
    423 F. 2d 273
    GARDEN CONSTRUCTION CO., INC. v. THE UNITED STATES
    [No. 272-66.
    Decided March 20, 1970]
    
      
      Robert L. Sullivan, Jr., attorney of record, for plaintiff. John A. Pryor, of counsel.
    
      Herbert Pittle, with, whom was Assistant Attorney General SMro EasMwa, for defendant.
    Before Cowen, Chief Judge, Laramore, Dureee, Davis, Collins, Skelton, and Nichols, Judges.
    
   Per Curiam: :

This case was referred to Trial Commissioner Saul Bichard Gamer with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Buie 134(h). The commissioner has done so in an opinion and report filed on November 28, 1969. Plaintiff filed a notice of intention to except on December 29,1969 but has filed no exceptions or brief to this report and the time for so filing pursuant to the rules of the court has expired. The case has been submitted to the court pursuant to the provisions of Buie 143(d) without oral argument. Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Therefore, plaintiff is not entitled to recover and the petition is dismissed.

OPINION OE COMMISSIONER

Gamer, Commissioner: Plaintiff alleges that defendant caused water to accumulate on land which adjoined plaintiff’s property, creating a condition plaintiff was required to correct in a manner which necessitated the incurrence of certain expenses and resulted in a diminution in value of part of plaintiff’s property. Plaintiff contends that defendant’s acts in creating such water condition constituted a taking of plaintiff’s property entitling it to just compensation in the amount of such expenses and diminution.

The pertinent facts are as follows :

In 1955 defendant purchased from plaintiff fifty acres of land in Baltimore County, Maryland, on which defendant erected a Social Security Administration building. Plaintiff also dedicated to Baltimore County a 120-foot strip of land for a dual four-lane highway, called Security Boulevard, which fronted on the north side of such Government property. Plaintiff retains ownership of the land on the north side of the highway.

Defendant constructed its building before Security Boulevard was completed by Baltimore County. In connection with the development of its property, defendant installed thereon a large drainage pipe. In accordance with plans then approved by Baltimore County for a drainage system covering defendant’s property, as well as ‘Security Boulevard and additional property of plaintiff lying to the west of defendant’s property, defendant’s drainage pipe extended into the bed of the proposed Security Boulevard. Under such plans, the water discharged from such pipe would be emptied into ■a stream called Little Dead Run, which, by proposed diversion by plaintiff over its property located west of the Social Security site, would flow in a northerly direction under Security Boulevard at a point only a short distance from defendant’s pipe.

However, in 1957, defendant, requiring further acreage for the development of its Social Security Administration site, took from plaintiff by eminent domain 31 acres adjoining the original fifty acres, including the part of plaintiff’s property upon which it had intended to divert Little Dead Run. It thus became necessary for Baltimore County to dispose of the water being discharged from defendant’s drainage pipe in some other way. A temporary method of carrying it through a drainage ditch a greater distance to the west, where Little Dead Run flowed in its natural course, was unsatisfactory because the grade differential was too slight to carry the water away effectively. Consequently, the water was accumulating in the bed of the proposed highway. Actually, the quantity of water that was discharging into the bed from defendant’s pipe was greater (by approximately one-sixth) than the amount that would have resulted from the natural drainage of the site in its original condition because, as part of its construction plan, defendant bad, by changing the topography of the site and by installing a pipe system thereon, diverted the drainage from approximately eight acres on the east of the site, which would naturally have drained away from the road, to the large drainage pipe on the west.

Since the original plan for the disposition of the water could not be carried out, Baltimore Comity concluded that the only remaining feasible method therefor was to carry the water, by pipes leading from defendant’s drainage pipe, under the proposed Security Boulevard and 'across plaintiff’s property to the north through a drainage ditch to a point where Little Dead Bun ran in its natural course. Plaintiff was developing an industrial park on such property adjoining the proposed road, all of which property lay in Baltimore County, and was responsible for providing such drainage systems thereon as the county would require. Accordingly, the county required plaintiff to grant to the county an easement over plaintiff’s property from the proposed road to the stream, and to pipe the water from the roadbed into the drainage ditch which would lie in the easement. This plan was carried out. On June 9, 1960, plaintiff granted the easement to Baltimore Counity, and on August 9, 1960, the county let a construction contract for Security Boulevard, the plan for which called for the installation by plaintiff of the described pipe system in the bed of the road.

