[No. 29.] cember 9, 1918. in Minnesota, its court had the power 641. On or about August 21, 1917, Slimmer's executors filed their petition in the probate court for Ramsey county, Minnesota; and the court, in the exercise of its jurisdiction, appointed the defendant. Bechhoefer, special administrator. As such, he took and now holds, pending an appeal to the state district court, possession of the whole of decedent's estate, consisting of the notes and Liberty Bonds as well as the personal effects. The only effective relief sought here is to enjoin the further administration of the estate of the deceased by the courts of Minnesota. It is clear that the state of Iowa is not entitled to such relief. The motion for leave to file the bill of complaint is therefore denied. A suit by a riparian owner to recover the value of property taken by the United States government by dredging submerged lands for the purpose of deepening the channel of a navigable waterway is one upon a claim sounding in tort, and hence not justiciable by a Federal district court, under the Tucker Act of March 3, 1887 (24 Stat. at L. 505, chap. 359), where the government claimed at the time of the alleged taking, and still claims, that it already possessed the property right in question before it utilized it, viz., the right to use and improve the lands for purposes of navigation, and denies title in the plaintiff. For other cases, see Claims, 32, 105-131, in Digest Sup. Ct. 1908.] 1 The character of the river and rights | incidental thereto have been frequently considered by this court. Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. ed. 336; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442, 2 Sup. Ct. Rep: 185; Illinois C. R. Co. v. Illinois, 146 U. S. 387, 437, 36 L. ed. 1018, 1037, 13 Sup. Ct. Rep. 110; Harman v. Chicago, 147 U. S. Decided De N ERROR to the District Court of the trict of Illinois to review a judgment in United States for the Northern Disfavor of the United States in a suit by of property taken by the United States a riparian owner to recover the value government by dredging submerged lands Reversed and remanded, with directions for the purpose of improving navigation. to dismiss the suit for want of jurisdic tion. The facts are stated in the opinion. Mr. Thomas B. Lantry argued the cause, and, with Mr. Timothy F. Mullen, filed a brief for plaintiff in error. Solicitor General Davis argued the cause and filed a brief for defendant in error. Mr. Justice Brandeis delivered the opinion of the court: The Chicago river, its branches and forks, lie wholly within the state of Illinois.1 Their aggregate length is about 35 miles. Originally the stream was a sluggish creek, nearly stagnant during much of the year, and, in part, navigable only for rowboats and canoes or for [124] floating logs. The United States surveyed the river in 1837, but made no improvement above its mouth until 1896. Before the latter date, however, extensive improvements had been made from time to time by the city and by riparian owners. The river had become the inner harbor of Chicago, and, measured by its tonnage, was one of the most important waterways of the globe. In number of arrivals and departures of Vessels it led all the harbors of the UnitIn tonnage it was second ed States. only to New York.2 In 1896 Congress made an appropriation "for improving the Chicago river, in Illinois, from its mouth to the stockyards on the South branch and to Belmont avenue on the North branch, as far as may be permitted by existing 396, 37 L. ed. 216, 13 Sup. Ct. Rep. 306; 2 Reports, War Department, Engineers, for 1893, pp. 2794-2804; for 1897, pp. 27932801; for 1900, pp. 3865-3871; for 1914, pp. 1157-1160; for 1916, pp. 1350-1354. docks and wharves, to be dredged to ad- | 50 to 150 feet, and could be used only mit passage by vessels drawing 16 feet for floating logs and for travel by rowof water." Act of June 3, 1896, chap. boats or canoes; but before 1889 ripa314 (29 Stat. at L. 202, 228). This actrian owners had dug a channel and poswas amended by the Act of June 4, 1897, sibly greatly widened the stream; and chap. 2 (30 Stat. at L. 11, 47), which, schooners navigated to a point beyond as interpreted by the War Department, Belmont avenue. Between 1890 and 1899 permitted a slight widening of the boats drawing 5 to 8 feet of water were stream in certain places. The general navigating the North branch up to Belassembly of Illinois, by