US SUPREME COURT DECISIONS

The servitude to the interests of navigation of privately owned lands forming the banks and bed of a stream is a natural servitude, confined to such streams as in their ordinary and natural condition are susceptible of valuable public use in navigation, and confined to the natural condition of such streams.

When navigable streams affording ways of commerce between states are improved by the federal government by means of locks and dams which raise the water above its natural level, the streams as thus improved remain navigable waters of the United States for all purposes of federal jurisdiction and regulation.

The power of the federal government to improve navigable streams in the interest of interstate and foreign commerce must be exercised, when private property is taken, in subordination to the Fifth Amendment.

In improving the navigation of the Cumberland River, in Kentucky, under the commerce power, the federal government, by means of a lock and dam, raised the water above the natural level so that lands on a nonnavigable tributary, not normally invaded thereby, were subjected permanently to periodical overflows substantially injuring, though not destroying, their value. Held, in an action for damages under § 24 of the Judicial Code (derived from the Tucker Act):

(1) That this amounted to a partial taking of the property.

(2) That the United States was liable ex contractu to compensate the owner to the extent of the injury.

(3) That, upon payment, the United States would acquire an easement to overflow the land as often as would necessarily result from the use of the lock and dam for navigation, the fee, however, remaining in the private owner.

(4) That the riparian owner also was entitled to compensation for impairment of the value of his land caused by the destruction of a chanrobles.com-red

Page 243 U. S. 317

ford over the tributary used in connection with a private way appurtenant to the land.

A like improvement of the Kentucky River, in Kentucky, by raising its water above natural level raised in like manner the water in a nonnavigable tributary on which were a privately owned mill and millsite, thus ending the usefulness of the mill by doing away with the head of water necessary to run it. Held that the mill owner, to whom also, under the law of Kentucky, belonged the bed of the tributary with the right to have the water flow there free from artificial obstruction, was entitled ex contractu to recover from the United States an amount equal to the depreciation of the mill property resulting from the loss of water power.

The right to have the water of a nonnavigable stream flow away from riparian land without artificial obstruction is not a mere easement or appurtenance, but exists by the law of nature as an inseparable part of the land itself.

Section 152 of the Judicial Code, permitting costs against the United States in claims cases, although appearing in the chapter entitled "The Court of Claims," is not confined to cases in that court, but applies also when the district court is exercising concurrent jurisdiction under § 24. This conclusion results from a consideration of the Tucker Act, of March 3, 1887, c. 359, 24 Stat. 505, and §§ 294 and 295 of the Code, read in connection with the repealing section, 297.

The cases are stated in the opinion.