# United States v. Lynah

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## Dissenting Opinion

    Douglass White
United States Supreme Court
188 U.S. 445
United States v. Lynah
Argued: October 30, 31, 1902. --- Decided: for reargument December 22, 1902
On February 4, 1897, defendants in error commenced their action in the circuit court of the United States for the district of South Carolina to recover of the United States the sum of $10,000 as compensation for certain real estate (being a part of a plantation known as Verzenobre) taken and appropriated by the defendant.
The petition alleged in the 1st paragraph the citizenship and residence of the petitioners; in the 2d, that they had a claim against the United States under an implied contract for compensation for the value of property taken by the United States for public use; 3d, that they were the owners as tenants in common of the plantation; and in the 4th and 7th paragraphs:
'Fourth. That for several years continuously, and now continuously, the said government of the United States of America, in the exercise of its power of eminent domain under the Constitution of the United States and by authority of the acts of Congress, duly empowering its officers and agents thereto, in that case made and provided, did erect, build, and maintain, and continuously since have been erecting, building and maintaining, and are now building, erecting, and maintaining in and across the said Savannah river, in the bed of the said Savannah river, certain dams, training walls, and other obstructions, obstructing and hindering the natural flow of the said Savannah river through, in, and along the natural bed thereof and raising the said Savannah river feet at the point of and above the said obstructions and dams in the bed of the said Savannah river, and causing the said waters of the Savannah river aforesaid to be kept back and to flow back and to be raised and elevated above the natural height of the Savannah river along its natural bed at the points of the said dams, training walls, and obstructions, and at points above the said dams, training walls, and obstructions in said river.'
'Seventh. And your petitioners further show that the said acts of the government of the United States, as aforesaid, have been done and are being done lawfully by the officers and agents of the United States under the authority of the United States in the exercise of its powers of eminent domain and regulation of commerce under the Constitution of the United States and the laws of Congress for the public purpose of the improvement of the harbor of Savannah and deepening the waters of the Savannah river at the port of Savannah, a port of entry of the United States and seaport of the United States of America, situated within the state of Georgia, on the Savannah river, and with the purpose of deepening and enlarging the navigable channel and highway for commerce of the said Savannah river for the public use, purpose, and benefit of interstate and foreign and international trade and commerce, and for other public purposes, uses, and benefits.'
The remaining paragraphs set forth the effect of the placing by the government of the dams, restraining walls, and other obstructions in the river, together with the value of the property appropriated by the overflow. The answer of the government averred: 'First. That this defendant has no knowledge or information sufficient to form a belief as to the truth of the allegations contained in the 1st and 3d paragraphs of the said petition and complaint.
'Second. That this defendant denies all of the allegations contained in the 2d, 4th, 5th, 6th, 7th, and 8th paragraphs of the said petition and complaint except so much of the 4th paragraph as alleges that the said United States heretofore erected certain dams in the Savannah river pursuant to power vested in it by law, and except so much of the 7th paragraph as alleges that the said dams heretofore erected by the United States were lawfully erected by its officers and agents.'
For a further defense the statute of limitations was pleaded. The case came on for trial before the court without a jury, which made findings of fact, and from them deduced conclusions of law and entered a judgment against the defendant for the sum of $10,000. The findings were to the effect that the plaintiffs were the owners of the plantation, deriving title by proper mesne conveyances from 'a grant by the lord's proprietors of South Carolina,' made in 1736. Other findings pertinent to the questions which must be considered in deciding this case were as follows:
'IV. A certain parcel of these plantations, measuring about 420 acres, had been reclaimed by drainage, and had been in actual continued use for seventy years and upwards as a rice plantation, used solely for this purpose. This rice plantation was dependent for its irrigation upon the waters of the Savannah river and its ditches, drains, and canals, through and by which the waters of the river were flowed in and upon the lands, and were then drained therefrom, were adapted to the natural level of the said Savannah river, and dependent for their proper drainage and cultivation upon the maintenance of the natural flow of the said river in, through, and over its natural channel along its natural bed to the waters of the ocean.
'V. This portion of the plantation fronting on the river and dedicated to the culture of rice, extended almost up to, if not quite to, law-water mark, and a large part of it was between mean high-water and low-water mark, protected from the river by an embankment. Through this embankment trunks or water ways were constructed, with flood gates therein. The outer opening of the trunk was about a foot or a little less above the mean low-water mark of the river, in which the tide ebbs and flows. When it is desired to flow the lands, the flood gates are opened and the water comes in. When it is desired to draw off this water and to effect the drainage of the lands, the flood gates are opened at low water and the water escapes. It is essential that the outlets of the trunks or water ways should always be above the mean low-water mark.
'VII. For several years last past and at the present time the government of the United States, under its proper officers, authorized thereto by the act of Congress, have been engaged in the improvement of the navigation of the Savannah river, a navigable water of the United States, this improvement being carried on by virtue of the provisions of § 8, art. I. of the Constitution, giving to the Congress the power to regulate commerce.
