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

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.

Edward Donald Moseley:

On a motion for — on a new trial, however, Judge Dawkins held, first of all, that the Government had not required out of the Levee Board a valid appropriation of this property and that in the absence of a valid appropriation of the property by the Levee Board in the absence of the Government requiring that to taking — was a taking directly by the Government itself for which the Government which should be held liable under the provisions of the Fifth Amendment.

On appeal to the Fifth Circuit, the judgment of Judge Dawkins was reversed with Judge Cameron discerning.

The Fifth Circuit held that this property had been validly appropriated by the Levee Board under Louisiana law and that since it had been validly appropriated for levee purposes, the — there was no liability on the part of the Government in as much as the Levee Board had properly appropriated the property and conveyed right-of-ways to the Government.

The Fifth Circuit also held that in any event under the provisions of Section 6 of Article XVI of the Louisiana Constitution, compensation was not allowed for a property used or destroyed for levee purposes where that property is situated on batture or in any event, it is not allowed where the property has not been assessed and the — and the recovery is limited under that provision of the article of the Constitution which we will hereafter show as inapplicable to this case.But the Fifth Circuit applied that article of the Constitution in denying recovery to the petitioner.

We contend first —

Stanley Reed:

With that two grounds?

Edward Donald Moseley:

Well, sir, the Fifth Circuit held that the property was situated on batture and which is property between the ordinary low-water mark and the average high-water mark.

And that under the Louisiana constitutional provision, no compensation was allowed for a batture of property used or destroyed for levee purposes.

As — now here, I have to point out, we don’t believe that that article has anything whatsoever to do with the present case.Our position is primarily that — as I previously stated that there was no valid appropriation of this property by the Levee Board.And that in any event, the Government itself, directly through its own agencies, appropriated this property.

In order to ascertain just — in — and in as much as the Government relies upon certain actions which were taken by the Levee Board in this case, I think it would be well for me to briefly review just exactly what occurred with reference to this particular project.

In 1928 and 1929, the Levee Board passed two general resolutions having relationship to no particular property in which they agreed to provide right-of-ways without cost to the Federal Government in connection with flood control projects and otherwise cooperate with the Government in accordance with the provisions of the federal Flood Control Act.

This resolution did not describe any specific properties and did not in and of itself attempt to appropriate any particular properties.

In May of 1947, the Louisiana State Department of Public Works wrote to the Levee Board that they had received plans from the United States engineers concerning an enlargement of an existing levee in that area and they recommended to the Government — to the Levee Board that they cooperate with the Government in the execution of this project.

Thereafter, on June the 10th, 1947, the United States engineers forwarded plans to the Levee Board and requested a statement that right-of-ways were — were available.

It was said in the Government’s letter that this statement could be in the form of a letter directed to United States engineers.

Thereafter, the President of the Levee Board wrote to the United States engineers and advised him that he was happy to comply with their request.

The President of the Levee Board was purportedly acting under a resolution which had been adopted by the Levee Board some two years previous to this time in 1945 which authorized in — in emergency situations, the President of the Levee Board to grant right-of-ways to the Government upon a letter without a prior meeting of the Board, but the resolution provided that the proper right-of-way resolution shall thereafter at the next meeting of the Board be adopted.

So, the President merely wrote this letter to the United States engineers advising that the right-of-ways were available.

In the — at the next board meeting on July the 9th, 1947, the Board met but there was no action taken with reference to the letter which the President of the — of the Levee Board had written other than a mention of the fact was made in the minutes that this letter had been written by the President of the Levee Board to the United States engineers, neither his in that letter nor any of the resolutions or anything else described any specific property.

It did not describe the property of the petitioner herein.

It did not provide any means of giving any type of notice to the property owners involved.

Thereafter —

Stanley Reed:

Did — didn’t it describe it generally like such grounds as maybe necessary for a levee?

Edward Donald Moseley:

I — I believe, sir, it just merely said that the right-of-ways are available, “We are happy to comply with your request and the right-of-ways are available.”

I — as I recall it, there was no specific mention of any particular area at all.

In any event thereafter, the — the engineers in July, this — the first communication from the Department of Public Works in the State of Louisiana was in May and then in July, the United States Engineer has wrote to the Board that instructions to begin this work had been issued on July the 10th.

And on July the 22nd, 1947, work was begun on one of the plaintiff’s tracks and the work commenced on the other plaintiff’s tracks on August the 11th.

On June the 20th, 1947 —

Stanley Reed:

Well, wasn’t a notice to the landowner some — some place in there?

Edward Donald Moseley:

Sir?

Stanley Reed:

Wasn’t a notice to the landowner?

Edward Donald Moseley:

There, I’m — I’m coming to that in just a few minutes, sir.

As a matter of fact, I was coming to what the Levee Board attempted to do insofar as notice is concerned right now.

In June of 1947, on June the 20th, the Board requested from the assessor of Concordia Parish a list of property owners.

Apparently, the assessor did not comply with their request.

And on July the 18th, 1947, another request was made.

Again, that he furnish a list of property owners.

On the July the 31st, 1947, a list of property owners was furnished to the Levee Board.

The plaintiff’s — the petitioner’s name was not upon this list in view of the fact that the property was not assessed, although their property was a matter of public record in the conveyance records, their property was not listed upon the assessment rolls.

However, it would have been a relatively easy matter to have checked the conveyance records himself and ascertained whether or not plaintiff — or who had any interest in this batture and in this timber.

In any event, notices — written notices were not sent out by the Levee Board until October the 10th, 1947 which was, as I previously pointed out, several months after the work had already commenced on the plaintiff’s property.

The first notice to plaintiff had — that anything was going to happen to his property was when he was suddenly confronted with bulldozers in that area knocking over his timber, pushing it out of the way.

The — it was — the Government conceded that the only purpose — that the purpose for this — clearing this area was to obtain an area from which dirt could be obtained, a borrow pits, so as to increase — enlarge the levee itself.

The Government further conceded during the trial of the case that the only read — that the Government plans and specifications themselves specifically provided for the destruction of this timber and that the reason for it was because it would affect a savings in cost.

In other words, the Government, prior to the time any action was taken by the Levee Board, prior to the time the Levee Board had been communicated with, had made its own independent conclusion that this timber should be — should be destroyed and it included it specifically in the plans and specifications in regard to this job, the contract was let upon the basis of destroying the timber.

Petitioner, upon learning of this destruction which was occurring on his place, it had been practically completed in one area by the time he learned of it and was in progress in another area, went out and asked the contractor to allow him to log those trees out of that area.

The contractor refused, stating that his contract and his bid had been made upon the basis of bulldozing this timber and that he would not permit the — the owner of the timber to log it out of the area.

The — the owner of the timber thereafter, in order to minimize his damages at least, did make some arrangements to partially salvage some of the property but the property — the — the timber, but the timber was not fit for the purpose for which it was originally being grown due to the fact that the tremendous impact of the bulldozers knocking these trees over destroyed the fiber and I believe that they ended up using them for making boxes, the one’s that they could salvage, rather than for veneer which that was and originally anticipating.

Now, I think that the foregoing facts clearly and specifically show that the Government in this case did not require an effective appropriation of this property by the Levee Board.

Now, we’ve recognize the fact that the property alone, in navigable stream, in Louisiana is burdened with a servitude in favor of the property.

And we recognize that there is a distinction between expropriation and appropriation and that although no formal procedure is required in order to affect an appropriation of property, they nevertheless, as Judge Dawkins put it, it does require action appropriate to the circumstances.

That is such action as will minimize the loss to the landowner.

Here, there was actually no notice whatsoever.

The Government has told the Levee Board, “You can furnish to seize right-of-ways by writing us a letter.

You won’t be required to furnish a formal resolution.”

They required — did not require the Board to give him any notice whatsoever.

And we take the position here and we think it’s a sound one that an appropriation of private property cannot be affected by a series of private letters between the various governmental agencies involved without any notice whatsoever to the property owner.

(Inaudible)

Edward Donald Moseley:

Well, sir, the appropriation itself is the physical taking of the property.

(Inaudible)

Edward Donald Moseley:

Now, I — I’m a drawing a distinction, sir, between the formalities of an expropriation procedure or an eminent domain proceeding in a proceeding under which the — the Government goes in and appropriates the property without going through the formalities prescribed in a formal — formal eminent domain proceeding.

The Louisiana courts have recognized that there is no formal procedure which must be followed in order to affect an appropriation as distinguished from an expropriation or eminent domain proceeding.

