#### JOHN HOOD v. THE UNITED STATES.

[Congressional, 11757.

Decided Dec. 5, 1910.]

*On the Proofs.*

Tlie claimant has owned and operated, for many years, a mill on the Monongahela Elver. In 1901 the defendants erected a dam for the improvement of navigation at a point below the claimant’s mill. The immediate effect is to back up the water of the river below an ancient dam so as to raise the water and thereby destroy the water power of the mill, submerging a part of the machinery of the mill and likewise submerging some of the claimant’s land.

I.When property is taken by the Government in the exercise of the right of eminent domain, with no claim of title, an implied contract arises, and the case being one of contract the court has jurisdiction.

II.The permanent submerging of land is a taking of private property for public use within the intent of the Constitution.

III.But the backing up of the water of a navigable river by a public work so as to raise the water below a dam which had been built and maintained by the owner of the adjoining land for the purpose of furnishing water power to operate his mill is not a taking within the intent of the Constitution, though it directly results in wholly destroying the water power of the mill.

*The Reporter's*statement of the case:

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

The claimant in his petition makes the following allegations :

*31That he is a citizen of the United States and is a resident of the county of Monongalia and the State of West Virginia.

That in the year 1903 and for some time prior thereto he was the owner in fee simple of a certain parcel of land situated in the said county of Monongalia and said State of West Virginia, on the west bank of the Monongahela River, and containing about 70 acres of land, and located in and near to a small village called Lowesville, upon which said tract of land there is and was located a water mill, which is the property of claimant, and which said water mill has been for many years past used for the purpose of grinding wheat, com, and other grains; that said mill was and is connected with a dam, constructed partly of stone and partly of timbers, extending entirely across the said Monongahela River, which dam is the property of the claimant; that said dam was constructed across the said river many years prior to the year 1903; that said dam has been maintained constantly from the time of the construction thereof down to the present time under authority of the proper State authorities or officials of the State of Virginia, prior to the 20th day of June, A. D. 1863, and permitted to be thus maintained by the proper State authorities or officials of the State of West Virginia, subsequent to the formation of said State on the said 20th day of June, A. D. 1863; that said dam was constructed and maintained for the purpose of furnishing water power for the running and operating of said mill; that the head of water thus provided by said dam was sufficient, during all seasons of the year, of operating said mill for the purpose of grinding grain as aforesaid; that the mill erected upon said land of claimant is a substantial frame building, three stories in height, and fully equipped with all the necessary appliances for a flour and grist mill, including a complete system of roller process; and that the head of water secured by the maintenance of the said dam aforesaid was prior to and in the year 1903 about 5 feet.

That some time prior to the year 1903 the United States Government, for the purpose of improving the navigation of the Monongahela River, began the construction in and across the said river, about one-fourth of a mile below claimant’s said mill and said dam, a lock or dam, known as Dam No. *3214, which said dam was finally completed on or about the -day of December, A. D. 1903, and has been paid for by moneys and revenues of the United States Government; that the construction and completion of said Dam No. 14, and also by the construction and completion of Dam No. 13, likewise built by said United States Government some distance below said Dam No. 14 in the said year 1903, in and across said Monongahela River, did cause the accumulation and backing up of the waters of said Monongahela River fo such an extent as to wholly destroy the water power used and required in running said mill, and that it doth render said dam and mill property of the said claimant wholly useless, since the completion of the said work of construction and erection of said dams.

That he, by large expenditures of money and by devoting great care, attention, and labor to his business, had acquired a very valuable property and had established a large and lucrative business, which yielded him about $1,200 per year profit; that by the destruction of his water power by the defendants as aforesaid he has sustained loss in the sum of $20,704.67.

The court, upon the evidence adduced, and after considering the briefs and arguments of counsel on both sides, makes the following findings of fact:

I. In the year 1903, and long prior thereto, the claimant was the owner of a tract of land located at Lowesville, on the west bank of the Monongahela River, in Monongalia County, W. Va., comprising about 70 acres and extending along the river bank a distance of about-feet. There was located partly upon and over the bed of said river and partly upon a strip or parcel of said land a gristmill, which was operated exclusively by water power supplied and furnished by means of a dam extending entirely across the said Monongahela River.

II. The milldam was erected across the Monongahela River many years prior to the year 1903, the original dam having been built at least 50 years prior to the date of the completion of Lock and Dam No. 14 by the United States, and was so constructed and maintained under authority of the proper State officials of the State of Virginia prior to the *3320th day of June, 1863, and permitted to be thus maintained by the proper State authorities or officials of the State, of West Virginia subsequent to the formation of said State of West Virginia on the 20th day of June, 1863, and said dam was built and maintained by claimant and his predecessor in interest for the purpose of furnishing water power to operate said mill.

