
    ANDREW H. HEYWARD v. THE UNITED STATES.
    [No. 26520.
    Decided May 29, 1911.]
    
      On the Proofs.
    
    In the culture of rice the land must be overflowed, but the water must also be withdrawn. The land must therefore be above low-water mark so that with the aid of dikes or levees the water can be admitted, can be retained, and can be excluded. In the improvement of the navigation of the Savannah the Government so raised the river by dams and obstructions that the water can not be withdrawn from adjacent rice plantations, thereby permanently flooding the same, and the lands become unfit for the cultivation of rice and valueless.
    I. To destroy the agricultural value of land-by the erection of public works in the bed of a river is to take private property for public use, and it is a taking within the meaning of the Constitution although the river is navigable and the dams and obstructions placed in its bed are for the purpose of improving navigation.
    II. A court without positive proof can not find the fact on an assumption of engineering skill that by the digging of canals land may be reclaimed for rice culture, or any other profitable purpose, and there is no authority of law requiring the owner of submerged lands to embark in uncertain undertakings for the reclamation thereof.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The plaintiff is a resident and citizen of the State of South Carolina, and was, at the time of the commission of the grievances hereinafter set forth, the owner in fee simple of two plantations involved in this suit, known as “ Lucknow ” and “ Redeem,” containing 3,100 acres of high land and rice land, situated on the Savannah River, in the county of Beaufort, in the State of South Carolina. Pie holds these plantations under sundry successive mesne conveyances, showing a continuous unbroken chain of title from the grant of the said lands by the lords proprietors of South Carolina in 1709 and the grants thereafter confirmed by act of the Legislature of South Carolina.
    The plantations Lucknow and Redeem here involved lie immediately between Varnezobra and Beech Hill plantations, on the back river, Varnezobra being the adjoining plantation higher up the river, while Beech Hill adjoins said plantations lower down the river.
    Said Varnezobra and Beech Hill plantations were in all respects similarly situated with reference to the Savannah River as the plantations here involved, were used in the same manner and for the same purpose, and were appropriated to the use of the United States in the same manner and by the same act as were the said Lucknow and Redeem plantations.
    Suit was instituted against the United States by the owners of said Varnezobra plantation to recover the value thereof in the case of United States v. Lynah, (188 U. S., 445), and judgment was rendered in favor of the plaintiff and paid. Suit was instituted for the value of the Beech Hill plantation in the case of Williams v. The United States, in the Circuit Court for the District of South Carolina (104 Fed. Rep., 50), which subsequently was taken to the Supreme Court of the United States and affirmed (188 U. S., 485).
    II. A certain parcel of the plantations here involved, measuring 1,205 acres, had been reclaimed by drainage and had been in actual continued use for 70 years or more as rice plantations, and for which purpose it was solely adapted and used. Said rice plantations required irrigation, and for that purpose were dependent upon the waters of the Savannah River and certain ditches, drains, and canals established in, through, and upon said plantations, through and by which the waters of the river were flowed at high tide in and upon said lands, and were then drained therefrom at low tide; said lands were so situated as to be adapted to the natural level of the said Savannah Biver, except in time of freshets, and were dependent for their proper drainage and cultivation for rice upon the maintenance of the natural flow of said river as it passed from flood to ebb tide in, through, and over its natural channel along its natural bed to the waters of the ocean.
    III. Prior to the appropriation thereof to the use of the Government, as hereinafter set forth, the portion of the plantations here involved, fronting on the river and used for the culture of rice, lay between mean high water and not quite low-water mark, protected from the river by an embankment, dike, or levee placed there by the planters for the purpose of protecting said lands from overflow when the river is at high tide and in times of freshets, through which embankment, dike, or levee trunks or waterways were constructed, provided with floodgates. The outer opening of the trunk was 1 foot, or slightly less, above the mean low-water mark of the river, in which the tide ebbs and flows. In order to flow the lands, the floodgates were opened at high tide and the water came in. When it was desired to draw off this water and to effect the drainage of the lands, the floodgates were opened at low tide and the water permitted to escape. It is essential that the outlets of the trunks or waterways should always be above the mean low-water mark.
    IV. The lands here involved, with others, were granted by the lords proprietors of Carolina in 1769, and lie on the Savannah back river, a tidal fresh-water stream, and were adapted, by reason of their level, to the cultivation of rice under the natural flow of the Savannah Biver along its natural bed to the sea. The whole rice culture of South Carolina is founded upon this system, and the policy of the colony and the State has been to grant lands so situated for rice culture. It is absolutely essential in the culture of rice that at times the lands be drjr in order to prepare the same for planting, then when the planting is done, and again while the rice is being harvested; that the State has for 150 years, by severe penal- laws, prohibited the stoppage of the course of any water in' its natural flow, for the purpose of protecting such rice lands from destruotion by continual inundation through the backing up or keeping surplus water on the lands.
    
