United States v. Lynah

Jin. Justice BeowN

concurring.

I concur in the opinion of the court both with respect to its jurisdiction and the merits of the case, but I am unable to assent to the ground upon which our jurisdiction is rested. While T think the overflowing of the lands in controversy constitutes a taking within the meaning of the Fifth Amendment to the Constitution, I see no reason for holding that there was an implied contract to pay for them within the meaning of the Tucker act.; The taking appears to me an ordinary case of trespass to’ real estate, containing no element whatever of contract. In such case there can be no waiver of the tort. Jones v. Hoar, 5 Pick. 285; Smith v. Hatch, 46 N. H. 146.

But I think our jurisdiction may be supported, irrespective of the question of contract or tort, under that clause of the Tucker act which vests the Court of Claims with jurisdiction of “all claims founded upon the Constitution of the United States or any law of Congress.”

As we had occasion to remark in Dooley v. United States, 182 U. S. 222-224, the first section of the Tucker act evidently contemplates four. distinct classes of cases: (1) those founded upon the Constitution or any law of .Congress, with an exception of pension cases ; (2) cases founded upon a regulation of an Executive Department; (3) cases of contract, express or implied, with the government; (4) actions for damages, liquidated or unliquidated, in cases not sounding in tort.' The words “ not sounding in tort ” are in terms referable only to the fourth class of cases.

In my view, claims founded upon the Constitution may he prosecuted in the Court of Claims, whether sounding in contract or in tort; and wherever the United States may take proceedings in eminent domain for the condemnation of lands for public use, the owner of such lands may seek relief in the Court of Claims if his lands be taken without such proceedings, whether such taking be tortious or by virtue of some contract, express or implied, to that effect. That the case under consideration is one of that class is made clear by the act of April 24, 1888, 25 Stat. 94, which enacts “ that the Secretary of "War may cause proceedings to be instituted, in the name of the United States, in any coui’t having jurisdiction of such proceedings, for the acquirement by condemnation of any land, right of way, or material needed to enable him to maintain, operate or prosecute Avorks for the improvement of rivers and harbors for Avhich provision has been made by kvw ; such proceedings to be prosecuted in accordance with the laAvs relating to suits for the condemnation of property of the States Avherein the proceedings may be instituted.”

I fully concur in the opinion of the court that “the government may take real estate for a post office, a court house, a fortification or highAvay, or in time of Avar it may take merchant vessels and made them part of its naval force,” but this cannot be s< done without an obligation to pay for the value of that which is so taken and appropriated.” I am also of opinion that whenever in the exercise of its governmental rights it takes property, the ownership of which it concedes to. be in an individual, it is bound to pay therefor, but I do not think that there is any'distinction between cases where the government imph'edly promises to pay by taking prope; ty with the assent of the owner, and those where it takes property forcibly and against the will of the owner. It does not seem reasonable to hold that, where the invasion of the owner’s right to property is the greater, his remedy for the recovery of its value should be less, and that he should be compelled to resort to the tedious and unsatisfactory method of appealing to the bounty of Congress for relief.

Suppose, for instance, in time of war and under threat of invasion it seizes upon vessels without the consent of the owner and against his protest. There is certainly the same moral obligation to pay for them as if they had been appropriated with his consent, and I see no reason why an action for their value may not be maintained in the Court of Claims. Yet, as I understand the opinion of the court in this case, it holds indirectly, if not directly, that no such action would lie unless the property were taken with the consent of the owner and under an implied contract to pay for it. The consequences of recognizing such, distinctions seem to me so serious that nothing short of clear language in the statute will justify it.

None suc-h is even hinted at in United States v. Russell, 13 Wall. 623, one of the earliest cases, wherein the owner of three steamers seized under “imperative military liecessity” sought to recover compensation for their services. These steamers were impressed into the public service and employed as transports for carrying government freight for a certain length of time, when thejr were returned to the owner. He was held entitled to recover, the court holding that “ extraordinary and unforeseen occasons arise, however, beyond all doubt, in cases of extreme necessity, in time of war cr of immediate and impending public danger, in which private property may be impressed into the public service, or may be seized and appropriated to the public use, or may be even destroyed without the consent of the owner.” The case followed that of Mitchell v. Harmony, 13 How. 115, and was distinguished from that of Filor v. United States, 9 Wall. 45.

