
    SANFORD FERRELL v. THE UNITED STATES.
    [No. 30548.
    Decided January 5, 1914.]
    
      On the Proofs.
    
    The plaintiff, a citizen of Marion County, W. Va., in the year 1903, and for many years before, was owner and in possession of a tract of land containing about 8 acres, situated on the banks of the Monongahela River. As a result of the Government improving the river for navigation part of this land is and has been submerged since the closing of the lock in the fall of 1903.
    I. The submerging of plaintiff’s land as a result of the construction of the lock and the impounding of the water was a “taking” thereof by the defendants.
    II. Where the plaintiff owned the land at the time of the “taking, ” but subsequently sold and conveyed it before filing the petition herein to a third party describing it in his deed to that party by metes and bounds, which included his remaining land and that which had been submerged and taken as well, and the action is for the entire damages, the suit should bebroughtin the name of the owner at the time of the “taking” and not by his grantee.
    
      The Reporter’s statement of tfie case:
    The following are the facts of the case as found by the court:
    I. The claimant, Sanford Ferrell, is a citizen of the United States and a resident of Marion County, W. Va. In the year 1903, and for many years before, he was the owner of, in his own right,, and in possession of a tract of land containing about 8 acres, situated in Marion’ County, W. Va. The claimant’s creek bottom land was at that time in a good state of cultivation.
    
      II. Since late in 1903 the Government of the United States has been using the Monongahela River as a navigable water of the United States.
    III. In improving the navigation of this river the United States has built, maintained, and operated in and across the same a certain lock, known as Lock No. 14, thereby causing its waters to submerge a part of said land.
    IY. By the construction and maintenance of said Lock No. 14 the water of said river is caused to flow upon or submerge 1 acre of said land frequently enough each year to destroy said 1 acre of land for any useful purpose, and by reason thereof the owner has been unable to till the land since the erection of said Lock No. 14.
    V. The value of the land so submerged by the maintenance of said Lock No. 14 is $100.
    CONCLUSION OF LAW.
    Upon the foregoing findings of fact the court decides, as a conclusion of law, that the claimant is entitled to recover judgment against the United States in the sum of one hundred dollars ($100), the payment of which, however, is to be upon condition that he execute to the United States a deed in fee simple, free from all hens or other encumbrances, to the 1 acre of ground so submerged.
    
      Mr. Eugene SommerviTle for the plaintiff.
    
      Mr. J. Harwood Graves, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
   Pee. Curiam:

The construction of the lock and impounding of the water submerged about 1 acre of land, and was a “taking” thereof by the defendants, Lynah’s case, 188 U. S., 445, 468. Its value was $100. The claimant owned the land at the time of the taking, but subsequently sold and conveyed his land to a third party, describing it in his deed to that party by metes and bounds, which included his remaining land, and that which had been submerged and taken as well. The claimant’s grantee is not before the court, and the question is whether the claimant, in view of his conveyance, can maintain his action for the taking by defendants prior to his conveyance. Where the action is for the entire damages the suit should be brought in the name of the owner at the time of the taking and not by his grantee, Birmingham Belt R. R. Co. v. Lockwood, 150 Ala., 610; 2 Lewis, Em. Dom., 3d ed., sec. 949, as the deed did not assign the cause of action. However, we have refused to give judgment in this class of cases until a duly executed deed is filed sufficient to vest title to the premises in the United States, and duly approved by the Attorney General or. Treasury Department. A reasonable time will be given for compliance with this rule, and in the meantime judgment will be suspended and the cause remanded to the general docket, and it is so ordered.  