      The Savannah Eiver is a navigable and tidal fresh-water stream.
    Y. For several years last past, and at the present time, the Government of the United States, tinder its ^proper officers, authorized thereto by the act of Congress, have been engaged in the improvement of the navigation of the Savannah Elver, a navigable water of the United States, this improvement being carried on by virtue of the provisions of section 8, Article I, of the Constitution, giving to the Congress the power to regulate commerce.
    Appropriations of several million dollars have been from time to time made by Congress to carry out these improvements.
    VI. In thus improving the navigation of the Savannah Eiver in the neighborhood of the plantations here involved, and below said plantations, the United States has built and maintained, and is now building and maintaining in and across said river, in the bed thereof, certain dams, retaining walls and other obstructions, and in course thereof has likewise dredged extensively, dumping great quantities of the mud and sand dredged from the Savannah front river into the Savannah back river, a short distance below these plantations. By reason thereof the Savannah back river has been partially stopped up, the natural flow of the river in and along its natural bed has been obstructed, and the level of the said river so raised above said dams, walls, and obstructions as to cause its waters to be kept back and to flow back, and to be elevated above its natural height in its natural bed.
    In order to deepen the channel in the front river the United States from 1879 to> 1905 dredged 12,000,000 cubic yards of material therefrom, and this dredging contributed to deepen the channel to allow a freer flow of the water from the upper section to the sea. While the main channel of the Savannah Eiver became deepened, the water in back river shoaled, and thereby materially retarded the movement of the water in its passage to the sea.
    VII. These rice plantations, Lucknow and Eecleem, are above these obstructions. The direct effect of the Government work upon the Savannah Eiver is to raise its level at these plantations and to maintain the mean low water above its natural point so that the outlet of the trunks and waterways in the embankments upon said plantations, instead of being above this point of low-water mark, is now below this point, thereby rendering the flooding and drainage of said lands, as is necessary in rice cultivation,’ impossible. Furthermore, the raising of the low-water mark in the manner aforesaid has caused the waters of the said river to seep upon and percolate the said plantations, permanently flooding the same approximately to the depth of 22 inches, and which is the same level as the water level in the river. It has likewise become impossible to carry away the water from plaintiff’s tract of 1,265 acres devoted to the culture of rice or to drain the same. In consequence of the seepage the lands became boggy, sogged, and sour and unfit for the cultivation or production of rice, or, so far as known, of anything useful in agriculture. Said condition is permanent, and the 1,265 acres of land affected became useless and valueless to the owner or other person.
    VIII. The dams and obstructions built in the Savannah River by the Government of the United States were for several years being continuously erected, the height of the water gradually being increased, and the injury to the plantations by reason of this superinduced addition of water actually invading the said rice plantations gradually progressing, destroying their adaptability to cultivation until the plaintiff was compelled to abandon the cultivation of rice or anything else on said rice lands in the year 1901, resulting in the absolute appropriation of said plantations to the use of the United States in the manner aforesaid, since which time he has been deprived of the possession and use thereof.
    IX. The value of these rice lands before the commission of the acts hereinbefore mentioned, and the appropriation thereof, to the use of the United States in the manner aforesaid, was $30 per acre. The value of the rice plantations, comprising 1,265 acres, thus appropriated is $31,950.
    X. The court finds the ultimate fact to be, in so far as it is a question of fact, that claimant’s lands were taken within the meaning of the fifth amendment to the Constitution by reason of the authority conferred by the United States for the improvement of the Savannah River, and because of the improvements in, upon, and around said river by the authorized agents of the Government of the United States.
    
