#### WILLIAM G. MORRELL v. THE UNITED STATES.

[No. 27194.

Decided June 12, 1922.]

*On the Proofs.*

*Eminent domain; Government dam; talcing; deed to United*States.— Where plaintiff’s lands were on the same branch of the Savannah River and adjoined each other on the same side as the lands involved in the cases of *United States*v. *Lynah,*188 TJ. S. *380445; *United States*y. *Williams,*188 TJ. S. 485, and *United States*v. *Heyward,*250 U. S. 633, and were similarly situated in relation to tlie rise and fall of said river, the questions of law are governed by the decisions in thosq cases, and there was a taking of plaintiffs property under eminent domain, but before judgment is paid plaintiff must give the United States a good and sufficient deed to the same.

*Bankruptcy; claim scheduled; abandonment by trustee.*— Where the paintiff, after bringing suit in this court, goes into bankruptcy and schedules his claim against the United States as part of his assets, and the trustee in bankruptcy fails to accept it as part of said assets, and the plaintiff is discharged and after-wards dies, the claim becomes part of the estate of deceased plaintiff.

*The Reporter's*statement of the case:

*Mr. E. O. Brandenburg*for the plaintiff. *Brandenburg <& Brandenburg*and *Mr. W. Boyd Evans*were on the briefs.

*Mr. Charles F.*Jones, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

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

I. The plaintiff, William G. Morrell, is a citizen of the United States, and is the son of the original plaintiff, William G. Morrell.

In the year 1896 or 1897 the plaintiff’s father, who was a citizen of the State of Georgia and a resident of the city of Savannah, purchased from the Savannah Bank and Trust Company, of Savannah, Georgia, a tract of about 2,100 acres of land, known as Recess plantation, located in what is now Jasper County, South Carolina, about 6 miles above the city of Savannah, on the east shore of Little Back River, a branch of the Savannah River, which branches from the left-hand side of said river 'about 12 miles above the city, and finds its way back into the main river about 2 miles below Savannah, and the lower portion of which is known as Back River.

The deed from said company to Morrell for said land was executed and delivered on April 11, 1899, and record title remained in the said Morrell until 1910, subject, however, to a deed of trust or mortgage executed by him thereon on January 12, 1904, under which mortgage the plantation was subsequently sold for default and conveyed by deed of *381April 8, 1910, to one Frank Hayne. After a number of conveyances of the property, it wa.s sold and conveyed to one Gordon S. Orme, by whom it was, on December 27, 1920, sold and conveyed' to the present plaintiff, William G. Morrell, who, on September 15, 1921, was substituted as plaintiff in this cause as the sole heir at law of the original plaintiff, William G. Morrell, deceased.

II. This suit was filed on -December 29, 1904. All of the testimony of the plaintiff bearing upon the question of injury to the land and taking by reason thereof was completed in the spring of 1905. The original plaintiff, William G. Morrell, on June 3, 1910, was adjudged a bankrupt on his own petition by the United States District Court for the Southern District of Georgia. A trustee was duly appointed to administer the bankrupt’s estate, and on August 2, 1910, the said Morrell was discharged from bankruptcy. The claim involved in this suit was scheduled as part of the assets of the bankrupt’s estate and described in the schedule of assets as follows:

“ United States Government for damages to Becess plantation through building of dams. Claim filed for $40,000. Value unknown.”

No disposition of this claim was made by the trustee nor any steps taken by him to protect it or enforce its collection in his administration of the estate. He was not substituted as a party plaintiff and he employed no attorneys during his administration of the estate prior to his discharge. He filed his final account on June 27, 1914, which was approved and the trustee discharged on July 3, 1914. This account contains no mention of this claim. Since his discharge he has done nothing to protect the claim or to prosecute it. The attorneys for the original plaintiff and bankrupt, William G. Morrell, employed prior to his bankruptcy and who brought this suit, have continued to control its prosecution before the court up to the time of his death and thereafter as representing his administrator, who was substituted as party plaintiff, and after the settlement of his estate and the discharge of the trustee have represented the present plaintiff, his son and only heir and distributee, who now holds title to all of the land involved in this suit. The claim was of a character which required attention from the trustee in *382order to prevent it from being lost by the dismissal of the suit for nonprosecution. Neither the trustee nor any of the creditors of the bankrupt are before the court asserting an interest in the claim, and have never been. It has been kept alive since the discharge of the trustee by the original plaintiff and his representative and heir, represented by the attorneys who prepared the case for trial and argued it in court.

