*1 445 v. Syllabus. them the to but of Government, property supplied lands. Co. v. and in use on the allotted Railway Government Carolina, v. South Co. 444; Wall. CoosawMining 22 McShane, 564-66. 550, 144 S.U. that to be made are may applicable

Some observations has these that the State conferred upon It is said whole case. and other ordinarily suffrage rights right Indians therefore, share citizens, they ought, belong only such who enjoy like other people burdens government be addressed Congress. considerations are These rights. when of the Government branch say It is the legislative the re- and assume these shall cease to Indians dependent That is attaching citizenship. political ques- sponsibilities We deal which the not determine. can only courts tion, the case as it exists under the Congress. with legislation and the affirmative, We the fourth answer question It third and fifth will first, second, questions negative. Court of be so certified Circuit Appeals.

Answers certified. of this case. Me. in the decision took part Justioe Brewer UNITED STATES LYNAH. OF THE TO THE CIRCUIT UNITED STATES FOR THE DISTRICT

EEEOE COURT OF SOUTH CAROLINA. No. 45. Argued January 9,1903. Decided February private property subject is held to the necessities of All rights property. of eminent all such domain underlies appropriates property does United States When own, implied claim as its so under an contract it will it does appropriates. pay it so value States alleged in an action that it is When regulation powers domain and of com- of eminent the exercise empowered pierce, duly acts of through agents-' thereto officers TERM, Statement of the Case. places dams, Congress,- training walls and other obstructions in the Kiver in such Savannah manner as to hinder its natural flow and to raise plaintiff the water so as to the land of along overflow the banks to such *2 an value, extent as to cause a of total destruction its government and the deny ownership, does not the admits that by the work was done author- ity Congress, simply and produced denies that the work has the al- injury destruction, leged and the Circuit Court of the United States has jurisdiction inquire by whether the acts done the officersof the United States under the Congress direction of have resulted in such overflow injury'of and the land absolutely as to and, render it valueless thereby if property was, contemplation the law, appropriated taken and by the government, judgment to render against it for the property value of the appropriated. so taken and government Where the of the States dam, United the construction of a public works, or other belonging so floods lands to an' individual'as to destroy value, totally private there is a property its within the <(cid:127) scope of the Fifth Amendment. proceeding regarded appropriation land, must be as an actual of the possession and, fee the and the when amount including awarded as title, paid, rights compensation is the fee and whatever attach pass becomes henceforth the full thereto owner. Notwithstanding causing injury done in improving work navigable navigability of a and tlie Congress river Constitution injuries given improvements, full control over such cannot be re- purely consequential, garded appropriate as and the cannot being obligation without liable to the created the Fifth just compensation. paying Amendment of defendants in 4, error commenced their February . On action in the Circuit Court of the United States the District Carolina recover of the United South States the sum of as for certain real estate $10,000 compensation (being part known taken and plantation Verzenobre) appropriated by the defendant. in the first

The. and alleged paragraph petition citizenship second, residence had a petitionersin they the United under an States contract for implied claim against for the value of taken the United compensation States for were use; third, owners as they tenants in common of the and in the fourth and plantation; Seventh paragraphs: That for Fourth. several and now years con- continuously, the said of the'United States of America, tinuously, v. of -the Case.

Statement Con- of eminent domain under the itsof power in the exercise and of the acts of States by authority stitution thereto, its officers and agents empowering duly Congress, did build and and erect, maintain, and made that case provided, and been have erecting, building maintaining, since continuously in and across now maintaining and are erecting building, Savannah bed of said River, the said Savannah obstructions, and other ob- walls certain River, dams, training llow the said Savannah natural structing hindering natural bed thereof in and raising River through, along of and above the at the Savannah River-feet the'said point bed said said obstructions dams Savannah afore- said Savannah River waters River, causing raised and and to flow back to be said back kept of the Savannah River elevated above the natural height along walls and dams, natural bed at the the said training points *3 the said walls at above obstructions, dams, and training points said river.” and obstructions in “ And further show said Seventh. your petitioners haye aforesaid, acts of the of the United as officers and and are done been done being lawfully by under the of the United of United States authority agents domain and of eminent States in the exercise of its powers of under the of the United commerce Constitution regulation of and the laws of for States purpose Congress of the harbor of Savannah and deepening improvement a at the of Savanmih, waters of the River port Savannah port and of the United States of of the United States seaport entry of on the Savan- within the State of situated America, Georgia, with and nah and River, enlarging purpose deepening of the said for commerce channel and navigable highway and of in- for benefit use, Savannah River the public purpose commerce, trade and terstate and and international foreign and benefits.” for other uses public purposes, forth the effect of the The set placing remaining paragraphs .walls and other dams, restraining by with the value of in the river, obstructions together overflow, The answer appropriated by averred: TERM,

Statement of the Case. First. That this defendant has no informa- knowledge “ a belief truth of tion sufficient form as the allegations and third contained first of the said paragraphs petition and complaint. “ Second. That this defendant denies all the allegations in the second, fifth, contained seventh and fourth, sixth, eighth said so much of complaint petition except paragraphs as that the said the fourth United States here- paragraph alleges certain dams in the tofore erected Savannah River pursuant in it so much law, vested of the seventh bj except power that the said dams heretofore erected alleges paragraph the United were erected States officers and lawfully agents.”

For further defence the limitations was .statute pleaded. came on The case for trial before the court without a which jury, and from fact, made them deduced conclusions of findings law and entered the defendant for the sum judgment against were to the effect that the $10,000. findings plaintiffs were the owners of the title plantation, deriving proper “ a mesne the lords conveyances grant by proprietors made in 1136. Other Carolina,” South findings pertinent must considered this were case questions deciding as follows: AIV. certain of these plantations, about parcel measuring had been reclaimed acres, had been drainage continued actual use seventy years as a rice upwards used This rice solely plantation, purpose. plantation for its the waters of irrigation üpon the Sav- dependent and its annah River drains and ditches, canals, through *4 which the. waters of the river were flowed in and and were then drained therefrom, were lands, to the adapted natural level the said Savannah and River, dependent their and cultivation upon maintenance of proper drainage the natural flow of the said river in, and over its natural through its natural channel bed to the waters of the ocean. along “ V. This on the plantation river and portion fronting to the dedicated' culture of extended rice, almost to if not up to low and water mark, it was between large quite part STATES v.

Statement of the Case. water and low water mark, mean from the river high protected embankment. embankment trunks water- Through with flood constructed, were therein. The outer gates ways was about a of the trunk foot or a little less above opening mark of the river, mean low water which the tide ebbs and to flow When it is desired the lands the-flood flows. are gates in. and the water comes When it is desired to draw opened water and to effect the

off this the flood lands, drainage low are at water the water is es- It gates opened escapes. that the outlets of the trunks or sential should al- waterways above the mean low water mark. ways ******** For several last VIL and at the time years past present of the United States, officers, under its proper thereto the act of authorized have been Congress, engaged of the Savannah Eiver, improvement navigation water of the United States, this navigable improvement being virtue of the carried on section article I, provisions the. Constitution, giving Congress power regulate commerce. “ VIII. In thus of this water improving navigation navigable United States has built maintained and now building in and across the Savannah in the bed Eiver, maintaining certain walls and other thereof, dams, obstructions, training the natural flow of said river in and its nat- obstructing along ural and so the level of said bed, river above said ob- raising its Avatersto be structions, back to flow causing kept and to be above its natural back its natural elevated height bed. This rice

“IX. Verzenobre is above these ob- plantation structions. The direct effect thereof is to raise the level of the Savannah Eiver at this and to plantation, point keep mean low Avater above its natural outlet of so .the' point, bank, trunks and above of in the of said AvaterAvays spoken instead of above this of Ioav Avater plantation, being point is noAVbeloAvthis Another direct result Avasthat mark, point. Avaterrose by seepage percolation plantation water until the level land rose to gradually height VOL. clxxxviii —29 *5 TERM,

Statement Case. in the river, level and the water of the increased superinduced water in the about inches addition plantation eighteen of this became and difficult, reason gradually thereby. By to let off the water on this now become planta- has impossible, that these dedicated to drain so acres the.same, tion or to rice become unfit for cultivation and culture of have boggy, in rice. to be cultivated impossible “ Biver X. of the level the Savannah By raising the water thereof has been these dams and obstructions backed the river and been the embankment on has caused up against above the and in this obstruction, to flow back plantation invaded said directly and has actually plantation, raising which it is about im- inches, water in said eighteen plantation from said This is to remove plantation. flooding possible the rice condition is now, and plantation thereby permanent rice culture destroyed purpose any practically and is an irreclaimable other known has agriculture, bog no value. “ reason of this addition of water Ac- XI. superinduced By said rice and its destruction plantation tually invading have for all been agriculture, thereby purposes plaintiffs cultivation' of rice to abandon the said plantation compelled their have been forced to rice on pursue calling planting dams. The direct result other below plain- plantations actual and ouster of tiffs is an this practical possession themselves and rice cultivated by family plantation, many years. on water

XII. up Beyond backing dams and reason of the and the in- obstruction, plantation of water of these lands addition at vasion superinduced described, above rendered necessary plantation the United States execution plans, government’s lands. of these in actual possession “ no other use has XIII. this time been discovered for Up than for rice the direct results culture, lands above these n have market value of the lands. stated totally destroyed have value. now They before, rice lands of these obstructions XIY. The value v. of tlie Case.

