
    MATTIE W. JACKSON, WIDOW, ET AL. v. THE UNITED STATES.
    [No. 18274.
    Decided June 17, 1912.]
    
      On the Proofs.
    
    Crevasses on the right bank of the Mississippi operate as safety valves in allowing the escape of water into vast natural drainage basins in the rear, thereby appreciably lessening the height of the river in times of flood. The Mississippi Commission builds levees on the right bank exclusively, which dam the crevasses and prevent the escape of water into the drainage basins. The immediate effect is to increase the height of the river in times of flood; and the ultimate result is the prolonged overflow and thereby the ruin of plantations on the left bank of the river for agricultural purposes. When the general plan for improving the navigation of the Mississippi is adopted the Government engineers foresee the injury which will be done to agricultural lands on the left side of the river and calculate the cost of protecting those lands by levees but abandon the scheme because the cost will be greater than the value of the lands. The only question in the case is whether it comes within the decisions of the Supreme Court in Pumpelly v. (Preen Bay Go., and United States v. Lynah, or within the decision in Bedford v. United States.
    
    I.The injury to and destruction of agricultural lands on the left bank of the Mississippi, resulting from the Eads plan for improving the navigation of the river, do not constitute a taking of private property for public use coming within the decisions in Pumpelly v. Green Bay Company (13 Wall., 166) and United States v. Lynah (188 U. S. R., 445) but are consequential in character and damnum absque injuria, coming within the decision in Bedford v. United States (192 TJ. S. R., 225).
    II.It is established by the decision of the Supreme Court in Bedford v. United States that the Government may improve the navigation of navigable rivers by building revetments, resting only against the banks, to prevent erosion and preserve the natural course of the channel, and that the consequences, however injurious to the private property of riparian owners, are but natural results.
    III.Where the bed of the stream was not disturbed; where no cross-tide dams, jetties, or other improvements retarded the flow of the water, backing it up and causing it to overflow riparian lands; where the Government simply took the banks of the river as it found them and sought to preserve them in statu quo, there was no Constitutional liability.
    
      IV. Lands on the bank of a navigable river, are burdened with the servitude of a dominant right in the Government to improve the navigation of the river. The ownership of riparian lands on navigable waters is always subject to the consequences of governmental improvements in aid of navigation; though the actual taking of such lands would bring them within the safeguard of the Constitution.
    
      The Reporters’ statement of the case:
    The following are the essential facts of the case as found by the court:
    I. The alluvial valley of the Mississippi extends from Girardeau, Mo., on both banks, to the Gulf of Mexico, varying in width from 4 to 40 miles above the mouth of Ned River, and to a much greater distance below.
    It is topographically divided into six large basins, of which four are on the west bank and two on the east bank, and into many small basins.
    The St. Francis Basin extends from Cape Girardeau to Helena, Ark.
    On the west bank at Helena the White River Basin begins and extends to the mouth of the Arkansas River, and there are no highlands on the west bank of the river near the mouth of the Arkansas River, and but for that river there is no natural physical line of demarcation between the White River Basin and the Tensas Basin.
    Below the Arkansas River and still on the west bank lies the Tensas Basin, extending to the mouth of Red River, and there are" no highlands on the west bank of the river near the mouth of the Red River, and but for that stream there is no natural physical line of demarcation between the Tensas Basin and the Atchafalaya Basin.
    From Cairo to a short distance below Memphis, Tenn., on the east bank, the hills crowd closely to the river and form small basins, which prevent any large escape of high water.
    On the east bank, a short distance below Memphis, the Yazoo Basin begins, and extends to Vicksburg, Miss.
    On the east bank from Vicksburg to Baton Rouge the highlands abut on the river at Grand Gulf, Rodney, Coles Creek, Natchez, Ellis Cliff, Fort Adams, Tunica, St. Francisville, Port Hudson, and Baton Kouge, still further dividing this stretch of territory into smaller basins.
    Below the Ked Kiver, and still on the west bank, the Atchafalaya Basin extends to the Gulf, and on the east bank of Pontchartrain Basin extends from Baton Kouge, La., to the Gulf.
    These small basins on the east bank are shallow, and there is no escape for the flood waters of the river which flow into them except to return, to the river at and above the foot of each basin.
    The Jackson lands are situated at Jackson Point, in the Homochitto Basin, on the left bank of the river, 40 miles below Natchez and 25 miles above the mouth of Ked Kiver, and are located within the limits of a narrow strip of land lying between the Mississippi Kiver and the highlands east of it between Vicksburg and Baton Rouge, where the highlands abut on the river at Grand Gulf, Rodney, Coles Creek, Natchez, Ellis Cliff, Fort Adams, Tunica, St. Fran-cisvifle, Port Hudson, and Baton Kouge, and said lands are not and have not been protected by levee construction other than that built^ by claimants, which has been destroyed by flood waters in recent years.
    V. The basin in which the Jackson lands are situated commences at Ellis Cliffs, about 20 miles below Natchez, and extends to Fort Adams, about 50 miles below, with an average width of 2 miles and a maximum width of 6 miles, and is known as the Homochitto Basin.
    In the report of the Mississippi Kiver Commission for 1894 (pp. 2713-2714), to which reference is here made, when treating of the Homochitto Levee district, it says:
    “The commission is also advised of the pendency of a suit in the Court of Claims by the owners of a plantation within said district claiming damages for injury by overflow. * * * In the copy of the petition in said cause, furnished to the commission by the Department of Justice, it is alleged that the omission of the Hnited States to construct levees along the front of the land of petitioners constituted an adoption of the bluff behind the lands for the purpose of the levees and an appropriation of petitioners’ land for public use.”
    
      In 1895 and 1896 the Mississippi River Commission caused a complete survey to be made of the Homochitto Levee district by Col. Derby, the enginer officer in charge. The report of Col. Derby will be found on pages 3472-8473 of the commission’s report for 1896, and the maps made as a result of said survey will be found in Appendix 13 to said report, to all of which reference is here made. On page 3473 of said report, and on map (pi. 4) accompanying Col. Derby’s report, it is shown that the claimants’ lands are located in that small basin between Ellis Cliff and Fort Adams, and that the cost of building levees within that basin was at that time greater than the value of the land which such levees would protect, and other lands would not be protected thereby.
    In the report of the Mississippi River Commissin for 1896 (p. 3418), to which reference is here made, the commission says:
    “ Since the date of the last report complete surveys of the several minor basins comprising this levee district have been made. The general conclusion from these is that the frontage of these districts along the river is so short that the hack water of floods entering through the opening left at the lower end for local drainage of the basin and that coming from the hills will reach to the inner foot of the levee and submerge nearly, if not all, of the inclosed land. .
    “ Complete reclamation of these lands is, therefore, only practicable by treating them as polders and establishing an artificial drainage by pumps and floodgates. The surveys further show that the cost of the levees in most cases far exceeds the value of the land. Their area is so small that it can hardly be contended that their leveeing is important to the improvement of the navigation of the river.”
    In the Homochitto Levee district, from Vicksburg to Baton Rouge, on the east side of the river, the foothills are so located as to serve, and do serve, the purposes of a levee line in said district in times of high water, and the Government has not constructed any levees in that district.
    In the annual report of the Mississippi River Commission for 1910 (pp. 2937-2938), reference to which is here made, that commission in part says:
    “The attention of Congress has been called in former reports, beginning as far back as 1894, to the situation of the narrow and irregular strip of land lying between the Mississippi River and the highlands east of it between Vicksburg and Baton Rouge — a distance of 234 miles by the river.
    *****
    “ It appears to the commission that there are three possible ways of dealing with the problem. One is to assist the owners of the inundated lands by helping them to build levees where that method of protection is economically possible. Another is to compensate them in damages for the injuries which they have sustained. A third would be to buy the lands and devote them to forestry. There is more to be said in favor of the last of these suggestions than might appear at first blush. The lands are capable of growing many kinds of „ valuable timber. They could be made to produce much material for revetment and other works of improvement in the river. If the fields were abandoned to natural growth the land would be gradually built up by deposit and they might become highly valuable for cultivation.”
    During times of high water and overflow the water from the Mississippi River flows over the claimants’ said land and leaves a deposit of silt and sand thereon, and has done so during seasons of high water and during times of overflow, which is shown by the gauge readings, for various years as far back as the year 1828, which is as follows:
    Years. Cairo. Helena. Lake Providence. Vicksburg. St. Joseph. Natchez. Red River Landing,
    1828. 43.11 46.38 48.4
    1844. 42.21 46.18 47.8
    1849. 46.38 47.5
    1850. 42.81 47.08 45.3
    1858. 49.56 44.61 46.98 47.8
    1859. 46.8 43.61 48.28 49.0
    1862. 50.76 46.40 40.87 50.3
    1865. 47.9 46.43
    1867. 51.0 45.82 49.02 47.9
    1868. 45.6
    1871. 43.8
    1872. 39.20 39.03 35.15 39.85 39.42
    1873. 41.55 40.00 36.12 40.60 40.15 39.02
    1874. 47.37 45.82 37.37 45.70 45.60 47.0
    1875. 45.12 42.40 37.29 43.0 41.85 40.45
    1876. 46.38 44.85 37.95 44.90 43.85 45.41
    1877. 40.52 41.80 35.82 41.60 40.70 40.55
    1878. 37.04 38.75 35.80 40.95 39.2
    1879. 36.50 37.25 36.0 39.45 36.8 35.90
    1880. 44.60 43.70 38.05 44.05
    1881. 45.80 43.74 36.17 41.85 40.8 40.10
    1882. 51.87 47.20 38.32 48.75 44.9 47.75 48.50
    1883. 52.17 46.90 36.47 43.80 44.0 45.20
    1884. 51.79 47.00 38.40 49.0 47.4 47.30
    1885. 39.0 40.70 35.55 42.4 38.37 42.6 41.96
    1886. 51.02 48.10 37.91 41.94
    1887. 48.50 46.40 38.01 44.70 44.2 43.0
    
