
    THOMAS M. LIVINGSTON v. THE UNITED STATES
    
    [No. A-298.
    Decided January 5, 1925]
    
      On the Proofs
    
    
      Eminent domain; claim of interest; implied promdse to pay. — Where the Government establishes a training camp on a creek and obtains a license from the owners bordering thereon to enter upon and drain their lands on said creek and its tributaries in order to improve the sanitary condition of said camp and its surroundings, the Government officer in charge of said work, claiming under said license,- which was signed by the party from whom the plaintiff acquired title, enters upon plaintiff’s ' land, surveys a right of way 100 feet wide, cuts a canal through the center thereof, diverts the water from said creek and thereby destroys the water power of plaintiff’s mill, there is no implied promise on the part of the Government to pay for such damage.
    
      The Reporter's statement of the case:
    
      Mr. Ashhy ^Williams for the plaintiff. Mr. G. 0. Nesmith ivas on the briefs.
    
      
      Mr. Fred K. Dycur, with, whom was Mr. Assistant Attorney General Robert E. Lovett, for the defendant.
    Motion for new trial overruled March 9, 1925.
    The following are the facts as found by the court:
    I. The plaintiff is a citizen of the United States and of the State of South Carolina, residing in Richland County of said State. In and previous to the spring of 1918 he was a resident of Orangeburg County in South Carolina, about 50 miles distant from the city of Columbia, and was engaged in farming.
    II. On a visit to Columbia in April, 1918, he expressed a desire to acquire land with an available water power thereon, and being thereafter informed by letter that a large tract of land then owned by one B. P. McMaster and lying about three miles southeast of Columbia and having thereon an available water power was for sale, he entered into negotiations with reference thereto.
    III. The McMaster land was heavily encumbered by mortgages, and in the early part of 1917 a suit in foreclosure had been instituted, lis pendens notice had been filed and recorded in the proper office, and in May of 1917 a receiver had been appointed to take charge of the property.
    McMaster was anxious to effect a private sale of the land so as to avoid a public sale under the foreclosure proceedings and to realize therefrom a sufficient amount to fully extinguish the liens.
    IY. On May 25, 1918, the plaintiff and his brother, C. M'. Livingston, entered into a contract with said B. P. McMaster for the purchase of said real estate, amounting to about 2,100 acres, with provision therein for the conveyance ol a part of said land to the plaintiff and a part to his said brother and an assuming by them of proportionate parts of the purchase money, said agreement being made expressly contingent upon the securing of the consent of the lien holders. Upon the execution of this preliminary contract $100 in cash was paid by the plaintiff and his said brother.
    V. Thereafter, the assent of all of the lien holders and the receiver having been secured, the plaintiff and his said brother on the 3d day of June, 1918, entered into a'contract with said McMaster for the purchase of said real estate at the aggregate price of $80,000, said contract containing provisions with reference to the application of the purchase money to the discharge of the existing liens, to which contract all the lien holders and the receiver gave their consent, and upon the execution thereof the plaintiff and his brother paid to said McMaster the sum of $7,400, which, added to the $100 theretofore paid, made the $7,500 cash payment provided for in said contract, and further payments were secured as provided for.
    Said contract provided for the conveyance to the plaintiff herein of a certain 1,241 acres of said real estate and the payment by him of $44,668.77 of the purchase money, the remainder of said real estate to be conveyed to plaintiff’s said brother, who assumed the payment of $35,331.23 of the purchase money.
