396 Opinion of the Court easy navigation of this river required the raising of the level of this pool. This tipple stood in the way of this being done, if the Government would have to pay for the destruction or impairment of its utility. Under the conditions of the license, therefore, the Secretary of War had the right to require that it be removed or altered. Plaintiffs built it with knowledge of this right in the Secretary. As we said above, the railroad company is entitled to recover the value of its upland which was submerged. This value we find to be $92.00. The commissioner has also found that there was 0.172 of an acre periodically overflowed, the leasehold value of which he found was $50.00. The testimony supporting this finding is not altogether satisfactory. It is the testimony of Garland D. Tuggle, who was the land appraiser employed by the United States Engineer's office at Huntington, West Virginia. He states that there was 0.172 of an acre which was subject to periodic overflow. He does not say how often it overflowed, or the effect of the overflows, but he does say that the acreage has been "damaged that amount, $52.00 for that portion," which is the total value of the land as fixed by him. He was introduced by the Government and we, therefore, take it to be true that these periodic overflows in fact did destroy the value of this land. This being true, plaintiffs are entitled to recover the amount of $52.00 on this account. Jacobs v. United States, 290 U. S. 13, 16, and cases there cited. [By the erection of the steel sheet piling, land having a easehold value of $556.00 was saved from overflow. This the plaintiffs are also entitled to recover, since the cost of the piling far exceeded this value:] The commissioner has also found that there has been no damage to moorage rights. The plaintiffs take no exception thereto and we also have found this to be a fact. On the whole case plaintiffs are entitled to recover the sum [of $700.00] $144.00. Judgment therefor will be entered. It is so ordered. MADDEN, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur. JONES, Judge, took no part in the decision of this case. 100 C. Cls. On Motion for a New Trial ON MOTION FOR A NEW TRIAL ON FEBRUARY 7, 1944 WHITAKER, Judge, delivered the opinion of the court: In its motion for a new trial defendant says the court erred in holding that plaintiffs were entitled to recover the value of their lands that would have been overflowed had they not erected sheet piling to protect it. We entered judgment for two tracts which plaintiffs did not protect and which were actually overflowed. Defendant does not object to this, but says plaintiffs are not entitled to recover for lands not actually overflowed, although they would have been had the piling not been erected. This seems a strange result to reach. Plaintiffs could have protected its lands which were actually overflowed, but they chose not to do so. For these they can recover; but they cannot recover for lands which would have been overflowed, but which were not in fact, because plaintiffs spent money to keep them from being. It is, however, the necessary conclusion to be reached, because liability is predicated upon a taking and not upon damages to property. Gibson v. United States, 166 U. S. 269. The Constitution says private property may not be "taken" without just compensation, but makes no provision for repayment of expenses incurred to prevent a taking. In United States v. Lynah, 188 U. S. 445, overruled on another point by United States v. Chicago, Milwaukee, St. Paul, & Pacific RR. Co., 312 U. S. 592, the court approved the decision in Mills v. United States, 46 Fed. 738, holding that there could be no recovery where the taking could have been prevented at a reasonable expense. This was also held in Manigault v. Springs, 199 U. S. 473, 484-485. See also Southern Pacific Co. v. United States, 58 C. Cls. 428; affirmed by the Supreme Court without opinion, 266 U. S. 586. We, therefore, must hold that plaintiffs are not entitled to recover the sum of $556.00, the value of the land protected from overflow by the erection of the sheet piling. Defendant's motion for a new trial is granted. The conclusion of law and judgment heretofore entered are vacated and withdrawn, and a new conclusion of law now filed enter Syllabus ing judgment for plaintiffs in the sum of $144.00, the former findings and opinion as herein modified to stand. It is so ordered. MADDEN, Judge; and LITTLETON, Judge, concur. JONES, Judge; and WHALEY, Chief Justice, took no part in the consideration of this motion. THE CONFEDERATED BANDS OF UTE INDIANS v. THE UNITED STATES [No. 45585. Decided October 4, 1943] On the Proofs Indian claims; retention of interest by Ute Indians in lands ceded to the United States by 1880 agreement.-Where under the provisions of the Act of June 15, 1880, ratifying an agreement made with the plaintiff band of Ute Indians, by which agreement the Indians ceded their remaining lands in Colorado to the United States, it was provided that the lands so ceded, and not allotted to individual Indians, were to be deemed public lands and subject to disposal under the public land laws, but for cash entry only, and the proceeds deposited in the Treasury for the benefit of the plaintiff bands, after repayment of money spent by the United States in connection with the transaction; it is held that the Indians, after their right of occupancy was gone, retained an interest in the lands, the proceeds of the sale of which they were to receive. Same; sovereigns as party to agreement.