#### NELLIE B. TOMPKINS, EXECUTRIX, v. THE UNITED STATES.

[No. 23118.

Decided January 10, 1910.]

*On the Proofs.*

Tlie only question involved in this case is whether the overflow of certain lands, during stages of high water, caused by the wave and current resulting from a dam constructed by the Government across the Kanawha River was a taking of private property within the meaning of the Constitution.

X. The rule deducible from adjudged cases is that when the Government appropriates property without asserting title it takes it under an implied contract to pay its reasonable value.

*67■ II. Although there be no direction by statute to take property, yet if the taking results from the doing of that which is authorized ■ it will be a taking within the meaning of the Constitution.

III. To constitute a taking there must be a physical invasion whereby the owner is deprived of the use of his land, as where its value is practically destroyed; and the taking must be distinguishable from damage; and the injury must be more than incidental to the legitimate exercise of governmental powers which do not directly encroach upon the property, though their consequences may impair its use.

IV. Where before the construction of a dam across.a river the land was overflowed at stages of high water, but the bank remained without encroachment of the river, and after the construction of the dam the immediate and dominant cause, without which the river bank would not have been broken and the land would not have been flooded, was the new action of water caused by the dam, it was a taking of private property within the meaning of the Constitution. But in such a case a recovery must be confined to so much of the land as was actually invaded and washed away and can not be extended to occasional overflows in the nature of consequential damages.

*The Reporters’*statement of the case:

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

I. The claimant’s testator was at the dates hereinafter set forth and long- prior thereto the owner of a tract of land on the north bank of the Kanawha River, in Kanawha County, W. Va., about 20 miles above the city of Charleston, comprising altogether about 150 acres, extending from the river bank to the foot of the abrupt mountain slope.

II. In the years 1879 to 1882 the United States built a dam across the Great Kanawha River at Lock No. 3, 1,268 feet above the present boundary of said testator’s land. This was done in the improvement of navigation of the river under authority of acts of Congress March 3, 1879 (20 Stat. L., 364); June 10,1879 (21 Ibid., 8) ; June 14,1880 (21 Ibid., 185, 193); and March 3, 1881 (21 Ibid., 475). The effect of this dam was to contract the stream so that at stages of high -water a heavier wave and current would set in against the bank below the dam.

*68III. Before and since February, 1897, when the events took place set forttr in Finding YI, the testator’s land was suitable for agricultural purposes, and the higher portions for building purposes, and was reasonably worth the sum of $200 per acre. Said land was cultivated in the years 1903, 1904, 1905, and 1906 after the construction of the wall by the United States in 1903 at the place where the river broke through the bank in 1897, as set out in Finding YI.

IY. Before the construction of said dam the testator’s land was overflowed at certain stages of high water, and to some extent the wave and current at high water washed' away the river bank, but the bank remained substantially the same for many years without any noticeable encroachment by the river. It sloped from its edge gradually to the river, the edge varying from 40 to 50 feet above low water. Portions of the bank were covered with large trees. The bank was higher at the siver side than farther back from the river.

At a point about 1,500 feet from the upper line of said testator’s land there was a slight depression in the edge of the bank which was and is higher than the land inside the bank, there being a gradual slope at this point from the edge of the bank inward, at first away from the river and then extending in a course approximately parallel to the river to a small stream flowing into the river at a lower point.

Y. Shortly after the construction of said dam and prior to January 4, 1882, the river bank was seriously threatened in times of high stages of water, as in the winter of 1881-82, which caused a slight erosion at the foot of the river bank.

In 1882 and 1886 the high water in the Kanawha Kiver had washed the banks of the river, thereby threatening with destruction the testator’s farm and the channel of the river. In said years the officers of the War Department were advised by the claimant’s testator of the action of the water upon his land, and they were asked to take steps to prevent the same. In 1886 the claimant’s testator expended some $500 in efforts to prevent the further washing away of his land, and in 1897 and 1898 the further sum of $761.25 for the same purpose. In 1893 the Government repaired the break in the river bank by constructing a wall to break the force *69of the current of the river during high water. Further work was done in 1898, upon which repairs were made in 1899 and 1900 on account of damages caused by the action of the river in times of high water during the preceding winters. In the vicinity of the lock and dam and for miles therefrom the river bank is washed out for miles equally as bad as the washout along the front of the testator’s land.

