
    The Great Falls Manufacturing Company v. The United States.
    
      On the Proofs.
    
    
      The claimants arre a body corporate of Virginia, holding land on both the Maryland and Virginia shores of the Potomac.. Congress authorize and appropriate money for the Washington Aqueduct, subject to the consent of Maryland. That State passes an act of consent, which provides legal means for assessing the damages. Proceedings are instituted between the government and the claimants. While pending, they voluntarily agree to submit the whole subject of damages to a commission. The Secretary of War then has control and direction of the ivorlc, and enters into the stipulation of reference. Pour plans for tailing different quantities of water aresub-mitted to the commission, which assesses damages upon each. There is no formal ratification of the award, but the government proceeds to build the necessary dams substantially according to one of the plans, and takes the water of the river from the claimants.
    
    I.The cause of action, remains the same, if a judgment in favor of the claimant on his original petition -would har him from recovery on his amended petition.
    II.Where a party seeks damages for property and -water rights taken and used, and his original petition alleges a taking hy the right of eminent domain without his consent, and an amended petition alleges a taking hy mutual agreement under an award hy arbitrators, hut the cause of damage, the taking of Ms property for the purposes of an aqueduct, remains the same, the right to allow the amendment was within the discretion of the court.
    III.Althqugh commissioners may he termed arbitrators, and their report may he styled an award, the court will look to the nature of their services in determining the character of their report.
    IY. Where the Secretary of War and the owners of private property agree upon commissioners who are to appraise damages according to a number of plans, and the Secretary is to take the property designated at the appraised rate only if he thinks it reasonable, the commissioners are merely appraisers called in to aid the judgment of the Secretary.
    
      Y. Wliere the Secretary of War is authorized by Congress to build an. aqueduct and acquire the necessary private property and water rights by purchase or legal proceedings, he may call in or agree upon a board of commissioners to assist in estimating damages.
    VI.Though an officer may not be authorized in terms to submit a matter to arbitration, yet if he be specially authorized by Congress to act in regard to the subject-matter of the submission, so that he will have power to carry into effect the decree which the award may direct, he has power to submit the matter to arbitration.
    VII.Ratification of an award will be presumed on the part of Congress, from subsequent appropriations of money to use and utilize the subject-matter of the award.
    VIII.Where an agreement provides that the Attorney-General shall decide whether the owners of private property have a valid title thereto, it may be a condition precedent to the payment of the purchase money, but if the government proceed to take and use the property, they waive the condition.
    IX.The right of eminent domain exists in the government, and the exercise thereof by the United States cannot be curtailed, nor the manner prescribed by the State wherein the property is.
    X.Where an officer of the government, duly authorized by statute, exercises its right of eminent domain, an action against the government for property taken is ex contractu and not ex delicto.
    
    XI.The principles which should govern the assessment of damages, where property is taken by the government for a purpose, having no ordinary commercial value (ex. gr. an aqueduct for supplying a city with water) stated.
    
      The Reporters’ statement of tbe case:
    The history of the case appears fully in the opinion. The following are the facts as found by the court:
    I. The Great Falls Manufacturing Company is a corporation established by the laws of the State of Virginia, having its domicile at the Great Falls of the Potomac, in Fairfax County, Virginia.
    II. The river Potomac, which flows past the cities of Washington and Georgetown, in the District of Columbia, furnishes the most convenient and available source of supply of water at sufficiently high level to be distributed through those cities.
    About 16 miles above these cities, in the State of Maryland, are situated the Great Falls, which form a series of rapids in the river, extending for about half or three-fourths of a mile, in the course of which the river falls about 70 feet.
    III. From the foot of these rapids to the tide-level at these cities there is a further descent of the river of about 70 feet.
    From any point below, and not including these rapids, there is not a sufficient elevation of the water to admit of its distribution by aqueduct.
    From any point above these rapids there is sufficient elevation for such distribution by aqueduct.
    IY. Commencing at a point just above these rapids, an island known as Conn’s Island extends up the river for about half a mile, lying nearly parallel with the Maryland shore, and considerably nearer to the Maryland than to the Yirginia shore.
    The island is of irregular width, averaging about 800 feet j that being about its width in the line of prolongation of the present dam.
    From Conn’s Island to the Yirginia shore is about 1,400 feet.
    At the head or upper end of Conn’s Island, extending up the stream, are three or four small islands called the Cyclades, there being narrow channels separating them from each other and from Conn’s Island.
    Y. Conn’s Island is of irregular height. From its head to the dam near the foot of the island there is a descent of the river of about 5 feet.
    YI. A tract of land known as the Toulson tract is situated on the Yirginia side of the river. It is bounded by and extends al ong the river, from a point opposite the middle of Conn’s Island to a point below the Great Falls, and extends back from the river a distance of about half a mile.
    A considerable portion of this tract is elevated ground, well adapted to the construction of mills and maufactories, and for supplying them with water power from the river and by appropriate canals, races, or other artificial water-ways.
    YII. Before the construction of the works of the government, Conn’s Island divided the Potomac River into two unequal channels, about 98 per cent, of the water passing through the Yirginia channel, and 2 per cent, through the Maryland channel, at low water; the total flow at low water being estimated at about 1,065 cubic feet per second, about 700,000,000 gallons per diem.
    YIII. On the 31st of August, 1852, Congress appropriated $5,000 to enable the President to cause the necessary surveys to be made to determine the best method of affording the cities of Washington and Georgetown an unfailing and abundant supply of pure and wholesome water, and in execution of this act President Fillmore transmitted to Congress the report of General J. G. Totten, of the Corps of Engineers, recommending the construction of an aqueduct from the Great Falls.
    IN. On th e 3d of March, 1853, Congress appropriated $100,000 for the purpose of bringing water into the city of Washington, upon such plans and from such places as the President should approve; provided, that if the plan adopted by the President of the United States should require water to be drawn from any source within the limits of the State of Maryland, the assent of the legislature of that State should first be obtained; and on the 3d of May, 1853, the legislature of Maryland passed the following statute:
    “AN ACT giving the assent of the State of Maryland to such plans as may he adopted hy the President of the United States for supplying the city of Washington -with water.
    “Whereas the Congress of the United States have appropriated the sum of one hundred thousand dollars for the purpose of supplying the city of Washington with water upon such plan as the President of the United States may approve, on the condition that if such plan should require said water to be drawn from any source within the limits of the State of Maryland the assent of that State should first be obtained; and whereas, by a joint resolution of Congress passed in September, eighteen hundred and forty-one, it is provided that no public money shall be expended upon any land or site hereafter to be purchased for the United States until the consent of the legislature of the State in which the land or site may be shall be given for such purpose; and as it is also made the duty of the Secretary or head of the proper department to apply to said legislature for a cession of the necessary jurisdiction over said lands: Therefore,
    “Section 1. Beit enacted by the General Assembly of Maryland, That if the plan adopted by the President of the United States for supplying the city of Washington with water should require said water to be drawn from any source within the limits of this State, consent is hereby given to the United States to purchase such lands and to construct such dams, reservoirs, buildings, and other works, and to exercise concurrently with the State of Maryland such jurisdiction over the same as may be necessary for the said purpose.
    “Section 2. And be it enacted, That if the United States, acting through such agent as may be appointed for that purpose, cannot agree with the owners for the purchase of any land which may be required for the purposes aforesaid, or for the purchase of any earth, timber, stone, or gravel to be found thereon, which may be required for the construction of said works, or in case the owner thereof should be a femme covert, or under age, non compos mentis, or non-resident of the ¡átate, it shall nevertheless be lawful for the United States to enter upon such lands and to take and use such materials, after having first made payment or tendered payment for the same at the valuation assessed thereon in the manner hereinafter prescribed.
    “ SECTION 3. And be it enacted, That in the condemnation and assessment of such lands and materials as may be necessary for said purposes, the like proceedings in all respects shall be had as by existing laws are required for the condemnation and assessment of lands and materials for the use and construction of the Chesapeake and Ohio Canal and the? works appurtenant thereto.
    “ SECTION 4. And be it enacted, That nothing in this act shall be so coustrued or understood as to authorize the United States to interfere with the rights now vested in the Cheaspeake and Ohio Canal Company, or with the rights granted by said company to individuals.
    “ SECTION 5. And be it enacted, That this act shall take effect whenever the United States shall agree to such conditions as the Chesapeake and Ohio Canal Company may consider necessary to secure the canal from injury in carrying into effect any plan that may be adopted for suppiping the city of Washington with water as aforesaid.
    “Passed May 3,1853.”
    X. The following appropriations were from time to time made by Congress with reference to the aqueduct:
    For cost of aqueduct and its appurtenances:
    August 3, 1852. For surveys, projects, and estimates. $15,000
    March 3, 1853. General. 100,000
    March 3, 1855. “ . 250,000
    Aug. 18, 1856. “ 250,000
    March 3, 1857. “ . 1,000,000
    June 12, 1858. “ . 800,000
    June 25, 1860. “ . 500,000
    July 15, 1870. Completing distributing reservoir. 30,000
    “ Completing two gate-houses. 20,000
    
      “ Completing arch over reservoir, rail, &e. 4,000
    “ For cleaning out Maryland channel near dam .. 5,500
    March 3, 1871. Finishing coping, railing, &e., bridges 1, 2, 3, 4. 10,000
    
      “ Completing gate-houses at District reservoir ... 20,496
    
      “ Completing high-service reservoir. 4,000
    “■ Ventilators over conduit. 2,800
    “ Fencing reservoirs. 3,600
    “ Building office at Rock Creek bridge. 3,300
    
      March 3, 1871. Earthwork and slope wall of division dam. $20,000
    “ Slope wall of distributing reservoir. 20,000
    June 10, 1872. Completing parapets of bridges. 13,934
    “ Dial telegraph. 2,500
    “ Excavation of District reservoir. 11,550
    
      “ Cast iron pipe, central to effluent gate, &c. 22,932
    March 3, 1873. Wooden fence at District reservoir. 1,500
    “ Dwelling for gate-keeper. 2,500
    “ Completing stone bridges.-.. 8,600
    June 23, 1874. Wooden fence at Great Falls. 1,500
    “ Dwelling and office at Great Falls. 3,000
    June 23, 1874. Four dial instruments. 1,100
    March 3, 1875. Roof for gate-house, &c., Great Falls. 3,000
    Dwelling, office, &c., receiving- reservoir. 3,000
    3,365,229
    Cost of condemning and macadamizing aqueduct road. 60,489
    Maintenance, regular annual repairs, expenses, &c. 189,000
    Miscellaneous repairs... 44,000
    Total appropriations to and including March 3, 1867 . 3,658,718
    XI. Ou tlie 27th of July, 1858, at the instance of the United States, a justice of the peace in Montgomery County, Maryland, issued his venire to the sheriff for a jury to assess the damages which the dam of the Washington Aqueduct, proposed to be constructed, should cause to the Great Falls Manufacturing Company, of which due notice was given to the company.
    On the 20th of August, 1858, an inquisition was duly taken under said proceedings, and the damages of the claimant assessed at the sum of $150,000.
    On the 8th of November, 1858, the United States moved the ■circuit court of Montgomery County to set aside the inquisition ; and on the 10th March, 1859, it was adjudged that the inquisition be set aside, and that another inquisition be taken in the manner directed and prescribed by the original warrant-in the ease.
    XII. Nothing further was done by way of condemnation or purchase until the 20th of November, 1862, when the Secretary of the Interior and the claimants entered into the following agreement:
    “Articles of agreement between the Government of the United States, party of the first part, and the Great Falls Manufacturing Company, party of the second part.
    
