
    PATRICK McINTYRE v. THE UNITED STATES.
    [No. 15549.
    Decided March 31, 1890.]
    
      On the Proofs.
    
    The Government quarries stone overlying a coal mine belonging to A. Consequently water flows into the mine, and thence floods an adjacent mine of B, who brings this suit as for property taken for public use.
    I. Where the user of a quarry is a natural and customary one, the flooding of the claimant’s adjacent property, not a probable result of the user and in no degree beneficial to the Government, is not a taking of private property for public use within the meaning of the Constitution.
    II. The distinction betweeu this case and Pumpelly v. Green Bay Company (13 Wall., 166) is that the flooding of the claimant’s land was necessary, proximate, a benefit to the defendant, and in fact an appropriation of the property.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. From December 15, 1879, to May 19,1887, plaintiff leased and operated a coal mine upon the bank of the Missouri River at Lexington, La Fayette County, Mo., from which he derived profit. Adjoining plaintiff’s mine upon the north was a disused and abandoned coal mine owned by the Lexington Ferry Company. Both mines were mined through practically horizontal shafts drifted into the side of the cliff from its face, and over the coal vein was a stratum of rock.
    II. The officers of the Engineer Corps, United States Army, by direction of the Secretary of War, improved the harbor at Lexington, upon the south side of the .Missouri River, and built a breakwater ou tbe north side of said river for the purpose of turning the current and cuttiug away a sand-bar. In the course of the improvement it became necessary to procure rock for said breakwater, and the most convenient spot to procure it was the land of said Lexington Ferry Company, where a quarry had been before stripped by the Go ver men t, from which some rock had formerly been taken by the Government at different times. The rock being’ above the coal vein, the result of quarrying was that during and after a heavy rain the Lexington Ferry Company mine became flooded and thence tbe water flowed into plaintiff’s mine, seriously injuring it and interrupting mining for some time. Plaintiff called the attention of the quarry foreman to the danger of injuring his mine through the operation of quarrying, and the foreman told him the Government was in immediate need of the rock and would make good any injury which he might suffer. Plaintiff made no communication upon this subject to the assistant engineer having charge of the work.
    III. As a result of the quarrying plaintiff’s mine was flooded, as stated, upon the 11th of February, 1883, and continued in this condition until about the first of .January, 1884, when the mine was partially repaired. Had plaintiff been reasonably active and expeditious the water could have been earlier removed and the mine repaired in three months. The plaintiff’s loss would then have been $908; the larger loss suffered by plaintiff was due to delay upon his part.
    IV. Plaintiff’s mine was lower than the mine of the Lexington Ferry Company; the latter had mined up to the dividing line between the mines; plaintiff mined also up to that line, so that no wall remained between the two, and water had access from the higher to the lower mine. It does not appear that there was any negligence in quarrying.
    Y. Plaintiff has expended $12 in fees to a commissioner for taking depositions in this case.
    
      Mr. George A. King for the claimant.
    The question is whether the flooding and overflowing of the mine of the claimant in the course and as a consequence of the public improvement can be deemed to be, in the constitutional sense, a talcing of his property. This question can not fail to be unhesitatingly answered by this court in the affirmative on the authority of Pumpellyv. Oreen Bay Company (13 Wall. 166.}
    See also Eaton v. Boston, etc., It. R. Co. (51 N. EL, 504): Smith v. Fletcher (L. li. 7 Exch. 305).
    The claim in this case does not in any respect partake of the nature of a case of tort. The record shows that the rock was necessary for the purposes of the improvement of the river, and was taken from the most practicable and convenient point, if not the only point, from which it could have been obtained for the purpose. It was certainly not only the right but the duty of the officers of engineers in charge of the work to do as they did, and in the prosecution of the improvement to take the claimant’s property for the public benefit. Under such circumstances no action would lie against the officer individually. Wherever the officer is justified in what he does so that no action would lie against him the Government is liable. (.Mitchell v. Harmony, 13 How., 1.15; Russell v. United States, 7 C. Cls., 227).
    
      Mr. John 0. Chaney (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
   Davis, J.,

delivered the opinion of the court:

The appropriation acts of 1881 and 1882 (21 Stat. at L., 479, and 22 Stat. L., 191, 205) contained provisions for the improvement of' the Missouri River; in Accordance therewith the officers of the Engineer Corps constructed a breakwater in the-river at Lexington for the purpose of cutting out a sand-bar by action of the current. Finding it necessary to procure rock for the breakwater, they quarried it from over a coal mine, the property of the Lexington Ferry Company; this mine was disused, but adjoining it was a mine leased to plaintiff herein which was in operation. Both the ferry company and plaintiff had mined to the dividing line, so that their mines connected. Plaintiff’s was the lower mine, and as a result of the quarrying the disused mine became filled with water, which flowed down upon plaintiff’s mine through the opening, to his loss. It is now sought to recover the amount of the injury thus sustained by plaintiff upon the theory of an implied contract springing from tbe provisions of the Constitution which declares that private property shall not be taken for public use-without just compensation.

We are unable to see that there was in this case any taking of private property within the meaning of that provision as interpreted at any time by the Supreme Court or by this court-In all the cases upon which plaintiff relies the Government used the property in such manner as to secure an advantage to itself; the property was taken-in a manner which, when coupled with the actual subsequent use by the defendants would, as between individuals, establish contract relations between the parties.

In the Great Falls case, upon which plaintiff particularly relies, there was an actual appropriation of the property for the purpose of constructing an aqueduct; it was taken avowedly as -private property, to which the Government asserted no title, and was used for the public benefit. The making of the improvement necessarily involved the taking of this property and when taken it was applied to a public use.

In the case at bar appear none of these elements. There, was-no action by the Government officers looking to a taking of this property; there was no communication of any kind between plaintiff and defendants except a statement made by a subordinate that the Government would make good any injury sustained by plaintiff; it certainly never was intended to appropriate the mine even for temporary purposes, and the flooding of itself was of no benefit to the Government.

The most that can be contended is that the flooding was a, necessary proximate incident to the quarrying of the stone upon the adjacent land. But this proposition can not be maintained ; the use of the q uarry property was a natural and customary one; the defendants received no benefit for the temporary flooding of plaintiff’s property, and this flooding was not a probable result of quarrying over an adjacent mine. In Pumpelly v. Green Bay Company (13 Wall., 166), much relied upon by plaintiff, the injury was necessary and proximate, resulting in benefit to the defendant, in fact to an appropriation of the property, in this, as in all similar cases, such as those arising from flooding occasioned by the back-water of mill-dams, the injury was necessary, was direct, and was advantageous to the owner of the works causing the damage.

The defendants secured no benefit from the flooding of plaintiff’s mine; there was no user or appropriation of the property. We fail to see any element of contract in this case.

Petition dismissed.

Nott, J., was absent at the hearing of this case and took no part in the decision.  