United States v. Lynah/Dissent White
Mr. Justice White, with whom concurs Mr. Chief Justice Fuller and Mr. Justice Harlan, dissenting:

The court now holds that it has jurisdiction, because, as a legal conclusion from the findings of fact, it is held that the property of the appellee has been taken for public use by the United States, and the judgment below is affirmed on the merits for the same reason. As, in my opinion, the findings of fact do not support the conclusion that the property has been taken by the United States, I dissent both on the subject of jurisdiction and on the merits.

The findings of fact are in most respects sufficiently reproduced in the opinion of the court, and need not here be set out in full. It results from the findings that the land is situated on the Savannah river; that it is between high and low water mark, and naturally subject to be overflowed, but that it is protected in some measure from overflow by an embankment, and that through this embankment sluices or water ways were placed, by means of which water was let in on the land for irrigation in the cultivation of rice, and was drawn off when the land was required to be drained in order to carry on the same culture. This was done by gates in the sluices, which were opened to allow the water to flow through the water ways to the inner side of the embankment and thus flood the land when it was requisite to do so, and by opening the gates at low tide to allow the water to flow off when it was required to drain the land. As the exact situation of the water ways through the embankment is important, I reproduce the statement on the subject contained in the findings:

'Through this embankment trunks or water ways were constructed, with flood gates therein. The outer opening of the trunk was about a foot or a little less above the mean low-water mark of the river, in which the tide ebbs and flows. When it is desired to flow the lands the flood gates are opened and the water comes in. When it is desired to draw off this water and to effect the drainage of the lands, the flood gates are opened at low water and the water escapes. It is essential that the outlets of the trunks or water ways should be above the mean low-water mark.'

It is now decided that there has been a taking of the property by the United States, because it is thought that the findings establish that the obstructions placed by the government in the bed of the river at a point lower down the stream than is the plantation, for the purpose of improving the navigation of the river, have so raised the water as to cause it to flow over the embankment at the plantation and flood the same, thus destroying its value. On this subject the court says: 'Findings IX. and X. show that both by seepage and percolation through the embankment and the actual flowing upon the plantation above the obstructions, the water has been raised in the plantain above 18 inches,' etc. Whilst it is not disputable that the findings show a percolation through the embankment, I can discover nothing in them supporting the conclusion that the obstructions placed by the government in the bed of the river below the point where the plantation is situated have caused the water in the river to go over the embankment at the plantation and flood the land. On the contrary, to me it seems that the findings necessitate the conclusion that the permanent damage which the property has suffered arises solely from the fact that the drainage of the plantation into the river has been rendered impossible. And this because the work done by the government has resulted in raising the mean low tide about 12 to 15 inches, so as to cause the water in the river at mean low tide to be above the point of discharge of the water ways, thus rendering drainage through them no longer possible. There may be a wide legal difference arising from damage consequent on an interference with the drainage of property situated, as this is, by work done by the government in the improvement of navigation, and damage caused by the actual flooding of such property resulting from such work. To determine whether the findings show an actual flowing, or a mere injury to drainage, findings VIII., IX., and X. need to be considered. Let us see whether they give support to the claim of actual flooding by an overflow of the embankment at the plantation. Finding VIII. says:

'VIII. In thus improving navigation of this navigable water, the United States has built and maintained and is now building and maintaining in and across the Savannah river, in the bed thereof, certain dams, training walls, and other obstructions, obstructing the natural flow of said river in and along its natural bed, and so raising the level of said river above said obstructions, and causing its waters to be kept back and to flow back, and to be elevated above its natural height in its natural bed.'

Certainly there is nothing in this finding supporting the inference that the government work has caused the river to overflow the plantation embankment. Finding IX. says:

'This rice plantation Verzenobre is above these obstructions. The direct effect thereof is to raise the level of the Savannah river at this plantation, and to keep the point of mean low water above its natural point, so that the outlet of the trunks and water ways above spoken of in the bank of said plantation, instead of being above this point of low-water mark, is now below this point.'

Here, then, is the statement that the effect resulting from the government work was simply to raise the mean low-water mark as previously existing, so as to cause it to cover the water ways which were-as declared by the previous finding-a little less than a foot above the former low-water mark. The finding continues:

'Another direct result was that by seepage and percolation the water rose in the plantation until the water level in the land gradually rose to the height of the increased water level in the river, and the superinduced addition of water in the plantation was about 18 inches thereby. By reason of this it gradually became difficult, and has now become impossible, to let off the water on this plantation, or to drain the same, so that these acres, dedicated to the culture of rice, have become boggy, unfit for cultivation, and impossible to be cultivated in rice.'