      “ Whereas the party of the first part desires to use a portion of the water of the Potomac River, at the Great Falls, for the purposes authorized by Congress; and whereas the said party •of the second part claim to own certain lands at said locality, and certain water rights attached thereto; and whereas all efforts to adjust said claims hare heretofore failed, after great •cost and loss of time on both sides, and no progress has been made in the settlement of the said controversy, and proceedings, in the absence of any agreement, must be commenced ele novo, involving great loss of time and large expenditures of money, and again proving unavailing from the want of adequate legislation on the part of the States of Maryland and Virginia, and the intrinsic difficulty of the case; and whereas the party of the first part is anxious to prosecute this great work with as little delay as possible: now, then, with a view to a. prompt, fair, and final settlement of this controversy, it is agreed between the said parties as follows:
    “Article 1. All the claims of the party of the second part for compensation or damages for the occupation and use of the party of the first part of any land or water rights and privileges claimed by the party of the second part shall be submitted to the arbitrament of Jesse L. Williams, of Indiana, Hon. B. R. Curtis, of Massachusetts, Hon. G-. Swan, of Ohio, Linus Child, esq., of Massachusetts, and Hon. George M. Dallas, of Pennsylvania, the award of á majority of whom shall be final and conclusive, except as in hereafter stated.
    “Article 2. The party of the second part shall file with the arbitrators a specific description of the lands to -which they claim title, and which they allege will be affected by the improvements made or proposed to be made by the party of the first part, and the arbitrators shall act in the premises as though the title of the party of the second part to said land is valid; but any award they may make shall not be binding upon the party of the first part unless the Attorney-General of the Hnited States shall decide that the party of the second part has a valid title to said land.
    “Article 3. The said arbitrators, upon such description being filed with them, shall examine into, decide upon, and award the amount of compensation, if any, to which the party of the second part shall be legally entitled for the use and occupation, by the party of the first part, of the land, water rights, and privileges claimed by the party of the second part, and all consequential damages to the property and rights of said company, which they may legally claim by reason of the plans and operations which may be adopted and carried into effect by the party of the first part, connected with and growing out of the location and construction of dams and other works of the Washington Aqueduct.
    “Article 4. If either party should be dissatisfied with said award, the party so disputing, within a period not exceeding thirty days from the date thereof, may proceed by bill in equity, filed in the circuit court of the District of Columbia, to set aside or change said award, and to obtain from said court such decree as in their judgment would be just and equitable, otherwise said award shall be final and conclusive.
    “ Article 5. If either party should be dissatisfied with the decree of said circuit court, the said party may, within a period from the date of said decree, not exceeding thirty days, take an appeal to the Supreme Court of the United States; but if no such appeal be made within the period limited, the said decree of the said circuit court shall be final and conclusive.
    “Article 6. If said case should be taken on appeal, as aforesaid, by either party, to the Supreme Court of the United States, the decree of said tribunal, both as to the law and the facts, shall be final and conclusive.
    “In witness whereof, the United States, by the Secretary of the Interior, has executed the same and set thereto the seal of the department, and the said Great Falls Manufacturing Company have signed the same, by their president, and attached thereto their corporate seal.
    “November 20,1862.
    [l. s.] “Cale B. Smith,
    “ Secretary of the Interior.
    
    [l. s.] “Cyrus Moore,
    “ President of the Great Falls Manufacturing Company.
    
    “Test:
    “John Carroll Brent,
    “ Secretary of the Great Falls Manufacturing Company.
    
    “memorandum.
    “Before the arbitrators named in the foregoing and annexed submission enter upon their office, the said submission is hereby amended in the following particulars:
    “ 1st. It is agreed that the name of Hon. Alonzo C. Paige, of New York, be, and the same is hereby, substituted in place of George M. Dallas in the said submission.
    “2d. That inasmuch as Judge Swan, named as one of said referees, cannot serve, it is agreed that the arbitrators shall proceed without him and make their award; and in case of an equal division among them, so that no award can be made, it is further agreed the said arbitrators shall select another member, to be taken from the legal profession, and indorse his appointment hereon; and the award of the five shall be final as though Judge Swan had served.
    “(The Hon. Joseph R. Swan having accepted the appointment as arbitrator in this case, and being now here present, this 18th day of July, 1863, it is hereby mutually agreed be-tweentheUnited States and the Great Falls Manufacturing Company that this second amended article be, and the samei s hereby, expunged.
    “Boston, February 18, 1863.
    “Joseph II. Bradley,
    
      For the United States.
    
    “0. Cushing-,
    “ Great Falls Manufacturing Company.)
    
    “3d. The arbitrators are hereby further authorized to award on the costs of this submission and their award, and their award in this last respect to be final and conclusive between the parties hereto.
    “In testimony whereof, this addition to the said submission is signed by the acting Assistant Secretary of the Interior on the part of the United States, and the seal of that department annexed, and Cyrus Moore, the president of the said Great Falls Manufacturing Company, and the seal of said company annexed.
    [l. s.] “J. P. Usher,
    “ Acting Secretary.
    
    [l. s.] “Cyrus Moore,
    
      tlPresident of the Great Falls Manufacturing Company.
    
    “John Carroll Brent,
    “ Secretary
    
    XIII. Pursuant to this agreement the United States and the claimants appeared before the commissioners chosen under the agreement. Witnesses were examined and documentary evidence was submitted by both parties, and arguments of counsel were heard.
    On the 28th of February, 1863, the commissioners filed their report estimating the damages to the claimants which would result from the erection of the dam according to either of four several plans submitted to them. The report is as follows:
    “Pursuant to the submission on file in the Department of the Interior, a certified copy whereof is hereunto annexed, the subscribers, the referees therein named, having met the parties, the said Great Falls Manufacturing Company, filed with the arbitration a specific description of the lands to which they claim title, and which they allege will be affected by the improvements made, or proposed to be made, by the United States, and which description is marked No. 1, B. B. C., together with the plat marked No. 2, B. B. 0.; said Nos. 1 and 2, being returned with this award, are to be deemed and taken as referred, to, and made part of the same, so far as the nature of the subject may require. And the United States also filed with the arbitrators the
    educations of their proposed plans of operations, which are marked No. 3, B. B. 0., together with a plat marked No. 4, B. B. 0., said Nos. 3 and 4 being returned with this award, and to be deemed and taken as referred to, and made part of the same, so far as the nature of the subject may require. And thereupon the said parties were fully heard by their respective witnesses and counsel; and the arbitrators having carefully considered the matters submitted to them, and the allegations and proofs of the respective parties, do award and determine of and concerning the premises, and this is our final award and determination, to wit:
    “ 1st. A majority of the arbitrators, viz, Messrs. Curtis, Paige, and Child, do award and determine that if the United States shall adopt and decide to execute the plan of operations designated in the specification and on the plat as Dam B, being the second plan of operations named in the said specifications, then the said Great Falls Manufacturing Company are legally entitled to the sum of fifty thousand ($50,000) dollars as compensation for the use and occupation by the United States of the land, water rights, and privileges claimed by the said company, and all consequential damages to the property and rights of the said company which they may legally cl aim by reason of the execution by the United States of the plan of operations last above mentioned.
    “2d. The same arbitrators last above mentioned do award and determine that if the United States shall adopt and decide to execute the plan of operations designated in the specification and on the plat as Dam A, being the first plan of operations mentioned in the said specification, then the Great Falls Manufacturing Company are legally entitled to the sum of sixty-three thousand seven hundred and sixty-six ($63,766) dollars as compensation for the use and occupation by the United States of the land, water rights, and privileges claimed by the said company, and all consequential damages to the property and rights of the said company which they may legally claim by reason of the execution by the United States of the plan of operations last above mentioned. But this assessment is based upon the condition that the said company, as against the United States, may lawfully build and maintain a canal and bulkhead across and upon the land of the United States, on the Virginia shore of the Potomac, since marked on the said plat numbered 4 as belonging to the United States, so as to use the water of the pool above the Dam A, subject to the superior right of the United States to use the water for the aqueduct in the manner and to the extent shown by the aforesaid specification of the said Dam A, and its corresponding plan of operations.
    “3d. The same arbitrators last above mentioned do award and determine that if the United States shall adopt and decide to execute the plan of operations designated in the specification and on tbe plat as Dam C, being tbe third plan of operations named in tbe said specification, then tbe said Great Falls Manufacturing Company are legally entitled to tbe sum of seventy-seven thousand two hundred ($77,200) dollars as compensation for tbe use and occupation by tbe United States of said land, water rights, and privileges claimed by tbe said company, and all consequential damages to tbe property and rights of tbe said company which they may legally claim by reason of tbe execution by tbe United States of tbe plans of operations last above mentioned. But this assessment is based upon tbe condition that the said company, as against tbe United States, may lawfully build and maintain a canal upon and across tbe land of tbe United States, on tbe Virginia shore of tbe Potomac River, marked on tbe said plat numbered 4 as land of tbe United States, so as to use tbe water of tbe pool above tbe Dam 0, subject to tbe superior right of tbe United States to use tbe water of tbe aqueduct in tbe manner and to the extent shown by tbe aforesaid written specification of tbe said Dam C, and its corresponding plan of operation.
    “4th. The undersigned arbitrators do award and determine that if tbe United States shall adopt and decide to execute tbe plan of operations designated in tbe specification and on tbe plat as “ plan 4th,” being tbe fourth plan of operations named in tbe said specification, then tbe said Great Falls Manufacturing Company are legally entitled to tbe sum of fifteen thousand six hundred and ninety-two ($15,692) dollars as compensation for tbe use and occupation by the United States of tbe land, water rights, and privileges claimed by tbe said company, and all consequential damages to tbe property and rights of tbe said company which they may legally claim by reason of tbe execution by tbe United States of the plan of operations last above mentioned.
    “ Tbe undersigned, Jesse L. Williams and Joseph R. Swan, are of tbe opinion that tbe above awards of tbe majority of tbe arbitrators as compensation and damages to tbe claimants on account of tbe said dam, &c., B, A, and C, are, respectively, too much, and they do not agree to said awards, but they concur in tbe award relating to said plan 4th as, comparatively, tbe least objectionable.
    
