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Opinion of the Court

107 C. Cls. defendant under the circumstances shown in this case would not constitute a taking.

Since the sole gravamen of plaintiff's action appears to be the interference by defendant of some supposed right in plaintiff restricting the right of the servient owners to enjoy the normal use of their property, we may inquire first whether there is a proper foundation for the claim of plaintiff to such a negative easement on the land from which the gravel was removed. This would be preliminary to the further consideration whether the removal of gravel by defendant was a taking of plaintiff's property or whether the effect upon plaintiff's affirmative easement for a dam was not merely a consequential damage.

It must be remembered that plaintiff's entire right in the property involved arises solely from its prescriptive use starting in 1932. "In the case of prescriptive easements, the mode and extent of user of the servient tenement permissible are determined, generally speaking, by the mode and extent of the user during the prescriptive period." Tiffany, Law of Real Property (3d ed.), sec. 808. The mode and extent of plaintiff's user during the prescriptive period, insofar as they might have evidenced to the Catletts and the Lincoln Packing Company some hostile claim, as of right in the plaintiff, to the gravel below the dam site, would have warned them only that plaintiff was asserting a right to scrape up gravel each irrigation season in such quantity in the area adjacent to its dam site as might be necessary to back up the water in the stream to the diversion canals. To so extend the claim of a prescriptive right to erect and maintain a diversion dam as to include therein a collateral right to restrict in the fashion now claimed by plaintiff, the servient owners' use of the lower stream bed, would compel a reexamination of, and cast a serious doubt upon, the conclusion that the nature of plaintiff's use was so openly and notoriously adverse to the owners as to give rise to a presumption of knowledge on the part of the owner that the person so using his premises was doing so under a claim of right.

The findings will not, therefore, support a conclusion that by plaintiff's prescriptive user the normal privilege of the servient owners to use the gravel in the stream bed below

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Opinion of the Court

the dam had been restricted to such use as would not in any way contribute to the gradual washing downstream of the gravel from above so as to ultimately lower the stream bed at the site of plaintiff's dam.

Even if such limitation of use could be implied the necessary evidence of any intention on the part of the defendant to appropriate this negative right for a public purpose is entirely absent. Indeed, the facts set out in the findings make it apparent that the representatives of the Government, in doing what they did, had no intention of interfering with plaintiff's enjoyment of its easement, and no intention of doing anything with regard thereto subjecting the Government to liability. Neither plaintiff nor the Government men were aware of the effect that the removal of gravel downstream ultimately would have touching plaintiff's dam. The ultimate effect, unforeseen at the time, was at most not a destruction of plaintiff's easement but simply an injury which could be and was remedied at an expense. The case is one, then, similar to Mills v. United States, 46 Fed. 738, where recovery against the United States for expense in raising the levees around the plaintiff's rice fields and providing a new means of drainage, necessitated by Government work on the Savannah River, was refused. In distinguishing the Mills case from the facts before the court in United States v. Lynah, supra, Mr. Justice Brewer observed (p. 474):

Obviously, there was no taking of the plaintiff's lands, but simply an injury which could be remedied at an expense as alleged of $10,000, and the action was one to recover the amount of this consequential injury. The court rightfully held that it could not be sustained. Here there is no finding, no suggestion, that by any expense the flooding could be averted. * * But as a practical matter, and for the purposes of this case, we must under the findings regard the lands in controversy as irreclaimable and their value wholly and finally destroyed.

It is true that substantial expense to plaintiff may be traced inferentially from defendant's removal of gravel, but as stated in United States v. Cress, supra, "it is the character of the invasion, not the amount of damage resulting from it,

Opinion of the Court

107 C. Cls.

so long as the damage is substantial, that determines the question whether it is a taking."

In Southern Pacific Co. v. United States, 58 C. Cls. 428, the Government, under authority of Congress, constructed a jetty or breakwater at the mouth of a bay, the effect of the construction causing the waters of the ocean to break with such force against plaintiff's railroad, located on the land bordering the bay, as to wash away and destroy a section thereof. The plaintiff constructed a bulkhead to protect its property at a cost of $55,916.28, and showed that it would be compelled to expend $25,000 additional. It alleged that this amounted to an appropriation of its property by the Government, and that it was entitled to just compensation for damages to its right of way, estimated on the basis of what it has and will cost it to repair such damage. In dismissing the petition the court stated (p. 432) :

Moreover it does not appear that there has been a taking of property in this case for which just compensation can be awarded. It is true that the loss of property did not occur until the jetty had been built by the Government; that the building of the jetty caused the loss is matter of opinion; but assuming that there was some connection between the work of the Government and the flow of the ocean currents and the consequent loss or damage of the plaintiff's property, it does not follow that the Government is under obligation to pay therefor as for the taking of the property. * But in this

case the facts found preclude the implication of a promise to pay. The property was admittedly not taken for public use; there was no intention to take it; the damage done, if any, was consequential; what was done was done in the exercise of a right, and the consequences are incidental, and no liability is incurred.