The bisecting by the easement of the portion of plaintiff’s property over which it ran interfered with the best use that otherwise could have been made of such property because buildings could not feasibly be erected over the drainage ditch. Thus the market value of such property was diminished. Attributing such diminution, as well as the cost of the piping which it incurred in carrying the water from defendant’s pipe to the drainage ditch, to defendant’s actions causing the water accumulation, plaintiff here seeks to recover such piping costs and the amount of the diminution in property value. Plaintiff contends that defendant’s ac'ts causing such water accumulation amounted to a taking of its property entitling it to just compensation in the amount of the described damages. Such damages, plaintiff says, accrued on August 9, 1960, when the plan for the new drainage system became firm by the letting by the county of the contract for the construction of Security Boulevard.

Defendant raises a threshold question. It contends that a consideration of the merits of at least a part of plaintiff’s claim is precluded by the doctrine of res judicata. The contention is based upon the fact that in the proceedings relating to the taking by defendant of plaintiff’s 31 acres, plaintiff included in its claim for just compensation certain costs it incurred, including the same piping costs as are herein involved, which resulted from the same water accumulation problem as is the basis of the instant action, and that no recovery was allowed thereon. However, this portion of plaintiff’s claim was denied only because the District Court held it to be no proper part of the proceedings relating to the 31 acres. The court pointed out that, instead, it was based on defendant’s actions relating to the fifty acres which defendant had earlier purchased from plaintiff. Accordingly, without deciding whether plaintiff might possibly have some other recourse against defendant for the damages it suffered because of the water accumulation, such as a claim under the Federal Tort Claims Act or under the sales contract covering the fifty acres, the court denied the claim but “without prejudice to any claim defendant [plaintiff herein] may have therefor in some other proceeding.” Under these circumstances, it is plain that plaintiff is not prevented by the District Court proceeding and judgment from bringing such claim to this court. The doctrine of res judicata precludes only the relitigation of claims that have already been (or could have been) decided in a prior proceeding.

Furthermore, the District Court was clearly correct in holding that the water accumulation problem allegedly growing out of defendant’s actions with respect to the fifty acres formed no proper part of the suit to determine just compensation for the taking of the 31 acres. Plaintiff is here claiming that in the construction of defendant’s drainage system for the original 50-acre tract purchased from plaintiff, defendant acted in a mamier (changing the site’s natural topography and constructing the drainage pipe at an elevation too low to permit proper natural drainage to the west) which constituted another and separate taking. Such a cause of action is certainly different from that involved in the condemnation case, which was only concerned with the amount of just compensation for the 31 acres. “To constitute res judicata, it is elementary that there must be identity of cause between the two cases.” Friend v. Talcott, 228 U.S. 27, 40 (1918). And this conclusion is not affected by the fact that plaintiff, in the condemnation proceeding, made certain claims for damages grounded upon the frustration of its original plans to divert Little Dead Eun and that in this case plaintiff also points out that the claimed damages resulting from the water accumulation problem would not have occurred had defendant not taken the 31 acres (or the particular part thereof upon which the diversion plan was based) and thereby frustrated such diversion plan. The separate taking claim herein involved stands on its own regardless of the fact that in both cases plaintiff traces its troubles, in whole or in part, to the frustration of its diversion plan.

On the merits, however, it is not possible to conclude that the matters about which plaintiff complains constituted a taking of its property by defendant. As shown, it was Baltimore County that required the installation by plaintiff of the pipes in the bed of Security Boulevard and the grant of the easement to the county.

