
    ROBERT C. FRIEND v. THE UNITED STATES.
    [No. 17675.
    Decided February 17, 1895.]
    
      On the Proofs.
    
    The Government changes the channel of the Janies River by turning the larger part of the stream through the Dutch Gap Canal. The water in the old channel becomes of less depth, so that the larger class of boats can not approach the claimant’s landing.
    I.When the Government, in the improvement of a navigable river, injures or destroys an adjacent landing by lessening the depth of water in the channel without physical contact with the landing, and without the occupancy or appropriation of the land, there is • no liability under the Constitution.
    II.The character of private property taken for public use, whether corporeal or incorporeal, will not affect the question of liability.
    III. A private easement is property within the meaning of the law as much as the physical substance from which it springs.
    IV. The general policy of river and harbor improvement is not an exercise of the right of eminent domain.
    V.Where the Government does not take property within the meaning of the Constitution and the law, no contract arises. The doctrine of damnum absque injuria embraces many cases where there is damage without a corresponding right to recover.
    
      The Reporters’ statement of the case: '
    The following are the facts of this case as found by the court:
    I. The claimant is the owner in fee simple of a tract of land known as “Farrars Island,” situated in the county of Henrico aud State of Virginia, containing 670 acres, which be acquired under the last will and testament of his uncle, the late Henry Cos, in the year 1888.
    II. During the late war a canal, called the “ Dutch Gap. Canal,” was cut by the military authorities of the United States through the land of the said Henry Cox, who was then living, the effect of this cut-off being to divide his lands and to make an island of that portion devised by him to claimant.
    III. In the year 1889 Col. W. P. Craighill, belonging to the Engineer Corps of the United States Army, in charge of the work for the improvement of the James River, and his assistants, commenced to fill the said river in the bend at the Dutch Gap Canal, opposite to claimant’s farm, by dumping therein deposits of sand, mud, gravel, and other material, and have continued to dump in said river said material, and in consequence the water became and was of less depth in the channel of the river.
    No earth was thrown upon the land of claimant and no physical contact was made with the place of landing.
    IV. After the war Henry Cox, the owner, filled the upper end of the canal by an earthen causeway, which remained until the spring of 1870, when it was washed away, causing an extraordinary flow of water through the canal. The city of Richmond, being interested in the navigation of James River, paid the amount of damages awarded by the commission herein stated. Before the construction of the canal, and up to 1889, there were landings on the James River as it ran by the land of claimant, where the claimant was in the habit of shipping produce and wood to the different markets by boats navigating said river.
    V. In March, 1871, a commission awarded Henry Cox damages and compensation as shown by the following report:
    “ Proceedings of a commission held at Dutch Gap Canal for the purpose of ascertaining the damage sustained by Henry Cox by reason of the cutting and completion of said canal through a portion of his premises.
    “ In pursuance of a suggestion contained in a letter of Major Wm. P. Craighill, U. S. A., dated December 19th, 1870, a copy of which is hereto appended, the following-named persons met, in pursuance of a previous notice, to that effect, at Dutch Gap Canal, at 12 o’clock on tbe 6th. of March, 1871, to wit, James. B. Jones, Olay Drewry, Rich A. Willis, Dr. Carthorn Archer,, and George D. Pleasant.
    “ After having fully viewed the premises and after having-heard fall statements from Mr. Hutton, the engineer in charge of the work, as to its extent and nature, the commission proceeded to take testimony under oath as to the damage that would be sustained by Mr! Cox by reason of opening and constructing said canal.
    “ After having done so the commission, upon full deliberation, unanimously assessed the damages of Mr. Cox as follows:
    “1. The damage suffered by the tract which is cut off from the remainder of his farm, being about 800 acres in extent, they estimated at seven thousand five hundred dollars ($7,500.)
    “2. The damage suffered by Mr. Cox in the appropriation of his land for the puiposes of the improvement they estimated at $100 (one hundred dollars) per acre for so many acres as would be actually used for the improvement.
    “ The foregoing estimates were independent of any speculative or commercial value which the particular locality had by reason of its being the only place where a canal could be cut for the purpose of avoiding the additional length of navigation, and the difficulties connected with the navigation of Trent’s reach and the water circuit around Dutch Gap. It was in proof before the commission that Trent’s reach was subject to a considerable deposit, which from time to time required dredging at great cost, which outlay would be avoided by the use of Dutch Gap Canal. Although it was the opinion of the commission-that these facts gave a speculative or commercial value to the locality, yet the difficulty of estimating such damages was so great, even if it were possible, that they declined to enter upon its computation.
    “There was evidence also before the commission that the upper bank of the canal would be subject to washing, possibly to an extent in the progress of time equal to the width of the river. As, however, it was a matter of doubt whether this process of washing would go on, or, if it did occur, what would be its extent, the commission did not estimate any damages which might result from this cause, but left the same, together with the foregoing matter of speculative or commercial value and the damage thereto, to the determination and adjustment of the parties themselves.
    “Mr. Hutton having assured the commission that effectual measures would be taken to prevent any washing of the lower bank, they did not take into consideration the question of damage from that cause.
    