VI. During the high water of the Kanawha River in February, 1897, and as the result thereof, superinduced by the wave and current resulting from the dam, the bank broke down at the depression particularly described in Finding IV to such an extent that the river overran it and gained sudden access to the. interior portion of the testator’s land, and poured through it with great force, creating a deep gully through the land, which was naturally lower than the river bank, thereby opening the land to future floods at a lower height.

The gully so made was cut through the middle of the testator’s land and formed an arc of a circle to the bank, returning to the river near the lower end of his tract close to the mouth of a creek entering the river near that point, following the natural depression described in Finding IV, denuding the land of soil as it washed through.

At this break in the river bank the United States, in 1903, caused a wall of stone, laid dry, to be built to further break the force of the wave and current during stages of high water, and while it does break the force of the wave and current it is not sufficient to prevent the overflow of the river.

VII. Some inroads had been made in the bank, caused by the high water, superinduced by the wave and current as aforesaid, prior to February, 1897, and a part of the bank had been washed away. Since the breaking down of the bank this action has continued with greater force, and a small quantity of the testator’s land has been entirely washed away, some of which was prior to November 6, 1896.

Since November 29, 1896, six years preceding the filing of the petition in this cause, about 3 acres have been washed away.

*70VIII. Since November 29, 1896, the water at high stages has run over the broken-down bank and periodically through the aforesaid gully, and has continuously deepened the same. The cutting of the gully and consequent wash has made the land occupied by the gully unfit for agricultural purposes because of its denudation, and unfit for building purposes because of its liability to overflow at high stages of water. The amount of land within the gully so washed away is 3TS„- acres.

IX. The cutting of the gully aforesaid left a portion of the land between said gully and the river subject to be washed away by the action of the current rushing through said gully in times of high water. Some such washing has occurred since the flood of February, 1897. The tract can not be utilized for dwelling purposes with safety because of the risk of overflow. The same, however, has been used for agricultural purposes most of the time since February, 1897. How much of said land is affected by the overflow’ is not established by the evidence.

X. The breaking down of the bank and the consequences thereof, as set forth in Findings VI and VII, have rendered a portion of the land beyond the gully described in said Finding VII of little value for agricultural purposes because of its danger to inundation in times of high water. The amount of land inside the gully so affected, if claimant is entitled to recover therefor, is about 3 acres.

XI. The water at ordinary stages does not overflow the testator’s land. The overflows occur only in times of high water, during which, by reason of the dam so constructed b3^ the United States, the bank is more liable to overflow than it was before said dam was constructed.

A rise in the river of 29 feet 3 inches is sufficient to cause the overflow of the testator’s land; and from September, 1861, to June, 1901, there were eighteen rises of the river at Charleston exceeding 29 feet 3 inches; and from September, 1878, to March, 1903, there were nine rises of the river at Kanawha Falls exceeding 29 feet 3 inches, the greatest rises occurring in September, 1861 and 1878, February, 1897, and March, 1899. From said March, 1899, to March, 1903, there were five rises at Charleston and seven at Kanawha Falls exceeding 29 feet 3 inches.

*71
      *Mr. Archibald, King*for the claimant. *Messrs. George A. and William B. King*were on the brief:

We find here two well-defined classes of cases. In the one, the officers of the Government took property which they stated to belong to the United States, never admitting any title in the claimant. Such a condition, the courts say, precludes the possibility of a contract. The leading cases of this class are *Langford*v. *United States*(101 U. S., 841) and *Hill*v. *United States*(149 U. S., 593).

In the other class of cases referred to, the officers of the United States, in taking property, recognized and admitted that it was private property. When such facts exist, the cases hold that the United States impliedly promises to pay the owner the value of what is taken. In *Grant*v. *United States*(1. C. Cls., 41), we find a case of this class.