The defendant has never been put in possession of the land in question which is now in the possession of the present plaintiff, William G. Morrell.

III. About 12 miles above the city of Savannah the Savannah River divides into three branches, the western or main branch, upon which the city of Savannah is located, being known as Front River; the middle branch, as Middle River; and the eastern branch, as Little Back River and Back River. Middle River finds its way back into Front River at about 5 miles above the city. Little Back River finds its way into Back River at Cross Tides about 5 miles above the city; and Back River, which is a continuation of Little Back River from Cross Tides, about 4 miles above the city, finds its way into Front River about 2 miles below the city. Cross Tides is a cross channel about 4 miles above the city between Argyle Island on the north and Hutchinson Island on the south, and connects Front River at that point with Little Back River and Back River. Originally the larger part of the flow of Front River passed through this Cross Tides Channel, and into and through Back River, instead of continuing on down Front River past the city of Savannah ; and much of it yet passes through Cross Tides Channel, though impeded by a Government dam across the channel at a height of about mean low water, which dam constitutes a part of the Government navigation improvement works at and near the city of Savannah. .

IY. Recess plantation is located on the eastern bank of Little Back River, opposite the southern end of Argyle Island, and about 1 mile above Cross Tides Channel. Beech Hill, Lucknow, Redeem, and Varnezobra plantations, the plantations involved in the cases of *United States*v. *Williams,**383188 U. S. 485; *United States*v. *Heyward,*250 U. S. 633; and *United States*v. Lynah, 188 U. S. 445, lie on the same bank of Little Back River as Recess plantation, ranging, respectively, from about three and a half miles to 6 miles, by the course of the river, above Recess plantation.

The locations of said branches of the Savannah River and of the said plantations are clearly shown by the blueprint map entitled “ Index map showing rice fields on the lower portions of Savannah River, Ga.,” which map is by reference made a part of these findings of fact as Exhibit A.

Y. The Savannah River is a tidal fresh-water stream with a range of tide between mean low water and mean high water at the city of Savannah of about 6 feet. A large portion of the land lying along the river for some distance above the city of Savannah, including a large part of said recess plantation, the surface of which lies between mean low Avater and mean high water, and in its natural state, due to this condition, was regularly overflowed at flood tide, and unadapted to cultivation, was reclaimed by the planters many years before the beginning of the Government improvements complained of in this cause, by the construction of embankments, or levees, and drainage canals and ditches, and had been in use *70*years or more for the growing of rice, for which purpose, in their reclaimed condition, they were especially adapted and solely used.

Said rice lands required irrigation, for which they were dependent upon the waters of the river, the rise and fall of its tides, and the canals, “trunks,” drains, and ditches established in, through, and upon said lands, through and by which the waters of the river were, when desired, allowed to flow upon and over the land at flood tide, and then, when desired, drained from the land at ebb tide.

The natural and normal flow of said river and its said branches in and through and over their natural channels and beds to the ocean, and the normal tides therein before the said Government improvements were made, furnished means for properly flooding and draining said rice lands for the production of rice thereon and were utilized for that purpose.

*384VI. The levees for the protection of the plantations on the eastern shore of Back River and Little Back River, including said Recess plantation, were constructed in common by the planters or owners of the land for the reclamation of that particular area, and consisted of the main levee along and near the river shore with a connecting cross levee just above Varnezobra plantation on the north, known as the Varnezobra dyke, or freshet bank, and another cross levee on the south some distance below Recess plantation; known as the storm dyke, which cross levees ran out to the high ground a mile or more back from the river.

The Varnezobra dyke, or freshet bank, on the north was for protection against freshets or high water in the river; and the storm dyke on the south was for shutting out or controlling the tidal flow over the lands and for protection against overflow by high storm tides resulting from storms from the ocean.

These levees when in repair usually kept out the tidal and river waters, but did not keep out the water from the creeks and other small streams flowing in from the high lands, between the north and south cross levees, which water flowed in and gathered on the lowest portion of said lands some distance back from the river.

VII. An elevation of not less than about 3 feet above mean low water is necessary for the proper drainage of said lands for the successful growing of rice.

The surface of the tidal lands of said Recess plantation was highest along and nearer Little Back River, the land being lower farther back, beginning approximately a half mile from the river, until it reached the high lands on the rear portion of the plantation.

