Crescent Cotton Oil Co. v. Mississippi, 257 U.S. 129 (1921)
Case details
Citation
257 U.S. 129
Full caption
CRESCENT COTTON OIL COMPANY v. STATE OF MISSISSIPPI.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Nov. 14, 1921
CRESCENT COTTON OIL COMPANY v. STATE OF MISSISSIPPI.
ERROR TO THE SUPREME COURT OF THE STATE OF MISSISSIPPI.
No. 41. Argued October 17, 1921.—Decided November 14, 1921.
Plaintiff in error, a Tennessee corporation, engaged in the manufacture of cotton-seed oil in that State, finding it impracticable to carry on the business successfully when purchasing its supply of cotton seed from ginners or from brokers, acquired and operated cotton gins in Mississippi and other States, where it ginned cotton for cotton growers, purchased from them the seed thus separated from the fiber and then shipped it to its Tennessee factory. Mississippi passed a law forbidding corporations interested in the manufacture of cotton-seed oil from owning or operating cotton gins, except of a prescribed capacity and in the city or town where their oil plants were located. Held: (1) That, since the ginning was merely manufacture,'and the
seeds were not in interstate commerce until purchased and p. 130committed to a carrier, the gins were not instrumentalities of interstate commerce and the prohibition of their operation did not infringe the company’s rights under the commerce clause. P. 135. (2) That the prohibition did not deny to the company the equal protection of the laws in applying to corporations and not to individuals, because the inherent difference between corporations and natural persons sustained the classification and because it might be assumed, in the absence of any contrary showing, that only corporations were engaged in operating both oil mills and cotton gins when the act was passed. P. 137. 121 Miss. 615, affirmed.
Error to a decree of the Supreme Court of Mississippi, in a suit by the State, imposing a penalty on the plaintiff in error, forfeiting its right to do local business, enjoining it from operating its cotton gins and requiring it to dispose of them within a prescribed time.
Mr. J. B. Harris, with whom Mr. Thos. A. Evans and Mr. A. W. Shands were on the brief, for plaintiff in error.
The Act of June 18, 1910, amending the Interstate Commerce Act, extended the conception of transportation, so that it does not await actual delivery of goods to a carrier. This has a bearing on the present case.
If the State could not impose a tax upon a local business carried on in connection with interstate commerce, and make the payment of that tax or the filing of statements a condition to the carrying on of the local business, (Pullman Co. v. Kansas, 216 U. S. 86; Western Union Telegraph Co. v. Taggart, 163 U. S. 1; Ludwig v. Western Union Telegraph Co., 216 U. S. 146; Harrison v. St. Louis & San Francisco R. R. Co., 232 U. S. 318; International Textbook Co. v. Pigg, 217 U. S. 91; Atchison, Topeka & Santa Fe Ry. Co. v. O’Connor, 223 U. S. 280; Looney v. Crane Co., 245 U. S. 178), manifestly it could not under any guise prevent the carrying on of the local business in this case.
It is conceded that the oil company was in the State for no other purpose than for acquiring cotton seed to be shipped in interstate commerce; and that the operation of p. 131the gin had become absolutely necessary to enable it to carry on its business with success. It is found as a matter of fact that the operation of the gin was a mere feeder to its oil mill in Tennessee; that the cotton seeds were actually purchased in the lint before they were put through the process of ginning and that it was necessary to separate them in order that they might be shipped, and when separated they were blown into the seed house and immediately shipped into Tennessee.
We are insisting here that the local business of ginning, which had been established long prior to the passage of the Act of 1914, had become a necessary agency or corporate facility and instrumentality in carrying on interstate commerce. Therefore, the act as applied to the oil company, being destructive of its interstate commerce, was a violation of the commerce clause of the Constitution.
The state court based its decision upon Kidd v. Pearson, 128 U.S. 1, and Hammer v. Dagenhart, 247 U. S. 251. In those cases the court was dealing with the particular state of facts presented. The manufacturing of liquor in the one case and of cotton goods in the other was the dominant business, the purpose for which the distillery and the cotton mill were established. The interstate commerce was merely incidental. In the case at bar, the interstate commerce was the dominant business, the business for the carrying on of which the oil company had entered the State of Mississippi. The ginning was merely incidental to this business, a necessary instrumentality for carrying it on.
