
    JACOB P. CLARK v. THE UNITED STATES.
    [No. 20520.
    Decided June 2, 1902.]
    
      On the Proofs.
    
    The suit is brought upon the theory that the Government took an entire lot of land for the overflow of a waste weir of the Washington Aqueduct. The court holds that the claimant is entitled to compensation for only the portion of the land actually affected by or taken for the weir, and remands the case for further proceedings. Upon resubmission the court now bounds the tract of land which is in legal effect appropriated by the United States.
    Where the Government enters upon a tract of land without designating the portion to be taken for public use, and the owner brings an action for the value of the whole tract, the court will institute proceedings to ascertain how much is absolutely required by the Government, and will designate the portion so taken by metes and bounds and render judgment for the value thereof.
    
      The Pejoorters1 statement of the case.
    The following are the facts of the case as found by the court:
    I. The plaintiff, since April, 1891, has been the owner in fee simple of all that piece or parcel of real estate situate in the county of Washington, in the District of Columbia, known as block No. 3 in the subdivision of Jacob P. Clark and Edward P. Cottrell, trustees, of lot 3 and part of lot 2 jn Whitehaven, for the Palisades of the Potomac Land and Improvement Company, as said subdivision is recorded in the records in the office of the surveyor for the District of Columbia, in County Book 7, at page 93, subject to a right of way conveyed to the Washington and Great Falls Electric Railway Companj’ by deed dated July 9, 1896.
    The said lot 3, after the deduction last aforesaid, contains 161,019 square feet of surface.
    
      II. For the purpose of furnishing the city of Washington with a supply of water, the United States, prior to said time, constructed and has ever since maintained upon land belonging to them, abutting the land of claimant, in the District of Columbia, an aqueduct from the Great Falls of the Potomac River in the State of Maryland, to the distributing reservoir near the city of Washington, hereinafter referred to, said aqueduct consisting of an underground conduit about 9 feet in diameter with a macadamized road on top thereof, the entire supply of water for said city passing through said conduit.
    Said aqueduct or conduit was constructed in the year 1857; is a heavy masonry structure, consisting of dams with wing-walls, and is an indispensable adjunct of the waterworks. The conduit is supplied with 3 waste weirs, one of which, No. 3, is near the land of claimant, to wit, near the southeast corner of block Ro. 3.
    III. The conduit terminates in what is known as the distributing reservoir, situated a short distance west of the western limits of the city of Washington, and along the line of the Conduit road aforesaid. At a point along the line of said conduit, in the District of Columbia, at a distance of about 2 miles west of said distributing reservoir, there is maintained by the defendants as a further part of said water system another large bodj’- of water called the receiving reservoir, said reservoir being established to hold a water supply sufficient to supply the needs of the city in the happening of an accident which would prevent the supply being secured direct from the Great Falls of the Potomac, as aforesaid.
    IV. For many jmars prior to 1891 said receiving reservoir remained unused by the Government of the United States, the water supplying the necessities of the inhabitants flowing directly through said conduit from the Groat Falls into said distributing reservoir. The condition of the water secured directly from the Potomac River, as aforesaid, depended upon the condition of the river, and by reason thereof, at frequent intervals, the supply of water to the inhabitants of the city was unfit for use. In order to overcome the difficulty the defendants began the improvement of the receiving- reservoir by excluding therefrom all drainage water from the land contiguous thereto, and by diverting the streams that theretofore ran into the samo; and thereafter, to wit, since the year 1894, has caused the flow of water supplying the inhabitants of said city to pass through into said receiving reservoir, where the same is permitted to remain a sufficient length of time to settle before entering said distributing reservoir.
    Y. The conduit between the receiving and distributing reservoirs, which are 2 miles apart, was emptied nine times between September 1, 1891, and February 19, 1897. In each case the entire volume of water in this section of the conduit, amounting to about 645,700 cubic feet, was discharged through wasteweir No. 3 in a period of about five or six hours. During the same period (from September 1, 1891, to February 19, 1897) the water was shut off from the distributing reservoir on an average of about two or three times per annum, causing a spill over the top of wasteweir No. 3, amounting to a maximum of about 1 cubic foot per second, and lasting less than twenty-four hours on each occasion. In addition there has been nearly always a slight leakage through the wasteweir, averaging, generally, less than a cubic foot per second, and of late less than one-fifth of a cubic foot per second. This part of the conduit is usualty kept filled for the reason that it is under a head of 4 feet in the receiving reservoir.
    YI. In order to provide means for emptying the conduit in the event of a break taking place therein, and for the purpose of repair and in order to regulate the quantity of water passing through the conduit, and for the safety and protection of the distributing reservoir and conduit, three weirs or openings are provided throughout the length of the conduit, the length thereof from the Great Falls of the Potomac to the said distributing reservoir being about Hi miles. Of said wastewoirs, the most important is what is known as wasteweir No. 3, aforesaid, which is between the receiving reservoir and the distributing reservoir aforesaid, and about a half mile above the latter. The purpose of the wasteweir is to enable the defendants to control the height of water in the distributing reservoir, so that the water therein shall neither fall below the height required to give the best possible supply to the inhabitants of the city of Washington nor rise so high as to injure the dam of the reservoir. The overflow from said wasteweir No. 3 is southwesterlj’-, over a part of the land of the claimant and hereinbefore described, to the property of the Chesapeake and Ohio Canal Company, thence in a southerly direction under the road of the said company to the Potomac River.
    YII. Weir No. 3 was located in a natural gully, which has since been filled, except that part below the aqueduct through which the waters from the wasteweir flow. Flowing through this gully, which is rocky, the waters from the wasteweir fall 30 feet in a distance of a little more than 200 feet. At this distance from the wasteweir the water therefrom runs into what is known as the Maddox Branch. The water from the wasteweir meets that of the Maddox Branch at almost a right angle. The gully through which the water flows from the wasteweir is in most places rocky, and not easily washed out except'after many years of wearing away by the stream. Throughout the sides of the gully, except where rocks prevent, there is much undergrowth and vegetation.
    VIII. The gully, up to date of the claimant’s purchase of block 3, had been the natural outlet for the water as it escaped from weir No. 3, but after the claimant acquired his title as aforesaid the overflow from the said weir became much more frequent and the volume of the outlet and overflow became and was much increased, so that the use and occupation of the land described in the ninth finding became to the claimant useless for the purpose for which he intended it.
    IX. The land occupied and appropriated by the defendants in the increase of the flow of water as a right of way of the waste water from time to time discharged from wasteweir No. 3 is described as follows:
    “Commencing at the southeast corner of said tract, running thence southwesterly with the line of Albany' street to a point direetty on Albany street south of a point marking the confluence of the gully1" with the Maddox Branch; running thence from said point on Albany street to said point of confluence; thence east to the right of way of the defendants, and thence south to the place of beginning.”
    Said land so described contains 14,456 square feet of land, which the defendants have used and appropriated since the claimant acquired title as the overflow and outlet of said weir No. 3. The land at the time of the appropriation and after the right of the claimant had accrued as aforesaid was worth the sum of §2,153.
    
