
    JOHN H. MORRIS v. THE UNITED STATES.
    [No. 17881.
    Decided March 11, 1895.]
    
      On the Proofs.
    
    In the Muskingum River inrprovement a "break in a dam causes a washout, rendering it necessaiy, in the opinion of the defendant’s engineers, to take some of the claimant’s land for the purpose of making a levee and repairing the break. Part of his land is still in the possession of the Government, to be permanently held.
    I. Where the Government takes and permanently appropriates land without asserting a title to it an implied contract arises of which this court has Jurisdiction. (See Sayward’s Case, post.)
    II. Where a break in a dam causes a washout, requiring, in the judgment of the Government engineers, the taking of land on which to erect a levee, and the land so taken is for permanent occupation, an action may be maintained.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. Prior to the 5th day of August, 1386, the State of Ohio improved the Muskingum Eiver in said State in the construction of dams and locks, and had expended a large amount of money in such construction. The State on said date transferred said river, dams, and locks, with all their appurtenances,' to the United States, and since the 7th day of April, 1887, possession, control, and jurisdiction of same has been in the United States. Since taking possession of said river the United States has made large and extensive improvements on same.
    
      II. On tlie 18tb day of January, 1888, tbe Secretary of War submitted to Congress a special report in relation to the Mus-kingum Eiver, in which he stated as follows:
    “War Department,'
    “ Washington City, January 18,1888.
    
    “The Secretary of War has the honor to transmit to the House of Bepresentatives a report from the Chief of Engineers in regard to the Muskingum Eiver improvements in the State of Ohio.
    “ In the river and harbor act of August 5,1886, $20,000 was appropriated for operating the improvements to navigation on the Muskingum Eiver, Ohio, between Zanesville and the mouth of the river, and the United States accepted from the State of Ohio the said Muskingum Eiver improvement under a provision of the same act.
    “ The works constructed by the State were found to be in a condition of extreme dilapidation, and it has been found necessary to allot $190,000 from the indefinite appropriation provided in section 4 of the act of July 5, 1884, in order to repair and keep in operation for one year the locks and dams on the Muskingum.
    “As it also appeared that further repairs would be required, amounting in some cases to reconstruction of the works, the Chief of Engineers was directed to prepare an estimate of the total amount needed to place the works in a proper condition. It appears from the report herewith that $268,218, in addition to the $190,000 allotted for the current year, will be necessary to complete the work of repair now proposed.
    “ In order to place this matter on record, I submit the accompanying reports, to which attention is invited. The action already taken in regard to the works on the Muskingum is found necessary under the requirements of section 4 river and harbor act approved July 5,1884.
    “The reports submitted show that the cost of putting the works in repair and operatin g them for one year will be $458,218, for which Congress has made no special provision, and which, under existing law, musí be paid from the indefinite appropriation referred to for operating and keeping in repair improvements to navigation owned by the United States.
    “The Secretary of War, having no other funds under his control available for this purpose, has drawn on the indefinite appropriation as stated; but there is some question whether a work of repair, amounting in this case to reconstruction of particular works, should not be provided for by special appropriation.”
    That special report, with accompanying papers, was printed, and is House Ex. Doc. No. 108, Fiftieth Congress, first session. (See Annual Eeport Chief of Engineers for 1888, App. B B, VII; also p. 1699 and following, where the special report above referred to is incorporated into the annual report, and especially pp. 1702 and 1705, where the cost of the “ repair” and “reconstruction” of Dam No. 4, known as Beverly Dam, involved in these causes, is estimated at $39,429, and the report made that this dam will have to be extended 100 feet and a new abutment built. Also, the fourth section of the river and harbor bill of 1884 (23 Stat., 147), which is an indefinite continuing and permanent appropriation for operating and keeping in repair improvements to navigation owned by the United States.)
    III. In the repair of one of said dams in the year 1889, commonly called Beverly Dam, because of a break or washout, by which the main volume of the water of the river was diverted from its ordinary course, it was found necessary by the agents and officers of the United States in charge of said work, in order to prevent further injury to said dam, to take (for the purpose of making a levee and to repair said break or washout) part of claimant’s land, and which the defendants are still in possession of and intend to permanently hold for the purpose of maintaining said dam.
    • IV. The said land at the time of said appropriation and occupancy by the United States was reasonably worth the sum of $1,050, upon which said defendants have paid claimant the sum of $360, leaving a balance of $690, which has not been paid.
    V. The said land belonged in fee to said claimant, and in taking the same the defendants did not claim any title to it,. but regarded it as the land of claimant and appropriated it to public use as such.
    