There is no question here about any mere intention in reference to the interstate commerce. The oil company was doing no other business in Mississippi.
The act provides that oil mills may operate ginneries located in the town where the oil mill is located. This is
6267°—22------ 14
a discrimination against the plaintiff in error and all oil companies whose oil plants are located outside of the State.
The discrimination between corporations and individuals engaging in the same business violates the Fourteenth Amendment. There is no essential difference in the business of operating oil mills and gins by individuals and the same business carried on by corporations. There must be a substantial difference in the business to warrant classification and imposition of burdens upon one class and not upon another class of persons or corporations.
Whether the power exercised is sought to be justified upon the exercise of the police power or under the reserved power to alter, amend and repeal charters or under the general powers in the State to regulate corporations and businesses affected by the public interest, the power must be reasonably exercised. It must be necessary for the protection of the public, and, if a classification, must not be arbitrary but based upon some natural difference which bears a proper and just relation to the classification sought to be made.
Mr. Frank Roberson, Attorney General of the State of Mississippi, for defendant in error.
Mr . Justi ce Clarke delivered the opinion of the court.
An act of the Legislature of Mississippi, approved March 28, 1914, (designated in the record the “Anti-Gin Act”), prohibits corporations, whether organized under the laws of that State or authorized under the laws thereof to do any local business therein, among other things, from owning or operating any cotton gin, when such corporation is interested in the manufacture of cotton seed oil or cotton seed meal. A penalty is provided for violation of the act, but corporations are permitted to operate their gins for a reasonable time until they may be sold. A p. 133proviso permits cotton seed oil companies to operate gins of a prescribed capacity, but only in the city or town where their oil plants are located. Mississippi Laws 1914, c. 162 ; § 4752, et seq. Hemingway’s Code, 1917.
The plaintiff in error, a corporation organized under Tennessee Laws, prior to 1914 owned and operated a cotton seed oil mill at Memphis in that State, and two cotton gins in Mississippi. Disregarding the Anti-Gin Act, it continued to operate its two gins in Mississippi until October, 1915, when, for the purpose of enforcing the law, the State, on the relation of its Attorney General, instituted a suit in equity against the company in a county court of chancery, which, after various vicissitudes, resulted in a decree that the act was constitutional, and that the plaintiff in error was guilty of violating it. A penalty was imposed upon the company, its right to do intrastate or local business in Mississippi was declared forfeited, it was perpetually enjoined from operating cotton gins in the State, and it was ordered that, within ninety days, the company should dispose of the two cotton gins which it owned and operated in Mississippi. The company was also found guilty of violating the Anti-Trust law of the State and a penalty therefor was imposed.
This is a proceeding in error to review the decree of the Supreme Court of Mississippi affirming that decree of the county court as to the Anti-Gin Act. The holding that the Anti-Trust laws were violated was reversed by the Supreme Court.
Without proof of it in the record, the case is argued upon the assumption that the statute assailed was enacted in aid of the Anti-Trust laws of the State, under the conviction on the part of the legislature that it was the practice of corporations operating oil mills and cotton gins to depress the price of ginning, regardless of cost, until local competition was suppressed, or brought to terms, and then to charge excessive prices for ginning and to pay p. 134unfairly low prices for seed. There is evidence in the record tending to show resort to such methods by the plaintiff in error.
It clearly appears that in practice it is an advantage to the purchaser of cotton seed to operate gins, hot only for the profit that may be made from them directly, but because the grower of cotton often prefers to sell his seed to the company ginning it rather than carry it to another purchaser. It is also in evidence that individuals, as well as corporations, owned and operated gins and that other oil companies than the plaintiff in error obtained their supplies of seed from growers, from gin owners and from brokers.
