Cubbins v. Mississippi River Commission

delivered the opinion of the court.

The conditions out of which this controversy arises are substantially the same as those which we relied upon in Jackson v. United States, 230 U. S. 1 . We therefore here make a briefer statement of the topography of the country with which the case is concerned and of Ihe other general conditions involved than we would do if such were not the case, since if a fuller statement as to any particular aspect is desired, it can be readily found by a reference to the report of that case.

The complainant as the owner of a piece of land on the east bank of the Mississippi River adjacent to Memphis,

It was alleged that in flood seasons when the water in the Mississippi River rose above its natural low water banks, such water would flow out and over the vast basins in which the alluvial valley between Cape Girardeau and the gulf formed itself and would then either by percolation gradually flow back into the river or be carried over and through the basins by the streams flowing through them into the Gulf of Mexico where such streams emptied. It was further alleged that the land of the complainant, when the river in the flood periods was thus permitted to discharge its waters, was so situated that it was beyond the reach of overflow from the river. It was then alleged that in 1883 the Mississippi River Commission acting under the authority of Congress had devised a plan known as the Eads Plan by which it was contemplated that on both banks of the river, except at certain places which were stated, a line of embankment or levees would be built which in times of high water or flood would hold the water relatively within the lines of the low water banks, thus improving navigation by causing the water to deepen the bed, and saving the country behind the levees from inundation. It was averred that to further this plan the various state levee boards which were made defendants were organized and that all of them within the scope of their power and the limits of their financial ability had aided in carrying on this work and that as the result of their work and of the levees built by the Mississippi

It was charged “that the effect of the closing by the defendants of the natural outlets along the said river, and the confining of the flood waters between the levee system as a whole is to obstruct the natural high water flow of the water of said river in and along its natural bed for its entire length, thereby raising the level of the water to such an extent that said flood waters, within the last five years, have attained a sufficient height to flow over complainant’s land, and when there is now a high water stage in said river, the waters of said river accumulate, flow over and remain standing upon and over said lands of complainant to a depth of from four to eight feet, so that complainant is now being interrupted in the profitable use, occupation and enjoyment of his said land.” And it was further alleged that “said land is being covered with superinduced additions of . sand, silt and gravel, now from six inches to three feet in depth; the houses and fences thereon are being washed away, rendering the said land and the houses thereon unfit for occupancy, driving away the tenants, doing irreparable harm and injury to said land, impairing its usefulness, ",

It was averred that to obstruct the river'.as alleged was a violation of the legal rights of the complainant since he was entitled to the natural flow of the river within its natural high or low water bed free from interference by the acts of the defendants. Averring that no proceedings had been taken to expropriate the land and that no offer to pay for the same had been made and that the acts complained of constituted a taking without , compensation in violation of. due process of law under the Constitution of the United States, and that there was no adequate remedy at law, the prayer was for an injunction against the Mississippi River Commission and all its officers, employees, agents and contractors, wherever found, and against all the local levee boards and their officers, employees, agents and contractors, perpetually prohibiting them from further building any levees, from enlarging, strengthening, repairing or doing any act to maintain the levees already built and for general relief.

The bill was amended.by alleging that the overflow of complainant’s land as averred instead of having happened within five years had occurred within one year, and the original prayer was added to by asking that if it was found that the injunction prayed could not be granted, the case be transferred from the equity to the law side and be converted into a law action to recover from the Yazoo-Mississippi Delta Levee Board, the local Mississippi board which alone of the defendants had been served, the sum of five hundred thousand dollars as the value of the plantation alleged to have been wrongfully taken.

A motion by that corporation was made to dismiss the bill on the ground that -it stated no basis for relief, and in any event it alleged no ground for equitable jurisdiction since at best upon the theory that a cause of action was

At the threshold we put out of view as primarily negligibly contentions as to whether in any event, in view of the vast public interests which would have been detrimentally affected, the injunction prayed could have been granted, and whether the suit should not have been dismissed so far as the Mississippi River Commission was concerned on the ground that it was really a suit against the United States without its consent- and not a mere action against individuals acting as officers to prevent them from violating the rights of the complainant by taking his property without compensation. We say these contentions are negligible- because underlying them all is the fundamental issue whether under the averments of the bill there was any right to relief whatever, and to that decisive question we come. Its solution involves deciding whether the complainant as an owner of land fronting on the river had a right to complain of the building of levees along the banks of the river for the purpose of containing the water in times of flood within the river and preventing it from spreading out from the river into and over the alluvial valley through which the river flows to its destination in the Gulf, even although it resulted that the effect ■of thus keeping the water within the river was by increasing its volume to so raise its level as to cause it to overflow the complainant’s land.

