Gibson v. United States (166 U.S. 269)

This was a petition to recover damages because of the construction of a dike by the United States in the Ohio river at a point off Neville island, about nine miles west of the city of Pittsburg. The court of claims made the following findings of fact:

'(1) In the year 1885, and before, the claimant was the owner in her own right and in possession of a tract of land containing about 20 acres, situate on Neville island, in the Ohio river, 9 miles below the city of Pittsburg, in the county of Allegheny and state of Pennsylvania.

'(2) The claimant's land, at the time of the alleged grievance, was in a high state of cultivation, well improved, with a good dwelling house, barn, and other outbuildings. The claimant was in the year 1885, and is now, engaged in market gardening, cultivating, and shipping strawberries, raspberries, potatoes, melons, apples, peaches, etc., to the cities of Pittsburg and Allegheny, Pa., for sale.

'(3) The claimant's farm has a frontage of 1,000 feet on the north, or main navigable, channel of the Ohio river, where the claimant has a landing, which was used in shipping the products from, and the supplies to, her said farm; that the said farm extends across the said Neville island in a southwesterly direction to the south channel of said Ohio river, which is not navigable; that the said landing is the only one on claimant's farm from which she can ship the products from and supplies to, her farm.

'(4) Congress, by the river and harbor acts of July 5, 1884 (23 Stat. 133, 147), and August 5, 1886 (24 Stat. 310, 327), authorized and directed the improvement of the said Ohio river as follows:

"Improving the Ohio river: Continuing improvement, six hundred thousand dollars.' Act 1884.

"Improving the Ohio river: Continuing improvement, three hundred and seventy-five thousand ($375,000) dollars.' Act 1886.

'Under said authority Lieut. Col. William E. Merrill, of the engineer corps of the U.S. army, by the direction of the chief of engineers of the U.S. army, and the secretary of war, commenced June 17, 1885, the construction of a dike 2,200 feet in length to concentrate the water-flow in the main channel of the Ohio river, beginning at a point on said Neville island 400 feet east of the claimant's farm, and running in a northwesterly direction with the main or navigable channel of the said Ohio river to the outer point of a bar in said river known as 'Merriman's Bar,' contiguous to and extending into the said river from the northwest point of claimant's farm; that the said dike has been completed to, and beyond, the northeastern point of said Merriman's bar.

'(5) The construction of said dike by the United States for the purposes aforesaid has substantially destroyed the landing of the claimant, by preventing the free egress and ingress to and from said landing on and in front of the claimant's farm, to the main or navigable channel of said river.

'The claimant is unable to use her landing for the shipment of products from, and supplies to, her farm for the greater part of the gardening season on account of said dike obstructing the passage of the boats; that she can only use the said landing at a high stage of water; that during the ordinary stage of water the claimant cannot get the products off, or the supplies to, her farm, without goint over the farms of her neighbors to reach another landing.

'(6) The claimant's land was worth $600 per acre before the construction of the said dike; that it is now greatly reduced in value (from $150 to $200 per acre) by the obstruction caused by said dike; that the damage to the claimant's farm exceeds the sum of $3,000.

'(7) Claimant's access to the navigable portion of the stream was not entirely cut off; at a 9-foot stage of the water, which frequently occurs during November, December, March, April, and May, she could get into her dock in any manner; that from a 3-foot stage she could communicate with the navigable channel through the chute; that at any time she could haul out to the channel by wagon.

'(8) There was no water thrown back on claimant's land by the building of said dike, and that said dike has not itself come into physical contact with claimant's land, and has not been the cause of any such physical contact in any other way. In making the improvement the defendants did not recognize any right of property in the claimant in and to the right alleged to be affected, did not attempt or assume to take private property in and by the construction of the dike, but proceeded in the exercise of a claimed right to improve the navigation of the river.'

And upon these findings the court held, as a conclusion of law, that the claimant was not entitled to recover, and dismissed the petition.

The opinion of the court, by Weldon, J., discusses the case at length, citing many decisions, and maintains the conclusion on the grounds that the court had no jurisdiction; and that, if it had, there still could be no recovery, because the United States were not responsible to claimant for injuries suffered in the use and occupation of her property in consequence of the construction of the works. 29 Ct. Cl. 18.

F. H. N. McPherson, for appellant.

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

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.