U.S. Supreme Court U S v. SPONENBARGER, 308 U.S. 256 (1939)

[Page 308 U.S. 256, 260]

Mr. Justice BLACK delivered the opinion of the Court.

Respondent sued the United States under the Tucker Act,1 alleging that the Mississippi Flood Control Act of 19282 and construction contemplated by that Act involved an 'intentional, additional, occasional flooding, damaging and destroying' of her land located in Desha County, Arkansas. She maintained that her property had thus been taken for a public use for which the Government is required to pay just compensation by the Fifth Amendment, U.S.C.A. Const. 3. In addition, she asserted a statutory right of recovery under the Act itself. After full hearing, judgment for the Government was entered in the District Court. [Footnote 4] The Circuit Court of Appeals reversed. [Footnote 5] Because of the importance of both the legislation and the principles involved, we granted certiorari. [Footnote 6]

[Page 308 U.S. 256, 261]

To enjoy the promise of its fertile soil in safety has, for generations, been the ambition of the valley's occupants. As early as 1717, small levees were erected in the vicinity of New Orleans. Until 1883, piecemeal flood protection for separate areas was attempted through uncoordinated efforts of individuals, communities, counties, districts and States. Experience demonstrated that these disconnected levees were utterly incapable of safeguarding an ever increasing people drawn to the fertile valley. Under what was called the Eads plan, the United States about 1883 undertook to cooperate with, and to coordinate the efforts of the people and authorities of the various river localities in order to effect a continuous line of levees along both banks of the Mississippi for roughly nine hundred and fifty miles-from Cape Girardeau, Missouri, to the Gulf of Mexico.7 Recurrent floods, even after the eventual completion of this tremendous undertaking, led to the conclusion that levees alone, though continuous, would not protect the valley from floods. And in 1927 there occurred the most disastrous of all recorded floods. In congressional discussion of the 1928 Act, it was said-as the evidence here discloses-that 'There were stretches of country (in Arkansas) miles in width and miles in length in which ... every house, every barn, every outbuilding of every nature, even the fences, were swept away. It was as desolate as this earth was when the flood subsided.' [Footnote 8] Respondent's land, under fifteen to twenty feet of water, was left bare of buildings of any kind in this 1927 flood.

[Page 308 U.S. 256, 263]

a natural floodway for waters from the Mississippi,9 and respondent's lands, and other lands similarly situated, have been repeatedly overflowed by deep water despite the presence of strong levees. [Footnote 10] The United States has not caused any excessive flood waters to be diverted from the Mississippi through the proposed Boeuf fuse plug (at Cypress Creek) or floodway, and respondent's property has not been subjected to any servitude from excessive floodwaters, which did not already exist before 1928. She still enjoys the same benefits from the Cypress Creek drainage system as when it was created before 1928, and the government program has not 'in any wise, nor to any extent increased the flood hazard thereto.' No work was ever commenced or done within the area of the proposed Boeuf floodway, and the fuse plug heading into it was never established. This floodway as a whole has been abandoned and the Eudora floodway substituted. However, work done under the 1928 Act has shortened the river by cut-offs and dredging and the river has been lowered five or six feet, with the greatest improvement in the vicinity of the proposed fuse plug. Levee protection to lands such as plaintiff's has not been reduced. In fact, plaintiff's land has been afforded additional protection by virtue of the fact that this government improvement program has materially reduced the crest of the river at all times, including flood crests, and her land has also been protected by the Government's reconstruction of levees on the Arkansas River pursuant to its general program. In 1935, her property would have been flooded but for the work done by the Government which has kept her land free of overflow since 1928. Lands,

[Page 308 U.S. 256, 267]

be to grant him a special bounty. Such activities in substance take nothing from the landowner. While this Court has found a taking when the Government directly subjected land to permanent intermittent floods to an owner's damage,12 it has never held that the Government takes an owner's land by a flood program that does little injury in comparison with far greater benefits conferred. [Footnote 13] And here, the District Court justifiably found that the program of the 1928 Act has greatly reduced the flood menace to respondent's land by improving her protection from floods. Under these circumstances, respondent's land has not been taken within the meaning of the Fifth Amendment.

[Page 308 U.S. 256, 268]

fore utilization of any means of flood control other than levees and revetments. In general language it adopted a program recommended by the Chief of Army Engineers, but Congress did not sweep into the statute every suggestion contained in that recommendation.

Since it envisaged a vast program, the Act naturally left much to the discretion of its administrators and future decisions of Congress. [Footnote 15] Recognizing the value of experience in flood control, Congress and the sponsors of the Act did not intend it to foreclose the possibility of changing the program's details as trial and error might demand.

