purely statutory right. The jurisdiction of the court of claims cannot be enlarged by implication. It matters not what may seem to this court equitable, or what obligation we may deem ought to be assumed by the government, or the Indian tribe whose members were guilty of this depredation, we cannot go beyond the language of the statute and impose a liability which the government has not declared its willingness to assume. It is useless to cite all the authorities, for they are many, upon the proposition. It is an axiom of our jurisprudence. The govern376]ment *is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it. See, among other cases, Schillinger v. United States (155 U. S. 163, 166 [39: 108, 110]), in which this court said: "The United States cannot be sued in their courts without their consent, and in granting such consent Congress has an absolute discretion to specify the cases and contingencies in which the liability of the government is submitted to the courts for judicial determination. Beyond the let ter of such consent the courts may not go, no matter how beneficial they may deem or in fact might be their possession of a larger jurisdiction over the liabilities of the government."

the court to an inquiry into these matters doubtless many questions of difficulty might arise, but as it has only declared its willingness to subject the government to liability for property taken or destroyed we may not go beyond that and adjudge a liability not based upon the taking or destruction of property, but resulting from the destruction or taking of certain property to other property not taken or destroyed. Questions, such as arose in Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166 [20: 557], as to the scope of constitutional limitations upon the right to take property without full compensation, are not pertinent to the present inquiry; for, while if the court had free hand and could adjudge a liability upon the government commensurate to the wrong done, one conclusion might follow therefrom, yet we are limited by the other fact that the liability of the government to suit is a matter resting in its discretion, and cannot be enlarged beyond the terms of the act permitting it. Consequential damages to property not taken or destroyed are not within the scope of the act authorizing recovery for damages to property taken or destroyed.

extent heretofore indicated by the quotation from the statute is this, expressed in the subsequent part of the same section:

We have thus far considered the case as though it were one de novo and in no way affected by prior proceedings in the Interior Department. As heretofore indicated, notNow the jurisdiction given by the act of withstanding the limited scope of the find1891 to the court of claims is over "all ings, we think we ought, in view of the opinclaims for property of citizens of the United ion of the Court of Claims, to consider the States taken or destroyed by Indians," etc. case in the attitude of one for which an So far as any property was taken or de- award had been made by the Secretary of stroyed by the Indians the judgment of the the Interior; that award including, not court of claims awards full compensation merely damages for the property taken and therefor, and no question is made as to the destroyed, but also what, as we have shown, judgment in that respect. The single con- were merely consequential damages. Here tention of the plaintiff is that because of the we are met by the contention of the plaintiff taking of certain property the value of other that larger jurisdiction is given to the court property not taken or destroyed was, under of claims in respect to matters thus deterthe conditions surrounding the petitioner mined by the Secretary of the Interior. Beand such property, diminished. This dim-yond the general jurisdiction given to the inution in value did not arise because of any change in its quality or condition, but simply because the petitioner left in possession of that property was, in consequence of the taking away of the means of transportation, unable to carry it to a place where its full value could be realized. In other words, the damages which he thus claims do not consist in the value of property taken or destroyed, but are those which flow in consequence of the taking to property which is neither taken nor destroyed. In brief, he asks consequential damages. Now, as we have said, we are not at liberty to consider whether there may not be some equitable claim against the government or the Indians for such consequential damages. We are limited to the statutory description of the obligations which the government is willing to assume and which it has submitted to the court of claims for determination. We may not enter into the wide question of how far an individual taking or de[377]stroying property *belonging to another may be liable for all the damages which are consequential upon such injury or destruction. If Congress had seen fit to open the doors of

"Second. Such jurisdiction shall also extend to all cases which have been examined[378] and allowed by the Interior Department and also to such cases as were authorized to be examined under the act of Congress making appropriations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June thirtieth, eighteen hundred and eightysix, and for other purposes, approved March third, eighteen hundred and eighty-five, and under subsequent acts, subject, however, to the limitations hereinafter provided."