The case of *Great Falls Mfg. Go.*v. *United States*(112 U. S., 645), is the leading case in this class. In constructing the Washington Aqueduct, the Government had taken the claimant’s land. It recognized the claimant’s title by commencing condemnation proceedings, but did not carry them through.

The more recent decisions show that the doctrine of thip class of cases is still the law. *United States*v. *Lynah*(188 U. S., 445).

There are other cases in this class in which the court undertook no extended discussion of the theory of the implied contract, but which, considering the facts and the decision, are of equal authority with the cases already discussed- for the doctrine that the Government is liable for property taken by its officers, at least when those officers recognize that they are taking private property. Such cases are: *Wiggin*v. *United States*(1 C. Cls. B., 182); (3 C. Cls. B., 412) ; *Campbell*v. *United States*(8 C. Cls. B., 240); *Pope*v. *United States*(26 C. Cls. B., 14); *Merriam*v. *United States*(29 C. Cls. B., 250); *King*v. *United States*(59 Fed., 9) ; *Jachson*v. *United States*(31 C. Cls. B., 318); *Brown*v. *United States*(81 Fed., 55); *Glarh*v. *United States*(37 C. Cls. B., 503); *Alexander*v. *United States*(39 C. Cls. B., 383).

*72Where property is not taken absolutely, but is only used or occupied for a time, we find the same two classes of cases. If, on the one hand, the land be occupied or the property used under a claim that it is government property, no implied contract can arise. If, on the other hand, the government officers admit that they are using private property, an implied contract arises, and the United States is liable. An example of the former class is *Rill*v. *United States*(149 U. S., 593). In the latter class are *United States*v. *Russell*(13 Wall., 623) ; *Mills*v. *United States*(19 O. Cls. R., 79); *Kettell*v. *United States*(21 C. Cls. B>., 175); *Alexander*v. *United States*(39 C. Cls. R., 383).

In patent cases also we find the two classes. The United States takes and uses the invention of the patentee. If it does so, denying his right, no contract exists; but if, when taking his invention, the United States admits that it is using his patent, an implied contract arises to pay him a reasonable royalty. *Schillinger*v. *United States*(155 U. S., 163), is the leading case in the former class. The latter class contains: *McKeever*v. *United States*(14 C. Cls. R., 396; 18 C. Cls. R., 757) ; *Palmer*v. *United States*(128 U. S., 26); *Butler*v. *United States*(23 C. Cls. R., 335) ; *United States*v. *Berdan Fire Arms Co.*(156 U. S., 552).; *Broohs*v. *United States*(39 C. Cls. R., 494).

These cases establish as the settled law the proposition that if the United States takes private property, and its officers in so doing admit that they are taking private property, an implied contract arises to pay the owner its value. Payment may be enforced in this court.

This claim is based upon the fifth amendment to the Con-stition, declaring:

“ Nor shall private property be taken for public use without just compensation.”

In *United States*v. *Kaufman*(96 U. S., 567) a brewer had erroneously paid too high an internal-revenue tax. The Commissioner of Internal Revenue allowed the claim for a refund, but no method was provided by statute for its payment. The Supreme Court held that suit was properly brought in this court upon the principle that “a liability *73created by statute without a remedy may be enforced by an appropriate common-law action.”

This case was cited and its principle approved and followed in *Dooley*v. *United States {supra).*This being true of a liability created by a statute, *a*fortiori, it is true of one created by the Constitution, a liability which a statute is powerless to diminish. Even if the court should determine that this case sounds in tort, it should still entertain the suit under this first head.

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

The first section of the Tucker Act clothes the court with jurisdiction to- hear and determine four classes of cases:

First. Those founded upon the Constitution or any law of Congress, excepting as to pensions.

Second. Those founded upon a regulation of an executive department.

Third. Cases of contract, express or implied.

Fourth. Action for damages, liquidated or unliquidated, in cases not sounding in tort. If this were an actual taking of the Tompkins land for public use it would come within the first class of cases; but it must be conceded that the United States has not actually for its use appropriated any part of the Tompkins land. Furthermore, there is no contention on the part of the claimant’s counsel that any officer or agent of the United States actually entered upon or physically took possession of the land, or in any way ousted Tompkins therefrom, the only claim being that the Kana-wha Fiver, in its high stages, washed away a part of it and washed over the interior and low portion of it; but this has not occurred since the stone wall was built in 1903.