The higher land nearer the river, though varying somewhat in elevation, had an average elevation of about *4-}*feet above mean low water in the river. The lower lands farther back, called “bay lands,” had a less margin of drainage, received the flow of water from the creeks and small streams from the high lands, and were correspondingly wetter and more difficult to drain.

VIII. These rice lands were flooded and drained by means of canals and “trunks” running from the river *385through the levee and out through the land, with floodgates for controlling the inflow on the rising tide and the outflow on the ebb tide.

The lands were laid off into “squares” of varying sizes, running generally in size from about 5 acres to 40 acres, and inclosed by smaller embankments, so that each “ square ” could be flooded and drained independently of the others. This system of “squares” is shown by a map or plat of Recess plantation introduced in this case as “ Claimant’s Exhibit T 8,” which is made a part of these findings of fact as Exhibit B.

The flooding and the draining of the individual “ squares ” were accomplished by means of small lateral canals or “ trunks ” running from the main canals through the embankments into the “squares” and having gates for controlling the inflow and outflow of the water. Each plantation had its own system of canals, “ trunks,” and ditches for the flooding and draining of its rice lands.

IX. The method long in use in the growing of rice on such rice lands along the Savannah River was as follows: During the winter the stubble and other growth on the land from the previous year was burned off, the water in the meantime having been drained off, and the land was plowed. The canals and ditches were cleaned of vegetable growth and alluvial deposits by a process called “ slushing.” Some time after the plowing and “ slushing,” the ground was harrowed, and toward the last of March the seed was planted, in drills, and covered. As soon as a square was planted, the gate in the “ trunk ” from the canal to the “ square ” was opened and the “ square ” was flooded to a depth of about a foot. This flooding is called the “ sprout flow,” and in the earlier part of the planting season the water was left standing on the “ square ” for ten days or more to “ pip ” the rice. When the rice was observed to have germinated, the water was drained off by opening the gates during ebb tide, and the land was then allowed to dry and remained dry for a period. When the rice plant was up through the ground and could readily be seen along the drill row, the flood gates were opened and the “ square ” again flooded to the depth of a foot above the *386growing plants. The water was kept at this depth until the rice was seen to be struggling for light, when the water was lowered until the plants floated on the water and received the sunlight, which caused them to stand upright and grow. This second flooding was called the “ stretch ” water. This “stretch” water was permitted to remain for a period of from 16 to 26 days to a depth sufficient to cover the roots of the plants, and was then drained off again, and the land dried for some 30 days, during which period it was cultivated with plow and hoe. This done, it was again flooded, this flooding being called the “ harvest ” water, which was kept on the land and increased in depth from time to time as the rice plant grew. The rice finally headed and the water was kept deep enough to protect the plant from being blown down by storm or wind. The “ harvest ” water was kept on the land until the rice was ready for harvesting, when it was drawn off and kept off the land until again needed in the growing of the next year’s crop. The harvesting proceeded as soon as the land was dry enough after the “harvest” water was drawn off and usually took place in August.

It was thus necessary to control the inflow and outflow of the water to properly flood and drain these rice lands. The rice culture of South Carolina is based upon this system of cultivation and irrigation, and the State has long prohibited interference with the natural flow of any waters which would result in damage or destruction of rice lands by preventing the proper and necessary flooding of the lands.

X. The Savannah River is a navigable stream, and beginning as early as the year 1879 the Government of the United States, under its proper officers, duly authorized by acts of Congress, has almost continuously been engaged in the improvement of the navigation of said river, appropriations of several millions of dollars having been from time to time made by Congress and expended by the executive branch of the Government in carrying on such improvement.

XI. In thus improving the navigation of said river up to and including the harbor of the city of Savannah, some 5 or 6 miles below said Recess plantation, the Government has built and maintained in the bed of the Savannah River proper, known at this point as Savannah “Front River,” *387certain dams, jetties, and training walls for controlling and directing tbe flow of the river, and has also enlarged and deepened the navigable channel of the river by dredging from its bed large quantities of materials, about 12,000,000 cubic yards being dredged and removed between the years 1879 and 1905, and about 4,000,000 cubic yards since 1905. No work of the character of dams, jetties, and training walls was performed by the Government between the years 1894 and 1903.

Approximately 1,500,000 cubic yards of this dredged material was, prior to the year 1905, dumped in Back River below Cross Tides Channel, and ranging from about 1 mile to 4 miles below said channel. It was generally dumped and distributed in deep holes in the river, but not always so, and the cross section of the river appears to have been at places slightly diminished by the material so deposited.

