The opinion
WHITAKER, Judge
(dissenting).
I cannot agree with the opinion of the majority. Its soundness depends in large part at least on the premise that the so-called sloughs over which the damaged bridges were built were nonnavigable. The maj ority finds that they were nonnavigable. If this finding is wrong, the conclusion that the Government is liable f-or the damage to these bridges is wrong. If these sloughs were navigable, then any damage done to the bridges erected over them as a result of an improvement of navigation is damnum absque injuria. 9
The commissioner was of opinión that the sloughs were navigable and his findings were based on this premise. The majority takes the contrary view. I agree with the commissioner.
These so-called sloughs are in fact channels of the Mississippi River. At the point where these bridges were erected the Mississippi River runs between two high bluffs. The valley between these bluffs is about 2% miles wide. The main channel of the river at and above De Soto, Wisconsin, runs on the east side of the valley. Just below De Soto it veers across the valley to the west side and continues on down the west side to Island No. 152, where it divides into Crooked Slough and Harper’s Slough, the main body of the water apparently going-down Crooked Slough and over to the east bank of the valley.
Winneshiek Slough, over which one of the bridges was erected, takes off from the *869 mam channel of the river just below De Soto. It meanders down through the valley from the east side to the west side and back again, and finally rejoins the main channel of the river at the mouth of Crooked Slough. Winneshiek Slough is, roughly, 8 or 10 miles long. Big Slough takes off from the main channel of the river just above plaintiff’s dike and returns to the main channel of the river about a mile and a half down the stream. The bridge over Winneshiek Slough was about 500 feet long; the bridge over Big Slough was about 280 feet long; the other bridges were shorter.
These are referred to in the record as sloughs, but they are in fact channels of the Mississippi River. There is the main channel, and the channel called Winneshiek Slough, the channel called Big Slough, and other channels. The water in each of these channels is the water of the Mississippi River. The sloughs take off from the main channel and return to it. They are parts of the river.
The Mississippi River at this point is a navigable stream. When we say that a stream is navigable we mean that it is navigable from bank to bank; not merely that portion of it over which boats pass. If a stream is navigable, it is navigable from bank to bank, in the sense of the clause of the Constitution giving Congress the power to regulate commerce.
If a structure is erected in the bed of the stream, whether it be erected in the deep portion or a shallow portion, it is erected there at the peril of him who erected it. If in improving navigation on the stream damage results to the structure erected in its bed, the owner is without redress against the Government. Gibson v. United States, 166 U.S. 269, 272 , 17 S.Ct. 578 , 41 L.Ed. 996 ; Scranton v. Wheeler, 179 U.S. 141, 163 , 21 S.Ct. 48 , 45 L.Ed. 126 ; Philadelphia Co. v. Stimson, 223 U.S. 605, 635, 638 , 32 S.Ct 340 , 56 L.Ed. 570 ; Greenleaf-Johnson Lumber Co. v. Garrison, 237 U.S. 251, 259 , 35 S.Ct. 551 , 59 L.Ed. 939 ; United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 62, 63 , 33 S.Ct. 667 , 57 L.Ed. 1063 ; State of New Jersey v. Sargent, 269 U.S. 328, 337 , 46 S.Ct. 122 , 70 L.Ed. 289 ; United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. et al., 312 U.S. 592 , 313 U.S. 543 , 61 S.Ct. 772 , 85 L.Ed. 1064 ; Kelley’s Creek and Northwestern Railroad Co. et al. v. United States, 100 Ct.Cl. 396 , 407 et seq. And it makes no difference whether the structure is erected in the portion over which boats travel or whether it is erected in the shallow water along the shore.
This is true of necessity because it would be impossible for the Government to raise the level of the water in the channel of the stream over which boats pass without raising the level of the water in the shallow parts.
Many times in its course a river will come up against an obstruction and the water will divide. Some of it will go on one side of the obstruction and some go on the other side, forming an island. It often happens that the water on one side of the island is deeper than that on the other; the river can be navigated on one side, but not on the other. Nevertheless, both branches of the river are navigable in the constitutional sense. This is necessarily true because it would be impossible for the Government to improve navigation by raising the water level on one side without affecting the channel on the other side.
These so-called sloughs are but different channels of the same river, and if the level of the water in the main channel is raised, then the level of the water in the other channels is necessarily raised, unless steps are taken to prevent the water from flowing down them at all. If the Government is immune from liability for damage to a structure erected in the main channel it must necessarily follow on principle that it is immune from liability for damage to a structure erected over one of the other channels.
As a matter of fact, some time before plaintiff built its dike across this river bottom and the bridges across the sloughs and the main channel, the Government had erected “closing dams” by throwing in rock at the head of Winneshiek and Big Sloughs, and at the heads of the others, in order to divert as much water as possible down the main channel. These closing dams, as they were called, did not prevent some water *870 from flowing down the sloughs, and at times of high water the river flowed over the top of these closing dams and down the sloughs.
' When the Government erected Lock and Dam No. 9 it raised the level of the river above the tops of these closing dams. Thereafter the dams no longer served the purpose for which they were built and the water flowed down these sloughs unobstructed. The improvement of navigation in the main channel produced this result necessarily.
The Government had a right to improve navigation in the way it did, even though structures erected in the bed of any of the channels of the streams were damaged thereby. These structures were put there at the peril of the person putting them there.
If this view is correct, the Government is not liable- for the damage done to these bridges by the ice jams of which plaintiff complains.
The plaintiff also claims damages for erosion of its dike as a result of the raising of the level of the river. The commissioner found that a great deal of this erosion had taken place prior to the building of Lock and Dam No. 9, and that some of it had taken place after the raising of the level of the river, and he found that it was impossible to tell ho-w much of it had taken place before and how much afterwards. The court says it can determine how much of the damage was done after the level of the river had been raised and it awards judgment therefor.
The testimony is conflicting on this issue. In such a case I do not think the finding of the commissioner should be set aside unless the preponderance of the testimony is clearly against the finding. The court has not seen the witnesses. The commissioner did see them. He observed their manner and demeanor; he took the testimony of many of them at the site; he was in much better position to weigh the conflicting evidence than are we who have not seen the wit-, nesses, who have not- seen the site, but must depend alone on the written record. The commissioner may have been wrong in his findings, and the court may be right. I do not know which is right, but I feel quite reluctant to overturn the commissioner’s finding, since he was in so much better position to weigh the testimony than are we.
I must respectfully dissent.
We discussed at some length the eases so holding in, Kelley’s Creek & N. W. R. Co. et al. v. United States, 100 Ct.Cl. 396 .