APPEAL FROM THE COURT OF CLAIMS.
MR. JUSTICE SHIRAS delivered the opinion of the court.
The facts of this case, as found by the Court of Claims, (25 Ct. Cl. 87, 329,) are as follows:
Since February 28, 1880, the appellees have been the owners of a tract of land in the District of Columbia, known as lot 11 of original lot 2 of the subdivision made by the heirs of John Little of parts of tracts called "James Parks" and "Mt. Pleasant," and containing about eight acres. On the 21st day of August, 1883, the said ground was improved by a dwellinghouse and other buildings and a valuable well of water, necessary to supply water for family use and other purposes, the said property being occupied by the owners as a dwelling.
On that day proceedings were begun by the publication of a notice, under the act of Congress of July 15, 1882, to increase the water supply of the city of Washington, (22 Stat. 168, c. 294,) to condemn a right of way for a tunnel in the neighborhood of this ground, and the government afterwards constructed such tunnel by blasting and digging at a depth of 150 to 170 feet below the surface in the immediate neighborhood
of said property, and about 500 feet distant from the said well.
The well had been used for many years before the construction of the tunnel. There was no direct evidence as to the effect of the tunnel on the well, but during the process of construction and blasting, about one hundred and fifty yards from the premises, the well became dry and it has so remained. It does not appear that there was any other cause affecting the well. By reason of the construction of the tunnel, as the Court of Claims finds, the well was drained and destroyed, to the damage of the owners in the sum of fifteen hundred dollars, no portion of which has been paid or tendered by the government.
This well, at the time of its destruction, was sixty feet deep, and it does not appear that it was supplied by a distinct vein of water running into it. The tunnel is impervious to water, and water from the outside does not soak into it. The land on which the well was located is not embraced in the map and survey of lands to be taken under the act of Congress.
Upon these facts the court below adjudged that the plaintiffs, the owners of said land, were entitled to recover the sum of fifteen hundred dollars, and judgment was entered for that amount.
Whether, under the constitutional provisions of the United States and of the several States, which declare that private property shall not be taken for public use without just compensation, it is necessary that property should be absolutely taken in the narrowest sense of that word to bring the case within the protection of the provision, is a question that has often arisen, and upon which there has not been entire uniformity of decision.
"There may be," said this court, in the case of Pumpelly v. Green Bay Co., 13 Wall. 166, (syllabus,) "such serious interruption to the common and necessary use of property as will be equivalent to a taking within the meaning of the Constitution." "The cases which hold that remote and consequential injury to private property by reason of authorized public improvements is not taking such property for public use have
many of them gone to the utmost limit of that principle, and some beyond it, though the principle is a sound one in its proper application to many injuries so originating."
We do not find it necessary to consider on which side of the line thus suggested the present case would fall, for we agree with the court below in thinking that, in the act of Congress, under which this public work was done, are found provisions giving an express remedy for property damaged though not actually taken. The first section of the act is in the following terms:
"That the Secretary of War shall cause to be made a survey and map of the land necessary to extend the Washington Aqueduct from its present eastern terminus to the high ground north of Washington near Sixth Street extended, and of the land necessary for a reservoir at that point, the capacity of which shall not be less than three hundred million gallons; and a like survey and map of the land necessary for a dam across the Potomac River at the Great Falls, including the land now occupied by the dam, and the land required for the extension of said dam across Conn's Island to and upon the Virginia shore; and when surveys and maps shall have been made the Secretary of War and the Attorney General of the United States shall proceed to acquire to and for the United States the outstanding title, if any, to said land and water rights, and to the land on which the gate-house at Great Falls stands by condemnation.
"And in obtaining title to the right of way for the extension of said aqueduct, the Secretary of War and Attorney General may, in their discretion, secure title to a strip suitable for an avenue over such part of said aqueduct extended as they think proper: Provided, That at least one-half in value of such right of way shall be donated or dedicated by the owners to that public use: And provided ...