This dumping of dredge material in Back River was for convenience and economy in disposing of such material, rather than transport and waste it at sea, much farther away.

The said Government improvements began at Cross Tides Channel, about 4 miles above the city of Savannah, and about one and a half miles below said Recess plantation, and extended down Front River several miles below the city and beyond the junction of Back River and Front River, which is about 2 miles below the city.

XII. In 1886 the Government completed the construction . of a dam across said Cross Tides Channel, between Hutchinson Island and Argyle Island, which dam had been commenced in 1879. When completed this dam extended to a height of mean high water, but within about a year after its completion its crest was broken and was gradually washed and worn down until, in a few years, the crest reached, and has since remained at, an average elevation of about mean low water. This was the condition in 1894.

Prior to the erection of this dam practically two-thirds of the water in Front River above Cross Tides went through Cross Tides Channel and by way of Back River; and the purpose of the dam was to divert this portion of the flow from Cross Tides Channel and force it into and down Front ■ River, past the city, to aid in scouring out and improving the channel and harbor.

*388When this dam was constructed! its effect was very greatly to increase the volume of water in Front River below Cross Tides and at the city, and correspondingly to diminish the volume of water flowing through Cross Tides Channel and Back River. This change of volume in Front River, however, diminished as the dam diminished in height and more of the water was thus permitted again to find its way through said Cross Tides Channel into and by Back River.

XIII. The change of flow resulting from the construction of said Cross Tides Dam, together with contraction of the cross section of Front River by the subsequent Government dams, jetties, and training walls in and along Front River below Cross Tides Channel, had the effect of raising the mean low-water plane in Front River and of lowering it in Back River. The maximum increase in this elevation of the mean low-water plane in Front River was in 1886, upon the completion of said Cross Tides Dam, at which time the increase in elevation just above said dam was about 2|- feet.

This increase in the elevation of the mean low-water plane in Front River resulting principally from the construction of Cross Tides Dam, extended, in a diminishing ratio, up Front River and Middle River, and into Little Back River at their junction with it some *7*or 8 miles above Recess plantation, and it continued, in point of time, until by the gradual reduction of Cross Tides Dam and the diversion of a material and increasing portion of the flow of Front River back again through Cross Tides Channel into and through Back River, and also by an increase in the controlling cross section of Front River by the Government dredging and the scouring of the river bed, it gradually receded, though with some variations due to Government contraction works in the river, until in 1894 it was only about 14 inches above its normal elevation immeditaely above Cross Tides *Dam;*and by 1904 it had resumed the normal elevation it had occupied prior to the commencement of said Government improvements, at which elevation it has since substantially remained.

XIV. The effect of said increase in elevation of the mean low-water plane in Front River, Middle River, and upper Little Back River was, while it existed, to reduce the drainage margin between the surface of the lands of the said *389Recess plantation and moan low water in the liver alongside said lands, the maximum reduction of which drainage margin occurred in 1886, at the time of the completion of said Cross Tides Dam.

By reason of the said Government improvements in the Savannah River the cross section or sectional area of Back River below said Recess plantation has been reduced. The mouth of the Savannah River has been narrowed materially. The Savannah River below the mouth of Back River was narrowed with training walls from about 1,000 feet to about 500 feet in order to throw the flow down North Channel and take away part of the flow that went down South Channel, and the first of the improvements at that place were made in 1894, the next in 1903, and the last in 1907. The dredging in Front River has continued since the bringing of this suit and large quantities of dredged material have been deposited in Back River since that time. The improvements that have been made by the Government were in Front River with'the object of deepening and improving its channel for purposes of navigation. Since the improvement of the Savannah River the tide rises in Back River about an hour before it rises in Front River.

The cross section of Back River was diminished by the said improvements, and the deposit of dredged material therein as aforesaid made the bed of the river shallower in places and caused some shoals in the river.

It does not appear that said increase in elevation of the-mean low-water plane, between 1886 and 1904, or any other effect of said Government improvement in the Savannah-River resulted in overflowing the lands of the said Recess-plantation or in rendering them more subject to flow than, they were prior thereto.

