The opinion
Green, Judge,
concurring:
The full and complete construction of the act under which this suit is brought presents a very difficult question. I agree with the foregoing opinion that Congress must have intended to give this court jurisdiction of an action in tort, but it does not seem to me to be necessary to determine whether by the language of the act and the proceedings in Congress it was intended to establish “ an act of negligence on the part of the Government for which Congress assumed liability and intended to grant relief.” I also agree that Congress must have intended to waive the rights of sovereignty which the Government had over the bed of the stream, for otherwise there would be no case to submit to this court. Without regard to whether Congress intended to go farther, it has seemed to me that at least it intended *830 to give the plaintiff the same rights that it would have if it was bringing the suit against a private individual or corporation. If this is all, proof of negligence would be re* quired, but only such evidence as would show negligence if the act had been done by a private individual instead of the Government. I think the evidence satisfies this requirement. Any dweller along the seashore would know that, the stakes set in the manner shown by the plat set out in the majority opinion were not for the purpose of marking a channel but for the purpose of warning against destruction to property which might be caused by navigation, within the boundaries so marked. The engineer may not have seen them, but the crew of the dredge certainly did. The crew may not have known just what kind of property they were intended to protect and evidently did not care. Under such circumstances, the fact that in the first instance even when considered as private individuals they may have owed no duty to plaintiff did not justify proceeding when they knew that they were endangering property without giving the owner thereof an opportunity to remove it when it could just as well have been done. Under such circumstances, I think that negligence was shown and a liability created. I agree to the amount allowed by the majority of the court, although it seems to me to be a little high.