      u 5th. The undersigned arbitrators do award and determine that tbe United States shall pay tbe costs and expenses of this •arbitration,'consisting of tbe compensation and expenses of tbe arbitrators, taxed at tbe sum of twelve thousand ($12,000) dollars, and the cost of depositions, witness fees, and other incidental expenses, taxed at tbe sum of seven hundred and sixty-one ($761.64) dollars and sixty-four cents, amounting in the whole to tbe sum of twelve thousand seven hundred and sixtycne ($12,761.64) dollars and sixty-four cents. Tbe deposition • and a transcript of tbe oral evidence laid before the arbitrators are returned with this award.
    “ Dated at Boston this twenty-eighth day of February, A. D. one thousand eight hundred and sixty-three.
    “B. Bi. Curtis.
    “A. C. Paig-e.
    “Linus Child.
    “Jesse L. Williams. “J. E. Swan.”
    MEMORANDUM OR COSTS.
    Commissioner, for depositions in Boston and vicinity, and traveling to and attendance at Washington ... $277 00
    Travel and attendance of witnesses, as per certificate of February 6th, at four cents per mile and $1.25 per day. 192 8t
    Ditto, McElroy, at Boston. 12 00
    Allowance to Noyes, as certified by counsel of both parties. 30 00
    Commissioner in Washington, as per his statement, assented to by counsel . 250 00
    761 84
    The compensation of the persons named in said agreement was paid, by order of the Secretary of the Interior contained n the following letter; and an account for such compensation was made out in favor of each of said parties, and a receipt therefor signed by him, in the form of that in this finding set orth immediately after said letter.
    “Department op the Interior,
    “ Washington, D. O., December 15, 1864.
    “Sir: You are hereby authorized and requested to pay to the Hon. Benjamin E. Curtis, of Boston, the sum of two thousand five hundred dollars ($2,500); to Jesse L. Williams, of Fort Wayne; Indiana, the sum of two thousand five hundred dollars ($2,500); to A- C. Paige, esq., of Schenectady, New York, the sum of two thousand five hundred dollars ($2,500); to Linus Child, of Boston, two thousand five hundred dollars ($2,500), and to J. E. Swan, of Columbus, Ohio, the sum of two thousand dollars ($2,000), making in all $12,000, being the sums charged by and awarded to them respectively, and in gross, as compensation for their services as arbitrators in the controversy between the United States and the Great Falls-Manufacturing Company, and charge the same to the appropriations for the completion of the Washington Aqueduct.
    # # * # * #
    “I am, sir, very respectfully, your ob’d’t servant,
    “J. P. Usi-ier, Secretary.
    
    “ Clement L. West, Esq.,
    
      u Disbursing Agent Washington Aqueduct, Washington City.
    
    
      11 For the Washington Aqueduct.
    
    “The United States to Benjamin R. Curtis, Dr.
    “Dec. 20, 18G4. For professional services as arbitrator in the controversy between- the United States and the Great Falls Manufacturing Company, two thousand five hundred dollars... $2, 500 00
    “Received, Washington, D. C., the 20th day of December, 1864, from C. L. West, disbursing agent, the sum of two thousand five hundred dollars-cents, in full payment of the above account.
    “(Signed duplicates.)
    “B. R. Curtis.
    “ $2,500.00.”
    The costs and expenses incurred by the parties named in said agreement, as above stated, were paid by the order of the Secretary of the Interior out of the same appropriation as that named in the letter set forth in this finding.
    XIY. The specifications of the proposed plan of operations referred to in the report as “ No. 3, B. R. C.,” are as follows; but no map or plat called for therein appeared before the court; but it appears that they have been lost:
    “No. 3, B. R. C.
    
      uAlternative plans proposed for the Potomac dam of the Washington Aquedtict.
    
    “ 1. Marked A on the map: Beginning at the present feeder of the aqueduct, crossing Conn’s Island, and striking the Virginia bank on the land belonging to the United States.
    “ The portion extending from the Maryland bank to Conn’s Island to be built of masonry, of the section shown by the annexed profile. The style of workmanship as described for the second plan (B). The remainder of the dam to be made of rip-rap, as described in the first eight paragraphs of the accompanying printed specification. The crest to be finished to the uniform level of 150 feet above tide.
    “With this plan and the next succeeding the right is required to deepen the channel on the Maryland side of Conn’s Island, so as to obtain a supply of 42,000,000 gallons per day at low stages of the river, with the water surface six inches above the center (grade) of conduit, or 147 feet above tide.
    “ 2d. Plan marked B, to extend from the Maryland shore to the Virginia side, near to and below the head of the old canal, as marked upon the map, and to the height of 150 feet above tide. To be constructed of masonry throughout, and of the section shown by the accompanying profile. The face and coping to be of the best quality of Seneca sandstone, and the rubble Inching of the same, or of blue gneiss. To be carefully bedded on tight, solid rock; beds and end joints for the front and rear stones to be cut in the rock.. The face of large stones well bonded and cut to lay a quarter of an inch joint, their faces pointed off within drafts. Coping to be full to dimensions on all sides, with fine joints, its upper surface and front hammered smooth. The backing of the best rubble masonry, all to be laid in cement mortar. The coping and the course below it to be secured with iron dowels. To be backed up with gravel, the upper surface of which will slope one foot in four to the bottom of the river. A good paving, extending back eighteen feet, to be laid on the gravelling. The government, in further amendment and modification of Dam B, proposes to construct, from the abutment on the Virginia shore, across the company’s canal, and near its mouth to the high ground, a guard bank, the top of which shall be 163-^% feet above tide, to be connected by masonry with the said abutment. The bank to be constructed of earth, ten feet wide at the top, with slopes of one and a half to one; protected on the up-stream side by a riprap and slope wall three feet thick at the top and four feet at base, to go down to the rock, and the lower part to be laid in cement to the height of 151 feet above tide; the foot to be connected with the rock; a puddle wall rising as high as the flow line through the center of the bank. The company to have the privilege of connecting a bulkhead with said guard wall, at such time and place and of such dimensions as they may deem proper.
    “3d. PlanC. Awallofrubblemasonryincementmortar,begin-ning at the present feeder of the aqueduct, to extend up the Maryland channel toa ledge of rocks above Conn’s Island; thence by a riprap dam to cross the river, as shown by the line O on the plat. The crest to be 150 feet above tide.
    “Plan 4th. The dam to extend to Conn’s Island, and so far on the same as may be necessary for a secure abutment on the same line of direction as in B, and to be constructed of masonry, as specified in tbe second plan. The crest to be 148 feet above tide. With this plan the United States require the right to deepen the channels on the Maryland side of Conn’s Island near its head, so as to draw off not less than 42,000,000 gallons per day, when the surface of the water in the river at the head of Conn’s Island stands at 147 feet above tide.
    “The maximum quantity of water to be taken from the river for the supply of the aqueduct will be 70,000,000 gallons per day.
    [Struck out this 18th February, 1863, and “A” inserted.
    J. H. B.]
    “ (A. Themaximum quantity of water to be taken from the river for the supply of the aqueduct will be whatever the dams, respectively, may yield, and is not limited to 70,000,000 gallons per day.)
    “ On its entrance into the aqueduct, the water will pass throu gh the feeder (plan herewith) to the gate house, when it will change its direction ninety degrees, pass through the gates, shown on the drawing, through the “rock cut” and tunnel No. 1 to waste weir No. 1.
    “ In compliance with the conditions imposed by the Chesapeake and Ohio Canal Company, acting under authority from the State of Maryland, this portion of the work has been made of larger dimensions than the remainder, so as to serve as a feeder to the canal. The distance is eighteen hundred and eighty (1,880) feet. The sections of rock cut and tunnel are shown herewith. From waste weir No. 1 to the receiving reservoir the conduit is generally a circle of nine feet interior diameter, some short portions being 9' 9" diameter. The distance is 47,917.5 feet. The fall of the conduit in this distance is V 2" feet.”
    XV. The claimants presented to the referees proofs, title deeds, &c., showing a valid title in it to the Toulson tract, Conn’s Island, and the Cyclades. Objections to the title were presented and urged on behalf of the United States, and the referees decided that the title Avas valid and satisfactory. No other title to the tracts than the title of the claimants is asserted.
    XVI. The conduit through which the water supply of the city of Washington is drawn was completed on the 5th of December, 1863.
    XVII. On the 4th of July, 1864, Congress enacted that the sum of $150,000 be appropriated for the purpose of constructing the dam of solid masonry across the Maryland branch of the Potomac Biver near the Great Falls, and for other purposes.
    XVIII. On the 30th of July, 1864, the United States entered into a contract for the construction of a dam for the supply of tbe aqueduct, and proceeded to construct such dam, and to take possession of so muck of Conn’s Island as was required for the purpose of securing the dam and making a permanent abutment, for it.
    The dam extends from a point on the Maryland shore, just below the feeder or mouth of the aqueduct, across the channel between Falls Island and the Maryland shore, across the head of Falls Island (which is under water except at very low stages), and thence across the channel between Falls Island and Conn’s-Island to its abutment on Conn’s Island, at a point 770 feet above the foot of Conn’s Island — closing the Maryland channel of the river entirely across — its length being about 1,176 feet.
    The height of the dam is 148J- feet above mean tide at Washington. Seventy feet of the dam next to the Maryland shore is one foot higher. It is about 8.4 feet, above the bed of the-river in the Maryland channel.
    XIX. The damis constructed from theMaryland shore to Conn’s Island, of the same, or about the same, height as the dam contemplated by plan 4 in the same paper set forth in finding XIY as No. 3 B. B,. 0.”; and, although of a different length and a different line of direction from that contemplated by plan 4r and, so far as shown, with the same benefit to the United States, and with no greater loss and injury to the claimants than would have been produced- if plan 4 had been followed; and it was constructed substantially in conformity with the fourth of the alternative plans presented by the United States to the said referees.
    XX. At the Maryland termination of the dam is the feeder entrance, having a diameter of 10 feet, and an elevation above mean tide of 139 and 149 feet.
    From the feeder to the receiving reservoir, a distance of twelve miles, the water passes through several tunnels and through a cemented conduit. These tunnels are six in number, aggregating in length 4,522 feet, and having a rough interior, constructed so as to admit a circle of 11 feet in diameter.
    The dimensions of the outer portions of the conduit are 9 feet,, and for some short distance 9 feet 9 inches, with a fall of 9J inches to the mile. The elevation at the entrance to the receiving reservoir is 143.77 feet and 134.77 feet.
    The- receiving reservoir is connected with the distributing-reservoir by a conduit two miles long, having an interior diam-«ter of 9 feet at tbe exit from tbe receiving reservoir; tbe height is 143.39 feet and 134.39 feet. At tbe entrance to tbe distributing reservoir tbe height is 141.868 feet and 132.868 feet.
    Front this distributing reservoir, which is two miles above Bock Creek, tbe water is carried to tbe city by three iron mains, whose maximum aggregate capacity is 31,000,000 gallons in twenty four hours, being, respectively, 36, 30, and 12 inches in diameter.
    XXI. The dam was completed to its present height in December, 1867, and since then the water drawn through the aqueduct for use in the cities of Washington and Georgetown has been from 12,000,000 to 24,000,000 gallons daily.
    For the purpose of drawing the water from the river into the aqueduct, it is necessary that a pool or basin be formed in the river by means of a dam or similar structure.
    Conn’s Island, in connection with the Maryland shore and the dam, forms such a basin as is necessary for the purpose of supplying the aqueduct, having its upper end open to receive the flow of the water as it may be needed. At low stages of water wing dams have been thrown out from the head of Conn’s Island, and other contrivances used, to increase the flow of water into this basin as it has been needed.
    Falls Island could not be utilized for this purpose for the reason that there would not be a sufficient flow of water between it and the Maryland shore, and for other reasons, such as insufficient height, &c.
    There is no other island or natural formation which could be utilized for forming a suitable basin without carrying the aqueduct much further up the river. So that if Conn’s Island was not used it would be necessary to carry the dam across to the Virginia shore, either above or below the island, or to build some artificial structure, such as a wing dam, to take the place of the island.
    XXII. If the dam were carried across the river at Conn’s Island, it would be in the rapids and in deeper water, and its construction would be much more difficult and expensive.
    If the dam were carried across the river above the island it would involve the expense of a longer conduit, and the increased expense of building the dam entirely across the river, or building a wing dam as a substitute for the island to form a pool.
    The cost of the present dam is $77,250.
    
