
    JOHN HOOD v. THE UNITED STATES.
    [No. 11757.
    Cong. Since the announcement of this opinion a new trial has been allowed.]
    
      On plaintiff’s Motion.
    
    This case is before the court by virtue of a reference under the Bowman Act, having been referred by order of the Committee on Claims of the House of Representatives on the 17th day of February, 1905. The plaintiff, however, seeks judgment under the thirteenth section of the Tucker Act, now section 151 of the Judicial Code. The case originated as a result of improving the Monongahela River in West Virginia for navigation, the plaintiff alleging a destruction of land and a taking under the fifth amendment to the Constitution. The demand of the plaintiff is, first, judgment for the value of the mill franchise, and next for the value of the land and the mill building and machinery located thereon.
    I.Independent of the wishes of the parties, the thirteenth section of the act of March 3, 1887, 84 Stat. L., 505, now section 151 of the Judicial Code, is mandatory for the rendition and entry of judgment by the court. The rendition of such judgment does not preclude the court from making report to Congress according to law.
    II.The franchise for which compensation is claimed should be classed as a claim in the nature of an incorporeal hereditament. The alleged franchise was the right to maintain for use the milldam which plaintiff acquired from Ms grantor, but tMs framcMse was subject to the right of the Government to improve the -river for navigation.
    III. Where a party is, by the State, granted the right to construct a mill-dam in a navigable stream, there is nothing inheritable in such a grant and no right of property vested in the first grantee or any of his assigns.
    IV. Where the State of Virginia grants the right to construct a milldam in a navigable stream and the State reserved the right to withdraw assent for the use of the privilege at any time, the act reserving the right to the State inured to the benefit of the National Government under the constitutional power to regulate commerce between the States.
    V.The Monongahela River was and is a navigable stream. The technical title to the bed of the river was either in the State or in the riparian owner, but the riparian plaintiff had no title superior to that of the State.
    VI.Where a State grants a franchise for the construction of a dam in a navigable stream to create water power with wMch to operate a mill, the right granted is not such as to entitle a party to compensation from the Government for the destruction of said water power in improving the river for navigation.
    
      VII.Where any part of the mill itself constitutes an obstruction so as to interfere with the dominant right of navigation, such use of the bed of the river may he forbidden. The destruction of the property under such circumstances would not constitute a taking within the meaning of the Fifth Amendment.
    VIII.The rule of the common law that fixtures annexed to the realty become a part thereof and subject to existing liens thereon has been held to be subject to many exceptions.
    IX.Where in improving a river for navigation the Government causes the waters of the stream to back up and destroy the water power created by the dam constructed in the bed of the stream, the Government is not liable for the destruction of said water power.
    The Reporter's statement of tbe case:
    The following, are the facts of the case, as found by the court:
    FINDINGS OF FACT.
    I. In the year 1903, and long prior thereto, the claimant was the owner of a tract of land located at Lowesville, on the west bank of the Monongahela River, in Monongalia County, W. Va., comprising about 70 acres and extending along the river bank a distance of about - feet. There was located partly upon and over the bed of said river and partly upon a strip or parcel of said land a gristmill which was operated exclusively by water power supplied and furnished by means of a dam extending entirely across the said Monongahela River, which mill building did not interfere with the navigation of said river.
    The original bank of the Monongahela River intersects the mill at a point nearer the land side of the mill than the water side as set forth in the photograph hereto annexed, marked "Exhibit No. 1 ” and made a part of this finding, which shows practically the whole side of the building projecting over the bank into the bed of the river with three windows in that side. The mill itself projects over the bed of the stream. The mill .wheels are located under the mill building, and necessarily were over the bed of the stream in order to have received the headwater from the milldam.
    The other photograph, marked “Exhibit 2” and made part of this finding, shows the situation and location of the mill and its surroundings as the same appears from the opposite side of the river.
    
      ■¿u e. cis.]
    
      
    
    
      
    
    (Page C70.)
    49 C. CIS.]
    
