
    LEONARD B. JOHNSON v. THE UNITED STATES.
    [No. 18454.
    Decided April 6, 1896.]
    
      On the Proofs.
    
    The claimant leases a part of Johnsons Island to the Government for a term of years for the purposes of a prison camp. The officers enter upon a part of tho island not leased, without an express-agreement and with no express authority of law, and there establish a cemetery for the burial of tho Confederate dead. Oil the expiration of tho lease, the claimant does not exercise his legal right of invading the cemetery. It remains uninclosed and uncared for until 1887, when Congress appropriate money for its inclosure and it is inclosed by a permanent iron fence. The cemetery oecu-. pies an important point on the island and prevents the sale of lots for suburban residences. The claimant brings his action for the value of the land taken, and for damages on the ground that the cemetery is a serious detriment to all the remaining property on the island.
    I.The decisions at the present time concerning real property taken by the Government for public use lead to these results: (1) An action will not lie where the officers of the Government enter upon the property under a claim of legal right; (2) an action in ejectment will lie against the officer in possession, hut judgment against him will not hind the Government nor fix the compensation to he. paid for the property; (3) the title to property taken for public use does not pass until payment or tender of payment, hut a statute which authorizes the taking and directs the ascertainment of damages and gives the owner a right to judgment therefor is equivalent to tender, and sufficient to transfer the title.
    II.Where the officers of the Government entered upon private property and established a cemetery for the burial of Confederate prisoners of war, and Congress subsequently appropriated money for the erection of a fence and for improving the cemetery, Act 3rd March, 18S7 (24 Stat. Li, p. 535), the statute must he regarded as an authority for or ratification of .the taking, and of the intent to . hold and occupy permanently.
    III.The court is without jurisdiction under the Tuclcer Act (24 Stat. L., p. 505), of an action for damages caused by a national cemetery' which is so placed as to operate as a serious detriment to the adjacent property of the person on whose land it is.
    
