United States v. Alexander

• Citation: 37 L.Ed. 415,13 S.Ct. 529,148 U.S. 186
• Decision Date: 06 March 1893
• Docket Number: No. 552,552
• Parties: UNITED STATES v. ALEXANDER et al
• Court: United States Supreme Court

148 U.S. 186

13 S.Ct. 529

37 L.Ed. 415

UNITED STATES

v ALEXANDER et al.

No. 552.

March 6, 1893.

Asst. Atty. Gen. Cotton, for the United States.

Job Barnard and Geo. A. King, for appellee.

Mr. Justice SHIRAS delivered the opinion of the court.

The facts of this case, as found by the court of claims, (25 Ct. Cl. 87, 329,) are as follows:

Since February 28, 1880, the appellees have been the owners of a tract of land in the District of Columbia, known as lot 11 of original lot 2 of the subdivision made by the heirs of John Little of parts of tracts called 'James Parks' and 'Mt. Pleasant,' and containing about eight acres. On the 21st day of August, 1883, the said ground was improved by a dwelling house and other buildings, and a valuable well of water, necessary to supply water for family use and other purposes, the said property being occupied by the owners as a dwelling.

On that day proceedings were begun by the publication of a notice, under the act of congress of July 15, 1882, to increase the water supply of the city of Washington, (22 St. p. 168,) to condemn a right of way for a tunnel in the neighborhood of this ground, and the government afterwards constructed such tunnel by blasting and degging at a depth of 150 to 170 feet below the surfact in the immediate neighborhood of said property, and about 500 feet distant from the said well.

The well had been used for many years before the construction of the tunnel. There was no direct evidence as to the effect of the tunnel on the well, but during the process of construction and blasting, about 150 yards from the premises, the well became dry, and it has so remained. It does not appear that there was any other cause affecting the well. By reason of the construction of the tunnel, as the court of claims finds, the well was drained and destroyed, to the damage of the owners in the sum of $1,500, no portion of which has been paid or tendered by the government.

This well, at the time of its destruction, was 60 feet deep, and it does not appear that it was suplied by a distinct vein of water running into it. The tunnel is impervious to water, and water from the outside does not soak into it. The land on which the well is located is not embraced in the map and survey of lands to be taken under the act of congress.

Upon these facts the court below adjudged that the plaintiffs, the owners of said land, were entitled to recover the sum of $1,500, and judgment was entered for that amount.

Whether, under the constitutional provisions of the United States and of the several states, which declare that private property shall not be taken for public use without just compensation, it is necessary that property should be absolutely taken, in the narrowest sense of that word, to bring the case within the protection of the provision, is a question that has often arisen, and upon which there has not been entire uniformity of decision.

'There may be,' said this court, in the case of Pumpelly v. Green Bay Co., 13 Wall. 166, syllabus, 'such serious interruption to the common and necessary use of property as will be equivalent to a taking, within the meaning of the constitution.' 'The cases which hold that remote and consequential injury to private property by reason of authorized public improvements is not taking such property for public use have many of them gone to the utmost limit of that principle, and some beyond it, though the principle is a sound one in its proper application to many injuries so originating.'

We do not find it necessary to consider on which side of the line thus suggested the present case would fall, for we agree with the court below in thinking that in the act of congress under which this public work was done are found provisions giving an express remedy for property damaged, though not actually taken. The first section of the act is in the following terms:

'That the secretary of war shall cause to be made a survey and map of the land necessary to extend the Washington aqueduct from its present eastern terminus to the high ground north of Washington near Sixth street extended, and of the land necessary for a reservoir at that point, the capacity of which shall not be less than three hundred millon gallons; and a like survey and map of the land necessary for a dam across the Potomac river at the Great Falls, including the land now occupied by the dam, and the land repuired for the extension of said dam across Conn's island to and upon the Virginia shore; and when surveys and maps shall have been made the secretary of war and the attorney general of the United States shall proceed to acquire to and for the United States the outstanding title, if any, to said land and water rights, and the land on which the gatehouse at Great Falls stands by condemnation.

'And in obtaining title to the right of way for the extension of said aqueduct, the secretary of war and attorney general may, in their discretion, secure title to a strip suitable for an avenue over such part of said aqueduct extended as they think proper: provided, that at least one half in value of such right of way shall be donated or dedicated by the owners to that public use: and provided, further, that, if it shall be necessary to resort to condemnation, the proceedings shall be as follows:

'When the map and survey and completed, the attorney general shall proceed to ascertain the owners or claimants of the premlses embraced in the survey, and shall cause to be published, for the space of thirty days, in one or more of the daily newspapers published in the District of Columbia, a description of the entire tract or tracts of land embraced in the survey, with a notice that the same has been taken for the uses mentioned in this act, and notifying all claimants to any portion of said premises to file, within its period of publication, in the department of justice, a description of the tract or parcel claimed, and a statement of its value as estimated by the claimant. On application of the attorney general, the chief justice of the supreme court of the District of Columbia shall appoint three persons, not in the employ of the government or related to the claimants, to act as appraisers, whose dury it shall be, upon receiving from the attorney general a description of any tract or parcel, the ownership of which is claimed separately, to fairly and justly value the same and report such valuation to the attorney general, who thereupon shall, upon being satisfied as to the title to the same, cause to be offered to the owner or owners the amount fixed by the appraisers as the value thereof; and if the offer be accepted, then, upon the execution of a deed to the United States in form satisfactory to the attorney general, the secretary of war shall pay the amount to such owner or owners from the appropriation made therefor in this act.

'In making the valuation 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.

'The appraisers shall each receive for their services five dollars for each day's actual service in making the said appraisements.

'Any person or corporation having any estate or interest in any of the lands embraced in said survey and map, who shall for any reason not have been tendered payment therefor as above provided, or who shall have declined to accept the amount tendered therefor, and any person who, by reason of the taking of said land, or by the construction of the works hereinafter directed to be constructed, shall be directly injured in any property right, may, at any time within one year from the publication of notice by the attorney general as above provided, file a petition in the court of claims of the United States setting forth his right or title, and the amount claimed by himn as damages for the property taken or injury sustained; and the said court shall hear and adjudicate such claims in the same manner as other claims against the United States are now by law directed to be heard and adjudicated therein: provided, that the court shall make such special rules in respect to such cases as shall secure their hearing and adjudication with the least possible delay.

'Judgments in favor of such claimants shall be paid as other judgments of said court are now directed to be paid; and any claimant to whom a tender shall have been made as hereinbefore authorized, and who shall have declined to accept the same, shall, unless he recover an amount greater than that so tendered, be taxed with the entire cost of the proceeding. All claims for value or damages on account of ownership of any interest in said premises, or on account of injury to a...