75 Ct. Cl. 562 | Ct. Cl. | 1932
delivered the opinion of the court:
The material averments in the petition in substance are: That the plaintiffs are the owners of ten acres of land,
It is further alleged that under the authority of various acts of Congress, particularly the acts of August 8, 1917, and March 2, 1919, the United States acquired the said canal by purchase from -the Chesapeake & Delaware Canal Company and thereafter proceeded to enlarge, reconstruct, and alter the said canal, changing it from a lock canal with a 9-foot channel of the width of 50 feet to a sea level canal with a channel 12 feet deep at mean low water, with a bottom width of 90 feet; that the work of altering the said canal and deepening it to a sea level canal resulted in the lowering of the canal level a distance of approximately 18 feet below the former level, and resulted in taking away the water which previously made access to the plaintiffs’ land convenient and practical, and further resulted in the draining of the water out of the bays or harbors heretofore described, destroying the harbors they formerly afforded.
It is particularly averred that in addition to the general injury and destruction of the former use of the plaintiffs’ property, the alteration of the canal and the lowering of the water resulted in the following specific injuries:
(a) The water level of the canal was lowered a distance of approximately 18 feet, and the same subjected to the rise and fall of tides, rendering the grove inaccessible by either the small pleasure water craft or the larger ships.
(b) The four piers, landings, or wharfs formerly used by the small water and pleasure craft were taken away.
(c) The basins or harbors at the mouths of the East and West Branch Creeks on each side of plaintiffs’ land were drained out and taken away.
(d) The game fish abounding in said creeks and basins: were driven away and lulled, thereby taking away and' destroying plaintiffs’ right of fishery.
(e) The use of the large'wharf or landing pier at which the passenger and freight steamboats traveling through the-
(f) The lowering of the level of the canal resulted in the-taking away or drying up of the water of two wells which formerly furnished the water supply of the grove.
(g) In the unwatering of the shores of Lorewood Grove the Government took away all practical and convenient access by water and left the former shores or banks at a precipitous height of 18 feet above the new level of the canal.
That the physical changes made by the United States as aforesaid further destroyed the approach to the plaintiffs’ shore line along the canal for the distance of its entire frontage along said canal, to wit, approximately one-half mile, and rendered the land of the plaintiffs inaccessible from the water and unfit for the use for which it had prior theretofore been used, which, plaintiffs aver, was the most valuable and best use of said land; that in addition the United States Government, by its agents and employees, in the course of its work in widening and deepening the canal pumped the mud and silt and sand out of the bottom of the canal into the harbor mouths of said East and West Branch Creeks, thereby so increasing the shallowness as to absolutely destroy said streams for the purpose to which they had been theretofore used, as a consequence of which all the fish were driven out or destroyed. That the United States Government, acting further by its agents, servants, and employees, did pile other mud, silt, and sand out of the bottom of the canal along the shore of plaintiff’s land, covering up and destroying the wharfs and docks and casting upon plaintiffs’ land an undue burden to which it had not been subjected before.
Plaintiffs aver that by the defendant’s conversion of the private lock cañal into a sea-level public waterway the defendant, in addition to the damage and injury above set forth, deprived the plaintiffs from, all the rights, heredit-aments, appurtenances, benefits, easements, advantages, and servitudes which they held, owned, and possessed as riparian
Finally it is alleged that as a consequence of the acts of the taking of plaintiffs’, property, as averred, the grove was destroyed for the uses to which it had been put, which, it is alleged, was the best and probably the only use thereof, and that the plaintiffs have sustained damages to the extent of $30,000, which plaintiffs under the laws of the United States, and the fifth amendment to the Constitution, are entitled to recover.
The defendant demurs to the- foregoing petition on the ground that the facts alleged do not state a cause of action against the United States, in that there was no taking of the plaintiff’s property within,1 the meaning of the fifth amendment, and that the damages alleged were an incidental consequence of work done by the defendant on a project for the improvement of navigation, authorized by law, for which the Government is not liable.