      The cost of the aqueduct is $3,793,020. Its length is 00,952 feet.
    The uses of the aqueduct require the entire flow of the water in the Maryland channel in the low stages of the river.
    XXIII. The water drawn through the aqueduct is distributed in the cities of Washington and Georgetown for the use of the United States Government in its buildings, navy-yard, fountains, &c., and for the municipal and domestic uses of the said cities aud their inhabitants.
    The value of the water for the uses to which this is applied is derived from its elevation, which will admit of its flow or descent through the city; and when found at sufficient elevation to admit of being distributed b3 its natural flow it possesses a great value, and is paid for by cities when taken from the control of private owners according to its value, depending, as before said, upon its elevation.
    Upon these facts the following conclusion of law was reached and judgment rendered:
    The court, upon due consideration of the premises, find in favor of the claimant, and do order, adjudge, and decree that the said Great Falls Manufacturing Company have and recover of and from the United States the sum of fifteen thousand six hundred and ninety-two dollars, as compensation for all past and future use and occupation by the United States of the land, water rights, and privileges claimed by the said company, and all consequential damages to the property and rights of the said company which they may legally claim by reason of the substantial adoption and execution by the United States of the fourth plan of operations set forth in the agreement sued upon in the amended petition.
    
      Mr. Charles F. Peclc for the claimant:
    It is objected upon the authority of the case of The United States v. Ames, 1 Woodbury & Minot’s, 76-89, that the Secretary of the Interior was without authority to make the contract which we rely upon. The so-called ‘‘arbitration and award” were not such in the strict sense of those words. The plan of supplying the city with water was placed under the direction and control of the Secretary of the Interior. (11 Stat. L., 435.) Tbe principal purpose being confided to him, all powers incidental to its execution were granted.
    The provisions of the contract were in perfect harmony with law, at least so far as the rights and interests of the United States were concerned. Their legal effect was to provide that if the award was not satisfactory the whole matter, in lieu of being made a subject of the writ of ad quod damnum, should be investigated and determined by a proceeding in equity.
    The provision for an appeal to, or revision by, the circuit court of the District of Columbia was a complete protection to the government. Consent in such a case gives the court of chancery jurisdiction. The proceeding by the writ of ad quod damnum is merely a common-law action. (Kohl v. The United States, 91 U. S. B., 373.)
    If parties see fit to settle controversies of this kind by an ■ equity proceeding, they can do so. If the plaintiff and defendant both consent, there is no one to object. (Amis et al. v. Myers, 16 Howard, U. S. B., 462.)
    'The situs of the property was no objection to the proposed jurisdiction. {Phelps v. McDonald, 99 U. S. B., 298, and numerous cases there cited.)
    These authorities show that every provision of the agreement beneficial to the United States was valid, and it is irrelevant to say that the claimant could not have forced the United States into the courts if it had been dissatisfied with the finding of the •commission. This might possibly have furnished the claimant with an excuse for declining to proceed with the arbitration, but it had a right to go into the arbitration and waive these or ■any other provisions for its own benefit. After submitting its •cause and obtaining a decision, it is presumed to have understood and acquiesced in the unilateral character of the provisions for appeal. And, above all, it is a complete answer to say that both parties were satisfied with the findings, and neither sought to disturb them.
    There was no suggestion in the Holt, Davis,'and Campbell Commission Cases that the awards were not binding upon the government, but, on account of the want of mutuality in the selection of the members of the commission, it was held that the acceptance of the sum awarded was necessary to conclude the claimant; and when this was shown, the decision of those tribunals was held to have all the conclusiveness of a judgment of tbis court. (United, States v. Adams, 7 Wall., 463 ; United States v. Child, Pratt & Pox, 12 ib., 232; United States v. Justice, 14 ib., 535; United States v. Mason, 17 ib., 67.)
    In the case of Qrisar v. McDowell, 6 Wall., B., p. 372, tlie Supreme Court held, on the question of the right of the President to set aside public lauds for á military reservation, that an appropriation of money by Congress to be expended upon the reservation was conclusive upon the subject, whether or not the power originally belonged to the President.
    In this case the point made against paying the award is not that our title is in fact invalid, or that the Attorney-General has decided it to be invalid, but merely that he has not decided it to be valid. In other words, that article 2 of the contract is a condition precedent which we have not complied with. To this we answer, first, that it is. not a condition which we are required to perform. This article did not require us to do anything in the matter of title; but, if anything, it was merely to furnish the evidences of our title, and that we have done. Secondly, if it were a condition precedent, it has been waived by taking possession of the property. He who dispenses with the performance of a condition cannot take advantage of its nonperformance. (Majors v. Hickman, 2 Bibb, 218; Cassel v. Collins, ib., 431; Williams v. Bank of the United States, 2 Pet., 102; Marshall v. Craig, 1 Bibb B7 380; Morford v. Ambrose, 3 J. J. Marsh-., 690; Grump v. Mead, 3 Mo., 233; Miller v. Ward, 2 Conn., 494; Clendenin v. Panlsel, 3 Mo., 230; Webster v. Coffin, 14 Mass., 196; Seymour v. Bennett, ib., 268; Ciarle v. Moody, 17 Mass., 149; Cooper v. Mowry, 16 Mass., 7; Jones v. Walker, 13 B. Mon., 163; Dodge v. Rodgers, 9 Minn., 223; Cape Pear Go. v. Wilcox, 7 Jones (N. C.), 481; Camp v. Barker, 21 Vt., 469.)
    The United States is held to the same liability upon contracts, express and implied, in relation to its property, as an individual. (Blatch., Prize Cases, 326; The United States v. Tingey, 5 Pet., 115; The United States v. Bradley, 10 Pet., 343; The United States v. Bank of the Metropolis, 15 Pet., 357; Dungan v. The United States, 3 Wheat., 172; Heilson v. Bagow, 12 How., 98; The United States v. Barker, 12 Wheat., 559; The United States v. Bank of United States, 5 How., 382; Punter v. The United States, 5 Pet., 185.)
    The rule as to the waiver of a forfeiture or condition is as applicable to the government as to other contracting parties. (Douglas’s Case, 2 O. Cls. B., 347; Lester's Case, 1C. Cls. B., 52.)
    
