
    GEORGE F. ARCHER AND KATE C. ARCHER v. THE UNITED STATES.
    [No. 30471.
    Decided February 12, 1912.]
    
      On the Proofs.
    
    The plantation of the claimant is valuable agricultural land on the Mississippi, subject only to occasional overflow. The Mississippi River Commission constructs a dike upon the land, the effect of which at times of high water is to deflect the flood waters of the river across a large portion of the plantation with such force as to scour and destroy much of the top soil, move away houses, and leave a deposit of sand and gravel, totally destroying the value of the land for agricultural purposes.
    I.Where a dike was erected on agricultural land by the Mississippi River Commission, and was the work of the United States alone, the effect of which is to destroy the value of the land permanently for agricultural purposes, the defendants are liable under the Constitution.
    II.The distinction between this case and Bedford’s (192 U. S. R.) is that there the Government did not invade the land, but merely sought to preserve the operation of natural causes, while here the Government erected its dike on the claimants’ land, covering more than 31 acres, which work directly caused the taking of 3,684.6 acres more.
    III.It is settled that whenever there has been an actual physical taking of a part of a tract of land the compensation will be the market value of the part appropriated, and the damage to so much of the remainder as may result from the taking. Land can not be invaded and taken for a public work without subjecting the Government to liability for all the land taken, including that incidentally destroyed.
    IV. Where a claimant recovers for land taken, judgment will be entered at the time of the decision for an amount stated, but before the judgment is certified the rule laid down in Hey-ward's case (46 C. Cls., R. 484, 501), as to the survey and conveyance of the land taken and possible correction of the judgment, will be followed.
    
      The Reporters' statement of the case.
    The following are the facts as found by the court:
    I. The claimants herein, George F. Archer and Kate C. Archer, were in the year 1903, have been since, and are now, the owners in fee of those lands lying and being situated in Chicot County, Arli., and described as “ Point Chicot plantation,” being that tract of land opposite the town of Greenville, Miss., bounded on the north, east, and west by the waters of the Mississippi River and on the south by “Leland plantation,” and more particularly described as follows, to wit: All of fractional sections 4, 5, 6, 7, and 9; all of section 8, and parts of fractional sections 17, 18, 19, and 20, lying north and east of a certain line of fence which formerly divided said Point Chicot plantation from the improvements of J. B. Miles, all being in township 15 south, range 1 east, in Chicot County, Ark., with all accretions, alluvions, and additions thereunto, and all privileges and appurtenances thereunto belonging, and comprising 6,000 acres, more or less.
    II. Said Point Chicot plantation, prior to the construction of the levee system to the state of completion which now exists, was of great value and was in a high state of cultivation, the lands of which it is formed being reclaimed lands and comparatively high and free from overflows of the Mississippi River, except at intervals, the recurrence of such overflows being so separated, in point of time as not to materially affect either the value or the productive capacity of said lands; and that said plantation was highly improved with houses and cabins thereon and stocked with laborers and tenants and yielded large crops.
    
      At Greenville, Miss., opposite tbe claimants’ land, has been kept a United States gauge continuously since 1882, and at Lake Providence, 64 miles south of Greenville, for some years prior to 1882; that is, from 1844. The gauge readings at these two places and the computed flood levels at Point Chicot for years of high water are as follows:
    
      Elevation of floods, Chicot Point, Arlo., mile JftS R. helow Cairo, upper Tensas district.
    
