#### JONATHAN WALLS v. THE UNITED STATES.

[ No. 28621.

Decided March 29, 1909.]

*On the Proofs.*

Before -the construction of *a lock on*tlio Monougahela River the claimant’s land is occasionally overflowed. After the construction of tho lock half of the land is permanently submerged and the remainder is frequently overflowed.

I.Where property is taken for public use the law implies a contract on which an action may lie and of which the Court of Claims will have jurisdiction.

II.Where the erection of a public work is followed by consequential injury to private property the Government is not liable, and the court is without jurisdiction.

III.Where there is a practical destruction or material impairment of the value there is a taking; but where the owner is merely put to some extra expense, in warding off the consequences of an overflow his land is not taken for public use.

*The*Reporters’ statement of the case:

The following are the facts of the case as found by the court:

I. Claimant is a citizen of the United States and a resident of Monongalia County, W. Va., and in the year 1903, and for many years before, was the owner in his own right and in possession of a tract of land bordering on the Monongahela River and containing about 10-J acres situate about 4 miles from Morgantown, a town of about 12,000 popula*483tion, in Monongalia County, W. Va., 5 acres of which were sloping river bank and bottom land and the remainder hillside land. The claimant’s bottom land was at that time in a high state of cultivation and improved with an old log and frame dwelling of two rooms and shed kitchen and stable. The claimant was, in the year 1903, and for about twelve years prior thereto, engaged in market gardening on said land, cultivating and selling berries, beans, peas, cabbage, corn, etc., in the town of Morgantown, W. Va., which sales made him from $50 to $90 per year in addition to his living.

II. During the year 1903, and prior thereto, the Government of the United States, by its proper officers, was engaged in the improvement of the navigation of the Monongahela River, a navigable water of the United States, this improvement being carried on by virtue of the provisions of the act of Congress of June 3, 1896, known as the “ river and harbor law.”

III. In so improving the navigation of said river the United States have built, maintained, and operated, and is maintaining and operating, in and across the Monongahela River a certain lock or dam known as Lock No. 11. Said lock obstructs the natural flow of said river in and along its natural bed, thereby raising the level of said river and causing its waters to flow over and upon the claimant’s land and thereby actually invading and permanently submerging 2fi-acres thereof, which land so submerged is more particularly shown on a blueprint or schedule prepared by the engineer Department, U. S. Army, and filed with the claimant’s deposition herein as Exhibit No. 1.

By reason of said flooding and overflowing the value of the said 2-fjy acres of land.has been destroyed for all purpose of agriculture, and the claimant has been deprived of the use and enjoyment thereof, though other than by the backing-up of the water and submerging said acres of land, as aforesaid, the United States are not in the actual possession thereof.

The value of said 2X\ acres of land so permanently submerged and destroyed as aforesaid'before the building of said Lock No. 11 was $230.

*484IY. Before the construction of said Lock No. 11 all of the claimant’s sloping river bank and bottom land, including the land upon which his dwelling and stable are situate — being-on the highest point thereof — had been submerged on two or three occasions at times of high water in the Monongahela Liver, thereby forcing the claimant to abandon his residence until the waters receded. The overflows of said bottom land have been more frequent since the construction of said lock than prior thereto, and such overflows, together with the proximity of the land so permanently submerged, render the claimant’s dwelling more undesirable and unhealthy as a place of residence.

The rises in said river, which are caused by freshets, usually occur during the winter season, though at times they have occurred during the summer, and then the claimant’s crops have been injured.

By reason of the occasional overflows and the proximity of said bottom land and dwelling thereon to the land so permanently submerged the claimant has suffered damage in the depreciation of the value thereof.

Y. Upon the foregoing findings of fact the court finds the ultimate fact, so far as it is a question of fact, that the damage and injury to the claimant other than the value of the acres of land so jiermanently submerged is consequential.

*Mr. Edward S. Baüey*and *Mr. J. Miller Kenyon*for the claimant. *Tucker da Kenyon*were on the brief.

*Mr. William W. Scott*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

Peelle, Ch. J.,

delivered the opinion of the court:

This is one of the several cases submitted for the taking of private property for public use growing out of the construction by the Government, under the act of June 3, 1896 (29 Stat. L., 202, 219), of certain dams or locks in the Monongahela Liver, West Virginia, whereby the water in the river has been raised and backed up and overflows upon and over certain lands of the claimant, permanently submerging 2X% acres of the 5-acre tract of bottom land referred to in the findings.

*485The claimant’s residence and stable are located on the highest portion of said 5-acre tract farthest away from the land so permanently submerged.

Prior to the construction of said lock the river had overflowed all of said bottom land on two or three occasions, and had entered the claimant’s dwelling and stable, thereby compelling him to abandon his dwelling for a few days until the water had receded.

Since the construction of said lock the overflows have been more frequent, especially in the winter and spring; and while less than half of said bottom land has been permanently submerged, and the claimant thereby deprived of the use and enjoyment thereof, the residue of said bottom land is damaged and the claimant’s dwelling situate thereon rendered more undesirable and unhealthy as a place of residence.

