#### SOUTHERN PACIFIC COMPANY v. THE UNITED STATES.1

[No. 286-A.

Decided June 4, 1923.]

*On the Proofs.*

*Improvement of navigation; consequential damages.*— Where the Government under authority of an act of Congress constructs a jetty or breakwater at the mouth of a bay for the improvement of navigation therein, and the effect of the erection of the same is to cause the waters of the Pacific Ocean to break with such violence against plaintiff’s railroad, located on land bordering on said bay, as to wash away and destroy a section thereof, the injury is consequential and the Government is not liable for any damages resulting therefrom.

*The Reporter's*statement of the case :

*Mr. William R. Harr*for the plaintiff. *Mr. Charles II. Bates*was on the briefs.

*Mr. M. L.*Blalce, 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 is a corporation duly organized under the laws of the State of Kentucky and now is and was during all the times hereinafter mentioned engaged as a common carrier in the transportation by railroad of persons and property in and through the various States of the United States. Among the lines of railroad owned and operated by the plaintiff during the times ’ hereinafter referred to is a branch line which runs along the shore at the entrance to Tillamook Bay, in the State of Oregon, county of Tilla-mook, between the towns of Bayview and Garibaldi, said line having been constructed under and in accordance with the laws of the State of Oregon, and its right of way being-owned by the plaintiff in fee simple.

II. By-the liver and harbor acts of July 25,1912, 37 Stat. 201, 220, and March 4, 1913, 37 Stat. 801, 819, certain appropriations were authorized and made for the construction of a jetty or breakwater 5,700 feet long on the north side of *429the entrance to Tillamook Bay, Oregon, and for certain dredging work for the purpose of improving Tillamook Bay and Bar. One-half of the cost was to be defrayed by the port of Bay City. The jetty was to be built and the dredging done by the War Department of the United States. The work was to be executed in accordance with and subject to the conditions of a report of the Secretary of War embodied in House Document No. 349, 62d Congress, 2d session. Construction of the jetty was begun in the fall of 1914 and was completed in 1917, and extended from a point near Bar View on the eastern shore of Tillamook Bay, almost due ivest, by a few degrees north.

III. Prior to the construction of this jetty there was a strip of land about 500 feet wide between plaintiff’s right of way and high-water mark. On this land there was a county road, a grove of trees, residences, and between the county road and the tracks of the plaintiff were summer cottages, and a hotel. Before the fall of 1914 the waves of the ocean did not seriously injure the land between the right of way of the plaintiff and the ocean, although at times before the fall of 1914 the waves did wash over , the tracks of the plaintiff. The washing away of the land between plaintiff’s right of way and the ocean began in October, 1915, and during a heavy storm in November, 1915, the land at the points above named was completely washed away, and the right of way of the plaintiff was at the same time partially destroyed, and the plaintiff’s tracks were completely washed away for a distance of about 1,200 feet. At the same time the trees, the county road, and the improvements above mentioned were washed away.

The ocean currents flow from southwest to northwest off Bar View and the prevailing storms during the fall and winter are from the southwest.

IV. Annexed to-the petition and made a part of these findings by reference are two maps, marked, respectively, “ Exhibit A” and “Exhibit B.”

The map Exhibit A shows the shore line adjacent to plaintiff’s right of way between Bar View and Green Hill as it existed in February, 1914, prior to the construction of the

*430jetty by the Government; also the soundings adjacent to said shore line at that time.

The map Exhibit B shows the conditions with respect to said shore line and soundings as they existed in September, 1919, after said-jetty was completed and also the direction of the ocean currents at this point.

Y. To protect its right of way, its tracks, and other property thereon the plaintiff constructed a pile bulkhead about 2,400 feet long from the east or shore end of the Government jetty, southwardly, parallel to its right of way for a distance of about 2,400 feet, and backfilled this bulkhead with rock and deposited large riprap rock on the outside, and shifted its track 22 feet east between Bar View and Green Hill and raised the said track 2.8 feet.

Up to February, 1922, the plaintiff had expended for the work above referred to the sum of $55,916.38.

In order to maintain said bulkhead it will be necessary for the plaintiff to reinforce said bulkhead by placing an additional 10,000 cubic yards of rock at a cost of $25,000.

1

 Appealed.

Hat, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiff against the United States to recover the sum of $80,916.38, the amount expended by the plaintiff for the protection of its property. The plaintiff is the owner of a line of railroad which runs along the shore at the entrance to Tillamook Bay, in the State of Oregon, between the towns of Bar View and Garibaldi.

