
    EVAN LYONS v. THE UNITED STATES.
    [No. 14442.
    Decided December 8, 1890.]
    
      On the Proofs.
    
    The Government takes land for the Washington water-tunnel, paying the value of that taken, but leaving a narrow, isolated strip inaccessible to the owner. The débris from a shaft is dumped in the bed of a stream above the land of the claimant, narrowing the channel and causing the water to rush by his land without leaving deposits of sand, from which he had previously derived a steady, annual income.
    
      I. The duty of appraisers in condemnation proceedings, generally, is to consider all elements of damage, past and present.
    II. The Washington Water Tunnel Act, 15th July, 1882 (22 Stat. L., 168), provides that “ the appraisers shall only consider the present value of the land without reference to its value for the uses for which it is tahen.” This is merely a direction to allow the actual value; that is, what the land is worth in the market.
    III. The appraisers, under the act, can not consider the question of damages, past or future. Questions of damage are referred by the statute to this court.
    IV. Where the land taken leaves a narrow, isolated strip inaccessible to the owner, he may recover for its diminished value.
    V. Where the débris from a shaft was piled along the bank and in the bed of a stream, so as to narrow the channel and increase the force of the current and thereby prevent deposits of sand and gravel upon land below, from which the owner previously derived an annual income, he is not “directly injured in any property right” within the meaning of the statute.
    
      The Reporters' statement of the case:
    The following are the facts of the ease as found by the court:
    I. In the year 1884 plaintiff was the owner of certain real estate in the District of Columbia,bordering upon Dock Creek. This property was at the date hereinafter set forth used as a mill site, and also for the sale of sand deposited by the stream when it overflowed the land during times of freshet.
    II. In accordance with an act entitled “An act to increase the water supply of the city of Washington, and for other purposes,” approved July 15, 1882 (22 Stat. at L., p. 168.), the officers of the United States took possession of a portion of said real estate for use in connection with work prescribed by said act, which consisted in sinking what is called the Eock Creek working shaft of the tunnel, then being driven to increase the said water supply of the District of Columbia. The property taken is described in the deed set forth in finding vm, and for it plaintiff was paid the sum of $3,500, for which he receipted. (See finding vm.)
    III. The land taken was carved out of the larger tract owned by plaintiff in such manner that the Government property cut off access from the east to a narrow strip, containing about fi-acres, belonging to plaintiff, which lies between the center line of Bock Creek and the western boundary of plaintiff’s tract; this narrow strip is therefore substantially isolated, and plaintiff is now without right of way to it. Plaintiff thereby suffers injury in the sum of $950.
    IY. The right of way “ to and from Mill street, Georgetown,’7 taken through the land on the east side of the creek still belonging to plaintiff, described in the deed set forth in finding Till, divided longitudinally, the land still remaining in plaintiff’s possession in such manner that some 5 acres are cut off from the remainder of his land; but nevertheless both divisions border upon the said right of way. It is not shown that plaintiff has suffered damage by this division of his land.
    V. During times of freshet some gravel and considerable amounts of sand were deposited upon the land taken by the Government and from the sale of this sand and gravel, so from time to time deposited on said land, plaintiff derived an annual average profit of $300.
    YI. Similar deposits were also made below the land taken by the Government and upon land still owned by plaintiff, and these deposits were also sources of income to him. The débris from the tunnel shaft was piled by defendant’s contractors along the bank and in the bed of Bock Creek in such manner as to narrow the channel at least one-half and so increase the force of the current 5 sand and gravel deposits were not thereafter made in the former considerable quantities upon the land still held by the plaintiff below the shaft, as the speed of the current was increased and the sand and gravel are now carried by his land in suspension. The average deposit now is nine-tenths less than before the sinking of the shaft. Prior to sinking the shaft plaintiff derived an annual average profit of $500 from the sale of sand so deposited upon this land.
    YII. Prior to the condemnation plaintiff owned both banks of Bock Creek, at the point of Bock Creek Cemetery wall, as shown in the plat set forth in finding ix ; the Government condemnation deprived him of the east bank at that point, where he could have placed the eastern abutment of a mill-dam; the court'do not find that in this plaintiff suffered any substantial injury.
    
