
    HENRY F. WILLINK v. THE UNITED STATES.
    [No. 20852.
    Decided May 25, 1903.]
    
      On the Proofs.
    
    The officer of engineers in charge" of the improvement of the harbor of Savannah enters into a contract for widening the river by cutting away the claimant’s land, but the contractor does not enter or encroach upon the property. The officer also notifies the claimant to cease making improvements necessary for carrying on his business upon his river frontage, and the United States district attorney writes the claimant a letter, intimating that if he does not comply with the officer’s demand proceedings will be instituted against him to recover the penalties prescribed by the Act, 19th September, 1890 (26 Stat. L., p. 453). The claimant desists, to the great injury of his business. He sues for constructive use and occupation during a period of five years, at tlie expiration of which time the old harbor line is reestablished by the Secretary of War.
    I. Where a statute authorizes the making of contracts for river or harbor improvements, the occupation of land upon the river frontage by the engineer officer in charge of the work is not ultra vires, and for such an occupancy a contract in the nature of a tenancy should be implied. Wright, J. dissenting.
    II. Where it appears in an action brought for use and occupation that there was'no actual use and occupation and that the damages suffered were caused by the illegal acts and intimidations of Government officers no contract can be implied.
    
      The Reporters' statement of the case:
    The following are the facts of the case so far as they relate to the points decided by the court:
    V. The harbor line opposite the city of Savannah was established by the Secretary of War May 4, 1889, in accordance with section 12 of the act of August 11,1888 (25 Stat. L., 425). It cuts off a strip of land from Hutchinsons Island averaging about 100 feet wide for a distance of about 2,500 feet, and the projects for the improvement of the harbor have contemplated the dredging away of this portion of the island by the United States to give a uniform ciear width of 600 feet in the river opposite the city.
    A contract was made on October 20, 1892, by Captain Carter, and approved by the Chief of Engineers, for cutting off the land outside the harbor line fixed by the order of May 4, 1889, but the work was never done, the appropriation having-been used for other purposes, and the project, except as to the future, having been completed.
    VI. The harbor line aforesaid, shown on Exhibit A, cut off a portion of the claimant’s property, about 86 feet in width along its entire front, including 133 linear feet of the ship railway.
    VIL The unobstructed use of the railway is an essential to the use of any of the shipbuilding and repairing plant. In order to use this railway it was necessary to keep the lower end, which was under water at high tide, free from deposits of mud. For this purpose the claimant had built sheet piling-on both sides of it. This was found effectual for the purpose, except that the piling rotted after a number of years’ use, and new piling- was required.
    YI1I. This condition existed in the summer of 1892, and the claimant proceeded to renew his piling, and had more than half completed his work when he was told by Captain Carter, the engineer officer in charge of the improvements in Savannah, to desist, and was notified by him that he must remove everything which was on the outside of the harbor line; and on the 26th or 27th day of August, 1892, ^he ceased his improvements in consequence of the following letter from the’United States district attorney for the southern district of Georgia:
    “MacoN, Ga., Aug. glrfh, 189%.
    
    •• 11. F. WilliNK, Esq., Savannah, Ga.
    “Sir: O. M. Carter, Capt. Corps of Engineers,'U. S. A., reports that you have had some piles driven in Savannah Fiver outside of the bulkhead line, opposite Whitaker st., Savannah, obstructing navigation, in violation of river and harbor act of Sept. 19, 1890 (26 Statutes L., p. 453, 454). You will at once desist from further obstruction and remove such piling as Capt. Carter desires removed, i. e., ail piling-outside of the bulkhead line. Unless this matter is attended to at once I will have to take out proceedings in court to compel compliance and to recover the penalties prescribed by*the statute. 1 will be in Savannah in about two weeks to look after this matter, and I trust that the difficulties will have been adjusted to the satisfaction of Capt. Carter by that time.
    “Yours, truly,
    “MarioN ErwiN,
    “ TI. 8. Atty.”
    
    IX. The claimant was also rebuilding his wharf on the west side of the railway, and had it framed and all finished but planking it, but was forbidden by the engineer in charge to cover it with plank and obliged to leave it unfinished.
    X. The result of ceasing work as aforesaid was that the deposits ’of mud filled up the railway to such an extent that vessels of large draft could not be hauled up on the railway, and the claimant thereafter was obliged to confine his work to much smaller vessels than he had heretofore been able to repair.
    XI. The chief profit in the claimant’s business was in the repair of larger vessels, from which he was thus shut out.
    
      XII. In order to continue work on the smaller vessels it was necessary to keep up almost continuous dredging at a large expense. Restoring the piling would have obviated the need of dredging.
    XIII. The claimant also lost tenants to whom buildings were rented.
    The 'unfinished wharf and some of the adjacent land was actually used by the United States engineer officers in connection with the improvement'of the harbor.
    XIV. The conditions herein set forth continued until December, 1897. On the 2d day of said month the Secretary of War established a new harbor line, of which notice was given the claimant on the 8th of said month.
    This line, shown on Exhibit A, restored that existing prior to May 4, 1889, and the claimant was thereby restored to possession of his property as it had existed prior to that date.
    XY. The reasonable rental value of the wharves and land actually used and occupied during the period of about five years was $2,000.
    XVI. If the claimant is entitled to recover for losses and injuries consequent to his having complied with the demands of-the defendants’ officers, set forth in Finding VIII, his damages were as follows:
    For the expense of dredging out the entrance within the boundaries of his own land, of the approach to his marine railroad, $7,697, such dredging having been rendered neces sary in consequence of the order of Captain Carter forbidding him to drive piles and protect the approach from the caving-in of the banks and-the deposits of the river.
    For his losses in business consequent to the diminished depth of water and his inability to dock lai-ge vessels, 112,500.
    
