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In your letter you refer to the fact that "since the passage of the act controversies over land matters in the basin have arisen-suits brought-which indicate that claims may be filed for land to an extent that may commit the United States to expenditures vastly beyond the amount authorized by Congress."

I wish to say that the case of Hurley, Secretary of War, v. Kincaid (285 U.S. 95) was decided by the Supreme Court in February of last year. In that suit Kincaid, the owner of land lying within the proposed channel of the Boeuf flood way, brought suit to enjoin the carrying out of the work in the flood way and to enjoin the receiving of bids for the construction of guide levees therefor, claiming that if the work should be commenced without proceedings first having been instituted to condemn his land or the flowage rights thereof the United States would in effect be taking his property without due process of law and without just compensation. Kincaid owns a 160-acre farm in the Boeuf Basin at a point 125 miles below the point of diversion. No part of the guide levees were to be built in his land, but his land lies in the proposed channel of the floodway. The district court enjoined the Government from proceeding with the construction authorized by the act until the property of Kincaid had been acquired by the Government, or the flowage rights over the same acquired either by purchase or condemnation. The circuit court of appeals affirmed the judgment of the district court. The case was heard in the Supreme Court, and wę quote the following from the opinion of the Supreme Court:

"We have no occasion to determine any of the controverted issues of fact or any of the propositions of substantive law which have been argued. We may assume that, as charged, the mere adoption by Congress of a plan of flood .control, which involves an intentional, additional, occasional flooding of complainant's land constitutes a taking of it-as soon as the Government begins to carry out the project authorized.

"If that which has been done, or is contemplated, does constitute such a taking, the complainant can recover just compensation under the Tucker Act in an action at law as upon an implied contract."

The court further said:

"The compensation which he may obtain in such a proceeding will be the same as that which he might have been awarded had the defendants instituted the condemnation proceedings which it is contended the statute requires. Nor is it material to inquire now whether the statute does so require. For even if the defendants are acting illegally, under the act, in threatening to proceed without first acquiring flowage rights over the complainant's lands, the illegality, on complainant's own contention, is confined to the failure to compensate him for the taking, and affords no basis for an injunction if such compensation may be procured in an action at law. The fifth amendment does not entitle him to be paid in advance of the taking."

The Supreme Court dissolved the injunction and dismissed the suit on the ground that Kincaid had a plain, adequate, and complete remedy at law.

It will be seen that the Supreme Court did not pass upon the question of the liability of the Government. Since the Kincaid suit was decided an action has been brought and is now pending in the Court of Claims based upon the contention made by Kincaid. If it should be held by the courts that the property owner is entitled to damage as claimed in the Kincaid case, the commencement of proceedings to install the protective levees presents a question of serious import, inasmuch as apparently Congress did not contemplate a liability for the acquiring of flowage rights lying between the proposed protective levees and the river, and apparently no appropriation has been made sufficient to pay such damages.

In view of the amount involved by way of possible liability on the part of the United States, a question of policy arises, which I have no doubt you will take under serious consideration. Respectfully submitted.

HOMER S. CUMMINGS,
Attorney General.

Senator OVERTON. I offer in evidence the letter written to John H. Overton, United States Senator, by the Secretary of War, of date June 14, 1933, stating that the president of the Mississippi River

Commission has been instructed to pay for the rights-of-way on these tributaries.

Hon. JOHN H. OVERTON,

WAR DEPARTMENT, Washington, June 14, 1933.

United States Senate, Washington, D.C. DEAR SENATOR OVERTON: The Department has given careful consideration to letter of May 15, signed jointly by yourself and by Hon. Riley J. Wilson, requesting that the United States Government pay for the rights-of-way necessary for the construction of levees on the south bank of the Red River, and the construction of main levees and protection levees on the Atchafalaya River in the State of Louisiana.

This Department has been advised by the Attorney General that the United States is obligated under the law to pay for such rights-of-way, and the president of the Mississippi River Commission has been instructed accordingly.

The Department will expect the cooperation of the levee boards in securing these rights-of-way at reasonable prices.