      The argument of the government is, that if our title was not examined, the agreement of submission and award came to naught — it was all invalid. But the United States has taken the property under and in pursuance of it, and therefore is es-topped to assert its invalidity. (Gilbert’s Case, 1 C. CIs. B., 110 ; Kellogg’s Case, ib., 315; Carmiclc’s Case, 2 ib., 126.)
    I am not overlooking the reply that it does not necessarily follow, because the government took possession of the property that it did so in pursuance of this submission and award. It may be said that if the condition was not fulfilled the United States might ignore the agreement and take possession under the right of eminent domain. This theory is disposed of by the fact that the proceedings under the writ of ad quod damnum were not renewed, and no similar proceeding instituted, as the law would require.
    Where the government has a right to take property at an appraised value, and a seizure follows, it will be regarded as taken under the contract, and not by the right of eminent domain. (Bogert’s Case, 2 C. CIs. B., 161.)
    Taking possession of the property was a waiver of any condition that the Attorney-General should first pass upon the title. The authorities, in this respect, go much further than we contend for, holding that a vendee by such acts waives his right to require a good title, and that he must either pay the purchase money or surrender the possession. (1 Hilliard on Vendors, 224; Dixon v. Astley, 1 Mer., 133; More v. Smedburg, 8 Paige, 600; Burnell v. Brown, 1 Jac. & Walk., 168.)
    The claimants have in fact a valid title.
    Until the United States shall continue its dam entirely across the river, the only property to be affected is Conn’s Island. The Great Falls Manufacturing Company is chartered by the laws of Virginia, and by the terms of its charter, is authorized to hold one or more tracts of land in Fairfax County, Virginia, not exceeding three thousand acres.
    The legislature of Maryland has also recogfiized the acts of incorporation of the State of Virginia. (Laws of Maryland, 1847-48, p. 146.)
    A corporation, as such, has the power to take and hold lands; no express grant for this purpose being necessary. (1 Blackstone’s Comm., 475; 1 Kent’s Comm., 224; Kyd on Oorp., p. 69; Angelí & Ames on Gorp., p. 140.)
    
      By State comity, corporations created in. one State are permitted to carry on any lawful business and acquire and bold real and personal property in any other State. Oowell v. Colorado Springs Co., U. S. Supreme Court, Washington Law Reporter for February, 1880.)
    The statutes of mortmain were never in force in the British colonies or in the United States, except, perhaps, in Pennsylvania. (1 Washburn on Beal Property, 50; 2 Kent’s Comm., '282,283; Perm et al. v. Carey et al., 24 How., 500; Attorney-General v. Stewart, 2 Mer., 143; Leazure v. Eillegas, 7 Serg. & R., 320.)
    If this property was not taken under the terms of the agreement it must have been taken under the right of eminent domain. That it was not taken in pursuance of the exercise of this right, under the statutes of Maryland, is evident from the facts hereinbefore set forth. The inquisition first taken in Maryland was set aside upon the motion of the United States, ■and the proceeding has never been resumed. There remains, then, only the exercise of the national right of eminent domain. That this right exists independent of State laws and State jurisdiction, has been definitely determined by the United States Supreme Court in the case of Kohl et al. v. The United States, 91 U. S. R., 367.
    See also the case of Twombley v. Humphrey, 23 Mich., which the United States Supreme Court cites with approval in Kohl v. The United States.
    
    The suggestion that a great public work of this kind, for which Congress has appropriated nearly four millions of dollars, is founded upon a mere personal trespass of an officer or contractor is unworthy of consideration.
    The omission to provide expressly for a process of expropriation is entitled to no more weight. It strengthens our theory of an implied contract, and a remedy in this court. If our property has been taken for a great public purpose, and its continued use is a vital necessity to the government, the fact that no legal condemnation can be made under the laws of Maryland, and none has been provided under the laws of the United States, adds force to our claim for compensation in this court.
    The agreement between tbe claimant and the Secretary of tbe Interior for the appointment of commissioners to value the property, admitting it to have no force or validity as an agreement, is efficacious as evidence that the parties intended a reasonable price to be paid for the property.
    The right to take property, coupled with the obligation to make compensation, has all the elements of a purchase and sale, except that the transaction is obligatory upon the citizen. The power of the government amounts to nothing more than a power to-oblige him to sell and convey when the public necessities require it. (Cooley’s Const. Lim., p. 558.)
    The necessity for this particular work was determined by Congress when it appropriated the money for executing it. Whenever the officer is justified the government is liable.. (Grants Case, 1 C. Ols. R., p. 41.)
    When property is thus taken for public use it must be paid for j and an action lies in this court to recover just compensation. (Grant’s Case, 1 O. Ols. R., 41; Meade’s Case, 2 ib., 224; Wiggins’s Case, 3 ib., p. 412; Johnson’s Case, 2 C. Cls. R., 415.)
    On the question of damages counsel for the claimant relied 403, on the case of The Boom Company v. Patterson, 98 TJ. S. R., and cases there cited.
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    We contend that the contract upon which the present dam was built was, on the part of the United States, to pay to plaintiff the compensation which should be ascertained according to the acts of Maryland of 1854 and 1824, and that all injuries committed to property of plaintiffs lying in said State are within this contract.
    The filing of this petition in the Court of Claims is an acknowledgment that the entry of the United States in the construction of the dam was legal and not tortious. And the question presented by the plaintiff’s petitions up to January, 1879, is whether this entry created an implied contract to pay what-this court should decide to be reasonable compensation for the taking, or whether the act of Congress of March 3,1853, did not limit the claimant to the remedy subsequently provided by the State of Maryland.
    Having taken part without protest in the proceedings in Montgomery County for tbe assessment of damages, plaintiff is estopped from asserting that such proceedings were insufficient or illegal.
    . The various acts of Congress and of the legislatures of Maryland and Virginia show by what authority the work has been done. It is evident from the whole legislation on the subject of the Washington Aqueduct and Potomac Dam that the work outside of the District of Columbia has not been done under and by virtue of the national right of eminent domain, but by virtue of the right of eminent domain existing in the State of Maryland.
    The consent of a State was not indispensable to the exercise of the national right; for, if the Constitution gives the power, it exists without the concurrence of any State (Dickey v. Tuni-pilce Go., 7 Dana (Ky.), 129; see also Kohl’s Case, 91 U. S. I!.., 367), and the word “ assent” in the act of Congress of 3d March, 1853, furnishes the key to the whole question.
    The court of appeals of Maryland has held that the appropriation of land for the aqueduct was under the statute of Maryland and by virtue of the State domain, and if this is the case the legislature of Maryland has the exclusive power of determining how that right shall be exercised. (Beddall v. Brycm.) All the property used for the aqueduct within the State of Maryland was obtained by the United States under this act.
    The thirty-fourth section of the judiciary act (L Stat. L., 92) provides that the laws of the several States, except where the Constitution, treaties, or statutes shall otherwise require and provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply. Inasmuch, therefore, as neither the National Constitution nor Congress has provided and required these damages to be assessed in any other way, the proceedings under the law of Maryland should be considered exclusive.
    The legislature having prescribed a particular remedy for all damages, all other modes of remedy are by necessary implication excluded. • (Spring v. Bussell, 7 Green 1., 273; HaycraftY. The United States, 22 Wall., 81; Hx parte Vennor et al., Atkyns’s B., 769; McKinney v. Monongahela Go., 14 Pa. St., 65.) The statute having provided a remedy, it must be pursued. He can bring no new action, and cannot resort to a new petition for assessment.” (Western Pennsylvania Co. v. Johnston, 59 Pa. St., 296. See Be Haven v. Henderson, 57 Pa. St., 126.)
    The right of eminent domain delegated to a corporation can never be exercised without a strict and full compliance with all the provisions intended to secure compensation to the owners. (Bell v. The Ohio and Pennsylvania Ii. Go., 1 Grant, 105; Bin-neifs Case, 2 BL, 120; see also Castle’s Case, Cro. Jac., 643; Bex v. Bobmson, 2 Burr, 803; Cooley’s Const. Lira., 564, and cases cited in note 2.)
    No inference can be drawn from the failure óf the United States after July 4,1864, to go on with the old condemnation proceedings or to institute new ones in Montgomery County. Nor does our occupation of the lands without having first paid or secured the compensation make for or against the argument, because that feature of the case, if urged, proves that the individuals who put the dam on the plaintiff’s lands were trespassers and alone responsible for their acts.
    Jurisdiction is not to be conferred on this court by allegation or proof of a want of remedy elsewhere. It is not a court of equity with undefined jurisdiction, correcting the deficiencies and supplying the omissions of law, nor can it furnish a remedy, because the law gives none. In this connection, see Langford v. The United States, 102 U. S., p. 301.
    This is not the proper court to assess damages in this case, for the reason that it cannot go upon the ground and view the premises. The members of the court individually might do so, but not in their judicial capacity. The necessity of such view to a proper estimate of damages has never been questioned, but has always, both in this country and in England, been considered absolutely essential. The common-law writ of ad quod damnum always lay upon a grant of liberties made by the King. (Viner’s Abgmt., 126; Fitzherbert’s Natura Brevium, pp. 221-225; lBur., 465; 3Atkyns, 766.) This writ commanded the jury to go upon the ground, and the testimony of witnesses was called in merely for the purpose of aiding the jury. “ The warrant and inquisition (provided by the acts of the legislatures of Maryland and Virginia) are in the nature of a writ ad quod damnum.” Chesapeake and Ohio Canal Co. v. Union Bank, 4 Oranch C. O., 79.)
    I have failed to discover any act of any legislature which pro-vicies for tbe assessment of damages in a case like this other than upon the ground.
    In Tide Water Canal Co. v. Archer (9 Gill J., 479), the court says: “A jury summoned to assess damages are not bound by the weight of the evidence; they may be governed greatly by the view which they take of the lands to be valued by them when they meet thereon.” In Paries v. Boston (15 Pick., 210), the court treats the “view” as the real guide for the jury, and testimony as called in to enlighten them as to matters of which they have no special skill.
    Such was the plan adopted in the condemnation of property within the District of Columbia for the Chesapeake and Ohio Canal (4 Crunch C. 0., 75 ; 3 Oranch O. C., 599), and also for the Washington Aqueduct, when the national right of eminent domain was exercised. (Act of 8th April, 1858,11 Stat. L., 263.)
    This court has not jurisdiction, for the reason that payment of the damages so fixed will not divest the title of the Great Falls Company to the land, nor transfer it in perpetuity to the United States.
    Power to divest private titles has never been given to this court, either bj' expression or implication. Nothing could be more remote from its jurisdiction, and it seems to me that this furnishes a fair test of its power to entertain the present proceeding.
    On the other hand', by the express terms of the act in relation to the Chesapeake and Ohio Canal Company, on payment thereof (i. e., the damages assessed by the jury) the said company (in this case the United States) shall be seized of all such land as of an absolute estate in perpetuity, or with suchless quantity and duration of interest or estate in the same, &c., as if conveyed by the owner to them.
    Even if the court ever could have taken jurisdiction, that jurisdiction would be co-ordinate with the court of Montgomery County. (Chapin v. James, 14 Am. Law. Peg., 216; Pede vs. Jenness, 7 How., 612; Sagan v. Sicas, 10 Pet., 400; Taylor v. Garryl, 20 How., 596; 4 Zabrisliie, 640.)
    If the court should hold that it has jurisdiction, its attention will then be directed to the settlement of two questions: First, Does plaintiff have a legal title to any part of the real estate occupied by our dam? Second, What is the reasonable value to plaintiff (not to the United States) of the property so occupied?
    By its charter plaintiff is authorized to purchase and hold land in the State of Virginia, but no power was conferred upon it to purchase and hold lands elsewhere.
    The law on the subject has been too frequently laid down by the Supreme Court of the United States to require or admit of discussion. (Head and Amory v. The Providence Ins. Oo., 2 Oranch, 127; Dartmouth College v. Woodward, 4 Wheat., 636; Bank of the United States v. Dandridge, 12 Wheat., 64$ Bank of Augusta v. Darle, 13 Pet., 519.)
    But, says the plaintiff, we have permission from the State of Maryland to hold lands within her borders. Permission is one thing a.nd power is another; and this distinction is very carefully observed in Bunyan v. Costar (14 Pet., 122).
    But it is contended by claimant that this title has been passed upon by the board of arbitrators. This precise question was not presented to them, and probably was not raised for the reason that the charter of the company was not offered in evidence. Indeed, the plaintiff has always been reluctant to display its charter in court, and in April, 1877, by learned and eminent counsel, resisted strenuously (and I may add successfully) defendants’ efforts to compel (by means of a plea of mil tiel corporation) the plaintiff to produce its charter.
    As to this portion of Conn’s Island, the seventeen acres added in 1862 by resurvey, the plaintiff took no title by its patent, because the State of Maryland by the Act May 3, 1853, had already conveyed it to the United States. (•United States v. Great Dalis Man. Co., 21 Md., 119.)
    Inasmuch as plaintiff’s right of recovery rests upon the assumption that the taking by the United States has been under the national right of eminent domain, the compensation should be estimated by the rules governing proceedings by condemnation.
    The true rule on this subject, we think, is the one laid down by Gibson, J., in Schuylkill Co'v. Thoburn (7 S. & R., 422), as follows:
    