      
      Mr. Clarence A. Brandenburg for the claimant.
    
      Mr. George II. Waller (with whom was Mr. Assistmit Attorney-General Bradt) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

The claimant is the owner in fee, as he was at the time of the alleged appropriation of the property herein described by the defendants, of a certain tract of land in the District of Columbia, near the city of Georgetown. The tract at the time of the alleged appropriation contained 164,049 square feet.

For the purpose of furnishing the city of Washington with a supply of water the defendants constructed, and had maintained for man}" years prior to the ownership of plaintiff, upon the land belonging to them and adjoining the land of the plaintiff, an aqueduct leading from the Great Falls of the Potomac to a distributing reservoir near the city of Washington. The aqueduct consisted of an underground conduit 9 feet in diameter with a road of macadam on the top thereof, the water passing through said conduit into what is known as the distributing reservoir, situated a short distance west of the western limits of the city.

About 2 miles west of the said distributing reservoir there is maintained by the defendants what is known as the receiving reservoir, which is to be used in certain contingencies to supply the water necessary to the wants of the city.

In the conduit aforesaid (to be used in the event of a break taking’ place in the same and to regulate the flow of water) three weirs or openings are provided in the length of said conduit, one of which, No. 3, is situated between the receiving and distributing reservoir, about one-half mile above the latter, opposite the land of claimant and adjoining the same.

It is alleged that since the year 1894 there has been a great overflow of water from said weir out of said conduit over and across the land of the plaintiff, to such an extent that the same is practically appropriated to the use and benefit of the United States; that such use is necessary to the maintenance of said conduit and the supply of water to the inhabitants of the city of "Washington, and that because of said use and the necessity of the same there is in fact an actual appropriation of said land to the use and .benefit of the defendants.

The claimant, as shown by the facts found, was, at the commencement of this suit, the owner in fee of the land oyer which the waste water from the conduit of the defendants flowed, having acquired it in April, 1891.

The theory of the plaintiff’s demand is, that the defendants in the use of weir No. 3 have appropriated the land of plaintiff by its use as and for an overflow; that the land subject to that use is practically and substantially taken, in being rendered useless and unfit for the purposes intended in its purchase, to wit, a place of residence. The property was purchased by claimant in the year 1891, and platted for the purpose of being sold for suburban residences.