III. In December, 1903, immediately prior to the time the United States completed the construction of Dams and Locks Nos. 13 and 14, that portion of claimant’s property lying contiguous to the said river was well suited for milling purposes, for which it was then being used, and was worth to him a large sum of money, including the value of the mill right or franchise. For four or five years immediately preceding the date that said dam and locks were completed, said mill property had produced a profit of something like $1,200 per year.

IV. In the years 1901-1903 the United States built two dams, with locks, across the Monongahela River; one dam and lock, No. 14, is located about 1,000 feet below or down the river from the mill of claimant; the other darn and lock, No. 13, is located about 4J miles below or down the river from claimant’s mill. These dams and locks were built in the improvement of navigation of said river under authority of acts of Congress.

V. The immediate effect of the construction of Dams and Locks Nos. 13 and 14 was to back up the water on claimant’s mill, submerging a part of the machinery and destroying the head of water furnished the milldam, and likewise destroying the water power.

VI. Claimant’s said mill was a three-story frame structure supported by a good stone foundation. The framework was of heavy hewn oak timber, and the siding was of good quality of poplar. The mill was covered by a steel roof. Said mill was equipped with a first-class roller process, including all needful machinery, and had a capacity of about 5 bushels of wheat and from 8 to 10 bushels of corn per hour.

VII. The mill site, or land upon which the mill building is located and the land around same, consisted of about three-fourths of an acre prior to the completion of said Dams and *34Locks Nos. 13 and 14. The backwater from said locks and dams submerged two-thirds thereof, leaving only one-fourth of an acre of said land free from said back or slack water.

YIH. The milldam, which was about 1,200 feet long, was constructed partly of stone and partly of timber, and extended entirely across the Monongahela Liver. It was in a reasonably good state of repair in 1903 when Dams and Locks Nos. 13 and 14 were completed by the United States. Said milldam was put in place at a cost of from $1,500 to $2,000.

IX. The water power furnished by means of the aforesaid dam was sufficient to run said mill at full capacity for about 10 months of the year, and the head of water furnished was from 4 to 6 feet.

X. The court finds, from the foregoing recitals, the ultimate fact to be, in so far as it is a question of fact, that, with the exception of the one-half acre of land which is permanently submerged by the building of said dam and locks by the United States, and which is worth the sum of $75, the remainder of plaintiff’s claim does not constitute a legal or equitable claim against the United States. *(Barnes*v. *United,*States, *ante.)*

*Mr.' William 8. Raymond*and *Mr. John 8. Lehman*for the claimant.

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

Howry, J.,

delivered the opinion of the court:

This case presents substantially the same conditions of fact and the application of the same legal principles arising out of the findings set forth in the case of *Barnes*v. *United States,*ante, p. 7, with one exception.

The exception grows out of that much of the tenth finding which discloses the taking of one-half of an acre of land owned and occupied by the plaintiff as a mill site on the Monongahela Liver. This mill site' covered more land than the one-half acre taken, but the proof reasonably establishes that this one-half acre was permanently submerged in consequence of the construction by the United States of the dam below the mill site for the improvement of the river. *35The reasonable value of the property so submerged appears in the findings.

When property is taken and appropriated by the United States in the exereise of the right of eminent domain, with no claim of title on the part of the Government to the property so appropriated, an implied contract to pay for the same is raised, and the court has jurisdiction to entertain such a case. *Schillinger*v. *United*States, 24 C. Cls. R., 278; *Great Falls Mfg. Co.*v. *United*States, 112 U. S. R., 645; *Langford*v. *United*States, 101 ib., 341; *Palmer*v. *United States,*128 ib., 262; *Lynah*v. *United States,*188 ib., 445.

The permanent submerging of the quantity of land shown by the findings is such a talcing as renders the Government liable. Consequently plaintiff is entitled to a report to Congress for the value of the property shown to have been so destroyed as to be useless to him. It was a taking.

As the plaintiff has not claimed in his petition to be entitled to a judgment against the United States under the thirteenth section of the act of March 3, 1887, 24 Stat., 505, the court makes its report under the provisions of the Bowman Act.

The other sums claimed by the plaintiff in his petition do not constitute either a legal or an equitable claim against the United States.

The findings and conclusions of the court will be reported to Congress, together with this opinion.