264 U.S. 146
Argued January 3, 1924.
Decided Feb. 18, 1924.
Appeal from the Court
Action by Stefano
Sanguinetti against the United States. Judgment of dismissal by Court of
Claims (55 Ct. Cl. 107), and claimant appeals. Affirmed.
146 Mr. Benjamin Carter, of Washington, D. C., for appellant.
The Attorney General,
for the United States.
Mr. Justice SUTHERLAND
delivered the opinion of the Court.
The main portion of
the city of Stockton, Cal., and the adjacent territory lie between the
Calaveras river and the Mormon slough, both flowing in a general
southwesterly direction. The streams are several miles apart, and the
intervening area, including appellant's land, has always been subject to
inundation by overflow therefrom, as well as by reason of periodic heavy
rainfall. During periods of high water sediment was deposited in large
quantities in the navigable channel, intefering with navigation and
entailing annual expenditures for dredging.
147 In view of this condition, Congress, in 1902, authorized the
construction above the city of a connecting canal, by means of which the
waters of Mormon slough were diverted into the Calaveras river. Act June
13, 1902, 32 Stat. 368, c. 1079. The canal was constructed in accordance
with plans prepared by government engineers, after investigation, upon a
right of way procured by the state of California and conveyed to the
United States. A diversion dam was placed in the slough, immediately below
the intake of the canal. The excavated material was put on the lower side
of the canal, making a levee, of which the dam was practically a
continuation; but that this was not done with a view of casting flood
waters upon the upper lands is apparent, since the engineers believed the
capacity of the canal would prove sufficient under all circumstances. It
was evidently the most convenient method of disposing of the material, and
also it may have contributed to strengthen the lower bank against erosion.
The canal was completed in 1910. In January, 1911, there was a flood of
unprecedented severity, and there were recurrent floods of less magnitude
in subsequent years, except in 1912 and 1913. The capacity of the canal
proved insufficient to carry away the flood waters, which overflowed the
lands of appellant, lying above the canal, damaging and destroying crops
and trees, and injuring to some extent the land itself. Appellant brought
suit against the government to recover damages upon the alleged theory of
a taking of the property thus overflowed. The land would have been flooded
if the canal had not been constructed, but to what extent does not appear.
None of the land of appellant was permanently flooded, nor was it
overflowed for such a length of time in any year as to prevent its use for
agricultural purposes. It was not shown, either directly or inferentially, that the
government or any of its officers, in the preparation of the plans or in
the construction of the canal, had any intention to thereby flood any of
the 148 land here involved, or
had any reason to expect that such result would follow. That the carrying
capacity of the canal was insufficient during periods of very heavy rains
and extremely high water was due to lack of accurate information in
respect of the conditions to be met at such times. The engineers who made
the examination and recommended the plans determined, upon the information
which they had, that the canal would have a capacity considerably in
excess of the requirements in this respect.
The Court of Claims
concluded that none of the land here involved had been taken, within the
meaning of the Fifth Amendment to the Constitution, and that therefore no
recovery could be had upon the theory of an implied contract, but that the
liability sought to be enforced was one sounding in tort, of which the
court had no jurisdiction. Accordingly the petition was dismissed.
Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L. Ed. 557, this court has had
frequent occasion to consider the question now presented. In that case, by
authority of the state of Wisconsin, a dam was constructed across the Fox
river, which had the effect of raising the ordinary water level and
overflowing plaintiff's land continuously from the time of the completion
of the dam in 1861 to the beginning of the action in 1867, resulting in an
almost complete destruction of the value of the property. It was held that
this constituted a taking in the constitutional sense, and the rule was
laid down (13 Wall. 181):
'That where real
estate is actually invaded by superinduced additions of water, earth,
sand, or other material, or by having any artificial structure placed on
it, so as to effectually destroy or impair its usefulness, it is a
In United States v. Lynah, 188 U. S. 445, 23 Sup. Ct. 349, 47
L. Ed. 539, a dam had been constructed by the United States in such manner
as to hinder the natural flow of a stream and, as a necessary result, to
raise the level of its waters and overflow the land of plaintiff to such
an extent as to cause a total 149
destruction of its value. It was impossible to remove this overflow of
water and the property, in consequence, had become an irreclaimable bog,
unfit for any agricultural use. It was held that the property had been
taken and that the government was liable for just compensation, upon
payment of which the title and right of possession would pass.
In United States v. Cress, 243 U. S. 316, 37 Sup. Ct. 380, 61
L. Ed. 746, the government by means of a lock and dam, had raised the
water of the Cumberland river above its natural level, so that lands not
normally invaded were subjected permanently to frequent overflows,
impairing them to the extent of one-half their value. A like improvement
had raised the waters of the Kentucky river in the same manner, so as to
end the usefulness of a mill by destroying the head of water necessary to
run it. The findings made it plain that it was not a case of temporary
overflow or of consequential injury but a condition of 'permanent
liability to intermittent but inevitably recurring overflows' and it was
held that such overflowing was a direct invasion, amounting to a taking.
Under these decisions and those hereafter cited, in order to create
an enforceable liability against the government, it is at least necessary
that the overflow be the direct result of the structure, and constitute an
actual, permanent invasion of the land, amounting to an appropriation of
and not merely an injury to the property. These conditions are not met in
the present case. Prior to the construction of the canal the land had been
subject to the same periodical overflow. If the amount or severity thereof
was increased by reason of the canal, the extent of the increase is purely
conjectural. Appellant was not ousted, nor was his customary use of the
land prevented, unless for short periods of time. If there was any
permanent impairment of value, the extent of it does not appear. It was
not shown that the overflow was the
150 direct or necessary result of the structure; nor that it was
within the contemplation of or reasonably to be anticipated by the
government. If the case were one against a private individual, his
liability, if any, would be in tort. There is no remedy in such case
against the United States. Keokuk Bridge Co. v. United States, 260 U. S.
125, 43 Sup. Ct. 37, 67 L. Ed. 165.
The most that can be said is that there was probably some
increased flooding due to the canal and that a greater injury may have
resulted than otherwise would have been the case. But this and all other
matters aside, the injury was in its nature indirect and consequential,
for which no implied obligation on the part of the government can arise.
See Gibson v. United States, 166 U. S. 269, 17 Sup. Ct. 578, 41 L. Ed.
996; Bedford v. United States, 192 U. S. 217, 24 Sup. Ct. 238, 48 L. Ed.
414; Transportation Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336; Jackson
v. United States, 230 U. S. 1, 33 Sup. Ct. 1011, 57 L. Ed. 1363; Horstmann
v. United States, 257 U. S. 138, 42 Sup. Ct. 58, 66 L. Ed. 171; Coleman v.
United States (C. C.) 181 Fed. 599.
The judgment of the Court of Claims is Affirmed.