      VIII. May 6,1884, plaintiff sent the following letter to the honorable the Attorney-General:
    “Washington, D. C., May 6th, 1884.
    “ Hon. Benj. H. Brewster,
    “ Attorney-General:
    
    “ Sir : I have the honor to acknowledge the receipt of your circular letter, dated 1st instant, informing me of the report of the appraisers upon the land belonging to me and taken by the United States for the Bock Creek shaft of the new waterworks extension.
    “ I hereby notify you that I accept the award of the appraisers as the value of the land taken, reserving to myself the right to enter suit in the Court of Claims for such damages as I am advised I may be entitled to recover under the provisions of the 1st section of the act of July 15,1882.
    “ In compliance with your request, I enclose herewith a copy of an abstract of my title to the whole tract of which the laud taken and appraised forms a part. That part taken by the Government is described in the report of the appraisers as follows :
    “ ‘ Fifth. Land for the Bock Creek working shaft: Commencing at a stone 27 ft. southeast of the east abutment of “Lyons Dam ” over Bock Creek, and running thence S. 5° 22' W. 41.87 feet; thence S. 37° 2' W. 134.02 feet; thence S. 30° 23' W. 89.77 feet; thence S. 10° 57' W. 150.93 feet; thence S. 4° 28' E. 68.70 feet; thence S. 26° 51' E. 171.98 feet; thence S. 38° 59' E. 170.29 feet; thence S. 50° 56' W. 134.42 feet; thence N. 39° 14' W. 224.43 feet; thence N. 17° 1' W. 211.77; thence N. 13° 10' E. 172.71 feet; thence N. 22° 40' E. 348.02 feet; thence S. 62° 56' E. 114.59 feet; thence to commencement, containing 2 acres 1 rood and 15.509 perches tbfowo' perches, together with the right of way over the road and bridge léading to and from Mill street, Georgetown, conceding to owner of mill-seat and water-right the right to use the. overflow from the mill-race as now located and the right of way across the tract of land above described for the purpose of access to the dam.’
    “ In conclusion, I hereby tender myself ready to sign and execute such deed or deeds as will vest in the United States a good and unencumbered title to said above described tract of land in form satisfactory to you.
    “ Bespectfully yours,
    “ Eyan Lyons.”
    
      On or about August 2, 1834, plaintiff made, executed, and delivered to the United States the following instrument of conveyance:
    “ This indenture, made this second day of August, in the year of our Lord one thousand eight hundred and eighty-four, between Evan Lyons (unmarried) of the first part and the United States of America of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of three thousand five hundred (3,500) dollars in lawful money of the United States to Mm in hand paid by the said party of the second part, at and before the sealing -and delivery of these .presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, enfeoffed, released, and conveyed, and doth by these presents grant, bargain, sell, alien, enfeoff, release, and convey unto the said party of the second part all the following described tract of land, situate and being in the District of Columbia, to wit: A part of the tract called 1 Pretty Prospect,’ contained within the following metes and bounds : Commencing for the same at a stone 27 feet southeast of the eastern abutment of Lyons’s Dgm over Bock Creek, thence south 5° 22' west, forty-one .87 feet (41.87); thence south 37° 2' west, one hundred and thirty-four .02 feet (.134.02) ; thence.south 30° 23' west, eighty-nine .77 feet (89.77); thence south 10° 27' west, one hundred and fifty .93 feet (150.93); thence south 4° 28' east, sixty-eight .70 feet (68.70); thence south 26° 51’ east, one hundred and seventy-one .98 feet (171.98); thence south 38° 59' east, one' hundred and seventy .89 feet (170.89); thence south 50° 56' west, one hundred and thirty-four .42 feet (134.42); thence north 39° 14' west, two hundred and twenty-four .43 feet (224.43; thence north 17° V west, two hundred and eleven .77 feet (211.77); thence north 13° 10' east, one hundred and seventy-two .71 feet (172.71); thence north 22° 40' east, three hundred and forty-eight .02 feet (348.02); thence south 62° 56' east, one hundred and fourteen .59 feet (114.59), to place of beginning, together with the rights of way over road and bridge leading to and from Mill street, Georgetown, conceding to owner of mill site and water right the right to usé the overflow from the mill-race, as now located, and the right of way across the tract above described, to and from his said mill-dam; together with all the improvements, ways, easements, rights, privileges, and appurtenances to the same belonging, or in any wise appertaining, and all the remainders, reversions, rents,, issues, and profits thereof, and all the estate, right, title, interest, claim, and demand whatsoever, whether at law or in equity, of the said party of the first part, of, in,, to, or out of the said piece or parcel of land and premises.
    
