
    ANSON MILLS v. THE UNITED STATES. ARCHIBALD C. HYDE, FOR THE USE, &c., v. THE SAME. MARY A. MAVERICK, FOR THE USE, &c., v. THE SAME. BENJAMIN S. DOWELL, ADMINISTRATOR, &c., v. THE SAME. JOSEPH S. LOCKWOOD, TRUSTEE, &c., v. THE SAME.
    [No. 12328.
    Decided January 21, 1884.]
    
      On the Facts.
    
    The government occupies land in Texas and builds Fort Quitman thereon. No officer intimates an intent on the part of the government to acquire title, and no person objects to the occupancy. Adverse parties demand the rent, which the government is willing to pay if the title can be ascertained. Ultimately a United States circuit court enters a decree divesting the title from the contending parties and vesting it in a trustee with power to dispose of it by sale or lease. He leases it to a deputy quartermaster-general. Finally the Secretary of War transmits to this court “the claim of Anson Mills” and all the papers of the adverse claimants. They convey their right and interest in the property to Mills and file petitions seeking to recover the rent to his use.
    I.Vouchers given by officers in possession for the rent of real property may not be binding on the government .till approved by the Quartermaster-General, but nevertheless serve to negative any pretension that the government is holding under a claim of title.
    II.Where the owner never objects to the occupancy, and the officers in possession never assert a title; and the one demands rent, and the others promise to pay it; and the Secretary of War orders that vouchers thereforbe sent to the Treasury for settlement, the facts establish prima facie the relation of landlord and tenant.
    III. At common law, a contract to pay for the use and occupation of real property is implied where the owner consents by agreement or implication, and the occupant does not claim adversely.
    IV. The distinction between this case and Langford’s (101 U. S. R.,341) is that there the United States always asserted that their possession was by virtue of their own title; while here no title or adverse right was ever set up.
    V.A public emergency justifies the forcible taking of private property ; but the Constitutional obligation to pay for property taken for public use where no emergency justified the taking, is equally strong.
    
      VI.Where the legal title to real property in Texas has been “divested out” of the owner, and vested in a trustee by a decree of a court of ' equity under a law of that State, he aloue may demand the rent, and maintain an action for it in his o vn name.
    VII. A transfer of the legal title of real property by virtue of the decree of a court of equity, carrying with it the right to rents accrued, is not an assignment of a claim against the government within the prohibition of the Revised Statutes, § 3737.
    VIII. A claim for rent transmitted by the head of an executive department under Revised Statutes, § 1063 is sufficiently described as “ the claim of Anson Mills” if he was in equity the owner of the rent, though the legal title to the realty may have been in his trustee.
    
      The Reporters’ statement of the case:
    These cases were transmitted to this court by the Secretary of War under the Eevised Statutes, section 1063. The following are the facts as found by the court:
    I. On the 3d February, 1855, a donation land warrant was issued by the State of Texas to Palelo Casillas, which he transferred to A. C. Hyde, Jarvis Hubbell, and William Ford. It was surveyed and located on the 20th December, 1858, so as to contain land occupied by Fort Quitman. The survey was examined and recorded on the 5th January, 1859, but no patent appears to have issued therefor.
    II. On the 1st March, 1838, there was issued by the State of Texas a bounty warrant for 640 acres, numbered 2318, to Clark L. Owen, which was transferred to Samuel A. Maverick, November 23, 1852, and by him transferred to A. O. Hyde, January 5, 1861. This warrant was registered March 10, 1858, and suspended until May 11, 1860, when it was approved. On the 26th December it was located so as to contain land occupied by Fort Quitman, a military post of the United States, and surveyed by the deputy surveyor of the El Paso and Presidio district. On the 25th April, 1861, the survey was found correct and recorded in the office of the district surveyor. On the 10th May, 1861, the governor of Texas issued a patent for the same to A. C. Hyde, the patent, however, not stating, as did the survey, that Fort Quitman was situated within its bounds.. The survey therefor was numbered 179.
    III. On the 10th June, 1861, Hyde conveyed to Samuel A. Maverick “ the one undivided third part of all that tract of land, on which Fort Quitman is situated,” known as survey 179, together with a one-third interest in all arrearages of rent due for or on account of said Fort Quitman. September 2, 1870, Maverick died, and by his last will and testament his interest descended one-half to his wife and one-half to his five children, Sam, George M., Willie H., Mary B., and Albert.
    IY. On the 23d of July, 1858, Brevet Major-General Twiggs, U. S. A., commanding the department of Texas, issued the following order:
    [Orders No. 18. — Extract.]
    “Headquarters, Department oe Texas,
    
      “San Antonio, July 23,1858.
    ***** * *
    “ IY. Companies C and H, Eighth Infantry, now stationed at Fort Davis, Texas, will hold themselves in readiness to move towards the Rio Grande, there to establish a post, at or near where the El Paso and San Antonio road touches the river. For this purpose the commanding officer of Fort Davis will dispatch a competent officer to that point, who will make thorough reconnaissance of the country in the vicinity, and report the result to this office.
    * * * * * * *
    “ By order of Brevet Major-General Twiggs.
    “Jno. Withers,
    “ Assistant Adjutant-General.”
    