      Years. Cairo. Helena. Lake Providence. Vicksburg. St. Joseph. Natchez. Red River Landing.
    1888. 45.35 42.80 38.10 44.18 43.4 41.75
    1889. 34.53 34.10 29.40 34.45 30.60 34.15 33.94
    1890. 48.80 47.72 41.05 49.05 45.15 48.6 48.6
    1891. 46.21 44.70 41.00 48.10 43.80 46.5 45.5
    1892. 48.29 45.73 41.90 48.45 44.85 48.1 48.8
    1893. 49.33 47.92 41.85 48.30 44.10 46.8 47.7
    1894. 37.0 38.07 34.-40 40.90 '36.90 40.6 39.05
    1895. 33.0 31.30 25.90 31.70 27.85 31.5 31.2
    1896. 39.2 38.42 33.25 39.0 35.15 38.2 37.4
    1897. 51.62 51.75 44.54 52.48 47.85 49.8 50.2
    1898. 49.78 49.11 44.35 49.4 45.06 47.4 44.3
    1899. 46.24 46.75 41.65 47.3 43.25 46.15 43.3
    1900. 39.17 38.25 32.95 38.0 33.7 37.0 36.3
    1901. 43.20 41.45 36.45 41.5 36.9 39.8 37.3
    1902. 42.14 39.58 34.95 41.22 37.15 40.25 38.8
    1903. 50.57 51.00 46.48 61.8 48.07 50.35 50.08
    1904. 49.01 47.62 42.5 46.85 42.75 45.50 43.7
    1905. 38.56 37.77 36.5 40.75 37.4 41.27 40.77
    1906. 46.90 47.05 43.7 47.15 43.75 46.7 44.7
    1907. 50.33 50.39 46.3 49.65 46.15 48.9 46.9
    1908. 45.55 45.2 44.1 47.8 44.75 48.9 48.74
    1909. 47.27 47.65 44.3 48.0 45.15 47.91 46.04
    1910. 42.2 40.7 36.9 40.6 36.3 39.8 38.5
    VI. The Jackson lands have been entirely overflowed in the years 1890, 1892, 1898, 1897, 1903, 1907, 1908, and 1909, and partially overflowed in the years 1891, 1898, and 1906, and only saved from overflow by the private levee of Jackson in 1899 and 1904.
    That said lands were partially overflowed in 1906, overflowed three times in 1907, five times continuously in 1908 for a period of 129 days, and two times successively in 1909, it requiring a flood stage of 43 feet on the river gauge at Natchez to reach and flow the Jackson land.
    The effect of the frequent and successive overflows in the years 1906, 1907, 1908, and 1909 was to drive away the tenants, cover 1,700 acres thereof with sand and silt deposits from 6 inches to 6 feet in depth; said land has grown up with weeds, young willows, and cottonwood from 6 to 15 feet in height; many of the buildings, houses, and cabins formerly on said lands have been lifted from their foundations and washed into the fields, the floors torn up, the fencing on said land washed away and torn to pieces by the swift currents of the water running over said land; and that said lands have been destroyed for agricultural purposes and have no market value.
    VII. Prior to the year 1890 the unprotected lands of claimants could be, and were, successfully and profitably cultivated during certain years. Since the year 1890, and by reason of the efforts of the United States to improve the navigation of said river along and in front of the land of claimants in the interest of navigation and commerce, in pursuance of various acts of Congress, and by closing up the natural outlets along said river existing prior to that time, the overflows from the waters of said river are now occurring at more frequent intervals and for a longer duration.
    From 1870 to 1890 there had been great floods in the years 1874, 1882, and 1884, which partially and fully flowed the Jackson lands, but that the occurrence of such overflows did not materially affect their productive capacity or impair their value.
    VIII. All the efforts of the State and local authorities on the west bank of the Mississippi River, near the land of claimants, had never succeeded in erecting and maintaining levees on that bank sufficiently high and strong to hold the flood waters in the channel of the river, and therefore claimants’ lands were flowed for a short time only, the waters escaping through the natural outlets and crevasses into the basins and from said basins into the Gulf of Mexico.
    The combined work of the United States, States, local authorities, corporations, and private owners did not succeed in preventing crevasses in the general levee system along the Mississippi River until the year 1908, the first flood year, without a crevasse in the levees.
    IX. From time immemorial the waters of the Mississippi River during the highest stages thereof, when not contained within the low-water banks of the river, naturally found outlet below Cairo into the St. Francis Basin and below the highlands near Helena, Ark., in the White River, Yazoo, Tensas, Atchafalaya, and Pontchartrain Basins, and through the rivers draining these basins eventually into the Gulf of Mexico. The outlets and drains thus provided by nature were such as to accommodate said flood waters, and the lands of claimants were not overflowed as frequently before the outlets were closed by levee construction by the United States to improve the river navigation, and by the State and local authorities to protect and reclaim land subject to overflow in times of high water, and consequently were but little injured by said overflows.
    X. Prior to the year 1883 the States and local authorities had constructed unconnected lines of levees for the protection and reclamation of lands subject to overflow from the mouth of Red River to the mouth of Arkansas and from the mouth of the Yazoo to the highlands below Memphis. The flood waters of 1882 destroyed miles of these levees.
    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 other acts amendatory thereof, and for the improvement of the Mississippi River for navigation, adopted a plan, the so-called Eads plan, and in consequence thereof have projected and constructed and maintain and are now engaged in constructing and maintaining certain lines of levees on both sides of the river at various places for various distances from Cairo, Ill., to near the Head of the Passes, a distance of 1,050 miles by river from Cairo, and the local authorities or organizations of the States bordering along the river on both sides from Cairo to the Gulf have before and since 1883 constructed 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.
    The levee lines so constructed by the United States and local authorities have been joined, thus giving a continuous line of levees, as contemplated by the Eads plan, with the result that the flood waters of the Mississippi River to a great extent are confined within and between said levee lines and encompassed within a narrower scope than heretofore, acquired an increased velocity and higher elevation and the current thereof has become stronger and more forceful.
    The plan of the officers and agents of the United States so acting was to increase said velocity and scouring power of the water and to scour and deepen the channel of the Mississippi River and thereby improve it for navigation, and the purpose of the officers and agents of the State and local authorities constructing lines'of levees at various points along and on both sides of the river was to reclaim and. to protect land from overflow in times of high water. By so doing, the waters being thus confined within a narrower compass, as above indicated, have attained a higher elevation of approximately 6 feet in times of high water.
    XI. From Cairo, Ill., to near the mouth of the Yazoo Fiver, just north of Vicksburg, the Mississippi Fiver is practically leveed on both sides, except on the east side, where the highlands abut on or near the river in Kentucky and Tennessee (from Port Jefferson, Ky., to a short distance south of Memphis, Tenn.) and thence on the west side to near the Head of the Passes, or to a point 1,050 miles by the river from Cairo, and on the east side from Baton Fouge to the same point near the Head of the Passes, leaving a gap in the line of levees of 234 miles in length, from the mouth of the Yazoo Fiver to Baton Fouge, unleveed, where the foothills in some places hug closely to the east bank of the river, and at other points are from 2 to 6 miles from the river, in which strip of territory the lands of claimants are located between the highlands and the river, as before stated.
    The extension of the general levee system by the United States and the local authorities, since the United States adopted to its use and assumed “ permanent control ” of the levees theretofore constructed by State and local authorities, has resulted in an increased elevation of the general flood levels, which subjects the claimants’ lands to deeper overflow than they were subject to formerly, or would be subject to now, if the levee system were not in existence, and consequently has destroyed its value for agricultural and grazing purposes, causing its abandonment for that purpose since the year 1908. The immediate cause of the deeper overflow of claimants’ land is the increased elevation of flood heights which is the result of the general confinement of the flood discharge by the levee system as a whole.
    During the flood waters of 1882, the levees failed throughout the length of the river. In 1884, the crevasses were still open in the basins. In 1886, crevasses were open in the Upper Tensas district and the levees practically intact in the Lower Yazoo district opposite the Upper Tensas. In 1881, all crevasses were closed. In 1890, there were eight crevasses in the Upper Tensas and seven in the Lower Yazoo districts. In 1891, all 1890 crevasses were closed and the flood waters of that year made one crevasse in the Upper Tensas and one in the Lower Yazoo districts. In 1892, all crevasses were closed, but the flood waters made six crevasses in the stretch of river in the Upper Tensas district. In 1893, all crevasses were closed, but the flood waters of that year made four crevasses. In 1891, all crevasses were closed, but the flood waters of that year made five crevasses in the Lower Yazoo district in Mississippi. From 1898 to 1902, there were no crevasses, and only one crevasse in the Upper Tensas district in 1903, and all crevasses closed from 1904 to 1910.
    XIII. Before the joining of the levee lines by the United States in accordance with the Eads plan (thus making the same continuous), there were occasional overflows of claimants’ land, but they have been made deeper, more frequent and more forceful by the adoption and completion of the levee system. However, these overflows, before the adoption of said system, did not materially damage said land and it remained still valuable for agricultural purposes.
    XIV. From 1896 to 1908 there was raised and sold on the Jackson land the.following crops of cotton.
    Season. Bales. Value. Season. Bales. Value.
    1896-97... 707 825,960.42 1903-4.. 230 $14,781.36
    1897-98... 481 12,508.26 1904-5.. 564 25,943.54
    1898-99... 317 10.525.71 1905-6.. 571 34,388.80
    1899-1900. 567 28,265.51 1906-7.. 858 56,648.03
    1900-1901.. 645 1907-8.. 563 35,620.47
    1901-2_ 836
    1902-3_ 518 23,153.44 Total.
    During this time the levee line closing the Bougere crevasse opposite the Jackson lands had not been constructed, it being commenced in 1902 or 1903 and completed in 1910, and the levee system had not reached that state of completion which now exists, and claimants, with the aid of their private levees, now destroyed and washed away, and by replanting after overflow, were able to raise crops of the above value. By offsetting profits against losses from the cultivation of said land during the period from 1896 to 1907, inclusive, said lands were not profitably cultivated. Considering the number of acres of land cultivated by claimants and the amount realized from the sale of crops for said years, it cost about $25_ per acre to plant, cultivate, and gather a crop of cotton.
    XV. Before the creation of the Mississippi River Commission by act of Congress, and the adoption of the Eads plan as aforesaid, the levee lines along the Mississippi River theretofore constructed by State and local authorities consisted of a broken chain of levees of insufficient height and strength to confine the flood waters, and had been built without regard to a uniform grade line. The United States then caused a survey and report to be made by its officers and agents showing the condition and location of levee lines theretofore constructed by State and local authorities as they then existed. This survey suggested a proposed continuous system of levees from Cairo to the Head of the Passes. In many instances it was a blanket survey which encompassed and took in the lines of levees theretofore constructed by State and local authorities as above stated. The project recommended by the Mississippi River Commission adopting the Eads plan for the systematic improvement of the river from Cairo to the Head of the Passes was practically adopted by act of Congress approved March 3, 1881. The United States then undertook the projection and completion of a continuous line of levees from Cairo to the Head of the Passes, as suggested by this survey and the Eads plan, and as recommended by the Mississippi River Commission and, in furtherance of that plan and as part of and supplementary thereto, adopted to its use, and is now using, the levees theretofore constructed by State and local authorities, thereafter making them much larger and stronger. Since that time levee construction, whether done by the United States or State and local authorities, has been in conformity with the grades and methods of construction adopted by the Mississippi River Commission, and the efficiency of the levee system has been largely due to this fact.
    The extension of this levee system by the United States from Cape Girardeau, Mo., to the Head of the Passes was authorized by act of Congress in 1906. (34 Stats. L., p. 208.)
    
      The construction of the levees made the high-water bed narrower and was followed by increased flood heights, which made it necessary to build the levees higher and stronger from time to time. The grade established by the Mississippi River Commission to which levees should be built was from 2 to 5 feet higher than the highest known water until June, 1910, when that grade was changed by the Mississippi River Commission to 3 to 5 feet above the highest Imown water, and since then the levees have been raised or constructed in accordance with that grade.
    XVI. In the upper Tensas district, beginning at Amos Bayou, about 17 miles north of Arkansas City, and thence down to the Louisiana line, the United States had practically constructed the entire system, closing the upper Tensas Basin, having built 3,098,606 cubic yards, against 301,014 by local authorities, and added 1,202,884, against 41,187 by local authorities.
    The following table, compiled by the Mississippi River Commission, 1893, shows the yardage erected in said district :
    Cubic yards.
    In levees in 1882- 1, 788,301
    Built by the United States Government to June 30, 1892_ 3, 098, 606
    Built by the Tensas Basin levee board, 1891-92_176,073
    Built by Desha levee board, 1891-92- 27, 941
    Built by Chicot levee board (estimated)_ 100, 000
    5,190,924
    Less levees abandoned 1888-1892- 642, 000
    Total yardage in levees in 1892- 4, 548,924
    Levees built by United States Government to June 30,1893- 1,202, 884 Levees buflt by Tensas levee board, 1893- 41,187
    Jotal_ 5,792,995
    Less levees abandoned in 1893- 150,000
    Total yardage in levees in 1893- 5, 642, 995
    XVII. The work of levee improvement continued and to June 30, 1910, the commission had allotted to levees $27,927,329.40.
    
      The Bougere crevasse was closed and the levee line extended down to a point near the mouth of Red River.
    The Bougere crevasse is opposite the claimants’ lands, and the crevasse occurred during the flood of 1859. It remained entirely open until 1902 or 1903, when efforts to close it commenced, since when it has been practically closed by the United States and the local authorities extending the levee line downstream to a point near the mouth of the Red River.
    This levee closing the Bougere crevasse is 29 miles in length and 23.4 feet in height, furnishing a continuous line of levee opposite the Jackson lands. It was completed June 28, 1910. Its effect in flood times is and will be to produce an increased flood stage of about 4 feet of water on the Jackson lands in addition to the increased elevation of 6 feet in the flood height.
    The levee line immediately above and below the claimants’ lands which resisted the flood waters of 1908 was constructed in part by the United States and in part by the local authorities.
    The levee opposite claimants’ land was constructed by United States authorities alone.
    XVIII. The effect of closing the natural outlets along said river and confining the flood waters between the improved levee system by the United States and the local authorities to improve the river for navigation and to reclaim and protect the lands along the Mississippi River, respectively, is to obstruct the natural high-water flow of the waters of said river in and along its natural bed along and in front of the lands of claimants, thereby raising the level of the water of said river to the extent that when there is now a flood tide the waters of said river more frequently, but, as before levee construction, accumulate, flow upon, and remain standing upon and over said land for a longer period than it did prior to said levee construction, so that the claimants are now interrupted in the profitable use, occupation, and enjoyment thereof during the seasonable months of the years of overflow, and as a result of said water being now held on said land for a longer period than it remained prior to said levee construction and prevented from immediately flowing off, as it was wont to do before said levee construction, part of tbe said land, about 1,700 acres, has now become covered with additional superinduced additions of sand and silt, rendering that part of said land unfit for profitable cultivation and destroying its market value.
    