'VIII. In thus improving navigation of this navigable water the United States has built and maintained, and is now building and maintaining, in and across the Savannah river, in the bed thereof, certain dams, training walls, and other obstructions, obstructing the natural flow of said river in and along its natural bed, and so raising the level of the said river above said obstructions, and causing its waters to be kept back and to flow back and to be elevated above its natural height in its natural bed.
'IX. This rice plantation Verzenobre is above these obstructions. The direct effect thereof is to raise the level of the Savannah river at this plantation, and to keep the point of mean low water above its natural point, so that the outlet of the trunks and water ways above spoken of in the bank of said plantation, instead of being above this point of low-water mark, is now below this point. Another direct result was that by seepage and percolation the water rose in the plantation until the water level in the land gradually rose to the height of the increased water level in the river, and the superinduced addition of water in the plantation was about 18 inches thereby. By reason of this it gradually became difficult, and has now become impossible, to let off the water on this plantation or to drain the same, so that these acres dedicated to the culture of rice have become boggy, unfit for cultivation, and impossible to be cultivated in rice.
'X. By the raising of the level of the Savannah river by these dams and obstructions, the water thereof has been backed up against the embankment on the river and has been caused to flow back upon and in this plantation above the obstruction, and has actually invaded said plantation, directly raising the water in said plantation about 18 inches, which it is impossible toremove from said plantation. This flooding is the permanent condition now, and the rice plantation is thereby practically destroyed for the purpose of rice culture or any other known agriculture, and is an irreclaimable bog and has no value.
'XI. By reason of this superinduced addition of water actually invading the said rice plantation, and its destruction thereby for all purposes of agriculture, plaintiffs have been compelled to abandon the cultivation of said rice plantation and have been forced to pursue their calling of planting rice on other plantations below the dams. The direct result to plaintiffs is an actual and practical ouster of possession from this riceplantation, cultivated by themselves and family for many years.
'XII. Beyond the backing up of the water on and in the plantation by reason of the dams and obstruction, and the invasion of these lands by this superinduced addition of water at and in the plantation as above described, rendered necessary by the execution of the government's plans, the United States is not in actual possession of these lands.
'XIII. Up to this time no other use has been discovered for these lands than for rice culture, and the direct results above stated have totally destroyed the market value of the lands. They now have no value.
'XIV. The value of these rice lands before the obstructions aforesaid were put into the river was about $30 per acre; between $25 and $30 per acre. The value of the rice plantation, 420 acres, thus destroyed, is $10,000.'
Upon these findings of fact the important conclusions of law were thus stated:
'V. The crucial question in this case is, Was there a taking of this land in the sense of the Constitution?
'The facts found show that by reason of the obstruction in the Savannah river the water has been directly backed up against the embankment on the river and the banks on and in this plantation, the superinduced addition of water actually invading it and destroying its drainage and leaving it useless for all practical purposes. The government does not in a sense take this land for the purposes of putting its obstructions on it. But it forces back the water of the river on the land as a result necessary to its purpose, without which its purpose could not be accomplished. For the purpose of the government, that water in the river must be raised. The banks of this plantation materially assist this operation, for by their resistance the water is kept in the channel. The backing up of the water against the banks to create this resistance raises the water in the plantation and destroys the drainage of the plantation. This is a taking. 'It would,' says Mr. Justice Miller, 'be a very curious and unsatisfactory result if, in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the government, and which had received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent; can, in effect, subject to total destruction without making any compensation, because in the narrowest sense of that word it has not been taken for the public use.' Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 177, 178, 20 L. ed. 560. In that case the backing up of water on land was held to be a taking.
'VI. The plantation of plaintiffs being actually invaded by superinduced addition of water directly caused by the government dams and obstructions backing up the water of the Savannah river, and raising the water level at and in the rice plantation, and making it unfit for rice cultivation or for any other known agriculture, and plaintiffs having been compelled thereby to abandon the plantation, and this actual and practical ouster of possession being continued and permanent by reason of the permanent condition of the flooding of the plantation, and the plantation being thereby now an irreclaimable bog of no value, makes the action of the government a taking of lands for public purposes within the meaning of the 5th Amendment, for which compensation is due to the plaintiffs. Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 182, 20 L. ed. 561; Mugler v. Kansas, 123 U.S. 668, 31 L. ed. 212, 8 Sup. Ct. Rep. 273.
'VII. The government has not gone into actual occupancy of this land, but by reason of these dams and obstructions made necessary by this public work and fulfilling its purpose the water in the Savannah river has been raised at the plaintiffs' plantation and has been backed up on it and remains on it so that the drainage has been destroved and ditches filled up and superadded water permanently kept on the land and forced up into it, making it wholly unfit for cultivation, and the plaintiffs have thereby been practically and actually ousted of their possession. This is taking of the land for public purposes, for which compensation must be provided. Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 181, 20 L. ed. 561.'
The case involving the application of the Constitution of the United States was brought by writ of error directly to this court.
Mr. Robert A. Howard and Solicitor General Richards for United states.
[Argument of Counsel from pages 452-457 intentionally omitted]
Mr. J. P. K. Bryan for defendants in error.
Mr. Justice Brewer delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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