
    OLIVIA M. CLIFFORD v. THE UNITED STATES.
    [No. 20833.
    Decided January 23, 1899.]
    
      On the Proofs.
    
    An officer of engineers in the spring of 1887 enters upon and for ten years occupies a wharf in Buffalo, under a license from the superintendent of canals of the State of New York. At the time of entry he is ignorant of the fact that the claimant is the owner of the property. She promptly notifies the officer of her title and right to compensation. The action of the officer and the continued use of the property are ratified and approved ky the Chief of Engineers. The defendants never recognize the claimant as owner of the property or acknowledge her right to compensation.
    I.To maintain an action for use and occupation, the relation of landlord and tenant must exist.
    II."Wharves though standing on the land come within admiralty jurisdiction.
    III. In England it is generally held that wharf property may extend to low-water mark. In this country to the-point of navigability.
    IV. The owner has not unlimited property in wharves. If they he not in use by him or some one acquiring the right from him, they are open to the public and he can not make an unreasonable charge for wharfage.
    V.When the Government acquires property by lease it is bound by the local law of landlord and tenant. When it acquires property by the right of eminent domain, the law of the United States regulates the proceeding. When it goes into a State to acquire an estate or right in or to real property by purchase, the law of the State controls.
    VI.The law of New York in regard to realty and to wharves, so far as it affects this case, does not differ from the principles laid down by the Supreme Court.
    VII.In Carpenter v. The United States (17 Wall. R., 489) it is held that if the defendant entered and occupied by permission, though without an express contract, the law implies a promise on his part to pay a reasonable rent.
    VIII.When the Government enters upon private property as such it does so with the intent, under its Constitutional obligation, of paying for its use and occupation; and when the owner assents to the occupancy by not bringing ejectment against the officer, he acquiesces with the expectation of receiving a reasonable rent.
    
      IX.If an entry is lawful, the defendant can not he subjected to an action ex delicto; if unlawful, the owner can not change an intrusion, inconsistent with the payment of rent, into an implied contract, hut must sue in trespass or ejectment, oxcept in the case of tenancy at sufferance, where the landlord has an election to say whether the tenant shall he treated as a tenant oy as a trespasser.
    X.Courts of admiralty dealing with wharf property never adopted these refinements of the common law, and could not. A x>ossessory action would not lie against one who had a right to possession, nor an action for damages against one whose entry had been lawful.
    XI.The law as to wharf property is that where a person enters upon the wharf of another he does so either under an express agreement or under an implied contract to pay to the true owner a reasonable compensation. Proof of use and occupancy is sufficient to establish the contractual rolation.
    XII.The title of the plaintiff in a suit for use and occupation of a wharf can be put in issue and determined without circuity of action.
    
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts of tbe case as found by tbe court:
    I. Tbe claimant, Olivia M. Clifford, is a citizen of tbe United States, residing in tbe city of New York, in tbe State of New York, and since tbe year 1869 to tbe commencement of this action, July 9, 1897, was tbe owner of two certain docks or piers, situated in tbe Erie Basin, at tbe city of Buffalo, in' tbe State of New York, said docks having been built in said basin by tbe claimant under a license of tbe canal commissioners of tbe State of New York.
    Ii. Said docks or piers were constructed by tbe claimant at a large expense, of $05,000, for tbe storage and transfer of freight and merchandise from vessels in tbe Buffalo Harbor. Tbe north or middle pier is about 536 feet in length and 100 feet in width. Said docks or piers were rented and used by numerous persons from time to time for storage and lighterage purposes before tbe possession of tbe defendants as hereinafter shown.
    III. During tbe spring of 1887 Maj. Frederick A. Mahan, major of engineers of tbe United States Army, in charge of river and harbor improvements of Buffalo Harbor, took possession of a part of the northern or middle dock or pier belonging to tbe claimant, at that time unoccupied, for tbe purpose of storage of cement, tools, equipments, and laying up scows and vessels owned by tbe Government in the work of the improvement of said harbor. This possession was continued without interruption, with the acquiescence and consent of the claimant, by Major Mahan and his successors until July 10,1897. From the first occupation to the surrender of said property the United States officers occupied and used from one-half to two-thirds of said dock or pier, extending from the outer end about 399 feet. Such use and occupation during said period was of advantage and benefit to the United States. At the time possession was taken the officer in charge obtained a verbal permit from the division superintendent of the Brie Canal to use said dock so long as it was not needed by the State of New York, free of expense or charge. At the time said officer took possession of the dock he believed it was the property of the State of New York and under the charge of the canal authorities.
    IY. In the latter part of 1887 an agent of the claimant personally notified Major Mahan, the officer of the United States in possession of said dock, that it was the property of the claimant, and presented him a bill of about $650 for its use and occupation by the United States. The officer informed the agent that if the claimant owned the dock or pier, or could establish her ownership to the satisfaction of the authorities of the United States, the question of payment might be taken up, but the officer declined to consider the matter until the fact of ownership was established, saying he had no knowledge that the property belonged to private parties. After such demand by claimant the officer was assured by the superintendent of the Erie Canal that the dock or pier belonged to the State of New York and not to private parties.
    Y. On or about October 3, 1891, the claimant again presented to Major Amos Stickney, then engineer in charge of the river and harbor improvements at Buffalo Harbor, and the successor to Major Mahan, a bill for rent of said dock for five and one-half years prior to November 1,1891, at a rental price of about $600 per year. Said bill was afterward presented by Maj. E. H. Buffner, the successor of Major Stickney, in charge of the Government work aforesaid, to the War Department, and payment was refused.
    YI. A fair and reasonable rate of rent or compensation for the aforesaid use and occupation of the dock by the United States is the sum of $600 per year for the time the United States so occupied and used the same, amounting for six years prior to the filing of the petition in this cause, namely, July 9, 1897, to $3,600.
    YII. The claimant having made application to the War Department for the payment of rent for said dock, the claim was disallowed, with the following indorsements:
    • “ Office Chief of Engineers, U. S. Army,
    
