Mr. Barnette E. Moses for appellant:

The right of the Levee District, for the reclamation of lands, to construct levees which have the effect of obstructing the natural flow and turning the water upon the lands of an owner on the opposite side of the river, is not a local question; but is one of general law, on which decisions of the state courts are not binding on the Federal courts. Cairo & Chicago Ry. v. Brevoort, 62 Fed. Rep. 129; Hollingsworth v. Tensas Commissioners, 17 Fed. Rep. 115.

The construction of works, for the improvement of navigation, is an exercise of the power of eminent domain, and the owner of private property taken for that purpose must be compensated. United States v. Lynah, 188 U. S. 445; Armond v. Green Bay Co., 31 Wisconsin, 316; King v. United States, 59 Fed. Rep. 9; Williams v. United States, 104 Fed. Rep. 50; Carlson v. St. Louis River Co., 73 Minnesota, 1128; Velte v. United States, 76 Wisconsin, 278; Desty, Fed. Const. 322.

The construction of levees for reclamation of lands from overflow, although referable in a certain sense to the police power, is likewise an exercise of the power of eminent domain, and the owner of property taken for such purpose must be compensated therefor. Reelfoot Levee v. Dawson, 97 Tennessee, 172; Chicot County Levee v. Crittenden, 94 Fed. Rep. 613; Head v. Amoskeag Mfg. Co., 113 U. S. 9; Hughes v. Levee Commissioners, 27 So. Rep. 744; Ex parte Martin, 13 Arkansas, 198; Carlson v. St. Francis Levee, 59 Arkansas, 513. See also Eldrige v. Trezevant, 160 U. S. 452; Bass v. State, 43 La. Ann. 494.

An owner of land on one side of a stream has no right to build levees upon his side which will prevent the escape of flood water, in times of ordinary flood, over his side and cast them upon land on the opposite side. Cases supra and see also Rex v. Trafford, 20 Eng. C. L. R. 498; Paine Lumber Co. v. United States, 55 Fed. Rep. 854; Woodruff v. N. B. G. M. Co., 18 Fed. Rep. 782, 797; Jones v. United

States, 48 Wisconsin, 385; Burwell v. Hobson, 12 Gratt. 322; O'Connell v. E. T. Va. & Ga. R. R., 87 Georgia, 246, 261; Garrish v. Clough, 48 N. H. 9; Parker v. Atchison, 48 Pac. Rep. 631, 632; Shane v. Kans. City, St. Jos. R. R., 71 Missouri, 237; Gulf R. R. v. Clark, 2 Ind. Ter. 319; Barden v. Portage, 79 Wisconsin, 126; Crawford v. Rumbo, 44 Oh. St. 279; Sullivan v. Dooley, 31 Tex. Civ. App. 589; Byrd v. Blessing, 11 Oh. St. 362; Myers v. St. Louis, 8 Mo. App. 266; Menzies v. Breadalbane, 3 Bligh, N. S. 414, 423; Rix v. Johnson, 5 N. H. 520; Jones v. Soulard, 24 How. 41; Adams v. Frothingham, 3 Massachusetts, 352; Rex v. Yarborough, 3 B. & C. 91; Scranton v. Brown, 4 B. & C. 485; Gould on Waters, § 209.

For what constitutes a "taking" of property see Pumpelly v. Green Bay Co., 13 Wall. 166; United States v. Lynah, 188 U. S. 445; Boston & R. M. Co. v. Norman, 12 Pick. 467; Hooker v. N. H. & M. Co., 14 Connecticut, 146, 160; King v. United States, 59 Fed. Rep. 9; Lowndes v. United States, 105 Fed. Rep. 836; United States v. Great Falls Mfg. Co., 112 U. S. 645; High Bridge Lumber Co. v. United States, 69 Fed. Rep. 326; Paine Lumber Co. v. United States, 55 Fed. Rep. 854; Jones v. United States, 48 Wisconsin, 385; Velte v. United States, 76 Wisconsin, 278; United States v. Welch, 217 U. S. 333; Grizzard v. United States, 219 U. S. 180; United States v. Sewell, 217. U. S. 601; Monongahela Nav. Co. v. United States, 148 U. S. 312, 336; Scranton v. Wheeler, 179 U. S. 141, 153; United States v. Chandler-Dunbar Water Power Co., 229 U. S. 70; Jackson v. United States, 234 U. S. 115; C., B. & Q. R. R. v. Illinois Drainage Commrs., 200 U. S. 593; McKenzie v. Miss. & R. Boom Co., 29 Minnesota, 288; Manigault v. Spring, 199 U. S. 485; Bierer v. Hurst, 155 Pa. St. 523; 26 Atl. Rep. 742.

The term, natural conditions, is applicable to and should be considered in connection with the ordinary high water stage of the river, as well as the low water

stage thereof, in determining the questions in the cases at bar. Burwell v. Hobson, 12 Gratt. 322; S. C., 65 Am. Dec. 247; Angell, Water Courses, § 333; Rex v. Trafford, 20 Eng. C. L. 726; Cairo, V. & C. R. R. v. Brevoort, 62 Fed. Rep. 129.