      “ To have and to hold the said piece or parcel of land and premises, with the appurtenances, unto the said party of the second part, to and for their sole use and benefit and behoof forever.
    “And the said Evan Lyons, for himself, his heirs, executors, and administrators, doth hereby covenant, promise, and agree, to and with the said party of the second part, that he, the said party of the first part, and his heirs, shall and will warrant and forever defend the said piece or parcel of land and premises, with the appurtenances, unto the said party of the second part, from and against the claims of all persons claiming or to claim the same, or any part thereof, by, from, under, or through the said party of the first part.
    “ And further, that he, the said party of the first part, and his heirs, shall and will, at any and all times hereafter, upon the request and at the cost of the said party of the second part, make and execute all such other deed or deeds or other assurance in law for the more certain and effectual conveyance of the said piece or parcel of land and premises and appurtenances, unto the said party of the second part, as the said party of the second part, or their counsel learned in law, shall advise, devise, or require.
    “ In testimony whereof the said party of the first part hath hereunto set his hand and seal on the day and year first here-inbefore written.
    “ Evan Lyons, [l. s.]
    “ Signed, sealed, and delivered in the presence of, having first been duly stamped—
    “ Charles A. Walter.
    “James H. Saville.
    “ District or Columbia, County of Washington, ss:
    
    “ I, Charles A. Walter, a notary public in and for the District aforesaid, in the said District, do hereby certify that Evan Lyons, party to a certain deed bearing date on the second day of August, A. D. 1884, and hereto annexed, personally appeared before me, in the District aforesaid, the said Evan Lyons, being personally well known to me to be the person who executed the said deed, and acknowledged the same to be his act and deed.
    “ Given under my hand and notarial seal this second day of August, A. D. 1884.
    “Chas. A. Walter, “
    “ Notary PublicP
    
    On or about August 15, 1884, plaintiff signed the following receipt:
    
      [Appropriation for increasing the water supply, of Washington, D. C.]
    “ The United States (for land to extend aqueduct) to Evan Lyons, Dr.
    
    “ August 2, 1884 For payment for land acquired under act approved July 15,1882, and described on deed dated August 2,1884, conveying same to the U. S., as follows :
    “All the following described tract of land, situate and being in the District of Columbia, to wit: A part of the tract called Pretty Prospect, contained within the following metes and bounds, commencing for the same at a stone'27 feet southeast of the eastern abutment of Lyons’s Dam over Kook Creek; thence south 5° 22' west forty-one fL feet (41.87); thence south .
    37° 2' west one hundred and thirty-four -dfo feet (134.02); thence south 30° 21' west eighty-nine fL feet (89.77) ; thence south 10° 27' west one hundred and fifty i°0% feet (150.93); thence south 4° 28' east sixty-eight (68.70); thence south 26° 51' east one hundred and seventy-one feet (171.98); thence south 38° 59' east one hundred and seventy. -n,9,,- feet (170.89); thence south 50°. 56' west one hundred and thirty-four -,%• feet (134.42); thence north 39° 14' west two hundred and twenty-four feet (224.43); thence north 17° 1' west two hundred and eleven fj0- feet (211.77); thence north 13° 10' east one hundred and seventy-two -fy^-feet (172.71); thence north 22° 40' east three hundred and forty-eight feet (348.02); thence south 62° 56' east one hundred and fourteen feet (114.59), to place of beginning, together with the right of way over road and bridge leading to and from Mill street, Georgetown; conceding to owner of mill site and water right the right to use the overflow from the mill-race as now located, and the right of way across the tract above described to and from his said mill-dam. $3,500.00
    
      il Payment authorized by Secretary of War, August 11,1884,
    ■“ Received at Washington, D C., this 15th day of August, 188-, from Major G. J. Lydecker, Corps of Engineer, the sum of three thousand five hundred (#3,500) dollars and (00) cents, in full payment of the above account.
    “ (Signed in duplicate) “Evan Lyons.
    “ I certify that the above account is correct and just.
    “ G. J. Lydeoicer,
    “ Major of Engineers
    