The alterations in the currents of the Savannah River, the deposit of said dredged material, the lessening of the cross section, together with other work done by the Government, caused an elevation of the mean low-water level at or near said plantation to the extent of about 10 or 12 inches- and brought the level of mean low-water to approximately the level of the floor of the canal floodgate on said plantation and produced a condition in the waters of Little Back River at said place which retarded the outflow of water from *390said, lands and diminished the force of the ebb tide in the river, thereby rendering the drainage of the lands so slow that they could not be properly drained as and when it was necessary to take the waters off the lands for the proper production of rice. Water was thus caused to stand upon the lands during times when they should have been drained and to more continuously remain in the canal and trunks, being held back by the said conditions in the river, and sometimes because the incoming tide would meet and prevent the outward flow. A general result was that by reason of the diminished drainage neither the water which was let in for the purpose of irrigation, nor water coming from freshets, nor water reaching said lands from contiguous lands the use of which had been abandoned, could be gotten off the lands and out of the canal and trunks as soon as or as quickly as it was necessary to do to properly utilize the lands. Seepage also took place into said lands through the embankments surrounding the same.

During the winter and spring months of the years 1899 to 1903, inclusive, and also the summer months of 1901, there were unusually heavy and continued freshets and high water in the Savannah Kiver, which had the effect of holding the tidal low water level in said river abnormally high during a large part of that time, the water level in Little Back Kiver at low tide being at one time in the spring of 1901 so high for some weeks that the gates of the canals could not be opened at all, and for a number of days continuously the water at low tide was several feet above the surface of said rice lands, thus making their drainage impossible until said freshets and high water subsided.

The lands abandoned by the said Morrell, the original plaintiff in this cause, because of lack of drainage, were abandoned by him in the year 1904, and at that time his canals, trunks, and flood gate were in proper condition. As a consequence of said lack of drainage and of a gradual seeping in of the water from the surrounding lands, and the water remaining on the lands or in the canals or ditches, between 1901 and 1904, when suit was brought, the lands abandoned by said Morrell had become soggy, sour, and *391boggy and were in 1904, in their then condition, unsuited for rice culture and, so far as is known, were unsuited for any agricultural purpose.

XV. Up to about the time of the Civil War an area of approximately 1,500 acres of the tidal lands of said Recess plantation, including much of the low “bay lands” some distance back from the river, was used in the growing of rice, the rice on the “ bay lands,” because of the wet, boggy, and spongy character of these lands, being cultivated by hoe hands. After that time only 941.7 acres of said rice lands were used for rice growing, the cultivation of 558.3 acres of the “ bay lands ” being discontinued and abandoned and the land allowed to develop swamp growth.

The said 941.7 acres of land which continued in cultivation after the Civil War consisted of that portion of said Recess plantation laid off into rice “ squares,” as shown by Exhibit B to these findings of fact.

The growing of lice on said 941.7 acres of land was successfully continued until the year 1900, good crops being produced thereon by the said Morrell for the years 1897, 1898, and 3899. During the years 1900 to 1903, inclusive, the crops on this land were largely failures because of a lack of drainage, and the cultivation of 591.7 acres of it was then abandoned because of the loss of drainage shown by Finding XIV, which rendered said land useless for the growing of rice or other agricultural products. The remaining 350 acres of said 941.7 acres of land, being the higher portion of said land, continued to have sufficient drainage and to be used for the growing of rice thereon.

There is no proof or survey in the record sufficient from which the metes and bounds of the 591.7 acres of land can be determined.

The said 591.7 acres of land abandoned in 1904 because of loss of drainage were worth the sum of $14,792.50 prior to and up to the time of said loss of drainage. It does not appear that the said 558.3 acres of “ bay lands ” abandoned about the time of the Civil War were of any material value at the time of the making of the said Government improvements in the Savannah River and the resulting diminishing of the drainage of the lands of the said Recess plantation.

*392GRAham, Judge,

delivered the opinion of the court.

This is one of a number of cases growing out of losses sustained by reason of the work of improvement by the Government in the navigation of the Savannah Eiver over a period of years from 1886 to 1904. The other cases are *United States*v. *Lynah,*188 U. S. 445; *United States*v. *Williams,*188 U. S. 485; and *United States*v. Heyward, 250 U. S. 633; 46 C. Cls. 484; 52 id. 87. The lands in these cases adjoined each the other.

The land claimed to be destroyed in this case is a few miles removed farther down the river from the lands which were involved in the cases just named. It is located on the same branch of the river, on the same side, and as to the portion of it affected by said improvements of navigation is similarly situated as to the tidal rise and fall of the water of the river, and is of similar productivity agriculturally, and with the lands in the above cases was used in the cultivation of rice by artificial processes. The facts are fully set out in the findings.