None of the water from defendant’s pipe encroached upon plaintiff’s land. Thus, this is not an action for a taking caused by a flooding or the discharge by defendant of water in a channel, resulting in the acquisition of a flowage easement, over any of plaintiff’s property. Indeed, there was no physical invasion of any kind by defendant of any part of plaintiff’s property such as is usually associated with a taking. See Eyherabide v. United States, 170 Ct. Cl. 598, 345 F. 2d 565 (1965), and cases cited therein. The water accumulation was all in the bed of the road to which the county had title (through dedication by plaintiff) and over which it exercised jurisdiction. It thus became in effect county water. That the county, under its powers (about which there is no dispute), compelled plaintiff, under its industrial park development obligations, to solve the road drainage problem in a certain way, can hardly constitute a “taking” of plaintiff’s property by defendant.

All of defendant’s actions about which plaintiff complains were in accordance with plans that were duly approved by Baltimore Comity. Both plaintiff and defendant were required to submit to the county fully detailed plans for the drainage of their respective areas prior to the commencement of construction so that the county could insure an integrated drainage system for the entire area, including the road. Defendant fully complied and on December 2, 1957, received approval of its plans, including the elevation, size, and location of its drainage pipe. This was almost a month after the declaration of taking and complaint were filed in the condemnation case involving the 31 acres. It was thus plain that the original drainage plan submitted by plaintiff, which was dependent on the diversion of the stream over the portion of plaintiff’s property that defendant had now taken, could not be carried out unless, of course, defendant would, by the grant of an easement to plaintiff or otherwise, enable plaintiff to proceed therewith. However, there is no showing that defendant agreed at the time of the taking, or that Baltimore County ever subsequently required defendant, to grant such an easement or to conform in any way to any such proposed drainage plan. Instead, the county unconditionally approved defendant’s plan. Nor does the record indicate that at any time during the subsequent construction of the Social Security site drainage system did Baltimore County request or require that defendant change either the elevation of its drainage pipe or the size of the drainage area served by the pipe which emptied into Security Boulevard.

None of the cases upon which plaintiff relies supports the theory that, upon facts such as are here involved, a taking under the Fifth Amendment occurred. Cases such as United States v. Chicago, B. & Q. R. Co., 82 F. 2d 131 (8th Cir.) cert. denied, 298 U.S. 689 (1936), simply hold that where the Government concededly takes property, the just compensation awarded may include not only the value of the property actually acquired, but also diminution, as a consequence of the taking, in the value of portions not acquired. This proposition is not here disputed. In our case, however, the basic issue is whether there has been a taking in the first place.

In summary, since (a) there was nothing in the nature of a direct invasion of plaintiff’s land by the drainage water; (b) defendant was duly permitted by Baltimore County to empty such water into the bed of Security Boulevard; and (c) such water was carried out of the roadbed by piping which Baltimore County ordered plaintiff to install, as well as by the drainage ditch lying in 'the easement over plaintiff’s property, which Baltimore County required plaintiff to grant, it must be concluded that plaintiff’s costs and damages did not result from any “taking” by defendant of plaintiff’s property or any interest therein. All of the costs and damages herein claimed were incurred pursuant to lawful requirements of Baltimore County. The independent exercise by Baltimore County of its governmental powers cannot be converted into a “taking” by defendant. Plaintiff is therefore not entitled to recover.

Findings or Fact

1. Plaintiff is a Maryland corporation whose principal office is located in Baltimore, Maryland.

2. Between 1951 and 1954 plaintiff assembled and acquired a tract, in Baltimore County, Maryland, of approximately 475 acres, known as The Meadows, for the purpose of constructing an industrial, commercial, and residential complex.

