SIM ON TON, Circuit Judge.
This is an action brought under the provisions of chapter 35!), Acts 1887 (24 Stal. 505), giving to this court co-ordinate jurisdiction with the court of claims in a specified class of suits against the United States when the amount claimed does not exceed $10,000 and is more than $1,000. The petition alleges that certain lands of the petitioners were taken by the United States for public purposes, and it seeks compensation therefor.
Findings of Fact.
(1) The petitioners, A. P. Richardson- and G. W. Richardson, were riparian proprietors, each in severalty, of tracts of land contiguous to each other on York river, in the state of Virginia, a navigable stream.
(2) On March 4, 1884, the general assembly of Virginia passed an act for the preservation of oysters, and to obtain revenue for tlie privilege of taking them within the waters of the commonwealth. Chapter 254, Acts 1883-84. The sixth section of this act is at-[715]*715inched to an appendix hereto. It authorizes tlie inspector of oysters of the county to assign to each riparian proprietor submerged land in front of his land suitable for planting oysters, not to exceed, however, one-fourth of his water front.
(3) On August 27, 1884, at an extra session, the general assembly amended this section, limiting the amount of land to be set apart and assigned to each riparian propriétor in this proviso: “Provided that the said assignment shall not exceed one-half of an acre.” Acts 1881, p. 37. On November 29, 1884, the act was still further amended by adding these words: “And all other privileges accorded to riparian proprietors under the provisions of the section hereby amended are hereby revoked. And the inspectors shall return to the riparian owners all taxes, rents and fees collected under the provisions of said section.”
(4) In the year 1885, A. P. Richardson obtained from the inspector of oysters an assignment of a location on his water front, containing .‘¡0 acres of land below low-water mark, in York river. The application was made and was granted pursuant to the statute of Virginia approved March 4, 1884. In the same year G. W. Richardson obtained from the same inspector, pursuant to the provisions of tlie same act, an assignment of a location of similar lands on his water front of 10 acres. These assignments were in writing. They were lost, destroyed, or mislaid. Their contents wen' proved by parol. After obtaining these assignments, the two Richardsons entered into a co-partnership in the oyster business, using these lands, or paris of them, for planting oysters. Each put into the co-partnership his assignment without formal transfer thereof.
(5) The inspector laid off these assignments in a very perfunctory manner, so that, when A. P. Richardson staked off his assignment, his territory covered 216 acres, and, when G. W. Richardson staked off his, his territory also covered 216 acres.
(6) These submerged lands formed an excellent bed for planting oysters. They were used by the Richardsons for that purpose, and were so in use in 1891, 1892, and 1893. Upon what part of the territory the oysters were planted does not distinctly appear.
(7) In the year 1891, congress having previously thereto made an appropriation for the purpose, the officers of the United States proceeded to improve the navigation of York river, and to this end dredged out the channel of the river, dumping the same on mud Hats above the lands which the Richardsons had staked out, and on a part of which they had planted a number of oysters, and on which also they had laid shell piles, used in propagating oysters.
(8) This dredging in tlie river stirred up the mud which filled the stream, and, moved by (he tide, a quantity of the mud was deposited within the slakes set out: by the petitioners, with the result of killing the oysters and destroying the shell piles.
(9) In addition to the dredging, the engineers of the United tí fates constructed a wooden dike, a portion of which was on the edge of the territory staked out, its length being a, mile and upward. The purpose of this was to divert water into the main channel of the river, and its effect on the territory staked in by peti[716]*716tioners was to take water from it, and greatly diminish, if not destroy, its use for oyster planting. This dike did not actually invade the part of the territory in which oysters were planted.
„ (10) The effect of all of this was to destroy the business of petitioners for three years, and to kill a large quantity of oysters. ,How many were killed cannot be accurately determined from the testimony.
Conclusions of Law.
1. The operations directed by the government and conducted by its officers were in the lawful exercise of the powers conferred on congress by article 1, § 8, of the constitution. South Carolina v. Georgia, 93 U. S. 4, 23 L. Ed. 782.
2. Petitioners claim that in so conducting its lawful operations the government used their private property for public purposes. If this be so, an implied contract arises that for such use the government will afford just compensation. U. S. v. Great Falls Mfg. Co., 112 U. S. 645, 5 Sup. Ct. 306, 28 L. Ed. 846.
3. To succeed in this claim, they must assume the burden of proving, and must prove, that the location claimed by them to have been taken is their private property. They must show title. This proof is not of such a character as would be sufficient to maintain an action of trespass. The proceeding is not against the United States as a tort feasor, — a proceeding this court could not entertain.
4. To this end petitioners prove the contents of a written document executed by the inspector of oysters, who assumes to act under the authority of the state of Virginia, conferred by an act of assembly of March, 1884. It must appear, therefore, that the state of Virginia is the absolute owner in fee simple of the bed of this navigable stream, the York river; that she had clothed her agent, the inspector of oysters, with full power and authority to grant a license of the portion of this bed claimed by the petitioners; that in the exercise of this authority he had pursued it according to the terms in'-which it was granted to him; that the petitioners, on their part, had fulfilled all the conditions to be performed by them.
