U.S. Supreme Court HURLEY v. KINCAID, 285 U.S. 95 (1932)

[Page 285 U.S. 95, 104]

begins to carry out the project authorized. Compare United States v. Lynah, 188 U.S. 445, 469, 23 S. Ct. 349; United States v. Cress, 243 U.S. 316, 328, 37 S. Ct. 380; Peabody v. United States, 231 U.S. 530, 538, 34 S. Ct. 159; Portsmouth Harbor Land & Hotel Co. v. United States, , 39 S. Ct. 399; Id., 260 U.S. 327, 329, 43 S. Ct. 135. If that which has been done, or is contemplated, does constitute such a taking, the complainant can recover just compensation under the Tucker Act (24 Stat. 505) in an action at law as upon an implied contract, since the validity of the act and the authority of the defendants are conceded. United States v. Great Falls Manufacturing Co., 112 U.S. 645, 658, 5 S. Ct. 306; Great Falls Mamufacturing Co. v. Attorney General, 124 U.S. 581, 600, 8 S. Ct. 631; Tempel v. United States, 248 U.S. 121, 129, 39 S. Ct. 56; Marion & Rye Valley Ry. Co. v. United States, 270 U.S. 280, 283, 46 S. Ct. 253. The compensation which he may obtain in such a proceeding will be the same as that which he might have been awarded had the defendants instituted the condemnation proceedings which it is contended the statute requires. Nor is it material to inquire now whether the statute does so require. For even if the defendants are acting illegally, under the act, in threatening to proceed without first acquiring flowage rights over the complainant's lands, the illegality, on complainant's own contention, is confined to the failure to compensate him for the taking, and affords no basis for an injunction if such compensation may be procured in an action at law. [Footnote 3] The Fifth Amendment does not entitle him to be paid in advance of the taking. Crozier v. Fried Krupp Aktiengesellschaft, 224 U.S. 290, 306, 32 S. Ct. 488. Compare Backus v. Fort Street Union Depot Co., 169 U.S. 557, 568, 18 S. Ct. 445; Bragg

[Page 285 U.S. 95, 105]

v. Weaver, 251 U.S. 57, 62, 40 S. Ct. 62; Joslin Manufacturing Co. v. City of Providence, 262 U.S. 668, 677, 43 S. Ct. 684; Dohany v. Rogers, 281 U.S. 362, 366, 50 S. Ct. 299, 68 A. L. R. 434.4

As the complainant has a plain, adequate, and complete remedy at law, the judgment is reversed, with direction to dismiss the bill without prejudice.

Reversed. Footnotes

Footnote 1 The allegation is: 'That the acts of the defendants in setting apart this property as a floodway and diversion channel and in advertising for and receiving bids for the doing of the proposed work, to wit, the construction of the guide levees and the contemplated acts of the defendants in the awarding of contracts therefore (sic), has (sic) already had the effect of casting a cloud upon the title of complainant to his said lands and properties and have materially affected his use and enjoyment of the same and have materially affected and impaired the value thereof. That, the result of setting apart this area as a floodway or diversion channel and the publication by defendants of said advertisements for bids for the construction of the guide levees, this property has not only deteriorated in value but complainant's title to same has been seriously clouded, his use of same has been seriously affected, and complainant would be unable to borrow money on said lands, sell or dispose of same, or interest persons in operating said lands for farms or for any other purposes, owing to the fact that the Government has indicated that it has taken possession or intends to take immediate possession of this property for a diversion channel or a floodway. That, as a result of making this area, in which complainant's lands and those of others are situated, a floodway or diversion channel, these lands will be rendered unfit for agricultural or any other purpose. That the title to complainant's lands is seriously clouded by said acts, and his ability to use said properties or obtain credit thereon is seriously affected, and, as stated above, this property is well worth the sum of $9,000.00.'

Footnote 2 The following are the provisions of the act relevant to the payment of damages and of compensation for the taking of land.'Sec. 3. ... No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place: Provided, however, That if in carrying out the purposes of this Act it shall be found that upon any stretch of the banks of the Mississippi River it is impracticable to construct levees, either because such construction is not economically justified or because such construction would unreasonably restrict the flood channel, and lands in such stretch of the river are subjected to overflow and damage which are not now overflowed or damaged by reason of the construction of levees on the opposite banks of the river it shall be the duty of the Secretary of War and the Chief of Engineers to institute proceedings on behalf of the United States Government to acquire either the absolute ownership of the lands so subjected to overflow and damage or floodage rights over such lands.'Sec. 4. 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. ...'The Secretary of War may cause proceedings to be instituted for the acquirement by condemnation of any lands, easements, or rights of way which, in the opinion of the Secretary of War and the Chief of Engineers, are needed in carrying out this project, the said proceedings to be instituted in the United States district court for the district in which the land, easement, or right of way is located. ... The provisions of section 5 and 6 of the River and Harbor Act of July 18, 1918, are hereby made applicable to the acquisition of lands, easements, or rights of way needed for works of flood control. ...' 33 USCA 702c, 702d.

Footnote 3 Even where the remedy at law is less clear and adequate, where large public interests are concerned, and the issuance of an injunction may seriously embarrass the accomplishment of important governmental ends, a court of equity acts with caution, and only upon clear showing that its intervention is necessary in order to prevent an irreparable injury. Compare Osborne & Co. v. Missouri Pacific Ry. Co., 147 U.S. 248, 258, 259 S., 13 S. Ct. 299; New York City v. Pine, 185 U.S. 93, 97, 22 S. Ct. 592. No such showing was made here.

Footnote 4 See, also, Cherokee Nation v. Southern Kansas Ry. Co., 135 U.S. 641, 659, 10 S. Ct. 965; Sweet v. Rechel, 159 U.S. 380, 400, 407 S., 16 S. Ct. 43; Adirondack R. Co. v. New York State, 176 U.S. 335, 349, 20 S. Ct. 460; Williams v. Parker, 188 U.S. 491, 502, 503 S., 23 S. Ct. 440; Manigault v. Springs, 199 U.S. 473, 485, 486 S., 26 S. Ct. 127; Hays v. Port of Seattle, 251 U.S. 233, 238, 40 S. Ct. 125.