    On the 8th of September, 1858, said Major-General Twiggs issued the following order:
    [Orders No. 19. — Extract.]
    “Headquarters, Department oe Texas,
    “ San Antonio, September 8th, 1858.
    ***** * *
    “ II. The designation of the new post, situated five miles above, where the El Paso road first strikes the Rio Grande, and to be occupied by companies C and H, Eighth Infantry, will be Fort Quitman.
    
    “ By order of Brevet Major-General Twiggs.
    “Jno. Withers,
    “ Asst. Adj’t-General.”
    
    In pursuance of these orders the said land was occupied as a site for Fort Quitman from June 1, 1858, to May 1,1861. It was then abandoned in consequence of the rebellion. After the rebellion the occupancy of the land by the military of the United States was resumed, and continued from January 1, 1868, to January 1, 1877, without objection on the part of the owners. Several parties, claiming to be part owners, either under the Casillas or Owen warrants, demanded rent. The claims were referred to the War Department. May 28, 1869, the claims were referred by the Secretary of War to the Attorney-General for an opinion “ as to the legal rights of the several parties in the premises.” Prior to this time no claim of title or right to occupy without paying rent appears to have been made by any officer of the government. October 19,1870, the Attorney-General made the following reply:
    “ Attorney-General’s Oeeice,
    “ Washington, October 19,1870.
    “Hon. Wm. W. Belknap,
    “ Secretary of War:
    
    “ Sir : I have had the henor to receive your communication of the 22d of July last, calling my attention to the papers which accompanied a letter from the Secretary of War to the Attorney-General, of May 28,1869, relative to the site of Fort Quit-man, and requesting my opinion upon the question there submitted.
    “ The letter and papers mentioned present substantially the following case:
    “ About the year 1856, the tract of land constituting the site of Fort Quitman, in the State of Texas, all of which then belonged to the public domain of that State, was selected by the military authorities of the United States for the purpose of a military post, and was thenceforth occupied by them for that purpose until some time in the beginning of the year 1861, when, in consequence of the breaking out of the rebellion, they were compelled to abandon the actual occupation thereof, which, however, was resumed in 1867, and has been maintained by them ever since.
    “On the 25th of December, 1860, a Texas bounty warrant was located by the holder upon the same tract, and on the 10th of May, 1861, subsequent to the abandonment of the site by the military authorities as aforesaid, a patent therefor was obtained from the State by one A. O. Hyde, assignee of the warrant.
    “During the occupation of the fort by the United States, and prior to the location of the warrant, buildings were erected upon the premises for the use of the troops stationed there, some or all of which still remain thereon.
    “Hyde now claims the ownership of the site by virtue of his patent, and proposes to lease it, with the buildings, to the United States, and the question on, which the Secretary desired an opinion is “as to the legal rights of the several parties in the premises.”
    