      Mr. W. Boyd Evans and Mr. E. C. Brandenburg for the claimant.
    For the purpose of the Government the water in the river must be raised. The banks of the plantations materially assist this operation, for by their resistance the water is kept in the channel. The backing up of the water against the banks to create this resistance raises the water in the plantations and destroys the drainage of the plantations. This is a taking.
    In the case of Pumpelly v. Green Bay Company (13 Wall., 166; 20 L. Ed., 560), so often cited in this court, the defendant was charged with overflowing 640 acres of plaintiff’s land by means of a dam erected across Fox River, the outlet of Lake Winnebago, by which the waters of the lake were raised so high as to do the damage charged.
    The next leading cases on this subject, and the two identical with the case at bar, are United States v. Lynah (188 U. S., 445) and United States v. Williams (188 U. S., 445).
    The right to have the water drain freely from a riparian plantation into the adjoining stream at its natural level has always been regarded as a property right from the earliest common-law time, as will appear by a reference to any work on “ Waters ” or to any of the common-law authorities. This is as much property as is the land itself, and an obstruction resulting from Government improvements is a taking of the property of the adjoining owner within the meaning of tho Federal Constitution. If a court is to be guided by true principles and constitutional right, it must hold that this is property within the protection of the Federal Government. (United States v. Cora Welch et al., citing Miller v. Morton, 152 Mass., 540, 547.)
    The doctrine of the Pumpelly case has always been maintained where there is an actual direct invasion and destruction of the real estate by water backing up and a practical ouster of possession, which is the case here.
    