    [Computed from Lako Providence and Greenville gauges.]
    Years. Lake Providence. Gauge at Green-ville. Computed Elevation, Point Chicot.1 Years. Lake Providence. Gauge at Green-ville. Computed elevation, Point Chicot.1
    1844.. 42.16 139.4 43.45 140.5
    1858.. 43.00 ‘140.1 1891.. 43.25 140.4
    1862. 40.87 140.5 141.4
    1867. 39.92 137.0 1893.. 44.30 141.4
    1872. 35.15 138.3 35.40 132.5
    1873.. 36.12 135.4 1895.. 27.75 124.9
    1874. 37.37 136.7 1896.. 34.60 2 131.7
    1875.. 37.29 136.6 1897.. 46.75 8 144.0
    1870. 37.95 137.3 1898.. 46.16 143.4
    1877. 35.82 135.0 1899.. 43.00 140.1
    1878. 35.80 135.0 1900.. 33.75 130.8
    1879. 86.00 135.2 1901.. 134.4
    1880_ 38.05 137.4 1902_. 133.2
    1881. 36.17 135.4 1903.. 49.10
    1882. 41.68 138.8 1904.. 43.55
    1883. 40.40 157.5 1905.. 36.80 133.9
    1884. 41.10 138.2 1906.. 44.90 142.0
    1885. 38.05 135.2 1907..
    1886.. 41.20 138.3 1908.. 141.8
    1887. 40.80 137.9 1909.. 44.80 141.9
    1888. 40.55 137.7 1910-37.00 134.1
    1889. 31.85 129.0
    1 Memphis datum.
    2 No overflow; overflow at 135 elevation, Memphis datum.
    8 Prom actual elevation.
    The Point Chicot plantation has been overflowed whenever the water surface rises to 135 feet, Memphis datum, and said lands have been more or less overflowed every year except two, 1872 and 1889, during the 18 years prior to 1891, np to which time the levee system had not been completed sufficiently to withstand great floods and the outlets unclosed; and during the 20 years following 1891 after the levee system had been made effective and the outlets closed by the United States and the local authorities, there were 8 years, namely, 1894, 1895, 1896, 1900, 1901, 1902, 1905, and 1910, during which the claimants’ land was not overflowed.
    