Sincerely yours,

GEO. H. DERN, Secretary of War. Senator OVERTON. I offer in evidence the certified copy of the resolution of the Red River, Atchafalaya, and Bayou Boeuf Levee Board in respect to furnishing a portion of these rights-of-way to the United States Government, which, according to the testimony, is similar to a series of resolutions adopted with reference to adoption of rights-of-way on other portions of the project on the south side of the Red River:

RESOLUTION PASSED BY BOARD OF COMMISSIONERS FOR RED RIVER, ATCHAFALAYA, AND BAYOU BOEUF LEVEE BOARD RE REIMBURSEMENT FOR RIGHTS-OF-WAY

FLOOD CONTROL

ALEXANDRIA, LA., June 22, 1931.

The following resolution was introduced, seconded and carried, to wit: Whereas the United States Government is engaged in building levees on the Atchafalaya River; and

Whereas the United States Government has been acquiring the rights-of-way for all levees on the Atchafalaya River; and

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Whereas the United States Government has advised this Levee Board that they are ready to proceed with the building of the Woodside", "St. Joseph's Church", 66 and Bayou Current" Levees, provided this levee board furnish the rights-of-way; and Whereas the United States Government has advised this levee board that unless said rights-of-way are furnished by this levee board the funds allotted for the work will be transferred to some other district: Therefore be it

Resolved, By the Board of Commissioners for the Red River, Atchafalaya and Bayou Boeuf Levee District that, considering the benefits to be derived from the building of the above-named levee, that this levee board agrees and obligates itself to furnish the United States Government without cost the right-of-way for the "Woodside ", "St. Joseph's Church", and " Bayou Current" Levees: Be it further

Resolved, That in furnishing said rights-of-way that this board does not recognize any obligation on its part to furnish the United States Government with rights-of-way for levee building, and the action of this board is to be taken as an isolated case and not establishing a precedent by which this board will be required to furnish future rights-of-way without cost to the United States Government.

I, Sol B. Pressburg, secretary of the Board of Commissioners for the Red River, Atchafalaya, and Bayou Boeuf Levee District, do hereby certify that the above and foregoing is a true and correct copy of the original resolution adopted at a meeting of said board held on June 22, 1931, at which meeting the full membership of the said board was present.

In testimony whereof, witness my official signature and seal of said board at Alexandria, La., this 22d day of July, A.D. 1933.

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SOL B. PRESSBURG, Secretary.

Senator OVERTON. I offer in evidence the opinion of the Attorney General of the United States as to the obligation of the Federal Government to pay for the rights-of-way, in view of the resolution adopted by the local levee board, which letter is dated September 5, 1933, and is addressed by the Attorney General to the Secretary of War.

Hon. GEORGE H. DERN,

OFFICE OF THE ATTORNEY GENERAL,
Washington, D.C., September 5, 1933.

Secretary of War, Washington, D.C.

DEAR MR. SECRETARY: I have your letter of July 20, 1933, requesting my opinion as to whether the resolutions passed by the board of commissioners of the Red River, Atchafalaya, and Bayou Boeuf Levee district in the State of Louisiana constitute a donation to the United States of rights-of-way to be used by the United States in the construction of levees under the Mississippi River Flood Control Act of May 15, 1928 (45 Stat. 534), or whether the War Department is authorized to proceed to purchase from the levee board these rightsof-way upon agreement as to reasonable price and make payment at such time as deeds for the rights-of-way, approved by you, have been furnished to the United States.

The controlling facts upon which an expression of my opinion must rest are these:

The governmental project involved is the construction of levees by the United States under the terms of the Mississippi River Flood Control Act. The beginning of negotiations between the district engineer, representing the War Department, and the board of commissioners of the district referred to was notice to the board of commissioners that the particular levees here involved were not to be constructed at least at that time in view of the fact that there were insufficient funds to proceed with the construction and such funds were necessary to be used at other points. The board of commissioners therefore, for their own benefit, proposed to the War Department that if the War Department would construct the works necessary the board of commissioners would furnish the rights-of-way, free of cost to the United States. A typical resolution is that of March 19, 1933, referring to certain levees, wherein the board regularly and with authority included in the resolution these statements:

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Whereas the United States Government has advised this levee board that they are ready to proceed with the building of the Egg Bend, Cologne Bend, and Poland levees, provided this levee board would furnish the rights-of-way, and,

Whereas the United States Government has advised this levee board that unless said rights-of-way are furnished by this levee board the funds allotted for the work will be transferred to some other district; therefore, be it

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Resolved, By the Board of Commissioners for the Red River, Atchafalaya. and Bayou Boeuf Levee District, that considering the benefits to be derived from the building of the above-named levees, that this levee board agrees and obligates itself to furnish the United States Government without cost the rightsof-way for the Egg Bend, Cologne Bend, and Poland levees. (Italics ours.)

