body of the plantation, and in periods of high water the water, rising and passing over and upon said land, has by reason of its lowness first gone thereupon and its main current was across said land and not upon the plantation, which, while in extreme high water it would be flooded, did not have the full force of the current of the river but was covered in part or in whole by slacker water. The current during high-water seasons struck against the levee back of claimants' plantation, eroding and washing it away, to the great danger of its existence and the inundation of the lands to the rear thereof and diverting the water from the channel of the river. A breach or crevasse in the levee would have entailed damage to it and to the adjacent landowners and impaired the efficacy of the levee system as projected, constructed and maintained by the officers of the Mississippi River Commission in accordance with the plans heretofore stated.

In addition to the danger to the levee the current, impinging upon the banks of the stream and the neck of the land adjoining Point Chicot to the mainland, cutting into it, threatened to and would have, if permitted to continue, cut through the neck of land, thus straightening the channel and making the plantation an island.

In order to prevent the threatened danger to the levees and the neck of land the officers of the United States, acting under the authority of the acts of Congress, and the Mississippi River Commission constructed what is known as the Leland Dike, running diagonally and at an angle from the main line of levee on the Arkansas side across and on the land of claimants to a point 662 feet beyond where the line of the plantation begins, their object being to divert the current of the stream during high waters from impinging upon the levee, and, by throwing it northeastward by the dike, to prevent the destruction of the levee and the cutting across the neck of land.

The dike first went into and on the land a distance of

662 feet, but, its end being exposed to the waters of the river and to its powerful current, the officers deemed it necessary to extend the dike a distance of some 2700 feet farther upon the land of claimants and did so extend it in 1907 without any condemnation of the land and with no remuneration therefor being made to claimants. A large part of the soil was used for this construction.

Before the United States joined the levee lines in accordance with the Eads plan, thus making the same continuous, there were occasional overflows of the plantation but they have been made deeper and more forceful by the adoption of such system. But before the erection of the dike the overflows did not materially damage the plantation and it remained still valuable for agricultural purposes. By the extension of the dike the high-water current of the river has been deflected over and across a large part of the plantation, but flows in the same direction as did a portion of the high waters of the river before the erection of the dike but with greater force and depth-the escape of a portion of the high waters over and across the neck of land being thereby prevented, in consequence of which the overflows of the plantation have been greatly increased and intensified, the result of which has been to wash and scour out its top soil and to deposit upon a large part of the plantation great burdens of sand and gravel, and 3,696 acres have been thereby rendered totally unfit for cultivation or any other profitable use. This result has been caused partly by the joining of the levee systems and the erection of said dike, but directly and proximately by the erection of said dike.

The lines of levees constructed in part by the officers of the United States and in part by the officers and agents of the local organizations of the States bordering on the river to 1909 had a length of 1,548 miles and contained 229,729,354 cubic yards. The officers of the United States constructed 1,050 miles of the total. Since 1909

241 U. S.

Argument for the United States.

the authorities of the United States have built additional lines of levees containing 2,970,224 cubic yards and the local authorities lines of levees containing 5,063,427 cubic yards, thus bringing the work of levee construction up to the year 1910.

The 3,696 acres of land damaged as stated was, at the time of the erection of the dike, of the value of $83,920, and 31-4/10 acres of the same is actually and wholly occupied by the United States by the construction of the dike, and the balance, to-wit, 3,664-6/10 acres, has been destroyed and rendered wholly unfit for cultivation or any other profitable use. The land is described.

As an ultimate fact, the court finds, in so far as it is a question of fact, the 3,696 acres of land was somewhat impaired in value by the construction of the levee system, but that its use was totally destroyed by the erection of the Leland Dike and was thereby taken, its value at the time of such destruction and taking being $83,920.

Before this suit was brought George F. Archer, one of the claimants, brought a suit in the United States Circuit Court for the Western District of Arkansas against the Board of Levee Inspectors of Chicot County, Arkansas, for the damages arising from the erection of said dike and the taking of the 31-4/10 acres of land. A demurrer by the defendants to the complaint was overruled (128 Fed. Rep. 125); and thereafter and before the beginning of this suit Archer discontinued the suit brought against the Board.

