No. 14442 | Ct. Cl. | Dec 8, 1890
Lead Opinion
delivered the opinion of the court:
It is contended upon plaintiff’s behalf that, through the construction of the aqueduct in the District of Columbia, he was directly injured in certain property rights, not included in the appraised value of the land taken from him under condemnation proceedings. The property in question borders upon Hock Creek near the Oak Hill Cemetery; most of it is on the east bank of the creek; at the upper end is a mill-dam, at the lower end is the mill; a short distance below the dam and above the mill is the land taken by the Government for a shaft, while opposite the land so taken by defendants and upon the western bank of the stream is a narrow strip of land which still belongs to plaintiff. The income from this property was derived first from the mill, and as to that there is no question here, and second from sand which was deposited upon the land still owned
• The property condemned was appraised in accordance with the Act of July 15,1882 (22 Stat. L., p. 168), by a board whose duty it was “to fairly and justly value the same;” the amount fixed by this board was accepted by the plaintiff, a deed was executed by him, and he was paid.
The duty of appraisers in condemnation proceedings generally is to consider all elements of danger, past and present, as well as any future damages which the improvement may reasonably produce; and any damage (not resulting from negligent or unskillful construction) is presumed to be included in the assessment. (Mills on Eminent Domain, 216.)
We have now to inquire whether the statute under which ■the appraisement in this case was made contains any provision ' changing the general rule.
One of the sections of the act provides that:
“ The appraisers shall only consider the present value of the land without reference to - its value for the uses for which it is taken under the provisions of this act.”
This provision has no effect upon plaintiff’s rights, it is merely a direction to the appraisers to allow the actual value of the land as distinguished from its value for tunnel purposes ; that is, to allow what it was worth in the market, not its value to defendants for the special and unusual use for which it was destined. The value of land for engineering purposes might well be much more or much less than its value in the market for ordinary purposes; any such artificial value Congress by , this provision of the statute eliminates from the question submitted to the appraisers.
The appraisers are directed to “ fairly and justly value ” the •tract of land; the Attorney-General is thereafter to pay “ the amount fixed by the appraisers as the value thereof.” Nothing here is intimated about a consideration of damage, past, present, or future; on the contrary, the plain meaning is, that
The plaintiff herein has accepted the amount offered for the land actually taken, so no question in regard to that land is before us. What he asks now is compensation for injury to other property adjacent to that condemned, caused by two things; first, the taking of the land; second, the construction of the works. The taking of the land cut him off from access to other land owned by him ; the construction of the works has destroyed a certain benefit he has hitherto enjoyed in land still held by him below the tract now occupied and owned by defendants.
Whether damages of this nature would or would not, under ordinary circumstances, be included in an appraisement in condemnation we need not now inquire, for the statute in question seems to demand of the appraisers simply a fair valuation of the land actually taken, and refers to this court every question of damage. Congress evidently intended to submit to the appraisers one question only, the fair and just value of the land, and to send to this court all questions of damage. The plaintiff, being satisfied with the award for the land, has accepted it, receipted for the money, and executed the deed. His damage, however, has never been considered in any forum, and no other forum than this court has any power to grant him a remedy should his complaint be well founded. The case is therefore properly before us, and we shall inquire whether the
.The force and effect of the word “ directly ” we have already considered in the case of Alexander and Little v. The United States (25 Ct. Cl., 87" court="Ct. Cl." date_filed="1889-12-16" href="https://app.midpage.ai/document/alexander-v-united-states-8582915?utm_source=webapp" opinion_id="8582915">25 C. Cls. R., 87, 329), where we held that in using this word “ Congress intended to limit the responsibility of the defendants against such damages as might be remotely connected with the work contemplated by the act and not against consequential injury, which might directly result from the prosecution of the work; ” further, “ Congress [in using the term {directly injured’] intended to legislate against the claims for damages not directly traceable to the construction of the work authorized by the terms of the law; ” in fact, the word “directly” not having a technical significance in the law, must be understood in its colloquial sense; that is, the injury complained of must have been proximate and actual.
When defendants appropriated the tract of land now in their possession, they so carved it out of the greater tract owned by plaintiff as to separate a small strip on the western bank of Eock Creek from the land retained by plaintiff upon the east bank; that is, the land taken by defendants is opposite a strip owned by plaintiff; thus, it is alleged, does plaintiff suffer a double injury; first, in that he is deprived of'any right of way to the western strip; second, in that he had lost the right to place a dam across the creek, as the proposed point of eastern abutment is now held by defendants. Upon this second claim the findings of fact are adverse to plaintiff and we need not further consider it. The isolation of the western strip is a damage to plaintiff, and is a damage which flows directly from the taking of the property; the land is inaccessible and its value is lessened in the sum of $950. (Galena and Southern Wisconsin R. R. v. Birkbeck, 70 Ill., 208" court="Ill." date_filed="1873-09-15" href="https://app.midpage.ai/document/galena--southern-wisconsin-railroad-v-birkbeck-6957008?utm_source=webapp" opinion_id="6957008">70 Ill., 208; Peoria, Atlanta and Decatur R. R. Co. v. Saicyer, 71 Ill., 361" court="Ill." date_filed="1874-01-15" href="https://app.midpage.ai/document/peoria-atlanta--decatur-railroad-v-sawyer-6957252?utm_source=webapp" opinion_id="6957252">71 Ill., 361.)