    The total purchase price for said real estate was a few hundred dollars in excess of the aggregate amount of the liens thereon. ' McMaster in selling said real estate at that price accomplished his purpose of providing for the discharge of all the liens, and to accomplish that purpose he sold at less than he estimated the true value of the real estate.
    Deed for said real estate was not executed to the plaintiff until October, 1918, but under the contract he entered into immediate possession of the 1,241 acres purchased by him, subject only to the rights of tenants then in possession of parts of said real estate, and acquired the right to the rentals for the current year.
    YI. Of said 1,241 acres thus acquired by the plaintiff, about 250 acres were sandy loam, about 600 acres were congaree loam under cultivation, mostly in cotton, but suitable for the raising of corn and wheat as well, and of the remaining acreage about 230 acres was a woodland marsh, embraced in a backwater basin adapted for the furnishing of water power. Through this acreage at the time of the purchase by the plaintiff as aforesaid, ran a clear, bold, nonnavigable stream of fresh water known as Gills Creek, which .meandered along its natural bed through plaintiff’s lands for a distance of about a mile and a half and in its course ran in and through, said marsh, the waters of which were impounded therein by a milldam with a wasteway therein and further restrained by levees on one side thereof.
    VII. At the lower end of this pond there was at the time plaintiff bought this land an old mill. This mill had been built many years before the Civil War and operated, at least a part of the time, by water power procured from this pond. It was rebuilt about 1885, and was operated from that time until about 1904, being used for grinding corn, ginning cotton, etc.
    At the time plaintiff purchased this land the mill was hot in operation and the water power was not being then utilized, but with some minor repairs to the dam and levee it was available for use.
    There was a head of water not exactly ascertainable from the evidence, but somewhere between 7 and 10 feet, and sufficient available power when properly utilized to operate a gristmill, cotton gin, sawmill, electric light plant, etc. The exact horsepower which might have been developed from this water power is not determinable from the record, but the best evidence indicates that there might have been developed approximately 50 horsepower for continuous running, except in a very dry season, and 100 horsepower or more on the basis of a run of 10 hours in 24.
    VIII.-Gills Creek also furnished an abundant supply of good water for domestic purposes and for the watering of stock, and edible fish of different varieties were plentiful therein. The pond was well adapted for bathing and had been used to some extent for that purpose, but not commercially. The plaintiff had declared his purpose to improve and equip it as a pleasure resort, but had done nothing to that end. Such resorts were in demand about Columbia, and some such located at greater distance were operating profitably. ,
    IX. In 1917 the United States located at a point about 3 miles east of Columbia a cantonment for the mobilization and training of troops which was designated Camp Jackson. This camp was located on Gills Creek and on a tributary thereof known as Wildcat Branch, and was 6 miles above the plaintiff’s said real estate. The camp site was in a comparatively low and somewhat marshy country and necessitated work for the betterment of sanitary conditions, and particularly the elimination, so far as might be possible, of mosquitoes.
    Citizens, or possibly some business organizations of the city of Columbia, had interested themselves in procuring the location of this camp, and in aid of the Government’s plan of bettering sanitary conditions representatives of these citizens’ bodies had procured from owners of real estate along Gills Creek written instruments granting to the United States certain rights in that behalf. In August of 1917 B. P. McMaster signed one of these instruments, reading as follows:
    State of South CaROlina,
    
