#### THOMAS M. LIVINGSTON v. THE UNITED STATES

[No. H-105.

Decided December 5, 1927]

*On the Proofs*

*Special jurisdictional act; entry upon land under claim of*right.— Judgment given under the special jurisdictional act of March 3, 1927, for land taken from plaintiff and damages to remainder of the tract by reason of the taking. See 60 O. Ols. 114; 273 ü. S. 648.

*The Reporter’s*statement of the case:

*Mt. Ashby Williams*for the plaintiff.

*Mr. Heber H. Rice,*with whom was *Mr. Assistant Attorney General Hermam, J. Galloway,*for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff is a citizen of the United States and of the State of South Carolina, residing in Bichland County of said State. In and previous to the spring of 1918 he was a resident of Orangeburg County in South Carolina, about 50 miles distant from the city of Columbia, and was engaged in farming.

II. On a visit to Columbia in April, 1918, he expressed a desire to acquire land with an available water power thereon, and being thereafter informed by letter that a large tract of land then owned by one B. P. McMaster and lying about 3 miles southeast of Columbia and having thereon an available water power was for sale, he entered into negotiations with reference thereto.

*315III. The McMaster land was heavily encumbered by mortgages, and in the early part of 1917 a suit in foreclosure had been instituted, *lis •pendens*notice had been filed and recorded in the proper office, and in May of 1911 a receiver had been appointed to take charge of the property.

McMaster was anxious to effect a private sale of the land so as to avoid a public sale under the foreclosure proceedings and to realize therefrom a sufficient amount to fully extinguish the liens.

IV. On May 25, 1918, the plaintiff and his brother, C. M. Livingston, entered into a contract with said B. P. Mc-Master for the purchase of said real estate, amounting to about 2,100 acres, with provision therein for the conveyance of a part of said land to the plaintiff and a part to his said brother, and an assuming by them of proportionate parte of the purchase money, said agreement being made expressly contingent upon the securing of the consent of the lien holders. Upon the execution of this preliminary contract $100 in cash was paid by the plaintiff and his said brother.

V. Thereafter the assent of all of the lien holders and the receiver having been secured, the plaintiff and his said brother on the 3d day of June, 1918, entered into a contract with s'aid McMaster for the purchase of said real estate at the aggregate price of $80,000, said contract containing provisions with reference to the application of the purchase money to the discharge of the existing liens, to which contract all the lien holders and the receiver gave their consent, and upon the execution thereof the plaintiff and his brother paid to said McMaster the sum of $7,400, which, added to the $100 theretofore paid, made the $7,500 cash payment provided for in said contract, and further payments were secured as provided for.

Said contract provided for the conveyance to the plaintiff herein of a certain 1,241 acres of said real estate and the payment by him of $44,668.77 of the purchase money, the remainder of said real estate to be conveyed to plaintiff’s said brother, who assumed the payment of $35,331.23 of the purchase money.

The total purchase price for said real estate was a few hundred dollars in excess of the aggregate amount of the *316liens thereon. McMaster in selling s'aid real estate at that price accomplished his purpose of providing for the discharge of all the liens, and to accomplish that purpose he sold at less than he estimated the true value of the real estate.

Deed for said real estate was not executed to the plaintiff until November, 1918, but under the contract he entered into immediate possession of the 1,241 acres purchased by him, subject only to the rights of tenants then in possession of parts of said real estate, and acquired the right to the rentals for the current year.

VI. Of said 1,241 acres thus acquired by the plaintiff, about 250 acres were sandy loam, about 600 acres were con-garee loam under cultivation, mostly in cotton, but suitable for the raising of corn and wheat as well, and of the remaining acreage about 230 acres was a woodland marsh, embraced in a backwater basin adapted for the furnishing of water power. Through this acreage at the time of the purchase by the plaintiff as aforesaid, ran a clear, bold, non-navigable stream of fresh water known as Gills Creek, which meandered along its natural bed through plaintiff’s lands for a distance of about a mile and a half and in its course ran in and through said marsh, the waters of which were impounded therein by a milldam with a wasteway therein and further restrained by levees on one side thereof.