The ownership of the plantation by the claimants was found. From the findings of fact the court concluded that claimants were entitled to a judgment of $54,920.

The Solicitor General, with whom Mr. Robert Szold was on the brief, for the United States:

Liability of the Government for damages is limited to

land actually occupied by the Leland Dike. Jackson Case, 230 U. S. 1; Hughes Case, 230 U. S. 24.

Occupancy of part of claimants' land creates no liability for remote damages to the balance. United States v. Grizzard, 219 U. S. 180.

Mr. Percy Bell for appellee:

Taking and using dike site without condemnation or compensation by the agents, officers, and employees of the Government in improving navigation, or protecting a levee as incident thereto, a virtual trespass and actual taking which creates an undisputed liability.

The superimposition of sand and gravel on adjacent lands of same tract, as the immediate result of the construction of the dike, so as to destroy their value and prevent their use by the owners, is a destruction thereof which constitutes a taking and creates a liability for the value thereof.

The destruction of adjacent lands of owners in same tract, as the immediate result of the dike, and its effect as intended and foreseen by the builders thereof, constitutes a taking and creates a liability for the value thereof.

The value of lands was fixed as of the time of taking. In support of these propositions, see Fawcett v. United States, 25 Ct. Cl. 188; Grant v. United States, 1 Ct. Cl. 41; King v. United States, 59 Fed. Rep. 9; M. & C. Ry. v. B., S. & T. Ry., 18 L. R. A. 166; Manigault v. Springs, 199 U. S. 473; Merriam v. United States, 29 Ct. Cl. 250; Mills v. United States, 19 Ct. Cl. 79; Morris v. United States, 30 Ct. Cl. 324; Pumpelly v. Green Bay Co., 13 Wall. 166; Sharp v. United States, 191 U. S. 351; United States v. Great Falls Mfg. Co., 112 U. S. 645; United States v. Grizzard, 219 U. S. 180; United States v. Lynah, 188 U. S. 445; Welch v. United States, 217 U. S. 33; Williams v. United States, 104 Fed. Rep. 50.

The following cases cited by the United States are considered and distinguished: Bedford v. United States, 192 U. S. 217; Levee Commissioners v. Harkleroads, 62 Mississippi, 807; Fort Smith Ry. v. Schulte, 109 Arkansas, 575; Greenleaf Lumber Co. v. Garrison, 237 U. S. 251; High Bridge Lumber Co. v. United States, 69 Fed. Rep. 320; Hughes v. United States, 230 U. S. 24; Jackson v. United States, 230 U. S. 1; McCoy v. Plum Bayou Levee, 95 Arkansas, 345; Peabody v. United States, 231 U. S. 530; Railroad Co. v. Hopkins, 90 Illinois, 316; Railroad Co. v. Roskemmer, 264 Illinois, 103; Railway Co. v. Allen, 41 Arkansas, 431; Railway Co. v. Hunt, 51 Arkansas, 330; Richardson v. Levee Commissioners, 68 Mississippi, 539; Sharp v. United States, 191 U. S. 341; United States v. Chandler-Dunbar Co., 229 U. S. 53.

MR. JUSTICE MCKENNA, after stating the case as above, delivered the opinion of the court.

Upon the findings as thus made the parties to the action base opposing contentions. The Government asserts that the Government's liability is limited to the land actually taken and all other damages are consequential. In other words, that the appropriation of the land and the erection of the Leland Dike put the Government in the position of owner of the land with the rights and liabilities of owner, and that besides it had the rights of government to improve navigable waters. There was concession or some concession of the contention by the Court of Claims in its opinion. The court, through Mr. Justice Barney, said:

"In the decision of this case it may be admitted that if the Government had owned the site of the Leland Dike at the time of its erection, or if it had been owned by a stranger to this suit, and hence had made no invasion upon the lands of the plaintiff, it would not have been