It is contended that in cases coming under this clause the court of claims may award all damages which the Secretary of the Interior has or might have given to the petitioner. Conceding, for the purpose of the argument, that this contention is justified, we cannot see that therefrom any new measure of liability is established, or, at least, none that will avail this petitioner. The act of March 3, 1885 (23 U. S. Stat. at

L. chap. 341, page 376), which provided for the investigation by the Interior Department of claims on account of Indian depredations, and under which it is alleged that the Secretary acted in making his award, authorized the Secretary "to determine the kind and value of all property damaged or destroyed by reason of the depredations aforesaid." The contention is that the terms "damaged or destroyed" enlarge the scope of the liability assumed by the government. We are unable to perceive that this is of any significance in this case. The property left in the possession of the petitioner was neither damaged nor destroyed by the action of the Indians in taking away the other property. Its inherent intrinsic value was in no manner disturbed. The damages were not to the property, considered as property, but simply consequential from the wrong done, and consisted solely in the fact that the petitioner, wronged by the taking away of certain property, was unable to realize the real value of property not taken, damaged, or destroyed. Nothing was done by the Indians to disturb the intrinsic value of the property left in possession of the petitioner. It remained his with full right of control and disposition, in no [379]manner *marred or changed in value, and the sum of the injury results only from the fact that he could not remove it to a suitable market. The property, in itself considered, was neither taken, damaged, nor destroyed. The only result was that his ability to make use of that value was taken away because his means of transportation were destroyed. The damages were, therefore, consequential, and not to the property itself. We do not perceive how, under the statute, the liability of the government was enlarged by this


The judgment of the Court of Claims is therefore affirmed.

review a judgment of that court affirming the judgment of the Circuit Court of the United States for the District of Washington in favor of Serette Freeman et al., widow and minor children of Thomas A. Freeman, against the Northern Pacific Railway Com pany for damages for the death of said Thomas A. Freeman caused by the negli gence of said railway company. Reversed and cause remanded, with directions to grant a new trial.

See same case below, 48 U. S. App. 757, 83 Fed. Rep. 82, 27 C. C. A. 457.

Statement by Mr. Justice Brown: *This was an action by the widow and mi(380) nor children of Thomas A. Freeman, orig inally brought in the circuit court for the District of Washington against the receiver of the Northern Pacific Railroad Company, and subsequently, after the discharge of the receiver, continued against the Northern Pacific Railway Company, purchaser at the foreclosure sale, which, by virtue of the provisions of the decree of sale, had assumed the liabilities of the receiver. The object of the action was to recover damages on account of the death of Thomas A. Freeman, which was alleged to have occurred by reason of the negligence of the company.

The accident occurred at a highway crossing near the eastern corporate limits of the town of Elma, in the county of Chehalis, in the state of Washington, at a point where the highway crosses the railway track nearly at right angles.

Upon the trial, counsel for the railway company asked the court to instruct the jury to return a verdict for the defendant, upon the ground that the undisputed testimony showed that the deceased, as he approached the railway crossing, did not look up or down the track, and did not see the train which was approaching in full view, and therefore was guilty of such contributory negligence as to preclude the plaintiffs from recovering damages. This the court refused, but left the case to the jury under the following instruction, to which exception was taken: "Where a party cannot see the approach of COM-a train on account of intervening objects, he

Mr. Justice White, Mr. Justice Peckham, and Mr. Justice McKenna dissented.

PANY, et al., Plffs. in Err.,



(See S. C. Reporter's ed. 379–384.)

Contributory negligence.

Where a person approached a railway crossing
well known to him, when a coming train was
In full view, and he could have seen it while

40 feet distant from the track if he had used
his senses, but did not look, or took the
chance of crossing the track before the train
reached him, and was killed, he was guilty of
contributory negligence.

[No. 241.]

may rely upon his ears, and whether he should have stopped and listened under the circumstances is for you; and if you believe from the evidence that deceased, Thomas A. Freeman, acted as a man of ordinary care and prudence would have done as he ap proached the crossing, then your verdict should be for the plaintiffs, in case you find that the defendants were negligent and that the collision was due to their negligence."

Counsel further excepted to the following instruction: "There has been some testimony tending to show that the deceased might have seen the approaching train some feet before he reached the track. If you be lieve that the deceased could have seen the approaching train when he was within a few

Argued and Submitted April 13, 1899. De- *feet of the track, then it is for you to say,

cided May 15, 1899.

under all the circumstances, whether be used reasonable precaution and care to avoid

IN to United Circuit

'N ERROR to the United States Circuit the collision."