In the case of *Scranton*v. *Wheeler*(179 U. S., 141, 153), where the Government had constructed, by authority of an act of Congress, a pier resting on the submerged lands away from but in front of the owner’s upland, the court said:

> “ Undoubtedly compensation must be made or secured to the owner when that which is done is to be regarded as a taking of private property for public use within the meaning of the fifth amendment of the Constitution; and of course, in its exercise of power to regulate commerce, Congress may not override the provision that just compensation must be made when private property is taken for public use.”

And further, quoting from the case of *Pumpelly*v. *Green Bay Company*(13 Wall., 166,181), it was said:

> “ Where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution, and this proposition is not in conflict with the weight of judicial authority in this coimtry, and certainly not with sound principle.”

The court, after reviewing other authorities on the subject, concludes:

> “ We are of opinion that the court below correctly held that the plaintiff had no such right of property in the submerged lands on which the- pier in question rests as entitles him, under the Constitution, to be compensated for any loss of access from his upland to navigability resulting from the *486erection and maintenance of such pier by the United States in order to improve, and which manifestly did improve, the navigation of a public navigable water.”

In the case of *Gibson*v. *United States*(166 U. S., 269, 271), where the claimant’s landing on the Ohio Elver had been destroyed by reason of the construction of a dike by authority of an act of Congress, thereby reducing the value of his land from $600 to $200 per acre, the court said:

> “All navigable waters are under the control of the United States for the purpose of regulating and improving navigation, and although the title to the shore and submerged soil is in the various States and individual owners under them, it is always subject to the servitude in respect of navigation created in favor of the Federal Government by the Constitution.” *(South Carolina*v. Georgia, 93 U. S., 4; *Shively*v. Bowlby, 152 U. S., 1; *Eldridge*v. Trezevant, 160 U. S., 452.)

In the case of *United States*v. *Lynch*(188 U. S., 445, 470, 472), where the improvement of the Savannah Biver, by authority of an act of Congress, was in such manner as to hinder-the natural flow and to raise the water so as to overflow the lands of the claimant, thereb}1, causing the total destruction of the value of said lands, the court, after reviewing the various authorities on the subject, said:

> “ It is clear from these authorities that where the Government by the construction of a dam or other public works so flood lands belonging to an individual as to substantially destroy their value, there is a taking within the scope of the fifth 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 proprietor — pass to the Government and it becomes henceforth the full owner. * * *

> “ 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 *487taking was by tbe 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.”

In the case of *Bedford*v. *United States*(192 U. S., 217, 225), where lands were flooded by reason of the construction by the Government of a revetment in the Mississippi River to prevent erosion, the court said:

> “ In the case at bar the damage was strictly consequential. It was the result of the action of the river through a course of years. The case at bar, therefore, is distinguishable from the Lynah case in the cause and manner of the injury. In the Lynah case the works were constructed in the bed of the river, obstructed the natural flow of its water, and were held, to have caused, as a direct consequence, the overflow of Lynah’s plantation. Jn the case at bar the works were constructed along the banks of the river and their effect was to resist erosion of the banks by the waters of the river. There was no other interference with natural conditions. Therefore the damage to appellant’s land, if it can be assigned to the works at all, was but an incidental consequence of them.”

To the same effect is the case of *Manigault*v. *Springs*(199 U. S., 473, 484), though in that case, after reviewing various authorities on the subject of what constitutes a taking as contradistinguished from- consequential injury, the court said:

> “ We think the rule to be gathered from these cases is that where there is a practical destruction or material impairment of the value of plaintiff’s lands there is a taking, which demands compensation, but otherwise where, as in this case, plaintiff is merely put to some extra expense in warding off the consequences of the overflow.

> “ The damage claimed by the plaintiff in the interruption of access to his lands and the impairment of his right to navigate the creek does not demand separate consideration. We have repeatedly held that where the Government of the United States has, for the purposes of improving the navigation of a river, erected piers or other structures by which access to plaintiff’s land is rendered more difficult there is no claim for compensation.”

From the foregoing and other authorities to the same effect which might be cited it is clear that a distinction must be made between property actually taken and appropriated *488by the Government and. damages to property in the construction of public works, particularly in the- improvement of rivers which afford a channel for useful commerce *(The*Montello, 20 Wall., 430) and of which riparian proprietors are bound to take notice. That is to say, while the owners of land adjacent to such waters are entitled to profit by their advantage and to improve their property in connection therewith, their rights are nevertheless subject to such rules for the public good as the legislature may prescribe.

The whole case is this: Before the construction of the lock all of the claimant’s land had on two or three occasions been overflowed and he was compelled to abandon his residence until the water receded. Since the construction of the lock and as the direct result thereof acres of the land have become permanently submerged, while the residue of the 5-acre tract is more liable to overflow in times of freshets; but such overflows so caused by freshets are not of such frequency as to amount to a taking of said land, even if the United States were liable therefor; nor is access thereto cut off by reason of the submerged land; hence it can not be held that such occasional overflows are the direct result of the construction of the lock, as the raising of the level of the water by said construction was in submerging the 2^ acres.

Judgment is ordered to be entered in favor of the claimant for $230.

Howey, J., was not present when this case was heard and took no part in its decision.