      u What would the property unaffected by the obstructions have sold for at the time the injury was committed What would it have sold for as affected % the injury ? The difference is the true measure of compensation. The compensation is to be prospective as well as retrospective; but to be estimated with reference to the time when the injury was committed. This price was due the moment the privilege was entered upon and the price could be ascertained, which was obviously the time when the obstruction was first completed.”
    This rule is recognized by Baldwin, J., in Atkins v. Phila. and Trenton B. B. Go. (9 Gill & J., 528); also in Tide Water Canal Go. v. Archer (9 Gill & J., 479), where the date of the valuation is emphasized: “In estimating the value of property condemned for the public use, the jury should give the proprietor what, in their judgment, it would actually at the time sell for, and not what it might bring or perhaps ought to produce at some future period.”
    The court in the case of Johnson (2 C. Cls. R., 416) laid down the rule that the value of the occupancy is to be measured by a fair market rental. In that case the plaintiff was dispossessed by the defendants, and, as I read it, the value to plaintiff during previous years was taken as the standard. In the present case neither the water nor the island ever was productive in any manner to the plaintiff, nor have we deprived it of anything that during the past ten years could have been of any value.
    The case of the Boom Go. v. Patterson (98 IT. S. R., 403) simply follows the decisions I have cited in holding that the inquiry must be, What is the property worth in the market with reference to the uses to which it is plainly adapted? If we have taken any of plaintiffs property we have taken a very inconsiderable portion of it.
    It remains only to consider the binding force of the so-called award. The greatest anomaly in the agreement between the Secretary of the Interior and the claimant is the provision by which either party might proceed by bill in equity in the circuit court of the District of Columbia to set aside or change the award, and to obtain from said court such decree as in their judgment would be just and equitable. And this anomaly becomes more glaring if viewed in the light suggested by claimant’s counsel, to wit, that the whole subject was res integra, and the agreement was simply a reference to determine what purchase price the United States should pay in case it concluded to take property of the claimant.
    The Secretary of the Interior was utterly without authority by bill in equity, contract, agreement, consent, or by any other method, to impose on. the circuit court of the District, and upon the Supreme Court of the United States, the duty of inquiring and deciding how much he should pay respectively for four several tracts of land lying in Maryland, in case he should in the future want to purchase any or all of them.
    If the provisions for appeal are stricken from the agreement, does it destroy the whole force of the submission? It is not necessary to discuss the question, for the reason that the Secretary of the Interior had no power to relegate to private citizens a discretion reposed in him by law. The discussion of the Acts of March 2,1872, and June 10,1872, by Mr. Justice Strong (91U. S. K., 374), clearly indicates that his authority did not extend to binding the United States to prices to be fixed by third parties. (See also United States v. Ames, 1 Woodbury & Minot, 76, 89.)
   Hunt, J.,

delivered the opinion of the court:

The dimensions of this case have greatly diminished since its first appearance on the files of this court. The original petition filed by the claimants on the 10th April, 1868, prayed judgment against the government for $500,000. On the 3d November, 1869, the claimants reiterated their demand for that amount, varying somewhat the technical grounds upon which the demand rested. Afterwards, on the 31st of January, 1879, they amended their petition and reduced their claim to the sum of $143,592. They now come before the court and are content to ask a judgment for $15,692.

The several amendments under which the demand of the claimants has thus dwindled have been permitted by the court in the exercise of its undoubted discretion. The allowance of the last petition, filed January 31, 1879, is strenuously resisted by the counsel for the government. He insists that this amended petition should be dismissed, because its allegations are inconsistent with those previously made, and because it sets forth a novel cause of action which was barred by the statute of limitations at the date when the petition was filed. According to the liberal rule of modern jurisprudence in this country and in England, courts are inclined to permit amendments to pleadings for the very purpose of preventing the barst operation of tl)e statute. Under circumstances which attest the good faith'of parties, there is a manifest equity in relieving them from the loss of valuable rights, which they may have failed properly to assert, through error, inadvertence, or ignorance, or a disregard of technicalities on their own part or on that of their attorneys. In this instance the inconsistency in the pleadings which is insisted on by the counsel for the government is not satisfactorily shown. The cause of action throughout the several petitions and amended petitions remains substantially the same. Had the claimants recovered judgment on their original petition, such judgment would have constituted a complete and valid bar to any further recovery on the amended petitions. In the recent case of Thomas v. The United States, the subject of the allowance of amendments in this court was fully considered. Under the doctrines there announced, the amended petition now under examination was properly allowed. (15 C. Cls. R., 342; Rev. Stat., § 954; Tiernan's Ex. v. Woodruff, 5 McLean; Crimm v. Crawford, 29 Ala., 623; 2 Tidd’s Prac., 698; Crane v. Malins, 6 Eng. L. & E., 568; Crawford v. Code, 3 Eng. L. & E., 594.)

Narrowed down to its present compass, and divested of extraneous prolixity, the case of the claimants is substantially this: The Great Falls Manufacturing Company is a corporation created by the laws of Yirginia. The company claim the sum of $15,692 as compensation for a portion of an island in the Potomac Biver, near Washington, known as Conn’s Island, of which the United States took possession in the year 1864, and which they have ever since used; and also for the property rights of the claimants in the water drawn from the Potomac Biver in that locality by the aqueduct for the use of the capital.

The claimants base their right to recover upon two grounds: First, they claim under an agreement and award of certain commissioners hereafter explained, which they assert is of the nature and binding effect of an express written contract; and, secondly, they contend that if the,written contract be held invalid, the government is still liable under an implied contract to make a just compensation to them for their property, taken for public uses.

A brief bistory of tbe events and circumstances connected with this claim becomes necessary to its proper consideration.

On tbe 31st of August, 1852, Congress appropriated $5,000 to enable tbe President to cause tbe necessary surveys to be made in order to determine tbe best methods of securing a supply of pure and wholesome water for tbe cities of Washington and Georgetown. In execution of this purpose, General Totten, of tbe Corps of Engineers, U. S. A., transmitted an elaborate report to President Fillmore, by whom it was laid before Congress. On tbe 3d of March, 1853, Congress appropriated $100,000 for tbe purpose of bringing water into tbe city of Washington, upon such plans and from such places as tbe President might approve; provided, that if tbe plan adopted by tbe President should require water to be drawn from any source within tbe limits of the State of Maryland, tbe assent of tbe legislature of that State should be first obtained. Under tbe authority of this act, tbe President approved tbe plans for an aqueduct supplied with water from the Potomac Eiver at a point just above tbe Great Falls. This aqueduct lias since been constructed.

On tbe 3d of May, 1853, tbe legislature of Maryland passed an act giving tbe assent of tbe State to such plan as might be adopted by tbe President for supplying tbe city of Washington with water. This statute provided that tbe United States might purchase such lands and materials, and construct such dams, buildings, and other works in tbe State of Maryland, as might be necessary for that purpose. Tbe statute made provision in case tbe United States could not agree with tbe owners for tbe purchase of tbe required land and materials, that tbe United States might enter upon such lands, and take and use such materials “after having first made payment, or tendered payment at tbe valuation assessed thereon,” in a prescribed manner.

Tbe officers of tbe government adopted as tbe proper location for tbe termination of tbe aqueduct a site on the property of the claimants, which is minutely designated and described in the findings of fact in this case, and which it is unnecessary, for this decision, to further particularize.

After tbe location of the works, the government took steps to acquire title to the property desired, and to ascertain the damages to tbe claimants.