The plaintiff in error has heretofore relied, and here relies, for its defense, upon the unconstitutionality of the Anti-Gin Act, which it asserts upon two grounds, viz: first, that, as applied to the plaintiff in error, it imposes a direct and substantial, and therefore an unconstitutional, burden upon an instrumentality of interstate commerce; and, second, mildly, that, the act being applicable to corporations and not to individuals owning and operating cotton gins, it denies to the plaintiff in error the equal protection of the laws and therefore offends against the Constitution of the United States.
The basis of the first contention is the claim that it had become impracticable for the oil company to carry on its oil manufacturing business successfully when purchasing its cotton seed supply from other ginners or from brokers, that for this reason the company acquired its two cotton gins in Mississippi, and nine in other States, to obtain the advantage of purchasing seed direct from the growers of cotton, and that all of the cotton seed which it had purchased in connection with its gins was shipped in interstate commerce to its oil mill at Memphis, the gins being, in effect, “ feeders ” to its oil mill.
These facts, not disputed in the record, it is argued, constitute the gins an essential means and instrumentality of p. 135interstate commerce and that therefore the act imposes a direct and unconstitutional burden on commerce between the States in violation of § 8 of Article I of the Constitution of the United States.
Western Union Telegraph Co. v. Kansas, 216 U. S. 1; Pullman Co. v. Kansas, 216 U. S. 56; Ludwig v. Western Union Telegraph Co., 216 U. S. 146; and Harrison n . St. Louis & San Francisco R. R. Co., 232 U. S. 318, are relied upon to sustain this contention of the plaintiff in error. In the first two of the cases cited an attempt was made by the State of Kansas to tax interstate carriers on the basis of all of their property, wherever situated, as measured by the capital stock of the companies. In the third case a similar attempt was made by the State of Arkansas.
There was no question in any of these cases but that the principal business of the companies challenging the taxing law was interstate in character and that their chief investment was in property used in and necessary to the conduct of their interstate commerce. The controversy in the cases was as to the incidence of the tax,—whether it was so imposed upon the property of the companies or the stock representing it, as to constitute a direct and substantial burden upon the interstate commerce in which they were engaged.
It is clear that these decisions cannot be of aid in determining the question we are now considering, which is, whether a cotton gin operated by an oil company in Mississippi is rendered an instrumentality of interstate commerce by the fact that the owner of it ships out of the State, for its use in another State, all of the cotton seed which may be purchased in connection with its ginning operations.
The fourth case relied upon, Harrison v. St. Louis & San Francisco R. R. Co., 232 U. S. 318, was an attempt on the part of a State to prevent removal of causes from state to United States courts and is, if possible, yet more in-
The separation of the seed from the fiber of the cotton which is accomplished by the use of the cotton gin, is a short but important step in the manufacture of both the seed and the fiber into useful articles of commerce, but that manufacture is not commerce was held in Kidd v. Pearson, 128 U. S. 1, 20, 21; United States v. E. C. Knight Co., 156 U. S. 1, 12, 13; Capital City Dairy Co. v. Ohio, 183 U. S. 238, 245; McCluskey v. Marysville & Northern Ry. Co., 243 U. S. 36, 38; Hammer v. Dagenhart, 247 U. S. 251, 252; and in Arkadelphia Milling Co. n . St. Louis Southwestern Ry. Co., 249 U. S. 134, 151, 152. And the fact, of itself, that an article when in the process of manufacture is intended for export to another State does not render it an article of interstate commerce. Coe v. Errol, 116 U. S. 517, and New York Central R. R. Co. v. Mohney, 252 U. S. 152, 155. When the ginning is completed the operator of the gin is free to purchase the seed or not, and if it is purchased to store it in Mississippi indefinitely, or to sell or use it in that State or to ship it out of the State for use in another, and, under the cases cited, it is only in this last case and after the seed has been committed to a carrier for interstate transport that it passes from the regulatory power of the State into interstate commerce and under the national power.
The application of these conclusions of law to the manufacturing operations of the cotton gins, which we have seen precede but are not a part of interstate commerce, renders it quite impossible to consider them an instrumentality of such commerce, which is burdened by the Anti-Gin Act, and the first contention of the plaintiff in error must be denied.