      “Upon the facts presented Hyde would seem to be in possession of a valid title to the premises, unless, at the time of the location of the warrant, the United States had already acquired a right thereto, under the laws of Texas regulating the disposal of its public domain, which was capable of being perfected into a legal title, and which has not since become extinguished. In that case the patent which issued upon such location would, doubtless, be held to confer no title as against the claim of the United States, upon the ground that the land was not, at the period referred to, subject to individual or private location.
    “ I find, on examination, that by an act of the Texas legislature, dated December 19,1849, the United States were ‘authorized and empowered to purchase, acquire, hold, own, occupy, and possess such land or lands within the limits of this State as they shall judge it expedient and shall seek to occupy and hold as sites on which to erect and maintain light-houses, forts, garrisons, military stations, magazines, arsenals, dock-yards, and other needful buildings, or any of them, as contemplated and provided in the Constitution of the United States; said purchase to be effected either by contract with the owner or owners of said land or lands or in the manner hereinafter provided.’
    “ The act then provides for the acquisition of title through the eminent domain power of the State in cases where the agents of the United States are unable to contract or agree with the owners for the purchase of the lands, or where they are unable to ascertain who are the real owners.
    “ By a supplemental act of the same legislature, dated Feb’y 13,1854, it was provided that ‘in all cases where the State of Texas may be the owner of the land which the United States may select and wish to acquire and occupy for any of the purposes’ aforesaid it should be lawful for the governor of the State ‘ to contract and agree for the sale thereof,’ and that upon payment by the United States of the purchase-money into the treasury of the State it should be the duty of the commissioner of the general land office of the State, upon the order of the governor, to issue a patent to the United States in the same manner as other patents are issued.
    “These statutes appear to have been in force at the time of the selection and occupation by the United States of the site of Fort Quitman, and are believed to be so still. Under this legislation the United States had authority to select such portions of the public domain of the State as they might wish to acquire for any of the purposes enumerated.
    “This was the first step to be taken in acquiring title; after which it is probable that, on a judicial consideration of the subject, the land thus selected would not be regarded as any longer open to any individual or private location, at least as to parties having notice of the selection, until the government should relinquish its right. If this view is correct it would seem that as, at the time of the location of the warrant in 1860, the premises were notoriously occupied by the United States for the purpose of a military post, and were not then open to location, of which the locator of the warrant must be presumed to have had notice, the patent which subsequently issued passed no title as against the United States, — assuming, as I do, that the incipient title of the latter, acquired by the selection and occupation of the land as aforesaid, has never become extinguished.
    “Upon the whole, I think it very doubtful whether, under the circumstances, the title set up by Hyde would prevail in the courts over the equitable claim of the United States; and accordingly I suggest that no acknowledgment thereof be made, by lease or otherwise, without a judicial determination in its favor, but that if it is desired to retain possession of the site as a permanent military post measures be at once taken to have the same surveyed and to procure a patent therefor to the United States from the State authorities, under the statute above cited.
    “The papers to which your communication refers are herewith returned.
    “ I am, sir, with much respect, your obedient servant,
    “A. T. Akerman,
    “ Attorney-General.”
    
      V. December 31, 1873, six., vouchers, covering the rent, at $300 a year, from January 1, 1868, to July 1,1873, were, by order of the Quartermaster-General, made out by the deputy quartermaster-general stationed at Fort Quitman, and forwarded to the Quartermaster-General for settlement. The vouchers were first approved by General Augur commanding. On the same day, to wit, December 31,1873, the following lease was made, providing for the future occupancy and rent, and forwarded with the vouchers:
    “United States oe America:
    “This indenture, made and entered into the second day of December, one thousand eight hundred and seventy-three, between Lieutenant-Colonel S. B. Holabird, deputy quartermaster-general, U. S. Army, chief quartermaster, Department of Texas, and his successors in office, for and on behalf of the United States of America, of the first part, and Archibald O. Hyde and Benjamin S. Dowell, administrator of the estate of James Hubbell, dec’d, of El Paso County, State of Texas, for themselves, their heirs, executors, administrators, and assigns, of the second part, witnesseth:
    “ That the saidparties have mutually covenanted and agreed, and do by these presents mutually covenant and agree, to and with each other, as follows, to wit:
    “First. That for and in consideration of the payments and covenants hereinafter mentioned, to be made and performed by the party of the first part, the parties of the second part, for themselves, their heirs, executors, administrators, and assigns, have covenanted and agreed as follows: That the said parties of the second part shall, and by these presents do hereby, demise, let, rent, and lease to the United States of America all that tract or parcel of land lying and being situated in the county of El Paso, State of Texas, upon the river Rio Grande, about eighty miles below the town of El Paso, upon which land the military post of Fort Quitman is situated.”
    ######*
    This lease was in the usual form and was approved by Generals Augur and Sheridan.
    March 23, 1874, Colonel Holabird was advised of the opinion of the Attorney-General and asked if the title had been judicially established. He replied that a suit for that purpose had been begun, but was still undecided. While these vouchers were still under consideration in the office of the Quartermaster-General, L. S. Wells, attorney for A. C. Hyde, and JB. S. Dowell, administrator of Jarvis Hubbell, deceased, under date of June 22, 1874, filed with the Secretary of War the following letter:
    “ The vouchers that I wished sent to the accounting officers were issued by Col. Holabird for rent that accrued subsequent to the war, in accordance with the rate fixed by a written lease, approved by Gen’l Sheridan, the voucheis for which are on file in the Q. M. Gen’l’s Office.
    “L. S. Wells.”
    Upon this letter the Secretary of War made the following indorsement, and forwarded it to the Quartermaster-General:
    “ If the facts stated by Mr. Wells are confirmed at the Q. M. Gen’l’s Office the vouchers should be sent to the Treasury for settlement. The matter as to the claim prior to the war can remain for future adjustment.
    “ By order of the Secretary of War.
    “H. T. Crosby,
    “ Chief Clerk”
    