      
      Mr. W. W. Scott (with whom was Mr. Assistant Attorney General John Q. Thompson) for the defendants.
    1. The contention of the Government in the present case is, as the findings of fact will show, that the injury done to the claimant’s lands is rather an injury done to his system of drainage for said lands and not to the lands themselves, and that this injury to the drainage system was only temporary, and that that injury ceased prior to 1905 and does not now exist. To establish this fact it should only be necessary to show that the mean low-water plane and the ebb and flow of the tide of the river is the same to-day as it was before the Government improvement commenced.
    In 1819 the duration of the ebb tide was 6 hours and 53 minutes, and in 1905-6 it was 6 hours and 55 minutes, making a difference of only 2 minutes. About the same state of facts is shown by said table for the other points where observations were made. In this way it .is shown that the duration of the ebb and flow of the tide has'not been changed by the Government works. In other words, the claimant today has the same length of time at and after low tide to drain his lands as he had before the improvement of the river.
    If in 1904, or after the improvements in the river, the mean low-water plane is the same as it was before the improvements, there is no permanent injury to the sj^stem of drainage for claimant’s lands, for the reason that the low-water surface of the river is the same as it was before the improvements and the lands could be drained as successfully as before. If the raising of the low-water plane for a short period of time about the year 1886 interferred with the claimant’s system of drainage, it was a temporary and not a permanent injury, and therefore only inflicted upon him and . his lands a consequential injury resulting indirectly from the Government works.
    In all cases where the courts have found that private property has been taken for public use as a result of river and harbor improvement by the Government the court has al-waj^s found, and the facts have always stated, that it was the direct result of the improvement.
    It is claimed, and some of the old negro fice laborers have testified, that at times the claimant’s lands are submerged. None of them, however, testify that the lands are permanently flooded or submerged, as was found to be the fact in Lynah’s cases.
    2. In considering the injury done to the drainage system for the claimant’s plantations it must be borne in mind that these lands are reclaimed lands and in their natural state were always subject to over-flow at flood tide, the Savannah Elver being a tidal stream. These lands were reclaimed by the construction of an embankment, dike, or levee along that part fronting the river which served to protect the lands from overflow at high tide. Otherwise they would have been flowed daily, for the reason that the lands are located between high and low tide. If the owners of these lands constructed embankments, levees, or dikes to prevent their overflow at flood tide and have since said construction suffered an injury while the Government was improving the Savannah Eiver for navigation, that injury is damnum absque injuria and must be borne by the landowner. Not only was it necessary to construct along that part of these plantations fronting the river an embankment to prevent overflow at high tide, but it was also necessary for the planters in that locality to construct what was known as the Varnezobra freshet bank, just above these plantations from the river to the foothills for the purpose of protecting these lands and the plantations below from water coming from the Varnezobra plantation and the lands above. The testimony is that at the present time this Varnezobra freshet bank is broken in several places and the water from that plantation and the lands above enters the claimant’s plantations through these breaks. His drains not being in proper condition, the water remains in the drains and the ditches and is not carried through his embankment to the' river as formerly. The facts in the present case are not similar to the facts in any case wherein the courts have awarded compensation to the landowners for the taking of property for public use. On the contrary, the facts in the present case are similar to the facts in Gibsons case (16C U. S., 269), wherein it was held that—
    Where by the construction of a dike by the United States in the improvement of the Ohio Eiver the plaintiff, a riparian owner, was, through the greater part of the gardening season, deprived of the use of her landing for the shipment of products from and supplies to her farm, whereby the value of her farm was reduced $150 to $200 per acre, there was no taking of the property, but only a consequential injury.
    (See also Marchant v. The, Penn. R. R., 153 U. S., 380; Meyer v. Richmond, 172 U. S., 82.)
    A case in all respects similar to the present one is that of Mills v. United States (46 Fed. Rep., 738).
    The decision1 was affirmed by the Supreme Court of the United States in Lynafts case (188 U. S., 445).
    The present case, however, presents a state of facts much more favorable to the Government than did the Mills case, in this, 'that the Mills case was decided in 1891 at a time when the mean low-water -plane of the river was raised from 2 to 3 feet above what it was before the improvement. The increased elevation of the mean low-water plane does not to-day exist and it is the same as it was before the improvement. Therefore the cause of the alleged injury in the Mills case does not exist in the present case, and the claimant could now with the same system of drains and ditches drain his lands for rice culture as well as he could before the improvements, and they could be cultivated.
    In addition to relying upon the embankment, dike, or levee fronting the river to protect his lands from overflow at flood tide, the claimant in the present case had a pumping outfit which he used for the purpose of pumping water on and from his lands, and this was before the Government improvement.
    Another case somewhat similar to this and the Mills case, supra, is that of the High Bridge Lumber Go. v. The United States (69 Fed. Rep., 320).
    3. The fact that the mean low-water plane is to-day as low as it was before governmental improvement of the river for navigation shows that the increased elevation of the mean low-water plane was only temporary, and the injury to the claimant’s system of drainage was only temporary, and there is not a permanent flooding and not a taking of property within the meaning of the fifth amendment to the Constitution, just as was held in the last above-mentioned case.
    
      4. The question of what constitutes a taking of property by flooding, within the meaning of the fifth amendment to the Constitution, was before the court in the Walls case (44 C. Cls., 482), and again in Tompkins case (45 C. Cls., 66). In the latter case the court said:
    In other words, we confine recovery in the case to the land actually invaded and washed away, including the quantity in the gulley, amounting to 6.8 acres.
    In the Walls case there was a temporary flooding of the claimant’s land and to such an extent that on more than one occasion he was compelled to abandon his residence until the water receded, and your honorable court held there was not a taking of property within the meaning of the fifth amendment to the Constitution. In the present case the claimant’s system of drainage was only interfered with for a short period by the increased elevation of the low-water plane. It would therefore seem that the cases are similar and that the temporary interference with the claimant’s system of drainage during the period that the low-water plane was raised should not be considered as a direct result of the governmental work and a permanent destruction of the land. In the Walls case it was held that the occasional overflows were not a direct result of the locking and damming of the Monongahela Eiver, a nontidal stream. The freshets in the Monongahela Eiver were caused by the acts of nature, as were also the freshets in the Savannah Eiver, a tidal stream, and there seemed to be more than the usual number of freshets in the year 1901, when it is claimed claimant abandoned his lands.
   IIowey, Judge,

delivered the opinion of .the court:

Plaintiff sues to recover of and from the United States the value of two certain adjoining rice plantations containing 1,265 acres, situate on the Savannah Eiver, in South Carolina. Said land is the rice land part of a tract of 3,700 acres.