Exception was also taken to an instrue

tion to the jury upon the subject of dam- | U. S. 571, 34 L. ed. 241; Texas & P. R. Co. v. ages, which does not become material here. Cody, 166 U. S. 606, 41 L. ed. 1132. Plaintiffs recovered a verdict, upon which Contributory negligence of the party injudgment was entered for $9,000. The judg-jured would not prevent him from recovering ment was affirmed on writ of error by the cir- if the defendant might, by the exercise of reacuit court of appeals for the ninth circuit, sonable care and prudence, have avoided the one judge dissenting. 48 U. S. App. 757. consequences of plaintiff's negligence.

Mr. C. W. Bunn, for plaintiff in error: The facts conclusively proved here are that the deceased did not look and did not see the train until just as the collision occurred.

Chicago, R. I. & P. R. Co. v. Houston, 95 U. S. 697, 24 L. ed. 542; Schofield v. Chicago, M. & St. P. R. Co. 114 U. S. 615, 29 L. ed. 224; Texas & P. R. Co. v. Gentry, 163 U. S. 353, 41 L. ed. 186; Cleveland, C. C. & I. R. Co. v. Elliott, 28 Ohio St. 340; Pennsylvania R. Co. v. Beale, 73 Pa. 504, 13 Am. Rep. 753; Schaefert v. Chicago, M. & St. P. R. Co. 62 Iowa, 624.

Under the circumstances, ordinary care required that he should have stopped and looked and listened at some place, since there was nothing to prevent his doing so and nothing to distract his attention.

Brown v. Milwaukee & St. P. R. Co. 22 Minn. 165; Abbett v. Chicago, M. & St. P. R. Co. 30 Minn. 482; Mantel v. Chicago, M. & St. P. R. Co. 33 Minn. 62; Haas v. Grand Rapids & I. R. Co. 47 Mich. 401; Brady v. Toledo, A. A. & N. M. R. Co. 81 Mich. 616;| Nelson v. Duluth S. S. & A. R. Co. 88 Wis. 392; Moore v. Keokuk & W. R. Co. 89 Iowa; 223; Salter v. Utica & B. River R. Co. 75 N. Y. 273; Cincinnati, H. & I. R. Co. v. Duncan, 143 Ind. 524; Philadelphia, W. & B. R. Co. v. Hogeland, 66 Md. 149, 59 Am. Rep. 159; Tully v. Fitchburg R. Co. 134 Mass. 499; Butterfield v. Western R. Corp. 10 Allen, 532, 87 Am. Dec. 678; Tolman v. Syracuse, B. & N. Y. R. Co. 98 N. Y. 198, 50 Am. Rep. 649; Powell v. New York C. & H. R. R. Co. 109 N. Y. 613.

Messrs. Stanton Warburton, J. B. Bridges, O. V. Linn, Sidney Moor Heath, and Hudson & Holt, for defendant in error: There was sufficient evidence for the court to submit the case to the jury.

Chesapeake & O. R. Co. v. Steele, 54 U. S. App. 550, 84 Fed. Rep. 93, 29 C. C. A. 81; Mount Adams & E. P. Inclined R. Co. v. Lowry, 43 U. S. App. 408, 74 Fed. Rep. 463, 20 C. C. A. 596; Travelers' Ins. Co. v. Mitchell, 47 U. S. App. 260, 78 Fed. Rep. 754, 24 C. C. App. 305; Dublin, W. & W. R. Co. v. Slattery, L. R. 3 App. Cas. 1155. Contributory negligence cannot avail the defendant unless shown by a preponderance

of the evidence.

Washington & G. R. Co. v. Gladmon, 15 Wall. 401, 21 L. ed. 114; Hough v. Texas & P. R. Co. 100 U. S. 213, 25 L. ed. 612; Inland & 8. Coasting Co. v. Tolson, 139 U. S. 551,35 L. ed. 270; Texas & P. R. Co. v. Volk, 151 U. S. 73, 38 L. ed. 78; Texas & P. R. Co. v. Gentry, 163 U. S. 353, 41 L. ed. 186; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 298, 23 L. ed. 900.