      
    
    
      H. One Levi Low was formerly the owner of the mill owned by the claimant. At the time of the ownership of Levi Low, to wit, March 15, 1849, the General Assembly of Virginia passed a special act in the words and figures following, to wit:
    “1. Be it enacted by the general assembly, that Levi Low, of the county of Monongalia, is hereby authorized to increase the height of his dam on the Monongahela River 4 feet diminishing its height where it terminates in the river to 2 feet: Provided, That said dam shall produce no impediment to the navigation of the river, and shall at "any time be abated by the county or superior court of Monongalia as a nuisance should it appear that the said dam does obstruct the navigation aforesaid.”
    Thomas Hall and Raphael Hoult owned land on each side of the Monongahela River. On February 26, 1827, these two persons, in pursuance of the provisions of the act of the General Assembly of the Commonwealth of Virginia, passed March 2, 1819, entitled “An act to reduce into one the several acts concerning mills, milldams, and other obstructions to water courses,” instituted proceedings for the purpose of acquiring the necessary rights, from other property owners, to erect a dam across said river for the purpose of building mills on each side thereof, and on July 23, 1827, the county court of Monongalia County entered an order granting the said Hall and Hoult the right and privilege to erect a dam for the purposes aforesaid.
    In Chapter CLXXX of the acts of the General Assembly of Virginia of 1831 appears to be “An act concerning Thomas Hall and Raphael Hoult,” as follows:
    “ 1. Be it enacted by the general assembly that it shall be lawful for Thomas Hall and Raphael Hoult, their heirs and assigns, to erect and keep in constant repair a good and sufficient sluice and windlass or crane and other necessary fixtures instead of a lock and slope, at their milldam across the Monongahela River, in the county of Monongalia.”
    The said dam was built by claimant’s predecessors in interest and has been maintained by claimant for the purpose of furnishing water power to operate said mill. Said dam was an actual impediment to the navigation of the river.
    
      III. In December, 1903, immediately prior to the time the United States completed the construction of Dams and Locks Nos. 13 and 14, that portion of claimant’s property lying contiguous to the said river was well suited for milling purposes, for which it was then being used, and was worth to Mm a sum of money in excess of $3,000.
    IY. In the years 1901-1903 the United States built two ■dams with locks across the Monongahela River; one dam and lock, No. 14, is located about 1,000 feet below or down the river from the mill of claimant; the other dam and lock, No. 13, is located about miles below or down the river from claimant’s mill. These dams and locks were built in the improvement of navigation of said river under authority of acts of Congress.
    Y. The immediate effect of the construction of Dams and Locks Nos. 13 and 14 was to back up the water to claimant’s mill, submerging the basement, and in times of high water a part of the machinery, and destroying the head of water furnished the mill dam. The mill wheels are the only parts of the macMnery wMch are actually flooded at all stages of water.
    YI. Claimant’s said mill was a tMee-story and basement frame structure, supported by a good stone foundation. The framework was of heavy hewn oak timber, and the siding was of good quality of poplar. The mill was covered by a steel roof. Said mill was equipped with a first-class roller process,'including all needful macMnery, and had a capacity of about 5 bushels of wheat and from 8 to 10 bushels of corn per hour.
    ■YII. The mill site (or land upon wMch the.mill building abutted) consisted of about three-fourths of an acre prior to the completion of said Dams and Locks Nos. 13 and 14. The backwater from said locks and dams submerged two-tMrds thereof. The residue, since the completion of said locks and dams, is destroyed by reason of the overflows caused by rises in the waters of said river in times of freshets, rendering valueless for any purposes the entire tract of land consisting of three-fourths of an acre.
    It is 3 or 4 feet from the water in the forebay to the bottom of the mill and the water does not reach the ground floor of tbe mill building, and no part of the machinery in the mill building, except that the ground floor is subject to damage in periods of high water only.
    The mill building is shown in Exhibits 1 and 2, which disclose its location in the bed of the river, adjacent to and abutting against the banks of the river.
    VIII. The milldam, which was about 1,200 feet long, was constructed partly of stone and partly of timber, and extended entirely across the Monongahela River. It was in a reasonably good state of repair in 1903 when Dams and Locks Nos. 13 and 14 were completed by the United States. Said milldam was put in place at a cost of from $1,500 to $2,000.
    IX. The water power furnished by means of the aforesaid dam was sufficient to run said mill at full capacity for about 10 months of the year, and the head of water furnished was from 4 to 6 feet.
    X. The mill building, dam, water wheels, shafting, and all other mill machinery and fixtures were in good condition and repair before the public improvements were made by the United States. After the completion of Dam No. 14 in November, 1903, all of said mill property, including the use of the milldam, was rendered useless for mill purposes. Steam power could not be substituted for water power, because the normal level of the pool is less than 4 feet below the floor of said mill at low-water stage.
    XI. The value of the land submerged and taken was $112.
    