Under and by virtue of certain acts of Congress officers and agents of the United States erected, built, and maintained, and are now building, erecting, and ■ maintaining, across the Savannah, and in the bed of the stream, certain ' dams, draining walls, and other obstructions above and below the properties mentioned in the petition, thereby preventing the natural flow of the water through, in, and along the natural bed of the river. The dredged material necessary to be taken from the premises above and below the properties mentioned was so dumped as to raise the river several feet, and .the dredged material dumped along and with the other obstructions with the dams in the bed of the stream and the draining walls caused the waters to recede and flow backward' to such an extent as to raise and elevate the water above the ordinary height of the river along its natural bed at and above the point where the dams, draining walls, dumped materials, and obstructions were situated. These dams, draining walls, and obstructions were necessary to make the improvements effective, but they backed the waters of the river in and upon plaintiff’s land to such a height as to flood his property, thereby preventing the natural outflow of water from the land. The findings show the height of the water to be approximately 2 feet over and above the natural and ordinary level of the river, and the plaintiff’s land became so saturated as to prevent the necessary outflow from the plantations. Because of this and the filling of the ditches through the land the plantations became' submerged, the crops were destroyed, and the drainage of the land for purposes of rice culture was prevented. Superinduced additions of water actually invaded the rice lands so as to permanently injure' and destroy the property for the uses to which it has been devoted for many years. Rendered useless for purposes of rice culture (or for other agricultural- purposes) and abandoned, plaintiff’s contention is that the land has been taken by the Government, for which compensation should be made.

Defendants admit that to use the lands drainage was necessary between the ebb and flood tide; that is, between high and low tide. They admit injury to the property, but say that the lands could be drained into Savannah back river, and from thence to the rear into the swamps by the construction of a -canal from, in and through the lands. Urging that though the water remained standing in the ditches and that there was an accumulation of it upon the lands, it is likewise insisted that this water came from rains, and the flowage of surface water from the lands above and below and not from the river, as the embankment, dikes, and levees constructed along the river front combined to prevent overflow.

These contentions of alleged facts, in so far as the court has found them to be supported by the evidence, have been incorporated into the findings.

The material and ultimate facts appear in the seventh finding. The direct effect of the Government work upon the Savannah Eiver was to raise its level at plaintiff’s plantation and to maintain the mean low water above its natural point, thereby rendering the flooding and drainage of plaintiff’s land impossible for rice cultivation. The raising of the low-water mark caused the waters of the river to seep upon and percolate the plantations, resulting in permanently flooding the lands approximately to the depth of 22 inches and upon the same level as the water level of the river. In consequence of the seepage the lands became boggy, sogged, and sour and unfit for the cultivation or production of rice, or, so far as known, of anything useful in agriculture. This condition became permanent and the rice lands affected became useless and valueless.

Was this a taking of private property in the exercise of the right of eminent domain by the Government for which compensation should be made within the meaning of the fifth amendment to the Constitution ? It is the contention of the Government that plaintiff’s submerged lands were on a navigable river always subject to overflow at flood tide, inasmuch as the adjoining river was a tidal stream. That plaintiff’s lands had originally been reclaimed by the construction of an embankment, dike, or levee (along that part fronting the river), which served to protect the lands from overflow at high tide, and that as the Government was -improving the stream for navigation it was also necessary for the planters in that locality to construct freshet banks above the plantations from the river to the foothills, so that the lands and plantations below might be protected from water coming in from the lands above.

It is the further contention of defendants that the flooding here was temporary, which did not amount to a taking; and the flooding not being the result of negligent construction or maintenance of the improvements authorized amounts only to a consequential injury not actionable; in other words, the injury was damnum absque injuria.

Defendants rely upon Mills v. United States, 46 Fed Rep., 738; High Bridge Lumber Co. v. United States, 69 ib., 320; also upon Gibson v. United States, 166 U. S., 269; Marchant v. Penn. R. R., 153 U. S., 280; Myer v. Richmond, 172 17. S., 82; Walls v. United States, 44 C. Cls. R, 482; Tompkins v. United States, 45 ib., 66.