Statement dollars the river was about thirty into per were put aforesaid dollars acre. per thirty twenty-five between acre, *6 thus is ten 420 acres, destroyed the rice of value plantation, dollars.” thousand conclusions of law fact the of these important findings

Upon thus stated: were Was a in case there is, this taking

“V. The crucial question ? the Constitution land the sense of of this in “ of the obstruction found reason The facts show backed water been directly up the Savannah River the has the on and and banks the on the river embankment against in of the addition actually this water plantation, superinduced for it useless it its and and leaving vading drainage destroying take does in a sense The all purposes. practical But it. land for the of its obstructions on this purposes putting nec back water of the the land as a result it forces river on not be could to its without which its essary purpose, purpose that water For the of the accomplished. purpose government, ma in the river must be raised. banks of plantation .The the water is assist this for their resistance terially operation, .by in the the water channel. of against kept backing up banks to create this resistance the water raises plantation This is a and taking destroys drainage plantation. . ‘ un and It Mr. Justice be a would,’ Miller, says very-curious result of a constitutional if, satisfactory construing provisión understood to have been law, always protection adopted of indivividual security rights against govern and which had received of ment, the commendation jurists, commentators as statesmen the just placing principles law the common ordinary subject beyond power on. or control it shall be held that them, legislation change if real refrains from absolute prop conversion to the uses destroy can value entirely, erty public, can inflict extent; can, irreparable permanent injury any com effect, without destruction subject any making to.total it has of that word because narrowest sense pensation,. taken not been v. Geeen Pumvdly use.’ Bay public TERM, OCTOBER.

Argument for Plaintiff in Error. In that Wall. case the water on Co., 177,178. backing up'of land held to be taking. YI. The invaded plaintiffs being actually- plantation addition 'water caused superinduced directly govern- ment dams and obstructions water of the Savan- backing up nah and in Biver and water level at the rice raising planta- unfit tion and for rice or for cultivation other making any known have been plaintiffs agriculture, compelled thereby abandon the this actual ouster plantation, practical continued and reason of the possession being permanent condition and the plantation, permanent flooding now an irreclaimable of no value, thereby plantation bog being makes the action of lands for within the of the Fifth Amendment, -which purposes meaning due Creen Pumpelly plaintiffs. Bay compensation *7 v. 123 TJ. S. 13 Wall. 668. Co., 182; Mugler Kansas, “ into VIL The has not actual gone occupancy but reason of these dams land, this obstructions made work and the water fulfilling necessary by purpose in the Savannah Biver has been raised at plaintiffs’ planta- tion on it on and has been backed and remains it so that the up and ditches filled has been destroyed up drainage super- on. the added water land forced into kept permanently up unfit for it, cultivation, have plaintiffs making wholly of their been ousted actually thereby practically possession. the land for for This is which com- public purposes, v. Green must be 13 provided. Pumpelly pensation Bay Co., Wall. 181.”

The case Constitution of the involving application error writ of United States was to this brought by directly' court for the

Mr. Robert A. Howard error with plaintiff whom Richards was on brief. Mr. Solicitor General the defendants As error obtained grantors original ” “ whereof were on the Savannah the boundaries Biver 'grants extend water mark. United States only high grants Pacheco, 2 State v. 22 587; v. Wall. S. C. Pinckney, 484, 507; STATES v. 453

Argument Plaintiff in Error. Waddell, 367; Martin v. 16 v. 152 S. Peters, TJ. Shively Bowlby, v. TJ.S. 226. 1; 196, Morris United 174 An- owner of a individual be’the the shore portion but he from the State takes the grant ownership subject which cannot be or dimin- trust people destroyed Hale T. Shore, 15; ished. Sea de Maris L. Hall, jure Hay, c. Gent. 146 S. 107; 5 Co. Illinois R. R. Go.v. U. Y.; Illinois, 435, v. Balt. & N. Y. R. 32 Fed. 387, 452; Go., Stoelcton Rep. 19 3 Commonwealthv. 9 ; Kent, 377; 451; State Roxbury, Gray, v. 22 S. C. 83; Gua/no General' v. Go., Attorney Pacific Parmenter, Price,

The has taken these lands possession the erection of structures thereon or physical entering upon them, but whatever was done was under direction of Con- gress accomplish purpose improving navigability of the Savannah River which is v. Gibbons complete. Ogden, 9 Wheat. 196 Hobokenv. ; Railroad Co., U. S. 659 ; Mobile v. 102 U. S. Kimball, 691;' Gilman v. 3 Wall. Philadelphia, Carolina 724; South 93 U. S. Georgia, 4; Go.v. Telegraph 96 U. 1.S. Telephone Go., the United States includes all power the powers which existed in the States before the of the Consti- adoption tion.”- Whatever follow in its consequences exercise are as had been or provided exactly they would be in the British Isles or in the States of the Union.

One of the been has so primary objects, often stated, was commerce, and, regulate so, reach out and doing abso- control and all the lutely navigation waters of the navigable *8 benefit When country this court in people. said, Martin v. that the Waddell, of each State hold sovereign people the absolute to all their right waters, and the navigable' soils under for their them, own common use subject only rights since surrendered the Constitution to the general govern- ment, b_e and that the made their must grants de- authority termined different those which to principles apply of the British it was Crown, meant, not grants that the simply, n their could through representatives, people, arbitrarily dispose of the trust That not is propert}^. theory representative TERM, 1902.

454 Argument for in Error. Plaintiff tolerated in a fierce de- would not be That long government. mocracy. a of law and fact,

The court below found, question being as entitled the that there had been such the land to conclusion was had this Eeliance parties compensation. in the cases of Mo- laid down court principles 336-387; v. 148 U. S. Gibson JV. Co. United States, nongahela S. v. 269, v. 166 U. explicitly Pumpelly 13 do not 181; "Wall. but these cases sustain Co., Green Bay contention the defendants and can be error, plaintiffs, from the cases at bar. distinguished taken for which what private compensation property But. should made under this the Constitution, Avhich guarantee the individual a free is affirmative of a only govern right in these ment like had lands this ? The CroAvn property rights to these lands trust. trust. The State had rights could not And surrendered. be. Avhen AAerenever They They hand and took out her the United States reached possession to Avhichshe had and Avhich succeeded, them execute trust had to inferior execute, she bound to yield, Avas legally is for the courts to It say even extermination. be reimbursed or and therefore should has suffered individual under a idea of his has mistaken been, If he compensated. he has labor and remedy by expense hope, rights, put will, of a Avhich bounty application has been done him. He But no do him Avrong opined, justice. and their Avithout lands money has these profits enjoyed common Averethe Avhole Avithout price. They him li accident of ownership gave adjacent people. it was a instance, in the'last for, cense privi privilege; 93 U. S. Scranton v. 1; v. lege. South CaroUna Georgia, Boom, v. Pere S. 141; IT. 179 Co., Webber Wheeler, Marquette and cases there'cited. 626, 62 Michigan, (cid:127) in that State that the Avell It is settled rights equally easement or servitude are OAvner subject riparian 32; 18, Lorman v. Michigan, navigation. Benson, Ryan So that whether the title to Michigan, Brown, or in waters is State lands of-navigable submerged *9 LYNÁH. Argument for Plaintiff in Error. to it was which the owners, subject rights

riparian acquired of have such waters. The use public navigation primary under them is for of navi- waters the lands purposes to and the erection of in'them navigation gation, piers improve such for the with use, is consistent entirely infringes public owner. Whatever the nature right riparian in front of owner in lands interest submerged riparian on a his title is not water, his navigable upland bordering public to land full as his title fast which has no direct as and complete, of such It is a connection with the water. navigation qualified a bare technical not at his absolute as is his title, title, disposal, to be at to such use of but held all times subordinate upland, lands and of the waters over them as submerged flowing or consistent with demanded the public, navi- right gation.

In our it was not intended au- paramount opinion, to thority Congress improve navigation public to water's of United States meet the demands of navigable international interstate commerce should be com- crippled by to make pelling compensation a. injury owner’s access riparian inci- right navigability might result ordered dentally The improvement by Congress. with which dealt was subject Congress That navigation.

was to be was sought accomplished simply improve naviga- tion on the waters so as to meet the wants of the question vast commerce and to over passing them. pass Consequently the work or agents designated ordered authorized perform had the all Congress right without proceed proper ways into account the injury might possibly indirectly from such result work to. the of access owners by riparian To conclude: navigability. error claims plaintiff that, the interest and which the conceding defendants in error had these there was not in them title tc lands, “ such kind of com- susceptible pecuniary th( within the pensation, Constitution.” What meaning took, under similar wa circumstances, takes It is not too public far, to asser property. going maybe, that no is taken at all. The private property private property TERM, 1902. in Error.

Argument for Plaintiff use is when the under the necessity eclipsed grant *10 of the could How there be a settlement determined. properly measure what rule could the ? By value private property on all be arrived at ? All the land and injury damage be affected and tide waters coasts country might exercise of power necessary sovereign paramount the same States individuals in exactly against —paramount it is not And might extravagant say power degree. if it was doubt hurt and subject imperiled dangerously cavil or diminution. briefs additional authorities

In the supplemental reply Quasi- Keener on On the of jurisdiction, cited. were question Trust v. Gleason, 159 et National Go. 11 Contracts, pp. seq.; 112 S. Co., v. Great Tails U. N. T. United States 400; Mfg. 124 U. General, v. S. 597. Great Falls Go. 657; Attorney Mfg. 1, 152 v. U. S. States, of United Shively Bowlby, As liability 140 U. S. 371; reviewed Hardin v. ; Jordam, and authorities 124 688; R. R. U. S. Go., Hoboken v. Perm. cases cited 68 Y. v. 71; 1. N. Ferry Co., v. N. Y. da S. Lloyd People 341; 101 U. S. States, 153 v. United ; 1 How. Langford Hough, v. 593; 149 U. S. United Sehillinger Hill v. States, United under 163. soil 155 U. S. States, navigable being waters ' for the common in trust use, of the State held people act of of their inherent sovereignty, any legis- and as a portion affects the welfare. 111.Cent. their use lation concerning 146 S. v. 459; v. U. Illinois, MoGready Virginia, R. R. Go. 3 How. Boston v. Le- 212;

94 S. v. 391; Hagan, U. I*ollard. 1 v. Ohéñestown, How. 426 Commonwealth ; Pickering, era/m,17 v. 53, ; 78 Bundle 1 180; Cushing Commonwealth Alger, on Phear 186; Waters, 52, 14 How. Co., d Raritan Canal -Del. 53.

While, been lands have reclaimed, it is true that these yet the action relievect'from have been only temporarily they to the Savannah Kiver was their relation tides; only ordinary v. Boston da Maine R. Davidson interrupted destroyed. —hot 3Co., R. Cush. 105. 91, cannot be within the case These cases PumpélVy brought Eaton v. Boston daciR. was a suit was also trespass, Which UNITED STATES 457 v. Argument for Defendants in Error. Co.,

B. 51 N. IT. 504; and there cases are also different from United States v. Monongahela Nav. 148 Co., U. S. 312, Kaukauna Water Power Co. v. Green dee. Bay Co., 142 IJ. S. 254.

Mr. J. P. Kennedy Bryan defendant in error in No. 45. Mr. Julian Mitchell, Jr., with whom Mr. Julian Mitchell and Mr. A. M. Henry Smith were on the brief for defendants in error in No. 59.

The cause action accrued within six Saulet v. years. Shep- ; 4 herd, Wall. Steel v. 49 116 Iowa, 507 19 Am. & Bryant, ; 2d Enc. ed. Law, cases cited; Kendall v. Eng. States, U. S. 125 United Lumber ; Co. v. Bridge High Fed. Nep. *11 There has been an actual of the The taking property. prin- ” that a was a thereof as es- permanent flooding ciple taking tablished in v. Green Co., 13 Wall. has Pumpelly Bay 117, never been modified. v. 123 Mugler Kansas, U. S. v. 667; Gibson Richmond, 166 States, 275; U. S. v. United Meyer 172 U. S. Wheeler, ;96 Scranton v. 179 U. S. 154; United States v. Alex- 148 187; U. S. ander, Transportation Co. v. 99 U. S. Chicago, Fifth 635. The Amendment should be construed 1 liberally. 139; Com. Blackstone’s Sinnickson v. 17 N. J. L. Johnson, 129; 504, Co., v. Boston &c. R. R. 51 Eaton N. H.

The defendants in error was not ownership sub- always to the servient to flood the same for government The facts benefit of found show that were the navigation. they in fee and that a owners of the lands lie between simple portion low mark. Under water the rule South Carolina the high to low water extends mark. State v. Guamo ownership Pacific 24 598 ; 22 S. C. 50 S. C. State v. 22 Co., ; S. C. Pinckney, 492; 42 S. 138 Co., ; v. Farmers C. Mining v. Heyward Shi/oely ; 152 U. S. 26 Lowndes v. Board 1, 13, Óac.,153 S. Bowlby, U. 140 18 Hardin U. S. ; Jordan, v. 371. the States on conferred Congress power adop- of the Constitution the control of

tion com- giving Congress and of furtherance merce, thereof, is limited navigation the Fifth Amendment.

458 TERM,

Opinion of the Court. The national over greater power possesses individual each State, commerce than that possessed of the Constitution the terms was ceded by general could not The State of South Carolina take these government. without take them lands nor can the United States compensa- 148 States, v. U. S. 341. tion. Wav. Co. United Monongahela on contract There was an implied part Cases cited Kau- supra, taking. compensate 142 Co., c&o.Canal U. S. Water Co. v. 254; kauna Oreen-Bay v. 112 U. S. Kohl Co., ; United States Falls v. Great Mfg. 045 on vol. 5 15. Contracts, ; 91 Parsons States, ; U. S. 367 on ; Torts, 109; Austin, of Law. Am. Enc. 1078 Cooley &Eng. Keview, Harvard Law 912; 5th ed. History Jurisprudence, 274; 8 Wall. 64 Gilliam United ; Lang- Assumpsit, 101 U. S. 345. v. United States, ford statement, MR. after making foregoing Brewer, Justice delivered the the court. did First, this case: There are three principal questions was there a second, have Circuit Court jurisdiction; of the Fifth Amendment; and, the land within meaning was the if there was third, government subject taking, therefor ? of making compensation obligation ? It Court have premised Did the Circuit jurisdiction in the Circuit nor was Court, not raised that this question but first to this court on the only argument presented coun on the the learned This omission part reargument. Nevertheless as sel for the certainly suggestive. *12 ’ is one of for the time jurisdic- now first presented, question, To sustain the it and determined. tion must be considered it insisted jurisdiction challenge acts tortious on the but contract, there was no simply implied 149 U. v. S. 593, and Hill United officers, States, its part are relied Let 163, 155U. S. States, v. United upon. Schillinger decided. In the and what us see those cases were they what the United States for former the sued to recover plaintiff land for a The land upon the use and lighthouse. occupation land in built was Chesa- was submerged which the lighthouse v. UNITED STATES LYNÁH.

Opinion of the Court. The that it had a peake Bay. government pleaded paramount to the use of the and that demurred to. It land, right pleaAvas was held that the Court had no in Circuit jurisdiction, delivered Mr. Justice it was after refer- said, Gray to several cases ring (pp. 598-9): “ In v. it States, United Langford accordingly adjudged when that, an officer of the United States took and held posses- sion of land of under claim that citizen, private belonged the United States could not be government, charged upon an use and implied occupation. obligation pay “ It has since been held that if the United States appropriate to a use land which admit to be they private property, be as its value held, contract, they may upon implied pay to the owner. United States Great Falls Com Manufacturing 112 U. S. and 124 U. 581. It S. has likewise been pany, held that the United States in sued the Court of Claims of a for an the use in invention, patent plaintiff’s right have Hollister v. Benedict Manu they acknowledged. 113 U. S. United States v. 59; Palmer, facturing Company, 128 U. S. 262. But in each of these cases the title of the plain in tiff was none of them was doubt thrown admitted, any of the decision in case. correctness See Langford's 24 C. Cl. States, v. United Schillinger “ The case at bar is case. It was not governed by Langford's nor that the United admitted alleged petition, plea, States had ever acknowledged any right any way in the The United States. as- plaintiff against plaintiff serted a title the land with exclusive question, right of the United and claimed States for thereon, damages building the land for a use lighthouse. occupation n the land was States sub- pleaded positively precisely one of under the navi- the waters Bay, merged Chesapeake and that the United States, waters of the United gable ‘ of a has a under for the law, lighthouse, paramount purpose ’ other to its usé as any against plaintiff person; to this demurred plaintiff plea.” In the other that the architect of the case appeared Capitol contracted with G. W. Cook pavement laying *13 TERM, 1902. Opinion the of Court. in- in the The contractor laying pavement Capitol grounds. to them claimed, as granted upon rights petitioners fringed, not the was Thereafter suit party brought, against patent. the United States but against guilty alleged infringement, of the in the construction which, had pavement accepted had their as the contractor claimed, upon infringed petitioners In it was skid the (p. 170): rights. the the claimants never authorized use

“Here patent never consented but to, the always pro- right by government; or other to interfere tested it, by injunction threatening against act of such use. There was no to restrain Congress proceedings or the use in even implication terms suggesting, directing, directed its use, No officer of patent. did not Cook or and the contract which was executed name or it. There was no describe recognition by of the fact that construction of its officers any of that there was use patent, any ap- pavement any of claimant’s made property. gov- being propriation it the man- acting ernment .were only proceeded though and the exercise of its own own its rights, agement of the claimants. trespass upon rights without any from its the whole transaction commence- There was point or minds met where where the ment to its close parties of an not the semblance So there was agreement. anything but a also the tort, count does upon findings petition only essential fact transac- a tort. show underlying That a recover. tion and rests pretence upon-which every right or a a waiver of tort was no pretence There suggestion until after decision of the Court of contract implied any had no over action recover for Claims jurisdiction the tort.” at bar! The did not

How different is case It the answer the title of averred plaintiffs. simply deny it had or information sufficient form a no knowledge .nor but did not such averment with denial, belief,” any couple did it owned had paramount pretend did its It issue put possession. proprietary denial acts offi but rested title, question UNITED STATES

Opinion of the Court. *14 bad done its direction had cers overflowed the land by and the such overflow and injury alleged, wrought injury and contract, created an also the bar of the implied stat upon of ute limitations. Nowhere in the record did it set title up any the to to that claimed the property antagonistic by plaintiffs. It denied for what it had caused to be simply responsibility done, that if it had ever and been the of liable, statute limita pleaded had tions worked bar. No officer of the as in government, claimed that the found case, the the court Langford property by of to to the the the he plaintiffs, property belonged government. "Whilethere was no formal of admission record that the land the to the case Avastried alone the the plaintiffs, belonged upon could not be held for A\hat responsible ory it had done. It did not the actions of its officers repudiate but on the terms admitted that agents, contrary they acted of all that did by authority Congress, Avas they if done. So that the overfloAVand laAvfully destruction of this as Aveshall Avas, property presently inquire, taking appro Avithinthe of the Fifth Amendment to the priation scope Con stitution, the noAV jurisdictional question Avhether presented such directed created an appropriation Congress con implied on tiie the tract part Avaluéof pay the Let so us see Avhat this court has appropriated. de property In cided. States Falls Great Com Manufacturing S. 112 U. made an pany, Congress having appropriation a dam Avasconstructed therefor, across the Potomac with the the view Avith city AArater.In supplying Washington the construction such dam certain lands belonging plain such taken, tiff Avere were not the act of although Con lands ordered be taken. The so gress specifically taken for, been this action in not.having paid plaintiff brought the. of Claims recover the value thereof, Court and it Avasheld the maintained, action might the opinion was said (p. 656): “ It seems clear that these have property rights -beenheld and the the United States, under used agents sanction of enactments for, by Congress; legislative appropriation for the construction of the money specifically dam from the TERM,

Opinion of the Court. all circumstances con- was, to Conn’s Island shore Maryland direction sidered, equivalent express legislative its officersto take this executive branches of for public objects bjr particular contemplated for of the nation with wholesome scheme capital supplying involves water. The making improvements necessarily for want of formal if, property; pro- condemnation, use, the claimant was ceedings at to have work, entitled, the beginning agents until prosecuting provision government enjoined in some made way, payment securing, compensation we question, required by express Constitution— is no sound reason claimant why might —there *15 not waive that to the action and, of the regard right, electing as a under its of eminent sovereign taking right . demand Kohl v. domain, United 91 States, just compensation of U. S. In view we are that the 367, 374. United under its the States, agents, proceeding authority having the of the act of taken claimant for an Congress, property pub the are under an use, lic imposed by Constitution, obligation, will a make law to make imply promise compensation. where which the the compensation, required gov an act of title, taken, ernment asserts pursuant Congress, to be uses. Such an im as applied public private property the consistent with constitutional duty being plication with the well as common as claimant’s cause justice, government, that arises out of action is one within implied contract, the which confers of the statute the Court jurisdiction meaning upon £ founded of actions or im any contract, of Claims upon express ” with United States.’ the government plied, v. The In Great Falls Manufacturing Company Attorney action, an like 581, which, S. the General, 124 U. -preceding, out of made water to by Congress grew provisions supply and in the relief the was the city Washington, sought on or if it of all structures should removal premises, appear had been condemned, legally framing ascertain issue, an triable plaintiff’s by jury, damages, it was said, for the amount thereof, a referring judgment ' v. Opinion of the Court. were certain defects contention that there proceedings 597): taken (p. “. if the and the Secretary’s survey map, publica- Even did General’s notice strict not, law, tion Attorney of the land and former water possession justify to waive was competent company rights question, an im- tort, upon proceed against as it does here, contract, govern- plied appearing, taken in and retains the behalf ment possession recognizes which its indicated the act under of- purposes ficers have proceeded.” 113 U. S.

In v. Benedict Hollister Manufacturing Company, a United of a an action 59, patent against assignees the law is thus stated collector for (p. 67): States infringement, with- and, If the was acknowledged, right patentee under out an officer consent, his government, acting made use of the invention authority, legislative discharge of his official it would to be a of the ex- duties, seem cleaf case ercise of the of eminent which the law domain, upon would an action on which imply promise compensation, would lie within the of the Court of such jurisdiction Claims, as was entertained and sanctioned in the case of The United States v. The Great Falls 112 U. S. Manufacturing Company, 645.”

In United States v. an action in the Palmer, U. S. Court to're- patentee Claims against cover contract for the use of the in- implied patented *16 it that the was the of cer- vention, appeared petitioner patentee tain which were improvements infantry equipments adopted of a of the in- War as Secretary equipment part of soldiers the United States, and, fantry juris- sustaining diction of the Court of it was said Claims, (p. 269):

“No tort or claimed to have been was committed committed. The with used the claimant’s his improvements consent; with- on and, .the his of certainly, expectation part a for the license. This reasonable receiving compensation but a not a claim for an claim infringement, compensation law, distinct in for an authorized use—two as things totally TERM, 1902. Opinion of the Court. is from distinct on lands use and under a as trespass occupation lease.”

In v. Berdan Fire-Arms U. S. United States Company, the Court of Claims against judgment of an States on contract use improvement implied was there was no firearms sustained, although, breechloading the use of such act directing improvement. Congress expressly In the it was said (p. 567): “ not are so While as specific the findings emphatic the terms of any contract, assent yet we think sufficient. There was no denial of are certainly they no on ; to the invention assertion patentee’s rights part no issued; patent wrongfully goverhment claim of a the invention to use regardless patent; right and no use, of all claims of the patentee, spite disregard least, at remonstrance. protest Negatively, findings used the invention with the consent are clear. The government did and it while so owner, not, permission express of such owner.” it the title repudiate using from several it was after then, And findings, quoting added 569): (p. is this: That the officersof the of these findings The import with the duty superintending charged specially government, Berdan as the inventor muskets, manufacture of regarded that the difference between the ; spiral of this extractor-ejector difference; that, therefore, immaterial was an and fiat spring musket Berdan’s invention ; were Springfield they using well as that of his as- with his it permission used thej used it with the understand and that they the petitioner, signee, for such use as for other would pay that the government ing take, this, which they although might private property have authority agree did believe themselves the price.” when is that from these cases rule deducible govern- it does not claim as its owm

ment appropriates that it contract will the value under an pay so implied it does It is contended so appropriates. earnestly of the property had. appropriate argument *17 ©NITED

Opinion of the Court. This be but conceded, there is a may vast property. difference and a When governmental proprietary between right.. owns or claims to own it deals with it government property, it, of its as owner and virtue and if an officer ownership, takes under the claim government possession property to fact it (when does belongs government not) may well be a tortious act on considered his for there can be part, no of an intent on the of the part implication government for that which it claims to own. pay different from this Yery of the proprietary right respect property which it owns isits governmental right prop- appropriate of individuals. All erty is held private property subject necessitiesof The of eminent domain under- government. right lies all such The také rights property. government may or real whenever personal property ór the exi- necessities of the occasion gencies demand. So the contention that the had a paramount this right appropriate be but conceded, the Constitution in may the Fifth Amendment that when this guarantees governmental right appropria- tion—this asserted paramount exercised it be at- shall —is tended by compensation. take real estate for a government may post office, court a fortification or a house, or. in time of war it highway; may take merchant vessels and make them of its naval force. part But can this be done without an for the value obligation pay of that which is so ? taken.and Whenever appropriated exercise of its it-takes governmental the owner- rights property, of'which it concedes to be in an ship individual, impliedly therefor. Such pay is the promises the cases cited import well as others. many The action which was in the overflow taken, resulting to these is not to injury plaintiffs, as the regarded personal act officersbut as the act of the That which government. the officers did is admitted the answer to have been done by authority there government, although have been’ act of specific Congress directing, appropriation if that which plaintiffs, the officers yet under its did, acting direction, resulted ap clxxxviii —30 von. TERM,

Opinion of the Court. *18 as the to be treated act of the government. propriation it U. S. South v. 93 Wisconsin v. 4, 13; Duluth, Carolina Georgia, ; 96 United States Great Falls U. 379 Com Manufacturing S. pany, supra. terms for successive for many

Congress appropriated money the of the Savannah River. 21 Stat. 480; 470, improvement 331; 200; 22 140 24; 321, 413; Stat. 23 Stat. Stat. 25 Stat. 194, 26 28 101; Stat. Stat. Stat. 351. These 442; 27 appropria and harbor of tions in the river' and were bills, were generally so much for the but some deserve river, money improving spe cial in 21 Stat. it was that “one Thus, 470, mention. provided thousand to of dollars be for payment damages applied 'land for channel Savannah.” In taken the opposite widening the of War was directed to 331, Stat. cause a Secretary “ to made of River from cross be the Savannah tides survey to with a view above Savannah the bar, obtaining twenty- of water in the channel.” The in 25 feet eight appropriation “ river, Stat. 413 for the was completing improvement the and the extended con present project commencing project tained in for 30,1887.” the of June report year ending Engineer And same matters 431, the the referred to statute, by among “ the of War for examination was whether survey Secretary the to the Yernezobie Freshet Bank in 1887 was caused damage at the work cross and whether the maintenance of said tides, by of the work bank is essential the at cross tides, success what will the cost of so said bank as to confine constructing bed.” said river to its water of report engineers for the referred to the section 1887, above shows year quoted, the work which was of done being by part was in of the construction walls, training dams, wing of reduced,. which width waterway Further, same 25 Stat. an act was year, en- passed, “ titled An act facilitate of works prosecution projected rivers harbors,” authorized improvement of of War to commence Secretary the ac- proceedings the. of condemnation of land, or quirement any ma- right way, needed enable him or maintain, terial operate prosecute for the works of rivers for which improvement harbors pro- v.

Opinion of the Court. however, Provided, . . . law; made has been vision That,when material land, owner such way, Secre- which the for the same, shall fix a price the same at reasonable, he shall be War, may purchase tary further delay.” without such price answer, admission effect

Thus, beyond the action which attends knowledge beyond presumption only bodies, affirmatively appears all legislative year year was making appropriations Congress notice of had but also that river, express improvement works to the banks along very plantation; damage nar- done had in view which were being engineers would be dam- width of that land ; the waterway *19 rowing the result of and 'that it authorized the those works, aged to of War to take in domain ac- eminent Secretary proceedings land, the material which right might way nec: quire or works river maintaining, essary operating prosecuting if the could be to or, price purchase improvement, agreed upon, the same. within the the case the decision directly

This brings scope Falls in v. supra, United States Great Manufacturing Company, was no direction to take the there where, as here, particular do that which resulted in a but a direction taking, property, the owner waive the to insist and it was held that might and sue on condemnation to recover value. proceedings It not action to does took appear plaintiffs any stop the work done or it. Their by government, protested against amount to inaction and silence assent acquiescence—an case, In by respect appropriation government. to that that a who, is not dissimilar landowner knowing his is in railroad has entered land and engaged company road without with statute its constructing having complied in from thereafter main condemnation, respect estopped either but is limited to a recovery taining trespass ejectment, v. Roberts Northern Railroad, compensation. Pacific S. Northern S. 1, 11; U. Railroad 171 U. Smith, Pacific cited and cases opinion. case, The amounts this: therefore, plaintiffs alleged TERM,

n Opinion of the Court. that were the owners certain they real estate on bordering the Savannah River; in the exercise of government, of eminent powers domain and regulation of,commerce, officers and through agents thereto duly acts of empowered by Congress, dams, placed walls and other training obstructions in the river in such manner as to hinder its natural flow and to raise its waters so toas overflow the land of and over- plaintiffs, flow it to such an extent as to cause a total destruction of its value. The government, denying ownership plain- tiffs, admitted that the work which was done their officers by was done agents but denied authority Congress, those works had produced alleged injury destruction. "We are of that under these the issues pleadings raised the Circuit had Court thereby jurisdiction inquire whether the acts done the officers of the United States un- der the direction of had resulted such an Congress overflow land as to render it injury plaintiff’s val- absolutely and if ueless, was, thereby of. contemplation law, taken and render appropriated government, judg- it for ment the value of the so taken and' against ap- propriated. there a There was no

"Was condem- taking? proceeding instituted no nation terms to government, attempt take and the title. There was no appropriate adjudication the fee had from the landowner to the passed government, if either of these be an element in essential of lands, within of the Fifth there Amendment, *20 scope taking. Some as to the made of the It question meaning findings. the fifth as that a amended, from finding, appears large portion of the land flooded was in its natural condition between high- water mark and low and water was mark, overflow subject as the water from one other; passed this nat stage ural overflow was and in embankment, lieu by stopped thereof, means of flood the land was flooded and gates, From, drained at the will of the owner. this is contended that the result of the level of the river only raising works was to take of drain government away possibility But nine and ten show that, both findings and age. by seepage v. STATES LYNAH.

Opinion of the Court. embankment, an actual through flowing percolation above the the water obstruction, has been the plantation about that it is inches, raised the plantation eighteen impos overflow of as a water, and, sible remove consequence, unfit for the an irreclaimable has become bog, known and de culture or other of rice agriculture, any purpose from these that what of all value. It is clear findings prived been flooded, was a valuable rice has permanently plantation into an irreclaimable value, wholly destroyed turned work which and this as the result bog; necessary to a Does this amount ? has undertaken. government 13 Wall. 166, The case Green Bay Company, Pumpelly on the And answers this affirmative. argument question was conceded learned counsel (and in view of the that so far as conceded findings) respects properly there no substantial mere matter overflow and was injury In that distinction between the two cases. case Green Bay as authorized constructed a dam across statute, Company, means of the land of over Fox River, by Pumpelly to him. There, here, flowed and rendered useless practically no had been taken to condemn land. proceedings formally to this it was said (p. 177): Referring “ of the defendant is that there is talcing argument of the constitutional the land Avithin provision, meaning result of such use of navi- is a damage consequential had a to for the stream as the improve- gable ment of its navigation. if in result, be a curious and It Avould unsatisfactory Aery understood law, constitutional always construing provision been to have security rights adopted protection Avhich has re individual as government, against statesmen, and commenta the commendation of ceived jurists, common law on that tors as just principles placing .the change ordinary legislation subject beyond power that if the refrains it shall be held them, control to the uses of the of real the absolute conversion can inflict it can its value entiiely, irreparable destroy it to can,- effect, extent, subject any injury permanent *21 TERM, 1902. 470 Opinion Court. total because, destruction without making any compensation, of that it is not word, narrowest sense taken for the public would, use. vert the Such a construction constitutional per pro vision into a restriction of the as those citizen, rights stood at the common instead of the law, rights government, make it an for invasion of under the authority private right which had no warrant the laws or pretext public good, ancestors.” practices our

Reference was also made to the case of Sinnickson v. John J. son, 129, Harr. N. to which it was said: (17 Law) respect “ here The case is valuable as that mainly showing overflowing ’ ‘ land water on it was considered as it by backing taking within on it principle.” 179, meaning Again, page was said: But are numerous authorities to there sustain the doctrine that a serious to the common and neces interruption be, use of Mr. sary property may language Angelí, his Avorkon Water Courses, equivalent it, taking that under the constitutional it is not provisions necessary the land taken.” should And in a absolutely foot-note the were cited: authorities on Water following Angell Courses, ; sec. 465a New Hooker v. Haven & 14 Con Northampton Co., Rowe v. Granite necticut, 146; 21 Pick. Bridge Corporation, v. The 344; Canal 17 Wend. Lackland Appraisers People, 604; Missouri v. North Railroad 31Co., Missouri, 180; Stevens v. Middlesex Canal, Proprietors Massachusetts, 466. It clear from these is authorities where the government the construction a dam or other works so floods to an lands individual as to belonging substantially destroy a, their there is value within the the Fifth scope While the Amendment. does not directly proceed title, takes yet appropriate value; use away is done it when that is of little in whom the consequence fee be vested. Of course, results from this may the pro- must be as actual ceeding regarded appropriation land, possession, including possession and when the amount awarded fee; compensation paid title, with whatever fee, attach rights thereto— in this case those at least which to a belong riparian proprie- 471'

Opinion of the Court. henceforth, and it becomes the full to the government pass tor— owner. third it is that what was to the contended question, Passing was in done the done the naviga- by improving that the it Constitution river, of a given by bility navigable if in and that full control over such doing any improvements, or results to others work therefor injury riparian proprietors for the which is it is an purely consequential, injury can if one is not liable. But aiyy proposition court.it is that, decisions of this as settled considered by. of its duties may' discharge although do so liable it cannot without being property, appropriate the Fifth Amendment cast just by paying obligation compensation. v.

In Monongahela Navigation Company it 148 U. S. was said 312, 336, : “ like the other the Con- But powers granted Congress by commerce is to all the stitution, power regulate subject such them is instrument, limitations imposed among Fifth have heretofore that of the Amendment we quoted. has control over the of com- regulation Congress supreme control, if, in but that deems merce, exercising supreme private then it must to take sub- necessary property, proceed this Fifth the limitations Amendment, imposed let on compensation.” can take payment just only an act for In that case had passed condemning Congress “ dam of the known as lock and what was Mononga upper “ that hela Company,” provided estimating Navigation States, the franchise of said the United to be sum paid by not be considered or esti to collect tolls should corporation that this but we held mated,” beyond power proviso of the that it could not property appropriate Congress; value, its full and that a without paying navigation company in the franchise to take tolls. So of that value consisted part U. Wheeler, S. 141, recent case Scranton words: in these we repeated proposition must be made secured to the Undoubtedly compensation to be a is done is regarded when that which taking owner TERM, Opinion of the Court. use of the within private public meaning property and of Constitution; Fifth course in its' Amendment exercise of the commerce, regulate power Congress override must be made just compensation provision is taken for when use.” private public It held, is true that á court majority case, land the destruction of access to on a river abutting navigable on construction a Congress pier submerged was not. lands front of the upland, taking private prop- but an instance erty uses, only consequential injury But owner. of com- riparian was conceded. case of There have been pensation *23 in a distinction has cases been drawn the which between many of for uses and a taking public consequential injury to such reason of some work. In the one public property, by a a to class the law contract, the promise implies pay prop- if the the was taken, which, by erty taking general govern- in of will action the ment, an Court Claims; while uphold is act the other class there a tortious over simply doing injury, which the of Claims has no Court Thus, Trans jurisdiction. v. 99 S. 635, U. the portation Chicago, Company duly city, authorized a tunnel statute, constructed of the line by along under La Salle a.nd the River. The street Chicago company claimed that it of its was access deprived premises by the construction. This was not during deprivation permanent, but continued the time the only during necessary complete and it was held that there was no tunnel, taking property, but and that a an In only temporary injury thereto. injury, the after course of the case, opinion, referring Pumpelly v. Boston, Concord & Eaton Montreal supra, Railroad 51 we said 504, N. H. (p. 642): Company, “ In it was held that those cases, permanent of flooding pri- vate as a In regarded ‘taking.’ those property may cases there was of real invasion estate physical owner, private a his ouster' But in practical possession. the present case there was no such invasion. No was entry made upon lot. All that plaintiff’s was done towas render for a time its use more inconvenient.” v.

UNITED STATES

Opinion of the Court. 125 U. S. while Taylor, 161, and re- Chicago recognizing v. the rule there laid decided down, was affirming a was new rule established the Illinois consti- ground by 1870, tution of shall provided “private property not be taken use without damaged just compensa- tion.” Montana v. St. Louis &c. Company Mining Company, held mere 160, U. S. that a order for inspection mining was a all thereof, because was done taking was a and limited use. exclusive temporary interruption 269, v. United 166 U. S. decided States, Gibson where that, the construction of a States in United dyke improve ment of the Ohio owner, River a was plaintiff, riparian season greater through part gardening deprived her the use of from and landing shipment products her her farm, value of farm reduced whereby supplies there was no acre, $150 but per $200 property, See also Marchant v. consequential only injury. Pennsylva Railroad, nia 153 U. S. 380; U. S. Meyer Richmond, 172 In this connection Mills v. 46 Fed. Rep. decided Court District for the Southern District of notice reason of its Georgia, worthy similarity many marked in an mat- distinction essential respects clearly ter. It was action for on rice injuries plantation banks of the Savannah River works done resulting United States river, of that improving navigability ap- *24 made parently very improvement case. The condition the claimant’s rice

present plantation was that of these prior the'improvement substantially plain- were tiffs’ the lands drained gates property, opening when the river was at low water The was mark. complaint that the of what was called the erection by from the end of dam,” “cross tides Hutchinson’s running upper Island to the lower end of cut off all the flow Island, Argyle of water from the stream front and back rivers, connecting both the low levels the front river, raised high water lands and not the facilities for these only destroyed draining it .river, into the front but rendered raise the levees necessary rice at around the fields fields, flooding prevent high TERM, 1902. Bbown, concurring.

Justice unfitted This, water. was the lands for rice culture alleged, and made that new into back river drainage be necessary where the water levels were suitable. provided Obviously, there no lands, was but an taking plaintiff’s simply injury be which could remedied at an as expense $10,000, alleged was and the action one to recover the amount of this conse- The court that it held could not be injury. rightfully quential n Here no sustained. there is no finding, suggestion, by any could be of course, averted. We may, expense flooding no know that there is limit to that which theoretically engi- We skill know that vast tracts may neering have accomplish. been of the world reclaimed levees different parts believe that this works, and so we other máy. flooding may all these lands some be re- submerged day prevented, matter, But and for the claimed. purposes practical must under the the lands in we case, findings con- regard their value as irreclaimable de- wholly finally troversy stroyed. the settled law of this we hold Therefore, court, following (cid:127)of the has been a lands for uses there taking is under contract to make implied just therefor.

compensation

The judgment

Affirmed. BeowN concurring. Jin. Justice court both with to its respect

I concur the case, but I am unable and the merits to as jurisdiction which our is rested. jurisdiction While sent ground the lands in constitutes controversy T think overflowing of the Fifth Amendment to the within the meaning a taking I see no reason that there an im Constitution, holding them within the of contract meaning pay plied act.; me an case of appears ordinary Tucker no to’real element whatever con estate, containing trespass there can be waiver of the tort. In such case Jones tract. 285; Hatch, v. 46 H. 5 Pick. Smith N. Hoar, *25 v. 475 Brown, concurring. Justice be irrespective our may supported, I think jurisdiction But under that clause tort, or of contract of the question of Claims with the Court jurisdiction which vests act Tucker United the Constitution founded of “all claims upon law of States or Congress.” any States, in Dooley remark United had occasionto

As we of the Tucker act evidently the first section 222-224, U. S. founded of cases: those distinct (1) classes contemplates four. law of with excep .Congress, or any upon Constitution of an a founded ; upon cases cases regulation tion of (2) pension im or of contract, cases express Executive Department; (3) actions damages, liquidated with plied, (4) government; “ not in tort.' words in or cases sounding unliquidated, ” the fourth referable tort in terms are only sounding of cases. class he claims view, founded Constitution may

In my in con- whether Claims, Court of sounding prosecuted take tort; wherever the United States tract or may pro- in eminent domain for the condemnation of lands for ceedings the owner of lands seek such relief the Court use, may if his taken without of Claims lands be such proceedings, or whether such be tortious virtue of contract, some That or to that effect. under con- case implied, express is one of is made sideration that class act of clear which enacts Stat. 24, 1888, April Secretary of "War cause to be in the name instituted, may proceedings coui’t of such any having jurisdiction pro- for the condemnation of land, ceedings, acquirement by any or material needed to him enable to maintain, way, for the or Avorks of rivers and improvement operate prosecute Avhich harbors for has been made kvw such ; provision pro- to be in accordance with the laAvs prosecuted ceedings relating suits condemnation States Avherein instituted.” proceedings may I concur of the court that “the fully govern- take real for a office, ment estate court may house, for- post Avar or in time of take merchant tification highAvay, naval and made them of its but vessels this cannot force,” part TERM, 4^6 *26 Brown, concurring. Justice s< be done an to for the value without of that obligation pay which is so taken and I of am also appropriated.” that opinion whenever in exercise of its it takes governmental rights of it concedes in property, the to. be an indi ownership it is bound to vidual, but I do therefor, not think pay that there is between cases where the any'distinction government imph'edly to with the assent of the promises pay by taking ty prope; owner, and those where takes and property forcibly against the will of the owner. It does not seem to hold reasonable where invasion of that, the owner’s is the for his greater, of its value remedy should be less, recovery and that he should be to resort to the tedious and compelled method of of unsatisfactory bounty appealing Congress for relief. for instance, time of war under

Suppose, threat of in- it seizes vasion vessels without the consent of upon the owner his There is against protest. the same moral obli- certainly for them ifas had been with gation pay they appropriated and I reason his see no an for consent, action their value why not be maintained I may Yet, Court Claims. as understand the the court indi- case, holds if not that no such action would lie rectly, unless directly, taken with the were consent of the owner and under contract The it. implied pay consequences recog- such,distinctions seem to so that short serious nizing nothing me of clear the statute will it. language justify hinted None suc-h even at in United States v. 13 Russell, one of the 623, Wall. earliest wherein the owner of three cases, under steamers seized “imperative military liecessity” sought recover for their services. These were compensation steamers into the service and impressed public employed transports for a certain carrying time, government freight length when returned to were the owner. He was thejr held entitled “ court recover, the holding unforeseen extraordinary arise, however, occasons all doubt, cases extreme beyond in time of war cr of immediate and necessity, impending public in which danger, be into the private property may impressed or be seized service, public appropriated u. LYNAH. Brown, concurring.

Justice even without the consent of or destroyed use, may followed of Mitchell v. case Harmony, owner.” that of Filor United distinguished How. 9 Wall. to 131 based U. S. are the cases While prior upon reported which limited act, Court Claims jurisdiction the original founded law of to claims upon any Congress, of that court or an Executive Department, or upon any regulation with the contract, express implied, any under therefore States,” strictly are pertinent Co.,112 act, of the Great Falls Manufacturing the Tucker *27 in is corrobora almost S. 645, exactly point, strongly U. for land taken was a claim here taken. This tive the position in the construction an Falls of- the Potomac at the Great ' to were water Proceedings for Washington. bringing aqueduct which were condemnation, discontinued, for taken Maryland n took land. Whether and the possession government with was taken or without the consent of the such possession had not there been owner does although appear, negotiations claimant was held be entitled to the The between parties. the the recover ground appropriation money upon the of- the to an for construction improvements equivalent to take this direction by Congress particular property express and that there scheme, contemplated was. objects claimant reason waive why sound might any right and elect to have to an action he injunction, might regard its under emi as a government sovereign right of and therefore demand case domain, nent compensation. the owner consented to had was not upon ground put the taking. S. 341, 101 U. the action was-

In case, brought Langford’s build- of- certain lands and recover for the use and occupation for title, asserted which were seized to which the claimant ings under claim that use were they public that if the takes It was admitted prop- property. its to be for use, private acknowledging ownership erty public owner there arises individual, implied obligation pay or matter when but that was a different value; govern- term, October 478 Bkown, concurring. Justice ment claimed the as its own and no su- property recognized title. This was also the case Hill v. perior United States, 149 S. 593, U. where the erected lighthouse upon land which it claimed as its own. submerged The case was held to be that of governed by Langford.

None of the more recent cases under the Tucker act conflicts with the here taken: That position wherever the United States to condemn under its proceed sovereign right eminent domain, owner maintain a majr petition Court Claims recover' its in case no such value, proceed are taken. That 24 act, Stat. first introduced ings 505, among claims all such as were founded cognizable Con stitution of the United and also after the introduced, “ words the words. in damages, liquidated unliquidated,” cases not in tort.” it was statute, sounding Construing held in the Jones S. it did case, U. not confer 1, juris diction in the issue and of a equity compel delivery patent land; and S. case, U. Schillinger’s of a the owner had been the United patent infringed by could States not recover for such damages infringement Court of if Claims, it would be otherwise though had been with the consent of the and in appropriated patentee view of therefor. there was Schil Although compensation of a case an linger’s appropriation patentee *28 the case was more in its invention, his es nothing monopoly sence than the of a and so the action patent, infringement was. in tort. one for While it is really damages sounding possible an bo able to condemn the individual might patentee’s right by in domain, eminent would be at least remedy proceedings when the doubtful, sought merely government' appropriate for its own so much it as was use. It would be necessary an exercise of the of eminent domain, unprecedented right claim under could be held to be a arising Constitu scarcely case was not tion. The that.it was ground such put upon a but that it was an action recover case, merety damages “ It Said the court: was an infringement. plainly solely fpr action and one in tort.” The infringement sounding question whether was claim under it the Constitution arising was v. J., J.,

White, J., Harlan, Fuller, dissenting. C. of Mr: Justice Har opinion considered, dissenting except “ cannot be evaded : The constitutional obligation who said lan, was without ex original appropriation by showing nor by simply interposing direction government, press claimant or of the of the title denial Tf there were have been any appropriated.” rights alleged of the to condemn of the doubt that case government power in in domain, eminent by proceedings patentee the land in this where case, none there is such certainly no of consent by with taken pretence owner. hold the words think it is too far to I going* ” be referred back to must “not act, tort,

Tucker sounding the Con- founded class of those cases, upon the first namely, for dam- limited to actions and that should be stitution,” they the consent and, hence, or unliquidated, ages, liquidated if I admit that, no in this cuts case. freely prop- owner figure with- or seized taken officers were erty ratification, law, subsequent out authority there could be use, or occupying property possession nor other since neither any prin- no recovery, But in the unauthorized acts bound agents. cipal for an contract- to raise ordinary implied pay endeavoring'to of the court miscon- real estate I think the opinion trespass true our source of ceives jurisdiction. Shieas and Me. Justice Peckham concurred

Me. Justice far as holds that the court had above so juris- opinion therein, on the stated well as diction ground the court. stated ground of this took the decision Me. Justice MoKenNA part .case.

Me. whom concur Me. Chief Justice Justice White, with FulleR and Me. Justice Hablan, dissenting. has because as a now holds that

The court jurisdiction, *29 TERM, 1902. White, J., Fullee, J., Harlan, J., dissenting. C. is-, from the of fact it conclusion held that legal findings has been taken use appellee by States, below is affirmed on judgment merits for the same reason. As, my opinion, findings fact do not the conclusion that the has been support taken the United I States, dissent both on the subject and on the merits. jurisdiction of fact are most findings respects sufficiently repro-

duced in the of the court, and need not here be set out It full. results from the that the land is situated findings on the Savannah it is River; that between and low water high mark, to be but overflowed, is naturally subject in some measure from overflow an protected embankment, and that this embankment sluices or through were waterways means of which water was let in on the land for placed, in the cultivation of and was irrigation rice, drawn off vvhen the land was to be drained in order to required on the carry same culture. This done sluices, gates were to allow the water to flow opened through waterways to the inner side of the embankment and thus flood the land when do it was so, at requisite by opening gates low tide to allow the water to' flow off when it was required to drain the land. As the exact situation the waterways the embankment is I the state- through important, reproduce ment on contained in. subject findings: this embankment or trunks were con- Through waterways flood therein. The outer structed, with gates opening trunk was mout a or foot a little less above the mean low water mark of in'' which the tide ebbs and river, flows. When it is desired flow the lands the flood are and the gates opened water comes in. When it is off desired to draw this water and to effect the the flood are lands, drainage gates opened at low water and the water It essential that the escapes. is. outlets of the trunks should be above the waterways mean low watermark.”

