#### GEORGE F. ARCHER AND KATE C. ARCHER v. THE UNITED STATES.

[No. 30471.

Decided April 22, 1918.]

*On New Proofs.*

*Constitutional law.*— The construction of a levee by the agents of the United States upon the lands of plaintiffs subjects the Government to liability for its value.

*Damages.*— Where the Government appropriates a portion of an entire tract of private land for public purposes, it is also liable, in ascertaining the just compensation prescribed by the Fifth Amendment, for the damage to the remainder resulting from such taking, embracing injury due to the use to which the part appropriated is to be devoted. ,

See 47 C. Cls., 248; 241 U. S., 119.

*The Reporter's*statement of the case:

*Mr. Percy Bell*for the plaintiffs.

*Mr. J. Harwood*Graves, with whom was *Mr. Assistant Attorney General Huston*Thompson, for the defendants.

The following are the facts of the case as found by the court:

I. The plaintiffs herein, George F. Archer and Kate C. Archer, were in the year 1903, have been since, and are now the owners in fee of those lands lying and being situated in Chicot County, Ark., known as Point Chicot, being the tract of land opposite the town of Greenville, Miss., bounded on the north, east, and west by the waters of the Mississippi Eiver, and on the south by Leland plantation, and more particularly described as follows, to wit: All of fractional sections 4, 5, 6, 7, and 9, all of section 8, and parts of a certain line of fence which formerly divided said Point Chicot plantation from the improvements of J. B. Miles, all being in township 15 south, range 1 east, in Chicot County, Ark., with all accretions, alluvions, and additions thereunto, and all privileges and appurtenances thereto belonging, and compris*406ing 5,728 acres, more or less. Upon said lands was what was known as Point Chicot plantation.

A sand bar at the north end of Point Chicot comprises about 1,340 acres of said lands, and the same has been constantly added to by accretions from the river.

Of the remainder of the lands owned by plaintiffs, about 3,000 acres were in woods, timber, and undergrowth, and about 1,500 acres were cleared in 1903 and suitable for crops. A large part of the cleared land was being cultivated and good crops were growing thereon in 1903.

In the spring of 1904 plaintiffs had leased parts of Point Chicot to five tennants, and these had subtenants. The leases included woodland and cleared land. To one had been leased 355 aeres of cleared land, to another 332 acres of cleared land, to another 36 acres of cleared land, to another 20 acres of cleared land, and to another 4 acres of cleared land, and there was what was called “ the original field,” of which 812 acres were cleared. A part of this old field was being cultivated in 1904.

Said lands were conveyed to George F. Archer and James A. Deaton by deed dated the 22d day of August, 1896, for the sum of $10,500. The widow of Deaton inherited his interest upon his death and later married the said George F. Archer, and is one of the plaintiffs in this suit. On the 30th day of December, 1909, the plaintiffs mortgaged certain lands in the State of Mississippi and also their lands at Point Chicot to a trustee to secure the payment of an indebtedness to J. M. Wilzin, evidenced by notes aggregating $30,000.

II. The lands of the plaintiffs on Point Chicot embraced a peninsular-shaped piece of land, nearly all of which was situated within the limits of the Mississippi River and bounded on all sides by the same, except a narrow strip connecting it with the mainland of Arkansas. The distance around Point Chicot as the river flowed in 1903 was about 14 miles. The distance across the narrow strip or neck of land connecting Point Chicot with the mainland was about half a mile. The levees which have been constructed were to the east and west of Point Chicot, thus leaving it what is called “ outside of the levee system.’^

*407III. In earlier years, from and after 1880, a considerable portion of plaintiffs’ lands was profitably cultivated, but later it became practically abandoned until in 1896, when the plaintiffs acquired title to the same. They proceeded to clear up large portions of it, improved it for cultivation, built tenant houses thereon, and leased portions of it to tenants, who occupied these houses; and for several years prior to 1904 good crops had been cultivated and secured by these tenants. However, all of the time after the flood waters of the river had been raised 6 feet, as stated, this plantation was continually subject to overflows in times of high water, which deposited silt, sand, and gravel upon it in places, and which interfered with but had not prevented its profitable cultivation. In 1903, when the flood waters were unusually high, as hereinafter mentioned, they did much damage to the plantation. At that time the larger part of Point Chicot was covered with a small growth of timber and brush.