However, and I — I’m sure the Government will concede this, that although the Louisiana courts have not outlined any specific procedure or set any minimum standards which must be obtained in order to affect appropriation, the courts — the Louisiana courts on innumerable occasions specifically stating that the power to appropriate private property for a public use is one which — which cannot be capriciously exercised.

It must be exercised reasonably, not arbitrarily.

Harold Burton:

But if they are appropriating within the limits of their servitude, aren’t they just appropriating their own property?

Can they do it in their own way?

Edward Donald Moseley:

No, sir.

We — the owner of batture, sir, has — owns the property down to the ordinary low-water mark.

Under the law of Louisiana —

Harold Burton:

Subject to servitude.

Edward Donald Moseley:

It is subject to —

Harold Burton:

(Voice Overlap) —

Edward Donald Moseley:

— a servitude.

Harold Burton:

— if the Government is keeping within the limits of its servitude, within the terms of the servitude, it’s then exercising its own right in the property and therefore it doesn’t have any formalities about taking it away if it wants to, does it?

Edward Donald Moseley:

I think it does, sir, that they — since — in as much as the property owner owns this batture or owns a property adjacent to the river that when the Government gets ready to exercise its rights under the servitude, it has to take reasonable action to afford protection to the property owners involved so as to afford them an opportunity to minimize their losses.

Harold Burton:

And not an absolute right of servitude but a right of servitude subject to certain —

Edward Donald Moseley:

Well, I —

Harold Burton:

— of either (Voice Overlap) —

Edward Donald Moseley:

— it’s — it’s subject to the — it’s subject to the test of reasonableness — reasonableness, sir.

That is it must be reasonably exercised and not capriciously exercised and in a manner in which you’re willing —

Harold Burton:

Well, what (Voice Overlap) —

Edward Donald Moseley:

— would cause any undue hardship to the individual —

Harold Burton:

What you’re complaining (Voice Overlap) —

Edward Donald Moseley:

— property owners involved.

Harold Burton:

What you’re complaining about is not the appropriation but the manner in which the appropriation was made, is that it?

Edward Donald Moseley:

I have to concede, sir, that there is under the law of Louisiana, a right of appropriation.

Harold Burton:

In other words —

Edward Donald Moseley:

Unless —

Harold Burton:

— that there’s (Voice Overlap) —

Edward Donald Moseley:

— the argument can be made, sir, that the provisions of the federal Flood Control Act have suspended state law in that respect and that — that the — the Federal Government when it proceeds to direct to take property is controlled by the Fifth Amendment itself.

Harold Burton:

Are you — and you’re not — and you’re not complaining then about the right of appropriation but you’re claiming the way they exercise their right.

Edward Donald Moseley:

That is correct, sir.

I’m — I’m claiming —

Harold Burton:

In other words —

Edward Donald Moseley:

— primarily and basically —

Harold Burton:

— that you — you’re claiming that something like this, if you had a house on this batture, they would have been — entirely come in and set it on fire just in order to get rid of it, they’d have to give you a chance to get that —

Edward Donald Moseley:

That is correct, sir.

Harold Burton:

— house only.

Edward Donald Moseley:

That is absolutely correct.

As Judge Cameron pointed out in his dissenting opinion, it could have been any various types of wealth situated on this batture.

If I may draw an example, sir, in my own hometown of Baton Rouge, Louisiana, there has recently been created a port authority which has issued bonds in the amount of $12 million for the purpose of building various types of port facilities including wharfs, grain terminals, railroad facilities and various things of that nature.

Some of that property is situated between the river and the levee and some is situated on the outside of the levee.

However, if we accept the Government’s position as being true in this case, that right of appropriation could be exercised to such an extent that those entire facilities could be immediately destroyed without any compensation whatsoever.

And we take the position that — and — that there is this right of appropriation but that it must, nevertheless, be reasonably exercised and in such a manner as to inconvenience, the property owner is involved as little as possible.

Do you claim that notice to the owner is an essential element of a valid exercise, is that your point?

Edward Donald Moseley:

Not in our cases, sir.

I can — I can conceive of a situation in which the danger of flooding was so imminent that there might not be a possibility of giving notice before that appropriation could be effected.

Here, however, in this particular case, there would have been ample time to afford these property owners an opportunity to confer with the U.S.– U.S. engineers and with the Levee Board to give them an opportunity to work something out just so that they could at least minimize their damages without going in and just arbitrarily destroying their property without any previous notification whatsoever.

I can — as I say, however, I can conceive of a situation where an imminent danger of flood might not permit that to be done and I come back to — I think Judge Dawkins in his opinion phrased it very well when he said that action appropriate to the circumstances must be taken.

And — and that is, of course, a very general concept but I think it is one which in — in each specific case, if it is properly applied, would afford a degree of protection to the property owners in the exercise of their own right (Voice Overlap) —

Harold Burton:

But you — you don’t find any statutory provisions to spell that out.

I —

Edward Donald Moseley:

No, sir, the — the Louisiana — Louisiana has never specifically set forth any particular procedure under which this right of appropriation must be exercised.

However, and as pointed out in numerous cases and as a matter of fact, the very course — cases relied upon by the Court of Appeals below in deciding this case against us actually support our position that the servitude must be reasonably exercised.

There were three cases basically upon which the Court of Appeals predicated its decision.

There were cases of Danziger versus United States, Dickson versus Board and Board of Commissioners versus Trouille, which is cited in my brief.

In the Danziger case, which was — which was decided by the Eastern District of Louisiana, the record there — the case there shows that actually what the Levee Board did — and I think that you will find this as probably the customary procedure which is followed in — in practically all cases.

Through a reading of the cases, you’ll see that the customary procedure is this as what the Levee Board did in this case.

In the Danziger case, the Orleans Parish Levee Board, before the appropriation was effective, passed a formal resolution specifically describing the properties involved.

They — they thereafter sent out a notice by registered mail to all of the property owners involved.

Edward Donald Moseley:

After that was done, the Levee Board itself set about physically removing the improvements that were within the area to be appropriated.

Now certainly, in a — that does provide an effective means for protecting the property owner.

Hugo L. Black:

May I ask you a question —

Edward Donald Moseley:

Yes, sir.

Hugo L. Black:

— to see if I can get to (Inaudible)

You — does your concession extend not only far enough to say that the State can appropriate the property or that you — but that it can appropriate it for that payment of compensation?

Edward Donald Moseley:

Under the Louisiana statute — that is another point which we have in the case, sir.

Prior to 1921, there was no provision in the Louisiana Constitution providing for payment for a property used or destroyed for levee purposes at all.

That is if a property were used or destroyed for levee purposes, no compensation at all was due under the law of Louisiana.Of course, I’m not speaking of the federal law at the present time but maybe that the Fifth Amendment is controlling here and we contend that it is.

But under the Louisiana law, there was no provision for compensation.

In 1921, Article VI of Section 16 of the Louisiana Constitution was adopted which provided that as to property used or destroyed for levee purposes, compensation would be due at the assessed value of the property.

Provided, however, that no compensation would be due at all for property situated on batture or property —

Hugo L. Black:

And is this —

Edward Donald Moseley:

— owned by an (Voice Overlap)

Hugo L. Black:

Is this that property?

Edward Donald Moseley:

Sir?

Hugo L. Black:

Is this that property that they do not have to pay compensation on?

I — I have —

Edward Donald Moseley:

Well —

Hugo L. Black:

— understood your concession.

You said you concede to have a right to appropriate.

Do you concede to have a right to appropriate without paying?

Edward Donald Moseley:

Yes, sir, under certain circumstances.

However, that right must be reasonably exercised and the property which is appropriated must be used for levee purposes.

Here, the —

Hugo L. Black:

(Voice Overlap) question is in — do we have that question here whether it’s to be used for levee purposes?

Edward Donald Moseley:

Well, sir, that is a portion of the case.

Yes, sir.

Our position on that is this, if these trees clearly were not used for levee purposes.

The — the trees form no part of the levee itself —

Hugo L. Black:

I don’t — I — I hope that — I didn’t make my question clear.

Do you concede the State has a right to take this property for this purpose, this land, for this purpose without paying them?

Edward Donald Moseley:

I concede that they have a right of appropriation —

Hugo L. Black:

For this purpose.

Edward Donald Moseley:

For this —

Hugo L. Black:

Now —

Edward Donald Moseley:

Not for the — well, I — I don’t concede that they had the right to destroy these trees, sir —

Hugo L. Black:

I understand that.