3. During 1952 defendant commenced negotiations with plaintiff for the purchase by defendant of twenty acres of land located in The Meadows. By 1954 the amount of land defendant desired increased to fifty acres. During 1954 plaintiff, after further negotiation's, offered to sell a 50-acre portion of such property to defendant, acting through the General Services Administration. Defendant’s objective in acquiring the land was the construction of an office 'building for the Social Security Administration. Plaintiff’s offer was accepted and plaintiff conveyed the property to defendant in 1955. The 50-acre tract was bordered on the north by the then proposed and since completed Security Boulevard. The northwest comer of the tract is approximately 500 feet east of the then proposed and since completed intersection of Security Boulevard and Clarke Avenue (now named Woodlawn Drive).

4. Little Dead Bun is a small stream which runs naturally in a northeasterly direction through the then proposed intersection of Security Boulevard and Clarke Avenue and then across plaintiff’s land to the north and east of said intersection.

5. Plaintiff’s original plan for the development of a drainage system for The Meadows entailed the diversion of Little Dead Bun through a culvert under Clarke Avenue below the intersection of such avenue and Security Boulevard, and then easterly through an open drainage channel in a course parallel to and south of the then proposed Security Boulevard. At a point near the northwest corner of the fifty acres purchased by defendant, the stream would be diverted at approximately a 90-degree angle so as to flow in a northeiiy direction through a second culvert under 'Security Boulevard and through a proposed drainage ditch on plaintiff’s land until it again reached its natural streambed on the north side of Security Boulevard. The purchase by defendant of the fifty acres did not interfere with such diversion plan since such 50 acres were all located to the east of such drainage system.

6. Defendant tlien proceeded to prepare its plans for the construction of its building and the installation of a system to provide drainage of the site. As part of such drainage system, defendant proposed the installation of a pipe at the northwest comer of its site. It was contemplated that the water discharged from such pipe would empty into the culvert which plaintiff proposed to construct and which would have crossed Security Boulevard to the west of the northwest comer of the fifty acres in accordance with said original drainage plan for The Meadows. The pipe was designed to be at an elevation which would permit the flow of water therefrom through a drainage ditch on the north side of Security Boulevard to the lower elevation of the culvert. With this proposed drainage plan, defendant’s pipe was proposed to be built out to and into the bed of the proposed Security Boulevard.

7. In 1956 the Social Security Administration required additional land in The Meadows area and requested that the General Services Administration acquire from plaintiff certain acreage, consisting of approximately 31 acres adjacent to the original 50-acre site. Such 31 acres were bordered on the east by the original 50-acre tract, on the north by Security Boulevard, and on the west by Clarke Avenue. The acreage consisted of three parcels. Parcel 1, lying south of the fifty acres, comprised 16.638 acres, plus or minus; Parcel 2, lying west of the fifty acres, comprised 12.860 acres, plus or minus; and Parcel 3, lying north of Parcel 2 and directly south of the proposed Security Boulevard, comprised 1.690 acres, plus or minus. Parcel 3 contained the land over which plaintiff intended to divert Little Dead Bun.

8. The parties were unable to agree upon a price for the additional 31 acres. Accordingly, defendant filed a complaint and declaration of taking on November 7,1957, in the United States District Court for the District of Maryland, in the case entitled United States v. Certain Lands in Baltimore County, State of Maryland, Garden Construction Co., et al., Civil No. 10133. With the complaint and declaration of taking, defendant deposited the sum of $139,302 as estimated just compensation.

9. Since Parcel 3 of the 31-acre tract embraced the land over which plaintiff intended to divert Little Dead Run, the taking thereof frustrated plaintiff’s drainage plan. In the hope of being able to proceed with its plan, plaintiff, following the taking, requested defendant to grant an easement across Parcel 3 which would enable plaintiff to establish the drainage system as originally planned. However, plaintiff’s request was denied.