      Mr. Waitman H. Conaway for the plaintiff.
    
      Mr. J. Harwood Graves, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
   Howry, Judge,

delivered the opinion of the court:

This is a Bowman Act proceeding for the alleged taking of private property for public use. The cause was first presented without request in the pleadings for judgment. The court met the wishes of the plaintiff in that regard, as it did in the companion case of Barnes, and authorized report directly to the law-making body where proceedings began. But plaintiff was entitled nevertheless to judgment for the sum found due inasmuch as the statute of limitations of six years had not begun to run when the petition was filed. Independent of the wishes of the parties, the thirteenth section of the act of March 3, 1887, 24 Stat., 505, is mandatory for the rendition and entry of such judgment as became necessary. This course would not preclude the court from making report to Congress according to law. But the result must be stated also in the form of a judgment so that the parties may obtain the opportunity to have the conclusions reviewed in the Supreme Court.

The cause of action originated in the erection by the Government of a dam across the Monongahela River 2 miles below the plaintiffs mill, by means of which the water of the river was thrown back so as to destroy the plaintiff’s milldam and render useless the mill and also the machinery, as it was then and there used, contained in the mill building. The dam and mill which plaintiff had been using before the Government undertook to improve the navigation of the river had been in use for many years. As far back as 1819 the General Assembly of Virginia had passed “An act to reduce into one the several acts concerning mills, milldams, and other obstructions to watercourses.” Under this general law, in 1849, Levi Low (under whom plaintiff derived whatsoever title or privilege there is) was authorized to increase the height of his dam, provided that the same should produce no impediment to the navigation of the river. Subsequently Thomas Hall and Raphael Hoult were authorized to erect and keep in repair necessary fixtures at their milldam on the Monongahela River. Reference to these acts appear in the findings.

The cause was first heard in connection with the case of Barnes v. U. S., 46 C. Cls., 7. The Barnes mill property was dose by the land and mill of this plaintiff. In deciding the present case we stated that the issues in Hood’s case presented substantially the same conditions as in the case of Barnes and called for an application of the same legal principles. To this statement there is exception because, it is argued, no part of the land, mill building, or machinery was rendered valueless in the Barnes case. It is further argued that the Barnes mill, after the improvement of the river, could have been operated by steam power, but that Hood could not substitute steam for water power nor make use of bis mill building for tbe purposes in view when it was built.

The present issues arise on the motion of plaintiff to amend the findings and for a new trial.

The contention of the plaintiff is, first, for the value of the mill franchise; and, next, for the value of the mill building and the machinery in the mill, including water wheels and shaftings.

On these contentions the amended findings show that the alleged franchise was destroyed by the improvement, and that steam power could not be substituted for water power because it was not practicable to convert this water mill into a steam gristmill, inasmuch as there was not room enough for anything of that kind and likewise because the banks above and below were and are constantly being cut away, and when freshets occur water from the river comes up over the floor of the building.

The franchise for which compensation is claimed should be classed as a claim in the nature of an incorporeal hereditament. The privilege constituting the alleged franchise was the right to maintain for use the milldam which plaintiff acquired from his grantor. But the original grant was conditional because of the provision that the dam when constructed should produce no impediment to the navigation of the river. Whenever it appeared that the dam did in fact obstruct navigation it became, under the terms of the grant, a nuisance to be abated, not at the option of the grantee but by the courts, whenever the fact appeared to the authorities. There was nothing inheritable in such a grant, and no right of property vested in the first grantee or in any of his assigns. As we read the acts of the assembly, the original grantee constructed the dam only by permission of the State, with no obligation on the part of the public to provide compensation whatsoever whenever it became necessary for public authority to improve for better navigation. This permit was merely a license, with which the State of West Virginia undertook to make no change.