Edward Donald Moseley:

— I don’t believe that —

Hugo L. Black:

I — I was going to ask you about the trees to see if I could get your claim.

Then is it your claim that although they do have a right to take your land and use it for that purpose that Louisiana law requires that you be given notice before they destroy your trees which could be saved and the land still being utilized for the purpose intended.

Edward Donald Moseley:

The law does not — the Louisiana law does not contain any specific requirement as to notice.

There is no formal procedure set forth.

The — however, and I will reiterate this again, the — the general practice is to take reasonable steps to afford the maximum degree of protection to the property owner to take steps appropriate to the circumstances.

Hugo L. Black:

Did Louisiana take the land?

Edward Donald Moseley:

No, sir.

The Government took it.

Hugo L. Black:

The Government took it.

Louisiana did not appropriate for the levee purpose?

Edward Donald Moseley:

Well, they purportedly granted these right-of-ways to the Government, sir.

The — the levee project was actually constructed by government engineers under — under a government contract.

Under the Flood Control Act, the local authorities are supposed to furnish right-of-ways for levees or levee foundations free of cost to the Government.

That is what the Levee Board did in this case.

They — they wrote a letter to the levee — to the United States engineers advising them that the right-of-ways were available —

Hugo L. Black:

And —

Edward Donald Moseley:

— and that is the —

Hugo L. Black:

— if they had given you notice and said that you’ve got time to get your trees away and you had taken them away, would you have any claim either against the Government or the State of Louisiana?

Edward Donald Moseley:

I think I would, sir.

I — I have a claim against the Government for this reason, sir.

Felix Frankfurter:

For what?

Felix Frankfurter:

Claim for what?

Edward Donald Moseley:

Claim for just compensation, sir.

Felix Frankfurter:

Of what?

Of the land?

Edward Donald Moseley:

For the trees, sir.

Hugo L. Black:

Well, I said if — if you get your trees.

Edward Donald Moseley:

Oh, no, sir, I’m sorry.

I didn’t understand you.

Hugo L. Black:

I said if you gotten your trees and the Government was using the land for precisely the purpose that’s here as under the circumstances shown, would you claim that you had — would you assert any claim against the Government or the State?

Edward Donald Moseley:

I don’t believe so, sir.

The property would have been devoted specifically for levee purposes.

Hugo L. Black:

(Voice Overlap) —

Edward Donald Moseley:

It would have been a reasonable use and perhaps a reasonable method of exercising the right of appropriation.

Hugo L. Black:

So, your claim gets down to the — one that the State can take it for levee purposes, the land.

But you claim that they shouldn’t have destroyed your trees that you could have had time to save them.

Edward Donald Moseley:

That is correct, sir.

Hugo L. Black:

And that the Government itself ought to pay you.

Edward Donald Moseley:

That is correct, sir.

Hugo L. Black:

Have you filed any claim against the State of Louisiana?

Edward Donald Moseley:

No, sir.

The State of Louisiana was joined as a third party defendant by the Government.

Now, may I — in that connection, I might state that regardless of what the Levee Board did or did not do in this case that even prior to the time there was any communication between the Government and the Levee Board, the Government had itself prepared these plans and specifications specifically authorizing destruction of the timber and it’s conceded by the Government that the reason for this was that the Government would save money on its contracts.

The Government argues that it’s a relevant factor to take into account that the cost of a public project is a relevant factor to take into consideration.

They had the right to take into consideration cost and allow practically confiscation of this property on the basis that it would save the Government money.

We concede, of course, that cost is a relevant factor in any public project but it is not so relevant that you can abrogate completely the principles of due process in just compensation.

Hugo L. Black:

Do you view the question raised that the right to take this property as it was taken is one decided under state law or federal law?

Edward Donald Moseley:

I think basically, sir, the case involves perhaps an application of both.

My — my — the general question does insofar as a particular problem involved here is concerned, I think it requires only an application of the Fifth Amendment because the Government itself —

Hugo L. Black:

You have first to decide, do you not, whether you own that property or the State has a right to take it and take your trees along with it?

That would be a state question, wouldn’t it?

Edward Donald Moseley:

Yes, sir.

That — that would be determined by a state procedure, I believe.

But — but I still come back to my original proposition.

Hugo L. Black:

Well, was that state question decided against you in the Court of Appeals?

Edward Donald Moseley:

The — the Court of Appeals held that the property had been properly appropriated —

Hugo L. Black:

Under state law?

Edward Donald Moseley:

— under state law.

Yes, sir.

Including the trees?

Edward Donald Moseley:

Yes, sir, including the trees.

They — they now —

Felix Frankfurter:

You — you’re answer if I understood you correctly a minute ago that if that was so, you would leave without a claim.

If the Court of Appeals precludes that state law of appropriation was followed.

If that was so then you would have no standing here, is that right?

Edward Donald Moseley:

No, sir.

I — I can’t concede that for this reason that even prior to the appropriation or the attempted appropriation by the state authorities, the Government itself had in effect taken this timber by specifying in its plans and specifications that the timber would be destroyed.

Felix Frankfurter:

Suppose that would be the —

Edward Donald Moseley:

And that the taking then —

Felix Frankfurter:

— on paper.

That was — that’s not a taking, is it?

Edward Donald Moseley:

Well, the — after the contracts were let.

In the contract, he had a perfect right and he insisted upon his right to go in there and destroy those trees, sir.

Felix Frankfurter:

But your claim — your essential claim is that in doing so without giving you an opportunity to save — to salvage the trees.

Edward Donald Moseley:

That is one of the basis of our claim, yes, sir.

Felix Frankfurter:

Had to be — and therefore you challenge it, the Court of Claims concluded that the state law of appropriation wasn’t (Inaudible)

Edward Donald Moseley:

The Court of Appeals did, yes, sir.

Felix Frankfurter:

(Inaudible) the Court of Appeals.

Edward Donald Moseley:

Yes, sir.

That — that, of course, may have involved a question of fact which was decided in our favor by the District Court.

Felix Frankfurter:

Can I ask, was that a conclusion of law by the Court of Appeals or (Voice Overlap) —

Edward Donald Moseley:

I should think, sir, that it is a question of fact for this reason.

Felix Frankfurter:

That fact and that finding was in your favor?

Edward Donald Moseley:

In the District Court.

Felix Frankfurter:

In the District Court?

Edward Donald Moseley:

Yes, sir.

Felix Frankfurter:

Well, did the Court of Appeals say that finding was baseless?

Edward Donald Moseley:

Well, they reviewed the records, sir.

The — the same actions which I have reviewed here as to the action taken by the Levee Board and they concluded that —

Felix Frankfurter:

At that (Voice Overlap) —

Edward Donald Moseley:

— there have been a valid appropriation.

Now, the Louisiana courts have held that — that a property owner owning property of this type is not without a remedy and that the authority of this Board is subject to judicial control wherever oppression and injustice is shown.

Judge Dawkins was of the clear opinion and he so stated that there was oppression and injustice in this case after reviewing all of the facts.

Felix Frankfurter:

He was the only — he was the only Louisiana judge on the Court of — in this litigation?

Edward Donald Moseley:

In the — yes, sir.

And I’m — I would like, if I may, sir.

I would like to go into that at this point just a little bit.

Judge Dawkins is one of the more distinguished jurors in Louisiana.

He was formerly a Supreme Court Judge prior to — going on the federal bench.

He was a member of the 1921 Louisiana Constitutional Convention at which the constitutional provisions were adopted, which are being — which are involved in this case.

He had a very long and distinguished career as a District Judge and we — we in Louisiana consider him as not only one of the outstanding judges in our State but in the nation.

In addition to that, Judge Dawkins was the author of two of the landmark decisions involving this same type of controversy, the case of Tilden versus United States and the case of Wolfe versus Hurley.

And we think that in view of all of those circumstances that Judge Dawkins’ opinion was certainly entitled to great weight.

If there was a man who was imminently qualified to pass upon the questions involving this case, it was certainly Judge Dawkins.

Now, going back again briefly to the Court of Appeals decision.

It cited three cases, one in which I have discussed, the Danziger case in which specific notice was given.

The Court of Appeals also cited the Dickson case, a Louisiana Supreme Court case in which — although it didn’t involve this particular point, the courts held that the actions of these boards are subject to review when there has been impalpable abuse of their powers.

In the third case cited by the Court of Appeals, the Court found that there had been a substantial compliance with an act requiring notice as to the particular Levee Board involved in that case.

