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2. UNITED STATES 95-CLAIMS AGAINST IMPLIED CONTRACT CLAIM OF RIPARIAN PROPRIETOR for DredGING.

Consent of United States to be sued under Tucker Act (Comp. St. 1916, § 991), being limited to claims founded upon contract, express or implied, if riparian proprietor on North branch for dredging in front of his property to improve of Chicago river can recover against government navigation, it must be on implied contract. 3. UNITED STATES 95-CLAIMS AGAINST IMPLIED CONTRACT.

ery, tight, staunch [and] strong," the own-1 ble river, but riparian owners own fee to middle ers will "maintain her in a thoroughly effi- of stream, subject to government's paramount cient state in hull and machinery for and right to use it and to make improvements for navigation without compensation, including during the service"-not pay the expense of deepening of channel. maintaining her. This duty to maintain the vessel in an efficient state is imposed by the contract, because a time charter, like a charter for a single voyage, is not a demise of the ship. In both, the charterer is without control over her repair and maintenance. In operations under each the charterer becomes liable to shippers without limitation for losses due to unseaworthiness discoverable by the exercise of due diligence on the part of the owners; and in each case he requires for his protection a warranty, without limitation, of seaworthiness at the commencement of every voyage. Compare The Burma, 187 Fed. 94, 110 C. C. A. 330; Whipple v. Mississippi & Yazoo Packet Co. (D. C.) 344. Fed. 54; McIver & Co., Ltd., v. Tate Steamers, Ltd., [1903] 1 K. B. 362; Park v. Duncan & Sons, 35 Scottish Law Reporter, 378. If Giertsen v. Turnbull & Co., 45 Scottish Law Reporter, 916, strongly relied upon by the owners, is inconsistent with this view, it should be disregarded.

[8] Fourth. The vessel was owned 54/80ths by Edgar F. Luckenbach, as sole trustee of the estate of Lewis Luckenbach; 10/soths by Edgar F. Luckenbach individually; and 16/8oths by John W. Weber and Hattie W. Luckenbach, executors of the estate of Edward Luckenbach. All of these parties were impleaded as owners. The charter party was signed only by "Estate of Lewis Luckenbach, *per Edgar F. Luckenbach, Trustee"; but it was admitted by all the petitioners that Edgar F. Luckenbach, Trustee, in so signing the charter party, acted for all the owners and intended to bind all. The decree in the District Court declares that libelant was entitled to recovery "from the respondents Edgar F. Luckenbach et al., her owners." The decree in the Circuit Court of Appeals adjudged (presumably through inadvertence) that the payment should be made by "the estate of Luckenbach." The right to recover against all the owners, for the full amount, in case any of them was so liable was not controverted.

The decree of the Circuit Court of Appeals should be modified so as to render all the owners liable. Compare Pendleton v. Benner Line, 246 U. S. 353, 38 Sup. Ct. 330, 62 L. Ed. 770. As so modified, the decree is af

firmed.

(248 U. S. 121)

TEMPEL v. UNITED STATES. (Argued Nov. 5, 1917. Decided Dec. 9, 1918.)

No. 29.

1. NAVIGABLE WATERS 36(2)—LANDS UN-
DER STREAM-OWNERSHIP.
Under law of Illinois, neither the United
States nor the state owns lands under a naviga-

make compensation required by Tucker Act
Law will imply promise by United States to
(Comp. St. 1916, § 991), where property to
which government asserts no title, conceding
ownership in an individual, is taken pursuant to
plied for public uses.
act of Congress as private property to be ap-

EVIDENCE 48- JUDICIAL NOTICE - RE-
PORTS OF SECRETARY OF WAR.

the

5.

The Supreme Court takes judicial notice of
reports of the Secretary of War.
UNITED STATES 96-CLAIMS AGAINST-
WRONGFUL DREDGING OF SUBMERGED
LANDS-TUCKER ACT.