      Mr. W. L. Oole for the claimant:
    ' Even if this contract would have been considered as invalid for informality under section 3744 of the Revised Statutes, still the claimant would be entitled to recover on a quantum meruit the reasonable value of the property, the contract having become executed by the actual appropriation of the property by the Government. (Salomon v. United States, 19 Wall., 17; Olarlc v. United States, 95 U. S., 539; Iron Oo. v; United States, 118 U. S., 37.)
    Although the contract may be void for informality of execution, the price agreed upon therein may and should be adopted as a reasonable price in the absence of other evidence of value. (Salomon v. United States, supra,', Olarlc v. United States, supra.)
    
      But in this case tbe contract not only fixed tbe price, but evidence independent of tbe contract given on bebalf of claimant shows that that price was reasonable.
    Where private property is taken by tbe United States in pursuance of an act of Congress, tbe owner may waive any objection he might be entitled to make, based on tbe want of formal proceedings, and demand just compensation. (United States v. Great Falls Mfg. Go., 112* U. S., 645, 657-6585 Pope v. United States, 26 O. 01s. B>., 13.)
    By tbe Act of Congress approved April 24, 1888 (25 Stat., 94), tbe Secretary of War was authorized and empowered to accept tbe gift of, to purchase, or proceed to condemn “ any land, right of way, or material needed to enable him to maintain, operate, or prosecute works for tbe improvement of rivers and harbors for which provision has been made by law,” and condemnation proceedings were to be in the court having jurisdiction in the State where the land or other property was situated and to be in accordance with the laws of such State. That the Secretary of War and Congress understood that this act authorized the purchase of real estate for the purpose of maintaining the improvement of the Muskingum Biver, and the payment therefor out of the permanent indefinite appropriation of July 5, 1884 (23 Stat., 147), is apparent from the fact that in 1889 $3,300 of that appropriation was used in purchasing land for lock houses at dams Nos. 5 and 8 on said river, which was reported to Congress and not disapproved by it.
    Under the two acts above referred to the Secretary of War had undoubted power to purchase and pay for the land in question, or to proceed to condemn it in the proper court of the State of Ohio. But he saw fit to do neither, but to take it for public use under a promise to purchase, which has not been kept, and although that promise as an express contract may be void the Government is bound to pay a reasonable compensation, and, under the rule laid down in the two cases last cited, this court has jurisdiction to award the just compensation, and in doing so will follow the agreement as to amount unless the same is shown to be unreasonable.
    
      A fortiori this rule should govern in this case, where the entry and appropriation was made with the consent of the claimant. It was important that the Government should have taken this property at once, when the emergency arose. The claimant, instead of insisting that the compensation should be paid before the Government took possession, assented that that it might take possession on the faith of the promise of the officers that the agreed compensation should be paid. From the evidence in the record no doubt can be entertained that had he resisted and driven the Government to condemnation proceedings in the courts of Ohio, where claimant would have been entitled to a jury of his' neighbors to assess damages, he would have obtained at least the price agreed upon, and much more.
    Add to this consideration the fact that the claimant has been kept out of his money for four years, and driven to an expensive suit to recover it, when the Secretary of War had ample power to have paid it at once, and in justice should have done so, there seems to be no ground upon which to urge the court to reduce the claim below what is stated in the requests for findings of facts.
    It is not necessary that property should be actually taken to entitle the owner to compensation; interruption or injury to the use is sufficient. (Pumpelley v. Green Bay Co., 13 Wall., 166,181.) This principle applies to the land rendered useless by the washing out occasioned by extending the dam onto the land of claimant.
    Generally compensation is to be estimated by reference to the uses for which the land is suitable. That part taken which prevents the claimant from reaching the river from his other contiguous land is worth more because of that circumstance and should be increased in price to cover the estimated damage to the balance of the land. (Boom Co. v. Patterson, 98 U. S., 403; Kerr v. South Parle Comers, 117 U. S., 379.)
    