Those who were the first to disturb natural conditions, by building a levee cannot recover when a levee was built by others on the opposite bank, even though the Jackson levee and land were thereby destroyed. Avery v. Empire Co., 82 N. Y. 582; Menzies v. Breadalbane, 3 Bligh, N. S. 421; Wilhelm v. Burleyson, 106 N. Car. 381; Davis v. Munro, 66 Michigan, 485; Harding v. Whitney, 40 Indiana, 379; Am. & Eng. Enc. of Law, Vol. XXX, 2d ed., page 387.

The term consequential damages has been used in applying the comprehensive rule stated by counsel, to designate injuries which, in fact, did not amount to a "material impairment" of the value of land. Gibson v. United States, 166 U. S. 269; Transportation Co. v. Chicago, 99 U. S. 635.

The permanency of the injury has been expressly treated as one of the determining factors in considering this question. Hollingsworth v. Tensas Comms., 17 Fed. Rep. 115; Cumberland Co. v. Hitchings, 55 Maine, 140; Bedford v. United States, 192 U. S. 225.

As a matter of law, injuries resulting from work done by the Government, for which immunity from liability was claimed, regardless of the facts as to proximate cause, or the nature of the injury, has been expressly repudiated by this court. United States v. Lynah, supra; Monongahela Nav. Co. v. United States, supra; Scranton v. Wheeler,

supra.

Intervention of natural forces, as the direct causes of the injuries, made those injuries remote or consequential, in so far as the work of the Government was concerned and there was, therefore, no liability on its part. Barnes v.

Argument for Appellant.

241 U.S.

Marshall, 10 Pac. Rep. 115; Bedford v. United States, 192 U. S. 225; Gulf, C. & C. Ry. v. Clarke, 101 Fed. Rep. 678.

No provision for compensation is made by the state acts for the land of appellant; and such provision is an indispensable requisite to their constitutionality. Sweet v. Rechel, 159 U. S. 380; Head v. Amoskeag Mfg. Co., 113 U. S. 9; Adirondack R. R. v. New York, 176 U. S. 335; Cherokee Nation v. So. Kans. Ry., 135 U. S. 541; Benedict v. City, 39 C. C. A. 290; Gardner v. Newburgh, 2 Johns. Ch. (N. Y.) 162; Ex parte Martin, 13 Arkansas, 198; Bloodgood v. M. & H. Ry., 18 Wend. (N. Y.) 9; Meriwether v. St. Francis Levee, 91 C. C. A. 285.

Compensation must be paid before the property is taken or within a reasonable time thereafter.

The constitutional provision requiring compensation is merely declaratory of the common law, and the right to compensation was recognized before the Constitution. Staton v. N. & C. R., 17 L. R. A. 839; Gardner v. Newburgh, supra; Withers v. Buckley, 20 How. 84; Kaukena &c. Ry. v. Canal Co., 142 U. S. 254; Sinnickson v. Johnson, 17 N. J. L. 129.

Taking private property without compensation is a deprivation thereof without due process of law. Cooley, Const. Lim., p. 357; Muhlker v. New York & H. R. R. R., 197 U. S. 544; Pumpelly v. Green Bay & M. Co., supra; Scott v. Toledo, 39 Fed. Rep. 385.

Under such conditions the Statute of Limitations does not begin to run until the injury has been consummated. King v. United States, 59 Fed. Rep. 9; Rev. Stat., § 1069; Sloggy v. Dilworth, 8 A. S. R. 658; Del. & Rariton Land v. Wright, 21 N. J. L. 469; Gould on Waters, §§ 412, 414.

Appellant has not been guilty of such laches that a court of equity would deny him relief on that ground. United States v. Great Falls Mfg. Co., 112 U. S. 645; Harlow v. C. & W. Canal, 18 Oh. St. 179; New York v. Pine, 185 U. S. 93, 97.

Appellant had no knowledge or reason to believe that the injury would occur, in the case at bar, until it actually happened and this suit was filed within one year thereafter.

There can be no legislation by estoppel. Estoppel cannot give validity to void acts. Ottawa v. Perkins, 94 U. S. 267; O'Brien v. Wheelock, 184 U. S. 489.

Equity will enjoin a trespass or nuisance, such as is alleged, where the injury is irreparable and the remedy at law is inadequate, without regard to the solvency of the wrongdoer.

Various contingencies may arise in particular cases, to render the injury irreparable and the remedy at law inadequate.

The injury may be destructive of the very substance of the estate. It may not be susceptible of estimation in terms of money.

It may be vexatiously repeated or continuous, necessitating a multiplicity of suits.

The suit is not a suit against the State, within the meaning of the Eleventh Amendment. Osborn v. Bank, 9 Wheat. 738; Hopkins v. Clemson College, 221 U. S. 646; Smyth v. Ames, 169 U. S. 466.

Public policy, though favoring the construction of levees for the purposes of the appellees, is not opposed to the compensation of appellants for the taking of his property as a direct and proximate result of such improvements.

Public policy is determined, primarily, by the Constitution. Vidal v. Girard, 2 How. 127; Missouri v. Illinois, 180 U. S. 208.

Mr. Gerald FitzGerald for Yazoo-Mississippi Delta Levee Board, appellee..

The Solicitor General, with whom Mr. Robert Szold was on the brief, for Mississippi River Commission, appellee: