188 U.S. 445
UNITED STATES, Plff. in Err.,
ARTHUR LYNAH et al.
Argued October 30, 31, 1902
Ordered for reargument December 22, 1902.
Reargued January 9, 1903.
Decided February 23, 1903.
[188 U.S. 445, 446] On February 4, 1897, defendants in error commenced their action in the circuit court of the United States for the district of South Carolina to recover of the United States the sum of $10,000 as compensation for certain real estate (being a part of a plantation known as Verzenobre) taken and appropriated by the defendant.
The petition alleged in the 1st paragraph the citizenship and residence of the petitioners; in the 2d, that they had a claim against the United States under an implied contract for compensation for the value of property taken by the United States for public use; 3d, that they were the owners as tenants in common of the plantation; and in the 4th and 7th paragraphs:
The remaining paragraphs set forth the effect of the placing by the government of the dams, restraining walls, and other obstructions in the river, together with the value of the property appropriated by the overflow. The answer of the government averred: [188 U.S. 445, 448] 'First. That this defendant has no knowledge or information sufficient to form a belief as to the truth of the allegations contained in the 1st and 3d paragraphs of the said petition and complaint.
For a further defense the statute of limitations was pleaded. The case came on for trial before the court without a jury, which made findings of fact, and from them deduced conclusions of law and entered a judgment against the defendant for the sum of $10,000. The findings were to the effect that the plaintiffs were the owners of the plantation, deriving title by proper mesne conveyances from 'a grant by the lord's proprietors of South Carolina,' made in 1736. Other findings pertinent to the questions which must be considered in deciding this case were as follows:
... * *
Upon these findings of fact the important conclusions of law were thus stated:
The case involving the application of the Constitution of the United States was brought by writ of error directly to this court.
Mr. Robert A. Howard and Solicitor General Richards for United states.
Mr. Justice Brewer delivered the opinion of the court:
There are three principal questions in this case? First, Did the circuit court have jurisdiction? second, Was there a taking of the land within the meaning of the 5th Amendment? and, third, If there was a taking, was the government subject to the obligation of making compensation therefor?
Did the circuit court have jurisdiction? It may be premised that this question was not raised in the circuit court, nor was it presented to this court on the first argument, but only upon the reargument. This omission on the part of the learned counsel for the government is certainly suggestive. Nevertheless, as the question, now for the first time presented, is one of jurisdiction, it must be considered and determined. To sustain the challenge of jurisdiction it is insisted by the government that there was no implied contract, but simply tortious acts on the part of its officers; and Hill v. United States, 149 U.S. 593 , 37 L. ed. 862, 13 Sup. Ct. Rep. 1011, and Schillinger v. United States, 155 U.S. 163 , 39 L. ed. 108, 15 Sup. Ct. Rep. 85, are relied upon. Let us see what those cases were and what they decided. In the former the plaintiff sued to recover from the United States for the use and occupation of land for a lighthouse. The land upon which the lighthouse was built was submerged land in Chesa- [188 U.S. 445, 459] peake bay. The government pleaded that it had a paramount right to the use of the land, and that plea was demurred to. It was held that the circuit court had no jurisdiction, and in the opinion delivered by Mr. Justice Gray it was said, after referring to several cases (pp. 598, 599, L. ed. p. 864, Sup. Ct. Rep. p. 1013):
In the other case it appeared that the architect of the capitol contracted with G. W. Cook for the laying of pavement in the [188 U.S. 445, 460] capitol grounds. The contractor in laying the pavement infringed, as petitioners claimed, upon rights granted to them by patent. Thereafter this suit was brought, not against the party guilty of the alleged infringement, but against the United States, which had accepted the pavement in the construction of which, as petitioners claimed, the contractor had infringed upon their rights. In the opinion it was said (p. 170, L. ed. p. 111, Sup. Ct. Rep. p. 87):
How different is the case at bar! The government did not deny the title of the plaintiffs. It averred in the answer simply that it had 'no knowledge or information sufficient to form a belief,' but did not couple such averment with any denial, nor did it pretend that it owned the property or had a paramount proprietary right to its possession. It did not put in issue the question of title, but rested upon a denial that the acts its offi- [188 U.S. 445, 461] cers had done by its direction had overflowed the land and wrought the injury as alleged, or that such overflow and injury created an implied contract, and also upon the bar of the statute of limitations. Nowhere in the record did it set up any title to the property antagonistic to that claimed by the plaintiffs. It simply denied responsibility for what it had caused to be done, and pleaded that if it had ever been liable, the statute of limitations had worked a bar. No officer of the government, as in the Langford Case, claimed that the property found by the court to be the property of the plaintiffs belonged to the government. While there was no formal admission of record that the land belonged to the plaintiffs, the case was tried alone upon the theory that the government could not be held responsible for what it had done. It did not repudiate the actions of its officers and agents, but on the contrary in terms admitted that they acted by authority of Congress, and that all that they did was lawfully done. So that if the overflow and destruction of this property was, as we shall presently inquire, a taking and appropriation within the scope of the 5th Amendment to the Constitution, the jurisdictional question now presented is whether such appropriation, directed by Congress, created an implied contract on the part of the government to pay for the value of the property so appropriated. Let us see what this court has decided. In United States v. Great Falls Mfg. Co. 112 U.S. 645 , 28 L. ed. 846, 5 Sup. Ct. Rep. 306, Congress having made an appropriation therefor, a dam was constructed across the Potomac with the view of supplying the city of Washington with water. In the construction of such dam certain lands belonging to the plaintiff were taken, although such lands were not by the act of Congress specifically ordered to be taken. The property so taken not having been paid for, plaintiff brought this action in the court of claims to recover the value thereof, and it was held that the action might be maintained, and in the opinion it was said (p. 656, L. ed. p. 850, Sup. Ct. Rep. p. 310):
In Great Falls Mfg. Co. v. Atty. Gen. 124 U.S. 581 , sub nom. Great Falls Mfg. Co. v. Garland, 31 L. ed. 527, 8 Sup. Ct. Rep. 631, an action, which, like the preceding, grew out of provisions made by Congress to supply water to the city of Washington, and in which the relief sought was the removal of all structures on the premises, or if it should appear that the property had been legally condemned, the framing of an issue, triable by jury, to ascertain the plaintiff's damages, and a judgment for the amount thereof, it was said, referring to the [188 U.S. 445, 463] contention that there were certain defects in the proceedings taken by the government (p. 597. L. ed. p. 532, Sup. Ct. Rep. p. 637):
In Hollister v. Benedict & B. Mfg. Co. 113 U.S. 59 , 28 L. ed. 901, 5 Sup. Ct. Rep. 717, an action by the assignees of a patent against a United States collector for infringement, the law is thus stated (p. 67, L. ed. p. 904, Sup. Ct. Rep. p. 721):
In United States v. Palmer, 128 U.S. 262 , 32 I. ed. 442, 9 Sup. Ct. Rep. 104, an action in the court of claims by a patentee against the government to recover upon an implied contract for the use of the patented invention, it appeared that the petitioner was the patentee of certain improvements in infantry equipments which were adopted by the Secretary of War as a part of the equipment of the infantry soldiers of the United States, and, sustaining the jurisdiction of the court of claims, it was said (p. 269, L. ed. p. 444, Sup. Ct. Rep. p. 105):
In United States v. Berdan Fire-Arms Mfg. Co. 156 U.S. 552 , 39 L. ed. 530, 15 Sup. Ct. Rep. 420, a judgment of the court of claims against the United States on an implied contract for the use of an improvement in breech-loading firearms was sustained, although there was no act of Congress expressly directing the use of such improvement. In the opinion it was said (p. 567, L. ed. p. 535, Sup. Ct. Rep. p. 424):
And then, after quoting from several of the findings, it was added (p. 569, L. ed. 536, Sup. Ct. Rep. p. 425):
The rule deducible from these cases is that when the government appropriates property which it does not claim as its own, it does so under an implied contract that it will pay the value of the property it so appropriates. It is earnestly contended in argument that the government had a right to appropriate this [188 U.S. 445, 465] property. This may be conceded, but there is a vast difference between a proprietary, and a governmental, right. When the government owns property, or claims to own it, it deals with it as owner and by virtue of its ownership, and if an officer of the government takes possession of property under the claim that it belongs to the government (when in fact it does not), that may well be considered a tortious act on his part, for there can be no implication of an intent on the part of the government to pay for that which it claims to own. Very different from this proprietary right of the government in respect to property which it owns is its governmental right to appropriate the property of individuals. All private property is held subject to the necessities of government. The right of eminent domain underlies all such rights of property. The government may take personal or real property whenever its necessities, or the exigencies of the occasion, demand. So, the contention that the government had a paramount right to appropriate this property may be conceded, but the Constitution in the 5th Amendment guarantees that when this governmental right of appropriation-this asserted paramount right-is exercised it shall be attended by compensation.
The government may take real estate for a postoffice, a courthouse, a fortification, or a highway; or in time of war it may take merchant vessels and make them part of its naval force. But can this be done without an obligation to pay for the value of that which is so taken and appropriated? Whenever in the exercise of its governmental rights it takes property the ownership of which it concedes to be in an individual, it impliedly promises to pay therefor. Such is the import of the cases cited as well as of many others.
The action which was taken, resulting in the overflow and injury to these plaintiffs, is not to be regarded as the personal act of the officers, but as the act of the government. That which the officers did is admitted by the answer to have been done by authority of the government, and although there may have been no specific act of Congress directing the appropriation of this property of the plaintiffs, yet if that which the officers of the government did, acting under its direction, resulted in an ap- [188 U.S. 445, 466] propriation, it is to be treated as the act of the government. South Carolina v. Georgia, 93 U.S. 4, 13 , 23 S. L. ed. 782, 784; Wisconsin v. Duluth, 96 U.S. 379 , 24 L. ed. 668; United States v. Great Falls Mfg. Co. 112 U.S. 645 , 22 L. ed. 846, 5 Sup. Ct. Rep. 306.
Congress for many successive terms appropriated money for the improvement of the Savannah river. 21 Stat. at L. 470, 480, chap. 136; 22 Stat. at L. 194, 200, chap. 375; 23 Stat. at L. 140, chap. 229; 24 Stat. at L. 321, 331, chap. 929; 25 Stat. at L. 413, chap. 860; 26 Stat. at L. 442, chap. 907; 27 Stat. at L. 101, chap. 158; 28 Stat. at L. 351, chap. 299. These appropriations were in the river and harbor bills, and were generally of so much money for improving the river, but some deserve special mention. Thus, in 21 Stat. at L. 470, chap. 136, it was provided that 'one thousand dollars may be applied to payment of damages for land taken for widening the channel opposite Savannah.' In 24 Stat. at L. 331, chap, 929, the Secretary of War was directed to cause a survey to be made of the 'Savannah river from cross tides above Savannah to the bar, with a view to obtaining twenty-eight feet of water in the channel.' The appropriation in the 25 Stat. at L. 413, chap. 860, was for the improvement of the river, 'completing the present project and commencing the extended project contained in the report of engineer for year ending June 30, 1887.' And by the same statute, 431, among the matters referred to the Secretary of War for survey and examination was 'whether the damage to the Verzenobie freshet bank in 1887 was caused by the work at cross tides, and whether the maintenance of said bank is essential to the success of the work at cross tides, and what will be the cost of so constructing said bank as to confine the water of said river to its bed.' The report of the engineers for the year 1887, referred to in the section above quoted, shows that part of the work which was being done by the government was in the construction of training walls, and wing dams, by which the width of the water way was reduced.
Further, the same year (25 Stat. at L. 94, chap. 194, U. S. Comp. Stat. 1901, p. 3525), an act was passed, entitled 'An Act to Facilitate the Prosecution of Works Projected for the Improvement of Rivers and Harbors,' which authorized the Secretary of War to commence proceedings 'for the acquirement by condemnation of any land, right of way, or material needed to enable him to maintain, operate, or prosecute works for the improvement of rivers and harbors for which pro- [188 U.S. 445, 467] vision has been made by law; . . . provided, however, that when the owner of such land, right of way, or material shall fix a price for the same, which, in the opinion of the Secretary of War, shall be reasonable, he may purchase the same at such price without further delay.'
Thus, beyond the effect of the admission in the answer, and beyond the presumption of knowledge which attends the action of all legislative bodies, it affirmatively appears, not only that Congress was making appropriations from year to year for the improvement of the river, but also that it had express notice of damage to the banks along this very plantation; that the works which were being done by the engineers had in view the narrowing of the width of the water way; that land would be damaged as the result of those works, and that it authorized the Secretary of War to take proceedings in eminent domains to acquire the land, right of way, and material which might be necessary for maintaining, operating, or prosecuting works of river improvement, or, if the price could be agreed upon, to purchase the same.
This brings the case directly within the scope of the decision in United States v. Great Falls Mfg. Co. 112 U.S. 645 , 22 L. ed. 846, 5 Sup. Ct. Rep. 306, where, as here, there was no direction to take the particular property, but a direction to do that which resulted in a taking, and it was held that the owner might waive the right to insist on condemnation proceedings, and sue to recover the value.
It does not appear that the plaintiffs took any action to stop the work done by the government, or protested against it. Their inaction and silence amount to an acquiescence-an assent to the appropriation by the government. In this respect the case is not dissimilar to that of a landowner who, knowing that a railroad company has entered upon his land and is engaged in constructing its road without having complied with the statute in respect to condemnation, is estopped from thereafter maintaining either trespass or ejectment, but is limited to a recovery of compensation. Reberts v. Northern P. R. Co. 158 U.S. 1, 11 , 39 S. L. ed. 873, 15 Sup. Ct. Rep. 756; Northern P. R. Co. v. Smith, 171 U.S. 260 , 43 L. ed. 157, 18 Sup. Ct. Rep. 794, and cases cited in the opinion.
The case, therefore amounts to this: The plaintiffs alleged [188 U.S. 445, 468] that they were the owners of certain real estate bordering on the Savannah river; that the government, in the exercise of its powers of eminent domain and regulation of commerce, through officers and agents duly empowered thereto by acts of Congress, placed dams, training walls, and other obstructions in the river in such manner as to hinder its natural flow and to raise its waters so as to overflow the land of plaintiffs, and overflow it to such an extent as to cause a total destruction of its value. The government, not denying the ownership of plaintiffs, admitted that the work which was done by their officers and agents was done by authority of Congress, but denied that those works had produced the alleged injury and destruction. We are of opinion that under these pleadings and the issues raised thereby the circuit court had jurisdiction to inquire whether the acts done by the officers of the United States under the direction of Congress had resulted in such an overflow and injury of the plaintiff's land as to render it absolutely valueless, and if thereby the property was, in contemplation of law, taken and appropriated by the government, to render judgment against it for the value of the property so taken and appropriated.
Was there a taking? There was no proceeding in condemnation instituted by the government, no attempt in terms to take and appropriate the title. There was no adjudication that the fee had passed from the landowner to the government, and if either of these be an essential element in the taking of lands, within the scope of the 5th Amendment, there was no taking.
Some question is made as to the meaning of the findings. It appears from the 5th finding, as amended, that a large portion of the land flooded was in its natural condition between high-water mark and low-water mark, and was subject to overflow as the water passed from one stage to the other; that this natural overflow was stopped by an embankment, and in lieu thereof, by means of flood gates, the land was flooded and drained at the will of the owner. From this it is contended that the only result of the raising of the level of the river by the government works was to take away the possibility of drainage. But findings IX. and X. show that, both by seepage and [188 U.S. 445, 469] percolation through the embankment, and an actual flowing upon the plantation above the obstruction, the water has been raised in the plantation about 18 inches; that it is impossible to remove this overflow of water, and, as a consequence, the property has become an irreclaimable bog, unfit for the purpose of rice culture or any other known agriculture, and deprived of all value. It is clear from these findings that what was a valuable rice plantation has been permanently flooded, wholly destroyed in value, and turned into an irreclaimable bog; and this as the necessary result of the work which the government has undertaken. Does this amount to a taking? The case of Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557, answers this question in the affirmative. And on the argument it was conceded by the learned counsel for the government (and properly conceded in view of the findings) that so far as respects the mere matter of overflow and injury there was no substantial distinction between the two cases. In that case the Green Bay Company, as authorized by statute, constructed a dam across Fox river, by means of which the land of Pumpelly was overflowed and rendered practically useless to him. There, as here, no proceedings had been taken to formally condemn the land. Referring to this it was said (p. 177, L. ed. p. 560):
Reference was also made to the case of Sinnickson v. Johnson, 17 N. J. L. 129, 34 Am. Dec. 184, in respect to which it was said: 'The case is mainly valuable here as showing that overflowing land by backing the water on it was considered as 'taking' it within the meaning of the principe.' Again, on page 179, L. ed. p. 561, it was said: 'But there are numerous authorities to sustain the doctrine that a serious interruption, to the common and necessary use of property may be, in the language of Mr. Angell, in his work on Watercourses, equivalent to the taking of it, and that under the constitutional provisions it is not necessary that the land should be absolutely taken.' And in a footnote the following authorities were cited: Angell, Watercourses, 465a; Hooker v. New Haven & N. Co. 14 Conn. 146, 36 Am. Dec. 477; Rowe v. Granite Bridge Corp. 21 Pick. 344; Canal Appraisers v. People ex rel. Tibbits, 17 Wend. 604; Lackland v. North Missouri R. Co. 31 Mo. 180; Stevens v. Middlesex Canal, 12 Mass. 466.
It is clear from these authorities that where the government by the construction of a dam or other public works so floods lands belonging to an individual as to substantially destroy their value there is a taking within the scope of the 5th Amendment. While the government does not directly proceed to appropriate the title, yet it takes away the use and value; when that is done it is of little consequence in whom the fee may be vested. Of course, it results from this that the proceeding must be regarded as an actual appropriation of the land, including the possession, the right of possession, and the fee; and when the amount awarded as compensation is paid, the title, the fee, with whatever rights may attach thereto-in this case those at least which belong to a riparian proprie- [188 U.S. 445, 471] tor-pass to the government and it becomes henceforth the full owner.
Passing to the third question, it is contended that what was done by the government was done in improving the navigability of a navigable river, that it is given by the Constitution full control over such improvements, and that if in doing any work therefor injury results to riparian proprietors or others, it is an injury which is purely consequential, and for which the government is not liable. But if any one proposition can be considered as settled by the decisions of this court it is that, although in the discharge of its duties the government may appropriate property, it cannot do so without being liable to the obligation cast by the 5th Amendment of paying just compensation.
In Monongahela Nev. Co. v. United States, 148 U.S. 312, 336 , 37 S. L. ed. 463, 471, 13 Sup. Ct. Rep. 622, 630, it was said:
In that case Congress had passed an act for condemning what was known as 'the upper lock and dam of the Monongahela Navigation Company,' and provided 'that in estimating the sum to be paid by the United States, the franchise of said corporation to collect tolls should not be considered or estimated,' but we held that this proviso was beyond the power of Congress; that it could not appropriate the property of the navigation company without paying its full value, and that a part of that value consisted in the franchise to take tolls. So in the recent case of Scranton v. Wheeler, 179 U.S. 141, 153 , 45 S. L. ed. 126, 133, 21 Sup. Ct. Rep. 48, 53, we repeated the proposition in these words:
It is true that a majority of the court held, in that case, that the destruction of access to land abutting on a navigable river by the construction by Congress of a pier on the submerged lands in front of the upland was not a taking of private property for public uses, but only an instance of consequential injury to the property of the riparian owner. But the right of compensation in case of a taking was conceded. There have been many cases in which a distinction has been drawn between the taking of property for public uses and a consequential injury to such property, by reason of some public work. In the one class the law implies a contract, a promise to pay for the property taken, which, if the taking was by the general government, will uphold an action in the court of claims; while in the other class there is simply a tortious act doing injury, over which the court of claims has no jurisdiction. Thus, in Northern Transp. Co. v. Chicago, 99 U.S. 635 , 25 L. ed. 336, the city, duly authorized by statute, constructed a tunnel along the line of LaSalle street and under the Chicago river.
The company claimed that it was deprived of access to its premises by and during the construction. This deprivation was not permanent, but continued only during the time necessary to complete the tunnel, and it was held that there was no taking of the property, but only an injury, and that a temporary injury thereto. In the course of the opinion, after referring to the Pumpelly Case, 13 Wall. 166, 20 L. ed. 557, and Eaton v. Boston, C. & M. R. Co. 51 N. H. 504, 12 Am. Rep. 147, we said (p. 642, L. ed. p. 338):
Therefore, following the settled law of this court, we hold that there has been a taking of the lands for public uses, and that the government is under an implied contract to make just compensation therefor.
The judgment is affirmed.
Mr. Justice Brown concurring:
I concur in the opinion of the court, both with respect to its jurisdiction and the merits of the case, but I am unable to assent to the ground upon which our jurisdiction is rested. While I think the overflowing of the lands in controversy constitutes a taking within the meaning of the 5th Amendement to the Constitution, I see no reason for holding that there was an implied contract to pay for them within the meaning of the Tucker act. The taking appears to me an ordinary case of trespass to real estate, containing no element whatever of contract. In such case there can be no waiver of the tort. Jones v. Hoar, 5 Pick. 285; Smith v. Hatch, 46 N. H. 146. [188 U.S. 445, 475] But I think our jurisdiction may be supported, irrespective of the question of contract or tort, under that clause of the Tucker act which vests the court of claims with jurisdiction of 'all claims founded upon the Constitution of the United States or any law of Congress.'
As we had occasion to remark in Dooley v. United States, 182 U.S. 222 -224, 45 L. ed. 1074, 1078, 21 Sup. Ct. Rep. 762, the 1st section of the Tucker act [24 Stat. at L. 505, chap. 359, U. S. Comp. Stat. 1901, p. 752], evidently contemplates four distinct classes of cases: (1) Those founded upon the Constitution or any law of Congress, with an execption of pension cases; (2) cases founded upon a regulation of an Executive Department; (3) cases of contract, express or implied, with the government ; (4) actions for damages, liquidated or unliquidated, in cases not sounding in tort. The words 'not sounding in tort' are in terms referable only to the fourth class of cases.
In my view, claims founded upon the Constitution may be prosecuted in the court of claims, whether sounding in contract or in tort; and wherever the United States may take proceedings in eminent domain for the condemnation of lands for public use, the owner of such lands may seek relief in the court of claims if his lands be taken without such proceedings, whether such taking be tortious or by virtue of some contract, express or implied, to that effect. That the case under consideration is one of that class is made clear by the act of April 24, 1888 (25 Stat. at L. 94, chap. 194, U. S. Comp. Stat. 1901, p. 3525), which enacts 'that the Secretary of War may cause proceedings to be instituted, in the name of the United States, in any court having jurisdiction of such proceedings, for the acquirement by condemnation of any land, right of way, or material needed to enable him to maintain, operate, or prosecute works for the improvement of rivers and harbors for which provision has been made by law; such proceedings to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the states wherein the proceedings may be instituted.'
I fully concur in the opinion of the court that 'the government may take real estate for a postoffice, a courthouse, a fortification, or a highway, or in time of war it may take merchant vessels and make them part of its naval force,' but this cannot [188 U.S. 445, 476] be 'done without an obligation to pay for the value of that which is so taken and appropriated.' I am also of opinion that whenever in the exercise of its governmental rights it takes property the ownership of which it concedes to be in an individual, it is bound to pay therefor, but I do not think that there is any distinction between eases where the government impliedly promises to pay by taking property with the assent of the owner, and those where it takes property forcibly and against the will of the owner. It does not seem reasonable to hold that, where the invasion of the owner's right to property is the greater, his remedy for the recovery of its value should be less, and that he should be compelled to resort to the tedious and unsatisfactory method of appealing to the bounty of Congress for relief.
Suppose, for instance, in time of war and under threat of invasion it seizes upon vessels without the consent of the owner and against his protest. There is certainly the same moral obligation to pay for them as if they had been appropriated with his consent, and I see no reason why an action for their value may not be maintained in the court of claims. Yet, as I understand the opinion of the court in this case, it holds indirectly, if not directly, that no such action would lie unless the property were taken with the consent of the owner and under an implied contract to pay for it. The consequences of recognizing such distinctions seem to me so serious that nothing short of clear language in the statute will justify it.
None such is even hinted at in United States v. Russell, 13 Wall. 623, 20 L. ed. 474, one of the earliest cases, wherein the owner of three steamers seized under 'imperative military necessity' sought to recover compensation for their services. These steamers were impressed into the public service and employed as transports for carrying government freight for a certain length of time, when they were returned to the owner. He was held entitled to recover, the court holding that 'extraordinary and unforeseen occasions arise, however, beyond all doubt, in cases of extreme necessity, in time of war, or of immediate and impending public danger, in which private property may be impressed into the public service, or may be seized and appropriated to the public [188 U.S. 445, 477] use, or may be even destroyed without the consent of the owner.' The case followed that of Mitchell v. Harmony, 13 How. 115, 14 L. ed. 75, and was distinguished from that of Filor v. United States, 9 Wall. 45, 19 L. ed. 549.
While the cases reported prior to 131 U. S. are based upon the original court of claims act, which limited the jurisdiction of that court to 'claims founded upon any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the government of the United States,' and are therefore not strictly pertinent under the Tucker act, that of the Great Falls Mfg. Co. 112 U.S. 645 , 28 L. ed. 846, 5 Sup. Ct. Rep. 306, is almost exactly in point, and is strongly corroborative of the position here taken. This was a claim for land taken at the Great Falls of the Potomac in the construction of an aqueduct for bringing water to Washington. Proceedings were taken in Maryland for condemnation, which were discontinued, and the government took possession of the land. Whether such possession was taken with or without the consent of the owner does not appear, although there nad been negotiations between the parties. The claimant was held to be entitled to recover upon the ground that the appropriation of the money for the construction of the improvements was equivalent to an express direction by Congress to take this particular property for the objects contemplated by the scheme, and that there was no sound reason why the claimant might not waive any right he might have to an injunction, and elect to regard the action as a taking by the government under its sovereign right of eminent domain, and therefore demand compensation. The case was not put upon the ground that the owner had consented to the taking.
In Langford's Case, 101 U.S. 341 , 25 L. ed. 1010, the action was brought to recover for the use and occupation of certain lands and buildings to which the claimant asserted title, which were seized for the use of the government under claim that they were public property. It was admitted that if the government takes property for public use, acknowledging its ownership to be private or individual, there arises an implied obligation to pay the owner its value; but that it was a different matter when the govern- [188 U.S. 445, 478] ment claimed the property as its own and recognized no superior title. This was also the case in Hill v. United States, 149 U.S. 593 , 37 L. ed. 862, 13 Sup. Ct. Rep. 1011, where the government erected a lighthouse upon submerged land which it claimed as its own. The case was held to be governed by that of Langford.
None of the more recent cases under the Tucker act conflicts with the position here taken: That wherever the United States may proceed to condemn property under its sovereign irght of eminent domain, the owner may maintain a petition in the court of claims to recover its value, in case no such proceedings are taken. That act (24 Stat. at L. 505, chap. 359, U. S. Comp Stat. 1901, p. 752), first introduced among the cognizable claims all such as were founded upon the Constitution of the United States, and also introduced, after the words 'for damages, liquidated or unliquidated,' the words 'in cases not sounding in tort.' Construing this statute, it was held in the Jones Case, 131 U.S. 1 , 33 L. ed. 90, 9 Sup. Ct. Rep. 669, that it did not confer jurisdiction in equity to compel the issue and delivery of a patent for public land; and in Schillinger's Case, 155 U.S. 163 , 39 L. ed. 108, 15 Sup. Ct. Rep. 85, that the owner of a patent which had been infringed by the United States could not recover damages for such infringement in the court of claims, though it would be otherwise if the property had been appropriated with the consent of the patentee and in view of compensation therefor. Although there was in Schillinger's Case an appropriation of the right of a patentee to the monopoly of his invention, the case was nothing more in its essence than the infringement of a patent, and so the action was really one for damages sounding in tort. While it is possible an individual might be able to condemn the patentee's right by proceedings in eminent domain, that remedy would be at least doubtful, when the government sought merely to appropriate so much of it as was necessary for its own use. It would be an unprecedented exercise of the right of eminent domain, and could scarcely be held to be a claim arising under the Constitution. The case was not put upon the ground that it was such a case, but that it was merely an action to recover damages for infringement Said the court: 'It is plainly and solely an action for an infringement' and one sounding in tort. The question whether it was a claim arising under the Constitution was not [188 U.S. 445, 479] considered, except in the dissenting opinion of Mr. Justice Harlan, who said: 'The constitutional obligation cannot be evaded by showing that the original appropriation was without the express direction of the government, nor by simply interposing a denial of the title of the claimant to the property, or property rights alleged to have been appropriated.' If there were any doubt in that case of the power of the government to condemn the right of the patentee by proceedings in eminent domain, there is certainly none such in this case, where the land was taken by the government with no pretense of consent by the owner.
I think it is going too far to hold that the words of the Tucker act, 'not sounding in tort,' must be referred back to the first class of cases, namely, 'those founded upon the Constitution,' and that they should be limited to actions for damages, liquidated or unliquidated, and Hence, the consent of the owner cuts no figure in this case. I freely admit that, if property were seized or taken by officers of the government without authority of law, or subsequent ratification, by taking possession or occupying property for public use, there could be no recovery, since neither the government nor any other principal is bound by the unauthorized acts of its agents. But in endeavoring to raise an implied contract to pay for an ordinary trespass to real estate, I think the opinion of the court misconceives the true source of our jurisdiction.
Mr. Justice Shiras and Mr. Justice Peckham concurred in the above opinion in so far as it holds that the court had jurisdiction on the ground stated therein, as well as upon the ground stated in the opinion of the court.
Mr. Justice White, with whom concurs Mr. Chief Justice Fuller and Mr. Justice Harlan, dissenting:
The court now holds that it has jurisdiction, because, as a [188 U.S. 445, 480] legal conclusion from the findings of fact, it is held that the property of the appellee has been taken for public use by the United States, and the judgment below is affirmed on the merits for the same reason. As, in my opinion, the findings of fact do not support the conclusion that the property has been taken by the United States, I dissent both on the subject of jurisdiction and on the merits.
The findings of fact are in most respects sufficiently reproduced in the opinion of the court, and need not here be set out in full. It results from the findings that the land is situated on the Savannah river; that it is between high and low water mark, and naturally subject to be overflowed, but that it is protected in some measure from overflow by an embankment, and that through this embankment sluices or water ways were placed, by means of which water was let in on the land for irrigation in the cultivation of rice, and was drawn off when the land was required to be drained in order to carry on the same culture. This was done by gates in the sluices, which were opened to allow the water to flow through the water ways to the inner side of the embankment and thus flood the land when it was requisite to do so, and by opening the gates at low tide to allow the water to flow off when it was required to drain the land. As the exact situation of the water ways through the embankment is important, I reproduce the statement on the subject contained in the findings:
It is now decided that there has been a taking of the property by the United States, because it is thought that the findings establish that the obstructions placed by the government [188 U.S. 445, 481] in the bed of the river at a point lower down the stream than is the plantation, for the purpose of improving the navigation of the river, have so raised the water as to cause it to flow over the embankment at the plantation and flood the same, thus destroying its value. On this subject the court says: 'Findings IX. and X. show that both by seepage and percolation through the embankment and the actual flowing upon the plantation above the obstructions, the water has been raised in the plantain above 18 inches,' etc. Whilst it is not disputable that the findings show a percolation through the embankment, I can discover nothing in them supporting the conclusion that the obstructions placed by the government in the bed of the river below the point where the plantation is situated have caused the water in the river to go over the embankment at the plantation and flood the land. On the contrary, to me it seems that the findings necessitate the conclusion that the permanent damage which the property has suffered arises solely from the fact that the drainage of the plantation into the river has been rendered impossible. And this because the work done by the government has resulted in raising the mean low tide about 12 to 15 inches, so as to cause the water in the river at mean low tide to be above the point of discharge of the water ways, thus rendering drainage through them no longer possible. There may be a wide legal difference arising from damage consequent on an interference with the drainage of property situated, as this is, by work done by the government in the improvement of navigation, and damage caused by the actual flooding of such property resulting from such work. To determine whether the findings show an actual flowing, or a mere injury to drainage, findings VIII., IX., and X. need to be considered. Let us see whether they give support to the claim of actual flooding by an overflow of the embankment at the plantation. Finding VIII. says:
Certainly there is nothing in this finding supporting the inference that the government work has caused the river to overflow the plantation embankment. Finding IX. says:
Here, then, is the statement that the effect resulting from the government work was simply to raise the mean low-water mark as previously existing, so as to cause it to cover the water ways which were-as declared by the previous finding-a little less than a foot above the former low- water mark. The finding continues:
This but declares that because the mean low state of the water had been raised by the government work so as to cause it to be about 8 inches above the mouth of the water ways and to rest against the embankment about 18 inches, that percolation took place and the drainage was destroyed, the result of the loss of drainage being to render the plantation a bog and no longer suitable for the cultivation of rice. It is submitted nothing in the findings hitherto referred to even in- [188 U.S. 445, 483] timates that the effect of the work of the government caused the water to flow over the embankment and flood the plantation. On the contrary, the very opposite is the result of the findings.