      “April 13, 189 A
    
    “Maj. E. H. Buffner, Corps of Engineers, forwards copy of a bill, together with copies of papers pertaining thereto, of Mrs. Olivia M. Clifford, for rent and use by the Government of a certain pier in Erie Basin, Buffalo Harbor, New York. It is understood that this pier is the property of the State of New York, and has been occupied by the Government under a verbal permit from the division superintendent of the Erie Canal, with the understanding that the United States might use the pier as long as it was not needed by the State of New York.
    “It is not believed that the claimant has any right to exact rent from the United States, and it is recommended that the claim be disallowed.
    “Bespectfully submitted to the Secretary of War.
    “Thos. Lincoln Casey,
    
      1 ‘ Brigadier- General, Chief of Fngineers.”
    
    War Department, April 14,1892.
    
    “ The recommendation of the Chief of Engineers that the claim be disallowed is approved.
    “ By order of the Secretary of War:
    “John Tweedale,
    “ Chief Cleric.”
    
    Till. During the time aforesaid the United States had possession of said dock or pier under the claim of title adverse to the claimant, more fully set forth in findings in and IV.
    
      Mr. Charles C. Lancaster for the claimant. Mr. Henry If. Fitzgerald was on the brief:
    According to the testimony of claimant’s agent, Major Mahan, engineer in charge for the Government, stated, when notified of the claimant’s ownership, that if the claimantowned the dock she'would be paid, or they were willing to pay the rent. This statement was amply sufficient to justify the belief and assurance on the claimant’s part that she would be paid a reasonable rent for tbe use of tbe pier; and, in connection with tbe facts, that tbe Government continued in tbe beneficial'use of tbe property, without molestation or protest on tbe part of tbe claimant (from wbicb tbe acquiescence of tbe claimant in tbe continued possession by tbe Government must be inferred), and that tbe claimant bas established a clear and undisputed ownership of tbe property, renders tbe possession by tbe Government, after such conversation between claimant’s agent and tbe Government officer in charge, possession under an implied contract, to pay the claimant tbe reasonable value of tbe use and occupation. (Johnson’s Gase 4 O. Ols. E., 248, 250. Executors of Smith v. Houston, 1G Ala., Ill; Hell v. Gardner, 25 Ark., 134; Morrill v. Bulloch, 105 Mass. 48G, p. 490 of Opinion; Goit v. Palmer, 4 Abb. Pr. E. (New Series) N. Y., 140; Gollyer v. Gollyer, 113 N. Y. Eep., 442. (Opinion of Earl, J., p. 448.) Morris v. The U. S., 30 O. Cls. E. 162.)
    Nothing can be claimed by tbe defendant on tbe ground that tbe officer in charge for tbe Government, with whom tbe claimant’s agent bad bis interview, may not have bad authority to enter into a binding contract in relation to tbe use of or compensation for tbe property in question.
    