As a general rule the question of contributory negligence is one for the jury.

Washington & G. R. Co. v. McDade, 135

Inland & S. Coasting Co. v. Tolson, 139 U.
S. 551, 35 L. ed. 270; Washington & G. R.
Co. v. McDade, 135 U. S. 554, 34 L. ed. 235;
Grand Trunk R. Co. v. Ives, 144 U. S. 429,
36 L. ed. 493; Delaware, L. & W. R. Co. v.
Converse, 139 U. S. 469, 35 L. ed. 213.

The question of negligence on the part of
defendant was one of fact for the jury to de-
termine. So also the question of whether
there was negligence in the deceased which
was the proximate cause of the injury was
such a question for the jury.

Cincinnati, N. O. & T. P. R. Co. v. Farra, 31 U. S. App. 306, 66 Fed. Rep. 496, 13 C. C. A. 602; Chicago & N. W. R. Co. v. Tripkosh, 32 U. S. App. 168, 406, 67 Fed. Rep. 665, 14 C. C. A. 615; Lynch v. Northern P. R. Co. 29 U. S. App. 664, 69 Fed. Rep. 86, 16 C. C. A. 151; Texas & P. R. Co. v. Spradling, 30 U. S. App. 698, 72 Fed. Rep. 152, 18 Č. C. A. 496; Northern C. R. Co. v. Herchiskel, 38 U. S. App. 659, 74 Fed. Rep. 460, 20 C. C. A. 593; Cobleigh v. Grand Trunk R. Co. 75 Fed. Rep. 247; St. Louis & S. F. R. Co. v. Barker, 40 U. S. App. 739, 77 Fed. Rep. 810, 23 C. C. A. 475; Baltimore & O. R. Co. v. Griffith, 159 U. S. 603, 40 L. ed. 274.

The question presented in this case is
whether plaintiff looked and listened within
a reasonable distance of the crossing. What
is a reasonable distance is a question to be
determined with regard to all the circum-
stances of this particular case, and is not a
matter of legal judgment, but one of practi-
cal experience.

Wood, Railroads, 1522, 1530, 1548; Nosler
v. Chicago, B. & Q. R. Co. 73 Iowa, 268;
Lindeman v. New York C. & H. R. R. Co. 42
Hun, 306; Cleveland, C. & C. R. Co. v. Craw-
ford, 24 Ohio St. 631, 15 Am. Rep. 633;
Eagan v. Fitchburg R. Co. 101 Mass. 315;
Lehigh Valley R. Co. v. Hall, 61 Pa. 361;
Eilert v. Green Bay & M. R. Co. 48 Wis. 606.

In the absence of positive evidence to the
contrary it will be presumed that deceased
did all that a prudent man would have done
under the circumstances.

Texas & P. R. Co. v. Gentry, 163 U. S. 353,
41 L. ed. 186; Schum v. Pennsylvania R. Co.
107 Pa. 8, 52 Am. Rep. 468; Cleveland, C. &
C. R. Co. v. Crawford, 24 Ohio St. 636, 15
Stead, 95 U. S. 161, 24 L. ed. 403.
Am. Rep. 633; Continental Improv. Co. v.

*Mr. Justice Brown delivered the opin-[381] ion of the court:

es in the neighborhood tending to show that
There was testimony from several witness-
no whistle was blown by the engineer as the
train approached the crossing. There was
also the testimony of the conductor, engi-
neer, and fireman that the whistle was
blown. As the majority of plaintiffs' wit-
nesses were so located that they would prob-
ably have heard the whistle if it had been
blown, there was a conflict of testimony with

respect to defendant's negligence which was properly left to the jury.

The real question in the case was as to the contributory negligence of plaintiffs' intestate. For several hundred feet on either side of the highway crossing there was a cut of about eight feet below the surface of the surrounding country, through which the railway ran. The highway approached the crossing by a gradual decline, the length of which was from 130 to 150 feet. Along the greater portion of this distance the view of a train approaching, either from the north or the south, was cut off by the banks of the excavation on either side of the highway; but at [882]a distance of about forty *feet before reaching the track the road emerged from the cut, and the view up the track for about 300 feet was unobstructed.