      Gounty of Richland:
    
    
      Whereas the United States of America has located one of its cantonments near the city of Columbia, S. C., on lands adjacent to and in the vicinity of Gills Creek and is now in process of erecting buildings and other structures thereon for the occupancy and use of said cantonment; and
    
      Whereas said Gills Creek and the adjacent lands in their present condition are considered unsanitary and detrimental to the health of the said cantonment and request has been made by the said United States of America, through its officers, agents, and employees, to drain the same and improve the said conditions:
    Now, therefore, in consideration of the premises and of the sum of one dollar (1.00) to me in hand paid, and in consideration of the general public benefit to be derived therefrom, I hereby give and grant to the said United States of America, its officers, agents, and employees, the right to go upon all such lands belonging to me as are adjacent to Gills Creek and its tributaries and drain the same, together with the said Gills. Creek and its tributaries, thoroughly, and to do all such acts and things as may be necessary to render the said conditions sanitary and healthful, provided the same are done under the direction of a sanitary expert of the said United States of America and without-cost or expense to me.
    Witness my hand and seal this — day of August, 1917.
    B. P. McMasteR. [seal.]
    Signed, sealed, and delivered in the presence of—
    G. E. Shand.
    
      X. At the time of the execution of the contract of June 3, and the payment then made, the plaintiff had no knowledge that McMaster had signed any instrument granting any right to the United States. After the execution of the contract, but on the same day, McMaster made a casual remark about having signed some paper, but could or at least did not give any definite information about it. Plaintiff’s attorney, who was present looking after his interests in connection with the execution of the contract, immediately made a second search of the county records, but found no. such instrument of record. In fact, it had not been recorded.
    XI. In the fall of 1911 the United States had commenced, at some point in the vicinity of Camp Jackson, the dredging out of Gills Creek by use of a steam dredge and the cutting of drains from swamp or marshy localities in and near the camp for the purpose, in the first instance, of ridding the camp of mosquitoes. To make this work effective, so far as the mosquito nuisance was concerned, it was necessary that it should be carried approximately one mile from the camp, but the purpose when the work was commenced was to carry it to the Atlantic Coast Line trestle across Gills' Creek, about 1,000 feet above plaintiff’s land.
    At some time not definitely appearing it was concluded to use Gills Creek, not for drainage purposes alone, but also as a sewage canal, into which the effluent from the camp’s sewage-disposal plant should be emptied and carried to the Congaree Liver.
    It was concluded in the spring of 1918 that the use of the stream for the conveyance of sewage effluent would create a serious sanitary condition unless dredging operations were continued to the Congaree Liver, but the funds available were only sufficient to carry the work to the Atlantic Coast Line trestle.
    The division surgeon and the division sanitary officer had given the matter consideration and made recommendation, and on May 22, 1918, the advisory engineer on roads and sewerage submitted the following statement and recommendation :
    “Subject: Dredging, Camp Jackson, S. C.
    “On August 18, 1917, the Secretary of War approved the expenditure of $25,000.00 to cover the cost of dredging Gill Creek, Camp Jackson, S. C. This sum of money was intended to cover cost of dredging from Camden Eoad to the Atlantic Coast Line trestle. The work had for its object the following:
    “ 1. General sanitary necessity for the control of malaria.
    “2. Afford a steady and rapid run-off from the septic tank of the effluent of the camp, which is necessary to prevent stagnation and nuisance to the countryside from the organic matter discharged from the septic tank.
    “ 3. Enable great areas of land to be reclaimed for agricultural purposes.
    “However, it appears that it is absolutely essential to continue this dredging to the Congaree Eiver from the Atlantic Coast Line trestle for the following reasons:
    “ 1. If the work is stopped at the Atlantic Coast Line trestle the area between this trestle and the Congaree Eiver will act as a natural bander to the rapid flow of the cut channel of the creek and will result in a most serious nuisance to not only the inhabitants of this region but will also be a serious menace to the health of the troops, as the sewage from the camp is carried into this creek. If this dredging work is continued to the Congaree Eiver, a free passageway will be established for the proper carrying of sewage from the camp to the river.
    “ 2. Unless this work is completed, the full value can not be realized from that portion of the work now being done.
    “This additional work would in addition not only reclaim many acres of land suitable for agricultural purposes and eliminate mosquito breeding, but would also tend to prevent the settling of suspended matter discharged into the stream.
    “It is therefore urgently recommended that the sum of $28,000.00 be requested to complete the dredging work from the Atlantic Coast Line trestle to the Congaree Eiver, as called for by the camp authorities.
    “ In addition to the above, the camp authorities request the sum of $18,000.00 with which to construct lateral ditches in the area already dredged, which is just north of the Atlantic Coast Line trestle. The construction of these lateral ditches, which would lead from the swampy area into the canal, would prevent excessive erosion of the creek banks as well as an antimosquito measure.
    “ It is therefore recommended that the sum of $18,000.00 be also called for to perfect the drainage of this swamp.”
