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decided: January 29, 1940.



Hughes, McReynolds, Stone, Roberts, Black, Reed, Frankfurter, Douglas, Murphy

Author: Hughes

[ 309 U.S. Page 19]

 MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.

In this action, brought in the state court of Nebraska and removed to the federal court, petitioners sought to recover damages upon the ground that the respondent company had built dikes in the Missouri River and, using large boats with paddles and pumps to produce artificial erosion, had washed away a part of petitioners' land. Respondent alleged in defense that the work was done pursuant to a contract with the United States Government, and under the direction of the Secretary of War and the supervision of the Chief of Engineers of the United States, for the purpose of improving the navigation of the Missouri River, as authorized by an Act of Congress. Petitioners in reply alleged that the contract did not contemplate the taking of their land without just

[ 309 U.S. Page 20]

     compensation and that the acts of the contractor resulted in the destruction of petitioners' property in violation of their rights under the Fifth Amendment of the Federal Constitution.

Petitioners had judgment which the Circuit Court of Appeals reversed. 103 F.2d 589. Certiorari was granted because of alleged conflict with applicable decisions of this Court. 308 U.S. 538. The Government has been permitted to appear as amicus curiae.

The Circuit Court of Appeals found that the evidence established "that two dikes built in the river above, and one dike built opposite, their (petitioners') land had diverted the channel or the current of the river from the Iowa shore to the Nebraska shore" and that as a result the "accretion land" of petitioners "to the extent of perhaps 95 acres had been eroded and carried away." There was evidence tending to show that in extending the dike opposite petitioners' land, the contractor, "apparently to keep open an adequate channel for navigation between the end of the dike and the shore," had accelerated the erosion "by using the paddle wheels of its steamboats to increase the action of the current." But there was no evidence, as the Court of Appeals said, that this "paddle washing" had done "anything more than hasten the inevitable." The Court of Appeals also found it to be undisputed "that the work which the contractor had done in the river bed was all authorized and directed by the Government of the United States for the purpose of improving the navigation of this navigable river." It is also conceded that the work thus authorized and directed by the governmental officers was performed pursuant to the Act of Congress of January 21, 1927, 44 Stat. 1010, 1013.

In that view, it is clear that if this authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Congress,

[ 309 U.S. Page 21]

     there is no liability on the part of the contractor for executing its will. See Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 283; Lamar v. Browne, 92 U.S. 187, 199; The Paquete Habana, 189 U.S. 453, 465. Where an agent or officer of the Government purporting to act on its behalf has been held to be liable for his conduct causing injury to another, the ground of liability has been found to be either that he exceeded his authority or that it was not validly conferred. Philadelphia Company v. Stimson, 223 U.S. 605, 619, 620. See United States v. Lee, 106 U.S. 196, 220, 221; Noble v. Union River Logging R. Co., 147 U.S. 165, 171, 172; Tindal v. Wesley, 167 U.S. 204, 222; Scranton v. Wheeler, 179 U.S. 141, 152; American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108, 110.

Petitioners present the question whether the building of the dikes and the erosion of their land, because of the consequent diversion of the current of the river, constituted a taking of their property for which compensation must be made. We do not find it necessary to pass upon that question, for if the authorized action in this instance does constitute a taking of property for which there must be just compensation under the Fifth Amendment, the Government has impliedly promised to pay that compensation and has afforded a remedy for its recovery by a suit in the Court of Claims. 28 U. S. C. 250. United States v. Great Falls Manufacturing Co., 112 U.S. 645, 656, 657; Great Falls Manufacturing Co. v. Attorney General, 124 U.S. 581, 600; United States v. Lynah, 188 U.S. 445, 465, 466; Tempel v. United States, 248 U.S. 121, 129, 130; Hurley v. Kincaid, 285 U.S. 95, 104, 105. "The Fifth Amendment does not entitle ...

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