10. Defendant’s plans for the installation of a drainage system for the site, including the installation of the pipe hereinabove mentioned, remained unchanged despite the frustration, by its taking on November 7,1957, of Parcel 3 of the 31 acres, of plaintiff’s drainage system plan, into which system defendants drainage system was, as hereinabove described, to tie. Since The Meadows acreage, including the Social Security site, lay within the confines of Baltimore County, all proposed drainage plans to be established incident to the development of the property and relating to Security Boulevard were required to be approved by the county. Defendant’s proposed underground drainage system for the Social Security site, based on plans designed by Government engineers, and including the aforesaid pipe extending into the bed of Security Boulevard, was nivea final approval by Baltimore County on December 2,1957, and defendant thereupon proceeded with the construction of the building and drainage system in accordance with such approved plans.

11. The land comprising Security Boulevard was originally part of The Meadows, and plaintiff, as part of its development of The Meadows, dedicated such land to Baltimore County. The county thereupon had jurisdiction over such land and all drainage plans relating thereto, including all drainage plans of acreage adjacent to the road and lying in the county. Such jurisdiction extended to the approving, or requiring the installation, of drainage systems on The Meadows property owned by plaintiff north of the proposed Security Boulevard. Plaintiff proposed to develop an industrial park on its acreage north of Security Boulevard. In such instances, the developer is normally required to donate to the county a 70-foot rigbt-of-way for the required road, and to pay for all roadway improvements, storm drain systems, and water and sanitary sewers. In this instance, however, a 120-foot right-of-way was deemed necessary for Security Boulevard, which was designed to ‘be a four-lane divided highway, and plaintiff donated the entire 120 feet under a special agreement pursuant to which the county agreed to defray certain costs to cover the increase in cost attributable to the difference between the normal 70-foot right-of-way and the 120-foot right-of-way herein donated. In general, plaintiff paid seven-twelfths of the total costs involved.

12. Since plaintiff’s original drainage system plans were frustrated by the taking by defendant of Parcel 3, water flowing from the above-described pipe defendant constructed to drain the Social Security site emptied into the area of the proposed Security Boulevard. The end of the pipe lay in the bed of the road.

13. The Social Security Administration building was constructed on a portion of the 50-acre site which had a crown in the center. From that point there were two drainage areas, one running from the right, and the other from the left. Defendant altered the topography of the site and installed an underground system of drainage pipes in such a way that water was brought from the east drainage area to the west, all of which then flowed into the drainage pipe in the bed of Security Boulevard. This change in topography and alteration of the natural drainage flow increased by approximately one-sixth the amount of water that would have naturally drained into Security Boulevard, since it brought approximately eight additional acres of drainage into the pipe.

14. In addition to the water discharging from the Social Security site, another pipe also discharged water into the area of Security Boulevard in question. The second pipe is one of many constructed by or pursuant to the direction of Baltimore County for the purpose of draining Security Boulevard. The record does not indicate how much water this second pipe added to the water discharged by the Social Security site pipe in said area of Security Boulevard.

15. The water from the two pipes hereinabove described discharged into the bed of the proposed Security Boulevard before such highway was constructed. As a temporary measure to dispose of such water, and in accordance with plans approved by Baltimore County, the water then flowed through a temporary earthen channel constructed bv plaintiff. The channel carried the water in a westerly direction under the median of the proposed Security Boulevard to the proposed intersection of Security Boulevard and Clarke Avenue into the natural streambed of Little Dead Bun.

16. The elevation of the discharge end of defendant’s drainage pipe was 329.86 Baltimore County datum. The elevation of the bed of Little Dead Bun at the proposed intersection of Security Boulevard and Clarke Avenue was 328.50. This was an insufficient grade. As a result, the water from the two pipes above-described accumulated in the bed of Security Boulevard.

17. The frustration of plaintiff’s original drainage plan and the subsequent unwillingness on the part of defendant to grant an easement to plaintiff for said drainage system caused plaintiff to revise its plans and construct one long culvert immediately under the intersection of Security Boulevard and Clarke Avenue (Wbodlawn Drive) (instead of two short culverts, one under Clarke Avenue and the other under Security Boulevard). Under the revised plan the stream remained in its natural course flowing across plaintiff’s land northeast of the intersection.