By the river and harbor acts of July 25, 1912, and March 4, 1913, appropriations were made for the construction of a jetty 5,700 feet long on the north side of the entrance to Tillamook Bay and Bar. The jetty was to be built by the War Department of the United States. Construction of the jetty was begun in the fall of 1914 and was completed in 1917 and extended from a point near Bar View on the eastern shore of Tillamook Bay almost due west by a few degrees north.

Before the jetty was constructed there was a strip of land about 500 feet wide between the property of the plaintiff and high-water mark. On this land there was a county road, a grove of trees, and some residences, and between the county *431road and the tracks of the plaintiff there were a hotel and summer cottages.

Before the fall of 1914 the ocean did not seriously injure the land above described, although at times before the fall of 1914 the waves did wash over the railroad tracks of the plaintiff. The washing away of the land began to be noticed in October, 1915, and during a heavy storm in November, 1915, the land aforesaid was completely washed away, the trees, the county road, the hotel, and houses were all destroyed: and the right of way of the plaintiff was at the same time partially destroyed, and its tracks were washed away for a distance of about 1,200 feet.

The plaintiff constructed a bulkhead to protect its property at the cost of $55,916.38 and in order to reinforce it will be obliged to expend $25,000 additional.

The plaintiff claims that the construction of the jetty by the Government caused a change in the natural flow of the ocean currents and waters of Tillamook Bay, and deflected them toward the shore at Bar View, and caused the washing away of the plaintiff’s property, and made it necessary for it to expend the money for which it is suing.

The plaintiff claims under the fifth amendment to the Constitution and alleges that its property was damaged, and that as a consequence of the action of the Government in constructing the jetty it was obliged to expend the sum of money above mentioned for the protection of its property and to prevent thereby further damage to its right of way and tracks. The plaintiff alleges further that its property was appropriated by the Government when the jetty was constructed, and that it is entitled to just compensation for damages to its right o'f way, estimated on the basis of what it has and will cost the plaintiff to repair such damage.

No attempt has been made by the plaintiff in this case to show what the value of its right of way was, which it claims was appropriated; all it has proved is that its right of way and tracks were damaged, and that in order to prevent further damage it has expended a certain sum of money for that purpose. It is not suing here for the value of property destroyed but for work done to protect property not yet developed. We do not think that such an expendi-*432toe can be held to be a basis upon which to fix just compensation for property appropriated by the Government.

Moreover it does not appear that there has been a taking of property in this case for which just compensation can be awarded. It is true that the loss of property did not occur until the jetty had been built by the Government; that the building of the jetty caused the loss is matter of opinion; but assuming that there was some connection between the work of the Government and the flow of the ocean currents and the consequent loss or damage of the plaintiff’s property, it does not follow that the Government is under obligation to pay therefor as for the taking of the property. *Horstmann Co.*v. *United*States, 257 U. S. 138, 145. If the plaintiff can recover in this court for a taking'under the fifth amendment to the Constitution it must be upon an implied contract. “ Wien in the exercise of its governmental rights the Geovernment takes property, the ownership of which it concedes to be in an individual, it impliedly promises to pay therefor.” But in this case the facts found preclude the implication of a promise to pay. The property was admittedly not taken for public use; there was-no intention to take it; the damage done, if any, was consequential; what was done was done in the exercise of a right, and the consequences are incidental, and no liability is incurred.

The latest expression by the Supreme Court on the question of a taking for which just- compensation must be made is in the- case of *Horstmann Co.*v. *United*States, *supra.*In that- case it was claimed that by the construction of certain irrigation works by the United States the body of ground water in the section covered b’y the project rose and caused the rise of the waters in the lakes, which prior thereto were used to extract soda from. The Supreme Court said, assuming there was casual connection between the work of the Government and the rise of waters in the lakes, and the consequent destruction of the property of the plaintiff, it did not follow that the Government was under obligation to pay therefor as for the taking of the property. The case criticises the generality of expression found in the *lynah*Gase, 188 U. S. 445, and says: “ It is to be remem*433bered that to bind the Government there must be implication of a. promise to pay, but the circumstances may rebut that implication. In other words, what is done may . be in the exercise of a right and the consequences only incidental, incurring no liability.”

The petition of the plaintiff must be dismissed. It is so ordered.

Graham, *Judge;*Downey, *Judge;*Booth, *Judge;*and Campbell, *Ohief*Justice, concur.