If claim of United States of right to dredge
North branch of Chicago river to improve navi-
proprietor, whose submerged land was dredged,
gation was unfounded, property right of riparian
was violated; but his cause of action, if any,
sounds in tort. for which Tucker Act (Comp.
St. 1916, § 991), limiting consent of United
States to be sued to claims founded on contract,
affords no remedy.
6. UNITED STATES 95 CLAIMS AGAINST
IMPLIED PROMISE-TUCKER ACT.

taking property there was any claim by United Where it does not appear that at time of States of right to invade it without payment of compensation, it must be assumed government intended to make compensation for any property taken, so as to afford basis for implied promise, enforceable by action under Tucker Act (Comp. St. 1916, § 991).

7. UNITED STATES

96 CLAIMS AGAINST— NONCONVERSION OF ACT INTO TORT.

When implied promise of United States to. pay for property taken has once arisen, later denial by government, at time of suit against it under Tucker Act (Comp. St. 1916, § 991), or otherwise, of its liability to make compensation, does not destroy injured party's right in contract, and convert act of taking into a tort.

In Error to the District Court of the Unit

ed States for the Northern District of Illi

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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lie wholly within the state of Illinois.1 | About 12.5 miles of the river was improved Their aggregate length is about 35 miles. by the government; and of this about 5 Originally the stream was a sluggish creek, miles consisted of that part of the North nearly stagnant during much of the year branch which lies between the main river and, in part, navigable only for rowboats and Belmont avenue. and canoes or for *floating of logs. The United States surveyed the river in 1837, but made no improvement above its mouth until 1896. Before the latter date, however, extensive improvements had been made from time to time by the city and by riparian owners. The river had become the inner harbor of Chicago and, measured by its tonnage, was one of the most important waterways of the globe. In number of arrivals and departures of vessels it led all the har bors of the United States. In tonnage it was second only to New York.2

In 1896 Congress made an appropriation "for improving the Chicago river, in Illinois, from its mouth to the stock yards on the South branch and to Belmont avenue on the North branch, as far as may be permitted by existing docks and wharves, to be dredged to admit passage by vessels drawing sixteen feet of water." Act of June 3, 1896, c. 314 (29 Stat. 202, 228). This act was amended by the Act of June 4, 1897, c. 2 (30 Stat. 11, 47), which, as interpreted by the War Department, permitted a slight widening of the stream in certain places. The General Assembly of Illinois by resolution of April 22-23, 1897, gave assent to the United States acquiring by purchase or condemnation "all lands necessary for widening the Chicago river and its branches." In 1899 Congress directed a survey with a view to creating a deeper channel and adopting 21 feet "as the project depth for the improvement in lieu of that fixed by the Act of June third, eighteen hundred and ninety-six." Act of March 3, 1899, c. 425 (30 Stat. 1121, 1156). No widening beyond the banks of the de jure stream was specifically authorized by this act, nor by any subsequent act. From time to time other appropriations were made by Congress for these improvements of the river, and work *was carried on thereunder.3

Early in 1889 Tempel became the owner of certain land on the bank of the North branch below Belmont avenue. He leased his land for a brickyard; and by the terms of the lease the lessee was permitted to dredge the bottom of the river in front of the premises for the purpose of making brick from the clay thereunder. But the lessee was directed not to interfere with the upland; and he covenanted to deliver up the premises in the condition in which they were demised. Nevertheless, from time to time during a period of five years between 1889 and 1899, the lessee dug away, to a depth of from 6 to 14 feet, a large strip of the upland, extending in some places to a considerable width. In its natural state the stream opposite the plaintiff's property varied in width from probably 50 to 150 feet, and could be used only for floating logs and for travel by rowboats or canoes; but before 1889 riparian owners had dug a channel and possibly greatly widened the stream, and schooners navigated to a point beyond Belmont avenue. Between 1890 and 1899 boats drawing 5 to 8 feet of water were navigating the North branch up to Belmont avenue. In 1896 the river in front of Tempel's property was in varying depths of from 6 to 14 or 15 feet.