      The claimants’ Point Chicot plantation is overflowed at a stage of 38 feet on the Greenville gauge, or whenever the water surface rises to 135 feet, Memphis datum, and the gauge readings show that of the 15 years from 1882 to 1896, inclusive, there were only 4 years in which this stage was not exceeded, and that of the 14 years from 1897 to 1910, inclusive, there were 5 years in which this stage of 38 feet on the Greenville gauge was not exceeded.
    III. From time immemorial the waters of the Mississippi Eiver during the highest stages thereof, when not contained within the low-water banks of said river, naturally found outlets below Cairo into the St. Francis Basin, and below the highlands near Helena, Ark., in the White Eiver, Yazoo, Tensas, Atchafalaya, and Pontchartrain Basins, and through the rivers draining these basins eventually into the Gulf of Mexico. ' The outlets and drains thus provided by nature were such as to accommodate said flood waters, and the lands hereinabove described were not overflowed as frequently before the outlets were closed by levee construction by the United States to improve the river for navigation and by the State and local authorities to protect and reclaim land subject to overflow in times of high water, and consequently were but little injured by said overflows.
    IV. Prior to 1883 the States and local authorities had constructed a system of levees for the protection and reclamation of lands subject to overflow from the mouth of Eed Eiver to the mouth of the Arkansas, and from the mouth of the Yazoo to the highlands below Memphis. The flood waters of 1882 destroyed miles of these levees, leaving a levee line containing 6,278,728 cubic yards in the lower Yazoo levee district, which is in the vicinity of Point Chicot, but on the opposite side of the river in the State of Mississippi, and leaving a levee line in the upper Tensas district, which is south of Point Chicot, oh the same side of the river, in the State of Louisiana, containing 1,788,304 cubic yards, and a levee line in the middle Tensas district, still farther south, containing 3,631,400 cubic yards.
    Beginning about the year 1883 and continuing to the present time the officers and agents of the United States, in pursuance of an act of Congress creating the Mississippi River Commission and other acts amendatory thereto, and for the improvement of the Mississippi River for navigation, adopted a plan, the so-called Eads plan, and in consequence thereof have projected and constructed and maintained and are now engaged in constructing and maintaining certain lines of levees on both sides of the river at various places for various distances from Cairo, Ill., to near the Head of the Passes, a distance of 1,050 miles by river from ■ Cairo, and the local authorities or organizations of the States bordering along the river on both sides from Cairo to the Gulf have before and since 1883 'constructed and are now constructing and maintaining certain lines of levees at various places and of various lengths for the purpose of protecting and reclaiming land within their respective districts from overflow in times of high water.
    The levee lines so constructed by the United States and the local authorities have been practically joined, with the result that the flood waters of the Mississippi River to a great extent are confined within and between said levee lines, and, encompassed within a narrower scope than heretofore, acquired an increased velocity and higher elevation and the current thereof has become stronger and more forceful.
    The plan of the officers and agents of the United States so acting was to increase said velocity and scouring power of the water and to scour and deepen the channel of the Mississippi River and thereby improve it for navigation, and the purpose of the officers and agents of the State and local authorities constructing lines of levees at various places along and on both sides of the river was to reclaim and to protect land from overflow in times of high water. By so doing the waters being confined within a narrower compass, as above indicated,- have by laws of nature attained a higher elevation of approximately 6 feet in times of high water.
    From time immemorial and as far back as the records show the flood stages of the Mississippi River, the high-water bed of that river was between the highlands on the east side and highlands on the west side. The lands of the claimants in controversy in this suit are located within this boundary on Point Chicot, in Chicot County, Ark.— that is, between the highlands on the Mississippi side of the river and the highlands on the Arkansas side — and have been occasionally overflowed at times of high water, as stated in Finding II, before as Avell as since the construction of levees.
    From Cairo, Ill., to the mouth of the Yazoo Eiver just north of Yicksburg the Mississippi Eiver is practically leveed on both sides, except on the east side where the highlands abut on or very near the river in Kentucky and Tennessee (from Port Jefferson, Ky., to a short distance south of Memphis, Tenn.), and thence on the west side to near the Head of the Passes, or to a point 1,050 miles by river from Cairo, and on the east side from Baton Eouge to the same point near the Head of the Passes, leaving a gap in the line of levees of 234 miles in length, from the mouth of the Yazoo Eiver to Baton Eouge, unleveed,' which levees were constructed in part by the United States and in part by the local authorities along the Mississippi Eiver.
    The extension of the general levee system by the United States and the local authorities has resulted in an increased elevation of the general flood levels, which subjects the claimants’ lands to deeper overflow than they were subject to formerly or would be subject to now if the levee system were not in existence, and consequently somewhat reduced its value for agricultural purposes. The immediate cause of the deeper overflow of claimants’ land is the increased elevation of the flood heights, which is the result of the general confinement of the flood discharge by the levee system as a whole.