      “In testimony whereof the aforesaid members of the said commission have hereunto set their hands and seals this ninth day of March, 1871.
    “ Signed.”
    VI. By reason of the filling of James River, opposite to claimant’s farm, the claimant has been practically cut off from the only outlet he had for the transportation of his produce to market, on said river, and has sustained damages to an amount exceeding three thousand dollars.
    
      Mr. John Goode for the claimant:
    IJpon the facts, as shown by the record, is the Government liable? The fifth amendment of the Constitution provides that private property shall not be taken for public use without just compensation. It is not necessary that property should be absolutely taken in the narrowest sense of the word to bring the case within the protection of this constitutional provision; but there may be such serious interruption to the common and necessary use of property as will be equivalent to taking. (Pmnpelly v. Green Bevy and Mississippi Gcmal Company, 13 Wallace, 166.)
    The filling up of the channel of the James River, opposite to claimant’s farm, thus cutting him off from the means of transporting his produce to market and seriously interrupting the common and necessary use of the channel as a property right appurtenant to his farm, is such a taking as by the constitutional provision demands compensation. It makes no difference, as to payment of compensation, whether corporeal property, such as land, or incorporeal, as a franchise, is taken for public use. (Bridge Company v. Bix, 6 Howard, 507.)
    A riparian proprietor whose land is bounded by a navigable river has the right of access to the navigable part of the river and the right to make a landing, wharf, or pier for his own use ortho use of the public. This riparian right is property and is valuable, and the owner can be deprived of it only if necessary that it be taken for the public good upon due compensation. Such an act of deprivation by the Government is an exercise of the right of eminent domain and not a trespass or a tort. (Gates v. The City of Mihoaiücee, 10 Wallace, 497.)
    
      
      Mr. Felix Brannigan (with whom was Mr. Assistant Attorney-General Dodge) for the defendants:
    1. No property right of claimant was appropriated, invaded, or encroached upon by the United States.
    The James Biver and its bed and banks up to high-water mark constitute a public highway, owned by the Commonwealth of Virginia. (Mead et al. v. Haynes., 3 Band., 33; Garner’s Case, 3 Graft., 655; French v. Banlchead, 11 Graft., 136; Code of Virginia [1887], tit. 20, chaj). 60; Lansing v. Smith, 4 Wend. (N. Y.), 20; Arnold v. Mundy, 1 Halst. (N. J.), 74; Hare on Contracts, p. 18.)
    The title to the bed of the James Biver is vested in the Commonwealth of Virginia in trust for the enjoyment of certain public rights by the people of the State and the United States.
    Mr. Justice Gray,-delivering the opinion of the Suéneme Court, in the recent case of Shively v. Boiolby (152 U. S., 24), said:
    “The State of Virginia was held by this court, upon like grounds, to have the right to prohibit persons not citizens of the State from planting oysters in the soil covered by tide waters within the State, Chief Justice Waite saying: ‘The principle has long been settled in. this court that each State owns the beds of all tide waters within its jurisdiction, unless they have been granted away. In like manner, the States own the tide waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the State represents its people, and the ownership is that of the people in their united sovereignty. The title thus held is subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States.’ (McCready v. Virginia, 94 U. S., 391,394.) In Virginia, by virtue of statutes beginning in 1679, the owner of land bounded by tide waters has the title to ordinary low-water mark, and the right to build wharves, provided they do not obstruct navigation.”
    This is the doctrine of the common law, and it applies to the beds of all navigable rivers where the tide flows and reflows, even to the present day in England. (Gann v. The Free Fishers of Whitstable, 11 H. L. Cas., 192, 208, 209.)
    As the tide of the James Biver flows up to the city of Bich-mond, it is unnecessary to argue here that in the United States 4he doctrine also applies to all rivers navigable from the sea above the flow of the tide as well as where the tide flows.
    