To bring the claim in the cáse at bar within the first class of cases — that is, one founded upon the Constitution or any law of Congress — the facts must show that the property was actually taken for use by the Government under the right of eminent domain. This has not been shown to have occurred in this case; neither do the facts show that the damage done to claimant’s land was the direct result of the *74improvements made in the Kanawha Biver. The improvements did not touch claimant’s land; neither does the wave and current of the river, after passing over the dam, overflow claimant’s land in ordinary stages of water. It takes the high stages of water to reach the top of the bank.

It is not contended that the case at bar is within the second class of cases.

To come within the third class of cases the claim which is the basis of the suit must have been founded upon a contract express or implied. There was no express contract between the Government and Tompkins, and unless there was a taking of claimant’s property for public use there can be no implied contract, and it is contended on the part of defendant that there was no taking of property within the meaning of the fifth amendment and the rule laid down by the courts. In other words, if the case at bar is one of the first class.of cases it is also of the third, but to bring it within either the first or third class there must be an absolute taking and total destruction of the claimant’s property. *(Lynolis*case, 188 U. S., p. 445.) Such is not the fact in this case.

To bring a case within the first class of cases the land must be “ permanently destroyed ” and constitute a taking of property. Inasmuch as there was no express contract to bring it within the third class, there must have been “ a coming together of minds” to imply a contract, as was said by Mr. Justice McKenna in delivering the opinion of the court in the case of *Russell*v. *The United States*(182 U. S., 516-530).

In the opinion in the *Russell case*the court also considered the case of *McKeever*v. *The United States*(14 C. Cls., B., 396), which was affirmed on appeal, and drew a line of distinction between a case in which a contract could be implied and the facts found in the *Russell case.*

See also *Harley's case*(198 U. S., 229-234), wherein it was held that in order to give the Court of Claims jurisdiction in the third class of cases, contract express or implied, there must have been an actual meeting of minds, and contract will not be implied from the mere use of the property.

In concluding his opinion Mr. Justice McKenna distinguished the *Harley case*from *McKeever's case*and *Lynah's*
      *75
      *case*hereinbefore cited, as well as other cases cited by appellant in the *Harley ease.*

*Dooley's case*(182 U. S., 222), cited by counsel for claimant (p. 182), is not at all analogous to the case at bar. *Dooley's case*was an action begun in a circuit court in its concurrent jurisdiction as a court of claims to recover back certain duties which had been exacted and paid under protest. It was therefore to recover the value of property actually taken from Dooley by the officers or agents of the Government of the United States. Such is not the fact in the case at bar. No property whatever has actually been taken from the claimant.

The fact that the Constitution of the United States gives to the Government the right to use the bed of the river for the construction of dams to improve navigation is so well established by numerous court decisions that it is not deemed necessary to cite any authorities. A case somewhat analogous to the case at bar is *Bedford*v. *The United States*(192 U. S., 217), in which it was held that:

“ Damages to land by flooding as the result of revetments erected by the United States along the banks of the Mississippi River to prevent erosion of the banks from natural causes are consequential and do not constitute a taking of the lands flooded within the meaning of the fifth amendment to the Federal Constitution.”

In *Bedford's*case, like the case at bar, claimant’s land was situated away from and not contiguous to the improvement placed in the Mississippi River, and in *Bedford's*case, like the case at bar, the claim was for damages to the land which was washed away, the wash resulting from the revetments placed in the Mississippi River. *Bedford's case*followed the lines laid down by the court in *Gibson's case*(166 U. S., 269), and Justice McKenna, in delivering the opinion of the court, distinguished it from *Lynah's case*(188 U. S.,445).

It is conceded that the lock was placed in the Kanawha River under government authority, but it is contended that the facts show that the damage done was not done by any act of the Government under the power given to it by the Constitution or by any law of Congress; the damage done to claimant’s land was the direct result of high water in the *76Kanawha River, and if the dam at Lock No. 3 in any way aided in causing said damage it was only consequential and is wholly conjectural, and being so must be borne by the riparian owner upon whom it falls and is therefore damnum absque injuria.