The United States did not do any dredging in front of *Tempel's property until 1899. Then it dredged a channel to the depth of 17 feet, about 30 feet wide-the excavation being made wholly in the then bed of the stream as submerged. Its next dredging there was in 1909 when this channel was deepened to 21 feet and widened to 60 feet, the excavation being again made wholly in the then bed of the stream as submerged. All of the dredging, both in 1899 and in 1909, which was not within the bed of the river in its natural state, was done within the limits of the strip of upland which had been submerged through the dredging done by the lessee prior to 1899. During the period from 1889 to 1899, the stream in front

1 The character of the river and rights incidental thereto have been frequently considered by this court. Transportation Company v. Chicago, 99 U. S. 635, 25 L. Ed. 336; Escanaba Company v. Chicago,of Tempel's premises was in constant and 107 U. S. 678, 2 Sup. Ct. 185, 27 L. Ed. 442; Illinois Central Railroad v. Illinois, 146 U. S. 387, 437, 13 Sup. Ct. 110, 36 L. Ed. 1018; Harman v. Chicago, 147 U. S. 296, 13 Sup. Ct. 306, 37 L. Ed. 216; West Chicago Railroad v. Chicago, 201 U. S. 506, 520, 26 Sup. Ct. 518,

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Act of July 1, 1898, c. 546, 30 Stat. 597, 632; June 6, 1900, c. 791, 31 Stat. 588, 626; June 13, 1902, c. 1079, 32 Stat. 331, 363, which authorized the construction of turning basins, but the one in the North Branch was constructed at a point considerably below the land in controversy; March 2, 1907, c. 2509, 34 Stat. 1073, 1102; May 28, 1908, c. 213, 35 Stat. 429.

Reports, War Department, Engineers, for 1899, pp. 2826-2833; for 1900, pp. 3784-3788.

increasing use for the purpose of public navigation. The government does not appear to have had knowledge of the fact that dredg ing had been done before 1899 by the lessee without the consent of Tempel or that the river had been widened by excavation. The reports of the Secretary of War show that he never specifically authorized, for the purpose of widening the river, the appropriation of any of the property herein involved and that the government believed, when it dredged in front of Tempel's property in 1899 and again in 1909, that the submerged land, in which the dredging was done, was either a part of the natural bed of the river, or that it had been dedicated by the owner for

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The trial court found as a fact: "That by reason of the changes in said river as aforesaid, the difference between the value of he purchased the same as aforesaid, and the the premises of the petitioner at the time when value of the same at the time that the demand as hereinbefore set forth was made, less the cost of reclaiming the same, were he entitled to make reclamation thereof, is $7,547.00."

As conclusions of law the trial court found that the North branch was navigable in its natural state; that it was navigable in fact as early as 1889; that Tempel, having failed to complain of the use by the public of the stream in front of his property for a period of at least ten years prior to the first dredg

thereafter disputing the navigability of the river; and that the river being then a navigable stream, the dredging of the bed in 1899 and in 1909 did not constitute a taking of Tempel's property within the meaning of the Fifth Amendment. Judgment was entered for the United States; and the case comes here on writ of error.

Promptly after learning of the dredging, Tempel demanded of the government possession of that part of the land submerged which had formerly constituted a part of his upland. The demand was refused; and in 1911 he brought, in the District Court of the Unit-ing by the United States, was estopped from ed States for the Northern District of Illinois, this suit, under the Tucker Act (Judicial Code, § 24, par. 20; Comp. St. 1916, § 991 [20]), to recover the value of property which he claimed had been taken by the government. The complaint alleged that the river in front of his premises was, at the time he acquired the same and theretofore, a creek used only for surface drainage and was "not a navigable stream either in law or in fact"; that the government "in the latter part of the year 1909 completely excavated a channel through the same" for the purpose of making said North branch navigable; and that it holds possession thereof by virtue of the resolution of the General Assembly of Illinois above referred to; and that the reasonable value of the property taken was $10,000. The complaint did not refer either to the dredg-feet dredged by it in 1909, when the channel ing done before 1889, when Tempel acquired the property, or to that done between 1889 and 1899 by Tempel's lessee, or to that done in 1899 by the government. The answer de nied that the stream in front of Tempel's land was nonnavigable when he purchased it or theretofore; asserted that all excavations by the government were made in the center of the stream and were for the purpose of improving navigation; and denied that it had taken any of Tempel's property under the resolution of the Illinois Assembly or oth-in

erwise.