      2. The improvements complained of were authorized by law.
    It is a well-known principle that an appropriation by Congress, based upon an estimate submitted for a public work, adopts the plan of improvement and gives it the force of law.
    3. There can be no question as to the power of the United States to improve the navigation of the James River between the sea and the city of Richmond in such manner and to such extent as Congress may authorize without incurring any liability for consequential damages to riparian property owners. ('County of Mobile v. Kimball, 102 U. S., 691; Barney v. Keolmlc, 94 U. S.,,324; McGready v. Virginia, 94 U. S., 391; Wisconsin v. Duluth, 96 U. S., 379; Kill v. United States, 149 U. S'., 593; Shively v. BowTby, 152 U. S., 11.)
    4. Even though the bed of the James River at Farrars Island had been granted to the riparian proprietors, nevertheless, they could not assert any claim for damages resulting from improvements of navigation made there by the United States, because the grant would remain subject to the paramount right of improvement for navigation. (Gann v. The Free Fishers of Whitstable.)
    
    5. Full compensation for all supposed riparian rights which might be injured by the improvements complained of was paid to claimant’s divisor before the work of enlarging Dutch Gap commenced.
    Proceeding under the Virginia bill of rights (Const. 1776, sec. 6; Const. 1870, sec. 8), certain land owned by claimant’s devisor, Cox, was taken, with his consent, for the enlargement of the cut-off in the James River at Dutch Gap, and full compensation, at the rate of $100 per acre, was paid therefor to Cox by the city of Richmond. This was the only private “property” appropriated by the United States to public use at Farrars Island incident to or for the purpose of improving navigation at that place. Neither the Constitution of the United States nor that of Virginia makes any provision in respect of compensation for private property damaged or destroyed for the public benefit. Nor has Congress made any such provision. Hence, in such a case, there is no public liability for consequential damages. (Montgomery v. Maddox, 89 Ala., 181.)
    But in the present case the city of Richmond, without any legal or equitable liability whatever, and merely as a bounty, tendered and paid to claimant’s devisor tbe sum of $7,500 in full compensation for all consequential damages to Ms island wMch might result from the contemplated change of navigation by adapting Dutch Gap Out-off for a highway of commerce.
    In their report the commissioners who assessed the damages at $7,500 said:
    “The foregoing estimates were independent of any speculative or commercial value which the particular locality had by reason of its being the only place where a canal could be cut for the purpose of avoiding the additional length of naviga-tiou'and the difficulties connected with the navigation of Trents Reach and the water circuit around the gap. It was in proof before the commission that Trents Reach was subject to considerable deposit, which from time to time required dredging at great cost, which outlay would be avoided by the use of Dutch Gap Canal.”
    This report was made in March, 1871.
    Dutch Gap had been opened for navigation in 1864 by General Butler, both for the improvement of navigation and as a war measure. Colonel Craighill, of the Corps of Engineers, United States Army, who had charge of the improvement now complained of, reported to his chief in 1892 that “Farrars Island” is not a new name for claimant’s farm, but that there always has been a depression at the location of said canal “through which small boats could be hauled over and thus be saved the distance of 5 or 6 miles around the long bend.” The “long bend” referred to is that part of the James River called “Trents Reach,” which, with said “ depression,” made claimant’s farm an island in a navigable river long before it came into his possession.
    When the said sum of $7,500 was paid to Cox for “damages ” to his land as riparian owner, it was well understood by him and the board of commissioners who assessed the damages, and also by the city of Richmond and the United States engineers, that when Dutch Gap Cut-off would be widened and deepened, as then proposed, it would be a mere question of time when the older channel of the river, by the way of Trents Reach around the bend formed by Farrars Island, would shoal and become wholly innavigable by the accumulation of fluvial deposits. These deposits had been, and were then, a constant and increasing impediment to navigation. This fact was well considered by the board of commissioners in assessing the damages.
    6. The injury complained of resulted from natural causes.
    Colonel Oraighill, of the Corps of Engineers, shows in his report the extent of the fluvial deposits, and makes it plain that the closing of the channel around Farrars Island is entirely due to natural cause. He says :
    “A recent examination shows that while the total deposit of the river itself in the old bend since 1874 has been over 7,250,000 cubic yards, the total actually dumped by the United States in the progress of improvement has been less than 400,000 yards, a small amount as compared with the result of natural causes.”
    7. The improvements of navigation at Farrars Island are an advantage instead of injury to the claimant.
    The maps referred to by Colonel Oraighill show that although all the old “landings” on Farrars Island are above Trent’s Beach Shoals, nevertheless one of the best and most convenient places for a landing on the island is now available at or near the Dutch Gap channel, with uninterrupted navigation therefrom up and down James Biver from Bichmond to the sea. Undoubtedly, therefore, the enlargement of Dutch Gap has vastly improved the outlet to a market from the island, instead of injuring it, exactly as Colonel Craighill predicted in his letter of December 9, 1870,. to Mr. Cox.
    8. In any view of the case the claimant has no cause of action against the defendant.
    What right of property has the defendant taken or invaded? Was the Congress of the United States bound to maintain for all time a navigable channel around Trents Beach at great expense and inconvenience to the public, rather than avail itself of the right of way through Dutch Gap, which had been expressly granted away by claimant’s devisor, and long since dedicated as a public highway?
    If it could be said that the claimant alleges a deprivation of a right of way in the nature of an incorporeal hereditament, the answer is plain that he never had such a right, because either it never existed, or it had been granted away to the public by his devisor, or else the easement had been closed by. natural causes before or after the estate was devised to him.
    