    
      The statement of facts made by Wells was found to be correct, and the vouchers were forwarded to the Third Auditor for settlement, as directed by the Secretary of War, but without recommendation by the Quartermaster-General, as appears by the following letter:
    “ Respectfully forwarded under authority of the Hon. Secretary of War — see card marked A — to the Third Auditor of the Treasury, without recommendation.
    “There are 6’ certified accounts herein, in favor of A. C. Hyde and the estate of Jarvis Hubbell, covering rent of site of Fort Quitman, Tex.
    From Jan. 7, 3, to June 30, 1868.................. $150 00
    “ July 1, 1868, to July 1, 1869................. 300 00
    “ “ 1, 1869, “ “ 1, 1870................ 300 00
    “ “ 1,1870,“ “ 1,1871................. 300 00
    “ « 1,1871,“ “ 1,1872................. 300.00
    “ « 1, 1872, “ “ 1, 1873................. 300 00
    “ Service has been reported to this office as required by regulations.
    “I inclose a copy of the lease referred to in the vouchers marked B; also power of attorney recently filed by L. S. Wells, of Washington, D. O.
    “ Under the decision of the Supreme Court in the Filor case, no lease is binding on the Quartermaster’s Department unless approved by the Quartermaster-General.
    “ This office has thus far declined to approve this lease, for the reason that on Oct. 19, 1870, the Department of Justice ‘ thinks it doubtful whether the title set up by Hyde would prevail in- the courts over the equitable claim of the United States; suggests that no acknowledgment thereof be made, by lease or otherwise, without a judicial determination in its favor.’
    “The Chief Quartermaster, Dep’t of Texas, reported April 1,1871, that(there has been no decision of any court in this matter.’ A copy of his report is also inclosed, marked C.
    “ L. S. Wells, esq’r, Washington, D. C., has been advised of this reference.
    “M. O. Meigs,
    “ Quartermaster GenH, JBvH Maj. GenH, U. 8. A.
    
    “ Q. M. G. O., June 21, 1871.”
    YI. After the Attorney-General suggested that “ no acknowledgment ” of the claimant’s title “ be made, by lease or otherwise, without a judicial determination in its favor,” Anson Mills, one of the several, claimants, began a suit in equity, in the circuit court of the United States, against all the other claimants, in which the following decree was finally made:
    “In [the-circuit court of the United States, 5th circuit and western district of Texas, at Austin, sitting in equity.
    “Austin, Texas, July 6,1874.
    “ Anson Mills, complainant, “ vs. “ Mart A. Maverick, Samuel Maverick, George M. Maverick, William M. Maverick, A. O. Hyde, and the heirs of Jarvis Hubbell, now represented by W. M. Pierson, adminr.. of the estate of Hubbell, defendants.
    !>No. 60. In equity.
    “And now, on this day, came all the above-named parties, by their solicitors, Geo. W. Paschal and Geo. W. Paschal, jr., for the complainant, and Hancock and West for the defendants, and by consent of parties it is ordered, adjudged, and decreed that the title to the following real estate be divested out of the defendants for the purpose of adjusting all the equities between the parties, and the same be vested in Joseph L. Lockwood as trustee, which land is described as follows:
    “A tract of land, 640 acres in El Paso County, patented to A. C. Hyde, assignee of Clark L. Owen, by virtue of bounty warrant No. 2518, situated on the east bank of the Eio Grande, beginning at a stake set on the bank of the river for the upper corner of survey No. 128, from which a cottonwood, 8 inches in diameter, bears N. 68£° E., distant 7 varas; and a cottonwood, 10 inches in diameter, bears S. 69° W., 4£ varas distant; thence N. 45° E., 3,750 varas to a stake in mound ; thence N. 45° W., 950 varas to a stake in mound; thence S. 45° W., 3,520 varas to stake on the bank of the river set for the upper corner of this survey; thence down the river with its meanders to the place of beginning, being the same land on which Fort Quitman is situated, together with all the right, title, interest, and claim of all parties to back rents and profits, and every tenement and hereditament appertaining to said land.
    “ And as a means of adjusting the equities between the parties, by consent of all the parties, it is ordered, adjudged, and decreed that the said Joseph L. Lockwood is hereby clothed with the power, as trustee, to sell and make disposition or lease of said land.
    “ And the said Joseph L. Lockwood, as trustee, shall have full power to dispose of said property by sale or lease, to collect the back and future rents, and to do everything that is proper in the premises, and after paying the necessary expenses and five per centum commissions on the trust, the said trustee shall pay one-third of every nett balance the said Anson, Mills, one-third to the widow and heirs of Samuel A. Maverick, one-sixth to the said Hyde, and one-sixth to the heirs of the said James Hubbell or his legal representatives.
    “ It is further ordered, adjudged, and decreed that, should the said Lockwood, as trustee, fail to act or fail to complete the action necessary in the premises, this court shall appoint another trustee, who shall have all the powers hereinbefore conferred.
    “ And the trustee shall make semi-annual reports of his actions in the premises, and for that purpose only this decree shall be kept open.
    “ It is further ordered, adjudged, and decreed that the trustee pay the costs out of the proceeds to come into his hands.
    “ It is further ordered, adjudged, and decreed that all action under this decree be suspended for thirty days, and if before the expiration of that time any of the defendants or the complainant file in writing an objection to said decree, then the same shall stand suspended until the next term of this court, when the objection can be heard.
    “ No objections were filed.
    “ T. H. Duval.
    “ United States Judge.”
    VII. After this decree and the appointment of Lockwood as trustee the following lease was made with him:
    “United States oe America:
    “ This indenture, made and entered into on the first day of July, 1875, between Lieut. Ool. Charles H. Tompkins, deputy quartermaster-general U. S. A., chief quartermaster Department of Texas, and his successors in office, for and on behalf of the United States of America, of the first part, and J. S. Lockwood, of the city of San Antonio, county of Bexar, State of Texas, of the second, part, witnesseth:
    “ That the said parties have mutually covenanted and agreed, and do by these presents mutually covenant and agree, to and with each other as follows, to wit:
    “First. That for and in consideration of the payments and covenants hereinafter mentioned to be made and performed by the party of the first part, the party of the.second part has covenanted and agreed as follows:
    “That the said party of the second part shall, and by these presents do hereby, demise, let, rent, and lease to the United States of America all that tract or parcel of land lying and being situated in the county of El Paso, State of Texas, upon the river Bio Grande, about 80 miles below the town of El Paso, upon which land the military post of Fort Quitman is situated.”
    .# * * * # # #
    
