263 Opinion of the Court would scarcely be warranted. Particularly is this true in view of the state of the record as to just how much defendant's removal of gravel may have contributed to the ultimate lowering of the stream bed at the site of the dam. If defendant's removal of gravel was a disturbance of plaintiff's easement, then so must have been the removal of gravel by the several private contractors, and so would have been the taking of gravel by the Catletts if they had decided to scrape up some of the gravel for their own use. When we come to a legal consideration of plaintiff's rights against the United States for the consequent damage to its dam resulting from the removal of a portion of the gravel downstream, a principle other than that obtaining between private parties comes into play. As stated in Bedford v. United States, 192 U. S. 217 at 224: The Constitution provides that private property shall not be taken without just compensation, but a distinction has been made between damage and taking, and that distinction must be observed in applying the constitutional provision. An excellent illustration is found in Gibson v. United States, 166 U. S. 269. The distinction is there instructively explained, and other cases need not be cited. The manner in which the distinction has been applied in the courts is well illustrated by the case of Transportation Co. v. Chicago, 99 U. S. 635. There the plaintiff sought to recover damages sustained by reason of the construction by the city of a tunnel under the Chicago River along the line of La Salle, and adjacent to plaintiff's wharf. No physical property of plaintiff was taken but there was evidence of an interference with the use by plaintiff of its property, whereby it was compelled to rent and remove to other docks and sheds. In denying plaintiff relief the court, at p. 641, noted that it was the prerogative of the State to be exempt from coercion by suit, except by its own consent, and went on to state: The remedy, therefore, for a consequential injury resulting from the State's action through its agents, if there be any, must be that, and that only, which the legislature shall give * * * But acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking Opinion of the Court 107 C. Cls. within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the State or its agents, or give him any right of action. This is supported by an immense weight of authority * The extremest qualification of the doctrine is to be found, perhaps, in Pumpelly v. Green Bay Company, 13 Wall. 166, and in Eaton v. Boston, Concord & Montreal Railroad Co., 51 N. H. 504. In those cases it was held that permanent flooding of the private property may be regarded as a "taking." those cases there was a physical invasion of the real estate of the private owner, and a practical ouster of his possession. But in the present case there was no such invasion. No entry was made upon the plaintiff's lot. All that was done was to render for a time its use more inconvenient. [Italics supplied.] In To the two cases referred to above, as extreme qualifications of the doctrine discussed, there must be added, today, such cases as United States v. Lynah, 188 U. S. 445, and United States v. Cress, 243 U. S. 316, where there has been some ouster of plaintiff's possession amounting to an appropriation; and Portsmouth Harbor Land & Hotel Co. v. United States, 260 U. S. 327, and Causby v. United States, 104 C. Cls. 342, 328 U. S. 256, where "servitude had been imposed" upon the land which constitutes at least a partial appropriation of it, or as Mr. Justice Douglas put it "a direct invasion of respondents' domain." 3. Defendant's removal of gravel from the lower stream bed did not constitute a taking of plaintiff's affirmative easement. It is conclusive from the facts we have found that the thing done by the defendant, namely, the removal of gravel, involved no direct encroachment on plaintiff's diversion dam, quite aside from the question whether the ultimate consequence of its act may have impaired its use as it then existed. There was no physical invasion of plaintiff's corporeal property as represented by the diversion dam, nor such alteration of the servient tenement as to render ineffective or to destroy the privilege plaintiff had acquired therein to accumulate the waters at the point of the dam site at sufficient level to divert them into its diversion canals. Consequently, the instant claim cannot be maintained upon the authority of either 263 Opinion of the Court United States v. Lynah, supra, or United States v. Cress, supra. In the Lynah case, the defendant's dam caused water to overflow private property so as to totally destroy its value. There was thus a direct physical invasion and appropriation. In the Cress case the defendant's lock and dam so raised the water in the stream below plaintiff's mill dam as to destroy the power of the mill dam essential to the value of the mill. Mr. Justice Pitney described the right to have the water flow away from the mill dam unobstructed, except as in the course of nature, as existing by the law of nature as "an inseparable part of the land", the destruction of which is a taking of a part of the land (p. 330).1 United States v. Welch, 217 U. S. 333, cited by plaintiff (R. 57) is to the same effect as the Lynah case. The Portsmouth and the Causby cases, supra (and possibly the inference to be drawn from some of the language in United States v. Commodore Park, Inc., 324 U. S. 386), do represent an extension of the principle involved in the preceding cases, but it is an extension of degree. The