There remains the second contention, that the Anti-Gin Act denies to plaintiff in error the equal protection of the laws, because \t applies to corporations and not to individuals.
Where, as we have found in this case, a foreign corporation has no federal right to continue to do business in a State, and where, as here, no contract right is involved and there is no employment by the Federal Government, it is the settled law that a State may impose conditions, in its discretion, upon the right of such a corporation to do business within the State, even to the extent of excluding it altogether. Horn Silver Mining Co. v. New York, 143 U. S. 305; Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 83, and cases cited. And in such case the inherent difference between corporations and natural persons is sufficient to sustain a classification making restrictions applicable to corporations only. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 343, 344; Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 83. And see Fort Smith Lumber Co. v. Arkansas, 251 U. S. 532, 533; American Sugar Refining Co. v. Louisiana, 179 U. S. 89; Williams v. Fears, 179 U. S. 270, 276; W. W. Cargill Co. v. Minnesota, 180 U. S. 452.
This would be sufficient to dispose of this second contention, but we may add that the law assailed was enacted by the State in the exercise of its police power, to prevent a practice conceived to be promotive of monopoly with its attendant evils. It is clearly settled that any classification adopted by a State in the exercise of this power which has a reasonable basis, and is therefore not arbitrary, will be sustained against an attack based upon the equal protection of the laws clause of the Fourteenth Amendment, and also that every state of facts sufficient to sustain such classification which can be reasonably conceived of as having existed when the law was enacted will be assumed. Lindsley v. Natural Carbonic Gas Co., 220 U. 8. 61, and cases cited; Rast v. Van Deman & Lewis Co., 240 U. S. 342.
Syllabus. 257 U. S.
The record before us shows that, before the law assailed was enacted, cotton gins had been operated in Mississippi by individuals as well as by corporations, but there is no showing that oil mills and cotton gins were both operated by an individual or by groups of individuals, and we think it may well be assumed, under the rule stated, that because of the larger capital required, and perhaps for other reasons, oil mills and cotton gins may have been operated in that State, only by corporations, and that for this reason the restraint of the evil aimed at by the act of the legislature could be accomplished by controlling corporations only. Assuming this to be the fact when the law was enacted, obviously the classification objected to can not be pronounced so without reasonable basis as to be arbitrary.
A number of minor contentions are discussed in the briefs. These have all been considered, but are found to be not of sufficient substance to deserve special discussion.
It results that the judgment of the Supreme Court of Mississippi will be
Affirmed.
JOHN HORSTMANN COMPANY v. UNITED STATES.
NATRON SODA COMPANY v. UNITED STATES.
APPEALS FROM THE COURT OF CLAIMS.
Nos. 26, 32. Argued October 7, 1921.—Decided November 21, 1921.
In actions in the Court of Claims for damages resulting from an unforeseen flooding of claimants’ soda lakes following construction and operation of a government irrigation project by which water was brought into the watershed,—Held: (1) That allegations that the water percolated through the
ground, due to lack of proper lining in the Government’s canals and ditches, the manner of their construction and the natural con-
138. Argument for Appellant.
ditions, were not intended to set up negligence but merely to show causal connection between the project and the flooding, and hence did not characterize the cause of action as ex delicto. P. 144. (2) That, as no intentional taking of claimants’ property could be implied, the Government was not liable ex contractu, assuming such causal relation. P. 145. United States v. Lynah, 188 U. S. 445, distinguished. 54 Ct. Clms. 169, 214; 55 id. 66, affirmed.
Appeals from judgments denying recovery for damages resulting from the flooding of claimants’ soda lakes.
Mr. Edward M. Cleary and Mr. Thomas A. Allan, for appellant in No. 26, submitted.
In the present case there is a taking as fully as in United States v. Lynah, 188 U. S. 445, i. e., the land is completely submerged and destroyed for all purposes for which it can be used. In Gibson v. United States, 166 U. S. 269, the only damage was the loss or inconvenience resulting from an improvement in the navigable waters (which the Government had a right to make), making access to the land more difficult from the waterfront.