resolution of mont avenue. In 1896 the river in front April 22-23, 1897, gave assent to the of Tempel's property was in varying United States' acquiring by purchase or depths of from 6 to 14 or 15 feet. condemnation "all lands necessary for widening the Chicago river and its branches." In 1899 Congress directed a survey with a view to creating a deeper channel and adopting 21 feet "as the project depth for the improvement in lieu of that fixed by the Act of June third, eighteen hundred and ninetysix." Act of March 3, 1899, chap. 425 (30 Stat. at L. 1121, 1156). No widening beyond the banks of the de jure stream was specifically authorized by this act, nor by any subsequent act. From time to time other appropriations were made by Congress for these improvements of the river, and work [125] was carried on thereunder.3 About 12.5 miles of the river were improved by the government; and of this about 5 miles consisted of that part of the North branch which lies between the main river and Belmont avenue. Early in 1889 Tempel became the owner of certain land on the bank of the North branch below Belmont avenue. He leased his land for a brickyard; and by the terms of the lease the lessee was permitted to dredge the bottom of the river in front of the premises for the purpose of making brick from the clay thereunder. But the lessee was directed not to interfere with the upland; and he covenanted to deliver up the premises in the condition in which they were demised. Nevertheless, from time to time during a period of five years between 1889 and 1899, the lessee dug away, to a depth of from 6 to 14 feet, a large strip of the upland, extending in some places to a considerable width. In its natural state the stream opposite the plaintiff's property varied in width from probably 3 Act of July 1, 1898, chap. 546, 30 Stat., at L. 597, 632; June 6, 1900, chap. 791, 31 Stat. at L. 588, 626; June 13, 1902, chap. 1079, 32 Stat. at L. 331, 363, which authorized the construction of turning basins, but the one in the North branch was constructed at a point considerably below the land in controversy; March 2, 1907, chap. 2509, 34 Stat. at L. 1073, 1102; May 28, 1908, chap. 213, 35 Stat. at L. 429. Reports, War Department, Engineers, for The United States did not do any dredging in front of [126] Tempel's property until 1899. Then it dredged a channel to the depth of 17 feet, about 30 feet wide-the excavation being made wholly in the then bed of the stream as submerged. Its next dredging there was in 1909, when this channel was deepened to 21 feet and widened to 60 feet, the excavation being again made wholly in the then bed of the stream as submerged. All of the dredging, both in 1899 and in 1909, which was not within the bed of the river in its natural state, was done within the limits of the strip of upland which had been submerged through the dredging done by the lessee prior to 1899. During the period from 1889 to 1899, the stream in front of Tempel's premises was in constant and increasing use for the purpose of public navigation. The government does not appear to have had knowledge of the fact that dredging had been done before 1899 by the lessee without the consent of Tempel, or that the river had been widened by excavation. The reports of the Secretary of War show that he never specifically authorized, for the purpose of widening the river, the appropriation of any of the property herein involved, and that the government believed, when it dredged in front of Tempel's property in 1899 and again in 1909, that the submerged land, in which the dredging was done, was either a part of the natural bed of the river, or that it had been dedicated by the owner for purposes of navigation, or that it had in some other manner become a part of the de jure stream. No [127] objection was made by Tempel, until 1910, to the 1899, pp. 2826-2833; for 1900, pp. 37843788. 