This but declares that because the mean low state of the water had been raised by the government work so as to cause it to be about 8 inches above the mouth of the water ways and to rest against the embankment about 18 inches, that percolation took place and the drainage was destroyed, the result of the loss of drainage being to render the plantation a bog and no longer suitable for the cultivation of rice. It is submitted nothing in the findings hitherto referred to even intimates that the effect of the work of the government caused the water to flow over the embankment and flood the plantation. On the contrary, the very opposite is the result of the findings.

Let me next consider the 10th finding. It reads as follows:

'By the raising of the level of the Savannah river by these dams and obstructions, the water thereof has been backed up against the embankment on the river and has been caused to flow back upon and in this plantation above the obstruction, and has actually invaded said plantation, directly raising the water in said plantation about 18 inches, which it is impossible to remove from said plantation.'

Now, the flowing described here can only relate to the seepage and percolation referred to in the previous finding. The words 'above the obstructions' relate, not to the embankment on the plantation, but to the obstructions put in the bed of the river by the government below the point where the plantation is situated; and, therefore, what the finding means is that above this obstruction the water is caused to flow back against, not over, the embankment, as described in the previous finding. And this finding shows besides that it was the impossibility of removing the water which percolated or was the result of rain fall in other words, the injury to the drainage-which was the cause of the damage.

Thus, eliminating all question of the flooding of the land by the overflow of the embankment, the question for decision is this: When a plantation or a portion thereof is situated on the bank of a navigable river, below high-water mark, and because of such situation is dependent for its profitable operation upon drainage into the river at mean low tide, does the United States appropriate the property by the simple fact that in improving the navigation of the river it raises the mean low tide slightly above the height where it was wont theretofore to be, and by reason of which the drainage of the land below high-water mark is destroyed? It seems to me to state this question is to answer it in the negative. The owner of the land situated below high-water mark acquired no easement or servitude in the bed of the river by the construction of an embankment along the margin of his land at the river below high water, by which he could forever exact that the level of the water within the natural banks of the river could never be changed without his consent, and thus deprive the United States of its control over the improvement of navigable rivers conferred by the Constitution. If damage by the loss of drainage into the river at mean low tide of land so situated was caused by the lawful exercise by the United States of its power to improve navigation it was damnum absque injuria, and redress must be sought at the hands of Congress, and cannot be judicially afforded by a ruling that a damage so resulting constitutes a taking of the property by the United States, and creates an implied contract to pay the value of the property. Such a doctrine is directly-as I see it-in conflict with the decisions of this court in Gibson v. United States, 166 U.S. 269, 41 L. ed. 996, 17 Sup. Ct. Rep. 578, and Scranton v. Wheeler, 179 U.S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48. The far-reaching consequence of the doctrine now announced cannot be overestimated.

But even under the hypothesis that the government work caused the land to be overflowed by raising the water above the embankment, I do not conceive that there would be a taking, even in that case, of the property, for a remedy would be easily afforded for any permanent injury to the land by raising the embankment. The quantum of damages would thus not be the value of the property, but the mere cost of increasing the height of the embankment so as to prevent the water from flowing over it. The fact, then, that a taking is now held to exist, and therefore the United States is compelled to pay the value of the entire property, submits the United States, in the exercise of a power conferred upon it by the Constitution, to a rule which no individual would be subjected to in a controversy between private parties. Nor is this answered by the suggestion that there is a taking because the paying by the United States of the sum of money necessary to raise the level of the embankment so as to prevent the overflow would not compensate the owner, as the property would still be worthless because of the want of drainage. To so suggest is but to admit that the damage complained of results from the inability to drain the land, which, for the reasons already pointed out does not, in my opinion, constitute a taking.

Indeed, the reasoning hitnerto indicated as to the assumed overflow of the embankment is equally apposite to the damage by loss of drainage. For injury to the drainage the remedy would be readily afforded by, if possible, draining the plantation elsewhere than into the river, or by resort to the pumping appliances necessary to lift out the water accumulating from rainfall or percolation. The cost of doing these things would then be the measure of damages. That a resort to these simple expedients is unavailing as to this particular property because of its being situated below high-water mark does not, I submit, show that the government has taken the property for public use, but simply establishes thst the property is so situated that it is subjected to a loss necessarily arising from the fact that it is below high-water mark and therefore absolutely dependent for its drainage on the right of the owner to exact that the mean low tide of the river should be forever unchanged. As the right to so exact does not exist, the loss of drainage does not constitute an appropriation of the property by the United States, and is but the result of the natural situation of the land. If equities exist, Congress is alone capable of providing for them.

I am authorized to say that the Chief Justice and Mr. Justice Harlan concur in this dissent. 

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