    During the flood waters of 1882 the levees failed throughout the length of the river. In 1884 the crevasses were still open in all basins. In 1886 crevasses were open in the upper Tensas district and the levess intact in the lower Yazoo district opposite the upper Tensas. In 1887 all crevasses were closed. In 1890 there were eight crevasses in the upper Tensas and seven in the lower Yazoo district, which is in the State of Mississippi opposite claimants’ land. In 1891 all 1890 crevasses were closed and the flood waters of that year made one crevasse in the upper Tensas and one in the lower Yazoo district. In 1892 all crevasses were closed, but the flood waters made six crevasses in the levees located along the stretch of river in the neighborhood of the claimants’ land, which is located 473 miles below Cairo in the upper Tensas district, and the six crevasses were in the stretch of levee line between 439 miles and 506 miles south of Cairo. In 1893 all crevasses were closed, but the flood waters of that year made four crevasses in the levee lines located not far from claimants’ land; that is, in the stretch of levee between 497 miles from Cairo and 545 miles. In 1897 all crevasses were closed, but the flood waters of that year made five crevasses in the lower Yazoo district in Mississippi, which is opposite and south of the claimants’ lands. From 1898 to 1902 there were no crevasses, and only one crevasse in the upper Tensas district in 1903, and all crevasses closed in 1904 to 1910.
    Y. In consequence of the closing of- the natural basins, outlets, and crevasses caused by. the flood waters, by the United States and the local authorities of the States bordering the river on both sides, as aforesaid, the channel of said river has been scoured and many waste and overflowed lands on both sides of the river behind said levees have been incidentally reclaimed and are now protected from overflow in times of high water, and vast benefit has accrued to the States of Illinois, Kentucky, Tennessee, Mississippi, Arkansas, and Louisiana by reason of said levee construction and to the landowners of said States behind said levees, but that the lands of claimants, situated between said levees and on the outside thereof and not protected thereby, have been subjected to repeated overflow, tending to diminish and impair their value, but to what extent does not satisfactorily appear from the evidence.
    A part of the levee system so constructed and maintained runs back of said Point Chicot plantation, not touching the same, and that between it and said Point Chicot plantation is a stretch of ground lower than the main body of said plantation, and in periods of high water the water rising, passing over and upon said land, has, by reason of its lowness, first gone thereupon, and its main current was across said land and not upon Point Chicot plantation, which, while in extreme high water it would be flooded as herein-above set forth, did not have the full force of the current of the Mississippi Eiver thereupon, but was covered in part or in whole by slacker water.
    The current during high-water seasons being as aforesaid struck against and impinged upon the said levee back of said Point Chicot plantation and protecting the lands on the interior, and such impingement resulted in the waters of said river eroding and washing away said levee, to the great danger of its existence, and threatening to break through said levee and inundate said lands to the rear thereof and divert the water from the channel of the river. Such breach or crevasse in said levee would have entailed damage thereunto and to the adjacent landowners and impaired the efficacy of said levee system as projected, constructed, and maintained by the officers of said Mississippi Eiver Commission in accordance with the plans heretofore stated.
    In addition to the danger which threatened the levee, said current impinging upon the banks of the stream, and the neck of land adjoining Point Chicot to the mainland, cutting into it, threatened to and would have, if permitted to continue, cut through said neck of land, thus straightening the channel and making Point Chicot plantation an island.
    VI. In order to prevent the threatened danger, both to the levees and to the integrity of the connecting neck of land, the officers and agents of the United States Government, acting under authority of the acts of Congress, and the Mississippi Eiver Commission, constructed what is known as the Leland Dike, running diagonally and at an angle from the main line of levee on the Arkansas side, across and on said land, to a point 662 feet beyond where the line of Point Chicot plantation begins, their object being to divert the current of the stream during high waters, from impinging upon said levee, and by throwing it northeastward by said dike, to prevent the destruction of the levee, and the cutting across the neck aforesaid.
    Said dike first went over, into, and upon the land of claimants aforesaid a distance of 662 feet, but the end of said dike being exposed to the waters of the Mississippi River, and to the powerful current as above mentioned, the said officers and agents of the United States Government deemed it necessary to extend the same a distance of some 2,700 feet farther into and upon the land of claimants, and did so extend the same in the year 1907, without any condemnation of said land, and with no remuneration therefor being made to claimants, said officers and agents using a large part of the soil of claimants’ plantation for the construction of said extension.
    Before the joining of the levee lines by the United States in accordance with said Eads plan (thus making the same continuous) there were occasional overflows of the Chicot plantation, but they have been made deeper and more forceful by the adoption of said system. However, these overflows before the erection of said dike did not materially damage the same and said lands remained still valuable for agricultural purposes. Since the erection of said extension of said dike and by reason thereof the high-water current of said river has been deflected over and across a large part of said Chicot plantation, but flows in the same direction as did a portion of the high waters of the river before the erection of said dike, but with greater force and depth, the escape of a portion of the high waters over and across the neck of land connecting said Chicot plantation and the mainland being thereby prevented, in consequence of which the overflows of said plantation have been greatly increased and intensified, the result of which has been to wash and scour out its top soil and to deposit upon a large part thereof great burdens of sand and gravel, and 8,696 acres of said lands have thereby been rendered totally unfit for cultivation or any other profitable use by the owners thereof. This result has been caused partly by the joining of said levee systems and the erection of said dike, but directly and approximately by the erection of said dike.
    