The law is well settled that to entitle an owner to the protection of the fifth amendment property must be actually taken in the physical sense of the word, and that the proprietor is not entitled to claim remuneration for indirect and consequential damage, no matter how serious or how clearly and unquestionable, resulting from the exercise of the power of eminent domain. (Sedgwick Statutory and Constitutional Law, pp. 457, 458; Dillon Municipal Corporation, sec. 784.)

The constitution of the State of Wisconsin contains a provision similar to the fifth amendment to the Constitution of the United' States, and in the case of *Alexander*v. *The City of Milwaukee*(16 Wis., 247) the supreme court of that State held that—

“A municipal corporation making an improvement solely for the benefit of the public, under ample authority granted by the. legislature, and performing the work in a circumspect and careful manner, is not answerable for consequential damages produced thereby to property in the vicinity of such improvement, no part of which is taken or used therefor.”

In the case of *Lansing*v. *Smith*(8 Cowen, 146-149) it was held:

“ Every great public improvement must, almost of necessity, more or less affect individual convenience and property; and when the injury sustained is remote and consequential, it is damnum absque injuria, and is to be borne as a part of the price to be paid for the advantages of the social condition. This is founded upon the principle that the general good is to prevail from partial individual convenience.”

Cousel for claimant cites, and in fact relies on, the *Lynah case*(188 U. S., 445) as an authority on the question of what is a taking of private property for public use. It is conceded that if the facts in the case at bar showed an absolute and actual taking, resulting directly and solely from the construction of the dam in the Kanawha River, claimant would *77be entitled to recover and be within the jurisdiction of the court; but the facts in the *Lynah*case differ from the facts in the case at bar.

It will be noted from the *Lynah case*that the rice plantation was permanently flooded and totally destroyed, having-no market value whatever. The facts in the case at bar are different. Mr. Tompkins’s land has not been totally destroyed for the purposes of agriculture and it does have a market value. In the case of *Gibson*v. *The United States*(166 U. S., 269) it was held that—

“Where by the construction of a dike by the United States in the improvement of the Ohio River the plaintiff, a riparian owner, was, through the greater part of the gardening season, deprived of the use of her landing for the shipment of products from and supplies to her farm, whereby the value of her farm was reduced $150 to $200 per acre, there was no taking of the property, but only a consequential injury.”

(See also *Marchant*v. *The Penn. R.*R., 153 U. S., 380; *Meyer*v. Richmond, 172 U. S., 82.)

In the case of *Mills*v. *The United States*(46 Fed. Rep., 738), which grew out of the same improvement as the *Lynah*case, it was held not to be a taking of property within the meaning of the Constitution, but was held to come within the fourth class of cases, a claim for damages sounding in tort, and therefore not within the jurisdiction of the court.

The Supreme Court, in the case of *Manigault*(199 U. S., 473^477), decided since the decision of the court in the *Lynah*case, confirms the ruling of the district court for the southern district of Georgia in the *Mills case.*

Still another later decision of the court on the question of the taking of property will be found in the case of the Chicago, *Burlington and Quincy Railroad Company*v. *The Drainage Commissioners*(200 U. S., 561), wherein it ivas said:

“ Upon the general subject there is no real conflict among adjudged cases. Whatever conflict there is arises upon the question whether there has been or will be in the particular case, within the true meaning of the Constitution, a £ taking ’ of private property for public use. If the injury complained of is only incidental to the legitimate exercise of govern*78mental powers for the public good, then there is no taking of property for the public use, and a right to compensation on account of such injury does not attach under the Constitution.”

The construction of the dam in the Kanawha Biyer can not be wholly responsible for the washing of claimant’s banks, for the reason that the river, after passing over the dam, does not reach the land of the claimant only at high stages of water. High stages of water, of course, it will be concéded, are the acts of nature. If, however, the construction of the dam causes the stream to contract and the water after passing over the dam to become more turbulent and in this way cut into the river bank it is a, remote injury, and at the most can only be partly attributed to the dam, and if the Government has, without negligence, constructed the dam and constructed it in the way that dams of like character are usually constructed for the purpose of improving navigation, the claimant can not recover unless he should show negligence. This he has not done.