VII. At the lower end of this pond there was at the time plaintiff bought this land an old mill. This mill had been built many years before the Civil War and operated, at least a part of the time, by water power procured from this pond. It was rebuilt about 1885, and was operated from that time until about 1904, being used for grinding com, ginning cotton, etc.

At the time plaintiff purchased this land the mill was not in operation and the water power was not being then utilized, but with some minor repairs to the dam and levee it was available for use.

There was a head of water not exactly ascertainable from the evidence, but somewhere between *1*and 10 feet, and sufficient available power when properly utilized to operate a gristmill, cotton gin, saw mill, electric-light plant, etc. The *317exact horsepower which might have been developed from this water power is not determinable from the record, but the best evidence indicates that there might have been developed approximately 50 horsepower for continuous running, except in a very dry season, and 100 horsepower or more on the basis of a run of 10 hours in 24.

Vin. Gills Creek also furnished an abundant supply of good water for domestic purposes and for the watering of-stock, and edible fish of different varieties were plentiful therein. The pond was well adapted for bathing and had been used to some extent for that purpose, but not commercially. The plaintiff had declared his purpose to improve and equip it as a pleasure resort, but had done nothing to that end. Such resorts were in demand about Columbia, and some such located at greater distance were operating profitably.

IX. In 1917 the United States located at a point about 3 miles east of Columbia a cantonment for the mobilization and training of troops which was designated Camp Jackson. This camp was located on Gills Creek and on a tributary thereof known as Wildcat Branch and was 6 miles above the plaintiff’s said real estate. The camp site was in a comparatively low and somewhat marshy country and necessitated work for the betterment of sanitary conditions, and particularly the elimination, so far as might be possible, of mosquitoes.

Citizens, or possibly some business organizations of the city of .Columbia, had interested themselves in procuring the location of this camp, and in aid of the Government’s plan of bettering sanitary conditions representatives of these citizens’ bodies had procured from owners of real estate along Gills Creek written instruments granting to the United States certain rights in that behalf. In August of 1917 B. P. McMaster had signed one of these instruments, reading as follows:

State oe South CaeoliNa,

*County of Richland:*

Whereas the United States of America has located one of its cantonments near the city of Columbia, S. C., on lands adjacent to and in the vicinity of Gills Creek and is now in *318process of erecting buildings and other structures thereon for the occupancy and use of said cantonment; and

Whereas said Gills Creek and the adjacent lands in their present condition are considered unsanitary and detrimental to the health of the said cantonment and request has been made by the said United States of America, through its officers, agents, and employees, to drain the same and improve the said conditions:

Now, therefore, in consideration of the premises and of the sum of one dollar (1.00) to me in hand paid, and in consideration of the general public benefit to be derived therefrom, I hereby give and grant to the said United States of America, its officers, agents, and employees, the right to go upon all such lands belonging to me as are adjacent to Gills Creek and its tributaries and drain the same, together with the said Gills Creek and its tributaries, thoroughly, and to do all such acts and things as may be necessary to render the said conditions sanitary and healthful, provided the same are done under the direction of a sanitary expert of the said United States of America and without cost or expense to me.

Witness my hand and seal this — day of August, 1917.

B. P. McMasteR. [seal.]

Signed, sealed, and delivered in the presence of—

G. E. Shakd.

X. At the time of the execution of the contract of June 3 and the payment then made the plaintiff had no knowledge that McMaster had signed any instrument granting any right to the United States. After the execution of the contract, but on the same day, McMaster made a casual remark about having signed some paper, but could, or at least did not, give any definite information, about it. Plaintiff’s attorney, who was present looking after his interests in connection with the execution of the contract, immediately made a second search of the county records, but found no such instrument of record. In fact, it had not been recorded.