Plaintiff relies on the authority of the Monongahela Navigation Co. v. United States, 148 U. S., 312, in which it appears that the company had a charter and supplemental to that charter it was provided by the Legislature of Pennsylvania that whenever the construction of sufficient locks and dams to extend the slack water on the Monongahela River from the Pennsylvania line to Morgantown, in Virginia, should be commenced it should be the duty of the navigation company to commence the construction of a lock and dam to extend the navigation. The company was given the right if they did so to collect tolls upon commerce passing through its locks. When these lóeles were taken over by the United States the court recognized the power of the State to grant the franchise. But the appellate court refused to permit the Government to so appropriate the property as to exact the same tolls as the company had been receiving, inasmuch as the State had power to grant the franchise in such way as to make it a vested right. On the facts in the case mentioned it was finally held that the navigation company rightfully placed the condemned lock and dam in the river and that it had a franchise to receive tolls for its use, because it was as much a vested right of property as the ownership of the tangible property.

Here the case is different, as the findings show. Virginia, had the right to withdraw assent for the use of the privilege at any time; and we must assume that the act reserving the right for the State inured to the benefit of the National Government under the power to regulate commerce.

The Monongahela River was and is a navigable river. It was always amenable to the admiralty jurisdiction. Nothing in the local law can be found for it ever to have been otherwise. The technical title to the bed of the river was either in the State or in the riparian owner. But the riparian claimant had no title superior to that of the State.

In United States v. Chandler-Dunbar Water Power Co., 229 U. S., 54, it was held that the flow of the stream of a navigable river is in no sense private property, leaving no room for judicial review at the instance of a private owner of the banks of the stream when Congress determined that such flow was needed for the improvement of navigation. In the case cited it appeared that Congress had declared that all of the lands and property of every kind lying north of the present St. . Marys Falls Ship Canal throughout its entire length and lying between the ship canal and the international line of Sanlt Ste. Marie, in Michigan, was necessary for the purposes of navigation, and acquirement by condemnation had been directed. The compensation awarded the Chandler-Dunbar Co. for its property was $652,332, of which amount $550,000 was the estimated value of water power. The Supreme Court reversed the award for the value of the water power and declared that the company was not the owner of the river or of the inherent power in the falls and rapids, but that all their rights were dependent upon the public right of navigation; that the use of the bottom of the river was proper for the purpose of placing structures in the bed of the water in aid of navigation which did not mean the taking of private property for public use. The court further declared that structures placed in the river and upon submerged land constitute such hindrances to the proper use of the river for purposes of navigation that the removal of such structures might be required and the owners forbidden the use of the river bed whenever injurious to the dominant right of navigation. According to this, if plaintiff’s mill constituted an obstruction to navigation he might have been required to remove it.

In Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U. S., 82, it was held that the deepening, in the interest of navigation, of a channel across a navigable bay, the bed of which was used for oyster cultivation under State grants, was not a taking of the property of the lessee of the oyster beds within the meaning of the fifth amendment. The latter case reaffirmed the principles declared in the Chandler-Dunbar case and made a clear distinction between proprietary rights and estoppel. The Monongahela Navigation Co. case, supra, was rested on estoppel and not on proprietary rights at all. In fact, the owners of the lock and canal (and the franchise to take tolls), which appeared in the Monongahela Navigation Co. ease, had constructed their works on an implied invitation of Congress. The State of Pennsylvania gave the franchise after Congress had acted.

There was no such franchise acquired by this plaintiff in the privilege arising out of his use of the mill dam which furnished the water power as to justify compensation.

We have seen, according to the authorities, that if any part of the mill itself constitutes such an obstruction as to interfere with or conflict with the dominant right of navigation the use of the bed of the river may be forbidden. The destruction of the property under such circumstances would not constitute a taking within the meaning of the fifth amendment.