Overtures for tbe amicable purchase of the required property were made, but no satisfactory result was reached.. Failing to come to terms with the claimants, the government resorted to legal proceedings in order to accomplish its object. Accordingly, on the 27th of July, 1858, proceedings were instituted in the court of Montgomery County, Maryland, under the statute of that State. In these proceedings the damages to the claimants were assessed at $150,000. This assessment was set aside by a judgment of the circuit court of Montgomery County for a number of reasons, and proceedings ele novo were ordered to be had. Nothing further was, however, then done in the matter. For several years the appropriations made by Congress for this work were expended upon other portions of it, up to the time when the aqueduct was approaching completion. It then became necessary to take further steps towards securing the site which had been selected upon the property of the claimants.

Previous to this, on the 3d of March, 1859, Congress had placed this work under the direction and control of the Secretary of the Interior. (11 Stat. L., 435.) That officer, impressed with the embarrassments attendant upon a renewal of proceedings before the Maryland courts, and with the intrinsic difficulties of the subject itself, determined to adopt some other mode under which the amount of compensation to which the claimants would become entitled might be ascertained. They were entitled to compensation for the value of the real estate, and also of the property rights in the water to be taken for the public use. Efforts were therefore renewed to compass the peaceable adjustment of the claimants’ rights.

On the 20th of November, 1862, the Secretary of the Interior, charged with the direction and control of the work in the manner already stated, entered into an agreement in writing with the claimants, the substantial provisions of which are succinctly stated, as follows:

It commenced with a recital of the objects sought to be obtained, and the expenses, difficulties, and embarrassments attending the previous efforts of the parties to determine their respective rights amicably; and the impracticability of any successful result in proceedings under the State laws; and, u with a view to a fair, prompt, and final settlement of the controversy,” it was agreed that the whole matter should be submitted to the arbitrament of Jesse L. Williams, of Indiana; B. R. Curtis, of Massachusetts; G. Swan, of Ohio; Linus Child, esq., of Massachusetts; and George M. Dallas, of Pennsylvania.

That the claimant should file a description of the lands to be affected, and that the arbitrators should act as though the title were valid, but that the award should not be binding unless the Attorney-General should decide the title was valid.

The arbitrators were to decide upon and award the compensation to which the claimant should be entitled.

If dissatisfied, either party could, within thirty days after the award, proceed, by bill in equity in the circuit court of the District of Columbia, to set aside or change the award and obtain such a decree as would be just and equitable; otherwise, the award was to be final and conclusive.

Either party dissatisfied with this decree could, in like manner, appeal to the Supreme Court of the United States.

The Hon. Alonso O. Paige was substituted for Mr. Dallas as a member of the commission, before proceeding with the case.

The counsel were Caleb Cushing for the claimants and Joseph H. Bradley for the government.

This commission was a remarkable body. Its members were distinguished jurists, of great erudition, experience, and elevated personal character. Some of them were especially conspicuous for their known familiarity with and experience in the law regulating riparian rights and in hydraulics. At its head was that enlightened, upright, and able judge, Benjamin R. Curtis, whose name is illustrous in American jurisprudence. The counsel of both parties were scarcely less eminent.

At the time of the organization of the commission, the works, had not been constructed. Four different plans for these works had been prepared by the officers of the Corps of Engineers appointed by the President to act under the Secretary of the Interior. (11 Stat. L., 435.) These plans were submitted to the judgment of the commission.

The commissioners at once entered upon the business intrusted to them, examined numerous witnesses and much documentary evidence, and heard argument of counsel.

On the 28th of February, 1863, they filed their report estimating the damages which would result from the construction of the works according to each of the four plans submitted to them. The compensation to be paid to the claimants was fixed by them as follows: For the first plan, $50,000; for the second, $03,766; for the third, $77,200, and for the fourth, $15,692. The commissioners also decided that the titles of the claimants were valid and satisfactory.

More than a year elapsed after this decision without action on the part of the government. No bill in equity was filed to set aside or disturb the findings of the commission. No appeal was taken from their decision; no dissatisfaction was intimated with regard to it. The Attorney-General expressed no opinion adverse to the validity of the claimants’ title. On-the contrary, on the 4th day of July, 1864, Congress appropriated $150,000 for the purpose of constructing the dam of solid masonry across the Maryland branch of the Potomac Eiver, near the Great Falls, and for other purposes. (13 Stat. L., 384.) The fourth plan was then substantially adopted; and on the 30th of July, 1864, the government entered into a contract for the construction of the dam, and proceeded at once to occupy as much of the claimants’ laud as was required under this plan, and has ever since drawn such quantities of water from the Maryland channel as were needed for the aqueduct. In accordance with the principal features of this plan the work was finished in 1867.

From this brief history, the right of the claimants to recover on the award of the commissioners ax>pears clear. Although their report is called an arbitration and award,” yet it was not such in reality, as will more fully appear. The supervision of the undertaking had been fully confided to the Department of the Interior, and all appropriations for the completion of the water-works were to be expended under the direction of the Secretary of that department. It had been previously provided that the assent of the State of Maryland should be obtained in case the required water was drawn from any source within the limits of that State. That State gave its express consent that the United States might purchase such land and construct such dams, reservoirs, buildings, and other works as might become necessary to the purpose. The statute went on to provide that if the United States could not agree with the owners for the purchase of' any land, they might institute proceedings at law for the condemnation and assessment of lands or materials similar to those provided in the case of the Chesapeake and Ohio Canal.

Here, then, was the assent of the State, first to the purchase of such lands, &c.; and, second, in case of failure to agree with the owners for the purchase of such lands, &e., here were provisions for a mode of procedure under the statute for their condemnation and assessment.

It appears that the claimants and the Secretary, the agent of the government, had been in the beginning unable to agree upon the terms of the purchase of the claimants’ property. They therefore had taken steps for its forced alienation. The result of these steps was an assessment of damages in favor of the claimants of $150,000. To this assessment the government objected and caused it to be vacated. They then abandoned the legal proceedings and determined to acquire the property of the claimants in the mode first pointed out by the statute of Maryland — that is to say, by agreeing to purchase it. They were, however, undetermined as to the precise location and construction of the works, and were also uncertain as to the price which should be paid to the claimants. It was under these circumstances that the Secretary agreed with the claimants that ■ the four plans which had been suggested and developed by the engineers of the government should be laid before a commission of capable and disinterested persons. This commission was to assess the price to be paid to the claimants under each of these plans. The Secretary, if he judged that the price was reasonable at which the rights and property of the claimants were appraised, might purchase them according to any one of the four plans.

The commission were to act in the character of appraisers. The Secretary had the right to call in their aid to guide him in determining what price it would be fair for the government to pay. He was not bound irretrievably by the prices set by the commission. Ample provision had been made in the agreement for a review in the courts of the whole subject-matter, if either party to the instrument were dissatisfied with the ap-praisements.

That the Secretary was wise in seeking counsel from such competent and distinguished advisers no one will doubt. Their opinion is entitled to the most profoun d respect. It carries with it at least the moral power of a final judicial decision; and this court would be slow to dissent from its high authority. It has fixed the value of the claimants’ property, as that property was finally taken by the government, at $15,692. There appears to be no reason for believing this price excessive or unfair. The claimants are entitled to recover this amount under their express written agreement with the government,

It is said that the Secretary of the Interior has no right to enter into this agreement. The several acts of Congress already referred to required the obtaining a supply of water for the cities of Washington and G-eorgetown, in accordance with a plan approved, by the President. This plan required for its execution the occupancy and enjoyment of the land and water privileges belonging to the claimants. The Secretary of the Interior was charged with the duty of carrying it into effect. In doing so the property of the claimants would be acquired in one of two ways, either by consent of the parties to a purchase, or by forced alienation under legal process. The final decision of the Secretary seems to have been to acquire the claimants’ property by amicable purchase. He had a right to call in experts to advise him as to its true value. Such a right springs from the power to purchase. Gum quid eonceditur, eonceditur et id per quod pervenibur ad illud. In making the agreement for the appraisement he was only carrying out and in no manner exceeding the trust imposed upon him by Congress.

But giving to the agreement and the report the character said to belong to them of a submission and award, it by no means follows that the Secretary had not in this instance the power thus to arbitrate. If he possessed the power in relation to the subject-matter of the submission to carry into effect the decree which the award might direct, he had the power to consent to the submission. (Morse on Arb., p. 4.)

He certainly was clothed with authority to effect the purchase of the claimants’ land and water privileges. He could elect either of the two methods provided by the Maryland statute— by a contract of sale by consent of parties, or by forced alienation by judicial proceedings. Having consented with the claimants to acquire by sale, the means through which the fair price should be ascertained and the purchase thus become complete might properly be submitted to the decision of discriminating and disinterested persons, subject to the ratification of the parties in interest. There is no prohibition, express or implied, against the employment, by the Secretary, of such means in order to effect a purpose intrusted to him by Congress.

But, in tbe present instance, if there were any infirmity of authority in the original power of the Secretary of the Interior to consent to the agreement and award, such infirmity has been cured by the subsequent acts of the government. At the very nest session of Congress after the report of the commissioners, an act was passed “ appropriating $150,000 for the purpose of constructing the dam of sold masonry across the Maryland branch of the Potomac Elver near Great Falls,” &c. (Act July 4,1804.) The costs of the investigation and the compensation of the commissioners were paid by the government. The property of the claimants was taken into possession and enjoyed by the government. The fourth plan of operations submitted to the commissioners ’was substantially adopted in the construction of the works. Appropriation has followed appropriation for the maintenance and completion of the work from year to year, exceeding three millions and a half up to March, 1867. All of. these acts on the part of the government, commencing when the report of the commissioners was yet fresh in the public mind, when the occupation and enjoyment of the claimants’ property by the government has been manifest to the public and under the very eyes of Congress, constitute a contemporaneous and continuous interpretation of the rights of the claimants, which is inconsistent with any other hypothesis than the ratification of the acts of the Secretary of the Interior in this matter. Such a ratification dates back to the first exercise of authority by an agent, and imparts to his acts full validity. Ortmis ratihdbitio retrotrahitur et mandato priori equipa-ratur.

