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Argument for Defendants in Error.

217 U.S.

consequential, because such action would necessarily "sound in tort," and therefore without the jurisdiction of the Necessarily, an action on the case in other words, an action for damages "sounding in tort." Railroad Co. v. Towboat Co., 23 How. 209; Mills v. United States, 46 Fed. Rep. 738, 747-8; Wright v. Freeman, 5 Harr. & J. 467; Lambert v. Hoke, 14 Johns. 383; Cushing v. Adams, 18 Pick. 110; Shrieve v. Stokes, 8 B. Mon. (Ky.) 453.

Nor can claimants by any evasion in pleading create an action ex contractu out of one purely sounding in tort. Bigby v. United States, 188 U. S. 400; Hill v. United States, 149 U. S. 593, 598; Gibson Case, 29 C. Cls. 18.

Mr. Edward S. Jouett, with whom Mr. W. M. Beckner was on the brief, for defendants in error:

The private right of way which one landholder owns over the land of his neighbor is an easement. In fact, of all easements it is one of the commonest and best known, particularly in the agricultural districts. And it is oftentimes, as in this case, a property interest of great value. 14 Cyc. 1139.

An easement is as subject to condemnation under the right of eminent domain as any other interest in lands is. See Eminent Domain, in 15 Cyc. 607; Ross v. Kieorgia &c. Rwy. Co., 33 S. Car. 477; Deavitt v. Washington, 53 Atl. Rep. 563.

Railroad rights of way, which are in a wense private property, furnish many instinces of the application of the rule. West. Un. Tei. Pia Pepit. RR C 9 ÚS 540.

A lee simple lief in taken in ethern end of the roadway becauskli art of t ?

in tif. As to the cropty of considerige impairment of the lue of the rar 1.4-5 of a tract hy "eason of its relation to the 4t taker, High Bridot Luer Company v. United Slates 6 d.

For nent ubi eigis adwith in the meaning I taronstitu inį i!"?V'lin. prum mly v. Green Bay Co.,

Per of 5 Vites honing that this case has

217 U. 8.

Argument for Defendants in Error.

been cited and approved more than fifty times. The authorities relied upon by the counsel for the Government do not sustain its position.

The damages are not merely consequential in the legal meaning of that term. Wherever there is an actual physical invasion coinpensation is due, and the law then fixes the measure of that compensation to be the value of the part taken plus the damage to the remainder of the property resulting from such taking. Cooley on Const. Lim.; Sedgwick on Stat. Const.; Louisville & Frankfort R. R. v. Brown, 17 B. Mon. 763; Hollister v. The Union Co., 9 Connecticut, 436; Currie v. Waverly &c. Railroad Co., 23 Vroom, 392, can all be distinguished and really support contention of defendant in

error.

Treating the farm and its easement separately would not avail the Government, as the value of the easement, which was taken and entirely extinguished, would still have to be allowed.

Damages to the residue of a tract caused by taking a part are allowable in fixing just compensation. Sharp v. United Siates, 191 U. Ş. 341; S. C., 112 Fed. Rep. 693. The doctrine of "inconvenience” only applies where there is no actual taking and it cannot be substituted for a taking; but when there is a taking of a part, then “inconvenience” to the residue becomes one of the legitimate elements of damage to the muistue. Tie Welch farm and its private badway should *** uneix d as one property Sharp v. United States, supra.

HIV.rse of that case is presented in the case at bar. see note in 7 L. R. A. 932, citing Westbrook v. Muscatine ( 88 N. W. Rt. 202; Potts v. Penn. S. Valley R. Co., 119 L'z.. St. 278, Peck v Superior Short Line R. Co., 36 Minnesota, 33.