      Mr. Wattman H. Gonaway for the claimants. Mr. Wade B. Young was on the brief.
    The United States have known all along that they would have to assume the responsibility of making payment to landowners for the injuries sustained.
    In the report of the Committee on Commerce, United States Senate, for 1898,.page 358, Maj. B. M. Harrod, a member of the Mississippi River Commission, when examined by Senator Gallinger, said, under oath:
    “ Q. Has the commission given any serious thought to the matter of damages which might be claimed against the Government on account of the construction of levees ?
    “ I understand there are already claims 'filed against the Government aggregating a very considerable amount. Now, assuming that the Government takes charge of this matter and becomes individually responsible, has the commission given any consideration to the possibility of enormous claims being piled up against the Government as a consequence?
    “A. None beyond the recommendation that was made in two or three successive reports referring the matter to the attention of Congress when the claims were made. The commission, after having done that, has done nothing more.
    “ Q. Will you state in what reports that matter may be found?
    “A. In the reports of 1895 and 1896,1 should say.”
    The recommendations referred to by Maj. Harrod are, that provision should be made by Congress for the settlement of these claims.
    The testimony referred to shows conclusively that the Government had knowledge of the responsibility it was undertaking to assume.
    The “taking” in the Lynah case (188 U. S., 445) was decided under the doctrine established in the Pumpelly case (13 Wall., 166), and authorities there cited.
    
      The law laid down in the PumpeTly case, supra, and followed by the Lynah case, supra, and similar overflow cases, is the established law of the land. Neither have been overruled, but frequently approved by subsequent decisions.
    
      Monongahela N avigation Go. v. United States (148 TJ. S., 312, 336); Scranton v. Wheeler (179 TJ. S., 141, 153).
    The doctrine established by the Transportation Go. case, supra, has no application whatever to the Jackson case. In the Jackson case there is a physical invasion of 1,700 acres of land now covered with sand and gravel from sis inches to six feet in depth; the land has grown up with cottonwood and willows some 15 feet in height and is now abandoned.
    The Mills case (46 Fed., 738), Gibson case (166 TJ. S., 269), Scranton case (179 TJ. S., 141), and Bedford case (192 TJ. S., 217) have been interpreted, distinguished, and applied in Manigault v. Springs (199 TJ. S., 485), and after distinguishing between cases involving incidental, anticipated, and consequential injury the Supreme Court says:
    “We think the rule to be gathered from these cases is, that where there is a practical destruction or material impairment of the value of plaintiff’s land there is a taking, which demands compensation.”
    We submit that there has been a practical destruction and material impairment of the value of the Jackson land and that there is a taking demanding payment of compensation. The Jacksons have been ousted of their possession and driven from their lands. Every element of a “ taking ” has been proven.
    Briefly, the important facts in the Jackson case for comparison are:
    “ The United States connected up an unconnected and disjointed system of levees for a distance of about 725 miles north of the Jackson land confining the flood waters between the improved levees on one side of the river and the levees or foothills on the other, which levees in some places are as much as 23.4 feet in height. The flood waters are now permanently confined in that narrow channel between the embankments. From Vicksburg to Baton Rouge no levees have been built on the east side of the river where the foothills bug closely to the river bank, the foothills serving the purpose of levees. Opposite the Jackson land there has been a crevasse in the river bank open since 1859, which furnished an outlet for the flood waters. Prior to 1890 the waters did not materially injure the Jackson land. The flood waters passed off through said crevasse and other natural outlets into the Gulf, speedily reducing the flood heights. This crevasse was something like 29 miles in length. The Government began in 1902 to close this crevasse by building the Bougere Levee, 28.4 feet in height, which was completed June 28, 1910, producing an increased flood height of nine feet or more on the Jackson land, subjecting it to “ perpetual inundation,” as reported by the commission in 1910. The Jackson land, as the result of the works of the United States, has been destroyed and abandoned for agricultural and all other purposes, 1,700 acres or more having from six inches to six feet of sand on them, and are grown up with cottonwood and willows some 15 feet in height.”
    The Jackson case is stronger than either of the other cases and better proven. The works of the United States do not invade the Jackson land, but it is invaded by the presence thereon of water, sand, gravel, etc., as the result of the works, which was true in all other cases in which the law has been settled. Then what conceivable difference is there between the Jackson, the Lynah, and PumpeTly cases, supra, in point of facts and principles ? There is none. They are as nearly identical as is possible to find cases, except that the Jackson land is subject to a much deeper overflow and more injured than the others.
    
      Burwell v. Hobson (12 Gratt., 322); O’Connell v. The East Tenn., Va., and Ga. B. Co. (87 Ga., 246); Garnish v. Clouch (48 N. H., 9); Cairo, V. C. B. Co. v. Brevoort (62 Fed., 129); Parker v. City of Atchison (48 Pac., 631-632; Shane v. The Kansas City, Si. Joseph and Cowncil Bluffs B. Co. (71 Mo., 237).
    It should be clearly apparent that the law applicable to the Jackson case has been settled in other cases involving the same principles.
    If the United States had constructed levees on the east bank, from Vicksburg to Baton Bouge, to confine the flood waters on that side, instead of using the base of the hills for the purpose, and had located those levees on or near the banks of the river, there would have been a taking both of the right of way and of the land between the line of levee and the river.
    Now, if the United States, instead of constructing levees on the east bank to confine the flood waters, finds it cheaper to use the base of the hills skirting the river for the purpose, and thereby places the lands within the adopted channel, how can it be said that there is any the less a taking of the lands as a part of the high-water bed of the rivers ?
    It is not a case in which the United States has intervened to protect private property from overflow, but one in which the United States for its own purposes has diverted the flood waters from their natural course through the basins and has confined them to the adopted channel; and if it has taken the land of the claimants as a part of that channel, by putting them between the line of levee and the bank of the river or by using the highlands skirting the river instead of levees to confine the flood waters, it is as much a taking as if there had been an actual physical invasion and appropriation, King v. United States (59 Fed. Bep., 9).
    This opinion has been aflirmed by the Supreme Court in Lynah case, supra, and in Lowndes v. U. S. (105 Fed. Bep., 838).
    All the more should it be the law when the moneys are appropriated and the levees built to deepen the channel and improve the navigation of the river, and officers and agents of the United States, authorized to confine the flood waters to the channel, construct and adopt levees elsewhere, but deliberately, and upon their own confession, adopt from Vicksburg to Baton Bouge, a channel bounded on the east bank by the highlands, and place the lands of the claimants in the adopted channel between the foothills on one side and the levee system on the other and subject them to the torrents of flood waters coming from above with such increased heights and velocity and force as to render them unfit for cultivation and to entirely destroy their value.
    If this not a taking within the intendment of of the Constitution, then, in the terse and vigorous language of Justice Miller, we have that curious and unsatisfactory result, 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 has 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, that if the Government refrains from the absolute conversion of real estate to the use of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of the word, it is not taken for public use.
    “The injured proprietor is equally entitled to redress whether the damage is caused by a diversion of water, by back water, by inundation from above his land, or by percolation of the water through the banks.” (Gould on Waters, sec. 209, and notes.)
    In the words of the Supreme Court in Pumpelly v. Green Bay Oo., supra:
    
    “ The backing of the water so as to overflow the lands of an individual, or any other superinduced addition of water, earth, sand, or other material, or artificial structure placed on land, if done under statutes authorizing it for the public benefit, is such a taking as, by the constitutional provisions demands compensation.
    “ It is not necessary that the property should be absolutely taken, in the narrowest sense of the word, to bring the case within the protection of this constitutional provision, but there may be such serious interruption to the common and necessary use of the property as will be equivalent to a taking, within the meaning of the statute.”
    The growing crops, the building and the fences were part of the land, and it is not easily to be understood how the Government could have taken the land without at the same time taking the growing crops, buildings and fences, which were part of it, as no such distinction has heretofore been made in the jurisprudence.
    To the contrary, it seems to be the accepted doctrine that:
    “ If growing crops are destroyed by the appropriation of the right of way and entry thereunder, or if they are injured, the owner is entitled to compensation therefor.” (American and English Encyclopedia of Law, vol. 6, p. 550.)
    
      The crops of 1907, 1908, and 1909 were made at the time of the flowing for these years, and were hanging by the roots in the fields.
    If there had been an actual entry and appropriation of the lands at the time, and destruction of the crops thereon, the United States would be as much obligated to make compensation for the crops destroyed as for the lands, buildings, and fences.
    This is a principle which has always been recognized and applied in the construction of levees, and has never been questioned, that if the sovereign, in the exercise of the right of eminent domain, appropriates lands for the construction of levees and thereby injures or destroys growing crops on the lands, the sovereign is as much obligated to make compensation for the crops injured or destroyed as for.the lands taken. {Richardson v. Levee Commissioners, 68 Mississippi, 539.)
    Such losses have never heretofore been regarded as consequential damages. Now, upon the principle settled in the PumpeTly case, supra, the flowing of the lands constitutes a taking, as much an actual entry and appropriation as if there had been a physical ouster.
    Upon what principle, then, can it be held that the Government is under an implied obligation to make compensation only for the value of the land and not for the value of the buildings, fences, and growing crops injured or destroyed in the takings?
    The United States having assumed permanent control of, and adopted to their use, the levees built by State and local authorities, knowing that the right to use them could only be obtained by payment of just compensation to the landowners who had and would suffer injury by overflows as the result of their act, they, in legal effect, assented to the performance of this obligation, and an implied promise to make just compensation can be maintained against the United States. Lewis on Eminent Domain (secs. 887-8, p. 1543-4); Oregan v. Memphis R. R. Co. (51 Ark., 235); N. 7. R. R. Co. v. Hammond (132 Ind., 475) ; Rio Grande R. R. Co. v. Artis (75 Tex., 602); First Am. E. E. & Cor. (Eep., 344).
    
