the law, when the damage can be prevented by raising the banks, or that if the damage stated did in fact result, that it would justify the interposition of a court of equity.

The question whether the overflow of lands constitutes "a taking" within the constitutional provision has been discussed in several cases in this court. Pumpelly v. Green Bay Co., 13 Wall. 166; Transportation Company v. Chicago, 99 U. S. 635; Gibson v. United States, 166 U. S. 269; Scranton v. Wheeler, 179 U. S. 141; Atwater v. Trustees, 124 N. Y. 602.

A recent case is that of United States v. Lynah, 188 U. S. 445, wherein it was held that where the Government had placed dams and other obstructions in the Savannah River in such manner as to hinder its natural flow, and to raise the water so as to overflow plaintiff's lands and to cause a total destruction of their value, the proceeding must be regarded as an actual appropriation of the land, and created an obligation upon the Government to make compensation for the land. The case was distinguished from that of Mills v. United States, 46 Fed. Rep. 738, wherein the damage consisted in obliging the plaintiff to raise the levees around his rice fields to prevent the flooding of the fields in high water. "Obviously," said the court, in commenting upon that case, "there was no taking of plaintiff's lands, but simply an injury which could be remedied at an expense, as alleged, of $10,000, and the action was one to recover the amount of this consequential injury. The court rightfully held that it could not be sustained." A still more recent case is that of Bedford v. United States, 192 U. S. 217, in which it is held that damages to lands by flooding as a result of revetments erected by the United States along the banks of the Mississippi River to prevent erosion of the banks from natural causes, are consequential and do not constitute a taking of the lands flooded within the meaning of the Constitution.

We think the rule to be gathered from these cases is that where there is a practical destruction, or material impairment of the value of plaintiff's lands, there is a taking, which de

mands compensation, but otherwise where as in this case plaintiff is merely put to some extra expense in warding off the consequences of the overflow.

The damage claimed by the plaintiff in the interruption of access to his lands and the impairment of his right to navigate the creek does not demand separate consideration. We have repeatedly held that where the Government of the United States has, for the purposes of improving the navigation of a river, erected piers or other structures by which access to plaintiff's land is rendered more difficult, there is no claim for compensation. Gibson v. United States, 166 U. S. 269; Scranton v. Wheeler, 179 U. S. 141. We see no reason why the same principle should not apply to cases where the state legislature, exercising its police power, directs a certain dam to be built, and thereby incidentally impairs access to lands above the dam. In both cases the sovereign is exercising its constitutional right-in one case in improving the navigation of the river, and in the other in draining its low lands, and thereby enhancing their value for agricultural purposes.

It is suggested that the agreement of 1903 created an easement of access to plaintiff's land, Ladd v. Boston, 151 Massachusetts, 585; Hogan v. Barry, 143 Massachusetts, 538, and that the statute of South Carolina must be construed as overriding private rights of property, and not merely as putting an end to the rights of the public, and as giving to plaintiff a claim for damages for the taking of that easement. But it does not necessarily follow that an injunction should issue. Apparently this covenant did not apply to the millsite, since this was purchased after the covenant was made, but, however this may be, a court of equity is not bound to enjoin a publie work authorized by statute, until compensation is paid, where no property is directly appropriated. This is particularly true where the damage is difficult of ascertainment at the time and a reasonable provision is made by the law for compensation. Sweet v. Rechel, 159 U. S. 380; Backus v. Fort Street Union Depot Co., 169 U. S. 557; Cherokee Nation v.

Southern Kansas Ry. Co., 135 U. S. 641; Beasley v. Texas & Pacific Ry. Co., 191 U. S. 492; Haverhill Bridge Proprietors v. Essex County Commissioners, 103 Massachusetts, 120; Parker v. Catholic Bishop, 146 Illinois, 158. The state cases are numerous on this point.

In view of the incidental character of the damage probably resulting to plaintiff's land from the erection of this dam, and the careful provision of the act that the defendants shall be liable for such damage, we do not think, at least in the absence of an allegation that the defendants are financially irresponsible, that a court of equity would be authorized to enjoin the erection until the damages, which, if they exist at all, must be very difficult of ascertainment, shall be paid.