      Held, that owner may recover on an implied contract though tbe express contract of the agent was ultra vires and void. (Stovall, admr., v. U. S., 26 O. Ols. E., 236; Sehillinger et al. v. 77. S., 24 O. Ols. E., 278, 299; Claris v. 77. S., 95 U. S. E., 539.)
    The rejection of tbe claimant’s bill for rent in 1892 by tbe War Department is not a bar to this action, and tbe doctrine of res judicata, applicable to business of Executive Departments, does not apply in this case. It does not appear that tbe claimant was beard before tbe Department or that a formal decision was made wbicb would constitute a bar. (Hay v. 77. S., 21 O. Ols. E., 262.)
    ilir. William H. Button (with whom was Mr. Assistant Attorney- General Pradt) for the defendants:
    Whatever may be tbe case where real estate is taken into the possession of tbe United States by its agents, duly authorized, recognizing such property to be private, it bas always been held that where such occupancy was with a claim of title to such property, or under a title adverse to that of tbe claimants, no contract could be implied. Such is tbe case at bar. The pretended title of the State of New York was adverse to that of the claimant and the United States came into posses-' sion under said pretended title of the State of New York, and held possession thereunder. This is inconsistent with any intention on its part to pay rent to another party, and consequently no contract can be implied.
    
      Jackson v. The United States (27 C. Cls. It., 74), was a case in which Jackson claimed title to a farm which the Government had bought from one Cooley. The court held that although. Jackson might have title to the land, yet the circumstances were such that no contract to pay Jackson therefor could be implied. The circumstances were inconsistent therewith.
    
      Kinkead v. The United States (18 O. Cls. B., 504),'was a case in which a collector of customs took a lease of property for Government use without authority from the Secretary of the Treasury. Afterwards the Secretary repudiated such lease and kept the property, claiming a right to it uuder a treaty. It was held that no contract could be implied to pay the owners therefor.
    
      Dykes’s Case (16 C. Cls. B., 289), holds that an action for rent against the United States must be based upon the same principles as an action for rent between individuals; that is, it must be founded upon contract; a holding by permission of the owner and a promise by the occupant, either express or implied. This case further holds that where possession of property is taken under a certain claim the presumption is that possession is continued under the same claim. This was a case in which property was taken during the war by military forces, and possession was continued after the war under a claim of right thereto. Although the claimant had good title to the property, no contract could be implied in his favor. The fact that the officers who took possession of the property could not have intended to pay rent is emphasized in the opinion. Such, also, is the case at bar.
    In Merriam v. The United States (29 O. Cls. B., 250) the same principle is recognized.
    
      Johnson v. The United States (31 C. Cls. B., 262) also recognizes the same principle. In reviewing- the authorities and summing up the conclusions in regard to the law relating to the taking .of land for public use, the present chief justice states that tbe cases lead to tbe following legal result among others:
    “An action will not lie against the United States for compensation where their officers entered upon the property under a claim of legal right.” (Page 270.)
    The same principle is recognized in Ingram v. The United States (32 C. Ols. It., 163). The United States Supreme Court holds the same doctrine. Langford v. The United States (101 U. S. B., p. 341), was a case in which agents of the United States took possession of buildings belonging to the American Board of Commissioners for Foreign Missions, asserting title thereto hostile to that of said board.
    Also in the case of Sill v. The United States (149 U. S. B., 593) the doctrine is reaffirmed in 1892.
    A similar holding was made in the case of Sehillinger v. The United Sta,tes (24 C. Cls. B., 292, and 155 U. S. B., 163). In this case the United States, through the Architect of the Capitol, contracted to use certain patented pavements, said contract being made with parties other than the claimants. The claimants had previously applied for a contract to furnish the same pavement and had been refused. It was held by the Court of Claims and the United States Supreme Court that the circumstances were such that no contract could be implied in favor of the claimants.
    The case at bar is one in which the officers of the Government in charge of the work in Buffalo Harbor entered upon a pier, claiming- a right to do so, and claiming a title to the use of said pier under the State of New York. The right to use said pier and to dispose of such use was really in the claimant, yet the facts that the United States officers received permission from the State of New York-to use said pier upon the agreement that no rent whatever should be paid therefor, and that the possession thereof should be surrendered up to the State of New York, when required, are inconsistent with any understanding upon the part of the United States or its officers that rent should be paid to Mrs. Clifford. Probably if the defendants had made a contract with Mrs. Clifford to pay her rent therefor after having received possession of the pier from the New York State authorities under such an arrangement, they would have been estopped from showing such contract in an action by the State of New York.
   Nott, Ch. J.,

delivered tbe opinion of the court:

The defendants, by their proper agent, an officer of engineers, in the spring of 1887, entered upon and for ten years used and occupied a dock or wharf in the city of Buffalo for ordinary wharfage purposes, the mooring of vessels, and loading and unloading of cargoes, and storage of materials. The defendants entered under a license from the superintendent of canals of the State of New York, and in ignorance of the fact that the claimant was the owner of the property. The petition ivas not filed until July 9, 1897, so that four years of the claim are barred by the statute of limitations. No question of estoppel or ultra vires arises in the case, for the claimant promptly notified the officer of her title to the property and her right to compensation, and the action of the officer and the continued use of the property was ratified and approved by the War Department through the Chief of Engineers. The defendants have never recognized the claimant as owner of the property, or acknowledged her right to receive compensation for its use and occupation.

From the decisions of the Supreme Court it may be deduced at the present time that the law relating to the occupation of real property by the Government concerning which an individual asserts a title is as follows:

1. An action will not lie against the United States where their officers enter upou property under a claim of legal right. 2. An action in ejectment will lie against the. officer in possession, and a judgment may be recovered against him, though it will not bind the Government, nor fix the amount of the compensation which should be paid. (Johnson Island Case, 31 C. Cls. R., 262.) In this case the defendants did not enter under a claim of legal right, but under an adverse title; and if this were an ordinary action for the use and occupation of realty, the court might hold that the able defense made by their counsel should be sustained. To maintain an action for use and occupation, the relation of landlord and tenant (express or implied) must exist.

But wharves are a peculiar kind of property which, though standing upon terra firma, are so far marine in their uses and purposes as to come within admiralty j urisdiction. In England it is generally held that they may extend to low-water mark. In this country, with the extending of admiralty jurisdiction to our inland seas and navigable rivers, it has been beld that they may extend to the point of navigability. The owner has not an unlimited property in them. If the wharf be not reserved for his actual use, or of someone acquiring the right under him, it is open to the public, and any vessel may make fast to and use it. Neither can the owner charge an unreasonable price for wharfage. The question, therefore, in this case is whether a public wharf, i. e., a wharf thrown open to the public on navigable waters is real property within the rule above referred to; that is to say, whether wharfage is rent, and whether the relation of landlord and tenant must exist within the rule of the courts of common law and the decisions hereinafter referred to.

All of these things are elementary and have been enunciated by the highest authority. In the case of the Genesee Chief (12 Howard, 443), it was held that the English admiralty term of “high or low water mark” is merely descriptive, and appropriately so for that country, but that with us admiralty jurisdiction “ extends to all public navigable lakes and rivers.” In Dutton v. Strong (1 Black, 1), Mr. Justice Clifford applied that principle to wharves and substituted for low-water mark,“the point of navigability.” In the same case he also said that the owner of such a wharf “may be under obligation to concede to others the privilege of landing their goods or of mqoring their vessels there upon the payment of a reasonable compensation.” In Cannon v. New Orleans (20 Wall., 577), Mr. Justice Miller said:

“It is a doctrine too well settled, and a practice too common and too essential to the interest of commerce and navigation to admit of a doubt, that for the use of such structures, erected by individual enterprise, and recognized everywhere as private property, a reasonable compensation can be exacted. It may be safely admitted, also, that it is within the power of the State to regulate this compensation.”

In JSx parte Easton (95 U. S. B., 68), Mr. Justice Clifford said:

“ Where a price is agreed upon for the use of the wharf, the contract furnishes the measure of compensation, and when the wharf is used without any such agreement the contract is implied, and the proprietor is entitled to recover what is just and reasonablefor the use of his property and the benefit conferred.”

In Paelcet Company v. Keolcuh (ib., 80) Mr. Justice Strong-quoted the language of Mr. Justice Miller, before cited in Gan-non v. New Orleans, and the Supreme Court regarded it as unquestionably established doctrine. In Paelcet v. St. Louis (100 U. S. R., 423) the Supreme Court again recognized the right of an owner of a wharf to collect reasonable compensation, though the defendant had from the first controverted his right.

It should be noted here that the defendants did not enter upon the property as the lessees of the State of New York, but under a naked license from the canal superintendent. A license is an authority to do a particular act or series of acts upon the land of another without acquiring an estate therein. When executed it will prevent the owner of the land from maintaining an action for the acts done under it; it is revocable at pleasure and will not be a defense for an act done after revocation. Nevertheless the fact remains that the defendants did not enter under the claimant or seek to acquire a right or estate under her, and that they have consistently disavowed any contractual relation with her.