The same amount would necessarily be allowed even if the farm and the easement were not considered as one piece of property. The easeinent, which constitutes one end of the private

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roadway, was totally destroyed, rendering compensation equal to its value necessary. If the easement had not been touched the outlet was still destroyed by the submerging of fifty yards of roadway. United States v. Great Falls Mfg. Co., 112 U. S. 545; Hill v. United States, 149 U. S. 593; and Bigby v. United States, 188 U. S. 400, distinguished; and see United States v. Lynah, 188 U. S. 446.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a proceeding under the act of March 3, 1887, c. 359, $ 2, 24 Stat. 505, to recover the value of land taken by the United States. It is admitted that a strip of about three acres of land lying along the side of Four Mile Creek and running east and west was taken, and is to be paid for. It was permanently flooded by a dam on the Kentucky River, into which Four Mile Creek flows. United States v. Lynah, 188 U. S. 445. Manigault v. Springs, 199 U. S. 473, 484. The plaintiffs owned other land south of and adjoining the strip taken, and had a private right of way at right angles to the creek northerly across land of other parties to the Ford County Road, which ran parallel to the creek and at some distance from it. This was the only practical outlet from the plaintiffs' farm to the county road. The taking of the intervening strip of course cut off the use of the way, and the judge who tried the case found that it lessened the value of the farm $1,700. He allowed this sum in addition to $300 for the land taken. The United States took a writ of error on the ground that the former item was merely for collateral damage not amounting to a taking and of a kind that cannot be allowed; that at most it was only a tort. The case is likened to the depreciation in value of a neighboring but distinct tract by reason of the use to which the Government intends to put that which it takes. Sharp v. United States, 191 U. S. 341, 355.

The petition like the form of the finding lends some countenance to this contention, by laying emphasis on the damage

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to the farm, although it is to be noted that even in this aspect the damage is to the tract of which a part is taken. Sharp v. United States, 191 U. S. 354. But both petition and finding in substance show clearly that the way has been permanently cut off. A private right of way is an easement and is land. We perceive no reason why it should not be held to be acquired by the United States as incident to the fee for which it admits that it must pay. But if it were only destroyed and ended, a destruction for public purposes may as well be a taking as would be an appropriation for the same end. Miller v. Horton, 152 Mass. 540, 547. The same reasoning that allows a recovery for the taking of land by permanent occupation allows it for a right of way taken in the same manner, and the value of the easement cannot be ascertained without reference to the dominant estate to which it was attached. The argument is only confused by reference to cases like Gibson v. United States, 166 U. S. 269, Harvard College v. Stearns, 15 Gray, 1, Smith v. Boston, 7 Cush. 354, &c., where it was held, although there are decisions the other way, that a landowner cannot recover for the obstruction of a public water course, the discontinuance of a public way, or the like. The ground of such decisions is that the plaintiff's rights are subject to superior public rights, or that he has no private right, and that his damage, though greater in degree than that of the rest of the public, is the same in kind. Here there is no question of the plaintiffs' private right.

Judgment offirmed.

MR. JUSTI: 5 HARLAN concurs in the judgnient only so far as it allows the item of $300.

Statement of the Case.

217 U.S.

LORD & HEWLETT v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMB.

No. 162. Argued April 20, 1910.-Decided May 2, 1910.

An act of Congress appropriating for a competition for plans of a pro

posed building, the successful ones to be transmitted to Congress, and which does not appropriate for the building itself creates no obligation on the part of the United States to use the plans of the successful competitor, and so held in regard to the act of March 2, 1901, c. 805, 31 Stat. 922, 938, providing for competition for building

for Department of Agriculture. Under the act of February 9, 1903, c. 528, 32 Stat. 806, providing for

plans for a building for the Department of Agriculture not to exceed $1,500,000, the Secretary of Agriculture was not obliged to use the successful plans under the competition provided in the act of March 2, 1901, and in the absence of a contract to use such plans the architects submitting them have no claim for fees against the United I States. There is no contract unless the minds of the parties meet; and although

there were negotiations in this case the architects, having declined to accept a contract submitted by the Department of Agriculture,

have no contractual claim against the United States. 43 C. Cl. 282, affirmed.

The appellants, doing business as architects under the name of Lord & Hewlett, brought this action to recover from the United States the sum of seventy-five thousand collars as due them on account of certain transactions relating to a public building which the United States proposed to have constructed and used by the Department of Agriculture.

The Court of Claims adjudged, upon the facts found, that the plaintiffs had no cause of action against the United States and dismissed the claimants' petition.

The material facts are as will be now stated: By the act of March 2d, 1901, c. 805, 31 Stat. 922, 938, Congress appropriated the sum of five thousand dollars, to be immediately available,

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