Reports. War Department, Engineers, for 1899, pp. 2828-2333; for 1900, pp. 3785-3788; for 1901, pp. 2993, 2995; for 1905, p. 545, show that, in the dredging under the project of 1896, the effort had been to secure title to all property necessary for the proposed development and that it was believed that (with exceptions not here material) this had been done. The

property here involved was not included in the land which it was proposed to acquire. The reports also show that the government was not aware that there was any property of a private owner which it was necessary to acquire in order to make the further improvement according to the 21-foot project; and in the accounting of the division of funds between different objects, none were assigned to the securing

of land for widening the river. Reports, War Department, Engineers, for 1907, p. 627; for 1908, p. 672; for 1909, p. 709; for 1910, pp. 784-785; for 1911, p. 842; for 1912, p. 1009; for 1913, p. 1119; for 1914, pp. 1157-1160. Nowhere does it appear that the Secretary of War ever authorized the taking of the property involved in this suit.

[1] First. This is a suit, like United States v. Lynah, 188 U. S. 445, 23 Sup. Ct. 349, 47 L. Ed. 539, and United States v. Cress, 243 U. S. 316, 37 Sup. Ct. 380, 61 L. Ed. 746, to recover the value of property taken by the government in making a river improvement. The property alleged to have been taken is land, part of which lies within the 30-foot channel first dredged by the government in 1899; the balance within the additional 30

was widened to 60 feet; and all of which formed part of the river bed and was submerged when the government commenced its improvement and has been since. But the property of Tempel, *if any, which the government has taken is only the right to keep his land submerged, to navigate over it, and to improve it further for purposes of navigation. This right in the land the government claimed and claims that it already possessed at the time when it dredged on the property

question; and it is the same right which the government possesses in that portion of the present river bed lying within the original meander lines and which originally constituted the whole river bed. Under the law of Illinois, neither the United States nor the state owns the lands under a navigable river. Riparian owners own the fee to the middle of the stream (St. Louis v. Rutz, 138 U. S. 226, 242, 11 Sup. Ct. 337, 34 L. Ed. 941), subject to the paramount right of the government to use the same and to make improvements therein for purposes of navigation, without the payment of compensation (West Chicago Railroad v. Chicago, 201 U. S. 506, 520, 26 Sup. Ct. 518, 50 L. Ed. 845; United States v. Chandler-Dunbar Co., 229 U. S. 53, 62, 33 Sup. Ct. 667, 57 L. Ed. 1063; Willink v. United States, 240 U. S. 572, 580, 36 Sup. Included in such Ct. 422, 60 L. Ed. 808). permissible improvement is dredging for the

130

purpose of deepening the channel. Lewis Blue Point Oyster Co. v. Briggs, 229 U. S. 82, 33 Sup. Ct. 679, 57 L. Ed. 1083, Ann. Cas. 1915A, 232. It is only this right to use and improve for purposes of navigation that the government claims here, a right which the government undoubtedly possessed, if the land in question had been a part of the bed of the de jure stream, as was supposed.

therefor, if any, is one sounding in tort; and for such, the Tucker Act affords no remedy. Hill v. United States, 149 U. S. 593, 13 Sup. Ct. 1011, 37 L. Ed. 862, which both in its pleadings and its facts bears a strong resem*blance to the case at bar, is conclusive on this point. See, also, Schillinger v. United States, 155 U. S. 163, 15 Sup. Ct. 85, 39 L. Ed. 108. The case at bar is entirely unlike both [2, 3] If the plaintiff can recover, it must the Lynah Case and the Cress Case. In neibe upon an implied contract. For, under the ther of those cases does it appear that, at the Tucker Act, the consent of the United States time of taking, there was any claim by the to be sued is (so far as here material) limit- government of a right to invade the property ed to claims founded "upon any contract, ex-in question without the payment of compensapress or implied"; and a remedy for claims tion. Under such circumstances it must be sounding in tort is expressly denied. Bigby assumed that the government intended to v. United States, 188 U. S. 400, 23 Sup. Ct. take and to make compensation for any prop468, 47 L. Ed. 519; Hijo v. United States, erty taken, so as to afford the basis for an 194 U. S. 315, 323, 24 Sup. Ct. 727, 48 L. Ed. implied promise. And when the implied 994. As stated in United States v. Lynah, promise to pay has once arisen, a later denial 188 U. S. 445, 462, 465, 23 Sup. Ct. 349, 354 by the government (whether at the time of (47 L. Ed. 539): suit or otherwise) of its liability to make compensation does not destroy the right in contract and convert the act into a tort. In both of those cases the facts required the implication of a promise to pay. But here the

"The law will imply a promise to make the required compensation, where property to which the government asserts no title, is taken, pursuant to an act of Congress, as private property

to be applied for public uses."

