#### KEOKUK *&*HAMILTON BRIDGE COMPANY v. THE UNITED STATES.

[No. 34114.

Decided November 8, 1920.]

*On the Proofs.*

*Fifth amendment, talcing under.*— Where the United States in improving a navigable river incidentally damages a pier protecting a bridge so as to require considerable repair or rebuilding, there is no taking under the Constitution, and the United States is not liable for such damage.

*Same; jurisdiction.*— Actions in form for a taking under the Constitution but in fact for the recovery of compensation for a damage in the nature of a tort are not within the jurisdiction of this court.

*The Reporters*statement of the case:

*Mr. Felisa T. Hughes*for the plaintiff.

*Mr. Assistant Attorney General Franh*Davis, *jr.,*and *Mr. A. H. McCormiclc*for the defendants.

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

I. The Keokuk and Hamilton Bridge over the Mississippi River, between Keokuk, Iowa, and Hamilton, Ill., was built and put in operation in the years 1869 and 1870 under authority granted by the laws of the States of Illinois and Iowa and an act of Congress approved July 25, 1866, 14 Stat., 244. By an act of Congress approved March 4, 1915, 38 Stat., 1220, the plaintiff company was authorized to reconstruct, maintain, and operate this bridge. Whether the construction and maintenance in the Mississippi River of the protection pier here involved was ever specifically authorized by competent authority is not shown. It was necessary in connection with maintenance of the bridge, for the safety of navigation, and was maintained with full knowledge on the part of defendant’s engineer officers in charge of such matters in that district.

II. This bridge was what is called a drawbridge, with a pivot pier and draw for the purpose of turning the span so as to admit of the safe passage of boats and other water craft through said bridge both up and down the river. To *481permit such boats and water, craft to pass safely through this draw and to keep such boats and craft from coming in contact with the draw, span, and pivot pier as the boats so passed, it was necessary to have, and said plaintiff did have and own, what are called protection piers extending from the pivot pier both up and down the river.

The length of the protection pier which extended downstream was 192 feet, and it was 33 feet across. • It consisted of five cribs connected by intervening fence sections. The cribs were built of timbers held together by iron or steel rods, and they were sufficiently filled with stone to cause them to settle and rest upon the bottom of the river. This pier was rebuilt in 1901, both new and old timbers being used in the reconstruction. Between that time and September, 1913, when the acts complained of occurred, it had been damaged to some extent by being struck by a boat and by action of the currents, and the timbers had suffered some decay, but it was in serviceable condition.

III. Prior to the time hereinafter named boats would pass through the westerly side of this pivot pier and guide or rest against the westerly side of said protection pier and channel in passing through said bridge, and thereafter, from about 1910 to 1912, there was built, constructed, and put in operation under an act of Congress approved February 5, 1905, a dam across the Mississippi River at Keokuk something near 900 feet above plaintiff’s bridge and protection pier. This dam was authorized and was for the purpose of generating power and electrical energy and the improvement of navigation of said river.

IV. A lock for the purpose of passing boats and other yater crafts from the river below to the water above the dam and from above down the river was constructed under said acts of Congress, and this lock was located 900 feet above plaintiff’s bridge at such place as to require boats and other water crafts passing through this lock and up and down the river to pass through said drawbridge to the easterly side of the said pivot pier instead of the westerly, as before.

*482V. This necessitated the improving and deepening of a channel in the river from said lock to the easterly side of said pivot pier and down along the easterly side of said protection pier to the end and on below. This work from the dam down to the bridge devolved on the power company, but under and below the bridge along the downstream protection pier it was done by the United States. And for the purpose of improving navigation the United States, in 1913, deepened said channel from about or 4 to about 7<¿ feet.

VI. The bed of the river at said place was solid rock, and the work was done while the water was on and not by coffer-damming and removing the water and then excavating in the dry. This was done by drilling holes from a boat for that purpose, inserting explosives and blasting, and this deepening must necessarily have been near the easterly side of said protection pier so that boats would not come in contact with the said pivot pier, and especially so from said pivot pier down to the end of same and on south. Drilling Avas done as close as 6 feet to the pier, but lighter blasts Avere used near thereto. The work was done in the usual and ordinary way and with more than ordinary care.

VII. During the progress of this work, by the action of the waves thrown up and on and over this pier by the blasts, and the receding thereof, and possibly by the concussion of the blasts themselves, some sections of two of the cribs and the intervening fence fell out into the river and the pier was thus so damaged as to necessitate considerable repair or a rebuilding. GoArernment officers connected with the work knew of this damage and promised to make necessary repairs, but they were not made.