But we take the position that the cases cited by the Court of Appeals actually support our view in this case.

And that with cases cited in our brief, it probably show that as a matter of administrative practice, it has been the practice of Levee Boards throughout the State to forward where possible reasonable notice and an adequate opportunity to the landowner to remove his property prior to undertaking these various projects.

I might point out specifically the case of Board versus Kelly which is cited in my brief.

Edward Donald Moseley:

In that case, there are group of people who live on the batture around — in Orleans Parish in Louisiana.

These people have no title to the property whatsoever.

They’re just merely squatters.

They — they build a little house along the batture and they then don’t have to buy a lot.

They — they have their lot free of cost so they did up until this point.

These people nevertheless, a great number of them were occupying this batture area.

They’re called batture dwellers.

The Orleans Parish Levee Board proceeded to make a necessary arrangement to cooperate with the Federal Government in a levee improvement project to notify these batture owners to get off.

They wouldn’t get off and the State — the Levee Board, rather than arbitrarily going on this property and just destroying it, have filed and did file a suit for a mandatory injunction requiring these people to remove their property before going ahead with the project.

And we think that on the basis of all of that, on the basis of the Louisiana decisions involving the right of appropriation, that there was clearly not a valid appropriation made by the Levee Board in this case.

Earl Warren:

Then your — then your statute provide that improvements built on that batture may be destroyed at the —

Edward Donald Moseley:

At —

Earl Warren:

— expense of the owner?

Edward Donald Moseley:

At the expense of the owner, sir, but I believe that — especially that particular statute anticipates a formal proceeding to require removal and does anticipate that the owner can remove them at his expense.

Earl Warren:

Now, where (Voice Overlap) —

Edward Donald Moseley:

We would have been very happy to have removed this property at our expense, sir.

Earl Warren:

I can understand — I can understand that but where — where is the procedure required to do what you have just said in relation to this statute which says — says that they may — not that they may — may be moved but it says they may be destroyed at the expense of those who claim them.

Edward Donald Moseley:

That statute, sir, I think it’s — it’s permissive and that it says that they may be removed.

There’s an area of discretion involved there, I think, sir.

Furthermore, this particular statute, as I recall the State throughout the cases arising under that statute and do anticipate a contradictory proceeding before they remove unless required.

And furthermore, it says — I believe that statute says works which have formally been built on public places or in the beds of rivers may be destroyed.

Here, the property was just a natural growth and of course it was timber which was involved not a structure.

So, for all of those various reasons, I don’t believe that that particular statute has any application at all to this case, sir.

Stanley Reed:

Well, isn’t your real complaint that you didn’t have notice?

You — you claimed no right to have stayed there if they didn’t give any notice to you?

Edward Donald Moseley:

We — we think that we should have been given an opportunity to remove that timber, so we recognize —

Stanley Reed:

(Voice Overlap) —

Edward Donald Moseley:

— that there is a servitude existing.

Stanley Reed:

You claim no damages?

Edward Donald Moseley:

No, only insofar as —

Stanley Reed:

Insofar —

Edward Donald Moseley:

— the destruction of our timbers —

Stanley Reed:

— if you weren’t given a notice.

Edward Donald Moseley:

— is concerned.

And — and you haven’t pointed out, if I have understood you properly, where the statute requires that you have them.

Edward Donald Moseley:

The statute itself does not require any formal proceeding, sir, but it requires reasonable action upon the part of the governmental agencies involved.

Under what words?

Edward Donald Moseley:

Well, it’s — it’s been — I think that the general law in Louisiana, and I’m sure it is elsewhere, sir, is that whenever a servitude exists that it must be exercised in a reasonable manner and in a way which would be least burdensome and inconvenient to the property burdened with the servitude.

And I think that is — that principle is particularly applicable here.Our Louisiana courts have said that — that the Levee Board’s discretion is not unbridled, that it must — that when oppression and injustice is shown that — that the landowner has a remedy in the courts.

And we certainly think that the landowner, the owner of this timber here, should have been given an opportunity to salvage his property.

Now, that is based upon the fact that — my previous argument has been based upon the fact, of course, that — that the Government did or could obtain certain rights through the Levee Board, but here, actually, the Government was not relying upon any rights whatsoever that it derived through or from the Levee Board.

The Government made its own contract and let the contract on the basis of bulldozing this standing timber.

The property of this — this timber was not used or destroyed for timber purposes but solely to save money on the part of the Government.

That’s conceded.

The destruction, we don’t believe was and I think the record would bear us out, was not essential to the exercise of the riparian servitude.

It was not exercised reasonably and although cost may be a relevant factor, we don’t believe that it can be used to circumvent the effect of the Fifth Amendment.

And in that connection, I would like to point out this, that if the Government position is correct here, why then the Government can do by any direction what it could not do directly.

It can in effect by utilizing.

The procedure followed here circumvent the effect of the Fifth Amendment.

Harold Burton:

Well, once you say this is not expropriation taking public property for private use, why do you talk about the Fifth Amendment?

Edward Donald Moseley:

Well, sir, because it was — it was a taking by the Government under a contract let by the Government in order to save money for the Government.

And we think that since the property was appropriated for a public use in — to that extent, a compensation should be allowed to these owners of this timber.

Harold Burton:

It’s an informal taking and therefore the Fifth Amendment applies to it although it’s not a condemnation proceeding?

Edward Donald Moseley:

Yes, sir, I think so.

It was — it’s the position we take that if —

Stanley Reed:

Well, the — the Levee Board knew precisely what land to take in, did they not?

Edward Donald Moseley:

I assume, sir, that the plans and specifications did show specifically the area involved.

The Government did forward plans and specifications to them and they should — they were, I’m sure —

Stanley Reed:

And (Voice Overlap) —

Edward Donald Moseley:

— familiar with the plans —

Stanley Reed:

When the letter was put on record from the Government and the answering letter of the Chairman, I suppose, was with the Levee Board, they referred to that same territory.

Edward Donald Moseley:

Yes, it was referred to as Brabston and — and — I forgot the name of it, sir, but the two enlargements involved.

Stanley Reed:

Brabston and Ashland.

Edward Donald Moseley:

Brabston and Ashland, I believe.

Yes, sir.

Stanley Reed:

That covered all the territory that you’re talking about.

Edward Donald Moseley:

Well, yes, sir.

Now, we — we further believe that the right of appropriation such as exists here where you do have the right to — under certain circumstances take the property of another without the formality of an expropriation or a condemnation proceeding that it is certainly a right which should be strictly construed and cautiously exercised.

And —

Harold Burton:

Now, I come back to you, the proposition again.

Your main contention is not that — that in the appropriation but in the manner of the appropriation.

Edward Donald Moseley:

That is correct, sir, primarily.

Harold Burton:

And you don’t — and you don’t find any statute that tells you how you should do it but you find it in this — in the cases, you believe.

Edward Donald Moseley:

In the cases.

Yes, sir, that is correct, sir.

And it is, of course, a concept of reasonableness which I don’t (Inaudible)

Earl Warren:

What case is closest in point to — to this thing you’re talking about at the moment?

Edward Donald Moseley:

The most analogous case that I can think of, sir, is the case of Tilden versus the United States which is a case which was relied upon by Judge Dawkins.

There are certain distinguishing features in that case.

However, in that case, certain timber was destroyed in connection with a levee project and Judge Dawkins concluded in that case that there had been an appropriation by the Government and held the Government liable under the Fifth Amendment.

Stanley Reed:

That was — is that case in your brief?

Edward Donald Moseley:

I don’t believe that I specifically cited that case in my brief, sir.

It is in —

Hugo L. Black:

What state cases hold that?

Edward Donald Moseley:

The state cases — I have just — insofar as I have been able to ascertain, sir, I have just set forth a concept of reasonableness without specifying it.

As a matter of fact, I think this situation has developed over a long period of time and nobody has ever challenged to any great extent just exactly the procedure which was followed by these Levee Boards.But — and despite the fact that the courts had not ever prescribed any specific procedure in Louisiana, they have stated that — that the actions cannot be arbitrary, cannot be capriciously exercised and that the property owner has a judicial remedy when oppression and injustice is shown.

That is the only test which has been set forth by the courts of Louisiana insofar as I know.

Earl Warren:

Has that test been set forth in any — any case that involved this levee lands and the Constitution of Louisiana as we have it now?

Edward Donald Moseley:

Well, yes, sir.