* *

The offer made by the board in this case is substantially the same as in the other cases and is the basis for this determination.

The State board of engineers approved the location of the levees. The board of commissioners immediately proceeded to purchase the rights-of-way advising the War Department of such purchases and permitting the United States to proceed with the construction of 13 levees. Nine of the 13 levees upon the rights-of-way furnished by the board of commissioners under said resolution were completed at a cost of $373,512.12. Four were incomplete, and there has been expended thereon the sum of $80,765.75.

No claim was presented or request made for reimbursement until the board of commissioners passed the resolution of February 16, 1933, by which the President of the Board of Commissioners was directed to make application to the Chief of Engineers of the United States Army for payment of the amount expended by this board in acquiring the rights-of-way for the following levee projects located on Red River and the Atchafalaya River."

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The constitution of the State of Louisiana (sec. 5, art. 16) permits such levee districts to cooperate with the Federal Government in the construction and maintenance of levees.

I cannot limit the consideration of this question to the classification of the transaction, as expressed by you, as a "donation". In a sense it was a donation in that the rights-of-way were furnished without cost to the United States, but in a broader and more comprehensive sense it was a simple contract whereby one party agreed to furnish the rights-of-way, in return for which the other party agreed to construct certain works. That there was a valid consideration to the district is evident, and it has received the fruits of the contract. The contract upon the part of the United States has been completed so far as the major part thereof is concerned.

In your letter of July 20 you stated:

In your letter of June 8, 1933, in response to an inquiry from this Department, you ruled that under the provisions of the act of May 15, 1928 (45 Stat. 532 (534)), the United States is obligated under the law to pay for levee rights-of-way in the Atchafayala Basin, and the Boeuf Basin, and on the south banks of the Arkansas and Red Rivers in the flood-control work on the Mississippi River."

May I direct your attention to the statement in my letter of June 8 in which I specifically limit my opinion in that respect as follows:

It also seems clear from the provisions of section 4 of the act that the rights-of-way referred to in your letter are in the absence of donations to, or purchase by, the United States to be secured by the United States through appropriate condemnation proceedings at the expense of the United States." I do not understand that the United States through its agents is required to construct levees or secure rights-of-way therefor at any particular place. Necessarily discretion is vested in the administrative agents, and where the United States determined to build at a place selected by its agents my holding was that in the absence of donations the rights-of-way must be secured by purchase or condemnation, but I do not believe that opinion can be construed as in any manner affecting a case of this kind which is simply upon a contractual basis, whether it be termed a donation or a contract.

Under the foregoing facts, by reason of the contractual nature of the transaction, as well as under the doctrine of equitable estoppel, I am of the opinion that your Department is not required to purchase from the levee board these rights-of-way upon agreement as to reasonable price" or approve the claim as filed by the Board of Commissioners of the Red River, Atchafalaya, and Bayou Boeuf Levee District.

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Respectfully,

HOMER S. CUMMINGS, Attorney Generul.

Senator OVERTON. I offer in evidence the opinion of the Comptroller General, Hon. J. R. McCarl, contained in a letter addressed by him to the Secretary of War, of date December 8, 1933, in respect to the effect of the resolutions adopted by the local levee board, of a legal right to claim for reimbursement:

COMPTROLLER GENERAL OF THE UNITED STATES,

The honorable the SECRETARY OF WAR.

Washington, December 8, 1933.

SIR There has been received your letter of November 9, 1933, as follows: "I am submitting for your opinion the question of the propriety of payment for rights-of-way, Red River, Atchafalaya, and Bayou Boeuf Levee District. There are also enclosed copies of opinions rendered on the subject by the United States Attorney General and the Judge Advocate General of this Department, together with letters of Senator John H. Overton of October 27 and 31 and other pertinent papers as listed in enclosures.

