Joseph McKenna

“ The great hardship of the doctrine has been so generally recognized that many of the states have established constitutions providing in substance that private property shall not be taken or damaged for public use without compensation. ”

“ The danger to the neck of land connecting Point Chicot with the mainland does not affect the question of the quantity or value of the land taken from claimants. It bears solely upon the necessity for the taking. Now, the objection of want of necessity may be appropriately raised by an objecting landowner. But surely it does not lie in the mouth of the government, after an actual taking of private property, to answer a claim for compensation by setting up that there was no necessity for taking it. ”

“ It is important to observe that for the diminution of the value of claimants' land thus produced by the general effect of levee construction, state and national, no compensation is claimed from the United States, and no part of such diminution is included in the amount of the judgment awarded by the court of claims. ”

“ It will be observed that the findings are somewhat involved, mixing statement with inference; indeed, it may be said, even with prophecy. And it may be said again (we say 'may be said' to avoid the expression of a definite judgment at this time) that there are effects caused by the United States and effects caused by the state which are not distinguished. We think there should be more precision. Great problems confronted the national and state governments; great and uncertain natural forces were to be subdued or controlled, great disasters were to be averted, great benefits acquired. ”

“ The entire argument for the government may be reduced to the single contention that its liability for damages is limited to the 31.4 acres of claimants' lands that are actually occupied by the Leland dike, and that the court of claims erred in awarding compensation also for the 3,664.6 acres destroyed by the deflection upon it of the flood waters of the river through the construction and maintenance of the dike. ”

“ The protest of the property owner is not necessary to entitle him to compensation. Acquiescence in an unauthorized taking may estop a landowner from having equitable relief by way of injunction against the consequences of the taking, or from treating the taking as a trespass ”

“ For it is a well-known fact, and a subject of official comment, that when the river forms a new channel for itself across such a neck of land, the old bed has a tendency to fill up at the head and foot and become a lake. There are many crescentshaped lakes in the Mississippi bottom lands, thus caused. ”

“ It may be inferred, therefore, that the pressure of the water, compounded of its velocity and volume, is greatest at the recesses or apices of the bends, has its first effect there, but necessarily extends along the whole concave shore. ”

“ On the other hand, beginning about the year 1883, and continuing to the present time, the officers and agents of the United States, in pursuance of an act of Congress creating the Mississippi River Commission and other acts amendatory thereof, and for the improvement of the river for navigation, have adopted the so-called Eads plan, and, in pursuance of it, have projected, constructed, and maintained, and are engaged in constructing and maintaining, certain lines of levees on both sides of the river at various places ”

“ We are not informed by the findings for what reason. It may have been for good reason; we make no intimation to the contrary; but its commencement and subsequent discontinuance suggest some questions which may lead to answers pertinent to be considered. In that action the trespass upon claimants' plantation by the construction of the Leland dike was attributed to the local levee board ”