The findings having disposed of the contentions respecting the character of the flooding, and the court having found that there was a permanent flooding of the land to the destruction of the property, the authorities cited are inapplicable. Thus, in Walls v. United States defendants were held liable for land permanently submerged, but overflows caused merely by infrequent freshets were held not to amount to a taking. In Tompkins v. United States, supra, a small fraction of land appeared to have been washed over and away. After a break in the dam other land claimed for was shown to have been in cultivation, and the court held that the damage arising from the risk of overflow should be regarded as consequential.

In Mills v. United States it was shown that the Government bad erected a “ cross-tides dam ” between two islands. This cut off the flow of all water from the stream connecting the front and back rivers, and by raising both high and low water levees in the front river destroyed the facilities for draining the adjoining lands into the front river and likewise rendered it necessary to raise the levees around the rice fields to prevent flooding in time of high water. On appeal it was held that the case was one of consequential injury remediable by the owner.

In High Bridge Lumber Co. v. United States commissioners had been instructed not to consider any damages that might result to adjacent property by reason of any overflow, or any other damages that might result by the construction or operation of a lock and dam. On appeal the case was stated on the circuit as an “ anticipated diversion of the current of the stream from one side of the river to the other, thereby inconveniencing the conduct of the business (of the complaining company) and the anticipated raising of the level of the stream causing overflows and a consequent damage to mill machinery and to the use of adjacent lands for the purposes of its (plaintiff’s) business.” Mr. Justice Lurton, for the court, held that these were injuries not directly the result of the taking of the small parcel of land desired by the Government, but damage anticipated and consequent upon the construction and maintenance of the lock and dam; and he added, that if the land condemned had been acquired by purchase, the same result to the remainder might be as well anticipated, or, if the condemned parcel had belonged to a different owner, the complaining party would be subjected to the same class and kind of injury. Such anticipated damages did not constitute a taking. In Marchant v. Penna. B. B., plaintiff sought to recover for injuries caused to his property by the smoke, dust, noise, and vibration arising from the use of the railroad’s engines and cars, the necessary consequence and incidents of the operations of a steam railway. Plaintiff was the owner of a lot upon which he had erected a building occupied as a dwelling and business house. The elevated railroad constructed did not occupy any portion of the plaintiff’s land, nor did it trench upon Filbert Street, extending in front of the plaintiff’s property. Opposite plaintiff’s lot the railroad structure occupied its own land. On appeal the case was disposed of substantially by the statement that the construction of an elevated track on private land abutting on a public street in a city gave to the owner of the land on the opposite side of the street no claim to recover consequential damage or injury.

In Meyer v. Richmond, supra, it appears that plaintiff was the owner of a lot fronting on a street between two other streets. Under an authorized ordinance a railway company had occupied the street on which plaintiff’s lot (and two buildings) were located with its tracks, sheds, and fences. The railway company had provided for pedestrians, for whom the company was required to provide an overhead bridge and stairway approaches. The averment was that this was an obstruction that arrested travel along the street and substantially injured and destroyed plaintiff’s property, and it was contended that the city had no right to authorize such obstructions to be placed in the street without proper legal proceedings for that purpose and the making of just compensation to the abutting owners. The case seems to have been a common-law action of trespass. The judgment of the lower court refusing damages was affirmed by the appellate court.

In Gibson v. United States no water was shown to have been thrown back on plaintiff’s land by the building of a dike. The dike itself did not come into physical contact with plaintiff’s land and was not shown to have been the cause of any such physical contact in any other way. Free egress and ingress to and from a landing on and in front of the plaintiff’s farm to the main or navigable channel of the river so destroyed the landing of the plaintiff as to prevent the, shipment of products from and supplies to plaintiff’s farm for the greater part of the gardening season because of the dike obstructing the passage of boats. But access to the navigable portion of the stream was not entirely cut off, as plaintiff could communicate with the navigable channel through the chute and at any time could haul to the channel. Damages resulting from the prosecution by the Government of its improvements were held (affirming this court) not recoverable.