    This recommendation was approved by the officer in charge of the construction division of the Army on June 8, 1918, in an official communication in which he also asked authority to expend the sums named. On June 12, 1918, the Assistant Secretary of War indorsed his approval thereon. On June 24, 1918, the constructing quartermaster at Camp J ackson was informed that an allotment of $40,000 had been made for the continuance of drainage work and that he was authorized to proceed with the same. He was informed in that connection that no plans w.ould be furnished.
    It does not appear from the record that any officer having to do with the authorizing or the carrying out of this work, superior in authority to the constructing quartermaster at Camp J ackson, had any knowledge that the plaintiff’s property was in any manner to be entered upon or affected by the continuance of this work or of the existence or otherwise of the instrument set out in Finding IX.
    XII. In March, 1918, and during the time here involved, May John G. Stevenson was supervising constructing quartermaster, assistant to the chief of construction of the Army,, having general supervision of the construction of certain camps and cantonments, Camp Jackson included, with headquarters in Washington. Captain, afterwards Major, William H. Supplee was constructing quartermaster at Camp Jackson, having charge of all construction work at that camp, the dredging of Gills Creek and drainage of contiguous territory included. He was subordinate to Major Stevenson and subject to any instruction the latter might see fit to give. Lieutenant, afterwards Captain, Joseph C. Brown was an assistant constructing quartermaster at Camp Jackson, under Major Supplee, subject to the orders of the latter and with such authority as might be delegated to him.
    The notice on June 24, 1918, to Major Supplee informing him of the approval of the request for a continuance of the •drainage work and the allotment of funds therefor, authorizing him to proceed with the work and stating that.no plans would be furnished was from Major Stevenson, acting for the officer in charge of the construction division. It does not appear that the general authority given to Major Sup-plee was ever in any manner curtailed or modified by instructions as to plans or procedure. The work was regarded by Major Stevenson as a military necessity, and it does not appear that he had any knowledge as to private property involved or the granting or otherwise of permits by owners thereof.
    XIII. Upon the assignment of Major Supplee to duty at Camp Jackson and his. designation as constructing quartermaster, all the construction work then in progress at the camp, including the dredging of Gills Creek, was turned over to him, and upon the assignment of Captain Brown to duty at Camp Jackson, and his designation as assistant to the constructing quartermaster, Major Supplee directed Captain Brown to take over the dredging work on Gills Creek and follow it out in detail, both as to necessary surveys and actual dredging. Captain Brown’s authority in this respect was by Major Supplee made absolute and he in all respects was given complete charge. An engineering corps was assigned to duty under him and the contractor and all employees were under his direction. He reported occasionally to Major Supplee as to the progress of the work, but at no time did he receive any instructions as to details. When the plaintiff at one time called upon Major Supplee for some information as to the intention with reference to the carrying of the work over his lands he was by Major Supplee referred to Captain Brown.
    XIY. When Lieutenant Brown took charge of the dredging of Gills Creek in March, 1918, the work had then progressed to a point about 4 miles above plaintiff’s land. On June 15, 1918, the dredging operations had progressed to the line of the Atlantic Coast Line Bailroad, about 1,000 feet from plaintiff’s land, the terminus, as orginally intended, of dredging operations. When authority was received by Major Supplee, the camp construction quartermaster, to continue the dredging operations he instructed Captain Brown to continue the same and they proceeded with Captain Brown in full authority.
    The dredging had followed the line of Gills Creek and continued so to do until after it had crossed plaintilf’s northern boundary, when, at a point where there was an abrupt bend in the creek, a few hundred feet south of plaintiff’s northern boundary, the dredging left the line of the creek and proceeded in a westerly direction, passing west and entirely away from the creek and then bending to the southward and rejoining the creek several hundred feet below the mill dam, and passing in its course entirely around and away from the pond above referred to.
    XV. Before defendant diverged from the bed of Gills Creek and began cutting the canal apart therefrom, it made a survey of a right of way 100 feet wide and, in advance of the progress of the dredge, cut the timber therefrom. Said right of way contained 17 acres. The canal was cut through the center of said right of way and to a width of 12 or 15 feet on the bottom with sloping banks and the dredged material was piled on the banks on either side so that the canal was 6 or more feet deep.
    This canal was cut to a lower depth than the bed of the creek and the waters of the creek were diverted by the defendant’s servants into the new canal and thus prevented from flowing into the mill pond referred to, and plaintiff’s water power was thus destroyed.
    XVI. Shortly after June 3, 1918, and while the dredge was yet a half mile or more above his land, the plaintiff visited the dredge and sought information of the dredge foreman as to the course it was contemplated would be taken through his land, informing him of his ownership, but he secured no definite information, and on other occasions he was also unsuccessful. The dredge foreman was an employee of the contractor. When the dredge was between the two railroads, within a week after June 15 and when yet from 700 to 1,000 feet from his line, he saw at the dredge and conferred with the officer in charge of the work, but secured no definite information as to what was to be done. Plaintiff had other conversations with this officer and endeavored to persuade him to follow the course of the creek.
    