4 Reports, War Department, Engineers, for 1899, pp. 2828-2833, for 1900, pp. 37853788, for 1901, pp. 2993, 2995, for 1905, p. 545, show that, in the dredging under the project of 1896, the effort had been to secure title to all property necessary for the proposed development, and that it was believed that (with exceptions not here material) this had been done. The property use, for navigation, of the river in front | of his property; and he did not file any complaint as to the dredging of 1899. He had no knowledge, until 1910, of the dredging which had been done by his lessee, nor of that done by the government. Promptly after learning of the dredging, Tempel demanded of the government possession of that part of the land submerged which had formerly constituted a part of his upland. The demand was refused; and in 1911 he brought, in the district court of the United States for the northern district of Illinois, this suit, under the Tucker Act of March 3, 1887 [24 Stat. at L. 505, chap. 359] (Judicial Code, § 24, 120 [36 Stat. at L 1093, chap. 231, Comp. Stat. 1916, § 991 (20)]), to recover the value of property which he claimed had been taken by the government. The complaint alleged that the river in front of his premises was, at the time he acquired the same and theretofore, a creek used only for surface drainage, and was "not a navigable stream either in law or in fact;" that the government, "in the latter part of the year 1909, completely excavated a channel through the same" for the purpose of making said North branch navigable; and that it holds possession thereof by virtue of the resolution of the general assembly of Illinois, above referred to; and that the reasonable value of the property taken was $10,000. The complaint did not refer either to the dredging done before 1889, when Tempel acquired the property, or to that done between 1889 and 1899 by Tempel's lessee, or to that done in 1899 by the government. The answer denied that the stream in front of [128] Tempel's land was non-navigable when he purchased it or theretofore; asserted that all excavations by the government were made in the center of the stream and were for the purpose of improving navigation; and denied that it had taken any of Tempel's property under the resolution of the Illinois assembly or otherwise. The trial court found as a fact, "that by reason of the changes in said river as aforesaid, the difference between the here involved was not included in the land, which it was proposed to acquire. The reports also show that the government was not aware that there was any property of a private owner which it was necessary to acquire in order to make the further improvement according to the 21-foot project; and in the accounting of the division of funds between different objects, none were value of the premises of the petitioner at the time when he purchased the same as aforesaid, and the value of the same at the time that the demand as hereinbefore set forth was made, less the cost of reclaiming the same, were he entitled to make reclamation thereof, is $7,547." As conclusions of law the trial court found that the North branch was navigable in its natural state; that it was navigable in fact as early as 1889; that Tempel, having failed to complain of the use by the public of the stream in front of his property for a period of at least ten years prior to the first dredging by the United States, was estopped from thereafter disputing the navigability of the river; and that the river being then a navigable stream, the dredging of the bed in 1899 and in 1909 did not constitute a taking of Tempel's property within the meaning of the 5th Amendment. Judgment was entered for the United States; and the case comes here on writ of error. First. This is a suit, like United States v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349, and United States v. Cress, 243 U. S. 316, 61 L. ed. 746, 37 Sup. Ct. Rep. 380, to recover the value of property taken by the government in making a river improvement. The property alleged to have been taken is land, part of which lies within the 30foot channel first dredged by the government in 1899; the balance within the additional 30 feet dredged by it in 1909, when the channel was widened to 60 feet; and all of which formed part of the river bed and was submerged when the government commenced its improvement, and has been since. But the property of Tempel, [129] if any, which the government has taken, is only the right to keep his land submerged, to navigate over it, and to improve it further for purposes of navigation. This right in the land, the government claimed and claims that it already possessed at the time when it dredged on the property in question; and it is the same right which the government possesses in that portion of the present river bed lying within the original meander lines, and which originally constituted the whole assigned to the securing of land for widen ing the river. Reports, War Department, Engineers, for 1907, p. 627; for 1908, p. 672; for 1909, p. 709; for 1910, pp. 784. 