In Bedjord v. United States, 192 U. S. 217, the Government’s acts were of the character that every riparian owner has the legal right to perform, i. e., to protect his own lands from overflow by the building of structures to prevent the overflow.
Jackson v. United States, 230 U. S. 1, is likewise a case involving riparian rights and subservience of private owners to the right of the Government to improve the navigability of a river. 48 Ct. Clms. 423. So of Heyward v. United States, 46 Ct. Clms. 484, affirmed by a divided court, 250 U. S. 633.
In United States v. Cress, 243 U. S. 316, we have a case of taking not even as strong as this one, where the question is of supplying irrigation facilities and not navigation.
The water-level of the river is the height of the river, and the water-level of the land is the ground-water p. 140level, which the Government in the present case admits raising.
The proposition that a private party would not be liable in this case is not the law in the arid States where irrigation is mostly practiced or where the irrigation was carried on in this case. [Citing authorities.]
Mr. Frank S. Bright and Mr. H. Stanley Hinrichs, for appellant in No. 32, submitted. (They also moved to remand for further findings.)
The court below made a fundamental error in considering that this case presented only the question of the rights of parties respecting percolating waters. The defendant brought into Carson River Valley an immense amount of surface water from the Truckee River, and transported it at the surface in its ditches to the neighborhood of the claimant’s land. As a direct result,, some of this surface water has flooded the land and destroyed its value. It is immaterial whether the water entered the land by overflow or by seeping. It is not the medium through which the water travels that determines the question of liability, and it is immaterial whether the course of the water was observable, or hidden and unobserved, so long as the result is certain.
Mr. Solicitor General Beck for the United States.
The chief reliance of appellants is upon United States v. Lynah,M£ U. S. 445, in which the court, divided four to three, held that where the Government constructed an embankment along the Mississippi, whose direct, certain, immediate and necessary effect was to cause an overflow upon the lands of the plaintiff, there was a taking within the Fifth Amendment. From the essential nature of the act, this court drew the reasonable inference that the Government intended to overflow Lynah’s lands, and thus to appropriate them. In the cases at bar, however, all these elements are absent.
There must be an intention on the part of the United States, either expressed or implied, to take the property of another before there can be any implied promise to pay or contract liability incurred. This liability may be inferred where the results naturally and indubitably flow from the act or effect of the act and may be definitely ascertained or determined. In this case it was impossible for the United States engineers who laid out this irrigation project to have ascertained or determined what effect the irrigation of these lands would have upon the waters of Big and Little Soda Lakes. Tempel v. United' States, 248 U. S. 121; Bothwell v. United States, 254 U. S. 231.
The decision in the Lynah Case should not be extended beyond its reasonable scope. An extension of the rule could only operate to deprive the Government of its immunity from suits sounding in tort; for it would mean that, to the extent that any public improvement, whether carefully or negligently constructed, caused indirect and remote damage, the property thus damaged was taken for public use, a proposition which would be obviously absurd. See Bedford v. United States, 192 U. S. 217, and Jackson v. United States, 230 U. S. 1.
If a private corporation had constructed and maintained these canals under the Carson-Truckee project, it would not have been liable to the claimants. [Citing authorities.]
The United States, when it enters upon a public improvement for the common benefit of all the people, is not in a worse position than a private corporation or citizen. Bedford v. United. States, 192 U. S. 217, 223; Jackson v. United States, 230 U. S. 1, 21, 22.
Claimants had no vested right in the soda accretions from the ground waters of that vast section, nor in the maintenance of a certain density of the water entering the lakes, nor in the maintenance of the then existing ground-water level in the valley where the lakes are p. 142located. Lyons v. United, States, 26 Ct. Clms. 31, 45; Cohen v. United States, 162 Fed. 364, 371.
The plaintiff Natron Soda Company, having consented to the construction of the canals and granted the defendants a right of way, is estopped from any right of recovery in the absence of negligence. Daniels y. St. Francis Levee District, 84 Ark. 333; Lewis, Eminent Domain, 3d ed., § 474; Wallace v. Columbia &c. R. R. Co., 34 S. Car. 62; Nunnamaker v. Water Power Co., S. Car. 485.