    IX. The following is a plat of the premises in question. The ¡shaded portion beginning at the dam and ending opposite the ■cemetery wall is the part taken by defendants; opposite is the strip described in finding in; from the Government land to the mill is the land described in finding-vi, and still owned by plaintiff, and through it runs the right of way described in finding iy :
    
      
    
    
      
      Mr. John B. Goode and Mr. F. 8. McGalmont for the claimant.
    The act of July 15, 1882, provides for payment for the land without reference to its value for the uses lor which it is taken, and authorizes persons injured to sue therefor in this court (sec. 1). But even if it did not the court has jurisdiction, since the claim is one of implied contract with, the meaning of the statute defining the jurisdiction of the court (27. 8. v. Great Falls Go., 112 U. 8., 646; G. F. Go. v. 27. 8., 16 G. Gis. B., 160).
    The rightof the G-overnmentto take the land is unquestioned, but the right of the owner to just compensation therefor is equally so. The Constitution establishes this principle beyond legislative control. (Pumpelly v. Green Bay Go., 13 Wall., 166; Garrison v. Gity of Few Yorlc, 21 Wall, 196 ; Mills v. U. 8., 19 G. Gis. B., 79.).
    Where real estate is actually invaded by superinduced additions, so as to effectually destroy or impair its usefulness, it is a taking within the meaning of the Constitution (Pumpelly v. Green Bay Go., 13 Wall., 166).
    Congress itself has frequently recognized this principle, notably in the act of March 31875 (Ch. 166,18 Stat. L., 506), in which payment is provided for flowage damages by reason of the improvement of the Fox and Wisconsin liivers therein authorized.
    It is not necessary that property should be absolutely taken, in the narrowest sense of that word, to bring the case within the protection of this constitutional provision. There may be such serious interruption to' the common and necessary use of property as will be equivalent to a taking within the meaning of the Constitution. (Pumpelly v. Green Bay Go., 13 Wall., 166.)
    Compensation to the owner is to be estimated by reference to the uses for which the appropriated lands are suitable (Boom Go. v. Patterson, 98 27. 8., 403 [408], and cases cited; Gt. F. M. Go. v. 27. 8., 16 N. & E, 160 [198J).
    The adaptability of the lands for the purposes of a boom was therefore a proper element for consideration in estimating the value of the lands condemned (Boom, Go. v. Patterson, 98 27. S., 403 [409]).
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Ootton) for the defendants.
    The real contention of the claimant seems to be that the property was appraised too low. Whether such was the fact or not is not material. He accepted the offer made and conveyed the land. He is estopped from pleading want of proper consideration.
    The cases cited by claimant are of the highest authority and are submitted in behalf of defendant to the consideration of the court.
    It is to be assumed that all proper elements that should enter into the valuation of the property were considered by the appraisers and regarded by claimant when he made his deed. Many additional cases, also of high authority, might be cited to show that the damage done by the taking and contemplated construction to adjoining property of the owner should be considered in the appraisement.
    In assessing damages, by reason of the taking of lands by railroad companies, the advantages as well as disadvantages are considered. In the present case the question of advantage would not properly be a set-off to disadvantage. The act provides that payment should be made for the land without reference to its value for the uses for which it is taken. This seems to have been strangely misinterpreted as a justification for the present claim. It simply means that the necessity for the use of a particular piece of land for aqueduct purposes shall not be considered as an element of value, that only its value for other purposes should be considered. The title having passed, the right to use the lands for legitimate purposes follows.
   Davis, J.,

delivered the opinion of the court:

It is contended upon plaintiff’s behalf that, through the construction of the aqueduct in the District of Columbia, he was directly injured in certain property rights, not included in the appraised value of the land taken from him under condemnation proceedings. The property in question borders upon Hock Creek near the Oak Hill Cemetery; most of it is on the east bank of the creek; at the upper end is a mill-dam, at the lower end is the mill; a short distance below the dam and above the mill is the land taken by the Government for a shaft, while opposite the land so taken by defendants and upon the western bank of the stream is a narrow strip of land which still belongs to plaintiff. The income from this property was derived first from the mill, and as to that there is no question here, and second from sand which was deposited upon the land still owned by plaintiff. This deposit the Government works at the shaft (above his present possession) have reduced through a narrowing of the stream and a consequent increase in the speed of the current which now holds the sand in suspension as the water passes his land. Another point made is that the Government land was so carved out of plaintiff’s property as to isolate the narrow strip upon the western bank. Other inj uries are alleged, which we shall consider in their order.