      The learned counsel for claimant cites Purnpelly v. Green Bay Company (13 Wallace, 166) and other cases to prove the well-settled doctrine that compensation should be made the owners of property taken for public use. The liability of the United States in such cases is not denied, but the doctrine has no application here. We have in no sense invaded or appropriated any of claimant’s riparian property rights.
    The immunity of the United States and its officers from suits for consequential damages resulting from the improvement of national highways is clearly expounded by Mr. Justice Strong in Transportation Company v. Chicago (99 U. S., 636). {Montana Company v. St. Louis Mining, etc., Company, 152 U. S., 169; Hill v. United States, 149 U. S., 593; City Council of Montgomery v. Maddox, 89 Ala., 181; Gibson v. United States, 29 C. Ols. R., 18.)
    It is to be observed that the statement of doctrine in Pum-pelly v. Green Bay Company is hardly cited with approval; it is called an extreme qualification, and yet it does not apply ' to the case at bar. The agents of the United States have not invaded Farrars Island; all its land from the interior to the shore down to low-water mark, is, with all its easements, in the full and free use and possession of claimant.
    The claim now presented is not founded upon any contract, express or implied, nor upon any public regulations, nor upon any statute, nor any article of the Constitution; neither does it set forth a case of damages “sounding in tort;” it merely presents a case of dcmnurn absque injuria. We have therefore no occasion to plead any prerogative of exemption from suit. The laws of contract and tort contain no remedy for such a case. Consequential injuries to and depreciation of value of real estate resulting from public improvements must, in the absence of constitutional or statutory law providing compensation therefor, be borne by those upon whom they fall. {Hill v. United States, 149 U. S., 593; Gibson v. United States, 29 O. Cls. R., 18.)
    Owners of land exposed to the invasion of the sea have a right to erect barriers against it though they may be consequentially prejudicial to neighbor’s land; private houses may be pulled down to prevent the spread of fire; defenses maybe erected on private property for protection against a public enemy; highways may be abandoned, or improved for the public convenience, and grades of streets raised or lowered to the great damage of neighboring private property; obstructions may be placed in the beds of navigable rivers, to divert the water from one channel to another and change the course of navigation; but in all such cases, where either private parties or the agents of the Government, in the reasonable exercise of established rights and powers incidentally cause loss or injury to adjoining property, the community regards it merely as a misfortune for which there is no remedy at law or in the forum of conscience. (Sutherland on Damages, 3, 5; South Carolina v. Georgia, supra; Gann v. The Free Fishers of Whitstahle, supra.)
    
   Weldon, J.,

delivered the opinion of the court:

The facts upon which it is alleged the claimant has a right to recover are briefly as follows: The claimant is the owner in fee of a tract of land known as Farrars Island, in'the James River, below the city of Richmond, in the State of Yirginia. He acquired title in the year 1888, as devisee of his uncle, Henry Oox, who owned the land before and during the late war. The tract consists of between seven and eight hundred acres, part in cultivation and part in timber. During the war the military authorities of the United States, under the command of General Butler, cut what is known as the “Dutch Gap Canal,” the purpose of which was to make a passageway for boats across a neck of land, and thus avoid a distance of six or seven miles, which was necessary to be made because of the circuitous route of the river.

