and the balance of said 3,696 acres, to wit, 3,664.6, has been destroyed and rendered totally unfit for cultivation or any other profitable use by the owners thereof. The court finds as an ultimate fact, in so far as it is a question of fact, that the said 3,696 acres of land was somewhat impaired in value by the construction of said levee system, but that its use was totally destroyed by the erection of the Leland Dike and was thereby taken, its value at the time of such destruction and taking being $83,920."

Upon these findings, a judgment was rendered in favor of the claimants for $54,920, the difference between this and the total value of the land apparently being represented by an outstanding mortgage.

The record shows that the case was tried and considered with unusual care and deliberation in the Court of Claims. The petition was filed July 19, 1909; final judgment was entered February 17, 1914, nunc pro tunc as of February 12, 1912. The merits of the case were argued at least three times, and the United States filed several motions for new trial, for amendment of the findings, etc. It was therefore only after years of contentious litigation that the Court of Claims arrived at the findings and conclusions upon which it based its judgment.

In this court the case has been fully argued upon the facts disclosed by the findings; the argument for the Government being conducted by the learned Solicitor General in person. It was not suggested in argument that the findings were incomplete or wanting in certainty.

That the essential facts clearly appear from the findings is evident from the following excerpt from the Government's brief:

"From the findings of the Court of Claims the following facts appear: The plantation, described as 'Point Chicot Plantation,' is situated in Chicot County, in the

southeastern corner of Arkansas. It is in a bend, bounded on the north, east, and west by the river. Behind the Point Chicot Plantation to the south was a levee, a part of the general system constructed by the United States and local authorities after 1883, pursuant to the Eads plan for the improvement of navigation. Between the levee and Point Chicot Plantation was a low strip of ground often covered by the river. The natural current of the river in high water seasons running over the low strip of ground behind the Point Chicot Plantation threatened the destruction of the levee, and a severance of the Point from the mainland, leaving Point Chicot an island. To forestall the danger to the levee from erosion, and to the connecting neck of land, and thus to prevent the river from leaving its channel, agents of the United States Government constructed the Leland Dike in 1904, running 662 feet into the Point Chicot Plantation. In 1907 the dike was extended 2,700 feet further on claimants' land. In all, 31.4 acres were occupied in the construction of the Leland Dike. In periods of high water the floods deflected by the dike came over the plantation, rendering 3,696 acres of the plantation unfit for cultivation."

Even were it suggested, as it is not, that the Court of Claims had committed some trial error or had drawn improper inferences from the evidence there submitted, this court would have no authority to review the judgment and reverse it upon that ground. The rules established by this court, pursuant to §708, Rev. Stat. (now § 243, Jud. Code), for regulating appeals from the Court of Claims require that the record shall contain "A finding by the Court of Claims of the facts in the case, established by the evidence, in the nature of a special verdict, but not the evidence establishing them; and a separate statement of the conclusions of law upon said facts on which the court founds its judgment or

decree." The findings are conclusive upon this court unless error of law appear in the record. United States v. Smith, 94 U. S. 214; Stone v. United States, 164 U. S. 380; District of Columbia v. Barnes, 197 U. S. 146, 150.

The entire argument for the Government may be reduced to the single contention that its liability for damages is limited to the 31.4 acres of claimants' lands that are actually occupied by the Leland Dike, and that the Court of Claims erred in awarding compensation also for the 3,664.6 acres destroyed by the deflection upon it of the flood waters of the river through the construction and maintenance of the dike. The simple question is whether the case should be governed by United States v. Grizzard, 219 U. S. 180, upon which the Court of Claims rested its decision, or by Bedford v. United States, 192 U. S. 217; and Jackson v. United States, 230 U. S. 1.

It was attempted to be shown in argument that the causes of the damage to claimants' lands were diverse, it being attributable in part to the levee work of the local and state authorities, and only in part to the construction of the Leland Dike by the agents of the United States Government. It seems to me that the findings render this matter perfectly clear, for they show that while the general work of levee construction in which local, state, and Federal agencies coöperated, resulted in an increased elevation of the flood levels and subjected claimants' land to deeper overflows than before, and consequently somewhat reduced its value for agricultural purposes, no compensation was awarded-indeed, none was or is asked for this general and consequential result of levee construction. Nor was the judgment in favor of claimants based at all upon the value that claimants' lands would have had but for this levee construction. On the contrary, the finding is explicit that while the tract of 3,696 acres of land was somewhat impaired in value by the construction of the levee system, its use was totally

destroyed by the subsequent erection of the Leland Dike, and that its value at the time of such destruction was $83,920. In view of this, I confess myself unable to comprehend the basis of the criticism that the findings lack precision and that the effects of the work done, respectively, by the States and by the United States ought to be more clearly distinguished. It is not suggested in what respect the findings lack precision, and the Government advances no such contention. The findings certainly render it most clear that no compensation is claimed or allowed for anything done by the state or local authorities; that neither of these has invaded the soil of claimants' lands; that this invasion was done solely by agents of the United States Government, acting under the authority of acts of Congress, in the execution of an important public work; and that by their acts 31.4 acres were actually occupied for the construction of the dike and the balance of the 3,696 acres were destroyed as the direct consequence of the effect of the dike in turning the flood waters of the river upon and across claimants' lands in other than their natural course; and this because the dike performed the very function that it was designed to perform.

Unfavorable reference is made to the finding that, in addition to the danger which threatened the levee, the current, impinging upon the banks of the stream at the neck of land, cut into it, threatening to cut through it and thus straighten the channel and make of Point Chicot plantation an island. I am unable to see in this anything else than a very clear and direct inference based upon the physical facts and the effect of previous floods upon the neck of land as recited in the findings, viewed in the light of a history of cut-offs so frequent and familiar along the lower Mississippi as to have become a matter of common knowledge. But, if the finding is wanting in any respect, this has nothing to do with claimants' right to compensation for the taking of their lands. The

danger to the neck of land connecting Point Chicot with the mainland does not affect the question of the quantity or value of the land taken from claimants. It bears solely upon the necessity for the taking. Now, the objection of want of necessity may be appropriately raised by an objecting land owner. But surely it does not lie in the mouth of the Government, after an actual taking of private property, to answer a claim for compensation by setting up that there was no necessity for taking it.

It is said that it may be questioned whether the river, breaking through at the neck, would have confined itself to a narrow channel, making Point Chicot plantation an island, and would not have permanently submerged it or swept it away. Plainly, this is wholly speculative; and it seems to me, in view of the findings and the illustrative map, that the result hinted at is not even a remote possibility. The findings are clear to the effect that, before the construction of the dike, flood waters went across the neck of land, to the relief of the Point Chicot plantation, upon which the ground is much higher. The entire width of the river opposite the neck of land and on its upper side is about one-half mile, perhaps less. As already mentioned, the neck is less than a mile across, and it extends for over a mile from the levee to the nearest line of the Point Chicot plantation.

My brethren deduce an inference of possible extensive erosion from the reports of the United States engineers. The reports at the utmost, would be no more than evidential as to this point. Nor am I aware that this court, in reviewing a judgment of the Court of Claims, is at liberty to seek contradiction of the express findings of fact made by that court by reference to some government publication of which we may take judicial notice.

But if, before construction of the Leland Dike, there was any probability, near or remote, that the opening of a cut-off at the neck of land would lead to any encroach