      This lease was in the usual form and was approved by Generals Ord and Sheridan.
    [Indorsement.] '
    “True copies respectfully transmitted to the Third Auditor of the Treasury in connection with the case of A. O. Hyde and others, forwarded from this office June 24 and November 11, 1874..
    “By order Act’g Q’rm’r Gen’l, U. S. A.
    “Stewart Van Vliet,
    “ Ass’t Q’rm’r Gen’l, Ú. 8. A.
    
    “December 7,1875.”
    July 1,1876, this lease was renewed and extended for another year between the same parties and approved in the same way, except it was signed by A. J. Perry, who had in the meanwhile been assigned as deputy quartermaster-general at Fort Quit-man.
    Upon these leases no action was taken by the Quartermaster-General except to forward copies of them to the third Auditor.
    VIII. On the 4th January, 1876, the children of Samuel A. Maverick conveyed to his widow all their interest, inter alia, to the Fort Quitman property; and on the 5th day of December, 1877, she conveyed all her interest (one-third) in the land described in the decree and its rents to Anson Mills, claimant. On the 28th December, 1876, B. D. Dowell, administrator of Jarvis Hubbell, conveyed and assigned all the interest (one-sixth) of the heirs of Jarvis Hubbell under the decree and in the land and rents described in the decree to Anson Mills, and on the 17th March, 1875, A. O. Hyde conveyed his one-third interest to Anson Mills, the aggregate sum paid by claimant for the two-thirds interest thus acquired, or attempted to be, being $1,750. How much he had paid for the equitable interest decreed to him by the court in equity does not appear.
    IX. When the survey of the Owen warrant was located the land was occupied by the United States as a military post. This occupation continued until some time in the early part of 1861, when the rebellion caused an abandonment. It was reoccupied in 1868, and troops remained there until January, 1877, when they left. December 5, 1877, Lieutenant-General Sheridan directed the commanding general of the department of Texas “ to reoccupy Fort Quitman -whenever he thinks the public service requires it.” This by authority of the Secretary of War.
    X. Three hundred dollars a year is a fair and reasonable rent for the use of the premises. No rent has been paid.
    XI. “ War Department,
    “ Washington City, April 30th, 1880.
    
      The honorable the Judges Court of Claims, Washington:
    
    “The undersigned, Secretary for the Department of War, of the United States, hereby respectfully represents that a claim has been made against said Department by Maj. Anson Mills, U. S. Army, for rent of Fort Quitman, Texas, consequent upon the occupation of the site on which said fort is situated by the United States, amounting to seventeen thousand ($17,000) dollars.
    “This claim involves disputed facts and controverted questions of law, and the amount in controversy exceeding three thousand ($3,000.00) dollars it is deemed proper to transmit the claim, with all the vouchers, papers, proofs, and documents pertaining thereto, to the Court of Claims, to be there proceeded in according to law.
    “Alex. Ramsey,
    
      “Secretary of War.”
    With this letter the Secretary of War transmitted to the ourt all the papers upon which the claims of the several parties who have filed petitions in the case were supposed to be founded, together with their several assignments, transfers, or conveyances to Anson Mills. Also the decree of the court and the leases made by Lockwood as trustee. At the time the letter was written and the case transmitted to this court none of these parties were claiming adversely to Anson Mills, but all for his use and benefit. Hyde, Maverick, and Dowell had filed assignments of their respective claims to Anson Mills, and he having thus become the sole beneficiary under Lockwood was urging payment in the name of his trustee.
    