After the war the owner, Henry Cox, the devisor, filled the upper end of the canal by an earthen causeway,which remained until the spring of 1870, when it was washed away, thereby causing an extraordinary flow of water through the canal.

In the year 1870 a board of commissioners met, in pursuance of a suggestion, as they state, of Maj. William P. Craighill, U. S. A., at the gap, and determined that the damages to the owner of the land was the sum of $7,500, and $100 per acre for the land appropriated in the construction of the canal.

The city of Richmond, being interested in the improvement of the river, paid the amount to the owner as assessed and determined by the commission. The report appears in the findings of the court.

Before the construction of the canal and up to the year 1889 there were landings on the James River, as it ran by the land of the claimant, where the claimant was in the habit of shipping his produce and wood to the different markets by boats navigating said river.

After the claimant had acquired title as aforesaid the United States, in the improvement of the navigation of said river, deposited a large amount of earth, stone, and gravel in the bed of the river opposite the land of the claimant thereby decreasing the flow of water in the river and increasing it in and through the gap. As a result of such deposit, the landings of claimant became inaccessible except in a high stage of water or by boats of light draft. In making the deposit no earth was thrown upon the land of the claimant and no physical contact was made with the place of landing, the sediment -being dumped in the stream in the deeper portions of the water.

As a result of the acts of the defendants, the convenience and usefulness of said landings became and are very much impaired and the use and occupation of the land of the claimant was injuriously affected thereby, causing substantial damage to claimant.

The facts of this case present the question whether, when the United States in the improvement of a navigable river injure or destroy an adjacent landing by lessening the depth of water in the channel without physical contact with the landing and without the occupancy and appropriation of the land, there is any liability of the United States, under that provision of the Constitution providing for compensation to owners of private property where it is taken for public use.

It is argued by counsel for the claimant that the facts of this case show a taking of private property within the meaning of the Constitution and law, and that in this proceeding he is entitled to a judgment by way of compensation. It is insisted that there has been a diversion o,f the water from its ancient channel, and by that diversion an injury has resulted, which in law is equivalent to the taking of private property.

If in legal contemplation there has been a taking of private property as such, no doubt can arise as to the right of claimant to recover, as the Supreme and tbis court have held in many cases that an implied contract exists whenever the United States appropriates private property, acknowledging it to be such. The character of the property, whether corporeal or incorporeal, will not affect the question of liability. It is the right of value which the law intends to protect against the encroachments of appropriation on the part of the public. (Bridge Co. v. Dix, 6 Howard, 507.) A private easement is property within the meaning of the law as'much as the physical substance from which it springs. A person may have a private easement in flowing water not inconsistent with the public easement. (Walker’s American Law, 304.)

This case in its legal essence is by claimant’s counsel likened to the case of Pumpelly v. Green Bay and Miss. Canal Co. (13 Wall., 166).

In that case, as will be seen by an examination of its facts, there was an overflow of land, and the Supreme Court decided “That the backing of water so as to overflow the land of an individual, or any other superinduced addition of water, earth, sand, or other material, or artificial structure placed on land, if done under statutes authorizing it to be done for the public benefit, is such a taking as by the constitutional provision demands compensation.” It is also said, “ It is not necessary that the property should be absolutely taken in the narrowest sense of that word to bring the case within the protection of the constitutional provision.”

The Supreme Court, in the case of Yates v. Milwaukee (10 Wall., 497), had held before the Pumpelly Case, in substance, that the owner of land bounded by a navigable stream has certain riparian rights, whether his title extended to the middle of the stream or not, and that among these are free access to the navigable part of the stream and the right to make a landing or wharf for his own use or for the use of the public. In that case there was an interference with his right upon the margin of the water to go to and from the navigable portion of the lake, and the court, held that his right to do so could not be destroyed by an ordinance declaring his wharf a nuisance. The process by which the public authorities reached the determination that a nuisance existed was objectionable to the administration of law by which private rights are protected.

The case of Tates is not tbis case in substance. In this case no encroachment has been made upon the landings of claimant. His approach and departure from the land side remain intact; but by the acts of the defendants the stream has been diminished in depth so that he can not approach the landing with large boats as formerly.

Whatever may be said of the liability of the defendants, they were, as they understood it, not in the exercise of the power of eminent domain in the improvement of the river. It was in pursuance of the general policy of river and harbor improvement as recognized by acts of Congress for many years.