While the cases reported prior to 131 U. S. are based upon the original Court of Claims act, which limited the jurisdiction of that court to “ claims founded upon any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the government of the United States,” and are therefore not strictly pertinent under the Tucker act, that of the Great Falls Manufacturing Co., 112 U. S. 645, is almost exactly in point, and is strongly corroborative of the position here taken. This was a claim for land taken at the Great Falls of- the Potomac in the construction of an aqueduct for bringing water to Washington. ' Proceedings were taken in Maryland for condemnation, which were discontinued, and the government took possession of the land. ■ Whether such possession was taken with or without the consent of the owner does not appear, although there had been negotiations between the parties. The claimant was held to be entitled to recover upon the ground that the appropriation of the money for the construction of- the improvements was equivalent to an express direction by Congress to take this particular property for the objects contemplated by the scheme, and that there was. no sound reason why the claimant might not waive any right he might have to an injunction, and elect to regard the action as a taking by the government under its sovereign right of eminent domain, and therefore demand compensation. The case was not put upon the ground that the owner had consented to the taking.

In Langford’s case, 101 U. S. 341, the action was- brought to recover for the use and occupation of- certain lands and buildings to which the claimant asserted title, which were seized for the use of the government under claim that they were public property. It was admitted that if the government takes property for public use, acknowledging its ownership to be private or individual, there arises an implied obligation to pay the owner its value; but that it was a different matter when the government claimed the property as its own and recognized no superior title. This was also the case in Hill v. United States, 149 U. S. 593, where the government erected a lighthouse upon submerged land which it claimed as its own. The case was held to be governed by that of Langford.

None of the more recent cases under the Tucker act conflicts with the position here taken: That wherever the United States may proceed to condemn property under its sovereign right of eminent domain, the owner majr maintain a petition in the Court of Claims to recover' its value, in case no such proceedings are taken. That act, 24 Stat. 505, first introduced among the cognizable claims all such as were founded upon the Constitution of the United States, and also introduced, after the words “ for damages, liquidated or unliquidated,” the words. “ in cases not sounding in tort.” Construing this statute, it was held in the Jones case, 131 U. S. 1, that it did not confer jurisdiction in equity to compel the issue and delivery of a patent for public land; and in Schillinger’s case, 155 U. S. 163, that the owner of a patent which had been infringed by the United States could not recover damages for such infringement in the Court of Claims, though it would be otherwise if the property had been appropriated with the consent of the patentee and in view of compensation therefor. Although there was in Schillinger’s case an appropriation of the right of a patentee to the monopoly of his invention, the case was nothing more in its essence than the infringement of a patent, and so the action was. really one for damages sounding in tort. While it is possible an individual might bo able to condemn the patentee’s right by proceedings in eminent domain, that remedy would be at least doubtful, when the government' sought merely to appropriate so much of it as was necessary for its own use. It would be an unprecedented exercise of the right of eminent domain, and could scarcely be held to be a claim arising under the Constitution. The case was not put upon the ground that.it was such a case, but that it was merety an action to recover damages for infringement. Said the court: “ It was plainly and solely an action fpr infringement and one sounding in tort.” The question whether it was a claim arising under the Constitution was not considered, except in the dissenting opinion of Mr: Justice Harlan, who said : “ The constitutional obligation cannot be evaded by showing that the original appropriation was without the express direction of the government, nor by simply interposing a denial of the title of the claimant to the property or property rights alleged to have been appropriated.” Tf there were any doubt in that case of the power of the government to condemn the right of the patentee by proceedings in eminent domain, there is certainly none such in this case, where the land was taken by the government with no pretence of consent by the owner.

I think it is going* too far to hold that the words of the Tucker act, “not sounding in tort, ” must be referred back to the first class of cases, namely, “ those founded upon the Constitution,” and that they should be limited to actions for damages, liquidated or unliquidated, and, hence, the consent of the owner cuts no figure in this case. I freely admit that, if property were seized or taken by officers of the government without authority of law, or subsequent ratification, by taking possession or occupying property for public use, there could be no recovery, since neither the government nor any other principal is bound by the unauthorized acts of its agents. But in endeavoring'to raise an implied contract- to pay for an ordinary trespass to real estate I think the opinion of the court misconceives the true source of our jurisdiction.

Me. Justice Shieas and Me. Justice Peckham concurred in the above opinion in so far as it holds that the court had jurisdiction on the ground stated therein, as well as upon the ground stated in the opinion of the court. Me. Justice MoKenNA took no part in the decision of this . case.