      
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts of this case as found by tbe court:
    I. Tbe claimant is a citizen of tbe United States, residing at Sandusky, Ohio, and has always yielded true allegiance to tbe United States, and is tbe sole owner of the claim herein.
    XL Tbe claimant was, up to May, 1894, tbe owner of John-sons Island, in fee simple, bolding under tbe following deed, to wit:
    “Know all men by these presents that we, William W. Wetherell, Francis Whitney, and Samantha Farwell, as executrix and also as sole legatee of Moses Farwell, deceased, all of tbe county of Erie and State of Ohio, in consideration of tbe sum of three thousand dollars in band paid by Leonard B. Johnson, of tbe same place,, have bargained and sold, and do hereby grant, bargain, sell, and convey unto tbe said Leonard B. Johnson, bis heirs and assigns forever, a certain tract of land bounded and described as follows: All that tract or parcel of land situate and being- in tbe Sandusky Bay, within the limits of tbe township of Danbury, Ottawa County, Ohio, known and described as Bulls Island, supposed to contain about two hundred and seventy-five acres, more or less.
    “ To have and to bold said premises, with the appurtenances, unto tbe said Johnson, bis heirs and assigns forever, and tbe said grantors, for themselves and their heirs, do hereby covenant with said Johnson, his heirs and assigns, that they are lawfully seized of tbe premises aforesaid; that said premises are free and clear from all incumbrances whatsoever, and that they will forever warrant and defend tbe same with tbe appurtenances unto tbe said Leonard B. Johnson, his heirs and assigns, against the lawful claims of all persons whomsoever.
    “And be it further known that I,-Wetherell, wife of the above-named Wm. W. Wetherell, in consideration of one dollar to me by the grantee paid, do remise, release, and forever quitclaim uuto said grantee all my right by way of dower or otherwise in and to the above granted tenements.
    “In testimony whereof we have hereunto set our hands and seals this tenth day of June, A. D. 1853.
    “W. W. Wethebell. l. s.
    “F. WHITNEY. L. S.
    “SAMANTHA FAEWELL. L. S.'
    “Sabah M. Wethebell. L. S.’
    “Signed, sealed, and delivered in presence of—
    VAsoph Bbobkins.
    “0. Leonaed.”
    III. The claimant, on the 11th clay of November, 1861, entered into the following lease, under which the defendants entered and occupied the premises therein described:
    “Memorandum of lease between L. B. Johnson, of the city of Sandusky, county of Erie, State of Ohio, of the first part, and First Lieut. E.W.II. Bead, A. Q. M. of the U. S. Army, of the second part, on behalf of the United States, witnesseth:
    “That the party of the first part has leased and hereby lets and leases to said second party, for the use of the United States as a depot for prisoners of war, the following-described tract of land, situate in the county of Ottawa, State of Ohio, viz:
    “That part of Johnsons Island (known on the map as Bulls Island) lying in Sandusky Bay, bounded on the west by a line running from the wharf on the south side of said island northerly along the fence on the east side of the road to the dividing fence running in an easterly and westerly direction, thence along said fence easterly to the fence running northerly, thence along said northerly fence to the bay, and thence following around the southeasterly portion of said island along the shore, at low-water mark, to the place of beginning, for the term of one year or during the existence of the present war, at the option of the said second party, receiving therefor a rent of five hundred dollars, to be paid quarterly by said second party: Provided-, That said second party shall have the right to put an end to this lease at any time ai'ter one year from date hereof: And provided, also, That if after the first year the land is held by the United States in any succeeding year beyond the 1st of March, then the party of the second part shall pay the rent for the whole year, quarterly, as above stated, otherwise to pay only for the time the land is occupied at the rate of five hundred dollars a year.
    “Said second party, for and in behalf of the United States, in consideration of the above grant, agrees to take such i)rem-ises for the term aforesaid, and to pay the rent promptly and in form aforesaid, and at the expiration of said term to redeliver said premises to said party of the first part. And it is further stipulated by and between said parties that the party of the second part shall have the right, at the expiration of said term, to remove from the premises all buildings and other property by or under him put thereon, and shall also have the right to appropriate and use all fallen timber on said premises except such as has recently been blown down on the east end of said island.
    “Also that no person shall be permitted to land on any part of said island without the permission of the officer in command of the United States troops thereon.
    
      “Provided, That the party of the first part, his agents and servants, the members of his family and any other persons may. with the permission of Corns’y (?) Gfen’l of Prisoners, land on that portion of said island not covered by tbis lease for purposes not inconsistent with the objects and interest of the Governmentof the United States, and of which the Commissary-General of Prisoners must be the judge.
    “And to prevent landing contrary to this’ provision and enforce a due observance thereof, the commanding officer shall have authority to send patrols to any part of said island where such.landing may be attempted or threatened.
    “It is also agreed that if any damage shall be maliciously done upon the premises to buildings and trees of said first party by any of the troops, prisoners, or other persons in the employ of the United States on said island, full compensation shall be made by said party of the second part to the said party of the first part.
    “It is also agreed that the said second party shall, during the term aforesaid, have the right to use and occupy said wharf, and that he shall pay therefor to the first party one hundred dollars per annum in quarterly payments for the time he shall so use the same: Provided, That if at any time after the first day of March next the use and occupation of said wharf by said second party shall injure and prejudice the interest and business of said first party, and if the parties fail to agree as to such additional compensation, the question of the amount shall be referred to one or more disinterested persons, whose decision shall be final.
    “It is further agreed that said first party shall have the right and privilege of cutting and .taking away any timber or trees standing or being on said leased premises and which do not, by the terms of this lease, belong to said second party, and shall also have the privilege of pasturing a- small number of cattle in the woods or timber part of said leased premises, provided these privileges lead to no inconvenience to the command or affect the security of the premises; and finally said parties further agree that no Member of Congress shall be admitted to any share in this contract or any benefit to arise therefrom.
    “In witness whereof the parties have hereunto set their hands and seals this 11th day of November, 1861.
    “L. B. Johnson,
    “ E. W. H. Read,
    
      “First Lieutenant, 8th Inf., A. A. Q. M.
    