      XVII. During the progress of the work it was thought that the instrument signed by B. P. McMaster in August, 1917, and set out in Finding IX, had been lost, and the officer in charge of the work, in a conversation with the plaintiff on or about June 15, 1918, asked him to give a permit for the dredging work to cross his property, but this the plaintiff declined to do. At or about the same time Mr. William D. Melton, who was one of the citizens who had interested himself in procuring permits from landowners as set out in Finding IX, requested B. P. McMaster to give a new permit, stating that the one he had signed in August, 1917, had been lost, but Mr. McMaster declined so to do upon the ground that he had sold the property. Thereafter and at about the time dredging operations were commencing on plaintiff’s land the plaintiff sent to the' officer in charge the following:
    Columbia, S. C., July 88, 1918.
    
    Lieut. Jos. C. BkowN,
    
      Asst. Const. Quartermaster, Camp Jaehson, S. C.
    
    Deae Sir: Having contracted some time since for the purchase from B. P. McMaster of the lands known as the Childs farm, we desire to give you notice, and through you the Government, that we respectfully protest against your cutting a canal through this land, especially against the injury which your canal will cause to the water power on this land, and the injury and destruction to the timber.
    We are giving this notice so that you may not assume that we are consenting, and so that all our rights may be preserved.
    Respectfully,
    Thomas M. LivingstoN.
    C. M. Livingston.
    XVIII. In the summer of 1918 large numbers of troops were assembled at Camp Jackson and, due to the number, the sewage-disposal plant was 'of insufficient capacity and it was otherwise inefficient. Raw or undigested sewage was run into Gills Creek and flowed thence onto plaintiff’s land, finding lodgment in pools within the area of the former pond and along the banks, creating an extremely foul odor and so polluting the atmosphere as to render the premises almost uninhabitable. The water was rendered unfit for domestic use, for stock, or for bathing, and large numbers of fish died.
    When testimony was taken in this case in 1922 there were but about 200 men at Camp Jackson; there remained no perceptible odor either in air or water at plaintiff’s premises, but the effluent from the septic tank at the camp slightly discolored the water of the creek at that point, although it was then practically clear when it reached plaintiff’s premises.
    XIX. The Secretary of War announced the future use of Camp Jackson to be as follows: An appreciable portion of the camp and the buildings will be used by the South Carolina National Guard, another part by the South Carolina Highway Commission, another part by the Chamber of Commerce of Columbia, S. C., and another part by the Ordnance Department, United States Army. The sewage system will continue in operation and will be used by the personnel employed in the uses above described, and the effluent from- the sewage-disposal plant at Camp Jackson will continue to be emptied into Gills Creek for passage along the canal from the camp to the river.
    In a sewage-disposal plant only approximately 90 per cent of the germs are destroyed in the process of fermentation, and the effluent, unless rapidly conveyed to a large body of water for dissipation, will putrify. By reason of the prospective uses of the camp and the fact that the effluent will be emptied into the stream, it would not be feasible to impound the water in the 230 acres of back water basin on the Livingston property for commercial use or bathing purposes.
    XX. Capt. Joseph C. Brown was in full charge for the United States of the dredging work involved at the time entry was made on plaintiff’s premises under the authority given him by Major Supplee, as set out in Finding XIII. Predicated upon his testimony, which is undisputed, it is here found that in entering upon plaintiff’s real estate he relied upon the instrument set out in Finding IX, referred to by him as a “ contract,” as being authentic, and that McMaster had full rights to enter into the same, and that it was on the good faith of the “ contract ” that he entered upon the land in question.
    While Major Supplee had no personal knowledge as .to the McMaster “permit,” and relied entirely upon Captain Brown to conduct the dredging oj^erations, it was his understanding that the United States had permission and right to enter upon plaintiff’s land and dig the canal, although it would have been done as a matter of necessity irrespective thereof.
    The court decided that plaintiff was not entitled to recover.
    
      
       Appealed.
    
   Downey, JucUge,

delivered the opinion of the court:

This case was decided March 17, 1924, on findings of fact and a conclusion of law adverse to the plaintiff, with an opinion. A motion for a new trial was filed by the plaintiff in which it was represented that, if given an opportunity, he could present additional and material evidence bearing on the point on which the case was turned, and, influenced somewhat by the apparent equities of the case, the court granted a new trial and ordered also “that the parties be permitted to submit additional evidence limited to questions relative to the entry upon plaintiff’s land and the authority therefor.”

Additional evidence has been submitted by both parties consisting, on the part of the plaintiff, of the testimony of Major Stevenson, referred to in the findings, together with certain communications, recommendations, and orders, and on the part of the defendant, of the testimony of Major Supplee, construction quartermaster at Camp Jackson. The findings as now stated are in the main the same as those made upon the former trial of the case, to which no serious objections were made, with the addition, largely in response to plaintiff’s request, of such facts appearing from the additional evidence as seem material.