Here, it is clear that those charged with execution of the program of the 1928 Act abandoned the proposed Boeuf floodway and substituted another. Whatever the original general purpose of Congress as to that floodway and its fuse plug at Cypress Creek, congressional hearings, reports and legislation have approved their abandonment. Thus, respondent's contention at most is that the Government should pay for land which might have been in a floodway if that floodway had not been abandoned. We think this contention without merit. [Footnote 16]

[Page 308 U.S. 256, 269]

s 408, 33 U.S.C.A. 408), which forbids interference with levees, 'applicable to all lands, waters, easements, and other property and rights acquired or constructed under the provisions of this (1928) Act (sections 702a to 702m of this title).' But Section 14 of the 1899 Act relates only to levees and other structures 'built by the United States,' and no local levees on which respondent could rely have as yet been 'built by the United States' or 'acquired ... under the provisions of' the 1928 Act. In fact, a proposal that the Government assume control of local levees appeared in the original draft of the 1928 Act but was stricken out by amendment. [Footnote 17] And the War Department, charged with its administration, has treated the Act as leaving local interests free to raise proposed fuse plug levees if they wish. [Footnote 18]

[Page 308 U.S. 256, 270]

subjected to overflow and damage or floodage rights over such lands. '... The United States shall provide flowage rights for additional destructive flood waters that will pass by reason of diversions from the main channel of the Mississippi River: ....' 33 U.S.C.A. 702c.

This Court has previously decided that 'the construction of levees on the opposite' bank of the Mississippi River which resulted in permanently flooding property across the river did not amount to a 'taking' of the flooded area within the Fifth Amendment. [Footnote 19] We need not here determine whether the provisions of the 1928 Act would themselves grant a statutory right to recover if respondent's land had been damaged as a result of levees constructed on the river's opposite bank. For Section 4 of the Act, 33 U.S.C.A. 702d, contains the further specific reservation 'That in all cases where the execution of the flood-control plan herein adopted results in benefits to property such benefits shall be taken into consideration by way of reducing the amount of compensation to be paid.' On this record it is clear that respondent's lands were not damaged, but actually benefited.

We do not find it necessary to discuss other questions presented.

The judgment of the Circuit Court of Appeals is reversed and that of the District Court is affirmed.

Reversed. Footnotes

Footnote 1 28 U.S.C. 41(20), 28 U.S.C.A. 41(20).

Footnote 2 C. 569, 45 Stat. 534, 33 U.S.C. 702a, 33 U.S.C.A. 702a-702m.

Footnote 3 Cf. Jacobs v. United States, 290 U.S. 13, 16, 54 S.Ct. 26, 27.

Footnote 4 21 F.Supp. 28.

Footnote 5 8 Cir., 101 F.2d 506.

Footnote 6 307 U.S. 621, 59 S.Ct. 1047. Respondent primarily claims that governmental operations under the Flood Control Act have resulted in taking for public use her lands lying in the proposed Boeuf Floodway. This Floodway was originally intended to cover a vast area roughly fifteen miles wide and one hundred and twenty-five miles long.

Footnote 7 For the background of this legislation, see Jackson v. United States, , 33 S.Ct. 1011.

Footnote 8 69 Cong.Rec., Part 8, p. 8191.

Footnote 9 This Basin also was found to be a floodway for waters from the Arkansas and 'Flat' (White) Rivers.

Footnote 10 Her lands were found to have been flooded in 1912, 1913, 1919, 1921, 1922, 1927.

Footnote 11 Cf. Northern Transportation Co. v. Chicago, 99 U.S. 635, 642; Pumpelly v. Green Bay & M. Canal Co., 13 Wall. 166.

Footnote 12 Jacobs v. United States, supra; U.S. v. Cress, 243 U.S. 316, 37 S. Ct. 380; U.S. v. Lynah, 188 U.S. 445, 23 S.Ct. 349; Pumpelly v. Green Bay & M. Canal Co., supra; cf. Sanguinetti v. U.S., 264 U.S. 146, 44 S.Ct. 264.

Footnote 13 Cf. Bauman v. Ross, 167 U.S. 548, 574, 17 S.Ct. 966, 976.

Footnote 14 Cf. Marion & R. Valley R. Co. v. United States, 270 U.S. 280, 282, 283 S., 46 S.Ct. 253, 254.

Footnote 15 Cf. South Carolina v. Georgia et al., , 13. As to when legislation does not constitute self-executing appropriation, see Bauman v. Ross, 167 U.S. 548, 596, 597 S., 17 S.Ct. 966, 984; Willink v. U.S., , 36 S.Ct. 422.

Footnote 16 Whether recovery at law could be had upon a similar contention was left open by Hurley v. Kincaid, 285 U.S. 95, 52 S.Ct. 267. Cf. Peabody v. United States, 231 U.S. 530, 539, 540 S., 34 S.Ct. 159, 161.

Footnote 17 69 Cong.Rec., Part 7, pp. 7114, 7115.

Footnote 18 Com.Doc. No. 2, House Committee on Flood Control, 71st Cong., 1st Sess.

Footnote 19 Jackson v. United States, supra, 230 U.S. pages 22, 23, 33 S.Ct. page 1019.