785; for 1911, p. 842; for 1912, p. 1009; for 1913, p. 1119; for 1914, pp. 1157-1160. Nowhere does it appear that the Secretary of War ever authorized the taking of the property involved in this suit. river bed. Under the law of Illinois, | plaintiff's land, excavated a channel neither the United States nor the state through it, and claims possession thereof owns the lands under a navigable river. under the resolution of the Illinois asRiparian owners own the fee to the sembly or otherwise, asserts that in 1909 middle of the stream (St. Louis v. Rutz, it did "excavate a channel in the Chi138 U. S. 226, 242, 34 L. ed. 941, 947, 11 cago river in the center of the stream, Sup. Ct. Rep. 337), subject to the para- and now claims possession thereof for mount right of the government to use the purpose of making more navigable the same and to make improvements the North branch." The findings of fact therein for purposes of navigation, with- made by the trial court (amplified by out the payment of compensation (West the reports of the Secretary of War, of Chicago Street R. Co. v. Illinois, 201❘ which we take judicial notice) show that U. S. 506, 520, 50 L. ed. 845, 850, 26 the government claimed at the time of Sup. Ct. Rep. 518; United States v. the alleged taking, and now claims, that Chandler-Dunbar Water Co. 229 U. S. it already possessed, when it made its 53, 62, 57 L. ed. 1063, 1075, 33 Sup. Ct. excavation in 1909, the property right Rep. 667; Willink v. United States, 240 actually in question. It is unnecessary U. S. 572, 580, 60 L. ed. 808, 810, 36 to determine whether this claim of the Sup. Ct. Rep. 422. Included in such government is well-founded. The mere permissible improvement is dredging for fact that the government then claimed the purpose of deepening the channel and now claims title in itself, and that (Lewis Blue Point Oyster Cultivation it denies title in the plaintiff, prevents Co. v. Briggs, 229 U. S. 82, 57 L. ed. the court from assuming jurisdiction 1083, 33 Sup. Ct. Rep. 679, Ann. Cas. of the controversy. The law cannot im1915A, 232). It is only this right to ply a promise by the government to pay use and improve for purposes of navi- for a right over, or interest in, land, gation that the government claims here, which right or interest the government -a right which the government undoubt- claimed and claims it possessed before it edly possessed, if the land in question utilized the same. If the government's had been a part of the bed of the de claim is unfounded, a property right of jure stream, as was supposed. plaintiff was violated; but the cause of If the plaintiff can recover, it must action therefor, if any, is one sounding in be upon an implied contract. For, under tort; and for such, the Tucker Act affords the Tucker Act, the consent of the no remedy. Hill v. United States, 149 U. United States to be sued is (so far as S. 593, 37 L. ed. 862, 13 Sup. Ct. Rep. here material) limited to claims founded 1011, which, both in its pleadings and "upon any contract, express or implied;" its facts, bears a strong resemblance and a remedy for claims sounding in [131] to the case at bar, is conclusive tort is expressly denied. Bigby v. United on this point. See also Schillinger v. States, 188 U. S. 400, 47 L. ed. 519, 23 United States, 155 U. S. 163, 39 L. ed. Sup. Ct. Rep. 468; J. Ribas y Hijo v. 108, 15 Sup. Ct. Rep. 85. The case at United States, 194 U. S. 315, 323, 48 bar is entirely unlike both the Lynah L. ed. 994, 996, 24 Sup. Ct. Rep. 727. Case and the Cress Case. In neither of As stated in United States v. Lynah, those cases does it appear that, at the 188 U. S. 445, 462, 465, 47 L. ed. 539, time of taking, there was any claim by 545, 546, 23 Sup. Ct. Rep. 349: "The the government of a right to invade the law will imply a promise to make the property in question without the payrequired compensation, where property ment of compensation. Under such cirto which the government asserts no title cumstances it must be assumed that the [130] is taken, pursuant to an act of government intended to take and to make Congress, as private property, to be ap- compensation for any property taken, so plied for public uses;" or, in other words: as to afford the basis for an implied "Whenever, in the exercise of its gov- promise. And when the implied promise ernmental rights, it takes property, the to pay has