      Mr. JET. JE. Panne for the claimant:
    1. If a claimant in this court prove his own title to land, and also prove use and occupation by the United States, under circumstances implying a tenancy, he will be entitled to recover on an implied contract. If the lease be void because prohibited by law, it will nevertheless be effective to negative any presumed contract of purchase. If the claimant prove his own title, and also use and occupation by the United States, in the absence of proof showing either a lease or a purchase, the presumption will be that the contract required the title to remain where it is, and that the occupation is, therefore, referable not to a purchase, but to a lease. This presumption will be still stronger if the law prohibit the purchase. It will be re-enforced by an additional presumption against official violation of law.
    2. I submit in the next place that if the proofs show title in the claimants, and use and occupation by the defendants, and there were present in the case conflicting proofs on the question of purchase, lease, or tort, the presumption, upon the same grounds of principle, would be in favor of a lease, as against either a purchase or a tort.
    
      Mr. John S. Blair (with whom was the Assistant Attorney - General) for the defendants:
    The evidence fails to show any acknowledgment of the proper officers of the United States that claimant or any of his privies were entitled to rent. Our possession, begun anterior to the inception of claimant’s title, has been adverse to it. (Chitty on Pleadings, vol. 1, p. 107; Boston v. Binney, 11 Pick., 1; God-man v. Jenkins, 14 Mass., 96; Lloyd v. Sough, 1 Howard, 159; Carpenter v. The United States, 17 Wall., 189; Langford v. The United States, 101 U. S., 341.)
   Scoeield, J.,

delivered the opinion of the court:

This claim is founded upon an alleged implied contract on the part of the defendants for use and occupation of land.

The first question is, was there an implied contract which can be enforced in this court?

In 1858 the United States forces established a military post called Fort Quitman on a certain unoccupied tract of land in Texas, and so occupied it until May 1, 1861, at which time the rebellion broke out. During this period of occupancy the legal title to the land was in the State of Texas. The occupation was for the special protection of that State against raids from Mexico, and so far as appears without objection on the part of the State.

May 10, 1861, Texas conveyed the land to A. C. Hyde.

January 1,1868, the United States forces again came to occupy Fort Quitman and continued the occupancy until January, 1877. It does not appear that any objection to this occupancy was made by the owners of the land, but they were persistent in claiming the rent.

At that time there was some doubt as to the party entitled to contract for and receive rent. Some parties claimed title under the Cassillas warrant and some under the Owen warrant. (Findings I and II.) Several undivided interests had also been created and the title was very much mixed and confused. While there may have been some understanding that a proper rent would be paid, owing, perhaps, to the uncertainty of ownership no written lease was at first made.

May 28, 1869, the Secretary of War requested the opinion of the Attorney-General “as to the legal rights of the several, parties in the premises.”

October 19, 1870, about a year and a half afterwards, the Attorney-General gave the opinion presented in finding IY.

Following this opinion no action was taken and no declaration made asserting title or looking to the acquisition of title on the part of the defendants. On the contrary, on December 31, 1873, six vouchers, covering the rent from January 1, 1868, to June 30, 1873, were made out by S. B. Holabird, deputy quartermaster-general, stationed at the fort, in favor of A. 0.1 Hyde, who claimed title under both the Cassillas and ©wen warrants, and B. S. Dowell, administrator of Jarvis Hubbell, who claimed under the Owen warrant only. The vouchers were made out and forwarded under instructions from the Quartermaster-General. On the same day a lease for future rent with the same parties was drawn up, signed, and forwarded to the Quartermaster-General. The vouchers and lease were approved by General Augur, then commanding in the Department of Texas.

June 22, 1871, the Secretary of War gave a written order to the Quartermaster-General that in case a certain statement made by Mr. Welles, the attorney, was found to be correct, to send “the vouchers to the Treasury for settlement.” He further orders that “the claim prior to the war can remain for future adjustment.” (Finding Y.) The statement of Mr. Welles was found to be correct, and under this peremptory order of the Secretary the vouchers were sent to the Third Auditor by the Quartermaster-General, but the latter officer made no recommendation as to what action the Auditor should take. He gives as a reason for his non-action that “the Attorney-General £ suggests that no acknowledgment thereof [the claimant’s title] be made, by lease or otherwise, without a judicial determination in its favor,’” and that “the chief quartermaster, Department of Texas, reported April 1, 1874, that there had been no decision of any court in this matter.” (Findings IY and Y.)