IY. Beginning about the year 1883 and continuing to the present time the officers and agents of the United States, pursuant to an act of Congress creating the Mississippi River Commission and the acts amendatory thereof, adopted a plan, the so-called Eads plan, for the improvement of navigation of the Mississippi River. In consequence thereof they have projected and constructed and maintained, and are engaged in constructing and maintaining, certain lines of levees on both sides of the river at various places for various distances between Cairo, Ill., and the Head of the Passes, a distance of 1,050 miles by river from Cairo. The States bordering along the river on both sides from Cairo to the Gulf, or local organizations acting under their authority, have before and since the year 1883 constructed and maintained, and are now constructing and maintaining, certain lines of levees at various places and of various lengths for the purpose of protecting and reclaiming lands within their respective districts from overflow in times of high water.

Where deemed necessary by said Mississippi River Commission in the interest of navigation the lines of levees constructed by the United States have been joined to levees constructed by the several States or their local organizations, *408as contemplated by the Eads plan, with the result that the flood waters o£ the Mississippi Eiver to a great extent are confined within and between said levee lines. Thus encompassed- within such narrower scope said river acquired an increased velocity and higher elevation, approximating 6 feet during high water, and the current thereof has become stronger and more forceful and navigation has been improved.

Y. The Point Chicot plantation has always been overflowed whenever the- water rises to the 135-foot stage, according to the-datum at Memphis, Tenn., or the 38-foot stage on the gauge at Greenville, Miss., the latter being situated on the river opposite Point Chicot. The gauge readings at said places since 1882 showing the date of 135.0 rising and date of falling and duration of- the flood at said stage from 1882 to 1916 are as follows:



*409VI. Some years prior to 1902 a controlling levee bad been constructed by local and Federal authorities south of the river and northwest of Point Chicot. The river had from year to year encroached upon the land between the said levee and river and the banks had caved so that in 1902 the said controlling levee had been washed away. Another controlling levee had been constructed by similar authority south of the one destroyed as stated. The eastern line of said new controlling levee was about 1 mile west of plaintiffs’ property line.

Between plaintiffs’ land and said new controlling levee, and partly on plaintiffs’ land, was the narrow stretch or neck of land which connected plaintiffs’ land with the mainland. This stretch or neck had been narrowing year by year. During the 20 years from 1882 the river had encroached upon said lands through caving of its south bank about one-half mile. Year by year the river was cutting into said neck and the north line of Point Chicot.

In 1903 the flood waters of the river were unusually high and overflowed said neck of land and Point Chicot. For three years preceding 1903 there was no overflow on said lands. As a result of said overflow washouts were produced on the south side of said neck extending from the river on the south nearly halfway across the neck. A continuation of that flood for a short time longer would have resulted in “ a cut-off ” at that time. Said washouts were east of and near to the eastern line of said controlling levee and endangered the same.

VII. For some years prior to 1903 the Mississippi River Commission had considered the advisability of a spur dike to prevent a cut-off by the river at said neck of land. When the result of the flood of 1903 became apparent the officers and agents of the Government, acting in pursuance of the authority conferred on said commission, concluded that under the conditions developed by the flood of 1903 a cut-off would occur at the next succeeding flood. Had this cut-off taken place the main channel of the river would have been across said narrow neck, a distance of about one-half mile, instead of around Point Chicot, a distance of about 14 miles; *410tbe regimen of the river would, have been materially and injuriously disturbed above and below the cut-off; navigation at the place of the cut-off would have been difficult if not impossible until the river had in other of its reaches adjusted itself to the change wrought by the cut-off; and the efficiency of the levee system as projected for the improvement of navigation on said river would have been impaired. The said cut-off would also have immediately made an island of plaintiffs’ lands, which thereafter would be subject continuously to the eroding forces of the river and to overflows during floods, and access thereto by land would have been cut off.