Earl Warren:

What case is that?

Edward Donald Moseley:

Well, there are various cases cited in my brief in which the Court — courts have on — in a number of cases, of course, found that this right of appropriation does exist.

And there are a number of cases cited in my brief in which we — we recognize that principle, that — that there is a right of appropriation under Louisiana law and that — if that right is legally and properly exercised for a lawful purpose that there is no compensation due, but it — it is still subject to reasonableness under Louisiana law.

Earl Warren:

Well, where is the case that holds that they cannot do it except through a reasonable procedure under Louisiana law?

That’s the case that I’d like to see.

Edward Donald Moseley:

Well, sir, it is probably mostly dictum in a Louisiana case.

The case of Dickson versus the Board in which the Court said that the actions of the Board are subject to review, where there has been a powerful abuse of their power, the case of Board of Commissioners versus Trouille.

Earl Warren:

Well, now, did that case have to do with — with notice or — or the procedure that was involved in the case or did it — that it involves some other power of the Board?

Edward Donald Moseley:

I don’t believe the case involved specifically the requirements as to notice, sir.

Earl Warren:

Or procedure of any kind?

Edward Donald Moseley:

Not to my knowledge, sir.

I don’t believe — the only — the only place that I have been able to find any cases involving the procedure is where — for instance in the Danziger case, where they did show what the procedure was that the Board followed.

And that — that is the only case in which — which I recall, in which there was outlined a procedure which the Board did follow, but the Court has never specifically stated, so far as I know, exactly what that procedure would be.

I think that perhaps it might be a question of first impression which in the absence of any affirmative finding in the state court, perhaps, this Court would be called upon to decide independently.

Earl Warren:

And is it your position that — that there are no cases in Louisiana to the contrary?

Edward Donald Moseley:

To the contrary to what?

Earl Warren:

Of the position that you are now stating.

Edward Donald Moseley:

I think the principles of law are pretty well agreed upon in this case, Your Honor.

That is we agree that there is a right of appropriation but we contend and the case has bear us out that is — it is a right which must be reasonably exercised.

We make a further contention of course, adhere of course, the taking was actually by the Government, independently of anything that the Board did.

And that therefore the Fifth Amendment should control.

Earl Warren:

The reason I asked you these questions, it would be very easy for me to agree with you if I could find a Louisiana case which said that was the law of Louisiana.

That’s the reason why (Voice Overlap) —

Edward Donald Moseley:

Well, sir, I need to tell you that the Louisiana law requires notice because it is never been specifically set out that it does require notice.

I think Judge Dawkins, who gave this case a very mature deliberation, came up with the right answer when he said that Levee Boards must take action appropriate to the circumstances.

Earl Warren:

Can you —

Edward Donald Moseley:

I — I know of any declaration which can sum it up any better than that, sir.

Earl Warren:

And that we can take more or less as a matter of first impression?

Edward Donald Moseley:

So far as I know, sir.

Earl Warren:

Yes.

Edward Donald Moseley:

Now, there is one Louisiana case, the Pruyn case versus Nelson which involved the question of taking the dirt from the batture and using it on the levee enlargement project.

Edward Donald Moseley:

It didn’t involve the question of reasonableness of taking timber in the method this was taken.

I believe the Court in that case — although no specific contention was made as to the method utilized or the procedure utilized, the Court did make a statement in that case that the customary way to appropriate the dirt was to delegate to the contractor the authority to take the dirt and use it for the enlargement project.

Of course here, we also make the additional contention that the trees themselves were not essential to this project.

They, of course, would incorporate it into the levee itself and they were just destroyed for the purpose of creating an area from which the dirt could be obtained.

Hugo L. Black:

Well, they — the Court of Appeals in deciding against this, decided the very case which are similar.

Edward Donald Moseley:

Yes, sir.

I —

Hugo L. Black:

A little — I think a little difficult but —

Edward Donald Moseley:

Well, sir, I think that —

Hugo L. Black:

— (Inaudible) different than the ones they did.

They cite them as showing that the — the Government (Voice Overlap) —

Edward Donald Moseley:

Well —

Hugo L. Black:

— the State took this under duty of procedure and if — I noticed in the — it was a valid taking under state law.

Edward Donald Moseley:

Well, sir, they — they require that those cases do stand for the proposition perhaps that no formal procedure is required.

But if you analyze those cases, they clearly show that in a case of hardship such as this would clearly was, this property owner without any previous notification whatsoever is find — find the bulldozers out on his property knocking his timber over.

Hugo L. Black:

They — they answered that by saying that they gave you the only notice that the law provides which is the tax assessment record and they gave notice to the tax assessors on the — those shown to the owner on the tax assessment role, what about it?

Edward Donald Moseley:

Well, sir, even if there was a purported attempt to give notice, I don’t know if I just covered this before or not, the Levee Board, actually, as a matter of fact in this case did attempt to give notice to some property owners not to this particular one, but there was an abortive attempt particularly insofar as this petitioner was concerned in as much as the notices were not sent out until sometime in October when the petitioner’s property had been — the destruction had commenced some several months prior to that time.

Stanley Reed:

Assuming you were entitled to notice, to whom — from –from whom were you entitled about it?

Edward Donald Moseley:

I think the customary procedure, sir, is for the Levee Board to give a notice.

Stanley Reed:

And the Government notified the Levee Board —

Edward Donald Moseley:

The Government told the —

Stanley Reed:

— told — told them exactly what they wanted and received the notice of amount that everything was in order, is it not?

Edward Donald Moseley:

No, sir.

The — the Government did this.

They’d said we would — wish a statement from you to the effect that right-of-ways are available, the statement may — may be in a form of a letter.

The Government could have itself by even a minimum amount of check and you’ve ascertained what steps had been taken or had not been taken by the Levee Board.

Sherman Minton:

Wasn’t that two of the reasons that this client of yours didn’t receive notice was because he hadn’t yet acquired the property, he wasn’t on the list?

Edward Donald Moseley:

No, sir.

The property had not been assessed but that the fact of his ownership could have been ascertained from examination of the conveyance records.

Sherman Minton:

But it wasn’t on the list that they had to give the (Voice Overlap) —

Edward Donald Moseley:

It was not on the assessor’s list, no, sir.

William O. Douglas:

As I read your Louisiana cases, I hadn’t read them all, but the ones that I read are cases where there was a notice given, some notice given to each —

Edward Donald Moseley:

In the majority of them —

William O. Douglas:

— to the property owner (Voice Overlap) —

Edward Donald Moseley:

In the majority of them, there were, sir.

No, I won’t say categorically that there wasn’t.

No — no, sir.

I — I don’t know that there was or not.

William O. Douglas:

There had to be notice even in the ones that I read.

I wondered if —

Edward Donald Moseley:

Yes, sir.

Well, as I — as I say, it looks like it doesn’t matter if administrative and customary practice notice is given, but I can’t — can’t conceive of a situation in which the imminent danger of a flooding condition would dispense with any —

William O. Douglas:

You know of any Louisiana case except this one where no — no notice was given?

Edward Donald Moseley:

Well, the — the Pruyn case briefly touched on that in which the property owner was claiming — claiming compensation for the dirt taken for the specific purpose of using on the levee and they said the customary method there of appropriating a property was by giving notice to the — to the contractor.

However, there was no — no particular issue made as to the procedures.

I say, sir, I don’t believe anybody has ever made a real genuine issue out of what the procedure should be in a situation like this.

And it — it is perhaps something that should be made a little — a little more specific exactly what their duties are beyond the concept of reasonableness.

I would like to save a brief amount of time for rebuttal, sir.

Earl Warren:

Mr. Hill.

S. Billingsley Hill:

May it please the Court.

This — the subject matter of this case relates to a very basic principle in the body of law which Louisiana has developed to protect its citizens and property from destruction by the flood waters of that State.

That first and basic principle as has been discussed here is that the State owns a servitude or easement for levee purposes on all repair in — land repair into its navigable rivers.

Now, petitioner concedes that servitude but seeks to deny its force and effectiveness by imposing legal limitations upon it which we insist are not required and that there is no authority for.

Therefore, to meet that it’s necessary — necessary for me very briefly to review the origin and the scope and the source of the power and the compensability of that servitude.

The servitude commenced in actions of the French crown in reserving the servitude from grants of property given in this French crown colony.

It was carried on through the reign of Spain and by express code provisions during territorial status and currently during statehood.