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Or in other words: "Whenever in the exercise of its governmental rights it takes property, the ownership of which it concedes to be in an individual, it impliedly promises to pay therefor."

But in the case at bar, both the pleadings and the facts found preclude the implication of a promise to pay. For the property applied to the public use is not and was not conceded to be in the plaintiff.

government has contended since the beginning of the improvement that, at the time of the dredging in 1899 and in 1909, it possessed the right of navigation over the land in question; which right of navigation, if it existed, gave it the right to dredge further in order to improve navigation. The facts preclude implying a promise to pay. If the government is wrong in its contention, it has committed a tort. The United States has not conferred upon the District Court jurisdiction to determine such a controversy. Cramp & Sons v. Curtis Turbine Co., 246 U. S. 28, 40, 41, 38 Sup. Ct. 271, 62 L. Ed. 560.

See

The District Court, instead of rendering judgment for the United States, should have dismissed the suit for want of jurisdiction.

[4-7] Second. The answer, specifically de nying that the United States has taken plaintiff's land, excavated a channel through it, and claims possession thereof under the resolution of the Illinois Assembly or otherwise, asserts that in 1909 it did "excavate a channel in the Chicago river in the center of the stream and now claims possession thereof for the purpose of making more navigable the North branch." The findings of fact made by the trial court (amplified by the reports of the Secretary of War, of which we take judicial notice) show that the government claimed at the time of the alleged tak- the consideration and decision of this case.

the District Court, with directions to dismiss it for want of jurisdiction.

Judgment reversed and case remanded to

Mr. Justice MCREYNOLDS took no part in

(248 U. S. 132) UNITED STATES v. SPEARIN. SPEARIN v. UNITED STATES.

1. CONTRACTS

9, 1918.) Nos. 44, 45.

232(1)-UNFORESEEN DIFFI

ing and now claims that it already possessed, when it made its excavation in 1909, the property right actually in question. It is unnecessary to determine whether this claim of the government is well founded. The mere fact that the government then claimed and (Argued Nov. 14 and 15, 1918. Decided Dec. now claims title in itself and that it denies title in the plaintiff, prevents the court from assuming jurisdiction of the controversy. The law cannot imply a promise by the government to pay for a right over, or interest in, land, which right or interest the government claimed and claims it possessed before it utilized the same. If the government's claim is unfounded, a property right of plaintiff was violated; but the cause of action For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

CULTIES.

Where one agrees to do for a fixed sum a thing possible to be performed, he will not be excused or become entitled to additional compensation on account of unforeseen difficulties. 2. CONTRACTS 280(3)-BUILDING TO PLANS AND SPECIFICATIONS.

If contractor is bound to build according to owner's plans and specifications, owner will be

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3. UNITED STATES 73-CONTRACT-UNFORESEEN DIFFICULTY RISK OF ADEQUACY OF RELOCATED SEWER.

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responsible for consequences of defects in plans and relocate a section thereof before the and specifications, despite clauses requiring work of constructing the dry dock could bechecking of plans, etc. gin. The plans and specifications provided that the contractor should do the work and prescribed the dimensions, material and loWhere dry dock was to be built in accord- cation of the section to be substituted. All ance with plans furnished by the United States, the prescribed requirements were fully comand contract provided for necessary relocation of sewer, articles prescribing its charac-plied with by Spearin; and the substituted ter, dimensions, and location imported warran- section was accepted by the government as ty that if complied with sewer would be ade- satisfactory. It was located about 37 to 50 quate, and, despite general clauses requiring contractor to examine site, etc., he could re- feet from the proposed excavation for the fuse to resume work where he relocated sewer dry dock; but a large part of the new secas provided, and it was not sufficient, and, when tion was within the area set aside as space government annulled contract without justifica- within which the contractor's operations tion, it became liable in damages. 4. UNITED STATES 70(1)-CONTRACTS-RE- were to be carried on. Both before and after DUCTION TO WRITING-IMPLIED WARRANTY the diversion of the 6-foot sewer, it connect-STATUTE. ed, within the Navy Yard but outside the space reserved for work on the dry dock, with a 7-foot sewer which emptied into Wallabout Basin.