XI. In the fall of 1917 the United States had commenced at some point in the vicinity of Camp Jackson the dredging out of Gills Creek by use of a .steam dredge and the cutting of drains from swamp or marshy localities in and near the camp for the purpose, in the first instance, of ridding the camp of mosquitoes To make this work effective so far as the mosquito nuisance was concerned it was necessary that it should be carried approximately 1 mile from the camp.

*319At some time not definitely appearing it was use Gills Creek not for drainage purposes alone but also as a sewage canal into which the effluent from the camp’s sewage-disposal plant should be emptied, said canal to be extended to the Congaree River some miles below the lands here involved. In March, 1918, Captain J. C. Brown took charge of this work, which had then progressed to a point about 4 miles above plaintiff’s land. On June 15,1918, the dredging operations had progressed to the line of the Atlantic Coast Line Railroad, about 1,000 feet from the plaintiff’s land, and in about a week thereafter it had progressed to the line of the Southern Railway Company, approximately 700 feet from plaintiff’s land. There were delays in getting by the Atlantic Coast Line and Southern bridges, but in the absence of such delays the normal progress of the dredge was at the rate of approximately one-quarter of a mile per week. The dredging had followed the line of Gills Creek and continued so to do until after it had crossed plaintiff’s northern boundary, when, at a point where there was an abrupt bend in the creek a few hundred feet south of plaintiff’s northern boundary, the dredging left the line of the creek and proceeded in a southerly direction, passing west and entirely away from the creek and then bending to the westward and • rejoining the creek several hundred feet below, the mill dam, and passing in its course entirely around and away from the pond above referred to.

XII. Before defendant diverged from the bed of Gills Creek and began cutting the canal apart therefrom it made a survey of a right of way one hundred feet wide and in the advance progress of the dredge cut the timber therefrom. Said right of way contained 17-acres. The canal was cut through the center of said right of way and to a width of twelve or fifteen feet on the bottom with ploping banks, and the dredged material was piled on the banks on either side so that the canal was six or more feet deep.

This canal was cut to a lower depth than the bed of the creek, and the waters of the creek were diverted by the defendant’s servants into the new canal and thus prevented from flowing into the mill pond referred to and plaintiff’s water power was thus destroyed.

*320XIII. Shortly after June 3, 1918, and while the dredge was yet a. half mile or more above his land, the plaintiff visited the dredge and sought information of the dredge foreman as to the course it was contemplated would be taken through his land, informing him of his ownership, but he secured no definite information, and on other occasions he was also unsuccessful. When the dredge was between the two railroads, within a week after June 15 and when yet from 700 to 1,000 feet from his line, he saw at the dredge and conferred w,ith the officer in charge of the work, but secured no definite information as to what was to be done. Plaintiff had other conversations with this officer and endeavored to persuade him to follow the course of the creek. At about the time dredging operations were commencing on plaintiff’s land he sent to the officer in charge the following:

Columbia, S. C., *July 1918.*

Lieut. Jos. C. BROWN,

*Asst. Const. QuoMermaster, Camp*Jackson, *S. C.*

Dear Sir: Having contracted some t,ime since for the purchase from B. P. McMaster of the lands known as the Childs farm, we desire to give you notice, and through you, the Government, that we respectfully protest against your cutting a canal through this land, especially against the injury which your canal will cause to the water power on this land, and the injury and destruction to the timber.

We are giving this notice so that you may not assume that we are consenting, and so that all our rights may be preserved.

Respectfully,

Thomas M. Livingston. - C. M. Livingston.

XIY. .In the summer of .1918 large numbers of troops were assembled at Camp Jackson, and due to the number the sewage-disposal plant was of insufficient capacity and it was otherwise inefficient. Raw or undigested sewage was run into Gills Creek and flowed thence onto plaintiff’s land, finding lodgment in pools wjthin the area of the former pond and along the banks, creating an extremely foul odor, and so polluting the atmosphere as to render the premises almost uninhabitable. The water was rendered unfit for domestic use, for stock, or for bathing, and large numbers of fish died.