At the time of the accident, Freeman was driving along the highway, going eastward from the town of Elma in a farm wagon drawn by two horses at a slow trot. He was a man thirty years of age, with no defect of eyesight or hearing, and was familiar with the crossing, having frequently driven the same team over it. The horses were gentle and were accustomed to the cars.

The duty of a person approaching a railway crossing whether driving or on foot, to look and listen before crossing the track, is so elementary and has been affirmed so many times by this court, that a mere reference to the cases of Chicago, R. I. & P. Railroad Company v. Houston, 95 U. S. 697 [24: 542], and Schofield v. Chicago M. & St. Paul Railway Co. 114 U. S. 615 [29: 224], is a sufficient illustration of the general rule.

There were but three witnesses to the accident. Two of these were women who were walking down the highway, and approaching the crossing on the opposite side, facing the team. At the time the deceased was struck by the train, they were from 200 to 250 feet away. They testified that the horses were coming down at a slow trot, not faster than a brisk walk, and that their speeed was uniform up to the time of the accident; that the deceased looked straight before him, without turning his head either way; that the team did not swerve but trotted directly on to the crossing, and that the deceased made no motion to stop until just as the engine struck him. The other witness was a little girl, ten years of age, who was standing on the hill on the opposite side of the track, near the point where the descent of the highway into the cut began, and was consequently from 130 to 150 feet from the railway track. The deceased passed her and two other young children who were with her. She testified that as he passed his head was down, and he was looking at his horses; that "they went down aways, and then they run and flew back;" that they were going at a slow trot; that when Freeman saw the train he tried to [383]pull the horses around, as *if he were trying to get out of the way, when the train struck them.

Another witness was driving behind the team, but he testified to nothing which bore upon the material question whether the de

ceased took any precaution before crossing the track.

So far, then, as there was any oral testimony upon the subject, it tended to show that the deceased neither stopped, looked, nor listened before crossing the track, and there was nothing to contradict it. Assuming, however, that these witnesses, though uncontradicted, might have been mistaken, and that the jury were at liberty to disregard their testimony and to find that he did comply with the law in this particular, we are confronted by a still more serious difficulty in the fact that if he had looked and listened he would certainly have seen the engine in time to stop and avoid a collision. He was a young man. His eyesight and hearing were perfectly good. He was acquainted with the crossing, with the general character of the country, and with the depth of the excavation made by the highway and the railway. The testimony is prac tically uncontradicted that for a distance of forty feet from the railway track he could have seen the train approaching at a distance of about 300 feet, and as the train was a freight train, going at a speed not exceeding twenty miles an hour, he would have had no difficulty in avoiding it. When it appears that if proper precautions were taken they could not have failed to prove effectual, the court has no right to assume, especially in face of all the oral testimony, that such precautions were taken. The comments of Mr. Justice Field in Chicago, R. I. & P. Railroad Company v. Houston, 95 U. S. 697, 702 [24: 542, 544], are pertinent in this connection: "Negligence of the company's employees in these particulars" (failure to whistle or ring the bell) "was no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of cul-[384] pable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming and yet undertook to train to pass, and was injured, the consecross the track, instead of waiting for the quences of her mistake and temerity cannot be cast upon the defendant." dence of the three witnesses entirely, there If, in this case, we were to discard the eviwould still remain the facts that the deceased approached a railway crossing well known to him; that the train was in full view; that, if he had used his senses, he could not have failed to see it; and that, notwithstanding this, the accident occurred. Judging from the common experience of men, there can be but one plausible solution of the problem how the collision occurred. He did not look; or if he looked, he did not heed the warning, and took the chance of crossing the track before the train could reach him. In either case he was clearly guilty of contributory negligence.