conception of what constitutes an invasion and appropriation of the private owner's domain is broadened, but the necessity of a taking is adhered to, and the appropriation or taking upon which the right to compensation is made dependent is an intentional appropriation of the private party's property, even though the property conceived to be taken is of an incorporeal nature. It is conceivable that had defendant, in the instant case, in the proper exercise of governmental power, prevented plaintiff from either a continued use of the diversion dam or further diversion of the waters accumulated by it, a basis would exist for allowing compensation for a taking within the constitutional provision. If defendant had opened a channel immediately above plaintiff's dam so as to draw off the head of water which the dam was intended to cause to flow into plaintiff's diversion canals, we would have a case within the scope of the Welch case where compensation was allowed based upon the intentional taking by flooding of the plaintiff's private right of way across another's land. 'Cf. United States v. Willow River Co., 324 U. S. 499. Opinion of the Court 107 C. Cls. In the present case there was neither an appropriation nor an intention to appropriate plaintiff's dam or the easement under which plaintiff was privileged to use it. Consequently there was no taking within the meaning of the constitutional provision. In Vansant v. United States, 75 C. Cls., 562, 566-7, this court said: In order to come within the constitutional provision there must be shown to have been an exercise, by the United States, of a proprietary right for a greater or less time, in the property taken. A taking within the meaning of the amendment must have been an intentional appropriation of the property to the public use, and the appropriation must have been authorized by law. * On the other hand, it has been repeatedly held, and the correctness of the rule is not open to question, that where land is merely damaged by the impairment of its use or value as an incidental consequence of the lawful exercise of power by the Government there is no taking. There is much similarity between the facts of the present case and those of Horstmann v. United States, 48 C. Cls. 423, affirmed 257 U. S. 138. Remembering the questionable causal connection between defendant's removal of gravel and plaintiff's necessity to rebuild its dam in the instant case, Mr. Justice McKenna's discussion of the matter of the Government's intention is particularly apropos. In the Horstmann case supra, the construction and operation of a Government irrigation project by which water was brought into the watershed apparently resulted in water percolating through the ground so as to cause an unforeseen flooding of the claimant's soda lakes. It was claimed this constituted a taking and appropriation by the United States. The Government took issue with claimant as to the causal connection between its works and the injury to claimant's properties. Mr. Justice McKenna, noting that the "lower court's decision was the Scotch verdict of 'not proved"" went on to state (pages 145-6): However, we need not arbitrate the contentions but will assume with appellants that there was causal connection between the work of the Government and the rise of waters in the lakes, and the consequent destruction of the properties of appellants, but it does not follow that 263 Opinion of the Court the Government is under obligation to pay therefor, as for the taking of the properties. It is to be remembered that to bind the Government there must be implication of a contract to pay, but the circumstances may rebut that implication. In other words, what is done may be in the exercise of a right and the consequences only incidental, incurring no liability. Bedford v. United States, 192 U. S. 217; Kansas v. Colorado, 206 U. S. 46; Tempel v. United States, supra. If we assume that there was a substantial causal connection between the removal of gravel by the Government in the instant case, and the lowering of the stream bed at the site of plaintiff's diversion dam, to such an extent as to require plaintiff to substitute a concrete dam in place of its periodic gravel dams, still it does not follow, as of course, that the Government is under obligation to pay for the concrete dam, as for a taking of plaintiff's privilege to dam the stream each year with gravel from the stream bed. Under the doctrine illustrated by the Horstmann case there must be some implication of a promise to make the compensation required by the Constitution where there is an intentional taking of private property for public use. The necessity of an intention to take, as a limitation upon the generality of expression found in the Lynah case, is clearly pointed out by the Supreme Court in the Horstmann case, and again in its opinion in the Portsmouth Co. case, reiterating the proposition stated in the earlier hearing of the case (Peabody v. United States, 231 U. S. 530, 538). The intention to impose a servitude upon the land was deemed a prerequisite to the implication of a contract to pay. In the present case "it would border on the extreme" to say that the Government intended a taking by the act of removal of gravel from the stream bed a substantial distance below plaintiff's dam. 4. The prescriptive easement acquired by plaintiff did not include a withdrawal of the right in the servient land owners to use the gravel in the stream bed below the dam, beyond the amount plaintiff might reasonably require to restore its gravel dam each year. In any event the removal of gravel by |