The Chicago River, its branches and forks lie wholly within the State of Illinois.
In 1896 Congress made an appropriation "For improving the Chicago River, in Illinois, from its mouth to the stock yards on the South Branch and to Belmont avenue on the North Branch, as far as may be permitted by existing docks and wharves, to be dredged to admit passage by vessels drawing sixteen feet of water." Act of June 3, 1896, c. 314, 29 Stat. 202, 228. This act was amended by the Act of June 4, 1897, c. 2, 30 Stat. 11, 47, which, as interpreted by the War Department, permitted a slight widening of the stream in certain places. The General Assembly of Illinois by resolution of April 22-23, 1897, [Laws, 1897, p. 308] gave assent to the United States' acquiring by purchase or condemnation "all lands necessary for widening the Chicago river and its branches." In 1899 Congress directed a survey with a view to creating a deeper channel and adopting 21 feet "as the project depth for the improvement in lieu of that fixed by the Act of June third, eighteen hundred and ninety-six." Act of March 3, 1899, c. 425, 30 Stat. 1121, 1156. No widening beyond the banks of the de jure stream was specifically authorized by this act, nor by any subsequent act. From time to time other appropriations were made by Congress for these improvements of the river, and work
Early in 1889 Tempel became the owner of certain land on the bank of the North Branch below Belmont Avenue. He leased his land for a brick yard; and by the terms of the lease the lessee was permitted to dredge the bottom of the river in front of the premises for the purpose of making brick from the clay thereunder. But the lessee was directed not to interfere with the upland; and he covenanted to deliver up the premises in the condition in which they were demised. Nevertheless, from time to time during a period of five years between 1889 and 1899, the lessee dug away, to a depth of from 6 to 14 feet, a large strip of the upland, extending in some places to a considerable width. In its natural state the stream opposite the plaintiff's property varied in width from probably fifty to a hundred and fifty feet, and could be used only for floating logs and for travel by row boats or canoes; but before 1889 riparian owners had dug a channel and possibly greatly widened the stream; and schooners navigated to a point beyond Belmont Avenue. Between 1890 and 1899 boats drawing 5 to 8 feet of water were navigating the North Branch up to Belmont Avenue. In 1896 the river in front of Tempel's property was in varying depths of from 6 to 14 or 15 feet.
The United States did not do any dredging in front of
Promptly after learning of the dredging, Tempel demanded of the Government possession of that part of the land submerged which had formerly constituted a part of his upland. The demand was refused; and in 1911 he brought, in the District Court of the United States for the Northern District of Illinois, this suit, under the Tucker Act (Judicial Code, § 24, par. 20), to recover the value of property which he claimed had been taken by the Government. The complaint alleged that the river in front of his premises was, at the time he acquired the same and theretofore, a creek used only for surface drainage and was "not a navigable stream either in law or in fact"; that the Government "in the latter part of the year 1909 completely excavated a channel through the same" for the purpose of making said North Branch navigable; and that it holds possession thereof by virtue of the resolution of the General Assembly of Illinois above referred to; and that the reasonable value of the property taken was $10,000. The complaint did not refer either to the dredging done before 1889, when Tempel acquired the property, or to that done between 1889 and 1899 by Tempel's lessee, or to that done in 1899 by the Government. The answer denied that the stream in front of
The trial court found as a fact, "That by reason of the changes in said river as aforesaid, the difference between the value of the premises of the petitioner at the time when he purchased the same as aforesaid, and the value of the same at the time that the demand as hereinbefore set forth was made, less the cost of reclaiming the same, were he entitled to make reclamation thereof, is $7,547.00." As conclusions of law the trial court found that the North Branch was navigable in its natural state; that it was navigable in fact as early as 1889; that Tempel, having failed to complain of the use by the public of the stream in front of his property for a period of at least ten years prior to the first dredging by the United States, was estopped from thereafter disputing the navigability of the river; and that the river being then a navigable stream, the dredging of the bed in 1899 and in 1909 did not constitute a taking of Tempel's property within the meaning of the Fifth Amendment. Judgment was entered for the United States; and the case comes here on writ of error.
First, This is a suit, like United States v. Lynah, 188 U.S. 445, and United States v. Cress, 243 U.S. 316, to recover the value of property taken by the Government in making a river improvement. The property alleged to have been taken is land, part of which lies within the 30-foot channel first dredged by the Government in 1899; the balance within the additional 30 feet dredged by it in 1909, when the channel was widened to 60 feet; and all of which formed part of the river bed and was submerged when the Government commenced its improvement and has been since. But the property of Tempel,
If the plaintiff can recover, it must be upon an implied contract. For, under the Tucker Act, the consent of the United States to be sued is (so far as here material) limited to claims founded "upon any contract, express or implied"; and a remedy for claims sounding in tort is expressly denied. Bigby v. United States, 188 U.S. 400; Hijo v. United States, 194 U.S. 315, 323. As stated in United States v. Lynah, 188 U.S. 445, 462, 465: "The law will imply a promise to make the required compensation, where property to which the government asserts no title,
Second. The answer, specifically denying that the United States has taken plaintiff's land, excavated a channel through it, and claims possession thereof under the resolution of the Illinois Assembly or otherwise, asserts that in 1909 it did "excavate a channel in the Chicago river in the center of the stream and now claims possession thereof for the purpose of making more navigable the north branch." The findings of fact made by the trial court (amplified by the reports of the Secretary of War, of which we take judicial notice) show that the Government claimed at the time of the alleged taking and now claims that it already possessed, when it made its excavation in 1909, the property right actually in question. It is unnecessary to determine whether this claim of the Government is well-founded. The mere fact that the Government then claimed and now claims title in itself and that it denies title in the plaintiff, prevents the court from assuming jurisdiction of the controversy. The law cannot imply a promise by the Government to pay for a right over, or interest in, land, which right or interest the Government claimed and claims it possessed before it utilized the same. If the Government's claim is unfounded, a property right of plaintiff was violated; but the cause of action therefor, if any, is one sounding in tort; and for such, the Tucker Act affords no remedy. Hill v. United States, 149 U.S. 593, which both in its pleadings and its facts bears a strong resemblance
The District Court, instead of rendering judgment for the United States, should have dismissed the suit for want of jurisdiction.
Judgment reversed and case remanded to the District Court with directions to dismiss it for want of jurisdiction.
(MR. JUSTICE McREYNOLDS took no part in the consideration and decision of this case.)
Reports, War Department, Engineers, for 1899, pp. 2826-2833; for 1900, pp. 3784-3788.