      Mr. George H. Gorman (with whom was Mr. Assistant Attorney-General Bodge) for the defendant :
    The correspondence referred to between the claimant and the officers of the Fmgineer Corps can not be regarded as an express contract between the claimant and the United States, both because the said officers of the Engineer Corps had no authority to make such contract and because even if they had possessed such power, the contract would be void for want of formality. (See Rev. Stats., sec. 3477.) The Government is prohibited by section 3736 of the Revised Statutes from acquiring real estate “except under a law authorizing such purchase.”
    It is true that by act of April 24,1888 (25 Stat., 94), the Secretary of War was authorized and empowered to accept the gift of, to purchase or proceed to condemn “any land, right of way, or material needed to enable him to maintain, operate, or prosecute works for the improvement of rivers and harbors for which provision has been made by law; ” and under th at statute the Secretary would doubtless have had power to purchase this land had he seen fit to do so. But the offieers of the Engineer Corps were not authorized to bind the G-overnment in a contract of purchase, even if formally executed. The promise of an officer of the Government, unless authorized by law, is not binding. (Stansby v. United States, 8 Wall., 33.)
    There being no express contract, then recovery can only be had upon the theory that the Government has taken from the claimant private property without just compensation, contrary to the provision of the Constitution in that particular, the jurisdiction of this court being invoked upon the assumption that the law implies a contract to pay therefor, with which this court is invested with jurisdiction under the Tucker Act. But inasmuch as the Tucker Act gives this court jurisdiction only over contracts, express or implied, which do not sound in tort, it becomes necessary to inquire whether the acts of the officers of the Engineer Corps, by which 7 acres of the claimant’s land was washed away or destroyed, were tortious acts, so as to place the case within the inhibition of the Tucker Act.
    If it be conceded, under the authority of Pumpelley v. Green Bay do. (13 Wall., 166), that the permanent flooding or destruction by water of land by the Government is an exercise of the sovereign right of eminent domain, and is such a “taking” as is contemplated by the fifth amendment of the Constitution, the question then remains whether that liability can be enforced in the Court of Claims.
    In the case of United States v. Great Falls Go. (112 U. S., 645) the Supreme Court held that under section 1059, Revised Statutes, the Court of Claims had jurisdiction to hear and determine actions against the United States for actions growing out of the taking by the United States of private property for public use, upon the ground that such actions were founded “upon an implied contract with the United States.” In that case tbe Government took tbe land and water of tbe claimant and applied it to a public use under and by virtue of an act of Congress expressly directing tbe executive officers of tbe Government so to take and apply that particular property. No sucb state of facts exists, however, in tbe case at bar. Here the allegation of damage results from storms tbat caused a washout which washed away tbe plaintiff’s land; and this washout was, it is alleged, caused by tbe negligent and improper building of an abutment and extension of a dam by tbe officers of the defendant in and about tbe plaintiffs land. Tbe Government has not asserted title to tbe claimant’s land, nor is it shown tbat tbe Government has been in anywise enriched by reason of tbe damage or destruction thereof.
    Keener on Quasi-Oontracts, page 160, says: “In order tbat tbe doctrine of tbe waiver of torts may apply, tbe defendant must have unjustly enriched himself thereby.”
    And it has been held in a long line of cases running back to Lord Mansfield that a tort feasor who merely inflicts an injury upon another and does not thereby enrich himself can not be held to answer in an action ex contractu, and there is, therefore, in sucb cases no “implied contract” suchas is necessary to give this court jurisdiction. (Hambly v. Trott, Cowp., p. 371; Webster v. Dririkivater, 5 Greenleaf (Me.) Rep., p. 275; Tight-myer v. Mangold, 20 Kans. Rep., p. 90; Patterson v. Prior, 18 Ind. Rep., p. 440.)
    Since tbe opinion of tbe court was rendered in tbe United States v. Great Falls Go., supra, tbe jurisdiction of the Court of Claims has been changed and modified by Act of March 3, 1887 (24 Stat. L., p. 505), which gives tbe court jurisdiction of claims founded, among other things, “upon any contract, express or implied” (following so far the language of section 1059, Revised Statutes, and adding) “ or for damages, liquidated or unliquidated, in cases not sounding in tort,” etc.
    From a very early period in the common law the courts have upheld the fiction that the same acts may in certain cases constitute concurrently a tort and an implied contract, and that in such cases the person aggrieved may elect to complain in either form. But they have uniformly held that such election goes only to the remedy, and can not change the tortious character of the act itself nor convert the grievance into one “ not sounding in tort.” {Huffman v. Hughlett; McArthur et al., 29 0. Cls. R., 191.)
    