once arisen, a later denial by ownership of which it concedes to be in the government (whether at the time of an individual, it impliedly promises to suit or otherwise) of its liability to make pay therefor." But in the case at bar, compensation does not destroy the right both the pleadings and the facts found in contract and convert the act into a preclude the implication of a promise to tort. In both of those cases the facts pay. For the property applied to the required the implication of a promise to public use is not and was not conceded pay. But here the government has conto be in the plaintiff. tended since the beginning of the imSecond. The answer, specifically deny-provement that, at the time of the dredging that the United States has taken ing in 1899 and in 1909, it possessed the reduced to writing, nor by the parol-evidence rule. [For other cases, see United States, VI. b; Evidence, VI. a, in Digest Sup. Ct. 1908.] - contracts - breach annulment. right of navigation over the land in 3. The government's breach of an implied warranty as to the adequacy of a sewer when it shall be relocated according to the government's plans and specifications by the contractor for the building of a dry tion of all responsibility for the past and dock, followed by the government's repudiafor making working conditions safe in the future, justifies the contractor in refusing to resume the work, and his refusal fur annulling the contract. The District Court, instead of render-nishes no justification to the government for ing judgment for the United States, should have dismissed the suit for want of jurisdiction. Judgment reversed and case remanded to the District Court, with directions to dismiss it for want of jurisdiction. Mr. Justice McReynolds took no part in the consideration and decision of this case. [132] UNITED STATES, Appt., V. GEORGE B. SPEARIN. (No. 44.) GEORGE B. SPEARIN, Appt., V. UNITED STATES. (No. 45.) (See S. C. Reporter's ed. 132-139.) United States -contracts implied warranty safe working conditions. [For other cases, see United States, VI. e, in Digest Sup. Ct. 1908, and United States, IV. f, in Digest Sup. Ct. 1918 Supp.] Damages for breach of government contract. 4. The wrongful annulling by the gov ernment of a contract for a public work all losses resulting from the breach. entitles the contractor to compensation for [For other cases, see Damages, VI. b. 1; Unit ed States, VI. e, in Digest Sup. Ct. 1908.] [Nos. 44 and 45.] Argued November 14 and 15, 1918. cided December 9, 1918. De. ROSS APPEALS from the Court of Claims to review an award for work done under a public contract, and damages for its annulment. Affirmed. See same case below, 51 Ct. Cl. 155. The facts are stated in the opinion. Assistant Attorney General Thompson argued the cause and filed a brief for the United States: The scope of the undertaking was fixed by the contract, and appellee thereby took the risk of the obstacles to that extent. 1. The insertion in a contract for the building of a dry dock of a requirement that the contractor shall relocate a sewer running through the premises in accordance with the plans and specifications furnished Carnegie Steel Co. v. United States, by the government, which prescribe the 240 U. S. 156, 164, 60 L. ed. 576, 578, dimensions, material, and location of the 36 Sup. Ct. Rep. 342; Globe Ref. Co. section to be substituted, imports a warv. Landa Cotton Oil Co. 190 U. S. 540, ranty on the part of the government that 543, 544, 47 L. ed. 1171, 1173, 23 Sup. if the specifications are complied with the sewer will be adequate, which warranty is Ct. Rep. 754; Maryland Dredging & Connot overcome by general clauses in the contracting Co. v. United States, 241 U. S. tract requiring the contractor to examine the site, to check up the plans, and to assume responsibility for the work until completion and acceptance. A warranty guaranteeing the strength of the sewer cannot be read into an express contract, and in its absence appellee breached the contract by refus2. Reliance by a public contractor up-ing to continue work. on a warranty on the part of the govern ment, implied by law, is not precluded 1 Hudson, Bldg. & Eng. Contr. 4th ed. either by the provision of U. S. Rev. Stat. P. 64; Thorn v. London Corp. L. R. 1 $ 3744 (Comp. Stat. 1916, § 6895), that App. Cas. 120, 45 L. J. Exch. N. S. 487, contracts of the Navy Department shall be 34 L. T. N. S. 545, 24 Week. Rep. 932, 5 |