Since the case as now presented involves a review of the former holding of the court in the light of the additional evidence submitted, it is thought that the question involved may be most satisfactorily presented by repeating here the former opinion of the court, which was as follows:

“The conclusion necessarily to be reached in this case renders unnecessary the repetition or consideration in detail of many of the facts set out quite fully in the findings. The several questions which might otherwise be for consideration are subordinated to the one, because that one is controlling.
“The plaintiff had entered into a contract of purchase for a large tract of land in Richland County, S. C., through which flowed a bold, clear stream of water, called Gills Creek, and on which, fed by said stream, was a large pond in which, by a dam, the waters were impounded and made available for a water power. There was an old mill near the dam which in former years had been operated by water power.
“The United States located a camp for the mobilization and training of soldiers, called Camp Jackson, abo'ut 6 miles above plaintiff’s land, and in 1917 began dredging Gills Creek for the purpose of draining swampy areas and eliminating mosquitoes, but afterwards concluded-to make of it, a sewage canal through which the effluent from the disposal plant at the camp was to be carried off.
“After crossing plaintiff’s north line with the work of dredging out the creek, which to that point had followed the stream, a right of way 100 feet wide was surveyed across plaintiff’s land, diverging from the stream and continuing away from the stream and entirely away from and around the mill pond, through which a canal was dredged which reentered the stream some two or three hundred feet below the mill dam. Aside from the appropriation of the hundred-foot right of way, which contained seventeen acres, the waters of the creek were diverted into this new canal and the water power destroyed. Other conditions recited in the findings need not be repeated.
“In 1917, when this camp was about to be established and it was thought that one of the first requisites was to improve sanitary conditions by draining to eliminate mos-q’uito.es, citizens of Columbia, interested in procuring the location* of the camp, solicited and procured from owners of lands on Gills Creek signatures to instruments in writing authorizing entry upon the lands of the signers for the purpose of draining, and one of these instruments, set out in Finding IX, was signed by the then owner of this land, but it was not placed on record, and the plaintiff had no knowledge of it at the time he contracted the purchase of the land. Before that instrument was signed by the then owner foreclosure proceedings had been instituted to foreclose heavy mortgage liens, lis pendens notice had been properly recorded and a receiver appointed, who as such was in possession of the land.
“It is quite easy to conclude that this instrument was never intended, if otherwise valid, to authorize what was done on plaintiff’s land, and there are besides the questions as to its validity under the circumstances stated and without record, but these questions, possibly for determination under other circumstances, are wholly immaterial under the view which must be taken of this case.
“ If there is a case presented proper for our consideration it is a case of a £ taking,’ a taking of plaintiff’s land, and a taking of his water power by diversion of the stream from its natural bed to the newly cut canal, a class of case as to which the applicable r'ules to which we must resort have become quite well understood.
“In such circumstances the action of which we have jurisdiction is founded upon an implied contract, a contract arising out of the taking by the United States of the property of another, coupled with the provision as to just compensation found in the fifth amendment to the Constitution, the implication of a promise to pay naturally arising.
“ But the circumstances may destroy the implication, eliminate a necessary element of the implied contract, rebut the promise to pay, and we are forced to the conclusion that such is the case here. Stated in few words, it is the settled law of such cases that if the United States is acting under a claimed right there can be no implication of a promise to pay. Title or right asserted by the United States is wholly inconsistent with any presumed intention to pay some one else for it. And it is immaterial whether the assertion of right is well founded or not. The assertion of the right, though unfounded, negatives the presumption of an intention to pay as thoroughly as if well founded. Proven unfounded, the status of implied contract is not restored, but a tort results.
“We have predicated our conclusion on the testimony of the officer in charge of this work for the Government^ which, being undisputed, is converted into a finding of fact as appears in Finding XY.
“ The instrument set out in Finding IX falls far short in our judgment, especially under the circumstances recited, of vesting in the United States any right or authority to do what it did, but the officer representing the United States in the matter believed that it was properly executed and with authority and upon its ‘ good faith,’ as he puts it, he acted in entering upon plaintiff’s real estate. The case seems to be clearly within the rule of Tempel v. United States, 248 U. S. 121, and other cases not necessary to review.
“ It is but fair to plaintiff to say, if perchance it may in any way benefit him, that it clearly appears that he has been seriously damaged, and good conscience demands that he have compensation, not perhaps for all that he claims by way of ‘ damages,’ but for that which the United States took. The rule, which seems to us to preclude a judgment at our hands, is not in its general application to be criticized, for it is no doubt sound, but, to adopt the characterization of the Supreme Court in other instances, it certainly does make of this a ‘hard case,’ for under its operation, assuming that we are right in its application, we are precluded from awarding any compensation, however clearly it may appear that there should be such an award.
“It is our duty to dismiss the petition, and we have so ordered.”

