BLACK, J., dissenting. 339 U.S. to executive and military agencies completely free from judicial scrutiny. Our Constitution has emphatically expressed a contrary policy. As the Court points out, Paul was fortunate enough to be a Roman citizen when he was made the victim of prejudicial charges; that privileged status afforded him an appeal to Rome, with a right to meet his "accusers face to face." Acts 25:16. Acts 25:16. But other martyrized disciples were not so fortunate. Our Constitution has led people everywhere to hope and believe that wherever our laws control, all people, whether our citizens or not, would have an equal chance before the bar of criminal justice. Conquest by the United States, unlike conquest by many other nations, does not mean tyranny. For our people "choose to maintain their greatness by justice rather than violence." Our constitutional principles are such that their mandate of equal justice under law should be applied as well when we occupy lands across the sea as when our flag flew only over thirteen colonies. Our nation proclaims a belief in the dignity of human beings as such, no matter what their nationality or where they happen to live. Habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by courts cannot in my judgment be constitutionally abridged by Executive or by Congress. I would hold that our courts can exercise it whenever any United States official illegally imprisons any person in any land we govern. Courts should not for any reason abdicate this, the loftiest power with which the Constitution has endowed them. This goal for government is not new. According to Tacitus, it was achieved by another people almost 2,000 years ago. See 2 Works of Tacitus 326 (Oxford trans., New York, 1869). * See the concurring opinion of MR. JUSTICE DOUGLAS in Hirota v. MacArthur, 338 U. S. 197, 199. Syllabus. UNITED STATES v. KANSAS CITY LIFE CERTIORARI TO THE COURT OF CLAIMS. No. 1. Argued October 20, 1948.-Reargued March 29, 1950.Decided June 5, 1950. Respondent owned farm land in Missouri on a nonnavigable tributary of a navigable river, the land not being in any sense within the bed of the river. In the interest of navigation, the United States constructed on the river a dam which maintained the river continuously at ordinary high-water level. As a result, the agricultural value of part of respondent's land was destroyed by underflowing. Held: 1. The United States was liable for the destruction of the agricultural value of the land above the ordinary high-water mark of the river, even though maintenance of the river continuously at that mark was in the interest of navigation. Pp. 804-808. (a) The ordinary high-water mark is the limit of the bed of the stream; and the navigation servitude does not extend to respondent's land beyond the bed of the navigable river. Pp. 805-808. 2. The destruction of the agricultural value of the land was a taking of private property for public use within the meaning of the Fifth Amendment of the Federal Constitution, even though there was no actual overflowing of the land. Pp. 809–811. 3. The findings of the Court of Claims in this case sufficiently describe the interest taken by the United States and for which an award of compensation was made to respondent. Pp. 811-812. 109 Ct. Cl. 555, 74 F. Supp. 653, affirmed. The Court of Claims made an award of compensation to respondent on a claim against the United States for a taking of property of the respondent for public use. 109 Ct. Cl. 555, 74 F. Supp. 653. This Court granted certiorari. 334 U. S. 810. Affirmed, p. 812. Frederick Bernays Wiener argued the cause on the original argument and Marvin J. Sonosky on the reargu Opinion of the Court. 339 U.S. ment for the United States. With Mr. Wiener on the brief on the original argument and with Mr. Sonosky on the brief on the reargument were Solicitor General Perlman and Assistant Attorney General Vanech. Roger P. Marquis was also on the brief on the original argument, and Ralph S. Boyd was also on the brief on the reargument. Stanley Bassett argued the cause for respondent. With him on the brief was Ray B. Lucas. MR. JUSTICE BURTON delivered the opinion of the Court. The respondent, Kansas City Life Insurance Company, obtained judgment in the Court of Claims against the United States for $22,519.60, with interest from August 8, 1938. 109 Ct. Cl. 555, 74 F. Supp. 653. This sum was awarded as just compensation for the destruction of the agricultural value of respondent's farm land by the United States in artificially maintaining the Mississippi River in that vicinity continuously at ordinary high-water level. The land was not in any sense within the bed of the river. It was one and one-half miles from the river on a nonnavigable tributary creek. Its surface was a few feet above the ordinary high-water level of both the river and the creek. The United States, however, contended that because it maintained the river at this level in the interest of navigation it need not pay for the resulting destruction of the value of the respondent's land. We granted certiorari because of the importance of the constitutional questions raised. 