Upon the right of the Government to make improvements of that character we quote the very apt and appropriate words of Mr. Justice Strong in the case of South Carolina v. Georgia (93 U. S.,4):

“That the power to regulate interstate commerce and commerce with foreign nations, conferred upon Congress by the Constitution, extends to the control of navigable rivers between States — rivers that are accessible from other States, at least to the extent of improving their navigability — has not been questioned during the argument, nor could it be with any show of reason. From an early period in the history of the Government it has been so understood and determined. Prior to the adoption of the Federal Constitution the States of South Carolina and Georgia together liad complete dominion over the navigation of the Savannah Biver. By mutual agreement they might have regulated it as they pleased. It was in their power to prescribe, not merely on what conditions commerce might be conducted upon the stream, but also how the river might be navigated, and whether it might be navigated at all. They could have determined that all vessels passing up and down the stream should pursue a defined course, and that they should pass along one channel rather than another where there were two. They had plenary authority to make improvements in the bed of the river, to divert the water from one channel to another, and to plant obstructions therein at their will. ***** * *
“'It is not, however, to be conceded that Congress has no power to order obstructions to be placed in the navigable waters of the United States, either to assist navigation or to change its direction by forcing it into one channel of a river rather than the other. It may build light-houses m the bed of the stream. It may construct jetties. It may require all navigators to pass along a prescribed channel, and may close any other channel to their passage. If, as we have said, the United States have succeeded to the power and rights of the several States, so far as control over interstate and foreign commerce is concerned, this is not to be doubted.”

As was said by this court in the case of Gibson (29 C. Cls., R., 28), “ the right of the Government to improve the navigable rivers of the United States is beyond question. Millions of dollars have been spent every year for that purpose; and since the celebrated case of Gibbons v. Ogden (8 Wheaton, 11) the absolute jurisdiction of the United States over the navigable streams of the country has been unquestioned. In that case it is said: “ The acts of the legislature of the State of New. York giving to Robert E. Livingston and Robert Fulton the exclusive navigation of the waters within that State by boats moved by fire or steam for a term of years are repugnant to that provision of the Constitution of the United States which authorizes Congress to regulate commerce, so far as said act prohibits vessels licensed according to the laws of the United States for carrying on coasting trade from navigating said waters by means of fire or steam.”

If theUnited States had a right to improve the James River, and acted in pursuance of that right, upon what principle can they be held for the consequential damage incident to the •exercise of that right? The question of the State’s liability in the improvement of a highway became the subject of judicial determination in the case of Transportation Company v. Chicago (99 U. S., 635), and we again quote from that eminent jurist, Mr. Justice Strong:

“Acts done in the proper exercise of governmental powers and not directly encroaching on private property, though by its consequence may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the State or its agents or give any right of action. This is supported by an immense weight of authority.”

Speaking of the Pumpelly Case and the Eaton Case, in the 51 N. H., the court says: “ In those cases there was a physical invasion of the real estate of the private owner and practical ouster of his possession.”

If the defendants, in the improvement of the river, have not taken the property of the claimant within the meaning of the Constitution and law, no contract has arisen, and whatever the claimant has suffered in consequence of the acts of the United States is either damnum absque injuria or is the result of a wrong done upon the part of the defendants. Every damage does not necessarily give a right of action. The doctrine of damnum, absque injuria embraces a multitude of cases where serious inconvenience and damage arise without a corresponding right to recover satisfaction in a judicial proceeding. The owner of property within the proper exercise of dominion may do many acts resulting in damage to others and no action will lie for such acts. If the United States had a right to improve the river by a diversion of the water -in and through the gap and they exercised that right without taking the property of the claimant, then no contract could arise, and if damage was done the claimant, the grievance would sound in tort, and for that there is no jurisdiction in this court.

In the case of Gibson (supra) we had occasion to examine and decide the rights of the parties in a matter very similar to the grievance complained of in this case. In that case we said, “In an action to recover damages for impairing a navigable waterway between the main channel of a river and a wharf by the erection of a dike in a stream, which, however, does not encroach upon the claimant’s property, is an action for damages for an injury without there being the element of a contract and is nor within the jurisdiction of the court.” There being no contract established by the facts of this ease, no action arises, and if any wrong has been done the claimant, we have no jurisdiction to adjudicate his damage, and the petition is, therefore, dismissed.  