      VII. The claimants are the sole owners of this claim and no action other than this has been had thereon. No other person has any interest in this claim or in said lands except one J. M. Wilzin, who is a mortgagee of this and other lands to the amount of $30,000. The claimants are citizens of the United States and have never made any assignment of this claim or any interest therein.
    VIII. The lands described in claimants’ petition were conveyed to George F. Archer and James A. Deaton by deed dated the 22d day of August, 1896, for the sum of $10,500, and Mrs. Kate C. Archer inherited the interest of the said James A. Deaton upon his death and later married the said George F. Archer.
    On the 30th day of December, 1909, George F. and Kate C. Archer, the claimants, conveyed said lands to Herman Wilzinski, trustee, as well as other lands located in the State of Mississippi, to secure the payment to J. M. Wilzin, of New Orleans, La., of certain notes aggregating $30,000, which were that day executed and delivered to said Wilzin.
    IX. The lines of levees located on both sides of the Mississippi Kiver from Cairo to near the Head of the Passes, a distance of 1,050 miles, which were constructed in part by the officers and agents* of the United States for the purpose of improving the river for navigation and constructed in part by the officers and agents of the local organizations of the States bordering on the river to 1909 had a length of 1,548 miles and contained 229,729,354 cubic yards. Since 1909 the authorities of the United States built additional lines of levees containing 2,970,224 cubic yards, and since said year (1909) said local authorities built additional lines of levees containing 5,063,427 cubic yards, thus bringing the work of levee construction up to the year 1910.
    X. The 3,696 acres of land hereinbefore mentioned at the time of the erection of the Leland Dike was of the value of $83,920. Thirty-one and four-tenths acres of the same is actually and wholly occupied by the United States by the construction of the dike before mentioned, and the balance of said 3,696 acres, to wit, 3,664.6, has been destroyed and rendered totally unfit for cultivation or any other profitable use by the owners thereof, as found in Finding VI. Said 3,696 acres is described as follows:
    “Beginning at an iron stake at the bash of an overcup oak, 36 inches in diameter, standing upon the right bank of the Mississippi River, at the north end of the dividing line between Leland plantation and the lands of George F. Archer, March 14, 1904. Thence S. 45° E. 75 chains. (At 17 chains public road bears eastwardly; at 31 top of spur dike; at 75 chains came to iron post on right bank of Mississippi River.)
    “Thence up said right bank N. 68° E. 120 chains to the light bank of Old River. (This line is along the edge of the high land and large cottonwoods from 5 to 9 chains from the water’s edge.)
    “ Thence up the right bank of the said Old River N. 17° E. 90 chains. Thence N. 23° E. 84 chains to where said Old River forks into two small channels. (The last two courses are from 1 to 3 chains up on the high bank on the west or right bank of said Old River.)
    “Thence up the west fork or prong of Old River on its right bank N. 62° W. 55 chains. Thence N. 80° W. 47 chains to the east point of a small levee (seems to have been erected many years ago).
    “Thence on the north side of said levee S. 89° W. 20 chains to the right bank of the Mississippi River on a caving bank. _ ,
    _ “ Thence up said right bank of the said river and at a distance of from 1 to 5 chains from the caving bank S. 23° W. 80 chains. This stake is 1 chain east of the caving bank.
    “ Thence continue up said right bank from 1 to 5 chains east of it, S. 33° W. 80 chains to a stake, 2 chains and 75 links south and east of the high bank of the river.
    “Thence S. 39° W. 61 chains to the point of beginning.”
    XI. The court finds as an ultimate fact, in so far as it is a question of fact, that the said 3,696 acres of land was somewhat impaired in value by the construction of said levee system, but that its use was totally destroyed by the erection of the Leland Dike and was thereby ’ taken, its value at the time of such destruction and taking being $83,920.
    