No allegation is even' made that the Government or its officers were guilty of negligence or unskillfulness in the. mode of construction of the improvement. In this respect it is similar to the facts in the *Gibson cases (supra),*the facts in that case on this subject being stated by the late Justice Weldon, as follows:

“It is not alleged, nor is it established by the evidence, that the defendants were guilty of negligence or unskillfulness in the mode of construction, but that in mere consequence of the location and erection of the improvement the property and possession of plaintiff have been impaired and damaged.”

There are many court decisions on the question of the “ taking ” of property for public use, and from an examination of them it seems, as stated in the *Lynah, Maningault*and the O., *B. <& Q. B. B. cases*(supra), that there must be a permanent taking — that is, in cases similar to the case at bar there must be a permanent flooding or overflow, causing a “ total destruction ” of the land’s value and rendering it “ absolutely valueless” for any purpose whatever and that the Government is not liable for any consequential damages, the extent of which is conjectural. Especially is this rule of law *79good where the property damaged is not contiguous to the public improvement and the occasional force which directly causes the damage is a natural force, such as the flood in a river.

Prior to the Revolution the beds of all rivers belonged to the “ Crown.” The Revolution placed that ownership in the States, and the States are still the owners where it has not been conceded to the Government of the United States in the Federal Constitution for the purposes of navigation and improving navigation.

An English opinion on this subject is as follows:

“ If the sea or arm of the sea by gradual or imperceptible progress encroach upon the land of a subject, the land thereby covered with water belongs to the £ Crown.’ ” (Fifth M. and W., 347.)

For decisions of state courts on this question see *Wilson*v. *Shiveley*(11 Oreg., 215) and the case of *Bouvier*v. *Stride-lett*(40 Nebr., 793,- 798, 799) and cases there cited.

In the *Bouvier*ease, last above cited, it was held that—

“Where the middle of the channel of a stream of water constitutes the boundary. line of a tract of land, and the water undermines the banks and the soil ‘caves in’ and mixes with the water and is washed away, the owner of the land must stand the loss.”

On the question of accretion, Gould on Waters (p. 308, par. 310) says:

“ Conversely, land gradually encroached upon by navigable waters ceases to belong to the former owners.”

The claimant in the case at bar did to some extent riprap the river bank to stop the erosion, and in this he was assisted by the Government, the Government not only riprapping' part of the bank, but later constructed a wall or bulkhead to break the force of the current.

In Angelí on Water Courses (7th ed., sec. 333) it is said:

“A riparian proprietor may in fact legally erect any work in order to prevent his lands being overflowed by any change of the natural state of the river, and to prevent the old course of the river from being altered.”

A case on this point is *Barnes*v. *Marshall*(68 Cal., 569). In this case it appeared that the water course had been *80gradually encroaching upon the defendant’s land, eroding it and causing it to cave into the river. If the erosion had continued, the river would have formed a new course through the land. To prevent such a change the defendant erected a bulkhead the former height of the bank. The question before the court was whether or not the defendant had the right to build a bulkhead and thus protect his property. It was held that he had, as follows:

“The defendant had a right to protect his land from a threatened change of the river’s channel by building a bulkhead as high as was his original bank before it washed off.” (See *Farquharson*v. Farquharson, 3 Bligh Pr., N. S., 421, 422.)

In *Gulf Railroad Company*v. *Clark*(101 Fed. Hep., 678) the railroad company had built an embankment for its road some distance from the bank of the Canadian River in the Indian Territory. The river gradually encroached up to the embankment and finally washed part of it away. The railroad company then constructed dikes into the then position of the river but on land over which the river had encroached. The dikes not only protected the company from further encroachment, but restored part of the land already lost. This the court held it had a right to do, and that any injury sustained by the owner of the opposite bank to such action is damnum absque injuria and can only be avoided by his exercise of the same right to protect his own bank. (See *Rex*v. *Sewer*Commissioners, 8 Barn & C., 355 ; *Lamió*v. *District*(Cal.), 14 Pac., 625; *Howard*v. *City of Des Moines*(Iowa), 17 N. W., 527.)

