B-22355 January 7, 1942

B-22355: Jan 7, 1942

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As follows: "There is enclosed herewith a copy of a letter. "The enclosure sets forth the action taken to date with a view to protection of private property as the result of the water wave which will be caused by the launching of the ALABAMA. The Commandant points out that a communication was recently received from the Lone Star Cement Corporation to the effect that it is concerned over the possible backwash incident to the launching of the ALABAMA and. The Commandant states that this marl filled cement bag bulkhead will be about three feet high. Whatever protective measures are found necessary will undoubtedly contemplate some expenditure of public funds. Your further decision is requested as to what appropriation or fund.

B-22355 January 7, 1942

The Honorable, The Secretary of the Navy.

My Dear Mr. Secretary:

There has been considered your letter of December 4, 1941, as follows:

"There is enclosed herewith a copy of a letter, dated November 7, 1941, from the Commandant, Norfolk Navy Yard, Portsmouth, Va., together with a copy of a letter, dated September 15, 1941, form the Commandant to the addresses therein named, relative to the matter of possible damage to private property which might result from the launching of the U.S.S. ALABAMA (BB60) about February 16, 1942.

"The enclosure sets forth the action taken to date with a view to protection of private property as the result of the water wave which will be caused by the launching of the ALABAMA. However, the Commandant points out that a communication was recently received from the Lone Star Cement Corporation to the effect that it is concerned over the possible backwash incident to the launching of the ALABAMA and, making a temporary bulkhead along the waterfront. The Commandant states that this marl filled cement bag bulkhead will be about three feet high, five feet wide, and two feet long.

"While it appears that the Long Star Cement Corporation has not requested that the Government pay for any protective measures agreed upon, whatever protective measures are found necessary will undoubtedly contemplate some expenditure of public funds. The Navy Department accordingly requests your decision at this time on the question whether the appropriation for constructing the U.S.S. ALABAMA (BB60), namely, 'Increase and Replacement of Naval Vessels', subhead 'Construction and machinery', as provided in the current Naval Appropriation Act, 1942, approved May 6, 1941 (Public Law 48-77th Congress), should be utilized for precautionary work on private property intended to protect the Government against future damage suits. If the answer to this question in the negative, your further decision is requested as to what appropriation or fund, if any, under the control of the Navy Department, may be used for the purpose in question.

"Your early decision in this matter is requested."

The U.S.S. ALABAMA appears to be one of the vessels being constructed under appropriations made to carry out the naval expansion program authorized by law in recent years. The provisions in the appropriation acts by which funds have been made available for constructing and equipping these vessels are broad and general in terminology, it being provided, for example, in the Naval Appropriation Act, 1942, under the heading "Increase and Replacement of Naval Vessels", in pertinent part as follows:

"Construction and machinery: On account of hulls and outfits of vessels and machinery of vessels heretofore authorized (and appropriated for in part); on account of the acquisition, conversion, alteration, and repair of vessels heretofore authorized (and appropriated for in part), including in connection therewith not to exceed $50,000,000 for defense installations on Government or privately owned merchant vessels; for necessary tools, equipment, and facilities in naval establishments or private plants for shipbuilding, and for services of employees assigned to group IV (b) and those performing similar services carried under native and alien schedules in the Schedule of Wages for Civil Employees in the Field Service of the Navy Department, $1,215,000,000, and, in addition, the unexpended balance on June 30, 1941, of the appropriation 'Replacement of naval vessels, construction and machinery' is hereby reappropriated and made available for the purposes of this paragraph, all to remain available until expended:***" (Act of May 6, 1941, Public 48).

It appears to have been contemplated by this provision and similar provisions in previous appropriation acts that all costs normally incident to the construction to completion of vessels such as the U.S.S. ALABAMA, including costs necessary to a careful and proper launching of such vessels, should be paid from the funds thus provided. Consequently, the cost of precautionary measures taken to insure a proper and careful construction and launching of such vessels, and to prevent damage for which the United States legally would be liable if incurred, properly may be regarded as chargeable to the appropriation or appropriations made available for construction of the vessels.

In the situation presented by you there is not involved the question of expenditures incident to the proper construction and launching of the U.S.S. ALABAMA. On the contrary, the question presupposes a proper and safe launching but contemplates, without any negligence on the part of the United States and irrespective of the fact of a proper launching, that some damage may result to private property as an incident thereto. Therefore, the construction appropriation is to be regarded as available for expenditures of the nature contemplated only if the damage to private property which might result from the failure to take such precautionary measures are of such nature that the United States would be legally liable therefor.

The U.S.S. ALABAMA is being constructed by virtue of a statute enacted by the Congress pursuant to and within its constitutional power. The construction and launching of the vessel, therefore, is a governmental function authorized by law. It is understood that all necessary steps have been or will be taken to insure a proper launching but that nevertheless a water wave will result as a necessary incident thereof which, temporarily, may cause damage to riparian property owners. Under such circumstances, in the absence of a "taking" within the meaning of the Fifth Amendment to the Constitution of the United States, for which just compensation must be paid, the damage is to be regarded as dannum absque injuria for which no action would lie and for which the Government would not be liable.

