Bedford v. United States/Opinion of the Court
There is no dispute about the power of the government to construct the works which, it is claimed, caused the damage to appellants' land. It was alleged by appellants that they were constructed by the 'United States in the execution of its rights and powers in and over said river, and in pursuance of its lawful control over the navigation of said river, and for the betterment and improvement thereof.' And also that the works were not constructed upon appellants' land, and their immediate object was to prevent further erosion at De Soto point. In other words, the object of the works was to preserve the conditions made by natural causes. By constructing works to secure that object, appellants contend there was given to them a right to compensation. 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 5th 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, arel 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.

There is another principle by which the rights of riparian property and the power of the government over navigable rivers are better accommodated. It is illustrated in many cases.

The Constitution provides that private property shall not be taken without just compensation, but a distinction has been made between damage and taking, and that distinction must be observed in applying the constitutional provision. An excellent illustration is found in Gibson v. United States, 166 U.S. 269, 41 L. ed. 996, 17 Sup. Ct. Rep. 578. The distinction is there instructively explained, and other cases need not be cited. It is, however, necessary to refer to United State v. Lynah, 188 U.S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349, as it is especially relied upon by appellants. The facts are stated in the following excerpt from the opinion:

'It appears from the 5th finding, as amended, that a large portion of the land flooded was, in its natural condition, between high-water mark and low-water mark, and was subject to overflow as the water passed from one stage to the other; that this natural overflow was stopped by an embankment, and in lieu thereof, by means of flood gates, the land was flooded and drained at the will of the owner. From this it is contended that the only result of the raising of the level of the river by the government works was to take away the possibility of drainage. But findings IX. and X. show that, both by seepage and percolation through the embankment and an actual flowing upon the plantation above the obstruction the water has been raised in the plantation about 18 inches; that it is impossible to remove this overflow of water, and, as a consequence, the property has become an irreclaimable bog, unfit for the purpose of rice culture or any other known agriculture, and deprived of all value. 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.'

The question was asked: 'Does this amount to a taking?' To which it was replied: 'The case of Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557, answers this question in the affirmative.' And further: 'The Green Bay Company, as authorized by statute, constructed a dam across Fox river, by means of which the land of Pumpelly was overflowed and rendered practically useless to him. There, as here, no proceedings had been taken to formally condemn the land.' In both cases, therefore, it was said that there was an actual invasion and appropriation of land as distinguished from consequential damage. In the case at bar the damage was strictly consequential. It was the result of the action of the river through a course of years. The case at bar, therefore, is distinguishable from the Lynah Case in the cause and manner of the injury. In the Lynah Case the works were constructed in the bed of the river, obstructed the natural flow of its water, and were held to have caused, as a direct consequence, the overflow of Lynah's plantation. In the case at bar the works were constructed along the banks of the river, and their effect was to resist erosion of the banks by the waters of the river. There was no other interference with natural conditions. Therefore, the damage to appellants' land, if it can be assigned to the works at all, was but an incidental consequence of them.

Judgment affirmed. 

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