Mr . Just ice Mc Kenna delivered the opinion of the court.
Actions in the Court of Claims to recover respectively the sums of $35,000 and $170,000 alleged values of certain properties charged to have been taken and appropriated by the United States.
Both appellants are corporations, and are respectively owners of lands in Churchill County, State of Nevada, surrounding and including lakes known as Little Soda Lake and Big Soda Lake. The Horstmann Company is owner of the former and the Natron Soda Company is owner of the latter.
In 1906 each appellant was manufacturing soda from the waters of the respective lakes and the controversy of the cases turns upon the condition of the lakes at that time, and their condition after an irrigation project was instituted by the Government, called the Truckee-Carson Project.
The lakes are situated in an area known as the Carson Sink Valley, and in 1906 were the source of soda supply to the respective appellants.
From prior to 1867 to 1906 the levels of the lakes had not varied more than 2 feet. In 1906 the United States Reclamation Service acting under the authority of acts of Congress constructed the Truckee-Carson Project p. 143consisting of dams, canals, and other structures whereby through the usual means large quantities of surface waters theretofore confined to the watershed of the Truckee River were in 1906 and during each year since then transported to the watershed of the Carson River and distributed to various and sundry tracts of land in the Carson River Valley for irrigation purposes.
Details of the project need not be given but with its advent the body of the ground water in the entire section covered by the project rose, and the volume of water in the lakes has continually increased, and the level of the lakes has risen about 19 vertical feet during the period of 1906 to 1916, in consequence of which the value of the properties of appellants has been destroyed, that of the Horstmann Company being $9,000 and that of the Natron Company being $45,000, according to the findings of the Court of Claims.
There have been additions to the canal project and its ultimate development contemplates the reclamation of 206,000 acres of land. At present the canals of the project ramify an area of 100,000 acres.
No negligence on the part of the United States is alleged or proven.
The conclusion of the court was that appellants were not entitled to recover, hence it dismissed the actions and rendered judgments against appellants for costs of printing the records. Motions for new trials were made and denied.
The question of the jurisdiction of the Court of Claims of the actions is intimated, if not urged, based on the allegation in the petition of the Horstmann Company that owing to the porous condition of the soil in the canals and ditches and “ the lack of proper lining in said canals and ditches, and owing to the way said canals and ditches were built, and also to the natural condition existing,” the p. 144water flowed into the lake and seeped and percolated through the canals and ditches.1
The Government is cautious in its characterization of this allegation and says that it “apparently based the claim of the Horstmann Company upon a tort ” and adds if the claim be so based, the Court of Claims had no jurisdiction “as the Government has never waived its immunity from suit in such cases.”
We do not think, however, that the allegation was intended as an accusation of negligence but rather to forestall a defense, based on the character of the works,—that from them there could be no causal connection between the project of the Government and the rise of waters in the lakes. The Court of Claims besides explicitly found that there was no negligence.
Upon the merits, the contention of the Government is the absence of such causal connection between its works and the injury to the properties of appellants. It concedes, however, that the contention is a deduction from obscure findings, the court not finding affirmatively that a causal connection did not exist. “ Its decision was the Scotch verdict of ‘ not proved ’ ”, to quote counsel.
Appellants oppose the Government’s contention and deductions, oppose to them the difference in conditions before and after the execution of the canal project, and their reasoning seems to have the support of the methods that the world employs in the investigation of its phenomena and instances.
Post hoc, therefore, propter hoc may not be confidently asserted, but there is a suggestion of effect and cause in it, of sequence, something more than unrelated occurrence. And of this there seems to be pertinent application in the present case. The transfer of water from one p. 145watershed to another—from the Truckee River watershed to the Carson River watershed—accompanied by an increase of the water in the lakes from a level, not varied in 29 years more than 2 feet, to 19 vertical feet would seem to demonstrate this as an effect of the canal project. And there can be no doubt of the adequacy of the cause even though, to quote from the findings, “percolating waters are hidden and invisible ” and “ It does not appear from the evidence how they are governed, or how they move underground.” Their effects above ground, a rise of water in the lakes from 2 feet to 19 feet of water, are certainly visible and unmistakable. Indeed, the court explicitly found that with the advent of the irrigation project the body of ground water in the entire section covered by the project rose.