The scope and extent has been judicially defined to include all property which is within the range of the reasonable necessity of the situation as produced by the forces of nature.

It includes lands, improvements, crops and trees.

Now, the power — the source of the power of the servitude is not eminent domain.

That is the taking from another, exercising the State’s paramount domain.

S. Billingsley Hill:

In Louisiana, as elsewhere, exercise of eminent domain would require just compensation.

The State calls that power expropriation.

That’s eminent domain, it calls expropriation.

It calls the exercise of this levee servitude and appropriation.

That is it appropriates to its own use property which already belongs to it.

That’s the source of the power, ownership, not eminent domain.

Now, prior to 1921 with the exception of an 1898 Act authorizing payment in the City of New Orleans.

Prior to 1921, no compensation was ever allowed for the exercise of this — of this property — of this property right or servitude.

In 1921, the Louisiana Constitution was revised and a limited gratuity was given to riparian owners for the exercise of this servitude.

They were allowed the assessed value for the preceding year for their — for their lands or improvement actually used or destroyed for levees.

But that revision of the Constitution in 1921 expressly provided that this shall not include batture.

Batture is the land for this purpose that lies between the levee and the river wherever the levee may be located.

The petitioner concedes that the — that the land on which its timber stood is batture but avoids all of that law regarding the servitude by challenging the procedure used to exercise it.

Specifically, that there was no notice — advanced notice or advanced hearing accordingly and by challenging the reasonableness of using it to reduce the cost of the project.

Earl Warren:

Mr. Hill, just a manner of interest.

Does the assessed evaluation of this property reflect the servitude, do you know?

S. Billingsley Hill:

I should think it well could.

I don’t know as a matter of practice.

I’m just not that familiar with Louisiana law.

Now, insistence on notice overlooks the plain and valid distinction between expropriation and appropriation in Louisiana law.

The Louisiana Constitution requires for the exercise of eminent domain, that is expropriation, that compensation be ascertained and paid — be paid in advance.

That would require an advanced notice of course and an advanced hearing, but this is not an expropriation.

There is no requirement in Louisiana law requiring advanced notice or hearing for the use by the State of what it already owns.

For example, in Dickson versus Board of Commissioners by the Louisiana Supreme Court, it was said, “In Louisiana the State has the right to act first.

That is the authority to appropriate such land to a use to which it is subject under its very title and talk later.”

In Pruyn versus Nelson Brothers, the Supreme Court of Louisiana said, “The law does not provide that the administrative officers shall follow any particular procedure in exercising the servitude.

The customary way is to delegate to the contractor the right to remove the soil from the batture.”

Therefore, we maintain that no notice is required.If the riparian owner desires to challenge the reasonableness of the use, he may do so by suing the Levee Board subsequently.

Now, the question has been raised so repeatedly whether there are any Louisiana decisions which say notice is not required.

Hugo L. Black:

What — what is the authority for the last statement you made that he may sue the Levee Board subsequently?

S. Billingsley Hill:

Your Honor, all of these — almost by titles, all of these, the state decisions are an aggrieved riparian owner suing the Levee Board for what is alleged to be an unreasonable use of his land.

Hugo L. Black:

Such as this?

S. Billingsley Hill:

I beg your pardon, sir?

Hugo L. Black:

Such as this (Voice Overlap) —

S. Billingsley Hill:

Such as —

Hugo L. Black:

— claim here?

S. Billingsley Hill:

Such as this.

Although, by the theory of the case which petitioner makes, he sued the United States believing that the servitude had — had not been effectively appropriated by the State and was a direct taking by the United States.

But — but for his theory, in that respect, he had had — would have had a cause of action and does have a cause of action against the Levee Board to — to litigate the reasonableness of the use of the servitude.

Now, the —

Harold Burton:

The Levee Board involved in this litigation so that he would not still have that right?

S. Billingsley Hill:

The United States brought the Levee Board in as a third party defendant.

Harold Burton:

So that after this litigation, he will not be able to sue that the — the Levee Board?

S. Billingsley Hill:

Well, if he prevails here, of course, he’ll get it from the United States and we might get it from the Levee Board.

I’m not sure whether it would —

Harold Burton:

But it —

S. Billingsley Hill:

— bar his action against the Levee Board.

Harold Burton:

But — but if he loses here, then he does there too?

S. Billingsley Hill:

Well, that would be a question of whether the fact that the Levee Board being in this suit indirectly would bar him.

I — I’m —

Harold Burton:

That’s not settled?

S. Billingsley Hill:

I’m not sure of that.

Hugo L. Black:

Is their judgment in connection with the Levee Board here as this case?

S. Billingsley Hill:

The District Court in its decision on rehearing held that the United States alone is liable and it may not recover over against the Levee Board.

Hugo L. Black:

They held that the judgment then for the Levee Board already?

S. Billingsley Hill:

Yes, Your Honor.

That’s correct.

William O. Douglas:

You challenge that if — if you’re — if the United States has held, if we hold the United States liable, you — you think it should be remanded —

S. Billingsley Hill:

Yes, Your Honor.

William O. Douglas:

— for —

S. Billingsley Hill:

We — we believe —

William O. Douglas:

— consideration of that?

S. Billingsley Hill:

Yes, Your Honor.

William O. Douglas:

The Court of Appeals didn’t reach it?

S. Billingsley Hill:

It did not reach the question.

Hugo L. Black:

Suppose the conclusion — the judgment of the Court of Appeals should be affirmed filed with that and the case as to the Levee Board, do you think it would?

S. Billingsley Hill:

The — the case that — that petitioner might bring against the Levee Board?

Hugo L. Black:

Yes, in here.

If the Levee Board is under the party, has the Levee Board — has there been an — an appeal of any kind of a judgment relieving the Levee Board from liability?

S. Billingsley Hill:

Yes, Your Honor.

We appealed, the — the Government appealed.

Hugo L. Black:

(Voice Overlap) United States?

S. Billingsley Hill:

That’s correct.

Hugo L. Black:

And that is with reference to the Levee Board’s liability to you?

S. Billingsley Hill:

That’s correct.

Hugo L. Black:

Has there been any judgment against the owner of this land in favor of the Levee Board in this case?

S. Billingsley Hill:

No, the question was not reached because the Court of Appeals —

Hugo L. Black:

Or what you reach by the District Court insofar as the liability of the Levee Board — the landowner here.

S. Billingsley Hill:

I believe the District — I believe the District Court held that the Levee Board would not be liable to the —

Hugo L. Black:

Was that appealed by the landowner?

S. Billingsley Hill:

No, that was not appealed by the —

Felix Frankfurter:

Now, the Attorney General of Louisiana is protecting that position, not as a matter of law but as a matter of position in his amicus brief.

S. Billingsley Hill:

Well, my understanding of the — the purpose for the amicus brief was to protect the — the principle that’s involved.

Felix Frankfurter:

Yes, I’m — not any judgment, but he’s — he’s maintaining the legal position —

S. Billingsley Hill:

That’s correct.

Felix Frankfurter:

— in Louisiana —

S. Billingsley Hill:

That’s correct.

Felix Frankfurter:

— and not liability of Louisiana as a matter —

S. Billingsley Hill:

That — that’s correct, sir.

Tom C. Clark:

The Box Company did not sue the Levee Board, did they?

S. Billingsley Hill:

No, the Box Company sued the United States and the United States brought the Levee Board in as a third party defendant.

Tom C. Clark:

What the lower court must have held was, the United States has not recovered against lawsuits in the event the recovery was had — been had, is that right?

S. Billingsley Hill:

Well, the United States is — is in opposition to the Box Company.

The Box Company has sued the United States and one or the other must win.

Tom C. Clark:

The United States may not recover against the Levee Board?

S. Billingsley Hill:

The District Court held the United States may not recover against the Levee Board, that’s correct.

Stanley Reed:

The United States will take no appeal here?

S. Billingsley Hill:

The United States took a full appeal from the judgment of the District Court to the Court of Appeals.

The Court of Appeals held that the servitude had been properly exercised and that the United States was not directly or indirectly liable.

Tom C. Clark:

That should be reversed.

We have to go back as you said.

S. Billingsley Hill:

Yes, sir.

Tom C. Clark:

(Inaudible)

So, what I was wondering about was whether or not the question of their recovery against the Levee Board within their (Inaudible) at all so they never sued the Levee Board.

Somewhere, I think Justice Black asked you whether or not that question will still be here when we get to see the fact depending on whether or not the Box Company might sue the Levee Board.