    “Signed, sealed, and delivered in presence of—
    “John T. Beeoher.
    “ Geo. J. Andeeson.”
    IY. The occupancy of the defendants under the foregoing lease extended from November, 1861, to March, 1867. The rent therefor has been paid and the use and occupancy under the foregoing lease is not a subject of contention in this suit. During such period of occupancy the officers of the Government entered upon a tract of land on the island of about one acre, not included in the tract leased as aforesaid, and appropriated it to the uses and purposes of a cemetery for the Confederate dead. After the surrender of the premises leased to the defendants, this cemetery remained in the condition in which it was left by the defendants’ officers until 1887 when, under the act making appropriations for the sundry civil expenses of the Government, March 3d, 1887 (24 Stat. L., p. 535), the cemetery at Johnsons Island was inclosed with an -iron fence, the grounds cleared up, and the mounds repaired. During the interval between 1867 and 1887 the cemetery does not appear to have been inclosed, nor to have been in the actual custody of an officer or agent of the United States, nor to have been in any way guarded or cared for by the Government.
    Y. It does not appear what was the value of the tract so occupied and used for cemetery purposes, with or without a right of way thereto, when it was entered upon and appropriated to such purposes in 1861. Neither does it appear what was the value of the same at the time of the passage of the act, 3d March, 1887, or at the time when the cemetery was permanently inclosed under that statute as above set forth. Neither does it appear what was the rental value of the tract for cemetery purposes at either of the above times.
    YI. And the court further finds at the request of the claimant:
    Johnson Island is so situated in Sandusky Bay, a short distance from the city of Sandusky, that it is very desirable for suburban residences, pleasure resorts, club houses, and other uses of that character. The cemetery is in the most beautiful portion of the island, and is most desirable for summer homes and resorts, by reason of a fine grove situated there and of beautiful views which it commands. It is an object of curiosity to large numbers of people whom it attracts to the island and who trespass upon the remainder of the island, and constitutes a decided objection to the remainder of the property being sold or occupied for residences and pleasure resorts. The loss and injury' sustained by the claimant, by reason of the facts set forth in this finding, during the period of six years next preceding'.the bringing of. this action, amount to a sum exceeding. $3,000.
    
      
      Mr. John O. Chaney for the claimant:
    To appropriate property under the right of eminent domain, there must be the invocation of “ due process of law.”
    Is it “ due process of law ” to appropriate by the law of eminent domain a man’s land, through an appropriation which merely regulates the use of the land % The appropriate regulation of the use of property is not “taking” it within the meaning of the Constitution. (Railroad Co. v. Richmond, 96 U. S., 521.)
    The appropriation of $2,000, March 3, 1887, to fence this cemetery is a mere “regulation of the use” of the same.
    The citizen has a right to he heard on the question of the appropriation of his property — and he must be compensated.
    
      (Secombe v. Railroad Co., 23 Wall., 108; Sibling v. Kaiv Valley Railroad, etc., 130 U. S., 559.) Before it is an appropriation of property in fee simple under the right of eminent domain there must be a taking of private property for public use, by the express authority of the Government; and provision must be made in the appropriating act for a just compensation. (Cherokee Ration v. 3. K. R. R. Co., 135 U. S., 641; Garrisons. New York, 21 Wall., 196.)
    Where property to which the United States asserts no title is taken by their officers or agents, pursuant to an act of Congress, as private property for the public use, the Government is under an implied obligation to make just compensation to the owner. (United States v. Great Falls Mf’g Co., 112 U. S., 645.) In said case the court found that the claimants had a valid title to the lands appropriated; that the Government asserted no title thereto; that no title but the claimant’s was asserted;, and that an implied contract for compensation arose therein.
    Such are the facts in the case at bar, and the claimant is certainly entitled to his pay for said use for the last six years,, on authority of the above case.
    As to the compensation to which claimant is entitled:
    If claimant’s witnesses have not fully covered the'ground in the value of the use of Johnsons Island by the Government, it would seem that knowledge and words can not express it in any case. They say that they know the ground, and know of the Government occupation thereof;. they say that they are competent to fix the value of the use to which the Government has put claimant’s ground, and that this use is of the value of $1,000 per year. This fixes it plainly and exactly, and the Attorney-General is hardly warranted in saying that it has not been so fixed. It is not necessary that the entire island shall be actually occupied by the graves of the Confederate dead, to result in such an occupation and use of the island as will enable the claimant to found his suit for condensation for the whole island. It is only necessary that the use to which the Government has put, and now puts, the said lands interrupts the claimant’s use of the same. (Fumpelly v. Green Bay Company, 13 Wall., 166.)
    It has been testified in this case that the occupation for the graves of the Confederate dead of the three-fourths of an acre of claimant’s land not only interrupts claimant’s use of said three-fourths of an acre, but also interrupts his proper use of the entire island. Under such a use and occupation there is a “just compensation” due the claimant for each and every year the Government occupies the island.
    