334 U. S. 810. The case was argued at the 1948 Term and reargued at this Term. Two principal issues are presented. The first is whether the United States, in the exercise of its power to regulate commerce, may raise a navigable stream to its ordinary high-water mark and maintain it continuously at that level in the interest of navigation, without liability for 799 Opinion of the Court. the effects of that change upon private property beyond the bed of the stream. If the United States may not do so, without such liability, we reach the other issue: Whether the resulting destruction of the agricultural value of the land affected, without actually overflowing it, is a taking of private property within the meaning of the Fifth Amendment to the Constitution of the United States. We decide both issues in favor of the respondent, the first in the negative, the second in the affirmative. The material facts found by the court below include the following: Respondent is the owner of 1,710 acres of farm land in Missouri, having an elevation of 422.7 to 428 feet above sea level. The land borders on Dardenne Creek, a nonnavigable tributary entering the navigable Mississippi River one and one-half miles below the farm. The agricultural value of the land has been largely destroyed by the construction and operation by the United States of Lock and Dam No. 26 on the Mississippi at Alton, Illinois, 25 miles below Dardenne Creek. The United States has operated this dam since August 8, 1938, as part of a system of river improvements to provide a navigable channel in the Mississippi between Minneapolis and the mouth of the Missouri. The effect of the dam has been to raise the level of the Mississippi at the mouth of Dardenne Creek to a permanent stage of 420.4 feet above sea level. This was its previously ascertained ordinary high-water mark. Before the effect of the dam was felt, the respondent's land drained adequately through its subsoil and a simple system of ditches and pipes emptying into the creek. It 146 Stat. 918, 927; 49 Stat. 1028, 1034. As to the same system of improvement, see United States v. Chicago, M., St. P. & P. R. Co., 312 U. S. 592. 2 Before August 8, 1938, during about 75% of each year, the river did not exceed a stage of 419.6 feet at Dardenne Creek. From 1930 874433 0-50-55 Opinion of the Court. 339 U.S. was highly productive. When, however, the dam raised the river and the creek to 420.4 feet and maintained the water continuously at that level, this destroyed the agricultural value of the respondent's land at surface elevations between 423.5 and 425 feet. The damage was caused by the underflowing of the land. This undersurface invasion was substantially as destructive as if the to 1937, between June 21 and September 21, it averaged 413.9 feet. For several months at the beginning and end of a year, its stage was 410 feet or less. The bed of the creek at respondent's farm was 410 to 413 feet above sea level. The water in the creek created a stage of 412 to 416 feet. 3 Although, as stated in the text, the Mississippi River, at 420.4 feet, destroyed the agricultural value of certain parts of the respondent's land, it did not perceptibly change the value of the respondent's wet land below 423.5 feet or of its dry land above 425 feet. No compensation was allowed for the 602.04 acres so located. 4 The court below made extended findings as to the expectation of the Army Engineers that damages, comparable to those which did occur, would result to respondent's land. The Engineers recommended that the United States purchase the land. House Committee on Rivers and Harbors, Doc. No. 34, 73d Cong., 2d Sess. (1934), and House Committee on Rivers and Harbors, Doc. No. 34, 75th Cong., 1st Sess. 14, 55-56 (1937). The project was authorized by Congress and power to condemn the land was given to the Secretary of War August 26, 1937, 50 Stat. 844, 848. However, the court below concluded correctly that "The Government did not, in fact, purchase or acquire by eminent domain a portion of the plaintiff's land, as the Army Engineers had recommended, or ditch and tile another portion, as they had recommended. It just went ahead and built its lock and dam. The plaintiff still owns its land. We think that the legislation quoted above, while it might have constituted an authorization to acquire some of the plaintiff's land by eminent domain, and to spend money in tiling and ditching another part of it, does not constitute a Congressional waiver of immunity from suit or confession of liability for the consequences of building the dam." 109 Ct. Cl. at p. 574, 74 F. Supp. at p. 654. See Mitchell v. United States, 267 U. S. 341, 345; United States v. Alexander, 148 U. S. 186, 188-190. |