Messrs. Charles W. Russell and John

*Mr. Justice White delivered the opinion[385] of the court:

The United States alleged in its bill substantially as follows:

The cases in this court relied upon by the
plaintiffs are all readily distinguishable, K. Richards, Solicitor General, for appellant.
either by reason of the proximity of obstruc- Mr. Edgar Wilson for appellee.
cions interfering with the view of approach-
ing trains, confusion caused by trains ap-
proaching simultaneously from opposite di-
rections or other peculiar circumstances
tending to mislead the injured party as to
the existence of danger in crossing the track.
Upon the whole, we are of opinion that the
testimony tending to show contributory neg-
ligence on the part of the deceased was so
conclusive that nothing remained for the
jury, and that the defendant was entitled to
an instruction to return a verdict in its fa-
vor. The disposition we have made of this
question renders it unnecessary to express
an opinion upon the instruction as to dam-

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That in July, 1864, in Boise county, territory of Idaho (now Ada county, state of Idaho), a tract of land was duly set aside as a military reservation for the establishment of a military post, and that the reservation was subsequently occupied as such post and so continued to be used by the government of the United States, for the purpose in question, up to the time when the bill was filed. It was alleged, moreover, that flowing across the reservation was a stream of water known as Cottonwood creek, which was non-navigable, but which afforded "an ample supply for the agricultural, domestic, and practical purposes of the officers and troops of said military post, and no more, and that said stream of water, together with all the uses and privThe CHIEF JUSTICE and Mr. Justice Har-ileges aforesaid, belong to and are the property lan dissented from the opinion of the court.


The judgment of the court below must therefore be reversed, and the cause remanded to the Circuit Court for the District of Washington, with directions to grant a new trial.




(See S. C. Reporter's ed. 385–391.)

Judgment, when not final.

of plaintiffs; and that from the time of the
occupancy and location of said post, to wit,
the month of July, A. D. 1864, the waters of
said stream have been continually used and
appropriated, and now are used and appro-
priated, for all *agricultural, domestic, and[386]
practical purposes by plaintiff, through its
said officers and troops."

The bill then averred that at a point on
said stream above the reservation the defend-
ant, his agents, and employees "are now, and
have been since June, 1894, actually engaged
A judgment of the circuit court of appeals in an in wrongfully and unlawfully diverting the
action by the United States, adjudging that waters of said Cottonwood creek, and the
defendant had acquired a valid right to the whole thereof, from their natural course over
waters of a non-navigable stream, wholly on and across the premises herein before de-
the public domain, as against the plaintiff, scribed. And the said defendant, his agents,
subject to the appropriation thereof by a and employees have, since said June, 1894,
military reservation, and remanding the cause been and now are actually engaged in divert-
to a lower court for further proceedings, is ing and appropriating the waters of said
not a final judgment for the purposes of an
appeal to this court, as it leaves the actual stream, and the whole thereof, and prevent-
rights of the parties to be settled by the lowering and obstructing the same from flowing
court, where defendant alleges that more
water was taken to the reservation than is
required, and used for other purposes, and
this question remains to be determined.

[blocks in formation]

APPEAL from the United States Circuit Court of Appeals for the Ninth Circuit to review a decree of that court reversing a decree of the Circuit Court of the United States for the District of Idaho and decreeing that the defendant, John Krall, had acquired a valid water right as against the United States in a stream of water known as Cottonwood Creek, which was non-navigable; and remanding the cause to said Circuit Court for further proceedings. Dismissed for want of jurisdiction.

See same case below, 48 U. S. App. 351, 79 Fed. Rep. 241, 24 C. C. A. 543.

The facts are stated in the opinion.

in its natural channel across the said mili
tary reservation, and thereby rendering the
said premises unfit for use and occupancy as
a military post."

Averring the illegality of defendant's acts
in diverting the water from the stream, and
that all the water flowing in its natural course
was essential for the purpose of the reserva-
tion, the bill asserted the title of the United
States to all the water in the stream, and

prayed that the defendant be enjoined from
appropriating any portion thereof for his use
"as aforesaid." In his answer the defendant
denied that the water drawn off by him de-
prived the reservation of water necessary for
any of its purposes and on the contrary
charged that there was sufficient water in the
stream to meet the demands, not only of the
water right, which he asserted was vested in
him, but also to supply every demand for wa-
ter which the reservation might need. He
alleged that pursuant to the laws of the ter
ritory of Idaho, in 1877, he had located a per-
petual water right for five hundred cubic
inches of water, at a point on the stream

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