Opinion of the Court. 234 U. S. the ground. The contract was not introduced in evidence, and there was only meagre testimony as to its contents, which left it doubtful whether the final work of excavating the opening between the head of the canal and the lake was within its provisions. Since there is no distinct finding upon this subject, we will consider the case in both aspects. The act of Congress especially invoked as authority for what was done by plaintiff in error under direction of Captain Williams, is the River and Harbor Act of June 25, 1910 (36 Stat. 630, 666, c. 382), which contains the following: "Puget Sound-Lake Washington waterway: Continuing improvement by the construction of a double lock, with the necessary accessory works, to be located at "The Narrows,' at the entrance to Salmon Bay, in accordance with the project set forth in House Document Numbered Nine hundred and fifty-three, Sixtieth Congress, first session, one hundred and fifty thousand dollars; and the Secretary of War may enter into a contract or contracts for such material and work as may be necessary to complete said lock and accessory works, to be paid for as funds may be provided from time to time by law, not to exceed in the aggregate two million two hundred and seventy-five thousand dollars, including the amount herein appropriated: Provided, That before beginning said work, or making such contract or contracts, the Secretary of War shall be satisfied that King County, or some other local agency, will do the excavation in the waterway above the lock to the dimensions recommended in said project, and will also secure the United States from liability for any claims or damages on account of the grant made to James A. Moore or his assigns by the Act of Congress approved June eleventh, nineteen hundred and six, or on account of the lowering of the level of Lake Washington, raising the level of Salmon Bay, or any other alteration of the level of any part of said waterway." In order to correctly appreciate the meaning and effect of this language, it is necessary to refer to House Document No. 953, 60th Cong., 1st Sess. (Vol. 20), and to certain previous acts of Congress therein mentioned; and while reviewing these acts we may at the same time consider whether any of them contains any justification of what was done by plaintiff in error. By way of preface, it should be stated that the city of Seattle lies between the tidal waters of Puget Sound and Lake Washington, the latter being a body of fresh water two miles or more in width and nineteen miles or more in length, and having a natural level 30 feet or more above mean low water in the Sound. Between this lake and the Sound is Lake Union, a smaller body of fresh water (covering about 1,000 acres), and having a natural level much lower than that of Lake Washington, yet considerably above the tide. The lakes had independent natural outlets. Salmon Bay is a small body of water connected through Shilshole Bay with Puget Sound, and is (or was) affected by the ebb and flow of the tide. The outlet of Salmon Bay is known as "The Narrows." Salmon Bay and Lake Union are wholly within the exterior limits of Seattle, and the city has also a considerable frontage on Lake Washington. This lake, as well as the city, lies within the limits of King County. As early as the year 1890, September 19, 1890, 26 Stat. 426, 452, c. 907, Congress authorized a survey and estimate to be made for a ship-canal to connect the waters of these lakes with Puget Sound. A survey and report were made accordingly, but nothing resulted until 1894, August 18, 1894, 28 Stat. 338, 360, c. 299, when Congress appropriated $25,000 for dredging Salmon Bay, and the improvement of the waterway connecting its waters with the lakes, but with a proviso that no part of the money should be expended upon the improvement of the connecting waterway until the entire right of way and a release Opinion of the Court. 234 U.S. from all liability to adjacent property owners had been secured to the United States free of cost and to the satisfaction of the Secretary of War. By act of March 2, 1895, 28 Stat. 910, 948, c. 189, $5,000 of this amount was authorized to be expended in making a definite survey and location of the improvement and in preparing a cadastral map showing each property required to be deeded to the United States or from which a release was required. The act of June 3, 1896, 29 Stat. 202, 234, c. 314, appropriated $150,000, again with the proviso that no part of it should be expended on the improvement of the waterway connecting the Sound with the lakes until the entire right of way and a release from all liability to adjacent property owners had been secured to the United States; and with the further declaration that the canal might be constructed either by the Smith's Cove route or by the Shilshole Bay route, in the discretion of the Secretary of War. In 1898 a Board of