When the Government goes into the commercial market it is bound by the lex mercatoria. (United States v. Panic of Metropolis, 15 Peters, 377.) And when it goes into the realty market to acquire property by lease, with no statutory restriction upon its agents, it is bound by the local law of landlord and tenant. (Bostioiclc v. The United States, 94 TJ. S. R., 53.) When the Government seeks to acquire property by the exercise of its right of eminent domain, the law of the United States regulates the proceeding; but when it goes into State territory to acquire an estate or right in or to real property by purchase, the law of the State controls and regulates the rights and liabilities of the contracting parties, which in this case is necessarily the law of the State of New York.

The law which would be applied to this case, if it were in the courts of New York, has been declared with remarkable distinctness in the case of Clifford v. O’Neill (12 App. Div. R., 17). That suit and the present one are to all intents and purposes identical. In like manner the defendant there entered upon a part of this property, an adjacent wharf, and used and occupied under a similar license issued by the same State superintendent; in like manner he denied all privity with the claimant; in like manner, when the suit was brought, he set up the license under which he entered. Moreover, the owner was the same in both cases, the property the same, the defense tbe same. The two suits are absolutely identical, except that in one case the defendant was an individual citizen and in the other the Government of the United States.

The Supreme Court of the State of New York held in this case of Clifford v. O’Neill, an action like this, ex contractu, for use and occupation, that the plaintiff should recover; that the license of the canal superintendent was a nullity; that whoever uses’an unoccupied wharf on navigable waters is liable, in such an action, to the owner for a reasonable compensation for the user; and that it was no defense to set up that defendant had entered and occupied under a license from one who was not the owner.

The law of New York in regard to both realty and wharves, so far as it effects this case, does not differ from the general principles which have been declared by the Supreme Court. In Oollyer v. Oollyer (113 N. Y. B., 442) the Court of Appeals held, as it had repeatedly held before, that before a recovery can be had in an action for use and occupation, it must appear that the conventional relation of landlord and tenant existed between the parties, and that such an agreement can not be implied where the circumstances attending the use and occupation show clearly that there was no expectation of rent by either party.

Here it should be noted parenthetically that Mr; Justice Strong says, in Carpenter v. The United States (17 Wall. B., 489), that “ this is not strictly accurate, if it be meant that a demise must be in fact proved;” that “ when the defendant has entered and occupied by permission of the plaintiff, without any express contract, the law implies a promise on his part to make compensation or to pay a reasonable rent for his occupation; ” that “in such a case, the consent of the owner to the defendant’s entry, followed by such entry, and by subsequent occupation, maybe considered equivalent to a demise;” that this “is consistent with an unexplained entry by the owner’s consent, and because it is a reasonable presumption that occupation thus taken was intended to be paid for.”

In this statement of the law it would seem that when the Government enters upon private property as such it does so with the intent under its Constitutional obligation of paying for its use and occupation; and, conversely, when the owner assents to the occupancy by not bringing ejectment against the officer, that be acquiesces with the expectation of receiving a reasonable rent. In neither of the cases which have been before the Supreme Court (Langford v. United States, 101 U. S. R., 341; Sill v. United States, 149 id., 593) did the Government enter upon the property as private property; that is, in neither of them was it admitted that the Constitutional obligation to pay for the user existed, and in neither of them did it assume to enter under any other title than its own. In Jackson's Case (26 C. Cls. R., 74) this distinctive fact was not considered.

But be this as it may, the difference, if any, between the rule as stated by the New York Court of Appeals and as modified by the Supreme Court is simply one of stringency. The New York case shows beyond question that in that State the action for use and occupation must be founded upon contract; that before the contract can be implied circumstances must be shown which were consistent only with an intent to contract, and that the “conventional relation of landlord and tenent must exist.”

So, too, with regard to the local law regulating property in wharves and the right of the public to use and the right of the owner to recover for the use, the decisions of the State of New York are in harmony with those of the Supreme Court. In Walsh v. The New Torh Floating Dry Dock Company (77 N. Y. R., 448), the Court of Appeals stated the general principle that “the right to collect wharfage is a franchise,” and that “it is given as a compensation to persons who, under the authority of law, have constructed piers and wharves, and to remunerate them for the outlay made for the convenience and safety of vessels and the benefit conferred thereby upon commerce and navigation.”