      Mr. Samuel A. Butman (with whom was Mr. Assistant Attorney- General Bodge) for the defendants:
    If defendants have located a cemetery so that it depreciates the value of claimant’s adjacent lands, this act is a tort of which this court has no jurisdiction.
    It is an injury to but not a taking of the adjacent land such as would raise an implied contract to pay for it under the fifth amendment of the Constitution. The action for such injury between private parties in a court whose jurisdiction is not limited by statute would be trespass on the case, and could not be in any form ex contractu.
    
    If defendants have not appropriated under the right of eminent domain the three-fourths of an acre which it is actually occupying, it is possibly liable for a fair rental price for it for six years next before the filing of this suit. What such fair rental price would be is not shown by the record.
    But it appears that the defendants have appropriated the land actually occupied. by the cemetery under the right of eminent domain, and the title has vested in the United States. Of course, since such appropriation no rent is due claimant, and defendants owe claimant for the value of the three-fourths of an acre appropriated.' The appropriation, however, occurred more than six years before the filing of this suit, and this court has, therefore, no jurisdiction to render a judgment either for the rent or the value of the land.
    
      My reason for saying that defendants have appropriated tlie tbree-fourtbs of an acre under tlie right of eminent domain,, and have the title thereto, is as follows: It will be seen by reference to reply of War Department, dated July 14, 1894, that the Government took possession of the land in 1861. In 1878 Congress passed an act appropriating a sum of money for the maintenance of the cemetery, provided the title thereto should be transferred to the United States. (20 Stat. L., 220.) Claimant refused to make this transfer of title. (Senate Ex. Doc. No. 53, Forty-sixth Congress, second session.)
    On March 3, 1887, Congress appropriated $2,000 for the erection of a fence around said cemetery and to put its grounds in order. (24 Stat. L., 535.) Under this appropriation the grounds were put in order. That locating a cemetery upon land is a permanent appropriation of it can not be doubted, and if the executive can exercise the right of eminent domain without authority from the legislative, the title vested in the Government in 1861. If, however, it did not vest then, it certainly did in 1887, when Congress made the unconditional appropriation for the maintenance of the cemetery.
    Whatever is due claimant for this taking has, therefore, been due for more than six years before the filing of this suit, and is barred by the statute of limitations.
   Nott, J.,

delivered the opinion of the court:

In 1861 the Government rented from the claimant a tract of land on Johnsons Island, near the city of Sandusky, for the purposes of a camp for Confederate prisoners of war. Soon after the occupancy under this lease, the officers in charge entered upon an adjoining tract of land without an express agreement with the claimant and with no express authority of law. The purpose of this entry was the burial of the Confederate dead. The number increased during the four years ensuing until about an acre of land was thus appropriated and occupied.

In 1878, Congress appropriated $1,500 "for care and protection of the Confederate cemetery on Johnsons Island,” with a proviso “ That before any expenditure is made the title to the land upon which the cemetery is located shall be transferred to the United States.” (Act 20th June, 1878, 20 Stat. L., pp. 206, 220.) The claimant apparently refused to convey the property, and nothing was done under the appropriation.