While we are of the. opinion that in substance a negative answer tó the proposition must follow from applying to this case the doctrines which were upheld in Jackson v. United States, 230 U. S. 1 , and Hughes v. United States, id., p. 24, as the unsoundness of the distinctions attempted in the argument to be drawn between those cases and this,

1. Without seeking to state or embrace the whole field of the Roman law concerning the flow of water, whether surface or subterranean, or to trace the general differences between that law, if any, as it existed in the a,ncient law of the Continent of Europe whether customary or written, or ¿s it prevailed in France prior to, and now exists in, the Code Napoleon, one thing may be taken as beyond dispute, that not only under the Roman law, but under all the others the free flow of water in rivers was secured from undue interruption, and the respective riparian proprietors in consequence of their right to enjoy the same were protected from undue interference or burden created by obstructions to the flow, by deflections in its course, or any other act limiting the right to enjoy the flow or causing additional burdens by changing it. But while this was universally true, a limitation to the rule was also universally recognized by which individuals in case of accidental or extraordinary-floods were entitled to erect such works as would protect them from the consequences of the flood by restraining the same, and that no other riparian owner was entitled to complain of such action upon the ground of injury inflicted thereby because all, as the result of the

Demolombe after commenting upon Article 640 of the Code Napoleon generally dealing with the servitudes arising from the flow of water, and pointing out that under the Roman law as well as under the ancient French law and the Code Napoleon it was the. duty of proprietors whose lands bordered upon or were traversed by rivers to permit the water of such rivers to flow their natural course unimpeded and quoting the Roman law, “flurriinis nat-' uralem cursum non avertere” (L. 1, Cod. de Alluvionibus), additionally states that under both the Roman and ancient law and under the Code Napoleon such proprietors were bound “to undertake to do no work the result of which would be to change the direction of the stream or enlarge • its bed or to injure in any manner other proprietors whose lands border upon or are traversed by the stream,” (Demolombe, vol. 11, No. 30, p. 36). But the author at once proceeds to add that the principles thus stated in no way serve to prevent or to limit the right of proprietors whose lands border on or are traversed by rivers “from guaranteeing themselves against damage by defensive works constructed either upon the border of the rivers or in the interior of their property against either the permanent and insensible action of the rivers or streams or particularly against the damage caused by the accidental or extraordinary overflow of their banks; ‘Ripam suam adversus rapidi amnis impetum munire prohibitum non est.’ (L. 1 Cod de Alluv.) ” And proceeding, the author states that this right of the proprietors undoubtedly exists “even when the effect of the dykes or other works done will be, as is nearly always the case, to 'render the waters of the river more hostile and damaging to other properties, the owners of which would have no cause of complaint because each one is entitled to do the same in his own behalf,

2. Although in view of the conclusion just stated it is unnecessary to refer to the power of Congress to build the levees under the paramount authority vested in it to improve the navigation of the river, we cannot fail to point out the complete demonstration which that power affords of all want of legal responsibility to the complainant for the building of the levees complained of. In this connection it is to be observed that the complete application of this power is in the reason of things admitted by the erroneous assumption upon which alone the arguments proceed in seeking to avoid the effect of the well defined limitation as to accidental and extraordinary floods, that is, the erroneous contention as to the high water bed of the river which we have disposed of. We say this since it is apparent that if the property in the valley were to be treated as in the bed of the river, that would be true also of the property of the complainant, hence causing it to come to pass that as to such property so situated there would be no possible lawful ground of complaint to arise from the action of Congress in exerting its lawful power over the bed of the river for the improvement of navigation.

These conclusions dispose of the case without the necessity of recurring, as we proposed at the outset to do,

Affirmed.

Mr. Justice Pitney concurs in the result.