      Mr. Percy Bell for the claimant.
    
      Mr. W. W. Scott (with whom was Mr.--Assistant Attorney General Thompson) for the defendants.
   Barnet, J.,

delivered the opinion of the court:

This case now comes before this court upon motions for a new trial by both parties. Upon the hearing of these motions a new trial was allowed, and the whole case was heard and considered on its merits. The former findings and opinion have been withdrawn and new findings made, and this revised opinion is submitted.

This is a suit to recover damages for the “ taking ” of the lands of the claimants by the Government in the construction of the improvements on the Mississippi River. The claimants are the owners of a plantation containing about 6,000 acres in the State of Arkansas and situated within a bend on the Mississippi River and comprising nearly all of the land within said bend. Before the Government began its improvements upon this river the local authorities at different points along its course below Cairo, Ill., had built levees, the purpose of which was to prevent the river at its high stages from overflowing the lands in their rear. It does not appear that these locally constructed levees materially raised the flood of the river at any point, but that the surplus waters found their way through numerous openings into basins of large area, and thence into the Gulf. During periods of high water the lands of the claimants had always been subject to occasional overflow, but not to such an extent as to materially impair their value. The levees constructed by local authorities, and afterwards adopted and added to by the Government, as hereinafter stated, were located at places considerably back from the river, so as to leave between them and the river, or, as might be said, between the levees on both sides of the river, lands which were not affected by them unless the flood tide of the river was permanently raised. The lands in question in this case belonged to that class.

Before the Government began its improvements the local authorities had built a levee, a fragment of which is shown upon the map following, and which it will be seen was situated somewhat back from the claimants’ plantation and from the narrow neck of land joining their plantation to the mainland.

In 1883 the Government began the work of improving the navigation of the Mississippi River and has continued it ever since. The plan adopted seems to have been to adopt the local levees as far as practicable from Cairo down, to build new levees in intervening spaces, and thus unite them into one complete system for raising the waters of the river by confining it within a narrower channel and preventing its partial escape into the basins before mentioned. This object has been and is being further accomplished, and it appears that its waters have thus been raised approximately 6 feet in times of high water. This result has been to greatly improve and raise the value of much territory outward from this system of levees, but to cause more frequent overflow of the lands left between them and the river. It appears, however, that, notwithstanding this apparent result of the river improvements, the plantation of the claimants was sufficiently above the flood tide of the river to remain valuable agricultural lands and to be subject only to occasional overflow.

It appears that in 1903-4, in order to prevent threatening danger to the levee near the neck of land connecting the plantation of the claimant and the mainland, as well as to preserve the integrity of the neck of land itself and prevent the river from cutting through it, the Government constructed a “dike,” hereinafter called the Leland Dike, running diagonally out from the main line of the levee and extending 662 feet upon the Chicot plantation. In the period of high water of 1904 this dike was partially destroyed and claimants’ plantation considerably injured, whereupon in 1907 the Government extended said dike farther to the northeastward, and so far that it went 2,700 feet still farther into and upon the claimants’ plantation. The effect of said dike at times of high water is to deflect the flood water’s of the river to the eastward over and across a large portion of claimants’ plantation in such volume and with such force as to scour out and destroy much of its top soil, wash away the tenant houses which were situated thereon, and leave a deposit of sand and gravel on its surface, which has already totally destroyed its value for agricultural purposes (and it has no other); and it is unnecessary to state that this deposit will increase from year to year.

This description of the locus in quo will be better understood by an examination of the map herein. The land to the northeast of the line marked “Leland line” is the-farm of the claimant, the line colored yellow is the levee, and the pink line A-B is the dike mentioned. The land submerged with sand and gravel is situated within the fretted dark line northeastward of the dike.

From this statement it will be seen that there is no question but that this land so destroyed has been “ taken ” within the meaning of the fifth amendment to the Constitution, and the only question before us is whether the Government is liable for this taking.