5. The court will take judicial cognizance of the title of the state of Virginia in the bed of this navigable stream. A discussion of it is unnecessary, in the view taken of this- case. The inspector of oysters, in 1885, professing to act under the authority of the act of 1884, assigned to one of the petitioners 30 acres of the river bed, and to the other 10 acres. Assuming, for the sake of argument, that when he assumed to act under the act of March, 1884, he intended to act as well under each amendment thereof, we find that by the amendment of August, 1884, the inspector of oysters was expressly limited in authority to granting but one-half acre of the river bed to a riparian proprietor. His action, therefore, had no authority in law, and was null and void.
6. The petitioners, to fortify their title, set up a claim for possession under color of title. They had set their stakes so as to embrace a territory for each of them of 216 acres of river bed, and [717]*717now claim a license for that territory.
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SIM ON TON, Circuit Judge.
This is an action brought under the provisions of chapter 35!), Acts 1887 (24 Stal. 505), giving to this court co-ordinate jurisdiction with the court of claims in a specified class of suits against the United States when the amount claimed does not exceed $10,000 and is more than $1,000. The petition alleges that certain lands of the petitioners were taken by the United States for public purposes, and it seeks compensation therefor.
Findings of Fact.
(1) The petitioners, A. P. Richardson- and G. W. Richardson, were riparian proprietors, each in severalty, of tracts of land contiguous to each other on York river, in the state of Virginia, a navigable stream.
(2) On March 4, 1884, the general assembly of Virginia passed an act for the preservation of oysters, and to obtain revenue for tlie privilege of taking them within the waters of the commonwealth. Chapter 254, Acts 1883-84. The sixth section of this act is at-[715]*715inched to an appendix hereto. It authorizes tlie inspector of oysters of the county to assign to each riparian proprietor submerged land in front of his land suitable for planting oysters, not to exceed, however, one-fourth of his water front.
(3) On August 27, 1884, at an extra session, the general assembly amended this section, limiting the amount of land to be set apart and assigned to each riparian propriétor in this proviso: “Provided that the said assignment shall not exceed one-half of an acre.” Acts 1881, p. 37. On November 29, 1884, the act was still further amended by adding these words: “And all other privileges accorded to riparian proprietors under the provisions of the section hereby amended are hereby revoked. And the inspectors shall return to the riparian owners all taxes, rents and fees collected under the provisions of said section.”
(4) In the year 1885, A. P. Richardson obtained from the inspector of oysters an assignment of a location on his water front, containing .‘¡0 acres of land below low-water mark, in York river. The application was made and was granted pursuant to the statute of Virginia approved March 4, 1884. In the same year G. W. Richardson obtained from the same inspector, pursuant to the provisions of tlie same act, an assignment of a location of similar lands on his water front of 10 acres. These assignments were in writing. They were lost, destroyed, or mislaid. Their contents wen' proved by parol. After obtaining these assignments, the two Richardsons entered into a co-partnership in the oyster business, using these lands, or paris of them, for planting oysters. Each put into the co-partnership his assignment without formal transfer thereof.
(5) The inspector laid off these assignments in a very perfunctory manner, so that, when A. P. Richardson staked off his assignment, his territory covered 216 acres, and, when G. W. Richardson staked off his, his territory also covered 216 acres.
(6) These submerged lands formed an excellent bed for planting oysters. They were used by the Richardsons for that purpose, and were so in use in 1891, 1892, and 1893. Upon what part of the territory the oysters were planted does not distinctly appear.
(7) In the year 1891, congress having previously thereto made an appropriation for the purpose, the officers of the United States proceeded to improve the navigation of York river, and to this end dredged out the channel of the river, dumping the same on mud Hats above the lands which the Richardsons had staked out, and on a part of which they had planted a number of oysters, and on which also they had laid shell piles, used in propagating oysters.
(8) This dredging in tlie river stirred up the mud which filled the stream, and, moved by (he tide, a quantity of the mud was deposited within the slakes set out: by the petitioners, with the result of killing the oysters and destroying the shell piles.
(9) In addition to the dredging, the engineers of the United tí fates constructed a wooden dike, a portion of which was on the edge of the territory staked out, its length being a, mile and upward. The purpose of this was to divert water into the main channel of the river, and its effect on the territory staked in by peti[716]*716tioners was to take water from it, and greatly diminish, if not destroy, its use for oyster planting. This dike did not actually invade the part of the territory in which oysters were planted.
„ (10) The effect of all of this was to destroy the business of petitioners for three years, and to kill a large quantity of oysters. ,How many were killed cannot be accurately determined from the testimony.
Conclusions of Law.
1. The operations directed by the government and conducted by its officers were in the lawful exercise of the powers conferred on congress by article 1, § 8, of the constitution. South Carolina v. Georgia, 93 U. S. 4, 23 L. Ed. 782.