—The interests and obligations created by the agreement of 1880 do not fit readily into conventional legal concepts, and the problem is further complicated by the fact that one of the parties to the transaction was a sovereign which could and did, regardless of the terms of the agreement, do what it pleased with the lands and proceeds, giving the Indians the privilege of having their legal rights determined at long intervals, such as in 1909 and 1938 when the sovereign deigned to waive its immunity from suit. Same; interpretation of agreement as shown by actions of the Government.-Where, having taken some of the land for public forests, parks, and monuments, the Government by Act of Congress in 1909 consented to be sued for the value of land so taken; and where the Department of the Interior placed to the credit of the Indians moneys received as rental of some of the land leased for grazing and mining; it was thereby indicated that 574432-44-vol. 100-28 Reporter's Statement of the Case 100 C. Cls. both Congress and the Executive Departments considered that the plaintiff Indians had not made themselves legal strangers to the land they conveyed by the Act of June 15, 1880. Same. The entire 1880 agreement and the interpretation given to it by the Government itself show that the Government's ownership was intended to be subjected to important limitations, with regard to its powers of disposal, rights of use, and rights to retain and enjoy rents and profits. United States v. Brindle, 110 U. S. 688, 693; Minnesota v. Hitchcock, 185 U. S. 373, 394; and United States v. Mille Lac Band, 229 U. S. 498. Same; provision of 1938 Act constitutes a "taking," for which plaintiffs are entitled to compensation.-Where in the Act of June 28, 1938, conferring jurisdiction upon the Court of Claims "to hear, determine and render judgment on all legal and equitable claims" which the Ute Indians might have against the United States, including claims arising by reason of any lands taken from the Indians without compensation, it was provided that "said lands [lands ceded by the Ute Indians] to the extent that they have not been disposed of by the United States are hereby declared to be the absolute property of the United States"; it is held that such provision of the Act constituted a taking of their interest in the ceded lands, depriving the Ute Indians of any further right to receive the proceeds from the sale or rental of their lands, and for such taking the plaintiff Indians are entitled to recover the value of the remaining lands as of 1938, the time of the taking of their interest. Same; further proceedings under Rule 39 (a).—In other proceedings, under Rule 39 (a) of the Court of Claims, it will be necessary to determine the amount of the lands which remain unsold and not otherwise appropriated by the Government to other uses. as well as to ascertain the value of the land taken, there being nothing in the 1880 agreement or any other pertinent arrangement between the parties which fixes that value. The Reporter's statement of the case: Mr. Ernest L. Wilkinson for plaintiffs. Messrs. John W. Cragun and W. Glenn Harmon were on the briefs. Messrs. Raymond T. Nagle and Benjamin F. Pollack, with whom was Mr. Assistant Attorney General Norman M. Littell, for the defendant. The court made special findings of fact as follows upon the stiulation of the parties and the evidence adduced: 1. Plaintiffs timely filed this suit pursuant to the special jurisdiction conferred upon this court by Act of June 28, 413 Reporter's Statement of the Case 1938, Chap. 776, 52 Stat. 1209, as amended by Act of July 15, 1941, Chap. 299, 55 Stat. 593. By such legislation this court was authorized to "hear, determine, and render final judgment on all legal and equitable claims of whatsoever nature which the Ute Indians may have against the United States, including * * * claims arising by reason of any lands taken from them, without compensation, **" Section 6 provides, in part, that: * * If the Court shall find that any lands formerly belonging to the said bands of Ute Indians or any of them, have been taken by the United States without compensation therefor and * * disposed of in any manner whereby the said Indians have been deprived of the use or benefits of such lands and the natural resources thereof, it is thereof, it is hereby declared that such action shall be sufficient grounds for equitable relief and the Court shall render judgment in favor of said Indians, and shall award to them, as for a taking under the power of eminent domain, compensation for all such land and natural re sources, 2. Plaintiffs are a confederation of the Uncompahgre (sometimes designated as Tabequache), White River (sometimes designated as Yampa and Grand River), Southern and Ute Mountain Ute (which at the time of the agreement of March 6, 1880, hereinafter referred to, were jointly referred to as Southern Utes, and sometimes designated as Capote, Muache and Weeminuche) Bands of Ute Indians, who were parties to an agreement proposed by the Act of Congress of June 15, 1880, Chap. 223, 21 Stat. 199; 1 Kappler 180, which was accepted and ratified by plaintiffs. 3. Under a treaty of March 2, 1868, 15 Stat. 619; 1 Kappler 990, Article II, a large reservation in western Colorado was set apart for the absolute and undisturbed use and occupation of plaintiffs and such other friendly tribes as they might be willing, with the consent of the United States, to admit among them. This territory was bounded on the east by the 107th degree of west longitude; on the north by a line 15 miles north of the 40th parallel of north latitude; on the west by the western boundary of Colorado; and on the south by the southern boundary of Colorado. |