The law is well established that acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are not a “taking” within the meaning of the constitutional provision. Transportation Company v. Chicago, 99 U. S. 635; United States v. Carver et al., 278 U. S. 294; Graham v. United States, 2 C. Cls. 327.
In order to come within the constitutional provision there must be shown to have been an exercise, by the United States, of a proprietary right for a greater or, less time, in the property taken. A taking within the meaning of the amendment must have been an intentional appropriation of the property to the public use, and the appropriation must have been authorized by law. Atwater & Co. v. United States, 275 U. S. 188; Transportation Co. v. Chicago, supra. Thus it has been held that when the Government of the United States, by the construction of a dam or other public works, so floods lands belonging to an individual as to totally destroy its value there is a taking of private property within the scope of the amendment, United States v. Lynah, 188 U. S. 445; Pumpelly v. Green Bay Company, 13
On the other hand, it has been repeatedly held, and the correctness of the rule is not open to question, that where land is merely damaged by the impairment of its use or value as an incidental consequence of the lawful exercise of power by the Government there is no taking. This is especially true in cases where the damages are incidental to work done by the Government in projects relating to the improvement of navigation. Tompkins v. United States, 45 C. Cls. 66; Sanguinetti v. United States, 55 C. Cls. 107; Natron Soda Company v. United States, 54 C. Cls. 169; Horstmann v. United States, 54 C. Cls. 214, affirmed 257 U. S. 138; Southern Pacific Co. v. United States, 58 C. Cls. 428, affirmed 266 U. S. 586.
In the Tompkins case, supra, the court said:
“ If, therefore, the land is merely damaged by the impairment of its use or value as an incidental consequence of the lawful exercise of power by the Government, there is no taking.”
In Horstmann v. United States, supra, the plaintiff claimed that because of the construction of certain irrigation works by the United States the body of ground water in the section covered by the project rose and caused rise of water in lakes, which prior to that time were used to extract soda water. It was held that while there was a casual connection between the work of the Government and the waters in the lakes damaging the property of the plaintiff there was no taking of the property within the meaning of the fifth amendment.
In the Southern Pacific Company case, supra, the Government, under the authority of Congress, constructed a jetty or breakwater at the mouth of a bay, the effect of the construction causing the waters of the ocean to break with such force against plaintiff’s railroad, located on land bbrdering on the bay, as to wash away and destroy a section thereof.
In Sanguinetti v. United States, supra, it was held that where Government works for the improvements of waterways have caused deposits of debris on private lands, requiring labor to remove; where trees have been washed out and others damaged; and a house rendered inaccessible during •flood periods, the injury amounts to a depreciation or consequential damages, and not to an appropriation of property by the United States under the fifth amendment.
In Gibson v. United States, 166 U. S. 269, the Government, under an act of Congress authorizing an improvement in the Ohio River, constructed a dyke, not on the plaintiff’s land, but so as to impair the waterway between the' channel of the river and plaintiff’s wharf, and, except in high water, rendered it inconvenient and almost impractical for use as a shipping point. After citing cases where it had been held that permanent flooding of private property may be regarded as a “ taking,” the court said:
“In those cases there was a physical invasion of the real •estate of the private owner, and a practical ouster of his possession. But in the present case there was no such invasion. No entry was made upon the plaintiff’s lot. All that was done was to render for a time its use more inconvenient.”
In the instant case the work done by the Government, •complained of by the plaintiffs, consisted in the conversion of a lock canal into a sea-level canal for the improvement •of navigation. There was no entry upon or invasion in any way of the plaintiffs’ property, none of which was taken •or appropriated by the Government. The alleged damages resulted from the necessary lowering of the water level in the canal, as a consequence of which the plaintiffs’ lands were left higher and farther from the water. Whatever damages the plaintiffs may have sustained by reason of the improvement were incidental to the work done in the improvement of the canal. The work was authorized by Congress and was performed by the defendant in the legitimate, exercise of its governmental powers. Although the work may have depreciated the value of the plaintiffs’ prop
There was no taking of the plaintiffs’ property within the scope of the fifth amendment. The petition fails to state a cause of action, and the demurrer is sustained. It is so ordered.