• The property condemned was appraised in accordance with the Act of July 15,1882 (22 Stat. L., p. 168), by a board whose duty it was “to fairly and justly value the same;” the amount fixed by this board was accepted by the plaintiff, a deed was executed by him, and he was paid.

The duty of appraisers in condemnation proceedings generally is to consider all elements of danger, past and present, as well as any future damages which the improvement may reasonably produce; and any damage (not resulting from negligent or unskillful construction) is presumed to be included in the assessment. (Mills on Eminent Domain, 216.)

We have now to inquire whether the statute under which ■the appraisement in this case was made contains any provision ' changing the general rule.

One of the sections of the act provides that:

“ The appraisers shall only consider the present value of the land without reference to - its value for the uses for which it is taken under the provisions of this act.”

This provision has no effect upon plaintiff’s rights, it is merely a direction to the appraisers to allow the actual value of the land as distinguished from its value for tunnel purposes ; that is, to allow what it was worth in the market, not its value to defendants for the special and unusual use for which it was destined. The value of land for engineering purposes might well be much more or much less than its value in the market for ordinary purposes; any such artificial value Congress by , this provision of the statute eliminates from the question submitted to the appraisers.

The appraisers are directed to “ fairly and justly value ” the •tract of land; the Attorney-General is thereafter to pay “ the amount fixed by the appraisers as the value thereof.” Nothing here is intimated about a consideration of damage, past, present, or future; on the contrary, the plain meaning is, that the value to be appraised is not that of rights which plaintiff may lose by the condemnation, not of the injury to other property owned by him adjacent to that taken, but the fair and just value of the land actually appropriated, and that alone. There might be some hesitation in reaching this conclusion because of the injustice to the individual owner, were it not for the protecting feature of a succeeding provision, designed evidently to cover loss by incidental damage not included in the bare value of the land condemned. The statute further provides, in substance, that when a person having any estate or interest in any of the lands condemned shall for any reason not have been tendered payment of the sum fixed by the appraisers, or shall have declined to accept the amount tendered therefor, or when any person who, by reason of the taking .of said land, or by the construction of the aqueduct works, “ shall be directly injured in any property right,” that person may sue in this court for damages.

The plaintiff herein has accepted the amount offered for the land actually taken, so no question in regard to that land is before us. What he asks now is compensation for injury to other property adjacent to that condemned, caused by two things; first, the taking of the land; second, the construction of the works. The taking of the land cut him off from access to other land owned by him ; the construction of the works has destroyed a certain benefit he has hitherto enjoyed in land still held by him below the tract now occupied and owned by defendants.

Whether damages of this nature would or would not, under ordinary circumstances, be included in an appraisement in condemnation we need not now inquire, for the statute in question seems to demand of the appraisers simply a fair valuation of the land actually taken, and refers to this court every question of damage. Congress evidently intended to submit to the appraisers one question only, the fair and just value of the land, and to send to this court all questions of damage. The plaintiff, being satisfied with the award for the land, has accepted it, receipted for the money, and executed the deed. His damage, however, has never been considered in any forum, and no other forum than this court has any power to grant him a remedy should his complaint be well founded. The case is therefore properly before us, and we shall inquire whether the plaintiff has been “ directly injured ” íd any property right by the taking of the land or by the construction of the tunnel.

.The force and effect of the word “ directly ” we have already considered in the case of Alexander and Little v. The United States (25 C. Cls. R., 87, 329), where we held that in using this word “ Congress intended to limit the responsibility of the defendants against such damages as might be remotely connected with the work contemplated by the act and not against consequential injury, which might directly result from the prosecution of the work; ” further, “ Congress [in using the term {directly injured’] intended to legislate against the claims for damages not directly traceable to the construction of the work authorized by the terms of the law; ” in fact, the word “directly” not having a technical significance in the law, must be understood in its colloquial sense; that is, the injury complained of must have been proximate and actual.