VIII. For the purpose of preventing said impending cutoff the said officers and agents of the United States began late in 1903, and completed early in 1904, a spur dike extending from a point on said controlling levee and in an easterly direction near the middle line of said narrow stretch or neck about 1 mile to plaintiffs’ line and extending over and upon plaintiffs’ land a distance of 662 feet. Said dike was called the Leland Dike and ran approximately parallel with the channel of the river and upon plaintiffs’ land about 1,800 feet from the south bank of the river where the south bank existed in 1903.

Said Government officers and agents before commencing any work of constructing the spur dike called upon the local board to procure a right of way for the same, and the local board of Chicot County took some steps looking to the condemnation of the desired right of way over plaintiffs’ land, but such proceedings were abandoned because of the actual or supposed want of legal authority in said local board to maintain condemnation proceedings. Said officers and agents proceeded without condemnation. They took possession of and appropriated in 1903-4 to the use of the United States a strip of plaintiffs’ land 662 feet in length and of sufficient width for the construction of the spur dike and to furnish borrow pits therefor. The dike on said strip was a continuation of the Leland Dike above mentioned. They completed the dike on plaintiffs’ land early in 1904. Thereafter they projected and in 1907 they completed an exten*411sion of the spur dike farther on and upon plaintiffs’ land 2,700 feet. The amount of plaintiffs’ land taken as aforesaid and used for the construction of the dike and its said extension, including that taken for borrow pits in connection with said construction, was 31.4 acres.

Said Leland Dike was about 1,800 feet distant from the river to the shore line north of it, and the encroachments of the river on said shore line continued. In 1909 and .subsequent years the distance from the dike to said north shore line was from 1,000 to 1,300 feet. In 1909 and continuing for several years said officers and agents of the Government built a revetment along the river bank on the north line of said neck of land to prevent a further cutting away by the river of said land.

IX. When the officers and agents of the Government were proceeding to build the Leland Dike the plaintiffs objected to the taking of any of their land for the construction of the same and objected as well to the construction of said dike or any part of it upon their land. They stated, however, that they would not object to the building of the dike to the line of their land, although they declared they regarded its construction to that line as damaging to their lands. The appropriation of their lands to the said uses of the Government was over the objection and protest of the plaintiffs.

Before suit was brought in this court the said George F. Archer, one of the plaintiffs, brought a suit in the United States Circuit Court for the Eastern District of Arkansas against the board of levee inspectors of Chicot County, Ark., for damages arising from the erection of said dike and the taking of said 31.4 acres of land. A demurrer by the defendants to the bill in said suit was overruled (128 Fed. Bep., 125). Thereafter and before the beginning of this suit said George F. Archer discontinued said suit brought against said board upon learning that said board had not taken said land or constructed any part of said dike nor condemned the site therefor.

X. Said dike was constructed to prevent said cut-off. It has prevented the threatened cut-off and has protected plain*412tiffs’ lands from the effects of such cut-off but not from overflows. It has kept the river in its channel around Point Chicot.

XI. As shown by the gauge readings in Finding IV, there were no overflows on Point Chicot during the years 1900, 1901, and 1902. There were three during the year 1903— on February 27, May 4, and June 23, respectively, and continuing for 52, 1, and 2 days, respectively, and were of the height of 144.30, Memphis datum.

Where an overflow occurred and receded from about the 15th of May to about the middle of June a second planting of crops could be made. The effect of the flood of 1903 was to do great damage to the crops and property of tenants on said lands and to damage the land in places by washouts and otherwise.

Another flood occurred in 1904 (April 12), and it continued for 19 days on said lands. When the flood waters flowing upon said neck of land reached the said dike they were deflected to the eastward along the course of the dike and parallel with the channel of the river to and upon the lands of plaintiffs until, passing the end of the dike, they found their way into the river below it; and in 1904 the said waters scoured considerable portions of the lands of plaintiffs between said dike and the river and washed large holes, known as “blue holes,” near the end of the dike, and made large holes in the dike itself and threatened the destruction of a large part of it. The flowing of the waters along the direction of the dike caused a deposit of sand and silt upon plaintiffs’ lands between the dike and the river and for some distance beyond the end of the dike. The deposit of silts is not injurious to the lands, but the deposit of sand is injurious to the lands for agricultural purposes. It was determined by the officers and agents of the Government that in order to • protect said dike and to enable it to accomplish the purposes for which it was constructed, it should be extended farther in and upon the plaintiffs’ lands, and it was so extended for a distance of about 2,700 feet, making its entire length upon plaintiffs’ land about 3,400 feet.