It is contended by the Government that it is not liable for this taking of the claimants’ lands for the reason that the levees in question were pai’tly constructed by the local authorities, so that the taking was not alone by the United States, but jointly with others. It is argued that such a joint taking is not a taking by the United States within the meaning of the amendment referred to. While the findings show that Point Chicot plantation was more frequently and deeper overflowed in consequence of the extension of the levee system by the United States, no part of it was destroyed nor materially damaged until the dike was extended and erected. Hence it can not be said that claimants’ land was taken in consequence of the levee system, but directly in consequence of the erection of the dike, and that was the work of the United States alone. In this connection it should also be remarked that the levee system as constructed and kept up by the local authorities had not materially damaged these lands, and it was not until this system had reached “the state of completion which now exists” and said dike had been erected that they •were inundated with sand and gravel. (Findings II and VI.) Hence, both by the construction of the dike and the completion and joining as a whole of this levee system, the United States alone has taken the claimants’ lands. This joining .of the locally constructed levees and erection of the dike was in furtherance of the Government project alone — the confinement of the river within its banks and thereby to improve navigation:

At the time of the erection of the Leland Dike the injury to the plaintiffs’ land, which had theretofore been caused by the joining of the levee system, was consequential only and had not amounted to a taking, and hence is immaterial to be computed in this case, the Government’s liability beginning at the time of its absolute destruction. It is true that the flood heights of the Mississippi River had been raised by the joining together as a whole of the levee system, and that this fact made the erection of the Leland Dike more destructive to the plaintiffs’ land than it otherwise would have been, but the findings show, and it is not denied, that the erection of the dike was the proximate cause of the flooding of Chicot plantation with sand and gravel. It would be a travesty upon justice to maintain that the Government is exempt from paying for this destruction because some prior injuries inflicted, not amounting to a taking, had accelerated and assisted in this destruction.

There may well be other cases where the overflow and damage are directly caused by the joint action of the Government and local authorities, and in such cases the question raised by the Government will arise and must be decided, but for the reasons given is not believed to be in this case.

It is further contended by the Government that this case comes within the decision of the Supreme Court in the Bedford case (192 U. S., 217), and that under that decision the petition should be dismissed. In that case a revetment was constructed by the Government authorities along the banks of the Mississippi River at Delta Point, La., for the purpose of preventing the further erosion of that point. As a result of this revetment the integrity of the bank at that point was maintained, and the channel and current of the river were gradually directed toward the lands of the claimants situated about 6 miles below, and after the expiration of several years eroded and overflowed about 2,300 acres of their lands. In the opinion in that case it is said:

“* * * The object of the works was to preserve the conditions made by natural causes. By constructing works to secure that object appellants contend there was given to them a right to compensation. The contention asserts a right in a riparian proprietor to the unrestrained operation of nantral causes, and that works of the Government which resist or disturb those- causes, if injury result to riparian owners, have the effect of taking private property for public uses within the meaning of the fifth amendment of the Constitution of the United States. The consequences of the contention immediately challenge its soundness. What is its limit? Is only the Government so restrained? Why not as well riparian proprietors; are they also forbidden to resist natural causes, whatever devastations by floods or erosion threaten their property? Why, for instance, would not, under the principle asserted, the appellants have had a cause of action against the owner of the land at the cut-off if he had constructed the revetment? And if the Government is responsible to one landowner below the works, why not to all landowners? The principle contended for seems necessarily wrong. Asserting the rights of riparian property it might make that property valueless. Conceding the power of the Government over navigable rivers, it would make that power impossible of exercise, or would prevent its exercise by the dread of an immeasurable responsibility its exercise by the dread of an immeasurable responsibility * *

