241 U. S. PITNEY, J., dissenting. adjoining land owned by a third party. It is this doctrine that underlies the decisions of this court in Bedford v. United States, 192 U. S. 217; and Jackson v. United States, 230 U. S. 1. The great hardship of the doctrine has been so generally recognized that many of the States have established constitutions providing in substance that private property shall not be taken or damaged for public use without compensation. Richards v. Washington Terminal Co., 233 U. S. 546, 554. A rule so harsh in its operation ought not to be extended; and this case very clearly stands on the other side of the line, and comes within a class of cases quite as well established, of which United States v. Grizzard, 219 U. S. 180, is an example. I cannot yield assent to the suggestion that the taking of the 31.4 acres, actually invaded and occupied by the construction of the dike, can be treated as a matter apart from the destruction of the 3,664.6 acres of claimants' lands immediately adjoining, which, as a direct result of the construction of the dike and because of the function that it performs, have been "rendered totally unfit for cultivation or any other profitable use by the owners thereof." Assuming, for the purposes of the argument, that if the Government itself, or some stranger, had owned the site of the dike, so that in the erection of it no actual invasion had been made upon claimants' lands, the Government would not have been liable on an implied assumpsit for the destruction thereby inflicted, it is sufficient to say that that is not this case. The whole of the lands in question were owned by claimants, and were in use as integral parts of a single plantation. There was an actual invasion and exclusive occupancy of claimants' lands in the construction of the dike, and the destruction of the adjoining lands was a direct and necessary consequence of the use made of the dike, and, in justice, must be regarded as an inseparable part of the taking. It is the established rule, recognized everywhere, that where PITNEY, J. dissenting. 241 U. S. only part of a tract of land is taken the owner is entitled not merely to the market value of the part taken, but to all damages to the remainder of his tract proximately resulting from the use made of the part actually taken; or, putting it in another way, he is entitled to the difference between the market value of the entire tract and the market value of that which is left; excluding from consideration, however, any general benefit that is shared by all landowners whose property is similarly circumstanced. A multitude of cases might be cited in support of this proposition, but it is not necessary, for they can be found in the text books and cyclopedias. The doctrine has been uniformly adhered to by this court. In Bauman v. Ross, 167 U. S. 548, 574, it was expressed thus: "When part only of a parcel of land is taken for a highway, the value of that part is not the sole measure of the compensation or damages to be paid to the owner; but the incidental injury or benefit to the part not taken is also to be considered. When the part not taken is left in such shape or condition, as to be in itself of less value than before, the owner is entitled to additional damages on that account. When, on the other hand, the part which he retains is specially and directly increased in value by the public improvement, the damages to the whole parcel by the appropriation of part of it are lessened." In Sharp v. United States, 191 U. S. 341, 353, 354, an attempt was made to apply the same rule to separate and independent farms owned by the same owner and having no necessary relation to each other, the farming on each having been conducted separately, and each farm having its own house and outbuildings. The court said: "Upon the facts which we have detailed, we think the plaintiff in error was not entitled to recover damages to the land not taken because of the probable use to which the Government would put the land it proposed to take. If the remaining land had 241 U.S. PITNEY, J., dissenting. been part of the same tract which the Government seeks to condemn, then the damage to the remaining portion of the tract taken, arising from the probable use thereof by the Government, would be a proper subject of award in these condemnation proceedings. But the Government takes the whole of one tract." In United States v. Grizzard, 219 U. S. 180, 182, 183, which was an action by the owners of a farm for a taking of a part of it by the United States for public purposes, the court said: "Reference has been made to the well-known class of cases touching an injury to land not taken by the construction of a railroad along and upon an abutting public road, or a change of grade to the damage of adjacent property, and like indirect injuries to the use of property adjacent but of which nó part was taken from the owner. Transportation Co. v. Chicago, 99 U. S. 635; Sharp v. United States, 191 U. S. 341. But here there has been an actual taking by permanently flooding a part of the farm of the defendants in error. An incident of that flooding is that a public road running across the flooded land is also flooded. But if this were not so, and the roadway had simply been cut off by the interposition of the flooded portion of the farm, the damage would be the same. Since, therefore, there has been a taking of a part of the owners' single tract and damage has resulted to the owners' remaining interest by reason of the relation between the taken part and that untaken, or by reason of the use of the taken land, the rule applied in the cases cited does not control this case. Whenever there has been an actual physical taking of a part of a distinct tract of land, the compensation to be awarded includes not only the market value of that part of the tract appropriated, but the damage to the remainder resulting from that taking, embracing, of course, injury due to the use to which the part appropriated is to be devoted." Bedford v. United States, 192 U. S. 217, 225, is clearly PITNEY, J., dissenting. 241 U.S. distinguishable, it being an instance of consequential damages to the claimants' land by reason of Governmen operations conducted six miles farther up the river. There was no actual invasion of any part of their land, and therefore no responsibility for the consequential damages arising from the Government operations. Jackson v. United States, 230 U. S. 1, 23, was likewise a case of consequential damages without actual taking of any part of the claimant's lands. It was decided both in the Court of Claims (47 Ct. Cl. 579, 613) and by this court upon the authority of the Bedford Case. It seems to me that the findings of the Court of Claims are sufficiently clear and definite to furnish the materials for a proper judgment upon the claim in controversy; that an actual invasion and occupation of a part of claimants' lands, particularly described, by the agents of the United States, in the construction of the dike under the authority of acts of Congress, is shown, as well as the market value of the particular part actually invaded and of the larger and adjacent portion of the same tract necessarily destroyed as a direct and immediate result of the construction and maintenance of the dike. I also think that the case comes clearly within the authority of United States v. Grizzard, supra, and that the judgment under review should be affirmed. More than eight years have elapsed since the practical destruction of the greater part of claimants' plantation; nearly seven years since the suit was commenced. And as no interest is allowable against the Government in a case of this kind up to the time of the rendition of judgment in the Court of Claims, (§ 1091, Rev. Stat., § 177, Jud. Code; Tillson v. United States, 100 U. S. 43, 47; Harvey v. United States, 113 U. S. 243) any unnecessary postponement of the judgment is a virtual denial of justice. For these reasons, I dissent. 241 U. S. Statement of the Case. WHITE, RECEIVER OF COWARDIN, BRADLEY, CLAY & CO. v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 309. Argued April 19, 1916.-Decided May 1, 1916. As the plans annexed to the contract for construction of a filtration plant and reservoir showed a roadway around the reservoir, as also did plans subsequently furnished the contractor, and the engineer in charge of the work, gave the grade lines of such roadway, and the voucher for the first payments included work thereon, held, that although there was ambiguity in the contract, the roadway was included in the contract and the contractor is entitled to be compensated for work done thereon in accordance with the terms of the contract. 48 Ct. Cl. 169, reversed. APPELLANT is the receiver of the firm of Cowardin, Bradley, Clay & Company, and the successor of one John D. McClennan. The latter filed in the Court of Claims a petition, subsequently amended by appellant, praying a judgment against the United States for the sum of $43,510, the amount due that company on a contract for labor and materials furnished for the construction of a filtration plant in the District of Columbia. The court found, among other things, that there is a driveway running completely about the reservoir, which is an irregularly shaped body of water, comprising the western and southern part of the filtration plant. The starting point of "the roadway" (so-called by the court), its course and termination are stated. The set of plans attached to the written contract and by its terms made a part of the agreement included certain plans showing the roadway bordering the reservoir west of the filter beds. One of the plans (sheet 2) was a draw |