The banks are the lines which contain a stream in an ordinary state of high water, because the nature of the banks does not generally change, although for some cause they may be temporarily overflowed. The description of what constitutes banks has been applied to the Mississippi River. In Hart v. Board of Levee Commissioners for the Parish of Orleans, 54 Fed. Rep., 559, it was said that “this definition of the banks seems to have been adopted from an early period, being the controlling direction as to what courts shall consider the bed of the Mississippi.” Viewing the exhibits derived from the two photographs (as to the accuracy of which there is no dispute), the Monongahela River is that area extending toward the center and across the river from the natural banks shown by the exhibits. If, then, the exhibits demonstrate that the mill building wholly covered the bed of the stream, does liability arise as for a taking of the mill building and the mill wheel or any other part of the machinery ?

But plaintiff claims the value of the building as a mill, with all the machinery in the mill, including the water wheels and shaftings, upon the theory that when the mill was built and the machinery installed the improvements became a part of the realty and must be valued as a part of the land.

The rule of the common law that fixtures annexed to the realty become a part thereof and subject to existing liens thereon has been held to be subject to many exceptions. Thus, in Virginia, when a corporation possessing the right of eminent domain enters upon lands necessary for its public purposes, under the deed of a mortgagor in possession, and places permanent improvements thereon in good faith, it may-later condemn the interest and title of the mortgagee without being required to pay more than the value of the land without the improvements placed thereon with intent to acquire the entire title. Searl v. School District, 133 U. S., 561; 2 Lewis Em. Dom., sec. 759, 3d ed.; Consolidated Turnpike Co. v. Norfolk & Ocean Co., 228 U. S., 596.

In Hawkins Light House cases, 39 Fed. Rep., 77, it was held that the occupation of lands under navigable waters for the purpose of erecting a lighthouse thereon in aid of navigation was not a taking of private property requiring compensation, the owner’s title being, by necessary implication, subject to the use which the United States had made of it. In reviewing this case the appellate court said in Scranton v. Wheeler, supra, that whatever the- nature of the interest of a riparian owner in the submerged lands in front of his upland bounding on a public navigable river * * * was to be held subordinate to such use of the submerged lands and of the water flowing over them as might be consistent with or demanded by the public right of navigation. This doctrine was affirmed in the Lewis Blue Point case, supra, which declared that the dominant right must include the right to use the bed of the water for every purpose which is in aid of navigation. There is no qualification to be made to this language.

Turning now to the findings in this case we see that plaintiff’s mill building was adjacent to and abutted against the banks of the river. How far in feet or yards it was extended into the river does not appear. It does appear that the building was constructed over the stream and remains there. The photographs set forth as exhibits show the building to be over the stream. Taken together these exhibits, which are a part of the findings, show the rufil building abuts against the banks and rests over the bed of the stream.

It is manifest that the entire sides of the building project from the banks into the river and practically over the bed of the water. There are three windows in the mill which appear on one side, and these three windows are over the water. That the building did project over the bed of the stream is further established by the fact that the mill wheel located under the mill building was flooded and, of course, for mill purposes, was necessarily placed over the bed of the stream in order to have received its head of water from the milldam.

As to the machinery there was nothing to prevent its removal by plaintiff. Nor was there any obligation on the part of the Government to so carry on its improvements as that steam for water power might be substituted and the building put to use as a different kind of mill property. The mill building itself, like the machinery, remains subject to such use as the owner may be able to make of it.

If any part of this mill building is on fast land the proof in the case does not show it. There is some proof as to the cost and value of the building and machinery as a whole, but'there is nothing to show, as stated, that any part of this property was located on the upland. The cause must be decided upon the only tangible proof before us as to the location of the mill. And in so improving the river as to back up the waters of the stream to the destruction of the water power the Government was as much in the exercise of its right to proceed without liability as if in pursuing the same object the occasion arose for public authority to demolish the obstruction. Defendants are at liberty to exercise the right to destroy the property at any time when necessary to aid full and free navigation.

With no proof whatsoever to show that the mill building was built upon the land, but that it was adjacent only to the land and abutted against the banks of the stream, it can not be considered that there was a taking of any of the plaintiff’s improvements. It is possible that the piers supporting the mill building on one side were constructed upon fast land, and if so there might be a small recovery. But the court can not assume anything about it in the absence of proof on that point.

Plaintiff is entitled to recover the value of the submerged land. Report is directed to be made to the congressional body transmitting the cause, and judgment will also be entered for $112 as the value of the property taken.  