and one-half miles from the river on a nonnavigable tributary creek. Its surface was a few feet above the ordinary high-water level of both the river and the creek. The United States, however, contended that because it maintained the river at this level in the interest of navigation it need not pay for the resulting destruction of the value of the respondent's land. We granted certiorari because of the importance of the constitutional questions raised. 334 U.S. 810, 68 S.Ct. 1016, 92 L.Ed. 1742. The case was argued at the 1948 Term and reargued at this Term.

Two principal issues are presented. The first is whether the United States, in the exercise of its power to regulate commerce, may raise a navigable stream to its ordinary high-water mark and maintain it continuously at that level in the interest of navigation, without liability for the effects of that change upon private property beyond the bed of the stream. If the United States may not do so, without such liability, we reach the other issue: Whether the resulting destruction of the agricultural value of the land affected, without actually overflowing it, is a taking of private property within the meaning of the Fifth Amendment to the Constitution of the United States. We decide both issues in favor of the respondent, the first in the negative, the second in the affirmative.

The material facts found by the court below include the following:

Respondent is the owner of 1,710 acres of farm land in Missouri, having an elevation of 422.7 to 428 feet above sea level. The land borders on Dardenne Creek, a nonnavigable tributary entering the navigable Mississippi River one and one-half miles below the farm. The agricultural value of the land has been largely destroyed by the construction and operation by the United States of Lock and Dam No. 26 on the Mississippi at Alton, Illinois, 25 Miles below Dardenne Creek. The United States has operated this dam since August 8, 1938, as part of a system of river improvements to provide a navigable channel in the Mississippi between Minneapolis and the mouth of the Missouri.¹ The effect of the dam has been to raise the level of the Mississippi at the mouth of Dardenne Creek to a permanent stage of 420.4 feet above sea level. This was its previously ascertained ordinary high-water mark.

Before the effect of the dam was felt, the respondent's land drained adequately through its subsoil and a simple system of ditches and pipes emptying into the creek.² It was highly productive. When, however, the dam raised the river and the creek to 420.4 feet and maintained the water continuously at that level, this destroyed the agricultural value of the respondent's land at surface elevations between 423.5 and 425 feet.³ The damage was caused by the underflowing of the land.⁴ This undersurface invasion was substantially as destructive as if the land had been submerged. The water table was raised both by the percolation of the water which rose and fell with the river and by the resulting blockade of the drainage of the land's surface and subsurface water.⁵ The reduction of $22,519.60 in the market value of the land is not disputed.

It is well settled that, under the Commerce Clause, U.S.Const. Art. I, § 8, Cl. 3, the United States has the power to improve its navigable waters in the interest of navigation without liability for damages resulting to private property within the bed of the navigable stream.

'The dominant power of the federal Government, as has been repeatedly held, extends to the entire bed of a stream, which includes the lands below ordinary high water mark. The exercise of the power within these limits is not an invasion of any private property right in such lands for which the United States must make compensation. (Citing cases.) The damage sustained results not from a taking of the riparian owner's property in the stream bed, but from the lawful exercise of a power to which that property has always been subject.' United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 596—597, 61 S.Ct. 772, 775, 85 L.Ed. 1064.⁶

The ordinary high-water mark has been accepted as the limit of the bed of the stream. In United States v. Willow River Power Co., 324 U.S. 499, 509, 65 S.Ct. 761, 767, 89 L.Ed. 1101, where compensation was denied, this Court said: 'High-water mark bounds the bed of the river. Lands above it are fast lands and to flood them is a taking for which compensation must be paid. But the award here does not purport to compensate a flooding of fast lands or impairment of their value. Lands below that level are subject always to a dominant servitude in the interests of navigation and its exercise calls for no compensation.'

These cases point the way to our decision in the instant case. In the Chicago case, supra, the United States insti- tuted condemnation proceedings to acquire the right to back the waters of the Mississippi over a right of way and against an embankment owned by the respondent railroad and telegraph companies. The precise issue was the Government's liability for damage done to that embankment by raising the waters of the river to and above their ordinary high-water mark. The respondents contended that the damage even to that part of the embankment which stood on land within the bed of the river was compensable and the Court of Appeals so held. 8 Cir., 113 F.2d 919. This Court reversed that judgment for the reason that all land within the bed of a navigable stream is subject to a servitude in favor of the United States, relieving it from liability for damages to such land resulting from governmental action in the interest of navigation. In addition, this Court remanded the case for determination of the disputed claim of the respondents that three other segments of their embankment were on land which was above the ordinary high-water mark of the river and that two of those segments abutted not on the Mississippi River but on a nonnavigable tributary. 312 U.S. at page 599, 61 S.Ct. at page 776, 85 L.Ed. 1064. The order to determine that question indicates that the basis of the decision was that the navigation servitude does not extend to land beyond the bed of the navigable river.

The opinion in the Chicago case also sheds light upon the earlier cases. It limits the decisions in United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539, and United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746, so that they do not conflict with the Government's dominant servitude when it is applied to the bed of a navigable stream. In the Kelly case, which is reported with the Cress case, the land in question was on a nonnavigable tributary of the navigable Kentucky River. The Government's dam raised the waters of the river which, in turn, raised those of the tributary across which Kelly had built a mill dam. This Court upheld the judgment requiring the United States to pay Kelly for the loss of his power head at his mill which resulted from this change in the level of the tributary. Similarly, in the Cress case itself, this Court assumed that a tributary of the Cumberland River was not navigable. It then allowed recovery for the destruction of the value of the land and of a ford across the tributary. All of this destruction was caused by the Government's dam on the river but was done at points beyond the bed of that river. In the Chicago case, this Court's view of the Cress decision was expressed as follows:

'What was said in the Cress case must be confined to the facts there disclosed. In that case, the Government's improvement in a navigable stream resulted in the flooding of the plaintiffs' land in and adjacent to a non-navigable stream. The owners of the land along and under the bed of the (non-navigable) stream were held entitled to compensation for the damage to their lands. The question here presented was not discussed in the opinion.' 312 U.S. at page 597, 61 S.Ct. at page 775, 85 L.Ed. 1064.

The extent of the Government's paramount power over the bed of navigable streams was further clarified in United States v. Willow River Power Co., supra. The respondent there claimed compensation for the reduction of a power head which reduction was caused by a Government dam which raised the level of the navigable river into which the respondent dropped the water from its dam built on a nonnavigable tributary. Compensation was denied on the ground that because the loss of power of the respondent occurred within the bed of the navigable river, such loss was covered by the Government's dominant power to change the river's level in the interest of navigation. This Court said:

'We are of opinion that the Cress case does not govern this one and that there is no warrant for applying it, as the claimant asks, or for overruling it, as the Government intimates would be desirable. * * * In the former case the navigation interest was held not to be a dominant one at the property damaged; here dominance of the navigation interest at the St. Croix (the navigable river) is clear.' 324 U.S. at page 506, 65 S.Ct. at page 766, 89 L.Ed. 1101.

It is not the broad constitutional power to regulate...