Well, that question run in the case so then — they were made then a party, didn’t they?

S. Billingsley Hill:

The — the Box Company did not, no.

Tom C. Clark:

And your recovery was — your — the making of the Levee Board a party was merely to recover over against for yourself.

S. Billingsley Hill:

That’s correct in the event that we were adjudged liable.

Now, on the question of — well, I had almost concluded discussing notice except for this one statement.

The question has been asked several times.

Are there any state of Louisiana decisions in which it has been held that notice is not required in this particular?

Well, there are two decisions cited in the Government’s brief.

The first one is the Scott versus Red River-Bayou Pierre Levee District, which is not cited squarely for that purpose but it’s in the case.

In that case, the complaining riparian owner said that her land had been taken and I quote, “Without her knowledge, without any — without my knowledge and consent.”

And the ultimate decision in that case was that she had no — no claim to any compensation whatsoever for exercise of this servitude.

And the second case is the Pruyn case, which my opponent has discussed and acknowledged, it relates to the notice question.

That’s the case in which they said the customary practice is for the contractor to delegate the servitude or the right to the contractor to enter directly on the property and remove the soil from the batture.

That was the answer to the — to the notice question in that case.

Now, as to the right to an advanced hearing, I have — I have pointed out, I believe, that there is no right to an advanced hearing as there would be if this were an expropriation under Louisiana law.

S. Billingsley Hill:

The Federal Constitution does not require an advanced hearing even in the case of the exercise that they followed eminent domain.But in this case, for example, petitioner was accorded a hearing, of course, by this very suit and the only basis for his challenge that the use of the servitude was not reasonable is his charge that the property, the trees were not actually used in constructing the levee and that is true.

But they were — and — and he urges that the Government’s defense that the — that the trees were destroyed in this manner and as a means of reducing the cost of the project, he maintains is not a reasonable use or we maintain and we believe we’re supported by decisions of this Court, United States ex rel. TVA versus Welch in — in 327 U.S. and Old Dominion Company versus United States in 269 U.S., that cost is an important element in any government project and that the Government like anyone else does not have to proceed with this project oblivious to cost.

It’s an ingredient in — in the project.

This — this timber was not destroyed for no reason.

It was not destroyed in this way for no reason.It was destroyed in this way to cheapen the cost of the project.

They — practically speaking, this is what occurred, if the bulldozer — if — if the petitioner had been allowed to go in there and cut these trees down and use them, it would have left low-lying stumps.

That is a far more expensive way — that it is far more expensive to remove stumps of that kind by bulldozers and blasting than it is to what they call walk the tree down by a tree-dozer.

It would have nearly doubled the cost of that clearing as this record shows.

And we maintain that is an important element in the project and that the servitude was exercised or that the trees were destroyed by that reason in the proper exercise of the servitude.

Earl Warren:

Would that be the only basis on which they could do it that it was cheaper?

S. Billingsley Hill:

Or if they were going to use the trees?

Of course, it was within the servitude.

If — if they had to be pushed down and out of the area because of the element of time, that would have been within the servitude and we maintain that having — then pushing them down in this manner to save cost is within the servitude.

Earl Warren:

Suppose they just took them down in that manner because the Government wanted to take them down in that manner and they could have done it the other way, would that been a breach of —

S. Billingsley Hill:

I’ll express an opinion on that.

I think it would still be within the servitude.However, it is not impossible to imagine that if time were not a factor and there is no conceivable way — reason for destroying this wealth that it — it could be held otherwise.

However, I find this — the force of the servitude and the scope of the servitude very broad when it relates to matters that are land or — or things attached to land so — so I — I would think could be a very — it could well be argued that it could have been taken even if there have been no expressed (Inaudible)

Earl Warren:

You know of no authority on that subject, Mr. Hill?

S. Billingsley Hill:

There’s only one case that I found that expressly mentioned trees.

There are many that mentioned crops and lands improvement.

The Dickson case, which is cited in the Government’s brief, specifically refers to pecan trees and they were held to be within the servitude and there was no argument as here about — the land under the trees was necessary, of course, as is always the case.

Petitioner challenges the procedure by which the Levee Board donated this property to the United States maintaining as did the District Court that it was not properly donated to United States.

That requires a brief background of statutory provisions and — and resolutions.

I think I can summarize them rather quickly.

The federal Flood Control Act, under which this entire project is being conducted, provides that no money shall be expended until the States or Levee Districts have given assurances satisfactory to the Secretary of the Army that they will provide without cost to the United States or rights-of-way for levee foundations and levees on the main stem of the Mississippi River.

The 19 — that’s the federal Flood Control Act.

The 1921 Constitution of Louisiana authorizes all Levee Districts to cooperate with the Federal Government in the construction and maintenance of levees in the State.

The Louisiana Legislature enacted a law in 1940 where it said that the Levee Boards may donate or convey to the United States any lands, movable or immovable property, rights-of-way or servitude which they may own or acquire for use by the United States in connection with flood control.

Now, by — now, this — this particular Levee Board, the Fifth Louisiana District Levee Board, by resolution and — and following those enactments and in the — in the scheme of those enactments by resolutions in 1928 and 1929, pledged and guaranteed, using those two terms, itself to provide without cost to United States all rights-of-way for levees on the Mississippi River.

In 1945, the same Levee Board passed a resolution authorizing its President and now I’m quoting, “To grant rights-of-way where the need is immediate, the proper right-of-way resolution to be passed in the regular manner at the following board meeting.”

S. Billingsley Hill:

Now, that is the background that I referred to.

They — they operate on these facts.

The Army District Engineer wrote to Levee Board enclosing the plans for this project, which plans included this very land and showed it on the — by a diagram as a borrow pit area and which plans had been approved by the Louisiana State Department of Public Works, addressed this letter to the President of this Levee Board and stated — asked for a formal statement that the rights-of-way are available and granting the United States a right-of-way to — and — of entry to prosecute the work.

Now, that refers back, of course, to the assurances of the Levee Board and so forth.It also said this statement may be in the form of a letter signed by the President of the Board.

And that, of course, relate back — relates back to the resolution of the Board that the President may do so.

Now, the President replied granting the right-of-way, those — and — and this is the crucial point, those letters were then read to the Levee Board at its next regular meeting, both letters, the request and the reply and the minutes of the meeting shall — that the Levee Board considered the request complied with.

Now, we maintain that that is a sufficient supporting basis for exercise of the servitude and donation of it to United States.

In the Pruyn case —

Earl Warren:

How long after that?

Was it before they started to remove this timber?

S. Billingsley Hill:

The President’s donation was June 12th, 1947 and were commenced — the earliest work commenced on July 22nd.

Earl Warren:

July 1st was the date you say of —

S. Billingsley Hill:

July — June 12th —

Earl Warren:

June 12th?

S. Billingsley Hill:

— was the date that the President took that action and a little over a month later, June — July 22nd, the — the first work began on one of the two tracts of land.In — in August on the next.

Now —

(Inaudible)

S. Billingsley Hill:

As — as — the — the date I was using, Your Honor, appears on page 297 of the record which is the letter from the President of the Levee Board to the Army District Engineer and that’s dated June 12th, 1947.

And the resolution affirming this action (Inaudible) by the Board.

S. Billingsley Hill:

Yes.

I thought July 9th?

S. Billingsley Hill:

Yes, that’s correct, Your Honor.

That’s on July 9th.

(Inaudible)

S. Billingsley Hill:

Yes, that’s correct and work was actually commenced — physically commenced on July 22nd.

Earl Warren:

Was there any element of emergency in this matter or was this a normal flood control project that you applied for years to get through Congress and finally get it?

S. Billingsley Hill:

There was an element of — of emergency.

That — that maybe a strong —

Earl Warren:

Yes.

S. Billingsley Hill:

— word but it — there — it could — it had to be done.

S. Billingsley Hill:

The record shows, I’ll cite the pages in a moment.

These two low sections of the — of the levee had to be enlarged during the coming working season because after elimination of the Eudora Floodway upstream, it was necessary to go back down below — downstream and — and raise those levees.

Now, that had to be done, of course, before the next flood season.

So, in that sense, immediate action was required and —

Earl Warren:

Do you recall how — about how long a period that would be?

S. Billingsley Hill:

The —

Earl Warren:

There were visions of — in which they had to do the work?

S. Billingsley Hill:

I — I have — I have not that information.

I — I can only — I’ll only say this that these are, of course, large levees and that —

Earl Warren:

Yes.