In the case of Transportation Co. v. Chicago. 99 U.S. 635, it was held that the city was not liable for incidental and consequential damage to the plaintiff resulting from the performance of authorized construction work, the rule in this regard being stated as follows:

"A legislature may and often does authorize and even directs acts to be done which are harmful to individuals, and which without the authority would be nuisances; but in such a case, if the statute be such as the legislature has power to pass, the acts are lawful, and are not nuisances, unless the power has been exceeded. In such grants of power a right to compensation for consequential injuries caused by the authorized erections may be given to those who suffer, but then the right is a creature of the statute. It has no existence without it.***

"It is undeniable that in making the improvement of which the plaintiffs complain the city was the agent of the State, and performing a public duty imposed upon it by the legislature; and that persons appointed or authorized by law to make or improve a highway are not answerable for consequential damages, if they act within their jurisdiction and with care and skill, is a doctrine almost universally accepted alike in England and in this country.***"

In Peabody v. United States. 43 Ct. Cls. 5, at page 9, the court stated the rule as follows:

"It may be stated as a general rule that if the legislature, acting within its constitutional limitations, directs or authorizes the doing of a particular thing, the doing of it in the authorized way and without negligence can not be wrongful; if damage results as a consequence of its being done, it is dannum absque injuria and no action will lie for it."

To the same effect see Smith v. Washington, 61 U.S. 135; Mills, et al v. United States, 46 Fed. 738; High Bridge Lumber Co. v. United States, 69 Fed. 320; and Railroad Co. v. Bingham, 11 S.W. 705.

In Overton. et al. v. United States, 45 Ct. Cls. 17, it was held that a private injury to a riparian proprietor resulting from the proper exercise of a legal right by the Government-- the improvement of navigation-- was dannum absque injuria and, with reference to the appropriations made available for the improvements, the court stated (page 36):

"True, the appropriations made therefore are not to be diverted to the protection of private interests or the reclamation or overflowed lands***."

In Tompkins. Executrix v. United States, 45 Ct. Cls. 66, there was involved a situation whereby the overflow of private lands was increased as a result of the construction of a dam by the Government and the court held that where land is merely damaged by the impairment of its use or value as and incidental consequence of the lawful exercise of power by the Government, the Government is not liable therefor. In referring to expenditures made by the claimant's testator to prevent washing of his lands the court stated (page 86):

"Of course there can be no recovery for the money expended by the claimant's testator***as whatever money he expended was for the protection of his own property, and it is by no means clear that as riparian owner he was not obligated to expend the money he did, if not more, to prevent the overflow upon his land. Certainly there was no taking by the Government, although by its lawful act he may have been compelled to expend the money he did, not for the benefit of the Government, but for his own protection."

It does not appear from the facts recited in your letter that the damage to the riparian owners which might result from any water wave caused by the launching of the U.S.S. ALABAMA will be such as to constitute a "taking" within the meaning of the Constitution. To constitute such a "taking" more is required than the temporary flooding or washing of private property. The rule in this respect is stated in Matthews, Trustee, v. United States, 87 Ct. Cls. 662, at page 720, as follows:

"***Any action on the part of the Government which does not in and of itself encroach upon private property or valuable property rights by depriving the owner of the possession or use of a definitely existing right therein by the placing thereon of a burden or servitude, but which imposes only a temporary, occasional, or incidental injury or impairs the use of such property or property rights is regarded as consequential damages and does not constitute a taking. The act of the Government or the clear intention to take such action must amount to a complete appropriation of a clearly existing property right. Contemplated or prospective encroachments, the direct effect and consequences of which are problematical and conjectural, do not give rise to an enforceable obligation to compensate.***"

And in Manigault v. Springs, 199 U.S. 473, it is stated by the court:

"We think the rule to be gathered from these cases is that where there is a practical destruction, or material impairment of the value of plaintiff's lands, there is a taking, which demands merely put to some extra expense in warding off the consequences of the overflow."

See, also, Southern Pacific Co. v. United States, 58 Ct. Cls. 428; Vansant, et al. v. United States, 75 Ct. Cls. 562; Coleman v. United States, 181 Fed. 599; and Chattanooga & Tennessee River Power Co. v. Lawson, 201 S.W. 165.

From the facts recited in your letter it would appear that any damage which may occur to the property of the riparian owners as a result of the water wave to be produced by the launching of the vessel would come squarely within the rulings laid down in the above-cited cases and that whatever property injury may occur will be dannum absque injuria and will not amount to a taking for which the United States would be liable. On the basis of those decisions it must be held, since no statute gives the riparian owners a right under the circumstances, that funds appropriated for the Navy Department are not available for the cost of precautionary work on private property as contemplated.

Respectfully,

Lindsey C. Warren Comptroller General of the United States