When defendants appropriated the tract of land now in their possession, they so carved it out of the greater tract owned by plaintiff as to separate a small strip on the western bank of Eock Creek from the land retained by plaintiff upon the east bank; that is, the land taken by defendants is opposite a strip owned by plaintiff; thus, it is alleged, does plaintiff suffer a double injury; first, in that he is deprived of'any right of way to the western strip; second, in that he had lost the right to place a dam across the creek, as the proposed point of eastern abutment is now held by defendants. Upon this second claim the findings of fact are adverse to plaintiff and we need not further consider it. The isolation of the western strip is a damage to plaintiff, and is a damage which flows directly from the taking of the property; the land is inaccessible and its value is lessened in the sum of $950. (Galena and Southern Wisconsin R. R. v. Birkbeck, 70 Ill., 208; Peoria, Atlanta and Decatur R. R. Co. v. Saicyer, 71 Ill., 361.)

Having taken and paid for the land, defendants sunk thereon a shaft; the rock taken from this shaft was deposited by the contractors upon the shore of Eock Creek in such manner as to narrow the stream. It is not contended that the stream was diverted, but only that it was narrowed; that by this narrowing the velocity of the current was increased, and so certain deposits of sand ceased which had been made theretofore at irregular periods upon plaintiff’s land. It seems that during freshets Eock Creek overflowed plaintiff’s land, and moving slowly over the submerged portion, deposited there sand, which, when the waters receded, was sold for building purposes. The amount of this deposit depended upon the accidents of nature, and, of course, would be diminished if the current were swift. Damages have been allowed for overflowing land through the construction of engineering works (Pumpetty v. Green Bay Co., 13 Wall., 166), but ordinarily the confining of a stream within its bed or any other work which tends to prevent the natural results of freshet has been considered a benefit, not an injury.

The property in question is upon the immediate outskirts of a large and growing- city. Through it runs a stream of irregular volume, which has traversed a settled country, and is at all times subject to such incidents of use as the developing population may require. It is easy to understand that its old uses will largely cease, and that, perhaps, .before many years parts of it may be covered in and disappear from the light, as have other streams in this District, notably the Tiber, or Goose Creek. For a right whose value can be fixed, such as a mill right or a wharf right, which may be destroyed in the prosecution of a public improvement, compensation would undoubtedly be given; but would it be given to one deprived by a public improvement of an uncertain benefit derived from the occasional and irregular accidents of nature, particularly when those accidents are harmful in their character ? This plaintiff asks damages because the Government has limited the effects of a freshet, and this on the ground that, while freshets are generally injurious and their prevention a benefit, in his case the reverse is true, as they cover his land with sand washed away from some one else’s property higher up on the stream, and from the sale of this sand he derives a profit. It is possible to suppose the contention applied to a riparian owner who, by fences or walls, or by the planting of trees and shrubbery, prevented the washing of sand into the creek to be afterwards, perhaps, deposited upon plaintiff’s land.

The projected Eock Creek Park and Zoological Gardens are to be laid out at no great distance above plaintiff’s property $ it is not improbable that in the course of the preparation of these improvements for public use the stream may be walled in or otherwise confined more strictly to its bed, and that the banks will be so protected as, if possible, to prevent washing. Would a riparian owner below find in such work a valid ground for claiming damages because deposits of sand were no longer made upon his land íd time of freshet. So the deepening of the stream below plaintiff by a neighbor desirous of protecting his own land would tend to quicken the current above and carry the sand by plaintiff while held in suspension. There are many elements of uncertainty in a claim of this description; its value depends upon the accidents of nature, upon the legitimate and proper use of the stream both above and below plaintiff, and the natural use’of their land by riparian owners above him, and we are of opinion that the use by the Government of the stream does not injure plaintiff in any tangible property right.