*413There was no flood in 190S. There was a flood in 1906, commencing April 11 and continuing for 23 days; and in 1907 there were three floods (January 5, March 30, and May 18), continuing, respectively, 37, 14, and 12 days, upon said lands. There was a flood on the 5th of March, 1908, which continued upon said lands for 117 days, and on March 13, 1909, which continued for 25 days.

During the period from 1904 to 1909 the river continued to make deposits of sand in large quantities upon plaintiffs’ lands, and said deposits of sand were made from year to year and were progressive, and at the time of the bringing of this suit a large part of plaintiffs’ lands was so covered with sand as to be useless for the purposes of agriculture and the same was abandoned. About 300 acres of said land were in cultivation in 1910. The cleared land as it existed in 1903 has now become largely a wilderness of vines and undergrowth. The part of said land lying between the dike and the river to the north, and between the western line of plaintiffs’ land and a line drawn from a point several hundred feet east of the end of the dike to the river, was damaged by deposits of sand and by scouring by the waters, and had at different places deep holes washed therein, and this damage was caused by the checking of the flow of the waters by the dike and their deflection along the course of the dike until they discharged themselves at and near the end of the dike. The general effect of the extension and completion of the levee system as constructed by and -under the direction and plan of the Mississippi River Commission, so far as lands outside of the levees are concerned, has been to render such land of small and uncertain value for agricultural uses because of the raising of the flood levels and the certainty of overflows. The uncertainty as to the time of overflows and their duration affect materially the value of the lands for agriculture. They have, however, value on account of their timber. The overflows do not materially damage the lands for the purposes of timber.

XII. At the time of the construction of said dike in 1903-4 the value of plaintiffs’ lands included in Point Chicot was $57,000.

*414The value of the 31.4 acres, the fee in which was appropriated by the Government for the location of the construction of the dike, including borrow pits, was $560. The amount of the damage to the lands mentioned in Finding XI was $1,830.

XIII. In the construction of said dike on plaintiffs’ lands the same was built in and along the woodland for the purpose of securing the protection which the woodland afforded the dike.

There was valuable timber upon Point Chicot. In 1914 the plaintiffs leased Point Chicot for a period of 20 years, with the right to the lessee to remove the timber therefrom during said term for $8,800. Shortly after an overflow on said lands bushes and vines sprang up, and it was necessary in order to keep the land in a state of cultivation that the bushes and vines be removed quickly because of the rapidity of their growth and their constant interference with the land for the purposes of agriculture. Some parts of said lands were cultivated in 1910. Good crops of corn, cotton, and sweet potatoes were raised on said lands in 1911. Where the flood waters destroyed the early crops during said years a second crop was rendered difficult because in 1910 and 1911 the boll weevil had made its appearance and destroyed the cotton on the replanted crop.

XIV. The court finds as an ultimate fact, so far as it is a question of fact, that the damage to the plaintiffs’ lands was caused by flood waters of the Mississippi Eiver confined by the said levee system, except the damage to that portion of the lands mentioned in Finding XI. The damage to that portion was produced by said flood waters, in conjunction with said dike, causing the scouring, precipitation of sand, and the washouts hereinbefore stated. The court further finds as an ultimate fact, so far as it is a question of fact, that the erection of said dike by the defendants was necessary for the safety and improvement of the system adopted and being continued for the improvement of the navigation of the Mississippi Eiver.

*415Per CuriaM :

This case was remanded to this court by the Supreme Court, 241 U. S., 119. Upon its return here the defendants asked leave to take proof, and leave was granted to both parties to take such additional testimony as they desired. Several continuances were thereafter granted by the court upon the application of the parties to enable them to complete the preparation of the case for hearing.