The questions of law involved and the general facts are substantially the same as in those cases except as to the amount of land affected and the question involved in the bankruptcy proceedings of the original plaintiff, William G. Morrell, which will be discussed later on. The facts show that the loss for which compensation is sought here was the outgrowth and concomitant of the improvement of the navigation of a navigable river; that the land claimed to have been destroyed was not used in the work of the improvement of navigation or directly taken for that purpose; that this land in its natural state prior to its use in the cultivation of rice by artificial processes and the construction of said improvements in navigation was submerged at high tide and not suitable in this natural state for the cultivation of rice; that the conditions which made it suitable for such cultivation were artificial, created by artificial dikes, embankments, and canals, which altered the natural state so as to make it adapted to the cultivation of rice; that the injury and loss here complained of was due solely to an interference with this artificial condition by a change in the natural tidal levels of the water in said river; that during the period when *it*is claimed this injury was done and loss suffered the land in *393this artificial condition was repeatedly submerged by floods in the Savannah River due to waters seeping through said embankments and breaking over them, as well as by the increased volume of surface water drained upon them from the highlands during these periods; that it does not appear how much of the injury complained of is due to these floods and this surface drainage and how much to the improvement of navigation, there being no proof which would make it possible to segregate the amount of injury done by each. However, as all of these questions arose and have been passed upon in the cases above quoted, they are outside of the field of proper discussion.

The question has been raised in this case of the right of the plaintiff to recover a judgment in this suit upon the ground that the claim was part of the assets of the bankrupt, and scheduled as such, and therefore is the property of the bankrupt’s estate and not of the plaintiff.

This suit was brought in December, 1904. Most of the testimony for the plaintiff was taken in the spring of 1905 by attorneys employed by the original plaintiff, William G. Morrell. On June 3, 1910, said William G. Morrell on his own petition was'adjudged a bankrupt. A trustee was thereafter appointed to administer the bankrupt’s estate, and on August 2, 1910, the said Morrell was discharged from bankruptcy. This claim was scheduled by him as one of the assets of his estate with the following description:

“ United States Government for damages to Recess plantation through building of dams. Claim filed for $40,000. Value, unknown.”

The trustee did nothing in regard to this claim and made no disposition of it. He had notice of the fact that it was being sued upon, and took no steps to protect the claim or enforce it. The record does not show that he was ever made, or attempted to have himself made, a party to the suit.

He employed no attorneys and made no effort to enforce the claim. During the period of his trusteeship the suit was looked after by the attorneys formerly employed by the bankrupt; and since July 3, 1914, when the trustee was discharged, these attorneys, representing first the original *394plaintiff, then his administrator, and afterwards the present plaintiff, his son and sole distributee, have prosecuted the suit, taken the necessary steps to bring it to a hearing, and presented and argued it in court. Since his discharge the trustee has done nothing to assert any interest in the claim or to protect or prosecute it. Under these circumstances it is a fair conclusion that he did not accept it as property of the bankrupt. Apparently he regarded it as of an onerous and unprofitable nature and as a burden rather than as a benefit to the estate and elected not to accept it. This he had a right to do. *Sparhawk*v. *Yerkes,*142 U. S. 1; *Dushane*v. *Beall, 161 U. S.*513, *515.*Under the above authorities it must be held that he abandoned the claim. The effect of this abandonment by the trustee relates back to the time of the original proceedings in bankruptcy and left the title to the property in the bankrupt. In the case of *Sessions*v. *Romadka,*145 U. S. 29, 52, the court said:

“ In such case the abandonment relates back to the commencement of the proceedings in bankruptcy, and the title stands as if no assignment had been made. Such abandonment is not so much a transfer of an existing interest in the assignee as an election on his part to treat the assignment as having never included that claim.”

The above quoted cases of *Lynah, Williams,*and *Heyward,*upon the authority of which this case is decided, hold that there was a taking of the land destroyed. In this view of the matter, as the Government is paying for the full value of the land, it should be put in possession of it.

Judgment for plaintiff in the sum of $14,792.50, the payment of said judgment to be suspended until the plaintiff shall file herein a proper and competent survey showing the metes and bounds of the said 591.7 acres of land abandoned in 1904, and shall give to the United States a good and sufficient deed for said land, said deed to be approved by the Attorney General.

Hat, *Judge;*DowNey, *Judge;*Booth, Judge, and Campbell, *Chief Justice,*concur.