Having taken and paid for the land, defendants sunk thereon a shaft; the rock taken from this shaft was deposited by the contractors upon the shore of Eock Creek in such manner as to narrow the stream. It is not contended that the stream was diverted, but only that it was narrowed; that by this narrowing the velocity of the current was increased, and so certain deposits of sand ceased which had been made theretofore at irregular periods upon plaintiff’s land. It seems that during
The property in question is upon the immediate outskirts of a large and growing- city. Through it runs a stream of irregular volume, which has traversed a settled country, and is at all times subject to such incidents of use as the developing population may require. It is easy to understand that its old uses will largely cease, and that, perhaps, .before many years parts of it may be covered in and disappear from the light, as have other streams in this District, notably the Tiber, or Goose Creek. For a right whose value can be fixed, such as a mill right or a wharf right, which may be destroyed in the prosecution of a public improvement, compensation would undoubtedly be given; but would it be given to one deprived by a public improvement of an uncertain benefit derived from the occasional and irregular accidents of nature, particularly when those accidents are harmful in their character ? This plaintiff asks damages because the Government has limited the effects of a freshet, and this on the ground that, while freshets are generally injurious and their prevention a benefit, in his case the reverse is true, as they cover his land with sand washed away from some one else’s property higher up on the stream, and from the sale of this sand he derives a profit. It is possible to suppose the contention applied to a riparian owner who, by fences or walls, or by the planting of trees and shrubbery, prevented the washing of sand into the creek to be afterwards, perhaps, deposited upon plaintiff’s land.
The projected Eock Creek Park and Zoological Gardens are to be laid out at no great distance above plaintiff’s property $ it is not improbable that in the course of the preparation of these improvements for public use the stream may be walled in or otherwise confined more strictly to its bed, and that the
Nor are there disclosed any methods by which with reasonable certainty we could estimate the amount of plaintiff’s loss. How many freshets will occur under.the changed conditions caused by increasing population is a matter of speculation, though the averages of past years might give some standard for calculation. The development of the country above plaintiff presents a more difficult element of estimate, as it tends to restrain the washing of the banks and make it unlikely that sand will hereafter be brought down the stream in so great quantities as. heretofore. It is not shown that -even now the stream carries as much sand as during the period prior to the condemnation of the land. If, then, plaintiff had a property right in the chance or probability that deposits would continue in the future in the same average amounts as in the past, there is no sufficiently definite measure shown upon which we can compute any damage he may sustain in this regard. (People of the State of New YorK v. The Mayor, etc., of Albany, 5 Lansing, 524; Seely v. Alden, 61 Penn. St., 302.) '
The right to any sand deposit upon the land actually condemned and now occupied by the Government, if of ascertainable value, was included by the appraisers as an item of the just and fair value of that land which they fixed, and can not here be claimed as an “injury” resulting from the condemnation. Nothing is allowed upon this item of claim.
In the deed and in the. price paid for the laud taken was included a right of way over the property still held by plaintiff from the foot of Mill street, Georgetown, to the land con-
Under our construction of the statute, plaintiff, who has been paid for the land taken, may come here for damages arising from the taking of the land or from the construction of the works, but we do not find that he has suffered damage from the condemnation of this right of way.
Judgment for $950.
Dissenting Opinion
dissenting:
The legal premises upon which this case should be considered I. think may be stated as follows:
1. The stream for many years before the tunnel was begun constantly and unfailingly overflowed a portion of the claimant’s land and made deposits of sand which the claimant sold, and this product of land and stream yielded the owner an annual income which was never less than $500. Since the sinking of the tunnel shaft the natural conditions of the stream have remained unchanged, and the market or demand for building sand has improved, and it is as certain as anything can be that if the tunnel had never been built the claimant up to the present time — that is to say for the last six years, would have received from the sale of sand the same or a greater annual income than he did before.
2. While the owner was thus receiving a steady income from a natural product of the land and stream, the defendants put the bed of the stream to an extraordinary use; that is, they used it as a dumping ground for rock excavated from the shaft of the tunnel; and they thereby made an extraordinary encroachment upon the channel of the stream by reducing it to less than half of its natural width. This use of the bed of the stream was not an ordinary exercise of riparian right, and the bed of the stream was not so used because it was the bed of a stream, but because it furnished a cheaper dumping ground for waste material than the bank above it.
In my judgment the extraordinary use produced what was practically an extraordinary and unnatural diversion of the water of the stream, not from the claimant’s laid in general, but from that portion of his land which yielded him an income,
It is true that a precedent for such an action as this at common law has not been found in the books; it is true that the deposit of sand and gravel upon agricultural land is an injury and not a benefit; it is true that the freshets which have come in the past with the certainty of seed time and harvest may never come again, that the owners of land may so fortify the banks above that Eock Creek in time of freshet will no longer bring down sand in suspension, and that the damages in such a case are not easy to compute. But it is equally true that for many years before the intrusion of the Government “these deposits” were an unfailing “source of income” to the claimant; that if the Government had kept its hands off his property the deposits would have continued during the last six years at least; and that for the last six years he has suffered a loss of at least $450 a year, which was directly caused by the extraordinary encroachment of the Government upon the bed of the stream.
This destruction of a “source of income” from the natural product of a man’s land and stream I deem, in the words of the statute, a direct injury “in a property right.” The case is, to my mind, clearer than the Well Cases, elaborately argued and deliberately decided at the last term (25 C. Cls. B., 87,329), for there it was largely conjectural whether water flowed from the bottom of a well by a subsurface channel to a tunnel 600 feet distant, while here the cause and the injury are as visible as any damage of which a witness can testify. It is, moreover, easier to compute the value of sand which year after year has had an actual market than the value of water which was never sold and never salable.
The purpose of the statute which is committed to the judicial administration of this court was just and beneficent, Congress intending that no person should be directly injured by the construction of this public work. Under it, if not at common law, I think that this claimant is entitled to recover for the injury he has actually suffered, for the loss he has actually sustained, for the value of a right which the construction of a public work directly destroyed. With this exception I concur in the judgment of the court.