      Conceding, then, for the sake of this argument, that the action of the Government’s agents here complained of constituted an implied contract to pay claimant such damages as he might suffer, is it not equally true that said action at the same time constituted a tort, and damages for it could be recovered of the United States if it were suable as a private person in an action of trespass on the case1? No matter if it is an implied contract, it is also u a case sounding in tort,” and therefore falls within the prohibition placed upon the Court of Claims by act of March 3,1887.
    The above considerations apply to the land that was washed away, which constituted the greater part of the claim. The value of the small amount of land used to rest the abutment on and for repairs after the flood is doubtless recoverable, less the amount already paid which follows in the next subdivision unless prevented by the considerations. It cam not be determined from the evidence just what this amount is, inasmuch as each claimant sues for the amount of laud destroyed by the flood and the amount taken for the above purposes as a whole, without designating the number of acres each; and the negotiations between the claimants and the engineer officers appear to have been conducted wholly upon that basis. This information, however, can doubtless be obtained from the Chief of Engineers on call from the War Department.
    At the time the United States acquired this property as the transferee of the State of Ohio the said Beverley Dam No. 4 was in existence, together with the abutment, on and about the lands of the plaintiffs, and it was only about the reconstruction and repair of those works, if at all, that the damage to the plaintiffs’ lands occurred.
    The constitution of the State of Ohio (Article YIII, section 4) provides: “Private property ought and shall ever be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the owner.”
    Under this constitution it has been held that the power to appropriate property for public use is inherent in every government; but this power must be exercised for objects strictly public, and the Constitutions of the United States and of the State of Ohio in ,all cases require compensation to be made to tbe individual deprived of Ms property. {Cooper v. Williams, 4 Ohio, 253, affirmed 5 Ohio, 391, and Lee Le Clerg v. Gallipolis, 7 Ohio, pt. 1, 217.)
    A law which authorizes private property to be appropriated for public use without providing compensation to the owner is void. (Foote v. Cincinnati, 11 Ohio, 408.)
    Every presumption is to be taken in favor of the due administration of law. It is to be presumed that the legislature of' a State passes only such laws as it is authorized to pass by the State constitution, and that the officers of the State, in the administration of its affairs, pay due regard to the constitutional rights of its citizens;
    The record furnishes no evidence to the contrary, and, therefore, it will be presumed that the State of Ohio had acquired, in a constitutional and lawful way, the right to place this dam, abutment, and embankment on the claimants’ land, together with all rights, easements, and servitudes that were incident or necessary to the enjoyment of that right, and that the claimants or their predecessors in title, and all other adjacent property owners, had been duly and properly compensated therefor in the manner prescribed by law.
    And when this was done, it was done for all time. It is a doctrine often repeated in the decisions that the damages must be assessed once for all, and that when once assessed according to law they include all the injuries resulting from the particular appropriation and from the construction and operation of the works in a reasonable and proper manner for all time to come. {Kimball v. Canal Co., 1 Ind., 285; Montgomery Gravel Roacl v. Stockton, 43 Ind., 328; Railroad v. Combs, 10 Bush, 382; Gordon v. Tucker, 6 Maine, 247; C. & 0. Canal v. Grove, 11 G~. <Ss J., 398; Rotule v. Railroad, 112 Mass., 334; Bailey v. Woburn, 126 Mass., 416; MeCormieJc v. Railroad, 57 Mo., 433; Dearborn v. Railroad, 24 N. H., 179; Perley v. Railroad, 57 N. H., 212; Water Power Co. v. Chambers, 13 N. J. Eq., 199; Van Sclioick v. Canal Co., 20 N. J. L., 249; Tucker v. Railroad, 27 Pa. St., 281; Railroad v. Gilleland, 56 Pa. St., 445.)
    Where property has been taken for public use and becomes vested in the State or in a corporation or individual for such use, the right so acquired may be transferred in such manner as may be authorized by law. So long as the use is not changed it is immaterial to tbe owner by whom tbe right is exercised. As all such rights emanate from the State, and corporations and individuals are but its agents to effect a public object, such transfers amount to nothing more than a change of the agency selected to carry out the public purpose, Such transfer does not, in any sense, amount to an abandonment so as to permit any previously acquired right, title, or easement to revert to the owner of the land, as will be seen by an inspection of some of the great mass of cases, almost of daily occurrence, in which such transfers have been made by railroad, canal, turnpike, and water companies, and the like. (Chase v. Sutton Mfg. Co., 4 Cush., 152; People v. Railroad, 3 Mich., 496; Smith v. Mc-Adams, id., 506; Noll v. Railroad,-32 Iowa, 66; Harrison v. Lexington, etc., Co., 9 B. Mon., 470; Barlow v. Railroad, 29 Iowa, 276.
   Weldon, J.,

delivered the opinion of the court:

This case as presented by the amended petition is a proceeding seeking pay from the defendants, for the value of land appropriated and used by them in the improvement of the Muskingum Biver, in the State of Ohio.

The State, after having spent large sums of money in the improvement of the Muskingum Biver, in the year 1886, transferred it with all its appurtenances to the United States, and the United States upon acceptance of such transfer continued the policy, of improvement and have spent large sums of money, which from time to time have been appropriated by Congress.

In the year 1889 the officers and agents of the United States, in pursuance of such policy of improvement, appropriated and have since permanently occupied the land of the claimant, recognizing at the time of such appropriation that the land belonged to the claimant, and that the United States did not lay any claim to it as public property. The value of the land at the time of the taking was $1,050, upon which the United States have paid $360, leaving a balance of $690. Whatever may have been thought of the jurisdiction of this court in its early history, in cases where private property has been taken in the exercise of the right of eminent domain, it is now well settled by many decisions of the Supreme and this court that upon tbe taking, as incident to tbe exercise of tbe power.of eminent domain, there arises an implied contract, upon wbicb a suit may be brought and successfully maintained in this court. Tbe cases are so numerous settling tbe law in favor of tbe right to recovery that it is unnecessary to cite them. Tbe judgment of tbe court is that tbe claimant recover tbe sum of $690.  