Southern District of New York conformably to the statute (Oct. 3, 1913, c. 18, 38 Stat. 203) and that the effect of such assignment under the statute was virtually to destroy the Southern District of New York by creating a new district whose boundaries were undefined, thus violating the rights secured to the accused by the Sixth Amendment since he was subjected to trial in a district not established when the offense with which he was charged was committed. In fact the further contention is made that to assign a judge of one district and one circuit to perform duty in another district of another circuit was in substance to usurp the power of appointment and confirmation vested by the Constitution in the President and Senate. As to the first of these contentions, we think it suffices to say that it rests upon a construction of the words of the statute authorizing the assignment of a judge of one district and circuit to duty in another district and circuit which is wholly unfounded and which rests upon a premise conflicting with the practice of the Government under the Constitution substantially from the beginning. As to the second contention, we think merely to state it suffices to demonstrate its absolute unsoundness. Affirmed.

MR. JUSTICE MCREYNOLDS took no part in the consideration and decision of this case.

241 U.S.

Statement of the Case.

UNITED STATES v. ARCHER.

APPEAL FROM THE COURT OF CLAIMS.

No. 112. Argued December 7, 1915. Decided May 1, 1916.

As questions of fact confront the court before a decision can be reached on the proposition of law herein involved, and the finding of fact on which the court below based petitioner's right of recovery for lands appropriated as a result of construction and extension of dikes by the Mississippi River Commission acting under authority of Congress are not sufficiently definite; this court, without expressing any opinion and reserving all questions of law, remands the case to the Court of Claims, for more particular findings on the testimony already taken or, in the discretion of the court, on further testimony. Quare whether the liability to the owner of a tract of land part of which was taken for erection of a dike in a navigable river is limited to compensation for the area actually occupied by the dike itself under Bedford v. United States, 192 U. S. 217 and Jackson v. United States, 230 U. S. 1, or includes compensation for the remainder of the tract destroyed by the deflection upon it of waters of the river by reason of the construction and maintenance of the dike under United States v. Grizzard, 219 U. S. 180.

47 Ct. Cl. 248, reversed.

PETITION in the Court of Claims for the recovery of $300,000 for damages alleged to have been caused by the officers and agents of the United States under the authority of an act of Congress creating the Mississippi River Commission by the construction and extending of a dike known as the Leland Dike upon the land of petitioners, called the Point Chicot Plantation.

A demurrer to the petition was overruled and after answer and hearing judgment was rendered for claimants in the sum of $54,920, to review which this appeal is prosecuted.

The findings were necessarily voluminous; we condense them narratively as follows: Claimants' plantation prior to the construction of the levee system to the state of completion which now exists was of great value and in a

high state of cultivation, being reclaimed lands comparatively free from overflows of the Mississippi river except at intervals, the recurrence of such overflows being so separated in point of time as not to materially affect either the value or the productive capacity of the plantation. It was highly improved with houses and cabins thereon and stocked with laborers and tenants and yielded large crops.

It has been overflowed at certain rises of the water in the river (the rise in feet, according to certain data, is given from 1844 to 1910), and during the twenty years following 1891 after the levee system had been made effective there were eight years during which it was not overflowed.

Gauges of the height of the water are taken at Memphis and Greenville. Claimants' plantation is overflowed whenever the water rises to 135 feet, Memphis datum, and it has been more or less overflowed every year except two years (1872 and 1889) during the eighteen years prior to 1891, up to which time the levee system had not been completed sufficiently to withstand great floods and the outlets unclosed; and during the twenty years following 1891 after the levee system had been made effective and the outlets closed by the United States and the local authorities, there were eight years, namely, 1894, 1895, 1896, 1900, 1901, 1902, 1905, and 1910, during which claimants' land was not overflowed.

The plantation is overflowed at a stage of 38 feet on the Greenville gauge, or whenever the surface water rises to 135 feet, Memphis datum, and the gauge readings show that of the fifteen years from 1882 to 1896, inclusive, there were only four years in which this stage was not exceeded, and that for the fourteen years from 1897 to 1910, inclusive, there were five years in which this stage of 38 feet on the Greenville gauge was not exceeded.

From time immemorial the waters of the river during its

highest stages when not contained within the low-water banks have naturally found outlets through certain basins (they are mentioned) and through the rivers draining them into the Gulf of Mexico. And the plantations that were not overflowed so frequently before such outlets were closed by levee construction were consequently little injured by overflows.

Prior to 1883 the State and local authorities constructed a system of levees, miles of which were destroyed in 1882. Beginning in 1883 the officers of the United States under the authority of an act of Congress creating the Mississippi River Commission and other acts amendatory thereof adopted the so-called Eads plan, and in consequence thereof have projected and constructed levees on both sides of the river for various distances from Cairo, Illinois, to near the Head of the Passes, a distance of 1050 miles from Cairo; and the local authorities along the river on both sides from Cairo to the Gulf have before and since also constructed and maintained levees at various places and of various lengths for the purpose of protecting and reclaiming land within their respective districts.

The levee lines so constructed by the United States and local authorities have been practically joined, with the result of confining the river within a narrow scope, increasing its velocity and elevation and the strength of its current. The highest elevation is approximately six feet in times of high water, and the plan of the United States was to increase the scouring power of the water, deepen the channel and improve navigation, and that of the local authorities to reclaim and to protect the land on both sides of the river from overflowing at times of high water.

From time immemorial the high-water bed of the river has been between the highlands on the east side and the highlands on the west side and the claimants' plantation is within this boundary, that is, between the highlands on the Mississippi side and the highlands on the Arkansas

side, and has been occasionally overflowed at times of high water, as stated above, before as well as since the construction of the levees.

From Cairo to the mouth of the Yazoo river the Mississippi river is practically leveed on both sides, except on the east side where the high lands abut on or very near the river in Kentucky and Tennessee, and there is a gap in the line of levees of 234 miles from the mouth of the Yazoo river to Baton Rouge unleveed.

The extension of the levee system has resulted in an increased elevation of the general flood levels which subjects claimants' land to a deeper overflow than they were subjected to formerly and consequently has somewhat reduced its value for agricultural purposes. The immediate cause of the deeper overflow on claimants' land is the increased elevation of the flood heights, which is the result of the general confinement of the flood discharge by the levee system as a whole.

During the flood waters of 1882 the levees failed throughout the length of the river. In 1884 the crevasses were still open in all basins. They were open and closed in subsequent years (which are given); they were all closed in 1904 to 1910. In consequence of the closing of the natural basins, outlets and crevasses, overflowed lands on both sides of the river have been reclaimed and protected from overflow in times of high water and vast benefit has accrued to the States of Illinois, Kentucky, Tennessee, Mississippi, Arkansas and Louisiana, but the land of claimants, situated between the levees and outside thereof and not protected thereby, has been subjected to repeated overflow, tending to diminish and impair its value, but to what extent does not satisfactorily appear from the evidence.

A part of the levee system runs back of claimants' plantation, not touching the same, and between it and the plantation is a stretch of ground lower than the main