This case was followed by that of Scranton v. Wheeler, 179 U. S., 141, where compensation was denied on a claim for the taking of private property for public use without just compensation to an owner of land where access from the land to navigability was permanently lost by reason of the construction, under authority of Congress of a pier resting on submerged land away from, but in front of, the private owner’s upland.

In considering the distinction between a taking and merely consequential damages Mr: Justice McKenna said, in Bedford v. United States, 192 U. S., 225, affirming Lynah’s case, that the works were constructed in the bed of the river, obstructed the natural flow of its water, thereby causing, as a direct consequence, the overflow of Lynah’s planta-, tion. That in Bedford’s case the works were constructed along the banks of the river and- their effect was to resist erosion of the banks by the waters of the river. There having been no other interference with natural conditions the damage to Bedford’s land, “ if assignable to the works at all,” was but an incidental consequence of the works. Bed-ford’s case, however, is not this case.

It is unnecessary to notice other cases of collateral damage not amounting to a taking, but now to recur to those cases which we think fully sustain the contention of the plaintiff in this case that his land was taken within the meaning of the fifth amendment.

In United States v. Welch, 217 U. S., 333, some of the cases where damages were the only result were reviewed. The court thought that the argument on a claim for compensation by Welch for his private right of way was only confused by reference to cases like Gibson’s. It became settled by the Welch decision that a private right of way is an easement and is land, and that if this private right of way be destroyed and ended a destruction for public purposes may as well be considered a taking as would an appropriation for the same end.

In United States v. Grizzard, 219 U. S., 180, it was said that the trend of opinion was toward the decision announced in that case. It appeared there that an amount had been allowed for land actually taken and a like sum for the easement of access likewise taken. The flooding and tailing of a part of plaintiff’s farm had depreciated the usefulness and value of the remainder and the owner was not justly compensated by being paid for that actually appropriated and leaving him uncompensated for the depreciation over benefits to the remaining land. Where there was a taking by flooding permanently, the court said there was a taking as in Pumpelly v. Green Bay Co., 13 Wall., 166; United States v. Lynah, 188 U. S., 445; United States v. Williams, 188 ib., 485; United States v. Welch, 217 U. S., 333.

In the case at bar no proceedings had been taken to formally condemn the land'. But there is no essential difference between this and the cases mentioned, and especially between this and Lynah’s claim, supra. The two plantations of this owner adjoined Varnezobra plantation, which is involved in the Lynah case, supra, on one side and Beech Hill, involved in the Williams case, supra, on the other. In those cases it appeared that destruction was caused as the result of the raising of the level of the river with the direct result that by seepage and percolation the water rose until the water level in the land gradually rose to the height of the increased water level in the river, and the superinduced addition of water in the plantation was raised about 18 inches. The same conditions exist in the present case, supplemented by the shoaling of water in back river and by the deposits there of mud and sand whereby the ditches were filled and could not be drained. By seepage and percolation through the embankment the water became raised on the front of the river to such an extent that the overflow could not be controlled. By seepage and percolation caused by the deposits and obstructions in back river the property also became an irreclaimable bog unfit for the purpose of rice culture or any other known agriculture and deprived of all value. This was the necessary result of’ the work undertaken by the Government and was a taking within the meaning of the constitutional provision.

From the evidence the court is unable to find that drainage might have been accomplished so as to reclaim the land. Though, as said in some of the cases, there is theoretically no limit to that which engineering skill may accomplish, that vast tracts have been reclaimed by levees and other works, so that courts may believe flooding may be prevented, there is nothing tangible or certain disclosed by the record on the proposition that the land mentioned in this case may be the subject of reclamation. This court is without sufficient proof to make a finding that by the digging of canals plaintiff’s land may be reclaimed for rice culture or for any other profitable purpose. The digging of canals wide and deep enough for the purpose indicated would probably require the owner to invade the lands of others as well as interfere with the improvements erected by the Government. Aside from the question of fact involved in the defendants’ suggestion, we know of no authority in law requiring the owner of submerged lands to embark in any undertaking involving such uncertain results.

There is no proof to sustain the supposition that with the expenditure of an additional sum the claimant could have warded off the consequences of the overflow. The presumption was not indulged in Lynah’s case and in Williams’s case, ante, that the expenditure of additional sums could have prevented the flooding of the lands so serious as to amount to a taking. The present case must be governed by like considerations growing out of the proof and not upon an intangible belief growing out of a mere presumption.