But the government objects that the Attorney-General has not decided that the claimants had a valid title to the land occupied, and that by the second article of the agreement such decision by that officer is a condition precedent which has not been complied with. To this objection the claimants offer a satisfactory answer. They say that this was not a condition which they were required to perform. That the article required them only to furnish evidence of their title, and that they had done this. The facts found by the court show that the referees examined and passed upon the title of the claimants and decided that it was valid and satisfactory, and, further, that no adversary title to theirs is or has ever been asserted. Since the Attorney-General did not demur to the opinion of these eminent jurists, it may well be inferred that he concurred in that opinion. It was within the power of the government but never in the power of the claimants at any time to require the Attorney-General to decide upon the validity of the title on which the referees had passed. It was for their-benefit alone that the condition was agreed to. It is a well-settled principle of law that if a party to a contract, who is entitled to the benefit of a condition, upon, the performance of which his responsibility is to arise, dispense with or by any act of his own prevent or omit the performance, the'opposite party is excused from proving a strict compliance with the condition. (Williams v. Bank of United States, 11 Pet., 102.) Thus, if the precedent act is to be performed by a party, and such performance of it is prevented by the absence or failure of the party who has a right to claim it, the law will not permit him to set up the non-performance of the condition as a bar to the responsibility which his part of the contract had imposed upon him.

As a further answer to this objection of the government, the claimants say that there has been a waiver by the government of the condition referred to by taking possession of and holding the claimants’ property. This position is undoubtedly sound. If the title of the claimants has been good enough to justify the government in taking and enjoying the property, it is certainly good enough to justify them in paying for it when that title has never yet been challenged.

The second ground on which the claimants seek to recover is under an implied contract of the government to make just compensation for the property. It follows that if the property has not been taken under the agreement, it must have been taken under the right of eminent domain. - This right exists in the United States, and it has been held that it can neither be enlarged nor diminished by a State. Nor can any State prescribe the manner in which it must be exercised. The consent of a State can never be a condition precedent to its enjoyment. (Kohl v. United States, 91 U. S. R., 367.)

In the case of Langford v. The United States (101 U. S. R., 343), the Supreme Court said: “We are not prepared to deny that when the Government of the United States, by such formal proceedings as are necessary to bind it, takes for public use, as for an arsenal, custom-house, or fort, land to which it asserts no claim of title, but admits the ownership to be private or individual, there arises an implied obligation to pay the owner its just value.”

The rights of the claimants in the present instance clearly arise ex contraetu and not ex delicto. If there be a failure in the completeness and validity of the convention between the government and the claimants, such failure has arisen from the technical incorrectness of forms, which would have been sufficient to bind it had they been entirely accurate. Such defect may deprive the obligation of the character of an express contract, but does not prevent it from falling within the category of implied contracts. It is certainly inconsistent with any pretense that the obligation is ex delicto.

It only remains to determine the amount of the compensation which the claimants are entitled to recover.

The measure of this compensation is defined in the language of the Constitution: Private property shall not be taken for public use “without just compensation.” What compensation is deemed to be just is, at least in some cases, not a novel question. We have been enlightened on the subject by precedents that carry with them the weight of sound reason and commanding authority. The subject has lately undergone careful consideration by the Supreme Court of the United States in the case of the Boom Co. v. Patterson (98 U. S. R., 403), a case which, in most of its features, bears a striking resemblance to that now before ns. The court there say: “The inquiry in such cases must be, What is the property worth in the market,, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted, that is to say, what is it worth from its availability for valuable uses ? Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is unable to put it to any use.” Guided by the light of this authority, it is not difficult to reach a result in the present instance. The adaptability of the claimants’ land and of their water privileges to the purposes to which they have both been applied by the government constitutes a proper element to be taken into account in estimating their value. It is no answer to this view to say that the claimants could not have themselves made as advantageous use of this property. That objection is at once met by retorting that the government could not have made as advantageous use of any other property of a like nature which was indispensable to the objects to be attained. The substitution of such other property would have involved the expenditure, at the very lowest estimate, of double the amount of the cost of the works as they have been located. It is not pretended that the damages of the claimant are to be measured solely by the savings of the government 5 but such savings are not to be lost sight of in determining the value of the property enjoyed.

Although these principles may not lead to the ascertainment with mathematical precision of an exact amount, they nevertheless constitute the rules laid down for our guidance. They are based upon those simple principles of natural justice which commend themselves to minds of ordinary intelligence. Any other rules are beset with intricacies, mathematical calculations, and complications that are too refined and abstruse for the common affairs of life. Thus the ingenious formula presented by the government seems to us especially open to objection. The defendants’ argument is as follows:

How is that market value to be ascertained?
11 Plainly by an examination into the value of the right and power to supply the city of Washington with water; by ascertaining the cost of building the necessary dam, constructing the conduit and reservoirs, laying the mains, keeping the whole affair in order, paying the salaries of clerks, officers, laborers, and watchmen; and the difference between the income to a company supplying Washington with water, on the one hand, and interest on the outlay plus running expenses on the other, would represent the actual annual sum which any person could afford to pay for the use and occupation of the soil of the Great Falls Company, and of the soil of every land-owner (including the United States) between Washington and Great Falls, over which the water is carried. When that difference is ascertained and apportioned among the several owners in proportion to the value and extent of their contribution, we would know how much the plaintiff should receive per annum, and that sum would represent the interest on the actual value of so much of Conn’s Island as we have taken, and would be the very best evidence of its market value, in reference to its adaptability for an abutment to a dam that would supply Washington with wnter.”

This solution of the problem is beset with difficulties and entirely impracticable. The simpler and primitive result at which the commissioners arrived is more readily comprehended, and more satisfactory.

The judgment of the court is that the claimants recover, as compensation for all past and future use of land and water rights, as set forth in the finding, and conclusion of the court, the sum of $15,592.

Drake, Ch. J.,

dissenting:

It is with some regret that I feel constrained to dissent from the views taken by the majority of the court in this case; for, assuming the claimant’s ownership of Conn’s Island, I think compensation for the use made by the government of its property in abutting the dam against that island ought to be made. The amount allowed by the court, though much more than I would feel justified in giving if the matter were subjected to my sole judgment, is not the ground of my dissent. If I considered that in this action there could be a recovery at all, I would not base a dissent on the mere amount allowed, but would yield that point to the judgment of my brothers. The grounds of my dissent refer to other matters.

The petition presents alternative grounds of recovery; first, upon the award of the arbitrators under the agreement of arbitration entered into between the Secretary of the Interior and the claimant; and if the court should hold the latter not entitled to recover under the award, then the claimant demands, secondly, to recover damages in the nature of a quantum valébat for the use made by the government of Conn’s Island as an abutment of the dam.

I reject the recovery on the first ground, because, in my opinion, the Secretary of the Interior had not any legal authority to enter into an agreement of arbitration as a means of fixing the amount which should be paid the claimant for the use of its property. To bind the United States by arbitration, authority must be given by Congress, and no such authority was given in this case.

But if I am in error in this view, then I dissent from a recovery under the award, on two grounds: first', because the dam which the government constructed was not such as was contemplated in any one of the four plans mentioned in the award; and, secondly, because the agreement of arbitration provided that any award of the arbitrators should not be binding on the United States unless their 'Attorney-General should decide that the Great Falls Manufacturing Company had a valid title to the land used by the United States at the Great Falls; and no such decision appears to have been made by that officer.

If there can be no recovery under the award, there can, in my judgment, be none under the alternative cause of action set out in the petition; for there does not appear any authority from Congress to construct the dam that was constructed, but only a general authority to construct a dam across the Maryland branch of the Potomac Fiver near the Great Falls.” (13 Stat. L., 384.)

If the Secretary of the Interior, in constructing sucb. a dam, needed to abut it on private property, he should have taken legal steps to secure for the government the right to do so, which could have been done in the courts of Maryland. He caused such steps to be taken, and then abandoned that mode of proceeding, and had the dam abutted on the claimant’s property without lawful authority. This was simply a tort on his part and that of the officers who acted under him; and the United States are not liable in any form in this court for damages for any tort committed by any of its officers.

The views which I have expressed in regard to the second ground of action presented by the petition do not seem to me to conflict, but to be fully in accord with those of the Supreme Court of the United States in Langford v. United States. (101 U. S. R., 341.)

That court'there said:

“ We are not prepared to deny that when the Government of the United States, by such formal proceedings as are necessary to bind it, takes for public use, as for an arsenal, custom-house, or fort, land to which it asserts no claim of title, but admits the ownership to be private or individual, there arises an implied obligation to pay the owner its just value.”

What force or effect I might consider those words to have if they stood by themselves, I need not attempt to say; for, connected as they are with other expressions, I consider them to have no bearing on the matter of this court’s jurisdiction of the second cause of action set forth in the petition.

Immediately following these words the court says:

“It is to be regretted that Congress has made no provision by any general law for ascertaining and paying this just compensation.”

Afterwards, in. tbe same opinion, tbe court, referring to tbe jurisdiction of tbe Court of Claims, used tbe following explicit language:

“Tbe jurisdiction of that court bas received frequent additions by tbe reference of cases to it under special statutes, and by .other changes in tbe general law; but tbe principles originally adopted, of limiting its general jurisdiction to cases of contract, remains. There can be no reasonable doubt that this limitation to cases of contract, express or implied, was established in reference to tbe distinction between actions arising out of contracts, as distinguished from those founded on torts, which is inherent in tbe essential nature of judicial remedies under all systems, and especially under tbe system of tbe common law.
“Tbe reason for this restriction is very obvious on a moment’s reflection. While Congress might be willing to subject the government to tbe judicial enforcements of valid contracts, which could only be valid as against tbe United States when made by some officer of the government acting under lawful authority, with power vested in him to make such contracts, or to do acts which implied them, tbe very essence of a tort is that it is an unlawful act, done in violation of tbe legal rights of some one. For such acts, however high tbe position of tbe officer or agent of the government who did or commanded them, Congress did not intend to subject tbe government to tbe results of a suit in that court.”

In my opinon those words settle adversely to tbe claimant tbe question of tbe jurisdiction of this court over tbe second cause of action set forth in tbe petition.

In every view of the case, my judgment is that tbe petition should be dismissed. 
      
       The opinion in this case, read on the 28th February, 1881, was the last opinion delivered hy Mr. Justice Hunt prior to his becoming Secretary of the Navy. '
     