      This doctrine has been applied to railroad companies who, exercising the right ot.eminent domain, and without payment of compensation, take private lands for their use. The roads were then transferred to another company, as vendee, who, knowing of the obligation to make payment of compensation to the landowner for the land originally taken, elects to use the land for the purposes for which it was originally taken; that is, use it for railroad tracks in operating its railroad. The courts hold that the purchaser and vendee of the railroad is liable to the landowner for the value of his land taken on an implied promise to pay.
    The works of the United States in this Jackson case, by joining the levee system as a whole in pursuance of the Eads plan, and the erection of the Bougere Levee, which holds and deflects the flood waters causing the taking, was authorized by the numerous acts of Congress, and was carried on under the direction of the Mississippi Eiver Commission, a fixed tribunal created and maintained by the United States for the sole purpose of supervising and directing levee construction along the Mississippi Eiver and its tributaries.
    The court can well imagine the temporary flowing of the Jackson land before the completion of the Bougere Levee on June 28, 1910, and the present effect of that levee, 23.4 feet high and 29 miles in length, which checks and holds the flow of water from passing into its former natural outlet, deflecting it across the river and holding it on the Jackson land to a depth of 9 feet or more.
    This is what caused the ultimate taking of the Jackson land. It is overflowed in part by the completed levee system above, dumping the water onto the land. When it gets on the land it is prevented from flowing off by the Bougere Levee, located on the opposite side of the river, and the completed levee system below, which checks the outlet capacity of the flow of the river, as in the Lynah case. In this particular the cases are similar in point of fact.
    As stated by this court on page 10 of its opinion in the Archer case (No. 30411), filed February 12,1912:
    “ In this connection it may be remarked that the levee system as constructed and kept up by the local authorities had not materially damaged these lands, and it was not until the system bad reached ‘ that state of completion which now exists ’ * * * that they were inundated with sand and gravel.”
    This conclusion reached by the court in the Archer case is the correct one and embodies .the views of counsel for claimants in this Jackson case. The conclusion, therefore, is that the “ taking ” was produced, and has resulted, from the connecting up of the levee system as a whole, and the erection of the Bougere Levee by the United States, under the direction of Congress, as stated by the commission in its report for 1910, which, as we insist, eliminates the question of joint liability as between the States, local authorities, and the United States.
    Until the levee system “ reached that state of completion which now exists ” the injury was temporary and continuous in the nature of a nuisance. This was produced by the works of the local authorities and occurred in part before the United States undertook its improvement under acts of Congress adopting the Eads plan. The “ taking ” would not have occurred had the United States kept hands off and left the natural outlets open and the levees in their disjointed and unconnected condition. It was the work of the United States in carrying out the Eads plan, adopted by acts of Congress, when completing the levee system as a whole, and building the Bougere Levee, which produced the taking.
    It is in evidence that by utilizing the combined resources of the States bordering on the river for levee purposes the local authorities could not have accomplished in an ordinary lifetime what the United States have accomplished in a very few years. The enormous amount of money spent by State and local authorities in levee construction covers a period embracing almost a century, while the millions spent by the United States producing the permanent injury and taking have been appropriated and expended in a comparatively few years.
    The “ taking ” was authorized by Congress when it adopted the Eads plan and afterwards appropriated public moneys to carry it into effect. The carrying of the Eads plan into effect and the building of the Bougere Levee produced the taking. The taking would not have occurred if the Eads plan bad not been carried out and the Bourgere Levee constructed. The United States are alone responsible ior the injury. This being true, then the demand of claimants is founded upon the laws of Congress authorizing the work to be done, the adoption of the Eads plan specifying what should be done, and the building of the Bougere Levee, irrespective of the question of joint liability.
    In the decision of this court in the Aroher case, handed down on February 12,1912, it is stated:
    “ Hence, both by the construction of the dike and the completion and joining as a whole of the levee system, the United States alone has taken the claimants’ lands. This joining of the locally constructed levees and the erection of the dike was in furtherance of the Government project alone — -the confinement of the river within its banks and thereby to improve navigation.”
    To paraphrase the above language and apply it to the iJackson ease (and we insist it is equally applicable) we have:
    “Hence, both by the construction of the Bougere Levee, twenty-nine miles in length, and the completion and joining as a whole of the levee system, the United States alone has taken the claimants’ lands. This joining of the locally constructed levees and the erection of the Bougere Levee was in furtherance of the Government’s project alone — the confinement of the river within its banks and thereby to improve navigation.”
    Again, let us refer to same page of court’s opinion in the Archer case and paraphrase the language of the court immediately following the quotation last above given by inserting the words Bougere Levee in the place of the words Leland Dike used by the court.
    It is the contention in this Jackson case that both by the completion and joining of the levee system as a whole and the erection of the Bougere Levee, 29 miles in length, by the United States alone, which was not completed until June 28, 1910, and 23.4 feet in height, holding the water and deflecting it to the opposite side of the river, operated the destruction of the Jackson lands — both being in furtherance of the Government project alone, as was true of the completed levee system and the dike in the Archer case. We insist that there can be no distinction, however closely drawn, between the Archer and -the Jaclcson cases. They are identical. The only possible difference is this.
    In the Archer case the dike is located on the Archer land. The Archer case is the only overflow case, either in the Court of Claims or before the Supreme Court of the United States, where the works of the United States actually invade the land.
    It is not an actual invasion by the works of the United States which controls the question of a taking and makes the Federal Government liable for just compensation. The invasion may occur by the presence on the land of water, earth, sand, gravel, cottonwood, willows, underbrush, or other stuff placed thereon as the result of the works. This has been decided in all overflow cases. (Pumpelly v. Green Bay Go., 13 Wall., 166; King v. U. S., 59 Fed., 9; Gould on Waters, sec. 209 and notes.)
    There was no actual invasion by the works of the United States in the Lynah case, none in the ’Williams case, none in the King case, none in the Pumpell/y case, none in the Kennedy case, none in the Welch case, none in the Grazzard case, none in the Sewell case, none in the Walls case, none in the Tomkins case, none in the Margaret Virginia Smith case, none in any Savannah or Monongahela River cases thus far decided by this court and the Supreme Court.
    In no case, save Archer's, have the works of the United States invaded the land, yet the claimants recovered in all these cases.
    Then why make a single exception of the Jackson case?
    
    When the Jackson case is carefully considered, in the light of the evidence submitted in all other overflow cases, it is the best proven case yet submitted for decision in any of the courts referred to and is stronger in principle than any of the other cases.
    Until the flood water was checked and deflected in the direction of and onto the Jackson land, by the completion of the Bougere Levee, it still had some value, but in recent years it has been abandoned.
    
      The United States, being a public body, speak only through their representatives. They can not speak directly like the individual. Their intent can only be gathered from long-continued .and successive acts.
    The original petition, filed in 1894, charges the United States with the use and adoption of the foothills. The only answer made to that petition is to be found in the report and surveys made by Col. Derby in 1895; the testimony of Maj. Herrod, stating that the foothills hug closely to the river and serve the purposes of levees; the further testimony of Maj. Herrod and Smith S. Leech, saying that it was cheaper to flood the land and pay the damage than to build levees. This is corroborated by the commission’s report of 1896 and 1910. It is said in the report for 1910 that the lands are now subject to “ perpetual inundation ” and that the people have no “ possibility of relief.”
    Water is called “ flood water ” only when it rises so high as to overflow its bank. Revetment then becomes submerged and serves no purpose until the flood tide recedes.
    Before being confined between the improved levee system, and the water permitted to take its natural course, the flood waters of the Mississippi River did not materially affect the Jackson land either in value or productive capacity.
    The revetment in Bedfords’ case was intended to prevent erosion, and the washing of the face of the river bank, below the top of the bank, when the river was navigable and the water confined within its low-water channel.
    Flod waters of the Mississippi River make navigation impossible. Their confining is not intended to make the river navigable in 'flood times. Navigation in time of floods is stopped because1 of the disastrous effect which the high waves, coming from the boats, have on the levees. The beating of the waves have a tendency to impair and lessen their stability and efficiency.
    Levees are built on top of the surface of the land, far removed from the river bank, and intended to confine flood waters against the unrestrained natural flow of the river, in low-water time, as the river then, flowed from the result of natural causes, the current of which was washing the face of tbe river bank, below the top of the bank, and if continue^ unrestrained might injure or threaten navigation, and that the Federal Government had the right to revet the bank, resisting the continued erosion made by natural causes, and preserve the natural conditions, without being liable for any injury done the Bedford land. We do not question this doctrine when applied to a proper case.
    The revetment could not serve any purpose in times of flood. It is submerged and loses its usefulness. It is intends to hold the water in its adopted course in low-water time.
    Without going into the question of whether or not the injury to the Bedford land could be assigned to the revetment, as often stated by the Supreme Court in other cases and twice stated by this court in the Walls and Heyward cases, claimants frankly say that they do not question the dominant right of the Federal Government to preserve the navigability of a navigable stream by revetting a river bank to hold the water in the channel of the stream made by the river itself from its natural flow and causes, in low-water time, without being liable for damage by overflow, but they respectfully submit that this doctrine does not apply to the confining and deflecting of flood waters by a completed levee system after the water gets beyond the river bank in flood time, which is the only time that levees serve any purpose whatever.
    If the Bougere crevasse had been an outlet for the water of the river, in low-water time, as wa strue of the cut-off in Bedford’s case, and it was necessary to close that outlet to preserve the main channel of the river, in aid of navigation, in low-water time, and thus preserve the channel of the river to improve navigation, but the closing of which caused the water, in low-water time, to overflow and injure the Jackson land, then it might be contended that the doctrine established by the Bedford case could possibly be applied to the Jackson case, but under the facts presented in the two cases there is no similarity between them, and this doctrine adhered to in Bedford’s case certainly does not apply to the Jackson case.
    
      The court should not lose sight of the distinction to be drawn between revetment to hold the water in the channel in low-water time and the building of levees to confine the water in flood time.
    The established law of the land as to flood waters and damage produced by their confinement is to be found in the. case of Cairo R. R. Co. v. Brevoort (62 Fed., 129); also Barden v. City of Portage (79 Wis., 126).
    
      Mr. W. W. Scott (with whom was Mr. Assistant Attorney General Thompson) for the defendants.
    What is known as the channel of the Mississippi River will contain so much water. When the flood waters passing Cairo are of such great volume that the channel will not contain them, in the absence of levees they would flow into the St. Francis Basin in Missouri and Arkansas, the head of which is near Cairo, and would continue the flow in the St. Francis Basin to the foot of that basin near Helena, Ark. In the absence of levees the flood waters would then cross the low-water channel of the river and enter the Yazoo Basin in northern Mississippi at its head near Helena and flow southward- to the foot of that basin north of Vicksburg and where the Yazoo River enters the Mississippi, and there again cross the river and enter the Tensas Basin and continue its flow southward on that side of the river, entering the Atchafalaya Basin, and through that basin and its drainage into the Gulf of Mexico.
    The Jackson land is located on the east side of the river in what is known as the Homochitto Basin, almost opposite the lower end of the Tensas Basin, and at this point is the Bougere crevasse, which from 1859 until its closing, commenced in 1902 or 1903, had a length of approximately 29 miles. ,
    If the Government of the United States is responsible for the increased flood heights and the consequent flowing of the Jackson land, it must be found as a fact that the United States Government has, for purposes of improving the river for navigation, taken all levees constructed by the local organizations in the various States bordering on the river from Cairo to the Head of the Passes, and no evidence has been offered to establish such fact. This question was before the Supreme Court of the State of Louisiana in the case of Munson et al. v. The Board of Commissioners.
    
    The articles 213 and 214 of the constitution of Louisiana referred to by the supreme court of that State provide for the levying of taxes by the levee commissioners of that State for the construction of levees along the Mississippi Eiver.
    The third section of claimants’ original petition is almost identical with the seventh section of the first supplemental petiton, and these two sections undertake to state a “ taking by the United States ” for the purpose of improving the river for navigation by alleging that the Government has—
    “ for said purpose adopted and made use of systems of public and private levees, originally constructed for the reclamation of overflowed lands, on the west bank from the highlands of Arkansas to the mouth of the Eed Eiver, and from the mouth of the Eed Eiver to the Passes, and on the east bank from the highlands of Tennessee to the mouth of the Yazoo Eiver, and from Baton Eouge to the Passes.”
    The question whether or not the above quotation, taken from claimants’ petition, was sufficient to allege a taking of private property for public use by the United States was raised on demurrer and action was had thereon. The court overruled said demurrer—
    “in so far as they, or either of them, aver taking of real estate — within six years from the date of filing of said petitions — by overflow proximately caused by the construction of levees or other public works in the improvement of the navigation of the Mississippi Eiver, pursuant to acts of Congress and within the ruling of the cases of Pumpelly v. Green Bay Company (13 Wall., 166) and United States v. Lynah (188 U. S., 445).”
    None of the levees constructed along the Mississippi Eiver are on or near the Jackson land. The levee nearest the Jackson land is on the opposite side of the river in the State of Louisiana. The nearest levee to the Jackson land in the State of Mississippi is at Eagle Lake, about 150 miles north of Jackson Point, where the claimants’ land is located, and there is no other levee on the Mississippi side of the river until the State of Louisiana is reached at Baton -Rouge, 84 miles south of Jackson Point. Thus it will be seen that claimants’ lands are located miles away from the public improvement, with the exception of the levee on the opposite side of the river.
    In accordance with the decision of the Supreme Court in Bedford’s case (192 U. S., 217), the Government has the right to construct works to preserve the channel of the river by preventing the erosion of its banks and in this way confine it within its banks. What are the banks of the Mississippi River? This question has been answered in the case of Hart v. The Board of Levee Commissioners for the Parish of Orleans (54 Fed. Rep., 559, 561), and also by article 457 of the Civil Code of the State of Louisiana, which reads as follows:
    “ The banks of a river or stream are understood to be that which contains it in its ordinary state of high water; for the nature of the banks does not change, although for some cause they may be overflowed for a time. Nevertheless, on the borders of the Mississippi and other navigable streams, where there are levees established according to law, the levees shall form the banks.”
    After quoting the above article of the Civil Code of Louisiana, the Circuit Court for the Eastern District of Louisiana said:
    
      “ It follows that, no matter what would be the law in other States, in Louisiana, so far as relates to the Mississippi River, the levees established according to law are the banks. Wherever the levees are located there are the banks of the river.” (54 Fed. Rep., 559, 561; Henderson v. Mayer, 3d La., 567; Bass v. State, 34 La. An., 498, 499.)
    The levees constructed along the Mississippi by the Government were in accordance with the acts of Congress and for the purpose of improving the river for navigation, and to do so it was necessary to confine the river and thereby preserve the channel. Bedford’s case, supra, resulted from the improvement of the Mississippi River. Bedford owned land on the Mississippi River in the State of Louisiana, amounting to 5,000 or 6,000 acres. Suit was brought in the Court of Claims for damages to these lands alleged to have resulted from certain works of the United States. The works of the Government consisted of revetment along the banks of the Mississippi Eiver at Delta Point in Louisiana, and it was neither upon nor in contact with the Bedford land. The object of the revetment was to prevent the navigable channel of the river from receding; that is, to prevent erosion and to confine it within its channel. Bedford undertook to establish a “taking” under the fifth amendment. The Supreme Court of the United States, on appeal from and confirming the Court of Claims, held:
    “ Damages to land by flooding as the result of revetments erected by the United States along the banks of the Mississippi Eiver to prevent erosion of the banks from natural causes are consequential and do not constitute a taking of the lands flooded within the meaning of the fifth amendment of the Federal Constitution.”
    The decision of the court in Bedford's case followed the lines laid down by the court in Gibson's case (166 U. S., 269), and Mr. Justice McKenna, in delivering the opinion of the court, distinguished it from Lynah's case (188 U. S., 445).
    