Nor are there disclosed any methods by which with reasonable certainty we could estimate the amount of plaintiff’s loss. How many freshets will occur under.the changed conditions caused by increasing population is a matter of speculation, though the averages of past years might give some standard for calculation. The development of the country above plaintiff presents a more difficult element of estimate, as it tends to restrain the washing of the banks and make it unlikely that sand will hereafter be brought down the stream in so great quantities as. heretofore. It is not shown that -even now the stream carries as much sand as during the period prior to the condemnation of the land. If, then, plaintiff had a property right in the chance or probability that deposits would continue in the future in the same average amounts as in the past, there is no sufficiently definite measure shown upon which we can compute any damage he may sustain in this regard. (People of the State of New YorK v. The Mayor, etc., of Albany, 5 Lansing, 524; Seely v. Alden, 61 Penn. St., 302.) '

The right to any sand deposit upon the land actually condemned and now occupied by the Government, if of ascertainable value, was included by the appraisers as an item of the just and fair value of that land which they fixed, and can not here be claimed as an “injury” resulting from the condemnation. Nothing is allowed upon this item of claim.

In the deed and in the. price paid for the laud taken was included a right of way over the property still held by plaintiff from the foot of Mill street, Georgetown, to the land con-clemned and now owned by defendants, and it is alleged that this right of way is so laid off as to split plaintiff’s land, leaving one strip almost or quite inaccessible, “ to plaintiff’s injury.”

Under our construction of the statute, plaintiff, who has been paid for the land taken, may come here for damages arising from the taking of the land or from the construction of the works, but we do not find that he has suffered damage from the condemnation of this right of way.

Judgment for $950.

Nott, J.,

The legal premises upon which this case should be considered I. think may be stated as follows:

1. The stream for many years before the tunnel was begun constantly and unfailingly overflowed a portion of the claimant’s land and made deposits of sand which the claimant sold, and this product of land and stream yielded the owner an annual income which was never less than $500. Since the sinking of the tunnel shaft the natural conditions of the stream have remained unchanged, and the market or demand for building sand has improved, and it is as certain as anything can be that if the tunnel had never been built the claimant up to the present time — that is to say for the last six years, would have received from the sale of sand the same or a greater annual income than he did before.

2. While the owner was thus receiving a steady income from a natural product of the land and stream, the defendants put the bed of the stream to an extraordinary use; that is, they used it as a dumping ground for rock excavated from the shaft of the tunnel; and they thereby made an extraordinary encroachment upon the channel of the stream by reducing it to less than half of its natural width. This use of the bed of the stream was not an ordinary exercise of riparian right, and the bed of the stream was not so used because it was the bed of a stream, but because it furnished a cheaper dumping ground for waste material than the bank above it.

In my judgment the extraordinary use produced what was practically an extraordinary and unnatural diversion of the water of the stream, not from the claimant’s laid in general, but from that portion of his land which yielded him an income, i. e., the water instead of overflowing his land goes rushing past it, bearing along in suspension the sand which would otherwise be deposited.

It is true that a precedent for such an action as this at common law has not been found in the books; it is true that the deposit of sand and gravel upon agricultural land is an injury and not a benefit; it is true that the freshets which have come in the past with the certainty of seed time and harvest may never come again, that the owners of land may so fortify the banks above that Eock Creek in time of freshet will no longer bring down sand in suspension, and that the damages in such a case are not easy to compute. But it is equally true that for many years before the intrusion of the Government “these deposits” were an unfailing “source of income” to the claimant; that if the Government had kept its hands off his property the deposits would have continued during the last six years at least; and that for the last six years he has suffered a loss of at least $450 a year, which was directly caused by the extraordinary encroachment of the Government upon the bed of the stream.

This destruction of a “source of income” from the natural product of a man’s land and stream I deem, in the words of the statute, a direct injury “in a property right.” The case is, to my mind, clearer than the Well Cases, elaborately argued and deliberately decided at the last term (25 C. Cls. B., 87,329), for there it was largely conjectural whether water flowed from the bottom of a well by a subsurface channel to a tunnel 600 feet distant, while here the cause and the injury are as visible as any damage of which a witness can testify. It is, moreover, easier to compute the value of sand which year after year has had an actual market than the value of water which was never sold and never salable.

The purpose of the statute which is committed to the judicial administration of this court was just and beneficent, Congress intending that no person should be directly injured by the construction of this public work. Under it, if not at common law, I think that this claimant is entitled to recover for the injury he has actually suffered, for the loss he has actually sustained, for the value of a right which the construction of a public work directly destroyed. With this exception I concur in the judgment of the court.  