III. The cost of replacing plaintiff's gravel dam with a permanent concrete structure would not be a proper basis upon which to fix just compensation even if the damage to the dam site was to be deemed a taking.

The criticism appearing at page 431 of the court's opinion in Southern Pacific Co. v. United States, supra, is applicable to the instant case:

No attempt has been made by the plaintiff in this case to show what the value of its right-of-way was,

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which it claims was appropriated; all it has proved is that its right-of-way and tracks were damaged, and that in order to prevent further damage it has expended a certain sum of money for that purpose. It is not suing here for the value of property destroyed but for work done to protect property not yet developed. We do not think that such an expenditure can be held to be a basis upon which to fix just compensation for property appropriated by the Government.

If it appeared in this case that the ineffectiveness of plaintiff's gravel diversion dam was definitely attributable to the defendant's wrong, and that nothing short of a permanent concrete structure could restore to plaintiff the value of its easement, the uncertainty as to the exact amount of expense which might be required to restore plaintiff to its former position would not be fatal to plaintiff's claim. As stated in Story Parchment Co. v. Patterson Co., 282 U. S. 555, 562, "The rule which precludes the recovery of uncertain damages applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount."

But on the record in this case it seems fairly inferable that though the removal of gravel by defendant may have brought about in substantial part the necessity to replace the dam in 1943, even without that contributing factor the stream bed would have ultimately washed and eroded to such a depth that plaintiff would have found the gravel dam ineffective. This is especially true since the building of another dam above the reservoir dam had, according to the evidence, prevented the downflow of debris and mountain silt, which had helped to hold the gravel in place below the diversion dam, and had thus caused the natural erosion to be accelerated. Then, too, other contractors than the Government Army units removed considerable quantities of gravel and the record is uncertain as to how much this contributed to plaintiff's damages. Hence it cannot be said that the full cost of the concrete dam was definitely attributable to defendant's act.

It would seem rather strange to hold that plaintiff, as the holder of a mere prescriptive right, could scrape up the gravel of the owner each year, throw it across the channel, cut it

Syllabus

107 C. Cls. at the end of the season and permit it to wash away, thus removing it entirely from the premises, and that the title-owner would be compelled to go to other sources for any gravel it wished to use, when these outside sources were just as available to the holder of the prescriptive right as they were to the title-owner. We get bogged down when we attempt to follow plaintiff's logic which leads inevitably to that conclusion.

It follows that plaintiff's petition should be dismissed. It is so ordered.

MADDEN, Judge; WHITAKER, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur.

ALBERT & HARRISON, INCORPORATED, A CORPORATION v. THE UNITED STATES

[No. 46125. Decided December 2, 1946]*

On the Proofs

Government contract; misleading drawings; recovery for extra work.— Where, in response to defendant's invitation for bids, plaintiff, a contractor, submitted a bid for the renovation of certain Army buildings, which bid was accepted, and where it is found that the drawings submitted by the defendant with the invitation for bids were misleading and that plaintiff's bid was based thereon; it is held that plaintiff is entitled to recover for the cost of extra work necessary to complete the contract. Same; contract executed under duress.-Where after submitting its bid, based upon misleading drawings, contractor discovered the error in the drawings and requested that new bids be called for; and where the Government thereupon threatened to forfeit the plaintiff's bid bond if it did not sign the contract and proceed with the work; and where, after oral protest, the contractor signed the contract and proceeded with and completed the work; it is held that the contract was signed under duress and plaintiff is entitled to recover. Same; misrepresentation as to prevailing wage rate.—Where the specifications which accompanied the invitation for bids stated that the minimum wage rates fixed by the Secretary of Labor, under the statute, were $1.50 per hour for bricklayers on public buildings in the area; and where it is found that the wage rate so fixed was in fact $1.75 per hour, which rate plaintiff was re

*Defendant's petition for writ of certiorari pending.

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