The case was commenced upon the theory that the whole of lot 3 was appropriated by the defendants as an overflow of wasteweir No. 3, and that in consequence of such overflow there was an appropriation of the entire surface of lot 3; but the court took a different view of the rights of the claimant, and on the 2d of December, 1901, made the following order, to wit:

“This case, in the allegations of the petition and nature and character of the evidence, is founded upon the theory that there has been an appropriation by the United States of land belonging to the claimant in what is known as block No. 3, described in the petition. The tract contains 164,019 square feet of land, and is situated on the west of the defendant’s right of way for the conduit leading from the receiving to the distributing reservoir of the Washington waterworks.
“The court is of the opinion, that a portion of the land is taken or used by the appropriation of the United States, and that as to the land not physically affected by such appropriation the claimant has no right to recover.
“The testimony indicating the value of the land is applicable to the whole tract, and is not confined to so much of the land as, in the opinion of the court, it can be maintained that the United States have appropriated. It is impossible, therefore, for the court to determine in the present state of the evidence as to what are the rights of the party, founded upon the theory of appropriation; and without such theory the plaintiff would not have the right to recover, as the grievance complained of would ‘ sound' in tort ’ and come within the inhibition of jurisdiction as provided by the act of 3d of March, 1881, commonly known as the ‘Tucker Act.’ The condition as indicated by the testimony and plats establishes that the United States have not, by their acts in permitting the water to flow from wasteweir No. 3, over and across the land, intended to appropriate and do not appropriate beyond a certain amount of the plaintiff’s land situated in the southeast corner of said tract No. 3. '
“Inasmuch as the evidence in the case is applicable to the whole tract embraced in lot No. 3, and inasmuch as but a portion of it is needed for the use of the Government, and is only intended to be taken by it, it is the opinion of the court that the appropriation should be confined in the assessment of compensation to a portion of the northeast corner of lot No. 3; and therefore the court suggests that the evidence in the case be circumscribed to the value of that portion of the land ■which may be substantial^ described as follows:
“ Commencing at the southeast corner of said tract, running thence soutlrwesterly with the line of Albany street to a point directly on Albany street south of a point mailting the confluence of the gully with the Maddox Branch; running thence from said point on Albany street north to said point of confluence; thence east to the right of way of the defendants, and thence south to the place of beginning.
“The evidence and exhibits in the case show that the land embraced in block 3 falls abruptly from its north, east, and south boundaries toward the gulljr formed by the Maddox Branch and the gully through Avhich the water flows from weir No. 3, making the entire surface of the block a natural declivity from its three boundaries toward the gully, and in the general direction of the west boundary formed by the right of waj’ of the natural wall.
“The evidence, plats, surveys, and photographs offered in evidence as tending to develop the character of the land also show that, in order to use it for any available purpose, it will have to be filled to the present surface of the surrounding land; that the cut made by Maddox Branch and the gully through which the waste water flows are, by nature, many feet belowtho surfaceof the surrounding land; thatMaddox Branch is a perennial stream, which at some periods of the.year carries a large body of water through the culvert and under the right of way of the defendants; that Maddox Branch must be kept open to afford the overflow of water that comes through the culvert and under the right of way of the defendants; and that a sewer or pipe could be made or laid in the gully leading from the wasteweir so as to connect with Maddox Branch or a sewer and thus accomplish the purpose of carrying the water which accumulates in said block in consequence of the overflow from the defendants’ conduit and the water running through the culvert and across said land by means of the branch.
“It is therefore ordered that this caso be remanded to the general docket with leave to the parties to prepare their case upon the basis herein suggested. If the claimant elects not so to do, he will notify the court within thirty (30) days, when the case will be resubmitted.”

The parties adopted the suggestion of the court, and upon the basis of the order of the court the rights of the parties have been determined.

The land occupied and appropriated by the defendants as a right of way of the waste water from time to time discharged from wasteweir No. 3, as shown in the findings, is described as follows, to wit: “ Commencing at the southeast corner of said tract, running thence southwesterly with the line of Albany street to a point directly on Albany street south of a point marking the confluence of the gully with the Maddox Branch; running thence from said point on Albany street north to said point of confluence; thence east to the right of way of the defendants, and thence south to the place of beginning,” which forms a part and parcel of block No. 3 and is a portion of the land belonging to the claimant after the deduction of the right of way of the Washington and Great Falls Electric Railway Company, as shown in finding i.

Said land so described contains 23,328 square feet of land, which the defendants have used and appropriated as the overflow and outlet of said weir No. 3.

The said land was, at the time and during said appropriation, worth the sum of $3,732.  