The case as originally heard by the court was submitted upon the evidence adduced by the plaintiffs. The defendants adduced no proof upon the material questions. The result now is that an entirely new case has been presented by the evidence; the record of the additional testimony and exhibits is much larger than the original record was.

There is no doubt that the officers and agents of the United States entered upon the lands of the plaintiffs and took 31.4 acres of land, upon which they constructed the dike mentioned in the findings, part of the land so taken being used for borrow pits. Nor is there any doubt that the plaintiffs objected to the taking of their lands. They likewise objected and protested against the building of said dike in 1903-4 and its extension in 1907.

The dike was built to prevent what is called a *“*cut-off,” which the evidence shows was imminent. The fact is that during the year before the construction of the dike there had been washouts on the narrow neck of land which, commencing at the lowest side thereof, extended nearly halfway across the same. The evidence of persons and engineers familiar with the conditions and the action of the river is to the effect that the cut-off would have occurred at the next flood following the year 1903. The cut-off would have a material effect upon the regimen of the river, and the dike was propected and built in the interest of improving the navigation of the river.

Nor can there be any doubt under the evidence in the case that if a cut-off had taken place it would have made an island of Point Chicot. The lands of the plaintiffs would thus have been on the left bank of the river and would have been continuously subject to its eroding influences. The *416local situation was such that plaintiffs’ land would have furnished the concave bank of the river and would have received the full force of the water. The dike arrested the imminent cut-off and its principal benefit was that it kept the main channel of the river around Point Chicot, a distance of about 14 miles, instead of allowing it to cut across the neck, a distance of less than a mile. The checking of the flood waters by the dike, and their deflection along its course until they escaped around and beyond the end of the dike, caused a precipitation of sand and gravel on plaintiffs’ land, a scouring of the soil therefrom, and the washing of a number of deep holes at places. The land so affected may be generally described as that part of the land lying between the dike and the river and between the western line of plaintiffs’ land and a point several hundred feet east of the end of the dike, and therefore constituted a comparatively small part of Point Chicot. The damage thus occasioned was not the result of one flood, but of recurring floods, and by 1909, when suit was brought, that part of the land had become practically worthless for any agricultural purpose. The remainder of plaintiffs’ land was not damaged by reason of the dike. The evidence shows that as late as 1910 and 1911 several hundred acres of land on Point Chicot were being cultivated.

Year by year, as the floods have come, sand has been deposited upon these lands, and their agricultural value has diminished. The cause of this damage is the increased heights of the flood levels, brought about by the general system adopted by the Mississippi River Commission for the improvement of the navigation of said river. The condition at Point Chicot is similar to the condition at other points similarly situated, and that general condition is that such points, being “ outside ” of the levees — that is to say, between the levees — have been given over as practically worthless for agricultural purposes. The overflows do not injuriously affect timber growth, and on these different points, as well as upon Point Chicot, valuable timber grows.

We think that the plaintiff is entitled to recover for the 31.4 acres actually taken and appropriated by the Government. *Great Falls Mfg. Co. Case,*124 U. S., 581.

*417As to the injury to the lands caused by the heightening of the flood levels, as above stated, we think there can be no recovery under the principles announced by the Supreme Court in the *Jackson Case,*230 U. S., 1; *Hughes*Case, 230 U. S., 24; and *Cubbins*v. *Mississippi River*Commission, 241 U. S., 351.

It is apparent that the damage to the land lying between the dike and the river was primarily caused by the flood waters, but the presence of the dike contributed to the immediate injury. The Government having taken part of plaintiffs’ land, and the structure erected thereon having contributed to the damage of another part of the land, we have concluded to give judgment for that damage under the influence of the *Grizzard*Case, 219 U. S., 180.

We have some doubt as to our conclusion upon this latter point growing out of the fact that the damage was caused by the action of the dike upon the flood waters, as stated in the findings. If the facts present a case sounding in tort this court is without jurisdiction upon that feature of the case. *Sec. 145, Judicial Code.*Because it appears that the construction and maintenance of the dike contributed to the immediate injury or damage to said land we have given a judgment for the value of the 31.4 acres of land appropriated by the Government and for the damage done to the portion of the land mentioned in Finding XI, together amounting to $2,450.