1
The petition of the Natron Soda Company directly alleges that the acts of the Government were legally done in the exercise of a constitutional and legal power.
However, we need not arbitrate the contentions but will assume with appellants that there was causal connection between the work of the Government and the rise of waters in the lakes, and the consequent destruction of the properties of appellants, but it does not follow that the Government is under obligation to pay therefor, as for the taking of the properties.
The Court of Claims, as we have seen, decided against such obligation and to its reasoning it would be difficult to add anything. The reasoning of the court is attacked, however, by appellants, and United States v. Lynah, 188 U. S. 445, is adduced against it.
The instance of the cited case and a certain generality in its reasoning and basic principle gives plausible support to the contention. It is declared that the rule deducible from prior cases, which are reviewed, is that the appropriation of property by the Government implies a contract to pay its value, and it is further declared that there need not be a physical taking, an absolute conversion of the property to the use of the public. It is clear from the authorities, it is said, that, if by public works p. 146the value of the property of an individual is substantially destroyed, its value is taken, within the scope of the Fifth Amendment. And it was decided that “ the law will imply a promise to make the required compensation, where property to which the government asserts no title, is taken, pursuant to an act of Congress, as private property to be applied for public uses.” Tempel v. United States, 248 U. S. 121, 129, 130.
This generality has had exception in subsequent cases. It is to be remembered that to bind the Government there must be implication of a contract to pay, but the circumstances may rebut that implication. In other words, what is done may be in the exercise of a right and the consequences only incidental, incurring no liability. Bedford v. United States, 192 U. S. 217; Kansas v. Colorado, 206 U. S. 46; Tempel v. United States, supra. And there is characterization of the Lynah Case in United States v. Cress, 243 U. S. 316.
We think the cases at bar are within the latter decisions, and it would border on the extreme to say that the Government intended a taking by that which no human knowledge could even predict. Any other conclusion would deter from useful enterprises on account of a dread of incurring unforeseen and immeasurable liability. This comment is of especial pertinence. That the result of the Government’s work to the properties of plaintiffs could not have been foreseen or foretold is a necessary deduction from the findings of the Court of Claims. The court found that there is obscurity in the movement of percolating waters, and that there was no evidence to remove it in the present case, and necessarily there could not have been foresight of their destination nor purpose to appropriate the properties.
In the Natron case the Company’s predecessors in interest conveyed a right of way to the United States of certain lands of the Company, and, prior to the conveyance,
138. Syllabus.
agreed with the United States that, in consideration of the benefits to be derived from the construction of the works through the lands conveyed, the United States might construct canals and ditches on and across the land, and further agreed “ that in consideration of the premises, the first party hereby releases the second party from all claims for damages for entry, survey, or construction of said works.”
The Government adduces the agreement and conveyance in opposition of the right of the Natron Soda Company to recover. The Company resists this effort. We, however, are not called upon to pass upon it. Independently of the agreement the Company’s claim is to be rejected.
Judgments affirmed.
1
A right of way through public lands or reservations, obtained through an approval by the Secretary of the Interior of an application under the Act of March 3, 1891, c. 561, §§ 18-21, 26 Stat. 1095, is neither an easement nor a fee simple absolute, but a limited fee on implied condition of reverter in the event the grantee ceases to use or retain the land for the purpose named in the act—irrigation. P. 151.
2
The Act of May 14, 1896, c. 179, 29 Stat. 120, which made special provision for rights of way through public lands and forest reservations for the purpose of developing electric power, allowing a revocable permit or license and not a limited fee, was superseded by the Act of February 15, 1901, c. 372, 31 Stat. 790, which deals with the subject along similar lines. P. 152. Utah Power & Light Co. v. United States, 243 U. S. 389. 6267°—22----- 15