Peelle, Ch. J.,

delivered the opinion of the court:

This action involves the question whether the overflow of the lands of the claimant’s testator during stages of high water, superinduced by the wave and current resulting from the dam constructed by the Government across the Kanawha River at Lock No. 3, is a taking within the meaning of the fifth amendment of the Constitution.

What constitutes a taking under the fifth amendment of the Constitution has been so often defined by the Supreme *81Court and by this court that it would be a work of repetition to review the authorities, nevertheless we will refer to some of them. In the case of *Lynah*(188 U. S., 445, 464) the court, after reviewing the leading authorities on the subject, said :

> “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 so 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.” And though there may be no direction by statute to take any particular property, yet if the taking results from the doing of that which is authorized it will be a taking within the meaning of the fifth amendment of the Constitution. Such was the holding in the case of *United States*v. *Great Falls Manufacturing Co.*(112 U S., 645, 658); *Juragua Iron Co.*v. *United States*(212 ibid., 297, 303). However, to constitute a taking, there must be an appropriation of the land, a physical invasion, whereby the owner is deprived of the use and enjoyment of his land or its value is thereby practically destroyed, before a contract can be implied to make compensation therefor. And the taking must be distinguished from damage, for, as observed by the court in the case of *Bedford*v. *United States*(192 U. S., 217, 224), “the Constitution provides that private property shall not be taken without just compensation, but a distinction has been made between damage and taking, and that distinction must be observed in applying the constitutional provision.”

It is not enough that the damage results incidentally to the land by reason of the authorized acts of the Government, for, in the case of *Union Bridge Co.*v. *United States*(204 ibid., 364, 396), where the authorities on the subject are again elaborately reviewed, the court said: “If the injury complained of is only incidental to the legitimate exercise of governmental powers for the public good, then there is no taking of property for the public use, and a right to compensation, on account of such injury, does not attach under the Constitution.” And so in the case of *Transportation Company*v. *Chicago*(99 U. S., 635-642), referring to the restriction in the Constitution that private property shall not be taken for public use, the court said: “ But acts done in the proper exercise of governmental power and not di*82rectly encroacbing upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the state or its agents, or give him any right of action. This is supported by an immense weight of authority.” See authorities collated in Cooley on Constitutional Limitation, page 542, and notes.

If, therefore, the land is merely damaged by the impairment of its use or value as an incidetnal consequence of the lawful exercise of power by the Government, there is no taking under the authorities cited.

The leading case on the subject of a taking by overflow is that of *Pumpelly*v. *Green Bay Co.*(13 Wall., 166, 177). In that case the overflow resulted from the construction in 1861 of a dam across Fox River, the northern outlet of Lake Winnebago, whereby the waters of the lake, in violation of the act authorizing the construction of the dam, were raised so high as to overflow the land and continued to overflow it until the bringing of the suit in 1867,

In response to the contention of the defendants that there was no taking and that the damage to the land was consequential, the court said:

> “ It would be a very serious and unsatisfactory result, if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the Government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the Government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, insead of the Government, and make it an authority for invasion of private right under the pretext of the public good which had no warrant in the laws or practices of our ancestors.”

*83Likewise in the case of *Lynah*(supra) the overflow resulted from the construction of dams and training walls in and across the Savannah River, whereby the natural flow of the river was obstructed and the water therein raised above its natural height.

Without further reference to authorities, it may now be regarded as settled law that where land is overflowed and its value destroyed through the authorized acts of the Government in the improvement of navigation it is a taking within the meaning of the Constitution as construed by the Supreme Court.

In the present case there can be no question that but for the high water there would have been no overflow; and equally true it is that but for the dam the wave and current resulting therefrom would not have been sufficient to destroy the river bank. Therefore we have presented the question whether the high -water from natural causes, coupled with the authorized acts of the Government in constructing the dam, both of which contributed to the overflow and consequent destruction in value of the testator’s land, can be made the basis of a *talcing*so as to imply a contract to pay therefor.

