to be certified to this court directly must be one involving the jurisdiction of the Circuit Court as a Federal court, and not simply its general authority as a judicial tribunal to proceed in harmony with established rules of practice governing courts of concurrent jurisdiction as between each other."

See also in this connection Bache v. Hunt, 193 U. S. 523, in which the same principle is announced.

Applying the rule thus settled to the case under consideration, there was jurisdiction in the Circuit Court of the United States for the District of Massachusetts under the judiciary act, as the plaintiff was a citizen of Sweden and the defendant shipbuilding company a corporation of Massachusetts. Thus having jurisdiction, it was at liberty to decide all questions properly before it, including the one whether, under the applicable principles of law, a court of another sovereignty would enforce a cause of action based upon the Massachusetts statute. But the determination of that question did not involve the jurisdiction of the Circuit Court as a Federal court. It was a question to be decided upon the application of the same principles as would apply had the action been brought in a court of another State or nation. Whether other sovereignties would enforce penal actions of the character alleged to arise under the Massachusetts statute was not a question peculiar to the Federal jurisdiction of the court. It was general in its nature and to be determined upon principles controlling in other courts as well as those of Federal creation.

Without enlarging the discussion, and applying principles thoroughly settled in this court, we are of opinion that a direct writ of error will not lie from the determination of the Circuit Court of the United States to exercise its jurisdiction in the present case. The writ of error is therefore dismissed for want of jurisdiction.

Dismissed.

Argument for the United States.

219 U.S.

UNITED STATES v. GRIZZARD.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF KENTUCKY.

No. 66. Argued December 6, 1910.-Decided January 3, 1911.

The compensation to be awarded under the Fifth Amendment for an actual physical taking of a part of a distinct tract of land includes not only the market value of the part appropriated, but the damage to the remainder resulting from such taking, embracing injury due to the use to which the part appropriated is to be devoted. In this case held that such damage to the unappropriated portion of the tract included that caused by cutting off access therefrom to the public road by flooding the land actually taken.

In determining the total amount of damages for land appropriated and for damages to remainder, the trial court may divide the total award and specify the amounts for each element of damage, and it is not error if the total award represents the difference between the value of the entire tract before the taking and that of the remainder after the taking. A less sum would not be the just compensation which the Fifth Amendment prescribes.

THE facts are stated in the opinion.

Mr. Assistant Attorney General John Q. Thompson, with whom Mr. Assistant Attorney Cox was on the brief, for' the United States:

The closing of public highways, such as streets, roadways and alleys, when done under and pursuant to authority conferred by a valid act, and where there has been no want of reasonable care or skill in the execution of the power, does not constitute a taking of private property within the meaning of the Constitution. This is especially true where ingress and egress to and from land has been closed in but one direction. At most, the damages arising therefrom have been held to be consequen

tial and not actionable. United States v. Welch, 217 U. S. 333, does not apply. See Lewis on Eminent Domain (3d ed.), § 202; Keasy v. Louisville, 4 Dana, 154; Louisville & Frankfort R. R. Co. v. Brown, 17 B. Mon. (Ky.) 763; Wolfe v. C. L. R. R. Co., 15 B. Mon. (Ky.) 404; Cooley, Const. Lim. (6th ed.), pp. 473, 666; Dillon, Mun. Corps., § 987; Sedgwick, Stat. Const. (2d ed.), pp. 456

et seq.

Defendants in error must show something more than damage to bring suit within the jurisdiction of the court under the act of March 3, 1887. They cannot be content with alleging and proving mere damages arising out of the commission of a tort, but must show that there has been such a taking of private property for public use as is inhibited by the Fifth Amendment to the Constitution. Neither can they, by any evasion in pleading, create an action ex contractu out of one purely sounding in tort. 149 U. S. 593; 188 U. S. 400.

It has not been alleged, nor can it be presumed as a matter of law, that defendants possessed any individual property right in a public road of Madison County. Whatever rights that county and the State of Kentucky may have in this thoroughfare need not here be discussed, because they are not parties to this proceeding.

There was no appearance or brief filed for defendant in error.

MR. JUSTICE LURTON delivered the opinion of the court.

Action by the owners of a farm for a taking of a part thereof by the United States for public purposes. Judgment for the plaintiff below.

The farm of the defendants in error lies upon Tates Creek, a tributary of the Kentucky River. For the purpose of improving the navigation of that stream the Gov

ernment has erected a series of locks and dams. As a consequence the waters of Tates Creek are backed up to such an extent as to flood or submerge a strip of the Grizzard farm, permanently destroying its use for agricultural purposes. The court below, a jury being waived, found that seven and a half acres of land had been actually taken. He then added:

"3. That in addition there is taken an easement of access from plaintiffs' land by way of the county road to the Tates Creek pike.

"4. That the whole land was worth $3,000 before said taking, and what was left after the taking was worth $1,500.

"5. I divide the damage by reason of the taking between the land taken and the easement of access taken equally, i. e., I allow $750 for the land taken, and a like sum of $750 for the easement of access taken.

"I therefore conclude as a matter of law that plaintiffs are entitled to a judgment for $1,500."

The errors assigned relate only to so much of the judgment as allows damages for the "easement of access," referred to in the findings above set out. That there was a taking by flooding permanently the seven and a half acres, valued at $750 by the court below, is not contested. Pumpelly v. Green Bay Co., 13 Wall. 166; United States v. Lynah, 188 U. S. 445; United States v. Welch, 217 U. S. 333; High Bridge Lumber Co. v. United States, 69 Fed. Rep. 323.

The content is that the "easement of access" destroyed, and therefore, taken, was not a private right of way constituting property such as that for which compensation was allowed in United States v. Welch, but was a public county road; and reference has been made to the well-known class of cases touching an injury to land not taken by the construction of a railroad along and upon an abutting public road, or a change of grade to the dam

age of adjacent property, and like indirect injuries to the use of property adjacent but of which no part was taken from the owner. Transportation Co. v. Chicago, 99 U. S. 635; Sharp v. United States, 191 U. S. 341.

But here there has been an actual taking by permanently flooding of a part of the farm of the defendants in error. An incident of that flooding is that a public road running across the flooded land is also flooded. But if this were not so, and the roadway had simply been cut off by the interposition of the flooded portion of the farm, the damage would be the same. Since, therefore, there has been a taking of a part of the owners' single tract and damage has resulted to the owners' remaining interest by reason of the relation between the taken part and that untaken, or by reason of the use of the taken land, the rule applied in the cases cited does not control this case.

That the petition laid stress upon the flooding of the highway which crossed the flooded land, and sought to recover for a deterioration of an easement in the public road, is not fatal. The damage to the land not appropriated is the obvious consequence of the taking of a part of the whole by flooding a manner of appropriating which has made the village market, church and school so inconvenient of access as to add some three miles of travel by an unimproved and roundabout country road. Whenever there has been an actual physical taking of a part of a distinct tract of land, the compensation to be awarded includes not only the market value of that part of the tract appropriated, but the damage to the remainder resulting from that taking, embracing, of course, injury due to the use to which the part appropriated is to be devoted. Thus in Sharp v. United States, 191 U. S. 341, 353, damage resulting to adjacent but distinct parcels was denied because there had been no actual appropriation of any part of such separate parcel, but the principle was conceded as to injury, from the character of the