In Ziegele v. The Richelieu and Ontario Navigation Company et al. (3 App. Div. R., 77) the court below had granted an injunction restraining the defendants absolutely from using a wharf, they asserting a right to use it under an agreement with one who, it appeared, was not the owner. The appellate division concurred with the lower court as to the invalidity of the defendants’ title and the propriety of their being restrained from using the wharf under that agreement, but reversed the decree upon the ground that the defendants, as a part of the public, might have the right to use the dock in controversy upon the payment of a reasonable compensation. “It does not follow,” says tbe court, “that because an individual owns a wharf he also has a right to the exclusive enjoyment of it, for he may at the same time be obliged to allow others to use it upon the payment to him of a reasonable compensation as wharfage.”

In the case of Clifford v. O’Neill which, as before said, is absolutely identical with the case now before us, the Supreme Court of New York says of the present claimant and the present property and upon the present issues:

“The plaintiff, being rightfully in possession of the docks in question in virtue of an unrevoked license from the canal commissioners, was entitled to demand from a person using the same such rental value therefor as might be agreed upon, or as such use was reasonably worth, even though the party using them rested his right to do so upon some authority which the superintendent of public works had attempted to confer. The right to demand and receive wharfage does not necessarily rest upon the existence of the conventional relation of landlord and tenant.”

Manifestly where one man enters upon and uses and enjoys the property of another he does so lawfully or unlawfully, rightly or wrongly. Iu the former case he can not be subjected to an action ex delieto, and is liable only upon a contract express or implied; in the latter the owner cau not turn an intrusion which was inconsistent with an understanding that the parties contemplated that the one was to pay and the other was to receive rent into a case of implied contract, but must sue in trespass or ejectment [Carpenter v. The United States, 17 Wall. B., 489), except, indeed, in a case of tenancy at sufferance, where the landlord, unlike the tenant, has an election to say whether the latter shall be treated as a tenant or as a trespasser (Conway v. Starlcweather, 1 Denio, 113; Schuyler v. Smith, 51 N. Y., 309). For every right there is a remedy; and with regard to realty occupied by the United States the remedy is in the one case by action in this court against the Government, and in the other by ejectment against the officer (United States v. Lee, 100 U. S. B., 196).

But courts of admiralty when dealing with wharf property never adopted these refinements of the common law, and from the nature of the thing they could not. A possessory action would not lie against one who had a right to possession, nor an action for damages against one ivhose entry had been lawful. Accordingly the law declared to be applicable to wharf property was that when a person elected to enter upon the wharf of another he must do so either under an express agreement or under an implied contract to pay to the true owner, on his right of property being established, the wharfage prescribed by law, or a reasonable compensation for his use and occupancy; and to establish this contractual relation nothing was necessary but proof of use and occupancy; and (as in these New York cases) the person who used an unoccupied wharf could not avoid the contractual relation, which the law made for him, by setting up that he entered under another title than that of the true owner; and, consequently (as again in these New York cases), the title of the plaintiff in a suit for such use and occupation could be put in issue and determined without circuity of action. In a word, the person who entered under another title than that of the plaintiff must maintain the title under which he entered.

For different kinds of property the law prescribes different rules and remedies. If a man enter upon land amid circumstances which imply mutually a contractual relation the owner must sue for an implied rent. If a man enter upon property and destroy timber the owner must sue for damages. If he enter upon property and cut and carry away timber and saw it into boards and sell the boards the owner may sue for the money had and received. If he enter upon wharf property without the consent of the owner and uses it and continues to occupy it the owner has no remedy save an action for use and occupation; and because he has no other remedy the occupant can defeat that in but one way, and that is by defeating the plaintiff’s title or establishing a superior one.

If the present case can not be maintained, a citizen of New York whose property was taken and held by the Government for a great number of years without compensation will be left, in contemplation of law, without remedy. For she could not have maintained ejectment against the officer in possession, who could have come into court and pleaded that his entry was lawful; that his occupation was lawful; that he had entered, as he had a right to do, upon an unoccupied, unused wharf, built for public use upon a navigable waterway, and that he was using the wharf for lawful purposes.

Upon that pleading the courts of New York would hold that the action against the officer could not be maintained, and that tbe owner should have brought suit for use and occupation and the reasonable val ue thereof. For the courts of a State to hold that a citizen has no remedy against the officer in possession, and for the courts of the United States to hold that she has no remedy against the Government, when both courts acknowledge and administer the same general principles of law, would be a reproach to the administration of justice.  