18. The elevation of the culvert under the intersection of Clarke Avenue and Security Boulevard for drainage was 330.63 at its discharge end. Due to the difference in elevation, it would not have been possible to extend the discharge pipe from the Social Security site (elevation 329.86) to the culvert.

19. Baltimore County concluded that the only feasible solution to the water accumulation problem, resulting from the discharge of water into Security Boulevard, was to provide for the direct piping of the water under Security Boulevard and onto plaintiff’s property north of Security Boulevard, into a drainage ditch, and thence into Little Dead Etui. To effectuate this plan, Baltimore County, on June 9, 1960, caused plaintiff to grant to the county a 20-foot easement running north from Security Boulevard across plaintiff’s land and into the natural streambed of Little Dead Eun. The county also caused plaintiff to let a contract for the construction of pipes to drain the water from the bed of Security Boulevard into the drainage easement traversing plaintiff’s property. On August 9, 1960, Baltimore County issued a contract for the construction of the portion of Security Boulevard fronting the Social Security site and plaintiff’s land north thereof.

20. The cost to plaintiff for the construction of the pipes to drain the water from the proposed bed of Security Boulevard was $3,700.

21. (a) The land situated on the north side of Security Boulevard, owned by plaintiff, contains an open ditch for the drainage lying within the easement granted to Baltimore County, which easement bisects said property and, along with the existence of the ditch, interferes with the development of the property for its highest and best use. The existence of the easement divides the property in such a manner that erection of a building thereon would be impractical.

(b) The fair market value of such land as of August 9, 1960, without the easement thereon, was $30,000 an acre, or a total of $44,400.

(c) The fair market value of the property as of August 9, 1960, with the easement thereon, was $20,400.

22. None of the water discharged from the Social Security site directly entered plaintiff’s property before construction of the drainage system required by Baltimore County.

23. (a) In the condemnation suit, plaintiff herein contended, among other things, that, but for the taking, plaintiff would have diverted Little Dead Eun, in accordance with the plan hereinabove described, so that it would have run on the condemned land south of Security Boulevard. This would have resulted, plaintiff claimed, in approximately seven acres of land located on the northeast corner of Security Boulevard and Clarke Avenue having a greater value than they had with Little Dead Eun flowing over them. Plaintiff claimed the difference in value as “severance damages” to said remaining land north of Security Boulevard resulting from the taking of Parcel 3 south of the highway over which its frustrated proposed diversion would have occurred.

(b) Plaintiff herein also claimed in such suit $9,285 for the cost of the pipes necessary to carry the drainage water from the original 50-acre tract which the Government had acquired from it by purchase in 1955.

24. By letter of August 15, 1960, the Assistant United States Attorney, who was handling the condemnation suit, wrote Garden’s attorney in the suit, stating that he believed the Government would “now be able to offer to your client a revesting of the 1.6'90-acre portion of Tract II [i.e., Parcel 3] to permit the originally planned diversion of the stream” and that as a result, he felt “reasonably sure that at least one aspect of this case can be concluded within the very near future.” However, at that stage of the proceedings, Garden was unable to accept the revesting from the Government because prior to that date, Baltimore County, as stated above, had required plaintiff to convey to it the easement for drainage and had let a construction contract for Security Boulevard based upon the revised drainage system.

25. (a) After a full trial on the issues presented in the condemnation case, the District Court, on September 26,1962, filed an opinion, and on October 23, 1962, entered judgment awarding plaintiff herein $257,790, plus interest, as just compensation for the 31 acres acquired by the Government in that case.

(b)' The court denied Garden’s claim for severance damages for the difference in the value of the land forming the northeast corner of Security Boulevard and Clarke Avenue resulting from the frustration of Garden’s plan to divert Little Dead Bun. The court held that the claim was “for a frustration of business opportunity, within the meaning of the cases, and is therefore not allowable as severance damages,” and that “The taking did not change the existing condition of the land; it simply prevented one of the alternative methods of developing the property.” It also held that “any increase in the value of the land” north of Security Boulevard resulting from the diversion “would have been matched by an equivalent reduction in value of the land” south of the road over which the stream would have been diverted.