Judgment will be entered for plaintiff in the sum of $37,950. But, meantime, and before the judgment is certified, plaintiff is required to furnish a survey definitely ascertaining the lands taken, by metes and bounds. United States v. Sewell, 217 U. S., 601. When the metes and boiinds are so furnished the judgment will be subject to correction according to what the survey discloses. That is to say, the judgment is subject to be diminished by the number of acres of land disclosed by the survey should this survey show the acreage overflowed and submerged to be less than the number of acres set forth in the petition.

Before payment of the amount properly due according to the survey plaintiff will execute a conveyance granting and conveying his title to the-lands to the United States.

Peelle, Ch. J.,

concurring:

I concur in the conclusion of the court because of the decisions — by a divided court — in the cases of United States v. Lynafa and United States v. Williams (188 U. S., 444 and 485), which were followed by this court in the cases of Walls v. United States (44 C. Cls., 482) and Tompkins v. United States (45 C. Cls., 66), from which no appeal was taken.

The facts in this case are substantially the same as in the Lynah and Williams cases. That is to say, parts of the plantations claimed to have been taken by overflow are, as found in Finding III, situate between high and low water mark and are protected from overflow in times of high water by dikes and embankments constructed by the owners. The lands so situate, as in the Lynah and Williams cases, are dependent upon the ebb and flow of the tide for flooding and drainage purposes.

No part of the land was taken by the Government upon which to construct the dams and retaining walls. On the contrary, as set forth in Finding VI, the dams, retaining walls, and other obstructions are built and maintained “ in and across said river in the bed thereof,” thereby partially obstructing the river and raising the level of the water above its theretofore natural point.

The rule at common law both in England and in this country is that where a private owner suffers damage from a construction of public improvements without an actual entering upon or taking of his land it is damnum absque injuria; or, as was said by the court in the case of Smith v. Corporation of Washington (20 How., 135, 148), “private interests must yield to public accommodation.”

It was also the rule at common law that the soil below high-water mark (bordering on the navigable streams where the tide ebbed and flowed) was held to be in the public, and many of the States still adhere to this rule; but the Supreme Court, under the legislation of Congress, has by its rulings extended the jurisdiction to all waters navigable in fact for the purposes of commerce without regard to the ebb and flow of the tide. (The Propeller Genesee Chief, 12 How., 443; The Magnolia, 20 How., 296; Hine v. Trevor, 4 Wall., 555.) But does this mean that where lands are situate between high and low water mark on navigable streams where the tide ebbs and flows they shall be governed by the common-law rule or by the rule announced by the court in the cases last cited ?

If the Government is to be held liable to riparian owners for injury to their land incidentally resulting from the improvement of the navigable waters, without actually entering upon or taking their land therefor, then the constitutional grant of paramount authority to Congress over such rivers would seem to be subordinate to that of riparian owners.

Suppose an improvement be made to hold the water in the channel and thereby prevent flooding, so essential and necessary to a rice plantation, would that be a taking ? Or, suppose the improvement in the bed of the river had caused, a deflection of the water and permanently submerged the claimant’s land, would that be a taking? This seems to be answered in the case of Bedford v. United States (192 U. S., 217, 225).

No action could be founded for the mere impairment in’ value of lands caused by such improvement-or for injury to a riparian owner’s right of access to such river thereby incidentally taken away. [Gibson v. United States, 166 U. S., 269; Scranton v. Wheeler, 179 U. S., 141; Manigault v. Springs, 199 U. S., 473.)

In the present case the claimant’s lands being situate between high and low water mark they were of course subject to overflow in times of high tide, and therefore necessarily so in times of flood unless protected by dikes and embankments. Such dikes and embankments, as before stated, had been erected by the owners to protect their lands from overflow in times of high water long before the construction of the dams and retaining walls by the Government, and it is but reasonable to suppose that with the expenditure of an additional sum the claimant could have warded off the consequences of the overflow. But as this case seems to be so nearly covered by the Lynah and Williams cases I concur in the conclusion of the court.  