      High Bridge Lumber Company v. The United States (69 Fed. Eep., 320).
    See also Meyer v. Richmond (172 U. S., 83, 96) ; Scranton v. Wheeler a141 U. S., 150); Mills v. U. S. (46 Fed. Eep., 738); Manigault v. United States (199 U. S., 473-477).
    In the case of the Gulf Railroad Company v. Clark (101 Fed. Eep., 678) the railroad company had built an embankment for its road some distance from the bank of the Canadian Eiver, in Indian Territory. The river greatly encroached upon the embankment and finally washed part of it away. The railroad company then constructed dikes into the then position of the river, but on land over which the river had encroached. The dikes not only protected the company from further encroachment, but restored part of the land already lost. This the court held it had a right to do and that any injury sustained by the owner of the opposite bank to such action is darrmwm absque injuria, and can only be avoided by his exercise of the same right to protect his own bank. (See Rex v. The Sewer Commissioners, 8 Barn. & C., 855; Lamb v. District (Calif.), 14 Pacific, 625; Hoard v. City of Des Moines, Iowa (17 N. W., 527).) .
    In the case of the Chicago, Burlington c& Quincy Railroad Company v. The Drainage Commissioners (200 U. S., 561) the Supreme Court of the United States on the question of what constitutes a “ taking ” within the meaning of the Constitution, speaking through Mr. Justice Harlan, said:
    “Upon the general subject there is no real conflict among adjudged cases. Whatever conflict there is arises upon the question whether there has been or will be in the particular case, within the true meaning of the Constitution, a ‘ taking ’ •of private property for public use. If the injury complained of is only incidental to the legitimate exercise of governmental powers for the public good, then there is no talking of property for the public use and a right to compensation on account of such injury does not attach under the Constitution.”
    The jurisdiction of the Court of Claims is entirely created by statute. The first section of the Tucker Act clothes the court with jurisdiction to hear and determine four classes of cases:
    First. Those founded upon the Constitution or any law of Congress, except as to pensions.
    Second. Those founded upon a regulation of an executive department.
    Third. Cases of contract, express or implied.
    Fourth. Action for damages, liquidated or unliquidated, in cases not sounding in tort.
    To entitle the claimants to judgment, facts must be established showing that the case at bar comes within either the first or third class of cases; that is, it must be shown that the acts of the Government were responsible for the overflow and destruction of the claimants’ land.
    It is the prerogative of the Government of the United States to be sued only in accordance with its consent or upon such causes of action as it chooses, and the courts selected by the Congress to entertain such actions can only render judgment in such cases wherein the consent has been given by the Congress. This consent has been given and the Court of Claims clothed with jurisdiction to hear and determine the four classes of cases mentioned, the two particular classes having reference to the case at bar being the first and third; that is, cases founded upon the Constitution or any law of Congress, or growing out of contract, express or implied.
    If the present case is founded upon the Constitution or any law of Congress, it must be for the “taking” of private property for public use. The fifth amendment to the Constitution does not provide for compensation for the taking of private property for public use by anyone other than the United States. The findings of fact, even as requested by claimants, clearly show that the levees along the river were constructed in part by the United States and in part by other parties. It would seem from this-that there is not a “taking ” by the United States, but by the United States for its public use and by the local authorities for the public use of the States which they represent.
    Conceding for the sake of argument that there is a “ taking” of private property for public use, it must then be ascertained whether or not the Government.performed the works which resulted in the “ taking.” If it did, then there is an implied contract to pay. On the other hand, if the findings of fact show that the cause of the taking is not the works of the United States, then there is no taking and the court is without jurisdiction to render judgment against the party causing the “ taking.” The fact that the United States and the local authorities constructed the levees which resulted in the overflow of the claimants’ lands does not authorize judgment to be rendered against the Government, for the reason that a party other than the United States is also a party to the implied contract, any more than would the court be authorized to render judgment against the Government for the taking of private property by the local authorities for the reclamation and protection of land locally, or on a contract, express, to which it was not a party. In other words, if the suit at bar was upon a contract, express, the court would first ascertain whether or not the United States was a party to that contract; likewise the court would ascertain whether or not the United States and some other party is a party to the contract, and the moment it appears that other parties are also a party to the contract, express or implied, the court is without jurisdiction to hear, determine, and render judgment in the case, and the claimants’ 'petition should loe dismissed for want of jurisdiction.
    
    The fourth class of cases, actions for damages, liquidated or unliquidated, in cases not sounding in tort, prohibits the court from hearing and determining a case sounding in tort. Mills v. United States (46 Fed. Bep., 738).
   Booth, J.,

delivered the opinion of the court:

The question now before the court arises on claimants’ and defendants’ motion.to amend findings and for a ne-w trial.

This is one of a class of cases involving an alleged taking of private land in the course of the improvement of the Mississippi Biver by the United States in aid of navigation. The original petition was filed in 1894, in which the ad dam-num was stated at $107,257.50. Defendants’ demurrer to this petition was overruled in 1896 (31 C. Cls., 319), since which time three supplemental petitions have been filed increasing the aggregate damages claimed to $569,702.50. The lands of claimants lie on the east bank of the Mississippi Biver, about 40 miles below Natchez, in Adams County, Miss., embracing a total of 4,265.05 acres, segregated by description into four plantations, as follows: Cerro Gordo. Black I-Iills, Alloway, and Wakefield. The petition alleges that prior to the year 1890 said plantations were comparatively high and so situated as to be exempt from the over ■ flow waters of the Mississippi Biver except at long intervals, and that the occurrence of such overflows did not materially affect their productive capacity or their value; that about 1883 the officers and agents of the United States, in pursuance of an act of Congress creating the Mississippi Biver Commission, and by subsequent acts passed to aid in the improvement of the navigation of said stream, have projected and constructed, and are now constructing, a system of public works, consisting of levees and embankments, for the purpose of confining the flood waters of said river between the lines of said levees and embankments, thereby securing an increased elevation and force to the current of said river in order to scour and deepen the channel; that in the prosecution of said work by the officers of the commission, they have adopted and made use of the various State systems of public levees and private levees constructed^ for the reclamation of overflowed lands lying alongside the river wherever the same are available; that on the east side of said river from Vicksburg to Baton Rouge no levees have been constructed, the officers of the commission availing themselves of the highlands skirting the same and have adopted the lands between the levees on the west and the foothills on the east as the channel of the river, and the lands here claimed for lie therein. The petition concludes with a general averment that as a result of the adoption of the Eads plan, involving the reclamation of the flood waters of the river by the erection of levees and embankments and detouring same into its channel, it has thereby increased its flood heights to such an extent as to annually inundate the premises of the claimants, destroying their value as agricultural lands, and leaving thereon a deposit of silt and sand of such proportions as to force their abandonment.

Claimants’ contention rests entirely upon the assertion of a right under the fifth amendment to the Constitution of the United States to compensation for private property appropriated by the United States for governmental purposes. The defendants interpose two defenses. First, that the damages accruing were consequential in character, and second, that the public works complained of were constructed by the cooperation of the United States and the various local authorities, with no means at hand to ascertain the extent of their respective liabilities.

The distinction between consequential damages occasioned riparian owners by the construction of governmental public works in navigable streams, and a taking of private property in furtherance of the same, is most generally a difficult and nice question of law. The rule is well settled that where officers of the United States appropriate to a public purpose the private property of another, admitting it to be such, an implied obligation arises to pay for the same. (South Carolina v. Georgia, 93 U. S., 4; United States v. Great Falls Manufacturing Co., 112 U. S., 645; United States v. Lynah, 188 U. S., 445.)

In Pumpelly v. Green Bay Company (18 Wall., 166) the Supreme Court overruled a contention that a taking of private property within the meaning of the fifth amendment to the Constitution was limited to the identical lands physically taken, and extended the liability in such cases to other lands actually invaded by “ superinduced additions of water, earth, sand, or other material * * * so as to effectually de-story or impair its usefulness.” In the Pumpelly case the lands involved were totally submerged by overflow waters and had been so since the completion of the public works and for at least six years subsequent thereto; they were adjacent to the impediment placed by the defendants across the stream and were so situated that the result of the improvement was to retard the natural flow of the water and accumulate such a volume of same at the situs of the works as to back up the overflow upon and over the plaintiff’s lands. It in effect amounted to a physical invasion and a practical ouster of the plaintiff’s possession. To the same effect are United States v. Great Falls Mfg. Co. (112 U. S., 645); United States v. Lynah (188 U. S., 445); United States v. Williams (188 Ib., 485).

In the Lynah case, supra, a case especially, relied upon by the claimants, the findings show, and from the opinion it is clearly deducible, that it is not a departure from the previous rulings of the court upon this subject. Mr. Justice Brewer, in speaking for the court, says:

“ It is clear from these findings that what was a valuable rice plantation has been permanently flooded, wholly destroyed in value, and turned into an irreclaimable bog, and this as the necessary result of the work which the Government has undertaken.”

While there was dissension as to the full import of the findings, there was no dispute as to the rule of law. Again it is observable that in the Lynah case the improvements complained of were placed in the bed of the river having the same disastrous effects as in the Pumpelly case.

In United States v. Welch (217 U. S., 333) and United States v. Grizzard (219 U. S., 180) the Supreme Court extended tbe quantum of compensation recoverable for an actual physical taking of private property under the fifth amendment so as to embrace not only the market value of the lands actually taken, but to the remainder affected by such invasion, including the right of access to a public road destroyed by permanent flooding.

While what constitutes an actual taking is difficult of ascertainment, it is clear from the opinions that to constitute an actual taking there must be an actual invasion of the lands amounting to a practical ouster of claimant’s possession, an actual overflow of such a permanent character as to imply an intent to take, and a correlative obligation to pay for the lands so taken. (Peabody v. U. S., 43 C. Cls., 5.) The Supreme Court has said that “the acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the constitutional provision.” In Transportation Company v. Chicago (99 U. S., 635)—from which the above quotation is taken — the court held the municipality exempt from liability for damages unavoidably caused an adjoining property owner by obstructing a street and a portion of the river in the course of constructing a tunnel under the Chicago Eiver.

Numerous decisions covering the entire scope of consequential injuries as distinguished from a taking under the fifth amendment of the Constitution, are discussed and cited in the case of Heyward v. United States (46 C. Cls., 484); it is unnecessary to again discuss them here.