3. It is also assigned as error that the act of 1903 is obnoxious to the following provisions of the constitution of South Carolina, Article III, section 34, that "The General Assembly of the State shall not enact local or special laws concerning any of the following subjects, or for any of the following purposes, to wit: . . II. To lay out, open,

alter or work roads or highways."

As the case comes from a Federal court, the question is properly before us.

Admitting that, for the purposes of transit and travel, a river may be considered a highway-and that seems to have been adjudged by the Supreme Court of South Carolina, Heyward v. Chisholm, 11 Rich. 253,-we think that, in connection with the words "To lay out, open, alter or work roads," the word "highway" is used in its ordinary sense, and as an equivalent to a public road. The power given by this section is evidently inapplicable to water highways, which are neither laid out, opened, altered or worked in the ordinary sense of these words.

4. It is also urged that the act was passed without the formality required by the Revised Statutes of South Carolina of 1893, in which it is declared that no bill for the granting of any privilege or immunity, or for any other private purpose

whatsoever, shall be introduced, or entertained in either house of the General Assembly except by petition, to be signed by the persons desiring such privilege, of which sixty days' notice shall be given to all persons interested, and be published in the newspaper having the largest circulation in the county where such privilege is to be enjoyed, once a week for three weeks, etc.

As this is not a constitutional provision, but a general law enacted by the legislature, it may be repealed, amended or disregarded by the legislature which enacted it. This law was doubtless intended as a guide to persons desiring to petition the legislature for special privileges, and it would be a good answer to any petition for the granting of such privileges that the required notice had not been given; but it is not binding upon any subsequent legislature, nor does a non-compliance with it impair or nullify the provisions of an act passed without the requirement of such notice.

There was no error in the action of the court below, and its judgment is, therefore,

Affirmed.

PETRI v. F. E. CREELMAN LUMBER COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 49. Argued November 7, 1905.-Decided December 4, 1905.

Where it is plainly apparent on the record that the only matters tried and decided in the Circuit Court were demurrers to pleas to the jurisdiction, and the petition upon which the writ of error was allowed asked only for the review of the judgment which decided that the court had no jurisdiction, no bill of exceptions or formal certificate in respect to the matter decided is required and the writ of error will not be dismissed because authenticated

by a judge other than the trial judge and not made at the term in which the judgment was entered..

The rule that repeals by implication are not favored and a repeal will not be implied unless there be an irreconcilable conflict between the two statutes applies especially where the prior law is a special act relating to a particular case or subject and the subsequent law is general in its operation. The special provisions of the act of March 2, 1887, 24 Stat. 442, relating to judicial districts of Illinois, were not repealed by the general terms of the Judiciary Act of March 3, 1887, 24 Stat.

PLAINTIFFS in error, suing as aliens and residents of Antwerp, Belgium, commenced this action in the Circuit Court of the United States for the Northern Division of the Northern District of Illinois, to recover damages for an alleged libel. Two Illinois corporations and a number of persons were made defendants. The bill as to the corporations alleged citizenship in Illinois, and, as to all the defendants, except the Creelman Lumber Company and F. E. Creelman, one of the individual defendants, the bill alleged that the defendants resided in the district and division where the suit was brought. The Creelman Lumber Company and F. E. Creelman filed pleas to the jurisdiction of the court, based upon the fact that each of them, before and at the time of the commencement of the suit, although citizens of the State of Illinois, were residents of a different district from the one in which the suit was brought, that is, the Southern District of Illinois. To these pleas the plaintiffs demurred, and, on a hearing, a District Judge, holding the Circuit Court, overruled the demurrers, and held the pleas to the jurisdiction good. The plaintiffs electing to stand upon their demurrers to the pleas, the action as to the defendants in question was dismissed for want of jurisdiction. Some time afterwards a bill of exceptions was signed by a Circuit Judge, in which was recited the action taken by the trial court upon the demurrer to the jurisdictional pleas aforesaid, and the cause was taken to the Circuit Court of Appeals. That court, however, dismissed the writ of error, and on the receipt. of its mandate, about a year after the entry of the judgment of dismissal above referred to, there was filed in the trial court