Rev. St. § 3744 (Comp. St. 1916, § 6895), providing that contracts of the Navy Department shall be reduced to writing, did not preclude contractor to build dry dock from relying on government's warranty, implied by law from provisions of contract, that if he made necessary relocation of sewer as prescribed it would be adequate to permit erection of dry dock. 5. EVIDENCE 441(7)-PAROL EVIDENCE AFFECTING WRITING-IMPLIED WARRANTY.

The parol evidence rule did not preclude a dry dock contractor from relying on the government's warranty, implied by law from provisions of contract, that if he made necessary relocation of sewer as prescribed it would be adequate to permit erection of dry dock. 6. CONTRACTS-319(1) — PARTIAL PERFORMANCE-DAMAGES-PERFORMANCE PREVENTED

BY DEFENDANT.

A contractor, who, after partially performing his contract, is wrongfully prevented by the other contracting party from completing it, may recover actual expenditures made by him on account of the contract, and also damages for loss of profits.

Appeals from the Court of Claims.
Suit by George B. Spearin against the United
States. From judgment for plaintiff (51 Ct.
Cl. 155), both parties appeal. Affirmed.

Messrs. Frank W. Hackett, of Washington,
D. C., and Charles E. Hughes, of New York
City, for Spearin. Mr. Assistant Attorney
General Thompson, for the United States.

*Mr. Justice BRANDEIS delivered the opinion of the Court.

Spearin brought this suit in the Court of Claims demanding a balance alleged to be due for work done under a contract to construct a dry dock and also damages for its annulment. Judgment was entered for him in the sum of $141,180.86 (51 Ct. Cl. 155), and both parties appealed to this court. The government contends that Spearin is entitled to recover only $7,907.98. Spearin claims the additional sum of $63,658.70.

First. The decision to be made on the government's appeal depends upon whether or not it was entitled to annul the contract. The facts essential to a determination of the question are these:

Spearin contracted to build for $757,800 a dry dock at the Brooklyn Navy Yard in accordance with plans and specifications which had been prepared by the government. The site selected by it was intersected by a 6-foot brick sewer; and it was necessary to divert

About a year after this relocation of the 6-foot sewer there occurred a sudden and heavy downpour of rain coincident with a high tide. This forced the water up the sewer for a considerable distance to a depth of 2 feet or more. Internal pressure broke the 6-foot sewer as so relocated, at several places; and the excavation of the dry dock was flooded. Upon investigation, it was discovered that there was a dam from 5 to 5% feet high in the 7-foot sewer; and that dam, by diverting to the 6-foot sewer the greater part of the water, had caused the internal pressure which broke it. Both sewers were a part of the city sewerage system; but the dam was not shown either on the city's plan, nor on the government's plans and blueprints, which were submitted to Spearin. On them the 7-foot sewer appeared as unobstructed. The government officials concerned with the letting of the contract and construction of the dry dock did not know of the existence of the dam. The site selected for the dry dock was low ground; and during some years prior to making the contract sued on, the sewers had, from time to time, overflowed to the knowledge of these government officials and others. But the fact had not been communicated to Spearin by any one. He had, before entering into the contract, made a superficial examination of the premises and sought from the civil engineer's office at the Navy Yard information concerning the conditions and probable cost of the work; but he had made no special examination of the sewers nor special inquiry into the possibility of the work being flooded thereby, and had no information on the subject.

Promptly after the breaking of the sewer Spearin notified the government that he considered the sewers under existing plans a menace to the work and that he would not resume operations unless the government either made good or assumed responsibility for the damage that had already occurred and either made such changes in the sewer system as would remove the danger or assumed

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