*321case 1922 there were but about 200 men at Camp Jackson; there remained no perceptible odor either in air or water at plaintiff’s premises, but the effluent from the septic tank at the camp slightly discolored the water of the creek at that point, although it was then practically clear when it reached plaintiff’s premises.

XV. Capt. Joseph C. Brown was in charge, for the United States, of the dredging work here involved at the time entry was made upon plaintiff’s premises. Predicated upon his testimony, which is undisputed, it is found that in entering upon plaintiff’s real estate he relied upon the instrument set out in Finding IX, referred to by him as a “ contract,” as being authentic, and that McMaster had full rights to enter into the same, and that it was on the good faith of the “ contract ” that he entered upon the land in question.

compensation for the land taken and damages to the remainder of the tract by reason of the taking amounts to the sum of $26,155, with 6 per cent interest thereon from date of taking, July 1, 1918, until date of payment.

is due from the plaintiffs on account of costs in case No. A-298, $955.98, for which the defendant has filed a counterclaim.

The court decided that plaintiff was entitled to recover $26,155 with interest from July 1, 1918, to January, 5 1925, principal and interest amounting to $36,312.89, less defendant’s counterclaim of $95B.93, leaving a balance of $35,416.96, together with interest on $25,199.01 from January 5, 1925, to December 5, 1921, principal and interest amounting to $39,826.80, and also entitled to recover interest on the principal of $26,155 from December 5, 1927, to date of payment.

Booth, Judge,

delivered the opinion of the court:

This case is here under the following jnrsidictional act:

“ That the Court of Claims of the United States be, and hereby is, given jurisdiction to hear and determine the claim of Thomas M. Livingston, of Columbia,' South Carolina, for compensation for the taking by the United States of a part of a tract of land belonging to said Thomas M. Liv-

*322ingston in and damage to the remainder of said tract, resulting from the digging by the United States in 1918 and 1919 of a canal through said property as a sewage outlet for Camp Jackson, South Carolina, notwithstanding the fact that the United States, or any officer, agent, or employee acting in its behalf, entered upon said property under a claim of right, or committed a tort in doing so, and not withstanding any statute of limitations with respect to suits against the United States.

“ Seo. 2. That the said Court of Claims in the of said claim is authorized, in its discretion, to employ and use the pleadings and evidence filed in the Court of Claims by the said Thomas M. Livingston or the United States in case numbered 298-A between the said parties in said court, in which the Court of Claims rendered a decision on January 5, 1925, or upon such further proceedings as the court may require.”

The case was originally before the court and plaintiff’s petition dismissed in an opinion announced March 17, 1924. The court was unable to render judgment for the losses plaintiff suffered because the record disclosed a situation wherein we were unable to find a taking under circumstances implying an obligation to pay. *Tempel*v. *United States,*248 U. S. 121. This decision was affirmed by the Supreme Court, 273 U. S. 648. Congress subsequently enacted the foregoing statute. The question at issue is obviously one of amount. The court, in case No. 298-A, made findings of fact which clearly reflect the situation from the record, and with few changes we adopt them.

We think the findings justify-a substantial judgment. The plaintiff’s mill site was rendered totally valueless. The use of the canal for sewage drainage, as well as the real and incidental damage suffered by its completion, is not to be minimized. The effect of what the Government did. upon the. value of plaintiff’s tract is manifest from the wide margin between the purchase price and what the tract brought at public sale. While a forced sale price is not determinative of actual or even market value, nevertheless it is obvious that.the continued presence of the drainage canal"and the known loss of water power, together with the destruction of fish in the stream, had a most depressing effect upon the value of the land. We think the record warrants a judg*323ment for $26,155.00, with 6 per cent interest thereon from the date of taking to date of payment. Judgment for this amount is awarded. It is so ordered.

Moss, *Judge;*Graham, *Judge;*and 'Campbell, *Chief*Justice, concur. ■