In 1887, Congress appropriated $2,000 “for the erection of suitable fences amend the cemeteries in which Confederate dead are buried near Columbus and on Johnsons Island, Ohio, and for putting the ground in good condition.” Under this statute a permanent iron fence was, in 1887, erected around tbe cemetery.

These three facts aré all there are relating to the contractual relations of the parties to this suit: The unauthorized entry of the defendants’ officers in 1861: the recognition of the title to the property being elsewhere than in the Government in 1878, and the statute looking to.the permanent occupancy and control of the property by the Government in 1887. During the long interval between 1867 and 1887 no care, or custody, or possession, or control ajjpears on the part of the defendants. The unfortunate prisoners of war who slept in the little “God’s acre” represented the occupancy of the United States.

On these facts the claimant contends that the title still remains vested in himself, and the defendants contend that it has passed to the Government. The claimant seeks to recover what may be termed rent; and the defendants assert that the title passed to themselves in 1887, when Congress signified an intention to permanently occupy the property, and that a suit for the purchase money is now barred by the statute of limitations.

The cases which at this time present the condition of the law relating to the constitutional question of compensation for land taken for public use, where the Government in effect acquires a title in fee, are Langford v. United States (101 U. S. R., 341); United States v. Lee (106 id., 196); United States v. Great Falls Co. (112 id., 645); Hill v. United States (149 id., 593); Sweet v. Rechel (159 id., 380). These cases lead to the following legal results as at present declared by the Supreme Court:

1. An action will not lie against the United States for compensation where their officers entered upon’the property under a claim of legal right. 2. But an action in ejectment will lie against the officer in possession, and judgment may be recovered against him, though it will not bind the Government nor fix the compensation to be paid for the property if it be still held for public use. 3. Under the Constitution of the United States and of State constitutions having like provisions, the title does not pass until payment or tender of payment; but “a statute which, authorizes the taking of the property for public use and directs the ascertainment of the damages without improper delay and in a legal mode, and which gives the owner a right to judgment therefor to be enforced by judicial process,” is equivalent to tender of the compensation and sufficient to transfer the title.

In this case the property was taken, and the act of 1887 must be regarded as an authority for or ratification of the. taking and of the intent to hold and occupy it permanently. The resulting question is whether the statute — the 'Tucker Act — authorizing actions against the Government, which are "founded upon the Constitution of the United States,” affords “a legal mode” for the ascertainment of the just compensation, and one11 which gives the oioner a right to judgment therefor” within the intent of the decision in Sweet v. Rechel, and thereby operates to transfer to the United States the title to the land.

But the facts established by the evidence are not such as will warrant the court in now passing upon that important question. In actions ex contractu, the measure of damages is the value of the property; in actions ex delicto, the injury which the defendant has directly caused to the plaintiff. In this case, the claimant has alleged the one, but has proved the other. He has correctly analyzed and set forth the legal conditions of his case in his own testimony, where he says u My present claim is made for the use and occupation of a tract of land on Johnsons Island by the United States Government as a burial place for prisoners of war who died while confined on the island during the time a portion of said island was under lease to the Government, and which is still so occupied, as it has been during all the period intervening since the close of the war, and which has been a serious detriment .to all the remaining property on the island.” The court is without jurisdiction to give effect to his proof byresolving his injuries into a judgment for damages for this serious detriment to his adjacent property.

The counsel for the claimant has urged that the responsibility should not be cast upon the citizen of evicting the officers of the United States, or of resisting a statute of Congress which, without providing a remedy for his constitutional compensation, authorizes an intrusion upon his property. It is greatly to the credit of the claimant that when the island reverted to bis possession, in 1867 be did not exercise bis legal rights by invading tbe graves of tbe dead and removing their-bodies to some other resting place; and that be respected tbe act of Congress by allowing a permanent enclosure to be erected around tbe cemetery; but this action on bis part, commendable though it be, does not change tbe legal nature of tbe case, nor enlarge tbe jurisdiction of tbe court so that it can award him damages for tbe injuries which be has sustained.

Tbe judgment of tbe court is that tbe petition be dismissed..  