General Box Company v. United States

PETITIONER: General Box Company
RESPONDENT: United States
LOCATION:

DOCKET NO.: 383
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

ARGUED: Mar 28, 1956
DECIDED: May 07, 1956

Facts of the case

Question

Media for General Box Company v. United States

Audio Transcription for Oral Argument - March 28, 1956 in General Box Company v. United States

Earl Warren:

Number 383, General Box Company versus United States of America.

Mr. Moseley.

Edward Donald Moseley:

May it please the Court.

This suit is here on a writ of certiorari to the Court of Appeals for the Fifth Circuit.

The issue before the Court primarily and basically is as to whether or not the Government is liable to the petitioner under the Tucker Act for the value of certain timber which was destroyed during the course of a levee enlargement project on the main stem of the Mississippi River in Concordia Parish, Louisiana.

Basically, the Government contends that the property was subject to a repair in servitude that this servitude was correctly exercised by the Levee Board having jurisdiction over this area and that the Government derived its rights through the Levee Board and therefore it should not be held liable.

The petitioner, on the other hand, contends that there was never any valid or proper appropriation of its property and that in any event if the property was destroyed not pursuant to anything which the Levee Board did or did not do but was destroyed as a direct act of the exercise of the Government's own sovereignty.

This suit was initially filed in the United States District Court for the Western District of Louisiana.

There were actually two suits filed which were consolidated, both arising out of the same set of circumstances.

The District -- the petitioner claim that approximately 260 acres of timberland lying all along the banks of the Mississippi adjacent to the river and between the river and levee were destroyed by government contractors in carrying out an enlargement of the existing levee.

Under the law of Louisiana, I might point out that timber may be owned separately and apart from the land upon which it is situated.

Here, the petitioner owned a timber situated on -- in this area and the fee to the property was owned by a separate party, however, the same law relating to immovables is applicable as to timber so long as it is still standing.

I might further point out to the Court that under the law of Louisiana, the property adjacent to a navigable stream is susceptible of private ownership down to its -- the low average, main low line of the water and although the property is burdened with a servitude, the property may be bought and sold the same as any other property despite the fact that it is subject to a servitude for levee purposes.

Stanley Reed:

It's subject to a servitude to the high-water mark?

Edward Donald Moseley:

Well, sir, I was going to get into that later.

Stanley Reed:

Well --

Edward Donald Moseley:

Under the specific law of Louisiana, there is a general servitude for levee purposes which extends not only to the area immediately adjacent to the levee itself but to whatever area may be reasonably -- reasonably necessary in order for the proper exercise of the servitude for flood control purposes.

That is -- the exigencies of the situation might require even that an area actually beyond the levee itself be burdened with the servitude.

Stanley Reed:

Above high-water mark, far back at the water mark?

Edward Donald Moseley:

It is far back as the reasonable necessities of the situation would require, sir, which could include property even beyond the levee on the landside.

Stanley Reed:

As I understand that applies both to timber and soil?

Edward Donald Moseley:

Yes, sir.

That is -- well, it -- probably it is the general servitude and applies reasonably as our contention, sir, that there has to be a reasonable application of the servitude.

The -- the District Court -- first, I might point out that this suit was originally brought both under the provisions of the Tucker Act and alternatively under the Federal Tort Claims Act.

However, the petitioner ultimately abandoned its claim as under the Tort Claims Act and as -- we are claiming relief solely upon the basis of the Tucker Act at the present time.

Initially, also, the contractors who performed this work and destroyed this timber were joined as party as defendant to the suit but they were dismissed from the action on the motion of -- of plaintiffs.

The District Court after a very mature deliberation of this entire matter, the case was tried, of course, before the Court without a jury.

The District Court, Judge Dawkins, held initially that the Levee Board should have -- have exercised its right of appropriation by following the expropriation procedure, which is an eminent domain procedure, specifically set forth under the Louisiana statutes and that in the absence of following this specific procedure, the Levee Board did not affect a valid appropriation of the property and that therefore the Government should be held liable.

Following that on a -- on a motion, I might point out also that the -- that the -- the Government filed a third party complaint against the Levee Board and the suit was tried both as against the Government and the Levee Board.

In his original opinion, Judge Dawkins held that both -- that the Levee -- the Government was liable to the petitioner and that the Levee Board was liable over to the Government under the provisions of the federal Flood Control Act requiring local authorities to furnish essential right-of-ways in connection with levee projects.