(c) The court also denied Garden’s claim of $9,285 for the cost of pipes to carry under Security Boulevard drainage water from the original 50-acre site as not being a proper item in the proceeding for the 81 acres. It pointed out that “The pipe * * * did not go under any part of the land taken in this case,” that plaintiff “may have had a claim against the government under the Tort Claims Act” or that it was “an item which was covered or which should have been covered by the original contract of sale.” The court therefore, in its judgment, denied the claim “without prejudice to any claim defendant [Garden] may have therefor in some other proceeding.”

(d) Plaintiff did not appeal from the judgment. Such judgment was paid, and is now final.

26. (a) In its original petition, plaintiff set forth two counts. The first count demanded just compensation of $37,444.18 for additional expenses incurred for the construction of a new drainage system after defendant condemned the land upon which the original system was to be built, and for engineering costs relating thereto. Plaintiff alleged that defendant’s refusal to grant an easement for the construction of its original system constituted a taking under the Fifth Amendment. However, plaintiff subsequently amended its petition and dismissed count one with prejudice.

(b)‘ In the second count, as amended, plaintiff alleges that defendant, in constructing a drainage system on the 50-acre tract purchased from plaintiff, so changed the natural topography of the site and constructed its drainage pipe at so low an elevation that the combination of additional water and discharge elevation caused accumulations of water in Security Boulevard, compelling Baltimore County to cause plaintiff to grant an easement over plaintiff’s land which, was across from Security Boulevard and to construct a pipe system which would carry the water thereunder. Plaintiff alleges this action amounted to a taking for public use.

CONCLUSION OF LAW

On the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover and the petition is dismissed. 
      
       In the condemnation suit plaintiff claimed “severance” damages for the alleged diminished value of a certain part of plaintiff’s property north of Security Boulevard resulting from the talcing by defendant of the property south of Security Boulevard. Plaintiff contended that the talcing of the property south of the highway prevented the diversion of the stream thereon, forcing plaintiff to allow the stream to flow in its natural course on such northern part of the property, thereby diminishing the value of such part. The court denied such claim on the ground that had the stream been diverted to the southern portion as planned, the value of such portion would have been diminished by the same amount as that being claimed for the northern portion.
     
      
       Defendant seems to contend further that the District Court, in its discussion of the accumulation of water claim which it dismissed without prejudice, nevertheless concluded that the claim neither constituted a breach of contract nor a talcing within the provisions of the Tucker Act, and that plaintiff’s failure to appeal results in its now being conclusively bound by the denial of the claim. This is, however, an erroneous construction of the decision. All that the court said was that defendant’s “pipe * * * did not go under any part of the land taken in this case,” i.e., the 3)1 acres. The court then went on to say that “Garden may have had a claim against the government under the Tort Claims Act; on the other hand, this may have been an item which was covered or which should have been covered by the original contract of sale. However that may be, Garden can maintain no claim for such damage in this proceeding.” These statements can hardly be construed to constitute a holding, as defendant contends, that the claim here presented “does not constitute a taking so as to come within the provisions of the Tucker Act.” [Def. brief at 15.]
     
      
       In its original answer, plaintiff claimed the sum of $247,754.80 for the estimated cost of revising its drainage plans. It contended that as a direct and proximate result of the taking, it would be necessary for it to build a box culvert in the bed of Security Boulevard (at its intersection with Clarke Avenue) at a cost of $332,754.30, less $85,000, the cost it would have incurred to construct the two culverts incident to the diversion plan, leaving a net amount of $247,754.30 as the direct and proximate damage resulting from the condemnation. However, this claim was apparently either withdrawn during the course of the proceedings, or stricken pursuant to the Government’s motion prior to trial, since no mention of it is made in the court’s opinion.
     