Thereafter Anson Mills, one of the claimants, finding that the Quartermaster-General, under the advice of the Attorney-General, would not recommend the payment of rent until their conflicting claims of title had been submitted to judicial determination, summoned by bill in equity all the parties claiming title, to submit their respective claims to the decision of the circuit court of the United States. July 6,1874, that court, in accordance with the laws of Texas, decreed that the title to the premises “ be divested out of the defendants for the purpose of adjusting all the equities between the parties, and the same be vested in Joseph S. Lockwood as trustee * * * who, shall have full power to dispose of said property by sale or lease, and to collect the back and future rents,” &o.

After this decree a second lease, dated July 1, 1875, was made by G. H. Tompkins, deputy quartermaster-general, stationed at the fort, with said Lockwood as trustee. (Finding YII.)

July 1, 1876, this lease was renewed by the same parties, except that A. I. Perry was the deputy quartermaster-general. The rent agreed upon was $300 a year. These two leases were approved by Generals Ord and Sheridan and forwarded to the Quartermaster-General, but he took no action upon them.

April 30,1880, the claims were transmitted to this court by the Secretary of War.

There is no intimation in the action, correspondence, or declarations of any officer under whom possession was taken or continued of any purpose or desire to acquire title for the United States. Youchers were made out for the payment of rent covering a period of five or six years. Three leases promising to pay rent were made for as many different years. These vouchers and leases were approved by Generals Augur, Ord, and Sheridan. To he sure, these leases were not binding upon the United States until approved by the Quartermaster-General, but they serve to negative the pretension that the property might have been taken or held under a claim of title. Neither did the Secretary of War nor the Quartermaster-General set up a claim of title. The delay and hesitancy in the department seems to have been caused by the difficulty in determining who were the proper parties to receive the rent.

The Langford Case (101 U. S. R., 341) cited by the defendants, carefully read, supports rather than invalidates this claim. Justice Miller says, “The United States always asserted that their possession was by virtue of their own title, which was hostile to that of the claimant.” Upon this fact, thus sharply stated, the case was ruled. It may well be inferred that if no title had been claimed by the government a promise to pay would have been implied.

In the case before us the owners never objected to the occupancy, and the immediate occupants never claimed title. The one claimed rent; the other agreed, so far as they were able, that it should be paid. The Secretary of War, who had the power to contract, ordered the rent vouchers to be sent to the Treasury for settlement. That he intended this order as an approval and adjudication in favor of the vouchers is clear from the fact that in the same order he directed that the claim for rent before the war should be held for future adjustment.

If these facts constitute neither an express nor an implied contract it is not easy to imagine a state of facts that avoiding the one would constitute the other.

In the case of the United States v. Russell (13 Wall. R., 623), where three steamboats belonging to private parties were forcibly taken into government service by Army officers, the Supreme Court held that a promise on the part of the United States to pay a reasonable compensation was implied, and of that implied promise this court had jurisdiction.

That case, it is said, was justified by a great emergency of war. Certainly it was so justified; that is to say, the taking of private property for public use without present compensation was justified or excused by the emergency. Taking property without such emergency is less excusable, but the obligation under the Constitution to make just compensation in the future is as strong in the one case as in the other. In the one case the property is taken from necessity, in the other from convenience. The Constitution alike in each case enjoins just compensation, and for remedy sanctions no arbitrary or illogical distinction.

Upon that subject it has heretofore been said by this court that “the principles of law, as well as the dictates of natural justice, raise an implied promise in such cases to compensate the owner for the use of his property, which the defendants have thus had the benefits of. It would be so in like transactions between individuals, * * * and it is no less so when the United States are parties, since the Constitution has guaranteed to all that private property shall not be taken for public use without just compensation.” (Mason v. The United States, 14 C. Cls. R., 70, cited with approval in Herch v. The United States, 15 C. Cls. R., 391. See also the cases of Langford and Russsll, before referred to.)

In the case before us, however, the conclusion of the court is not dependent upon this provision of the Constitution, but is based upon the principles of the common law, whereby a contract to pay for use and occupation is implied, in cases where the owners consent, by implication or agreement, to the use and occupation and the occupants do not claim adversely.

But it is said that the correspondence between the Secretary of War and the Attorney-General, and the indorsement of the Quartermaster-General upon the lease and vouchers sent to the Third Auditor (Findings IY and Y), are evidence of a claim of title. We do not so understand them. No claim of title had then been made by any Army officer. None had been suggested in the War Department. There was apparently no objection to paying rent, but the question was as to whom it should be paid. The Secretary inquired, of the Attorney-General. After considering the question a year and a half he replied in substance that if the United States had selected this land with a view of acquiring title they might still have a claim to it, and he recommended “ that if it is desired to retain possession of the site as a permanent military post measures be at once taken to have the same surveyed, and to procure a patent therefor from the State authorities.” He also advised “that no acknowledgment thereof (the claimant’s title) be made without a judicial determination in its favor.”