In accord with the rule of law thus stated it would have been within the rights of the claimants to have constructed this dike if necessary to protect their lands from the ravages of the river, or for the Government to have constructed like works along the banks of the river for the improvement of navigation. But it seems to us an entirely different thing and not within the principle laid down in that case for the Government to invade the lands of the claimants and construct a dike thereon more than a quarter of a mile from the bank of the river, extending upon the same over 3,000 feet and covering more than 31 acres of land. It appears that this was done for the purpose of protecting the levee at the inner end of the dike, as well as to prevent the river from cutting through the narrow neck of land at that point, and if it had -resulted in causing the overflow and taking of other lands than the claimants’ situated farther down the river, the parties thus injured would have been without redress under the decision in the Bedford case. But in the case at bar it is admitted that the Government went upon the lands of the claimants and took possession of more than 31 acres, and constructed thereon a work which directly caused the taking of 3,664.6 acres more. We think it is not and can not be denied that the Government is clearly liable for the taking of this 31 acres; and if so, why is it not just as liable for the taking of the balance which was the result of the first taking? In fact, it may be said all of the lands mentioned were taken at the same time and by the same act.

We believe that the rule laid down in the recent case of United States v. Grizzard (219 U. S., 180) is particularly applicable to this case. In that case there was an undisputed actual taking of a part of the farm of the defendant in error by permanently flooding the same, and, as an incident of such flooding, a public road running across the flooded part was also flooded. The court below had divided the damage by reason of the flooding of a part of the farm and the destruction of the easement, allowing $750 for each. The Supreme Court affirmed this judgment, and in so doing established the rule that—

“ Whenever there has been an actual physical taking of a part of a distinct tract of land the compensation to be awarded includes not only the market value of that part of the tract appropriated, but the damage to the remainder resulting from that taking, embracing, of course, injury due to the use to which the part appropriated is to be devoted.” (Id., 183.)

As before stated, in the case at bar it is undisputed that the Government has taken actual physical possession of 31 acres of the plaintiff’s farm, and the findings show that such taking has entirely destroyed the value of a large part of the remainder; and whether or not it is conceded that this absolute destruction of value by itself alone,, is a taking within the meaning of the fifth amendment of the Constitution, it will not be denied th'at this destruction of value resulted from the actual physical taking of the 31 acres. The same principle is recognized in Sharp v. United States (191 U. S., 341) and Welch v. United States (217 U. S., 333).

•In the decision of this case it may be admitted that if the Government had owned the site of the Leland Dike at the time of its erection, or if it had been owned by a stranger to this suit, and hence had made no invasion upon the lands of the plaintiff, it would not have been liable for the destruction thereby inflicted, under the ruling in the Bedford case. Under the decisions of the Supreme Court in all cases of this character, it is the invasion upon the lands and the actual and visible possession which constitutes the taking, and when thus taken all of the consequences incident to such invasion necessarily follow, among which is the liability to pay for the damage thereby occurring to the balance of the tract to which the land thus taken belongs. What is the difference in principal in cutting off a right of way, as in the Grissard case by inundating it with water, and in covering the balance of the tract with sand and gravel as in the case at bar? In both cases the invasion of the plaintiffs’ lands was the proximate cause of the additional injury.

The case of Barden v. Portage (79 Wis., 126; 48 N. W. R., 210) is identical in principle with this case. In that case a levee was constructed on the plaintiff’s land upon the Wisconsin River, and terminated at a point thereon, the result of which was to gather the waters of the river and deflect them at this point of termination over and upon the plaintiff’s land and thereby cover it with sand and gravel. It was unanimously held in that case that the defendant was liable for damages thus ensuing.

To maintain the doctrine that lands can be invaded and a tract admittedly taken for the erection of a work to change the flow of waters, without subjecting the party so doing to the payment for all the lands thus taken, including such as are incidently destroyed, would appear to us to be shocking to every principle of law and justice.

Judgment will be entered for the plaintiff in the sum of $83,920, but before the judgment is certified the rule stated in Heyward v. United States (46 C. Cls., 484), as to the survey and conveyance of the lands taken, and possible correction of the judgment, will be followed.  