In Bedford v. United States (192 U. S., 225)—a case of extreme significance to the issue here raised — the Supreme Court in distinguishing the difference between consequential damages and a taking of private lands for public purposes, declined to attach responsibility to the Government for constructing certain improvements in the Mississippi Eiver in such a way as to result in a complete and permanent submerging of certain portions of the claimant’s lands. The findings of the court in the Bedford case disclose the following situation: Prior to 18t6 the channel of the Mississippi Eiver was around a narrow neck of land known as De Soto Point; in the spring of that year De Soto Point, yielding to constant erosion and the force of the current of the river, became so narrow that the river broke through, thereby detouring the main channel from in front of the city of Vicksburg to a distance some miles away in a southerly direction. The effect of this complete change in the channel of the river was to force the water with great velocity against the Mississippi bank at what is known as the cut-off of 1876. • The United States in 1878 and subsequent years, in pursuance of acts of Congress, erected along the new banks of the river near the cut-off some 10,700 feet of revetments, the purpose being to prevent further erosion of the banks of the new-made channel, which, if continued, would necessarily carry the main channel of the river farther away from the city of Vicksburg. In the consummation of this purpose and because of the revetment work the waters of the river were deflected toward the land of the claimant, situated some 6 miles below the same, and subsequently permanently submerged them. In answering the plaintiff’s contention, the opinion uses the following language :

“ The contention asserts a right in a riparian proprietor to the unrestrained operation of natural causes, and that works of the Government which resist or disturb those causes, if injury result to riparian owners, have the effect of taking private property for public uses within the meaning of the fifth amendment of the Constitution of the United States. The consequences of the contention immediately challenge its soundness. What is its limit? Is only the Government so restrained ? Why not as well riparian proprietors ? Are they also forbidden to resist natural causes, whatever devastation by floods or erosion threaten their property? Why, for instance, would not, under the principle asserted, the appellants have had a cause of action against the owner of the land at the cut-off if he had constructed the revetment? And if the Government is responsible to one landowner below the works, why not to all landowners ? The principle contended for seems necessarily wrong. Asserting the rights of riparian property it might make that property valueless. Conceding the power of the Government over navigable rivers, it would make that power impossible of exercise, or would prevent its exercise by the dread of an immeasurable responsibility. ”

We have given at length and in great detail the substantially agreed upon findings respecting the hydraulics of the Mississippi River. The evidence upon which they are predicated consists of the numerous reports of the Mississippi River Commission and various other reports of the authorized officers of the Government in the course of said work. From said findings it is apparent that said stream from Cairo, Ill., to the Gulf of Mexico is one of great sinuosity; its innumerable bends with scarcely a single line of direct current have made it susceptible to great overflows in times of anything like abnormal conditions. In fact, overflows are so frequent, and the use of riparian lands for agricultural purposes so precarious, that it is indispensable to protect them by lines of levees and embankments. The alluvial valley of the river extending from Girardeau, Mo., to the Gulf of Mexico has been divided into six large basins (four on the west bank and two on the east); through the medium of these large and extensive formations the flood waters of the stream have from time immemorial been discharged, passing consecutively from one to the other until they reach the Gulf. Within the limits of the respective basins are millions of acres of alluvial lands which have been at least partially reclaimed by the construction of private levees or their inclusion in local levee districts formed under local laws. These vast drainage basins in their natural state have in themselves been of inestimable value to the riparian owners of lands not situated therein, for the flood waters of the river escaping through them rapidly absorbed the surplus waters suddenly projected upon the higher lands and saved them from extreme injury.

The lands here involved are situated at the southeastern limits of the Lower Tensas Basin opposite what is known as the Bougere Crevasse. They are not protected or reclaimed by levees and lie in that extensive zone some 263 miles in length extending from near Vicksburg, Miss., to Baton Rouge, La., on the east side of the river where the Government has not seen fit to construct any levees or embankments or any other improvements to aid in the navigation of the river, the nearest Government levee to claimants’ land being on the opposite side of the river in the State of Louisiana and the nearest Government levees on the east bank, one being 157 miles north and one 96 miles south in the State of Mississippi. They are alluvial lands situated within the Delta of the river, and have been and of necessity must have been subject more or less to the overflow waters of the river. It is conceded that there is nothing peculiar in their location and that they have always been subject to overflow in times of high water. They lie, it is true, between the banks of the river on the west and the so-called highlands or foothills of the river on the east. The Bougere Crevasse occurred during the flood of 1869, and until it was subsequently closed served in part at least as a channel through which the flood waters upon claimants’ lands were speedily reduced.

The United States in the creation of the Mississippi Biver Commission and the numerous appropriations granted to forward the work, contemplated a most comprehensive scheme involving the reclamation of the flood waters of the river, and by a system of levees and embankments erected upon the banks of either side of the same to prevent its overflow, confine this enormous volume of water in the main channel of the river, thereby securing an increased velocity to the current, which would eventually deepen the channel. The mere assertion is sufficient demonstration that as a result of this project the flood heights of the river would be materially increased, for it is quite apparent that the enormous volume of water previously escaping through these immense basins having been deflected into the main channel of the river would result in causing lands unprotected by levees or embankments tobe subject to more frequent and indeed more serious inundations. In the prosecution of this general plan the United States have made use of and are now using the levees available for the purpose which were constructed by private owners of land or by State and local drainage districts. They have also connected this necessarily disjointed system of levee improvement by constructing new levees and embankments where none theretofore existed, until at present they have substantially a continuous line of levees on the west bank of the river from some distance south of Cairo, Ill., to the Gulf of Mexico, and at such points on the east side as in the judgment of the Engineer officers of the Army serve the purposes of the improvements.

The findings show, and it is conceded, that as a result of the system employed by the United States, in connection with the State and local authorities, the lands of the claimants have been and are now more frequently overflowed than before the construction of the levees. It is indisputable that a large portion of claimants’ plantations have been practically destroyed for agricultural purposes by additional super-induced deposits of silt and sand of sufficient depth to render some portions of them valueless. It is not questioned that the claimants involved have suffered great loss in their inability to annually harvest crops or cultivate to maturity the products usually raised upon said lands.

One contention of the claimants extremely vital to the case, set forth in the petition and emphasized in the briefs, fails for want of proof. It is this, that the Mississippi River Commission has adopted as the main channel of the river from Vicksburg to Baton Rouge the lands between the levees on the west and the highlands on the east, and for this reason have not constructed any levees or embankments on the east side of the river. To sustain this contention the court must indulge an inference from the general plan of the public works. There is an utter absence of any such express intent found in the numerous reports of the commission. The officers of the commission have upon numerous occasions in their reports urged upon Congress some equitable legislative relief for the numerous sufferers in this particular locality, and have described in detail their unfortunate situation and predicament, but we have been unable to find (and certainly can not conjecture) that it was part of the general plan of improvement to appropriate as the channel of the river this most extensive area of private lands extending along the river bank to a total length of some four or five hundred miles, and increasing the width of the channel in some instances more than a mile. The damages would indeed be immeasurable, and the court could not sustain the judgment asked for in the absence of strong and convincing proofs. The testimony to sustain such contention, if it could be sustained, is easily accessible from living witnesses, and so clearly subject to positive proof that inferences and implications from other testimony in the record are unwarrantable. It would indeed be an anomalous proceeding to predicate a judgment for hundreds of thousands of dollars upon an ex parte report found in official reports to Congress of the Mississippi River Commission. The discussion of this subject unanimously approved in the first opinion of the court was sufficient warning to claimants that the court was unwilling to rest this particular contention upon the evidence introduced to sustain it. The intentional taking of a vast acreage of lands is a transaction quite too solemn to depend for adjudication upon indistinct and recommendatory reports, when the transaction itself is so clearly susceptible to positive proof.

The Bedford case establishes that the United States, in the exercise of its plenary power and authority over the navigable streams of the country in aid of commerce and navigation, can by public works resting only against the banks of the channel prevent the same from erosion and preserve its natural identity; that consequences, however injurious, resulting from such procedure are but natural results, consequential in character, and damnum absque injuria. The improvement of the Mississippi River through the instrumentality of a congressional commission manifestly purposed not only the reclamation of the extensive flood waters of the stream, but the erection of such permanent structures along its banks as would prevent the same from erosion and successfully resist the increased velocity of the current and the increased flood heights of the river. The Government was not concerned in the reclamation of riparian lands and was without authority to expend money for the purpose. (Act Mar. 3, 1881; 21 Stat., 468-474.) It was alone concerned in an endeavor to establish settled conditions, throw the escaping flood waters back into their natural channel, and keep them there. It undertook to preserve the channel of the river, the channel the river itself had made in its meanderings from its source to its mouth.

The claimants’ lands, unfortunately situated as were the lands of Bedford, suffered from this improvement in that they were more frequently overflowed than theretofore, and the resultant deposits were more extensive.

The findings show, and it is conceded, that said lands are not and never have been permanently submerged; that in the years 1894-1896, 1900-1902, 1905, and 1910 they were not overflowed at all; that despite partial overflows from 1898 to 1908 the claimants have harvested and sold $328,008.98 worth of cotton therefrom; that as late as the season of 1909 claimant E. H. Jackson had 500 acres in cultivation, and claimant Mattie W. Jackson in 1910 was enabled to realize profit from her plantations which were not overflowed. Aside from the question of permanent submerging, even if same prevailed, the claimants under the authorities cited could not recover. The United States was clearly within the scope of its authority in preserving the banks of the river; and if thereby the perpetual continuance of the great basins of drainage made by the overflow waters of the river which had served as natural outlets for the same were destroyed, it was but the incidental result of the prosecution of the work, and the United States is not to be held liable in damages for pursuing its general plan of improvements alongside the established channel of the river whereby it prevents the water which should be in the channel from escaping elsewhere.

This case is not like the case of Barden v. City of Portage (79 Wis., 126); no artificial structures were placed on or near the claimants’ lands; no waters were deflected toward the same; the public works complained of simply destroyed their existing means of drainage made by the uncertain flow and course of an exceedingly crooked and unreliable water course. Prior to 1859 claimants had no outlet through the Bougere Crevasse. There was no absolute certainty that it would continue to be a means of drainage for the lands, for an unusual flood height, a sudden change in the elevations of the basins, or the making of a new channel by the river itself might have destroyed its usefulness and thereby subjected claimants to injuries as extensive as here claimed for. The United States closed the crevasse by the construction of levees on the banks of the river and the flood waters theretofore escaping through this channel were retarded and remained longer on the claimants’ lands, just as in the Bed-ford case the United States held intact the new-made channel of the river and thereby submerged 2,300 acres of the plaintiff’s lands which would have remained high and dry if the water had continued in its old channel. The fact that claimants’ lands were not so frequently subject to ovei’flow under the natural conditions that existed prior to the construction of the levees does not obligate the Government, in the lawful prosecution of public works in aid of navigation and commerce, to avoid a disturbance of those natural conditions or otherwise incur extensive liabilities.

The facts in the case of Archer v. United States (No. 30471), decided December 4, 1911, are so entirely different from the facts in this case the decision of the court in that case can not apply here. In the Archer case the findings show that the officers of the United States, to protect the channel of the Mississippi River, actually invaded and took possession of more than 31 acres of the lands of Archer and constructed thereon a spur dike, made out of his own soil, some 662 feet in length. The result was to deflect the current of the river over and across the lands of the claimant, in consequence of which they were rendered valueless. The Archer case is similar in most respects to Pumpelly v. Green Bay Co., supra, and Lynah v. United States, supra.

The great basins of the Mississippi reclaimed the lands of riparian owners on the opposite sides of the river from where they were formed and forced those within their limits to erect levees and embankments or abondon their farms for cultivation. The-public works of the United States in the aid of navigation incidentally closed these immense outlets, not in this case by a physical invasion of claimant’s property, not by- appropriating any portion of their soil for levees, nor by proceedings in eminent domain, but by a system of levees built and adopted where previously built on the banks of the river to prevent the water from getting out of the channel and becoming so low as to impede and retard navigation. The bed of the stream was not disturbed; no dams or cross-tide dams, jetties, or other improvements retarded the flow of the water and backed it up and upon claimants’ lands. The United States simply took the banks of the river as they found them and sought to preserve them in statu quo. The condition now is what it would have been had the overflows been restrained long years ago. The character of the work done was not essentially different from dredging; without doubt the governmental authorities had full power and authority to deepen the channel by dredging, and if they adopted a different means better suited and perhaps more inexpensive, which in effect accomplished the same purpose, the results are the same. Surely it could not be said from the adjudicated cases that the United States is disabled from increasing and preserving from erosion the banks of a navigable stream and thus forestalling by an important improvement the continuance of a condition which if allowed to continue would eventually destroy the usefulness of the river as a commercial highway without incurring, as was said by the court in the Bedford case, “ immeasurable responsibility.” Claimants’ lands from their natural state were burdened with the servitude of a dominant right in the Government of the United States to improve the river in aid of navigation and commerce.