The Quartermaster-General followed the last item of advice, but nobody acted on the first. The vouchers were sent to the Third Auditor “ without recommendation,” but no measures were taken to have a survey and procure a patent. In fact such an undertaking was prohibited by law. ' (Rev. Stat., 3736.)

The opinion of the Attorney-General is based upon a hypothetical case. If the government selected it with a view of acquiring title and making a permament fort, such selection might constitute the first step in the acquisition, and it might now be followed up by taking immediate measures to perfect an inchoate title. But there is nothing in the findings to show that it was selected with a view of acquiring title. From all the facts in the case, it appears that the defendants occupied the premises with the consent of the owners and without any claim of title or purpose'to acquire one.

When the Secretary of War ordered the six vouchers which had been made by the deputy quartermaster-general stationed at the fort to be “ sent to the Treasury for settlement ” (Finding Y) he distinctly recognized the outstanding title and the liability of the defendants to pay rent at the rate of $300 a year. It amounted to an approval of the vouchers and indirectly of the lease. The Quartermaster-General gave them a quasi approval when he instructed the deputy to make them out and forward them for settlement. There appears to have been no claim of title outside of the Attorney-General’s hypothetical case.

Second. Have we a party on record who, according to the forms of procedure in this court, is entitled to recover ?

By the decree in equity, rendered with the consent of all the claimants, the title to the premises was “divested out” of all the parties to the suit and vested in Joseph S. Lockwood as trustee. He was also authorized by the decree to collect the past and future rents. If the decree is valid — and its validity has not been questioned in the argument — Lockwood is the only party entitled’to demand the rent. He does not fall under the prohibition of section 3737 of the Revised Statutes. The decree under which he was appointed is analogous to a decree in bankruptcy under which the assignee takes the place of the original holder. (Erwin’s Case, 97 U. S. R., 392.) In the opinion of the court, Lockwood is authorized by the decree to sue for the rent in his own name as trustee.

But it is said the claim of Lockwood was not transmitted to the court by the Secretary of War. . That is a mistake. In point of fact it was transmitted. (Finding XI.)

The decree in equity, the notice of his appointment, the two. leases made with him by the deputy quartermaster-general, and his demand of the rent, were all transmitted.

But it is further said that in the letter of transmission the Secretary calls it the claim of Anson Mills. So, indeed, he does, and with great propriety. Before the decree in equity there were four parties claiming rent, Anson Mills being one. By the decree these claims were merged in the trust of Lockwood. The several claimants in the department thereby ceased to hold the legal title, but were still equitable owners under the trustee. ■ Subsequently Hyde, Maverick, and Dowell sold out, assigned, and conveyed all their rights and claims under the decree tc Mills. Thus Mills became the sole owner of the equitable estate under the decree. Thereafter he was known at the department as the only party in interest, though claiming in the name of the trustee. So when the case was sent to this court it was entitled the claim of Auson Mills. The departments do not always observe the forms and technicalities of the courts, nor is it necessary that they should. There was but one matter of claim, one item of account, to wit, the rent of Fort Quitman, and but one person really entitled to the rent, though it had been asked for in whole or iu part by Mills, Hyde, Maverick, Dowell, and Lockwood. The claims were so connected that one could not be transmitted without the others. They were all, in fact, transmitted, and all the parties have filed petitions setting forth their original claims, but for the use of Anson Mills.

The objection is entirely technical and should not stand in the way of an honest claim, by divers shifts too long withheld.

It only remains to determine what amount should be recovered.

The title of the several claimants was acquired May 10,1861. Prior to that time the title was in the State of Texas. The subsequent occupancy by the defendants began January 1, 1868, and terminated January 1, 1877. In the leases and vouchers the rent is fixed at $300 a year. The court has found that sum to be a fair compensation.

The court directs that the petition of Mills, Hyde, Dowell, and Maverick be dismissed and judgment be entered in favor of Joseph S. Lockwood, trustee, for the sum of $2,700, for the use of Anson Mills, as requested in said Lockwood’s petition.

Drake, Ch. J.,

dissenting:

I do not concur in the judgment rendered by the majority of the court.

In my opinion, the relation of landlord and tenant never existed between any of the several parties in whose names petitions have been filed here since the case of Anson Mills was transmitted to this court by the Secretary of War; and unless that relation did exist, the action for use and occupation of the premises is not maintainable.

As to the right of the claimant to recover, on the Constitutional ground that private property shall not be taken for public use without just compensation, I do not consider that point necessarily presented in the case. The claimant sues for rent, and the point is whether he was in- any sense the landlord of the government. If he was, he can recover rent; if he was not, he cannot in this case recover under the Constitutional provision; for that is inconsistent with the relation of landlord and tenant: one rests on a contract, the other on a constitutional provision.  