True, as observed by the court in the *Gibson case*(supra), “ riparian ownership is subject to the obligation to suffer the consequences of the improvement of navigation in the exercise of the dominant right of the Government in that regard.” There, however, the land was only impaired in value by the cutting off of the riparian owner’s right of access to the river for the transportation and sale of his farm products. There was no physical invasion.

In the *Bedford case (supra)*the land was flooded as an incidental consequence of a revetment constructed by the Government along the bank of a river to prevent erosion of the bank from natural causes and to thereby hold the river in its natural course. The court held that the overflow was consequential and that no right could be founded on the unrestrained operation of natural causes.

In the *Walls case*(44 C. Cls., 482) the level of the river was raised by the construction of a lock and dam in the Mo-nongahéla River, thereby causing the water to flow over and *84upon the owner’s land, and the Government was held liable. There the court stated the whole case to be that “ 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 a direct result thereof, acres of the land have been 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.”

Here the whole case is this: Before the construction of the lock and dam the land was overflowed at stages of high water and to some extent the wave and current washed away the river bank, but the bank remained substantially the same, without any noticeable encroachment by the river. Soon after the construction of the lock and dam the high water so washed the banks of the river as to threaten a destruction of the testator’s land as well as the channel of the river. The officers of the War Department were advised of this action of the water and were asked to take steps to prevent the land from further washing. In 1893 some work looking to that end was done by the construction of a wall to break the force of the current, but during the high water in 1897, superinduced by the wave and current resulting from the dam, the bank broke and the testator’s land was flooded, and the current cut a deep gully through his land. Thereafter the dam so constructed in 1893 was repaired from time to time, by reason of the breaks which occurred therein from the high waters the preceding winters, and in 1903 a wall of stone, laid dry, was built by the Government to further break the force of the wave and current during stages of high water, and while the same appears sufficient therefor, it was not sufficient to prevent overflowing on the testator’s land.

*85Prior to the break in 1897 a part of the bank had been washed away, and since that time the action of the water has continued and a considerable portion of the testator’s land has been entirely washed away and its value entirely destroyed.

The court therefore concludes that while the mediate or predisposing cause of the flooding of testator’s land was by reason of the high water, the immediate and dominant cause, without which the river bank would not have broken, was the action of the water resulting from the dam. That is to say, during such times the water flowed over the dam against the bank with greater force than it would have done but for the dam, and for that reason the bank was broken and the water flowed over and upon the testator’s land, cutting a deep gully through it.

The 3 acres of land washed over and away, as well as the quantity of land in the gully, as set forth in Findings YII and Y III, were thereby rendered unfit for agricultural purposes ; and while it is by no means clear to the court that such washing and occasional overflows resulting from the dam constitute a taking as distinguished from consequential damages, still as the land so washed has deprived the owner— who expended a considerable sum of money in trying to prevent such overflows — from cultivating the same or utilizing the land for building purposes, we hold that the same was taken by the invasion and action of the water as the direct result of the dam, and to that extent a contract is implied to make compensation therefor.

But in respect to the land between the gully and the river, as set forth in Finding IX, the same has been cultivated most of the time since the breaking of the dam in 1897, and whatever damage results thereto arises from its risk to overflow, and may, therefore, be regarded as consequential. And the same is true as to the 3 acres of land referred to in Finding X. In other words, we confine recovery in the case to the land actually invaded and washed away, including the quantity in the gully, amounting to 6t8<j acres, the reasonable value of which is $200 per acre, or $1,360.

*86Oí course there can be no recovery for the money expended by the claimant’s testator set forth in Finding V, as whatever money he expended was for the protection of his own property, and it is by no means clear that as riparian owner he was not obligated to expend the money he did, if not more, to prevent the overflow upon his land. Certainly there was no taking by the Government, although by its lawful act he may have been compelled to expend the money he did, not for the benefit of the Government, but for his own protection.

For the reasons we .have given judgment is ordered to be entered for the claimant on Findings YII and VIII in the sum of $1,860.