#### A. H. HEYWARD AND FANNIE H. CHAMPION, ADMINISTRATORS OF THE ESTATE OF ANDREW H. HEYWARD, DECEASED, v. THE UNITED STATES.

[No. 26520.

Decided January 29, 1917.]

*On the Proofs.*

This case on its first hearing was reported in 46 C. CIS., 484; subsequently, upon defendants’ motion, a new trial was granted, and the case is now heard upon the new proof.

The decision is rested upon the former opinion of the court. *United States*v. *Lynah,*188 U.' S., 445 governs.

*The Reporter’s*statement of the case:

*Messrs. J. Boyd Evans*and *E. G. Brandenburg*for the plaintiffs. *G. A. & F. W. Brandenburg*were on the briefs.

*Mr. Charles F.*Jones, with whom was *Mr. Assistant Attorney General Huston*Thompson, for the defendants.

*88Booth, *Judge,*

reviewing the facts found to be established, delivered the opinion of the court:

This case was previously decided by the court on May 29, 1911, in an elaborate opinion by Judge Howry. Defendants filed a motion for a new trial predicated largely upon errors of fact. The motion was allowed, additional testimony taken, and the case is now here for final disposition under the last proceedings.

The crux of the situation is found in finding VII. The decedent’s lands are situated upon Savannah Back River, a tributary of the Savannah River, the junction of the two streams occurring at a point about 12 miles above the city of Savannah, again merging some 2 miles below the city. The Government continuously since 1879 has been improving the Savannah River, a navigable stream, by building dams, dredging, and such other engineering work as might improve the same for navigation. These improvements, without going into detail, have resulted in a change of normal conditions respecting the ebb and flow of the tide and the elevation of the mean high and low water plane in the waters of Savannah Back River, resulting, as set forth in finding VII, in an increased elevation of the low-water plane directly in front of the decedent’s plantation of about 10 or 12 inches, an increase of sufficient extent to preclude the use of said lands for rice culture, retard the proper drainage of the lands, and through percolation and seepage make them unfit for any agricultural purposes. The lands had for more than 70 years been used as rice lands, having been reclaimed for that purpose, and were especially so adapted. The claim is for a taking by the defendants, alleged to arise under the fifth amendment to the Constitution.

The case might well be disposed of by a direct reference to the former opinion of the court — 46 C. Cls., 484. In that opinion the authorities cited in opposition to the claim are fully analyzed and little can be added to what was then said.

In the present record, however, there is a slight change in the findings of fact, not of sufficient importance to materially affect the judgment, except as to amount.

*89We are of opinion that the case falls squarely within the decision of the Supreme Court in *United States*v. *Lynah,*188 U. S., 445. The lands involved adjoin the “ Yerzenobre ” plantation on one side and Beech Hill on the other. The former were in issue in the *Lynah ease*and the latter in the *Williams case,*188 U. S., 485. The natural situation is identical in all important respects.

Judgment will be awarded the claimant for 936 acres at $25 per acre, amounting to $23,400.

It is so ordered.

Campbell, *Chief Justice,*

concurring.

I concur in the conclusion reached in this case because of the *Lynah case.*But for that case, I would conclude that the principle announced in *Gibson's case,*166 U. S., 269, 29 C. Cls., 18; *Bedford's case,*192 U. S., 217, 36 C. Cls., 474, and *Greenleaf*v. *Garrison,*237 U. S., 251, would govern.

The lands claimed to have been taken were subject to tidal overflow twice daily until by embankments and other artificial means overflows were controlled and the lands drained at low tide. In improving the navigation of Savannah River the Government was exercising a constitutional right and power. Its work did not cause the lands to be overflowed; they were subject to overflow. But because of the Government’s works in improving navigation the lands could not be drained when and as drainage was required in the proper culture of rice.

The reclamation of the lands and the embankments made by the owners for said purpose, it would seem from said cases, were subservient to the dominant right of the Government to improve the navigation of said river, and any damage caused thereby would be consequential damage, not cognizable by this court.