Thereafter there was an apparent necessity for rebuilding this bridge to fit it for heavier traffic than that for which it was originally intended, and by act of Congress approved March 4, 1915, the plaintiff was authorized to reconstruct this bridge, which it did, and in connection therewith this protection pier was entirely rebuilt at an expense to plaintiff of $13,680.17. The new protection pier was built wider than the old to conform to the requirements of the new bridge and the building of the new bridge would have necessitated the reconstruction of this protection pier. The *483value of the old pier is not shown. The damage to it could have been repaired at an expense of $1,000.

DowNey, Judge,

delivered the opinion of the court:

A protection pier maintained by the plaintiff in connection with its bridge over the Mississippi River between Keokuk, Iowa, and Hamilton, Ill., was destroyed or damaged by the United States in the prosecution of work in the improvement of navigation in that river under the circumstances shown in the findings, not necessary to repeat here in detail.

The plaintiff contends that the pier was “ taken ” by the United States, and seeks compensation under the fifth amendment to the Constitution, fixing the amount thereof at the costs of the construction of a new pier in connection with the reconstruction of its bridge some two or three years after the alleged taking. The taking relied upon was not by an appropriation to its own use but by an alleged destruction.

Whether the pier was destroyed or simply damaged to a limited extent is for determination from the record, and the facts as found do not sustain the plaintiff’s contention Avith reference thereto. There was not a complete destruction. There was a damage or, in other words, a partial destruction, but which the plaintiff contends was of such extent as to require rebuilding, and therefore constituted a taking'of the structure.

If there was merely damage, such as might be recovered from a private corporation in an action in tort, there can, of course, be no recovery here. The proposition is advanced that if there Avas a tort the tort can be waived and action maintained upon the implied assumpsit, and an authority is cited in support of the proposition, but we do not regard it as seriously contended for or deem it worthy of discussion. See *Bigby*v. *United*States, 188 U. S. 400. The theory rather is that the United States was in the exercise of a sovereign right in the improvement of navigation and that it did its work in the usual and ordinary way and with more than ordinary care, as we have been requested to and have found.

Assuming for the purposes of the question that the contention of the plaintiff as to the facts is correct and that, under *484the circumstances stated, there was so far a complete destruction of the protection pier as to necessitate its rebuilding, can it be held that there was a taking under the fifth amendment and a resultant right to just compensation?

In other cases we have had occasion to review somewhat in detail the authorities on the question and draw some conclusions as to the necessary elements of a taking under the Constitution. *County Court of Marion*County, *West Vir*ginia, 53 C. Cls. 120; *Sanguinetti et als.*ante, p. 107. In the latter case we deducted the conclusion that—

> “ We may readily assume it to be settled that the basis of such an action in this court is the implied contract arising out of the appropriation of private property by the United States and the constitutional provision that it shall not be taken without just compensation.”

We referred to the significance of the habitual use by the Supreme Court, in the decided cases, of the word “appropriate” discussed the elements of an implied contract, and suggested in connection therewith the fact, as it appeared to us, that there was necessarily involved an intention to take either express or of necessary implication. Further supporting that theory we referred to a recent case *(Temple*v. *United*States, 248 U. S. 121), wherein it was held that the law could not imply a promise on the part of the United States to pay for a right of way over or interest in land which it claimed to possess as its own. We drew the conclusion that this case established the proposition that even though there had been an actual invasion of plaintiff’s property there could be no recovery under the Constitution if the Government claimed to own the property, because such a claim necessarily precluded the idea that there could have been any intention to take the property of another. The case was referred to because of the principle involved and not because of any analogy in facts.

Without further repeating what we have heretofore held on the question, ascertainable in detail by reference, we suggest that this case seems clearly to be an attempt to convert an action for damages, such as may not be maintained against the United States, into an action for a taking under the Constitution, inspired probably because, unfortunately for the *485plaintiff, there can be no recovery in any other way. Assuming the facts to justify the conclusion that there was damage inflicted on the plaintiff, it may be natural, in furtherance of our sense of justice, to incline by construction to make that actionable which in fact is not so, but such a course seems to us unjustified. It is first of all with us a matter of jurisdiction. If what happened resulted in a damage in the nature of a tort, such as against an individual or a private corporation would necessarily have resulted in an action in tort, and did not, in fact, embody the elements of a taking under the Constitution, we have no jurisdiction, and we are mindful of the well-established rules, referred to in the Sanguinetti cases, that courts must take notice of the limits of their authority, may not by construction broaden their jurisdiction, and that “ judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.”

Applying the principles announced in the cases referred to, supported, we believe, by the higher authorities therein reviewed, we conclude that, even if all the facts were as contended for by the plaintiff, there was no taking under the Constitution and, therefore, can be no recovery.

GRAham, *Judge;*Hay, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.