S. Billingsley Hill:

— that they — this would have to be enlarged because they had eliminated the floodway upstream during — during the working season.

The length of that season I don’t know.

Certainly, it had to be done before the next threat of — of seasonal flood.

Earl Warren:

That would be approximately when?

S. Billingsley Hill:

It could be the outside limit.

I’m not a Louisianan, Your Honor.

I would — I rather gather to have annual floods, of course, whether they have more than that.

Earl Warren:

How about the — it isn’t very important anyway, but I just thought (Voice Overlap) —

S. Billingsley Hill:

Well, there — there is — the point is it’s very important, of course.

In that sense, there — there was that immediacy of need and we think, for example, that the — the early letting of the contracts probably reflect a need for that haste.

Well, in summary, I just say this one thing that we believe plainly that the timber was destroyed in this case not by a direct action of the United States under the Fifth Amendment but pursuant to a valid legal transaction between it and the Levee Board.

And therefore, the United States should not be held liable for the destruction of this timber.

Earl Warren:

Mr. Barnett.

Ross R. Barnett:

Yes, sir.

Your Honor, may it please the Court.

If Your Honor please, there is no dispute here about the ownership of the timber.

There is no dispute that the United States Government had a right to work on its levee.

There is no dispute that the United States Government had a right to enlarge its levee.

But if Your Honors please, our contention is that the United States Government does not have a right to arbitrarily go on another’s property and destroy that property when it had plenty of time in which to notify the property owner.

And in this instance, the record show that there was no opportunity for this property to be assessed —

Hugo L. Black:

To be what?

Ross R. Barnett:

To be assessed to the Box Company.

This property was purchased, if the Court please, in 1946, one tract of land.

The other tract of land was purchased in 1946, I believe only a few weeks after the first purchase.

Now, I’m not a Louisiana lawyer and there’s a lot of law in Louisiana that I frankly don’t know.

But if Your Honors please, the slightest investigation here would have revealed that the Box Company had purchased all of this timber, valuable timber, timber on 260 acres of land.

The deed had been recorded where the Box Company had purchased all of this timber from a veneer company of Matthews, Mississippi.

And we contend, may it please Your Honors, that there was no emergency whatsoever.

You’ll see from the record that the — the negotiations began in May.

The work actually began July the 22nd, as one of Your Honors pointed out.

Now, the property owner was never notified.

The landowners were not notified, if Your Honors please, until sometime in October.

And that was at a time when practically all of the timber had been destroyed.

Now, when the Box Company, the appellant here, learned that the United States Government, through its contractors, was destroying the valuable timber which it had purchased and which it owned at that time, sent its superintendent, may it please the Court, on September the 12th, the record shows.

And the superintendent urged the contractors to permit the superintendent of the Box Company and its employees to go ahead of the bulldozers and move the timber, to cut the timber and to remove the timber.

But the answer that the Box Company superintendent received was that the contractors for the United States Government had a contract to remove the trees and not to remove stumps.

That it would be more expensive for the contractors and the United States Government to remove stumps than it would to remove the trees.

Now, if Your Honors please, the record doesn’t show here where there was any emergency whatever.

It wasn’t building a levee.

It wasn’t a situation where the levee had broken by high waters.

It was just enlarging the levee.

Now, if Your Honors please, if the Government position is correct in this case, it would allow the United States Government to do indirectly what it cannot possibly do directly under the Fifth Amendment to the Constitution taking process, taking property without compensating the owners for that property.

Earl Warren:

But if the State of Louisiana had the right, Mr. Barnett, to have this done and it conveyed that right to the Federal Government, why wouldn’t the Federal Government have the right to do it without regard to — to taking anybody else’s property?

Ross R. Barnett:

If Your Honor —

Earl Warren:

Assuming that — that the State of Louisiana had the right.

Ross R. Barnett:

The state — yes, sir.

If Your Honor please, the State of Louisiana didn’t have a right to destroy the property.

Earl Warren:

I didn’t say they didn’t, but I — I say assume — assuming that they did then the United States is not the (Inaudible), is it?

Ross R. Barnett:

Yes, sir.

Your Honor, I think it is.

Earl Warren:

Even though the State of Louisiana —

Ross R. Barnett:

I think the State of Louisiana had a — it had a right to — to say to the Government there’s a right-of-way.

But I think — I think the Government’s rights to stop there where the rights of property owners began.

They had the liberty, if Your Honor please, to go and do what the State of Louisiana said they had a right to do, “You got a right to go here and build your levee.”

They had the liberty to do that but, if Your Honor please, their liberty ended right there where the rights of this Box Company began.

Earl Warren:

And suppose —

Ross R. Barnett:

They can’t take the property of the Box Company without due process of law.

Earl Warren:

Suppose the Box Company said it — it will take us two or three years to log off this — this land and the Government said, “Oh, we have to have it done by the next flood season.”

What would be the situation then (Voice Overlap) —

Ross R. Barnett:

Well, if Your Honor please, I think that would have been an unreasonable time.

Earl Warren:

Two or three years?

Ross R. Barnett:

I think it would have been unreasonable.

Earl Warren:

How long —

Ross R. Barnett:

I think the reasonable is —

Earl Warren:

How long would it take in a company normally to — to log off —

Ross R. Barnett:

If Your Honor please, I would say that these — these logs could have all been removed within two to three weeks time.

Earl Warren:

I didn’t know that.

Ross R. Barnett:

I put (Inaudible)

Earl Warren:

Yes.

Ross R. Barnett:

I move them out of the swamps in Mississippi.

Earl Warren:

I haven’t —

[Laughs]

Ross R. Barnett:

And I believe that this timber valued at $10,801.

By Judge Dawkins, could have actually been removed easily within a very short period of time.

If Your Honor please —

Hugo L. Black:

(Voice Overlap) may I ask you a question?

There was reference to your evaluation.

What do you say to the Government — to the State’s brief that the cases they’ve cited to the effect that if there had been no assessment of the property a year before, it could get no value at all under Louisiana law?

Do you agree that that’s the law of Louisiana —

Ross R. Barnett:

No, sir.

Hugo L. Black:

— in connection with —

Ross R. Barnett:

No, sir, I don’t agree that that’s the law of Louisiana because if Your Honors pleases, Justice Black, there was no opportunity here for the property to be assessed.

Hugo L. Black:

But — but they have three cases cited that’s based — imperative duty and that it’s not assessed, no value can be paid.

They can recover no value.

Ross R. Barnett:

Well, if Your Honor please —

Hugo L. Black:

I — I don’t know anything about their law.

Ross R. Barnett:

— I think —

Hugo L. Black:

I was asking for your — of —

Ross R. Barnett:

I think the —

Hugo L. Black:

— your view.

Ross R. Barnett:

I think the Constitution of Louisiana is superior to — if that’s a statute, I’m not familiar with a lot of the Louisiana law —

Hugo L. Black:

They rely —

Ross R. Barnett:

— because —

Hugo L. Black:

— on the Constitution.

Ross R. Barnett:

The Constitution of Louisiana says that no man shall be deprived of his liberty or property without due process of law.

I think the Fifth Amendment to the Constitution, if Your Honor please, is certainly superior to any Louisiana law.

Hugo L. Black:

I agree to that —

Ross R. Barnett:

Yes, sir.

Hugo L. Black:

— that it applies.

Ross R. Barnett:

And we say, if the Court please, that under the Fifth Amendment, regardless of what the law in Louisiana is, certainly they would be entitled to — to fair compensation for this trouble.

In other words, the Government cannot circumvent, if Your Honor please, their fate of the Fifth Amendment to the Constitution of the United States.

Now, as Justice Cameron said, if Your Honors please —

Earl Warren:

Mr. Barnett, suppose you take one minute.

Your time has expired for sometime and it is 04:30.

Take one minute.

Ross R. Barnett:

Yes, sir.

Justice — Your Honor, Justice Cameron said this, the result attending the reversal of this judgment on the — the majority of opinion is a harsh result.

And here’s a question that Justice Cameron of the Fifth Circuit asked, “Can the United States Government without just compensation confiscate and destroy for its own monetary gain the valuable timber of appellee growing on the land of others basing its rights so to do on the claim that the lands are batture when state authorities have taken no official action and made no minute entry towards exercising the servitude against the land or the timber and have taken no steps at all to that end beyond giving written notice to the landowners?”

And that was not given, if Your Honors please, until the timber was practically all destroyed and no notice was ever given to the owner of this timber.

Thank you.