Engineer Officers was appointed to determine the choice, and recommended the Shilshole Bay route, with a lock at the Narrows near the foot of Salmon Bay. This recommendation was approved by the Secretary of War April 14, 1899, and right of way proceedings were completed and deeds obtained and accepted by the Secretary of War in 1900. The legislature of Washington, by act approved February 8, 1901, Sess. Laws, p. 7, granted to the United States the right to construct and operate the ship canal upon any lands belonging to and waters of the State in King County, within limits to be defined by the plans and specifications for the improvement as approved by the Secretary of War, with the right to raise the waters of Salmon Bay and to lower the waters of Lake Washington in the prosecution of the improvement. Congress was still unwilling to sanction any particular project for the canal, and by act of June 13, 1902, 32 Stat. 331, 347, c. 1079, while an appropriation of $160,000 was made under the usual designation for "Improving waterway connecting Puget Sound with Lakes Union and Washington," it was provided that this sum, together with the unexpended balance to the credit of the improvement, should be expended in dredging a low-water channel 10 feet in depth from Shilshole Bay through Salmon Bay to the wharves at Ballard (at the head of the Bay); with a further proviso that a board of engineers should be appointed by the Secretary of War to make surveys, examinations, and investigations to determine the feasibility and advisability of constructing a canal with necessary locks and dams, connecting Puget Sound with the lakes, of sufficient width and depth to accommodate the largest commercial and naval vessels, to examine the route for a similar canal connecting Elliott Bay with the lakes, and to report upon the relative advantages of all proposed routes; and it was declared that "Nothing herein shall be construed as the adoption of any project for the construction of a waterway connecting Puget Sound with Lakes Union and Washington." The Board reported, January 6, 1903, that a canal sufficient to accommodate the largest commercial and naval vessels was feasible, but not advisable, chiefly because of the great cost, estimated at over $8,000,000. The act of March 3, 1905, 33 Stat. 1117, 1144, c. 1482, made a further appropriation of $125,000, limited to dredging the channel to Ballard. Meanwhile, it appears, the people of Seattle had become discouraged about the prospect of obtaining Government aid, and therefore accepted the proposition of one James A. Moore to build upon the Government right of way a canal with a suitable timber lock, if the County of King would contribute $500,000 toward it; and an act of Congress of June 11, 1906, 34 Stat. 231, c. 3072, was secured, authorizing him to proceed with this work, subject to such conditions and stipulations as should be imposed by the Chief of Engineers and the Secretary of War for the protection of navigation and the property and other interests of the United States, to include provision for the discharge of waters from Lakes Union and Washington, and afford adequate protection against claims for damages for changing the level of Lake Washington, and subject to provisos which required that plans and specifications should be approved by the Secretary of War, that Moore and his assigns should be liable for any damage occasioned by the construction of the lock and canal by overflow, by a lowering of the waters affected, or otherwise, and that the canal and lock when completed should be turned over to the United States ready for use and free of all expense. The Moore plan included a timber lock between the lakes, and seems to have contemplated another lock to be constructed by the Government at the mouth of Salmon Bay. Shortly after the passage of the act just mentioned King County pledged its credit to the extent of $500,000 in aid of the Moore project. A little later, however, the local interests inaugurated a movement for the installation of a permanent masonry lock in place of the timber lock, and legislative authorization was procured (act of March 18, 1907, Sess. Laws, p. 582), for the establishment of an assessment district in order to impose upon the shore lands benefited a part of the cost of the improvement. The same legislature supplemented the act of 1901 by a specific grant of a right of way over state lands between the lakes (act of March 16, 1907, Sess. Laws, p. 498). About the same time Congress was again appealed to, and by act of March 2, 1907, 34 Stat. 1073, 1108, c. 2509, the Secretary of War was authorized to "make a survey and estimate of cost of said waterway or canal with one lock, with a view to the construction of the same, in conjunction with the county authorities of King County or other agency, of sufficient size to accommodate the largest commercial or naval vessels afloat; or, if deemed more |