Assuming that we were right in the conclusion then reached, does the additional evidence now require or justify a change in that conclusion? Naturally the question revolves around the status of Captain Brown, thé assistant constructing quartermaster who was in charge of this work, and the effect upon plaintiff’s case of the fact that he, in directing the entry upon plaintiff’s land and the work done thereon, acted on the belief that there was a granted right so to do.

The record upon the former trial did not attempt to trace the authority of Captain Brown. It appeared simply that he was in charge of the work for the United States, being-silent as to the scope or source of this authority. The additional testimony shows the source of his authority and its absolute character so far as this particular work was concerned.

This was a war-time project, one of the adjuncts of the many instrumentalities created for the training of an army, and it is a matter of common knowledge of which the courts will take notice that the magnitude of war-time operations necessitated, and hence justified, a delegation of authority. Without it things vitally necessary could not have been accomplished because beyond the human capacity of a single authoritative head, and to the extent that that condition prevailed with subordinate authorities down the line the same necessity for delegation of authority existed.

In the War Department was a construction division, of which General Marshall was the head, subordinate, of course, to the Secretary of War, and under General Marshall was Major Stevenson, assigned supervision of many camps and cantonments, Camp J ackson included. Subordinate to Major Stevenson was the constructing quartermaster at Camp Jackson, in full charge of all construction work authorized at that camp, and under him, as his assistant, was Captain Brown, to whom he delegated absolute authority over the dredging and drainage work. (Finding XIII.)

It is likely that the Secretary of War, on recommendation, approved the location of Camp J ackson at this particular point. It was necessary that he or his assistant, acting for him, allot necessary funds from available appropriations, and the Assistant Secretary did,., pro forma, no doubt, on recommendation submitted to him, approve the proposed expenditure for the continuance of this drainage work. But it does not appear and no doubt is not a fact that the Secretary or his assistant had any knowledge that entry upon plaintiff’s land, or otherwise, was involved in the prosecution of this work. The fact no doubt is that while the constructing quartermaster at the camp had some sort of an understanding that the work would cross plaintiff’s land, and as a matter of permissive right, Captain Brown, the constructing quartermaster’s assistant, was the first person in the descending chain of authorities who had actual knowledge of the situation and was in position to deal with it understandingly.

The question of authority seems to be of paramount importance in determining the question under consideration. In Baltimore & Ohio Railroad v. United States, 261 U. S. 592-596, it is said, “ It is essential that the officer or agent with whom it (the agreement) was entered into should not merely have been holding under the Secretary of War or the President, but that he should have been acting within the scope of his authority.” This was a Dent Act case, involving an alleged agreement under the provisions of that act, but the principle is of general application. In United States v. North American Company, 253 U. S. 330-333, a case of alleged “taking,” it is said, among other things material, that “ In order that the Government shall be liable it must appear that the officer who has physically taken possession of the property was duly authorized so to do, either directly by Congress or by the official upon whom Congress conferred the power.”

It was Captain Brown, acting under delegation of full authority as to this drainage work, who, with the force under him, entered upon and “ took ” plaintiff’s property. No one had given him any direction whatever with reference to plaintiff’s property. He dealt with it under the general authority delegated to him as to the prosecution of this work.

If we may conceive the right of the plaintiff to recover from the United States as for a taking, it must, in view of the last quoted principle, be predicated upon the conclusion that Captain Brown, in taking physical possession of plaintiff’s property, had authority so to do. We believe he had such authority and that if he had exercised it’ without claim of right on the part of the United States an implied obligation to make just compensation would have resulted,, but if he had authority to bind the United States by his entry the fact that, he had such authority would equally serve to prevent a recovery under the rule of the Tempel ease, 248 U. S. 121, if he assumed to enter as a matter of right.

The additional evidence submitted upon this trial of the case serves r-ather than otherwise to strengthen the conclusion before reached, and we again conclude that under the Tempel case, supra, it is our duty to dismiss the case for want of jurisdiction.

Graham, Judge; Hat, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  