It now decided that there has been a the. prop- the United. because it is erty by find- thought establish the obstructions ings placed' by *30 v. LYNAH. J., J., dissenting. J., Hablan, C. Fulleb,

White, and down the than stream, lower river at a bed point in the of the the navigation purpose improving is the plantation, it to flow over the water as to cause raised have so river, and flood the thus same, at the plantation the embankment “: Find- the court Oh this says subject its value. destroying and both that, percolation ten show by seepage nine and ings an actual the planta- embankment, flowing the through raised the water has been the obstruction, above the tion Whilst dis- etc. inches,” about eighteen plantation the em- show through the percolation findings putable the con- in them supporting I can discover nothing bankment in the the government by that the obstructions placed clusion the is situated where plantation river below the bed of the point the embankment over in the river -the water have caused go to me the land. On flood contrary, at plantation conclusion that the necessitate that the it seems findings has suffered arises which the property damage permanent into the fact drainage plantation solely And this because the has been rendered the river impossible. ipean has resulted in done work raising by so as to inches, about twelve to fifteen cause the water low tide low tide to be above the at mean in the river point discharge thus them no rendering drainage through waterways, There be wide difference legal arising longer possible. an on interference with the from damage consequent drainage this work done is, situated, govern- caused ment navigation, improvement damage actual of such from such flooding property resulting To determine whether show an actual flow- work. findings IX and X a mere YIII, drainage, injury findings ing, Let us see whether to be considered. need they support give claim actual overflow the embank- flooding YIII ment at plantation. Finding says: In of this water YIII. thus navigation improving navigable built and maintained and' has is now build- the United States in and the Savannah River, anld.maintaining ing ifcross obstructions, walls and.other dams, certain thereof, training bed in and flow of river the natural said nat- obstructing along Yol. olxxxviii — 31 TERM, 1902. J., J.,

White, J., dissenting. Harlan, C. Puller, and so the level said river above said ob- ural bed, raising its waters to be back and to flow structions, causing kept its natural in its be elevated above natural back, height bed.” there is this in-

Certainly nothing finding supporting ference work has caused the river to over- flow the embankment. IX : plantation Finding says “ This rice Yernezobre is above these obstructions. plantation The direct effect thereof is to raise the level of the Savannah River at and to of mean low plantation, keep point *31 water above its so that the natural outlet of the trunks point, of in above the bank of said waterways spoken plantation, instead of above of low water this is now mark, being point below this point.”

Here, then, is the that effect statement the resulting the work was to the raise mean low water government simply mark as so as cause it to to cover the previously existing, which the were—as declared waterways by previous finding— a little less than a foot low water above the former mark. The continues: finding “ Another direct result was that seepage percolation the water rose the until the water level in the plantation land to rose the of the increased water level height gradually in the and the addition of river, water the superinduced was about inches reason of plantation eighteen thereby. By this it and has difficult, became now become gradually impos- to let off the water on this or sible, to drain the plantation, same, so that these acres dedicated the of rice culture have become unfit cultivation, be cul- boggy, impossible tivated in rice.”

This but the mean low declares because stage been work water had raised the so toas cause it to be about inches above the mouth of the eight waterways and to rest the about embankment against eighteen inches, took and the was percolation place drainage destroyed, the result the loss to render the drainage'being plantation suitable for the cultivation of bog rice. It is longer in the hitherto referred to in- submitted even nothing findings <>.LYNAH. Hablan, J., J., Fullee, J., dissenting. White, C. work the effect of the caused

tímate and flood to flow over embankment water planta- is the result of the very tion. On the contrary, opposite findings. It consider the tenth reads as

Let me next follows: finding. Savannah of the level River these “By raising has water thereof been obstructions the backed dams and up and has on the river been caused the embankment against and in this above flow back obstruction, plantation said invaded directly raising and has actually plantation, which it is im- inches, about said water eighteen plantation to remove from said plantation.” possible relate here-can seep- described only Now, flowing referred to in the previous finding. and percolation age to the the obstructions” relate not embankment words “above in the but the obstructions bod of the put on plantation, below the where the point plantation river what the therefore, means is situated; and, that. finding the water is caused flow back this against* above obstruction embankment, described over previous finding. besides that it shows was impossibility And finding the result the water was of rain percolated removing words, other injury drainage fall—in —which *32 the cause of the damage. the all of of land the Thus eliminating question flooding by the the embankment, of for decision is overflow question the or a a thereof is situated on the : When portion plantation this below water river, mark, a because of high bank navigable is for its situation profitable operation upon such dependent of does the tide, the river at mean low United States into drainage fact the the by simple property improving appropriate river raises the mean low it tide slightly the navigation it to where was wont theretofore be, the above by height of which the below water .high reason drainage land state, to me to is to It seems mark is question destroyed. The owner of the land situated be- it the negative. answer in. mark easement servitude water acquired low high of construction an embankment the of the river along bed by TERM, 1902. 484 White, J., J., J., dissenting. C. Fuller, Harlan, of his at the river below land water, the which high by margin that the. of forever exact level the within he could water the of river could be banks the never natural without his changed and thus the United States of control its consent, deprive over of rivers conferred the the navigable Consti improvement by If the loss of tution. into the river at damage, by drainage, tide of so low land situated was caused mean the lawful ex by the United States to ercise by power improve navigation was damnum redress must be absque injuria, at sought the and cannot hands be afforded Congress a judicially by so that a constitutes a ruling damage resulting the taking the States and creates an United by contract implied the value of the Such a doctrine is pay property. directly— with as I it—in conflict the decisions of see this court in Gib son v. United U. S. Scranton v. States, Wheeler, 141. The U. S. far-reaching consequence doctrine be cannot overestimated. now announced But under the even hypothesis work the land to be overflowed caused water' raising above not I do conceive that there embankment, would be a tak in that for a case, even would be ing, property, remedy afforded the land easily permanent injury any by raising the embankment. The would thus quantum damages but the mere be value cost property, increasing of the embankment so as the water prevent height fact a over it. The then that is now held to flowing taking is therefore the United States exist, compelled pay the entire submits United value of property, of a exercise conferred power Constitution, controversy rule no individual would be to in subjected Nor is this between answered private parties. sugges tion there is a because the paying the sum of raise the States of level of money necessary so as to the overflow would not embankment prevent compen as the still owner, would sate worthless because To 'of the so want but to admit that drainage. suggest *33 of results from the damage complained drain inability for the reasons which, the land, out does already pointed not constitute my opinion taking. LTNÁH. J., J., Fullee, J., White, Hablan, dissenting. indicated

Indeed, hitherto the assumed reasoning of the embankment is to the overflow apposite damage equally For loss injury drainage remedy drainage. if afforded would be by, readily possible, draining planta- into the or tion than resort river, elsewhere pumping to lift out the water appliances necessary accumulating The cost rainfall would percolation. doing.these things then That a resort to be measure of these damages. simple is as to this because unavailing particular expedients property of its situated below water mark not, submit, does being high that the show has taken the property but so use, establishes is situated that simply is a loss from the fact that subjected necessarily arising is below water mark and therefore high absolutely dependent for its on the exact owner to drainage right mean low tide of the river should be forever As unchanged. to so exact does not exist, the loss of does drainage constitute appropriation United is but the result States, and of the natural situation the land. If exist is alone Congress equities capable providing them.

I am authorized to that the Chief say Me. Jus- Justice.and Hablan tice concur this dissent. No. 59. Error to the Circuit States v. Williams.

Court .of United States for the District of South Carolina. This case is in all substantial similar the one respects just and for the decided, reasons therein the given judgment

Affirmed. For the reasons stated their dissenting opinion prior Chief case, Justice, Me. Justice Hablan and Me. Justice' White dissent also in this case.

Me. Justice McKenna took in the decision of this part case.