The facts are as follows: Section 4 of the Flood Control Act of May 15, 1928, provides that the Secretary of War may acquire lands, easements, or rights-of-way needed for the project, by condemnation, purchase, or donation. When the Department first undertook the construction of levees on the south bank of the Red River and in the Boeuf and Atchafalaya flood ways it attempted to acquire rights-of-way for such levees by purchase or condemnation. It was met with demands for exorbitant prices coupled with injunction suits designed to force payment for flowage rights over lands within the flood ways. When the difficulties over land matters became apparent, the Chief of Engineers decided that efforts by the United States to purchase or condemn such levee rights-of-way should be stopped, and that available funds would be applied first to the construction of such levees at places where rights-of-way

were provided by local interests under the more expeditious procedure provided by the State laws.

"Recently local interests have urged the Department to reimburse the local levee districts the amounts they have paid or obligated themselves to pay in acquiring rights-of-way for these levees. In May 1933 the Secretary of War asked the Attorney General for an opinion whether the United States is obligated under the law to pay for levee rights-of-way in the Atchafalaya Basin, in the Boeuf Basin, and on the south bank of the Arkansas and Red Rivers. In an opinion dated June 8, 1933, the Attorney General made the following comment:

"It also seems clear from the provisions of section 4 of the act that the rights-of-way referred to in your letter are in the absence of donations to, or purchase by the United States, to be secured by the United States through appropriate condemnation proceedings at the expense of the United States.' Following this comment he stated his answer to the question asked was

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'yes.'

"The Department then approved the purchase of right-of-way which the Red River, Atchafalaya, and Bayou Boeuf Levee District had provided for the Palmetto-Courtableau Levee, at a price of $27,842.79. Another claim of this same levee district for $652,736.79, for other levee rights-of-way furnished by it under resolutions reciting they were furnished without cost' to the United States, was submitted to the Attorney General for opinion whether the resolutions furnishing these rights-of-way constituted a donation' within the meaning of his opinion of June 8, 1933. His opinion of September 5, 1933, holds that these rights-of-way were really furnished under a contract, the consideration on the part of the United States being the construction of levees on said rights-ofway; and that the War Department is not 'required' to purchase these rightsof-way or approve the claim submitted by the levee district. In none of these cases has there been an actual conveyance of the rights-of-way to the United States, the levee districts merely advising that they were available to the Government.

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Since the opinion of the Attorney General said that the United States was 'obligated' to furnish rights-of-way, but not ‘required to pay for those already furnished without cost by local interests, the Chief of Engineers recommended to the Secretary of War that authority be granted to purchase these latter rights-of-way from the levee district that had furnished them. The matter was then referred to the Judge Advocate General, who, after reviewing the matter a second time, expresses the opinion that this claim may not properly be paid or authorized for payment by the Secretary of War.

Your opinion, therefore, is respectfully requested as to whether payment may now legally be made by the disbursing officer.

"It is requested that the large file of papers marked Claim of Red River, Atchafalaya, and Bayou Boeuf Levee District', be returned, as they are a part of the records of this office."

On behalf of the district there have been submitted various papers in support of the claim under consideration, the contentions on behalf of said district being (1) that under the Federal laws pursuant to which the flood-control work was performed, the Federal Government should pay for the rights-of-way, and that such Federal laws do not require the local district to pay for such rights-ofway; (2) that there was no authority in the Red River, Atchafalaya, and Bayou Boeuf Levee District to furnish the rights-of-way here under consideration to the Federal Government without cost; (3) that the resolutions passed by the district to the effect that the rights-of-way would be furnished without cost were so passed under duress and threat that if said rights-of-way were not furnished without cost the funds originally allocated to the particular projects involved would be diverted to some other projects.

As to the first contention, it may be conceded that there is nothing in the act of May 15, 1928 (45 Stat. 532), requiring that the local district pay for levee rights-of-way in the Atchafalaya Basin. in the Boeuf Basin, and on the south bank of the Arkansas and Red Rivers in connection with the flood-control work of the Mississippi River by the United States. However, since the act provides for the acceptance of donations the United States is obligated to pay for such rights-of-way only when the acquisition of the same is by the methods as provided for in the law requiring the incurring of an obligation for the payment of the same, and not in such cases where the rights-of-way are offered or accepted by the United States without cost.

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