The Mississippi Eiver Commission, in its annual report for 1894 at page 2713, reviews at length the subject of injuries to private lands situated in the alluvial basins of the river. The whole tenor of their observations indicate an apparent indecisiveness as to the extent of responsibility attaching to the United States and the State and local authorities. In speaking of the erection of private levees by the owners of riparian lands in this particular locality, whereby the same could be reclaimed and protected, the commission uses this language:

“ It must be recognized that the result will be to inflict some and perhaps great hardships upon the owners of lands in the unprotected areas described. Just how great the increase of burden cast upon those lands from this cause will be can not now be foreseen. They have always been liable to overflow by the highest floods, and they have always escaped overflow in some years. It is probable that this will continue to be true in the future as in the past. There may be, however, some floods which, unconfined, would not overflow them, but which, confined, will overflow them, and the injury in such case would doubtless be of that immediate and proximate character which constitutes recognized ground of legal redress.
‘‘But the subject is one with which the commission does not feel authorized to deal. In making recommendations for the expenditure of money in the construction of levees it has felt bound to make such application of it as would probably secure the largest aggregate of beneficial results. Some of the minor areas mentioned are large and valuable enough to warrant the expenditure of the money necessary to protect them by levees, while others are not. As to the former, the work is at present simply deferred to await the completion of other work which is considered more important. As to the latter, the construction of levees by the United States would seem to be an expenditure of money merely or mainly for the purpose of repairing a private wrong. This the commission regards as beyond its jurisdiction.”

From the report it would seem that it is not impossible for claimants to protect their lands from overflow by private levees and embankments, and Finding VI shows that it had been done. If so, the duty is cast upon them and the damages claimed thereby materially minimized, if not fully prevented. (Manigault v. Springs, 199 U. S., 473-483.)

It is difficult to see from the record in this case wherein the improvements constructed by the United States on the banks of the Mississippi have resulted in such an invasion of claimants’ lands as to amoimt to a practical ouster of possession. True, they are not in all respects as they were previous to the improvements, and doubtless their cultivation and value have been impaired. No doubt when they were purchased by the present owners a change in the situation as it then existed was not contemplated, but the ownership of riparian lands on navigable waters is always subject to the consequences of governmental improvement of the stream in aid of navigation. (Gibson v. United States, 166 U. S., 269.)

An argument sustained only by' a contrasting of facts in this case with those found in the Bedford case is more than minimized by the fundamental rule of law established by the Supreme Court in the Bedford case. The Bedford case sustains the contention that the power of the United States in making public improvements in aid of navigation and commerce is not limited to a maintenance of natural conditions. If it was, improvements would be valueless and vast appropriations wasted. In this case the Bougere Crevasse, which is in fact the crux of the whole situation, is, as its name implies, a breach in the banks of the river made by the flow of the stream itself. If the Government is powerless under the law to close this breach either by revetment or levee and maintain the integrity of the river banks, then it is difficult to see how efficient public works could possibly accomplish *their designed purposes. The Government has the undoubted right to maintain the stream in its natural condition — i. e., as it would naturally be if these extensive crevasses had never occurred. However advantageous natural crevasses may be for drainage purposes to riparian owners, nevertheless they may be closed by the United States in improving the navigation of a stream in aid of commerce, and if nothing more is done the resulting damages are consequential.

The rulings of the Supreme Court in the Bedford case alone preclude a judgment for the claimants, and the petition is dismissed. It is so ordered.

Howky, J.,

dissenting:

The cause of action arises out of the authorized acts of certain officers and agents of the defendants in so improving the channel of the Mississippi River as to take the certain lands described in the petition of the plaintiffs for public purposes and use. The importance of a right determination of the issues can not well be overestimated.

In so far as plaintiffs are concerned, a result adverse to the right to recover can neither be depreciated nor underrated because, when it shall be determined, if at all, that their land has not been appropriated for public use, and consequently has not been taken within the meaning of the fifth amendment to the Constitution, then these plaintiffs will be effectually deprived of rights of property so valuable to them as to have accomplished their ruin.

The private right involved, important as the result must be to that right, can not be compared, however, to those larger questions disclosed on the face of the record as to whether the acts of the Government affecting these lands, and other lands similarly situated, amount to a taking of property for which compensation, should be made, or whether these acts resolve themselves into a question of consequential injury only, for which damages can not lawfully be awarded.

The findings establish that the lands for whose taking compensation is asked are located within the limits of a narrow strip of country in the Homochitto Basin, on the left bank of the river, 40 railes below Natchez, Miss., and 25 miles above the mouth of Bed Biver, and between the Mississippi Biver and the highlands east of it between Vicksburg and Baton Bouge. This basin has an average width of 2 miles. The bluff behind the lands is known as the foothills, and is being used as the only obstruction to flood waters, and serves the purpose of levees, leaving to flood invasion the lands fronting the river in the basin. The reason of the Government for refusing to build levees on the basin banks of the river grew out of the fact that the cost of building levees within that basin was greater than the value of the lands which such levees would protect. The frontage of the lands along the river in that basin is so short that the back water of floods entering through the opening left at the lower end for local drainage of the basin will reach to the inner foot of the levee and submerge nearly if not all of the inclosed land. The complete reclamation of the lands in this basin is only practicable by treating them as polders and establishing an artificial drainage by pumps and floodgates. The surveys of the Government confirm and prove that the cost of the levees “in most cases” would exceed the value of the land. The foothills back of this basin were near enough to serve the purposes of a levee line in times of high water.' For these reasons the Government did not construct any levees in that district known as the basin.

The Mississippi Biver Commission suggested three ways of dealing with the problem of protecting these lands or compelling the owners to abandon them, to wit: (1) To aid the owners of the inundated lands in building levees; (2) to compensate the owners in damages for their injuries; and (3) to buy the lands and devote them to forestry.

The lands in suit have been subject to overflow since 1828 from the river. In periods of overflow a deposit of silt and sand has been precipitated during seasons of high water, but the water quickly passed off. The private levee on the Jackson lands saved the property from overflow in 1899 and 1904. The overflow, of the lands caused by the progress of the Government work brought heavier deposits to the land, and the effect of the frequent and successive overflows beginning in the year 1906 and extending through 1909 was to drive away the tenants, cover 1,700 acres with sand and silt deposits from 6 inches to 6 feet in depth; to cause the land to grow up with weeds, young willows, and cottonwood from 6 to 15 feet in height; and to lift from their foundations and wash into the fields many of the buildings, houses, and cabins formerly on the lands, and to cany away the flooring from these houses and fencing on the land through the action of the swift currents of the water so that the lands have been destroyed for agricultural purposes and have no market value.

The work of levee improvement continued to June 30,1910. The Mississippi River Commission up to that time had allotted to levees nearly $28,000,000. The commission had closed what is known as the Bougere crevasse, opposite the lands named in this case. That crevasse had remained open from 1859 until 1902 or 1903, since when it has been practically closed to a point near the mouth of Red River by the improvements on that side of the river, the effect of which has been to throw the water back onto the lands described by the petition in this case. The levee closing the crevasse was 29 miles in length and 23 feet in height, furnishing a continuous line of levee opposite the Jackson lands. The effect of the closure in times of flood is to produce an increased flood stage of about 4 feet of water on the Jackson lands in addition to the increased elevation of 6 feet in the flood height. The levee opposite the lands here named was constructed by authority alone of the United States.

By closing the natural outlets along the river the overflows from the waters of the Mississippi occurred at such frequent intervals and remained for such a long duration of time, the land has become useless because of the heavy deposits of sand.

Before the Government undertook improvements on the west bank of the Mississippi River opposite the land of these plaintiffs, levees sufficiently high and strong to hold tbe flood waters in the channel of the river had never been built. Consequently, in periods of overflow the water remained for a short time only on the Jackson land, escaping through “ the natural outlets and crevasses into the basins and from said basins into the Gulf of Mexico.” The outlets and drains provided by nature were such as to accommodate the flood waters, and the lands of these plaintiffs were not ■overflowed as frequently before, the outlets were closed by the levee construction of the United States, “ and, consequently, were but little injured by the overflows.”

But the effect of the adoption of the foothill levee line was to keep the lands between the new levee line and the river submerged too long to enable the owners to cultivate the land.

The plan of the United States was to increase the velocity and scouring power of the water and to deepen the channel of the Mississippi River for two purposes: (1) To improve the river for navigation, and (2) reclaim and to protect the land on the west from overflow in times of high water.

Thus to reclaim and protect the land on the west bank of the Mississippi the Government has dispossessed plaintiffs from their land on the east bank.

The issues are strictly issues of law and can not properly be determined without keeping closely in view the findings and their effect upon the rights of the parties.

The findings import verity. They must be accepted as true in obedience to the rule of the Supreme Court, from which there can be no departure without abrogating the rule itself. The appellate court will refuse to look elsewhere for the facts except as they appear in the findings and official reports of which judicial notice will be taken and not in the opinion of my brethren of the majority.

The majority here is of opinion that the Mississippi River Commission has not adopted as the main channel of the river from Vicksburg to Baton Rouge the lands between the levees on the west and the highlands on the east, because of “ an utter absence of any such express intent found in the numerous reports of the commission; ” and it is suggested in the principal opinion that the adoption of the line suggested should be proven from living witnesses ” because “ the intentional taking of a vast acreage of land is a transaction too solemn to depend for adjudication upon indistinct and recommendatory reports when the transaction itself is so clearly susceptible to positive proof.”

The “intent” is not in issue, and what the Mississippi Eiver Commission “intended” is not material. What the commission did and the effect of what it did is material. If the intention of an official body be material enough to be made an issue living witnesses could not be heard to prove the intention except by stating what others did, not what they thought.

The material thing, then, to be considered is what the findings show on this point, though it does not seem to me to be very material to state anything about it in view of the fact that it appears from the comments of the majority of the court that the Mississippi Eiver Commission did officially report as the main channel of the river the lands between the levees on the west and the highlands on the east. If this is not the “adoption” of a plan it is nothing. It was the adoption of plan enough to destroy the lands of these plaintiffs.

As the findings are agreed to by the plaintiffs and the Attorney General, the matter of the “ adoption ” of the foothills as the permanent levee line of the river is the only subject matter of difference between the parties on the facts. The “ adoption ” being something in the nature of a conclusion, the specific findings must settle any differences on this matter if it be of any importance.

Finding XI shows that the extension of the general levee system since the United States adopted its use and assumed “permanent control” of the levees has resulted in an increased elevation of general flood levels, thereby subjecting plaintiffs’ lands to deeper overflow than they were subjected to formerly or would be subjected to now if the levee system was not in existence and consequently has destroyed the value of the lands for agricultural purposes caused by the abandonment since 1908. Taking the findings altogether and with knowledge of the fact that the old and broken pieces of levees were taken by the Government and' connected together and new levees built and the new and the old works were strengthened and that the works are now in that condition, it may fairly be stated that the line suggested and in actual use has been adopted by the Government.

The case does not involve any question of immeasurable responsibility either in law or in fact, because: (1) The Government of the United States does not undertake public work beyond its resources. (2) There is nothing in proof to indicate or to justify the court in inferring that the pecuni-ury responsibility of the Government is without its present ability to pay. (3) Immeasurable responsibility arises for remote and consequential damage and where the consequences of improving navigation in the interest of commerce between the States are of such overwhelming character as restrains the Government from undertaking public work so momentous as to make impossible the exercise of the right to improve. That is not this case. The matter before the court is unlike any class of cases (or, for that matter, unlike any one case) where it appeared that the object of the work was merely to preserve the conditions created by natural causes. (4) Though the property is no longer valuable to the owners because it can not be used for agricultural or grazing purposes, nevertheless the lands are capable of growing many kinds of valuable timber and can be made to produce material for revetments and other work necessary to improve the natural channel of the river.

While the market value of the lands has been destroyed and they are no longer useful to the owners or to anyone at the present time, they have yet a prospective and speculative value in that the future may prove the property of considerable value to the United States. This prospective value, it is true, is in the indefinite future and necessarily depends upon the growth of timber. When the conditions as to value are met as the consequence of the timber growth, the Government as the rightful owner will have to its credit something for what it ought now to pay. But if it be speculation merely as to whether in time the lands will become valuable, the reason is not diminished for extending compensation for a taking that may be everlasting and for which taking the present owners are without remedy except as provided by law.