Let me next consider the 10th finding. It reads as follows:
Now, the flowing described here can only relate to the seepage and percolation referred to in the previous finding. The words 'above the obstructions' relate, not to the embankment on the plantation, but to the obstructions put in the bed of the river by the government below the point where the plantation is situated; and, therefore, what the finding means is that above this obstruction the water is caused to flow back against, not over, the embankment, as described in the previous finding. And this finding shows besides that it was the impossibility of removing the water which percolated or was the result of rain fall-in other words, the injury to the drainage-which was the cause of the damage.
Thus, eliminating all question of the flooding of the land by the overflow of the embankment, the question for decision is this: When a plantation or a portion thereof is situated on the bank of a navigable river, below high-water mark, and because of such situation is dependent for its profitable operation upon drainage into the river at mean low tide, does the United States appropriate the property by the simple fact that in improving the navigation of the river it raises the mean low tide slightly above the height where it was wont theretofore to be, and by reason of which the drainage of the land below high-water mark is destroyed? It seems to me to state this question is to answer it in the negative. The owner of the land situated below high-water mark acquired no easement or servitude in the bed of the river by the construction of an embankment along [188 U.S. 445, 484] the margin of his land at the river below high water, by which he could forever exact that the level of the water within the natural banks of the river could never be changed without his consent, and thus deprive the United States of its control over the improvement of navigable rivers conferred by the Constitution. If damage by the loss of drainage into the river at mean low tide of land so situated was caused by the lawful exercise by the United States of its power to improve navigation it was damnum absque injuria, and redress must be sought at the hands of Congress, and cannot be judicially afforded by a ruling that a damage so resulting constitutes a taking of the property by the United States, and creates an implied contract to pay the value of the property. Such a doctrine is directly-as I see it-in conflict with the decisions of this court in Gibson v. United States, 166 U.S. 269 , 41 L. ed. 996, 17 Sup. Ct. Rep. 578, and Scranton v. Wheeler, 179 U.S. 141 , 45 L. ed. 126, 21 Sup. Ct. Rep. 48. The far-reaching consequence of the doctrine now announced cannot be overestimated.
But even under the hypothesis that the government work caused the land to be overflowed by raising the water above the embankment, I do not conceive that there would be a taking, even in that case, of the property, for a remedy would be easily afforded for any permanent injury to the land by raising the embankment. The quantum of damages would thus not be the value of the property, but the mere cost of increasing the height of the embankment so as to prevent the water from flowing over it. The fact, then, that a taking is now held to exist, and therefore the United States is compelled to pay the value of the entire property, submits the United States, in the exercise of a power conferred upon it by the Constitution, to a rule which no individual would be subjected to in a controversy between private parties. Nor is this answered by the suggestion that there is a taking because the paying by the United States of the sum of money necessary to raise the level of the embankment so as to prevent the overflow would not compensate the owner, as the property would still be worthless because of the want of drainage. To so suggest is but to admit that the damage complained of results from the inability to drain the land, which, for the reasons already pointed out does not, in my opinion, constitute a taking. [188 U.S. 445, 485] Indeed, the reasoning hitnerto indicated as to the assumed overflow of the embankment is equally apposite to the damage by loss of drainage. For injury to the drainage the remedy would be readily afforded by, if possible, draining the plantation elsewhere than into the river, or by resort to the pumping appliances necessary to lift out the water accumulating from rainfall or percolation. The cost of doing these things would then be the measure of damages. That a resort to these simple expedients is unavailing as to this particular property because of its being situated below high-water mark does not, I submit, show that the government has taken the property for public use, but simply establishes thst the property is so situated that it is subjected to a loss necessarily arising from the fact that it is below high-water mark and therefore absolutely dependent for its drainage on the right of the owner to exact that the mean low tide of the river should be forever unchanged. As the right to so exact does not exist, the loss of drainage does not constitute an appropriation of the property by the United States, and is but the result of the natural situation of the land. If equities exist, Congress is alone capable of providing for them.
I am authorized to say that the Chief Justice and Mr. Justice Harlan concur in this dissent.