2. Petitioners claim that in so conducting its lawful operations the government used their private property for public purposes. If this be so, an implied contract arises that for such use the government will afford just compensation. U. S. v. Great Falls Mfg. Co., 112 U. S. 645, 5 Sup. Ct. 306, 28 L. Ed. 846.
3. To succeed in this claim, they must assume the burden of proving, and must prove, that the location claimed by them to have been taken is their private property. They must show title. This proof is not of such a character as would be sufficient to maintain an action of trespass. The proceeding is not against the United States as a tort feasor, — a proceeding this court could not entertain.
4. To this end petitioners prove the contents of a written document executed by the inspector of oysters, who assumes to act under the authority of the state of Virginia, conferred by an act of assembly of March, 1884. It must appear, therefore, that the state of Virginia is the absolute owner in fee simple of the bed of this navigable stream, the York river; that she had clothed her agent, the inspector of oysters, with full power and authority to grant a license of the portion of this bed claimed by the petitioners; that in the exercise of this authority he had pursued it according to the terms in'-which it was granted to him; that the petitioners, on their part, had fulfilled all the conditions to be performed by them.
5. The court will take judicial cognizance of the title of the state of Virginia in the bed of this navigable stream. A discussion of it is unnecessary, in the view taken of this- case. The inspector of oysters, in 1885, professing to act under the authority of the act of 1884, assigned to one of the petitioners 30 acres of the river bed, and to the other 10 acres. Assuming, for the sake of argument, that when he assumed to act under the act of March, 1884, he intended to act as well under each amendment thereof, we find that by the amendment of August, 1884, the inspector of oysters was expressly limited in authority to granting but one-half acre of the river bed to a riparian proprietor. His action, therefore, had no authority in law, and was null and void.
6. The petitioners, to fortify their title, set up a claim for possession under color of title. They had set their stakes so as to embrace a territory for each of them of 216 acres of river bed, and [717]*717now claim a license for that territory. It will be observed that this is a claim for a license, — an incorporeal hereditament. Can a title to such an interest be acquired by possession under color of title? It will also be observed that the title to these lands is admitted to be in the state of Virginia. Can possession under color of title ripen into title, unless it be first shown that title has passed out of the state by grants? This position is inconsistent with the claim set up in the petition. That is based wholly on the license of the oyster inspector under the act of 1884, claiming, the one, 30 acres; the other, 10 acres. Under the act they are required to stake out the land assigned to them by the oyster inspector, and they professed to have done so. As a result each claims 216 acres. This would be a fraud the law could not countenance. Again, the declared policy of the state of Viiginia — a policy emphasized by the same act under which the petitioners claim to have acted, and to whose authority they now appeal — is that in the use of submerged lands for oyster purposes by riparian proprietors no one of them can use more than half an acre of the lands on his water front. 'Can the petitioners, in the face of this statute, so in evidence, come into this court, and put the United States in their place, and ask just compensation for lands held, used, and occupied by them unlawfully?
7. With regard to the oysters and oyster plant which were injured by the results of the dredging operation: The injury was caused, not by any invasion of the territory on which the oysters were planted, or where the oyster plant was situated. The dredging of the river above this locality stirred the mud, and, as an incidental result thereof, the injury was effected. When private property is taken for public use, the government must make compensation, and it is not necessary to the taking that the property be actually converted to the public use. It is enough if its value be destroyed, or permanently injured. Pumpelly v. Canal Co., 13 Wall. 166, 2 L. Ed. 557. But in such case the injury must be direct, and not consequential. Zimmerman v. Canal Co., 1 Watts & S. 346. Especially is this the law with regard to property on navigable streams. It is true that the beds of navigable streams are the property of the state. And it is also true that the state can grant the use of such beds to private citizens. Knight v. Association, 142 U. S. 183, 12 Sup. Ct. 258, 35 L. Ed. 974; Gould, Waters, § 34, and cases quoted. But the state holds these beds in trust for the public for the purposes of commerce and navigation, and subject to these purposes; and the constitution has given congress sole control over navigation and commerce. So the persons who hold under the state are affected with the same trusts. Therefore riparian ownership on navigable waters is subject to the obligation to suffer the consequences of the improvement of the navigation under an act of congress passed in the exercise of the dominant right of the government in that regard, and damages resulting from the prosecution of such an improvement cannot be recovered in the court of claims. Gibson v. U. S., 166 U. S. 269, 17 Sup. Ct. 578, 21 L. Ed. 996. Acts done in the proper exercise of govern[718]*718mental powers, and not directly eneroacliing upon private property, although their consequences may impair its use, are not a taking within the meaning of the constitutional provision which forbids the taking of such 'property for public use without just compensation therefor. Transportation Co. v. City of Chicago, 99 U. S. 635, 25 L. Ed. 336.
8. The verdict will be for the defendant, and judgment will be entered accordingly.