As a matter of common knowledge, appearing from the public records and from the files of this court and estimates probably appearing in the official reports of the Mississippi Fiver Commission, there are plantations destroyed by the character of the improvements of the Government exceeding but little over 100 farms and the whole body of land thus taken being not worth probably over $1,000,000. From the sources of the great river to its mouth similar conditions .do not exist (and probably never will exist) elsewhere.

Federal power over commerce among the several States is broad enough to enable the legislature to carry out one of the great objects of our Union. This was long ago settled in Gibbons v. Ogden, 6 Wheat., 204, and was accompanied with the statement that this power “ is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.”

But the Supreme Court never meant to say, nor did it imply, that the power to improve may be exercised to such an extent that public work may be undertaken and carried on without compensation to the citizen owner where his property has been taken for the benefit of the public. The exercise of the power to the “ utmost extent ” is accompanied by, and goes hand in hand with, the fifth amendment, which prescribes limitations on the power to improve navigation unless means enough are used to pay such owner when public •exigencies dispossess him of his property.

When it shall be held by courts that the Government can constitutionally spend millions in carrying water to lands otherwise arid, and when it shall further be held that the appropriation of the lands of one person may be made by the United States in the name of and for the improvement of a river and which incidentally includes protection to the lands of a person on one side of that river without compensation which can not be provided for a landowner on the other side who becomes ousted and merely because of the dread of large responsibility, it will be time enough to say, in the language of an illustrious Englishman, that when courts can be influenced by considerations of mere cost, regardless of the protection provided by the organic law for those in the enjoyment of private property, such country is hastening to decay.

Congress adopted the Eads plan, which provided for a continuous line of levee construction from Cairo to the Gulf-Permanent control of the low, insufficient, and disconnected levees, which had been begun by local authorities and in some cases constructed by private landowners, was assumed by the Federal authority. Our tenth finding shows that the general improvement attempted to confine the waters in a narrower channel as the result of the increased elevations of the works on the banks of the big stream. This increased elevation produced more frequent and destructive overflows at all points where the levees were not strong enough to resist the force of the water.

Our twelfth finding shows the active closing of crevasses from year to year; and our thirteenth finding, taken in conjunction with the ninth, shows that, before the joinder of the levee line by the United States (pursuant to the Eads plan) and which made the higher banks as they were constructed continuous, there were occasional overflows of plaintiffs’ lands, but n,ot enough to prevent cultivation. The occasional deluges did not materially damage the lands for grazing and agricultural purposes nor affect their market value. On the contrary, the water (before the final public improvements) which flowed from above — not so much from love of motion as from want of rest — did not remain long enough to submerge the lands so as to prevent the planting of crops. The silt deposits enriched these lands where the water had quick opportunity to escape to a lower level. After the completion of the levee system by the construction of the higher embankments and the general confinement of the flood discharges within a narrower channel, the floods were so frequent as to make the unprotected land continue in a submerged condition too long to make the injury immaterial. These frequent and deeper overflows for the longer period of time had the effect of dispossessing the owners. If this con-, dition did not constitute an actual invasion it is difficult to find a definition of what such conditions did create.

Official reports (Miss. Riv. Com. Rep., 1910, p. 2938) show “perpetual inundation”; want of redress for the sake of improvements to lands behind the levees on the opposite side of the river. The closing of the Bougere crevasse immediately opposite plaintiffs’ lands finished the work of destruction and accomplished their ruin.

The majority of the. court do not say, but assume from some report, that “ it would seem ” that it was not impossible for plaintiffs to have protected their lands from overflow by private levees and embankments, and if so the duty was cast upon them so to do, and if done the damages claimed would be materially minimized, if not fully prevented, citing Manigault v. Springs, 199 U. S., 473.

The sixth finding of the court (adverted to in the principal opinion) does not sustain the assumption. Overflows were in part averted by' the private levee of plaintiffs at times. But the findings also show that when the crevasses opposite plaintiffs’ lands were closed and the work of public improvement was continued to the extent of piling up more earth on the opposite side of the river in the construction of levees and to such an extent as to raise the level of the water in the river as much as 6 feet, private levees were washed away as the result of the public improvements. The owners could no more protect themselves without the sacrifice of the lands to the full extent of their value than could the United States. We have the official report disclosing that it was cheaper to the United States for the owners to abandon the lands and be compensated by the Government than for the United States to build levees. Especially is this report to be taken as true when, as the result of Government work, the findings show that the private levees had been washed away. If it was more profitable for the Government to pay for these lands than to build levees to protect them it necessarily follows that their market value was totally destroyed by the improvements.

Private levees could not have been reconstructed to prevent the floods by plaintiffs in the case before the court for the obvious reason that such levees as plaintiffs had ever put on the property were next to the river on lands owned solely by the plaintiffs. They were without power to build levees above their own lands for want of ownership.

The case of Manigault v. Springs, supra, merely decides that when an owner is put to additional expense in warding off the consequences of an overflow there can be no recovery; but where there is a practical destruction or material impairment of value of lands by overflowing them as the result of the construction of dams there is a taking which demands compensation. No amount of expenditure would have availed these plaintiffs to have saved their lands.

The question resolves itself into the difference between consequential damages and a taking of private property for public purposes. Only three cases are cited in the majority opinion which seem to have any bearing upon this one issue in the case.

In Transportation Co. v. Chicago, 99 U. S., 635, there appeared to be an impairment of the use where the acts done did not directly encroach upon property of a private nature. But Findings VI, XI, and XVIII in the present case establish encroachment upon the lands of such character as to destroy. The superinduced additions of water, sand, and silt proved to be permanent deposits to the extent of burying the lands in mud and annihilating value as to compel abandonment of the property.

In Gibson v. United States, 160 U. S., 269, it appeared that there was no taking, no destruction, and no consequence except damage arising out of alleged inability to use a landing for the shipment of products from and supplies to a farm for the greater part of the gardening season. There was no water thrown back on the land. The Government neither attempted nor assumed to take private property. Subsequently, in United States v. Welch, 217 U. S., 333, an award was sustained for destruction of a right of way and also for damages to property destroyed for public purposes. Such “ destruction for public purposes may as well be a taking as would be an appropriation for the same end,” so the court said.

In Bedford v. United States, 192 U. S., 217, damages were claimed as the result of “ revetments to prevent erosion of the banks from natural causes.” But revetments did not change the natural course of the river. Said the learned judge, wbo delivered the opinion of the Supreme Court in the Bedford, case, There was no other interference with natural causes. ” The damage to the land, if any damages could have been assigned to the works at all, was but “ incidental consequences ” of something which the Government-had the right to do.

If on the side of the revetments and above on the banks a levee had been erected there would have been obstruction of the flow of the water. The revetments shown to have been constructed in the case of Bedford were placed below high-water mark. The purpose of revetment is to prevent erosion by the waters to high-water mark but not above. The purpose of a levee is to obstruct the flow of water, which in many cases either increases or causes erosion. The purpose in the present case in the construction of a levee was (and its effect was) to obstruct the flow of water when it should get above the high-water mark and not below that mark. Revetment work is entirely submerged when there is enough water in a river to reach a levee placed on top of the bank. The objects of revetment work and a levee are entirely different and serve distinct purposes.

The seventh finding in the case of Bedford discloses that “ the revetment did not change the course of the river as it then esisted, but operated to keep the course of the river, at that point, as it then was, * * * and the injury done to the claimant’s land was the effect of natural causes.” In the case at bar natural causes had never occasioned injury to plaintiffs’ lands and injuries would never have been occasioned hut for an interference with natural conditions.

From 1828 to the time when the Government by its works threw upon plaintiffs’ lands volumes of water and destroyed the attribute of ownership plaintiffs were able to cultivate their lands. Since then periodical overflows have been precipitated so as to deprive them of the use. The findings establish the permanent character of the taking and bring the present case within that of Pumpelly v. Green Bay Co., 13 Wall., 166, and that of United States v. Lynah, 188 U. S., 459. In the latter case the works were constructed in the bed of the river and obstructed the natural flow of its water, and as a direct consequence caused the overflow of Lynah’s plantation. That is precisely the condition in the case now before the court, except that instead of the works being placed in the bed of the river they were placed on the banks of the river, and the consequence of the one is as direct in the case at bar as the consequence was in Lynah's ease. The case of Williams v. United Slates, 188 ib., 485, following Lynatts case, shows a similar taking. The just compensation provided by the Constitution for such taking and guaranteed obviously “ requires that the recompense to the owner for the loss caused to him by the taking of a part of a parcel or single tract of land shall be measured by the loss.” Grizzard v. United States, 219 U. S., 180.

There are limitations upon the power not only of the rights of the Government where it is a proprietor, but likewise limitations upon its powers as a sovereign. Such limitations as to either the proprietary right or the authority of government as a sovereign operate to prevent the exercise of either right so as to destroy the essential uses of private property. Said the Supreme Court: “ To take away the essence and value of property without compensation is practically to take property and this is beyond the power even of sovereignty except by proper proceedings to that end.” Curtin v. Benson, 222 U. S., 78.

It will be observed that in the present case there was no necessity for the river to be scoured. (That, however, makes no difference, even if that necessity existed.)

The Mississippi River Commission made the foothills serve the purposes of a levee line compelling the water to return to the channel in times of high water. They state that in their report. And this statement is accompanied with another having as I see it a great bearing in the settlement of the issues. The commission said that the construction of levees was not important for the improvement of the river for navigation. We know that the channel of the river was not improved for purposes of navigation, because vessels of the greatest draft could float upon the bosom of the flood tides. It nowhere appears that the river was not deep enough at any time to be navigated after the subsidence of the flood waters. It is evident that the levees were raised in excess of 20 feet to protect the lands on the west side of the river from overflow. The consequences of the general confinement of the flood discharged by the levee “ as a whole ” had the effect of driving plaintiffs away.

Another fact must not be overlooked. Before the crevasse, known as the Bougere crevasse, occurred, as far back as 1859, the bank did not obstruct the high-water flow. This bank did not extend from 3 to 5 feet above the highest known water, as do the levees completed by the United States. Formerly, in times of flood, water went over the bank, and it was the overflow of the river’s bank which caused the crevasse. The record discloses that until 1890 there were only two serious overflows, one in 1882 and another in 1884. But even in those years the water went off in time to make a crop.

Many of the cases relating to the rights of riparian owners do not involve the question of obstruction of the natural flow of flood waters. But there are many cases highly persuasive which do deal with the question now before the court. In the early case of Rex v. Trafford, 20 Eng. C. L. R., 498, Lord Chief Justice Tenterden said that—

“ It has long been established that the ordinary course of water can not he lawfully changed or obstructed for the benefit of one class of persons to the injury of another. Unless, therefore, a sound distinction can be made between the ordinary course of water flowing in a bounded channel at all usual seasons, and the extraordinary course which its superabundant quantity has been accustomed to take at particular seasons the creation and continuance of these fenders can not be justified. No case has been found that will support such a distinction.” ‘

Though Trafford v. Rex was reversed because the facts in the case did not warrant a special verdict, the reversing court agreed in the principle laid down by the Court of King’s Bench, 21 Eng. C. L. R., 272.

There are very many cases which show the right to have a stream flow as it is wont by nature, which includes the right to have the water flow off from one’s premises as it is accustomed to do, and this right “ is property.”

There are also very many cases which show that where woiks are constructed below the land of a proprietor, such as a bridge or culvert or dam, or alteration of the channel, which cause the water to set back and overflow the land of such proprietor, there is a violation of such right and, if the works are authorized by law, there is a taking for which compensation must be made. The books are full of cases to this effect and may be found summarized in 1 Lewis’ Eminent Domain, sec. 80, p. 90, 3d ed. What possible difference can there be between cases like these and cases where works are constructed on one side of a river to the destruction of an owner’s land on the other side of the stream?

The doctrine of damnum absque injuria can have no appli- ■ cation here, because that principle is only applicable for “ those unexpected visitations whos.e comings are not foreshadowed by the usual course of nature and must be laid to the account of Providence, whose dealings, though they may afflict, wrong no one.” Pittsburgh R. R. Co. v. Gilleland, 56 Pa. St., 452; O'Connell v. East Tenn. Ry. Co., 87 Georgia, 261.

Barney, J., concurs in this dissent.  