      Mr. William B. Ki/ng for the claimant. Messrs. Barrow & Barrmo were on the brief.
    The first proposition to be maintained to uphold the jurisdiction of the court is that this is not a claim for damages sounding in tort.
    
      In Bich v. New York, etc. B. B. Go. (87 N. Y. 382), it is said:
    “We have been unable to find any accurate and perfect definition of a tort. Between actions plainly ex contracinc and those as clearly ex delicto, there exists what has been termed a border land, where the lines of distinction are shadowy and obscure, and the tort and the contract so approach each other and become so nearly coincident as to make their practical separation somewhat difficult.”
    Bayley, J., in Bex v. Pogrom Commissioners (8 B. & C. 362), says that to constitute a tort two things must occur— actual or legal damage to the plaintiff, and a wrongful act committed by the defendant. However great the difficulties in exactly defining a tort, or in fixing the status of any action lying near this shadowy border land, the essential element of tort, that the defendant has done some wrongful act, must appear. A refusal to pay an obligation is not such an act, however great the wrong suffered by the plaintiff, since no invasion of right is involved in this.
    This is the condition presented here. The prosecution of a great public work, the improvement of the Savannah River for the regulation of foreign and interstate commerce, (Const. Art. 1, Sec. 8) was authorized by numerous acts of Congress, which appear in finding ni, ante, pp. 92-94.
    When, under these conditions, the engineer officer in charge took possession of claimant’s land and excluded him from it, there was no legal wrong committed. The claimant’s right in his land was always subject to the Government’s superior right to take it for public use, controlled by the condition that, if so taken, it must be paid for {Pope v. United States 26 C. Cls. R., 13.)
    An extended discussion of this principle in its application to this case is rendered unnecessary through the quite recent decision of this court in Merriam v. United States (29 C. Cls., 250),
    All the cases which might be cited in opposition to the present claim are so fully considered in this case that it is quite unnecessary to devote any time to discussing them.
    The importance of the present case lies in the application of the constitutional principle of compensation for taking private property for public use. Mr. Justice Brewer, in the opinion of the court in the case just cited, eloquently states this principle:
    “Obviously, this question, as all others which run along the line of the extent of the protection the individual has under the Constitution against the demands of the Government, is of importance; for in any society the fulness and sufficiency of the securities which surround the individual in the use and enjoyment of his property constitute one'of the most eertain tests of the character and value of the Government.”
    If the constitutional protection of private property from uncompensated public use is to be enforced in this case the claimant must be put, so far as a delayed money payment can accomplish it, in the same monetary position as would have been his had his property not been taken. No other rule of compensation can be just.
    
      Mr. George II. Walker (with whom was Mr. Assistant Attorney- General Pradt) for the defendants:
    It is clear from the language of the acts of Congress, and that-of the reports of the Chief of Engineers, that the project of widening the channel of the river was an old one, and there is nothing in the later acts that indicates an intention on the part of Congress to give it more attention than had been accorded it in the past.
    “ Since the exercise of the power of eminent domain — the taking, of a man’s property without his consent — is against common right, it can not generally be implied from a grant of authority to construct a public work. * * * All acts relating to the taking of private property are to be strictly construed and not extended by implication. (A. and É. Encycl. of L., second edition, p. 1054, and authorities therein referred to.)
    “An act of this sort,” says Bland, J., deserves no favor; to construe it liberally would be sinning against the rights of property.” {Bmney’s ease, 2 Bland Ch., 99.)
    It is true that a contract was entered into for cutting off the strip of land in question, but “the work was never done, the appropriation having been used for other purposes, and .the project, except as to this feature, being completed.”
    
      Let us suppose, for the sake of argument, that Congress did intend by the acts cited' to acquire the land of the claimant. How could it be acquired ? Certainly not by the act of Captain Carter in writing the letter of April 7, 1893. When the Constitution prescribes that just compensation shall be made it means that which shall be fair and reasonable, and it implies such compensation as may be satisfactory to the owner, if an agreement may be reached; otherwise the compensation shall be ascertained in the way and manner prescribed by kw— that is, by proceedings in condemnation.
    “It is not competent for the State itself to fix the compensation through the legislature, for this would make it the judge in its own cause. (Cooley’s Constitutional Limitations, 695.)”
    The case here presented recalls that of the United States y. Oregon Saihoay cmdNavigation Compcmy (16Fed. Rep., 521), in which the Secretary of War had been authorized by an act of Congress to select lands at the Cascades of the Columbia River in Oregon for'the construction and operation of a canal and locks around the Cascades. In the event that an agreement could not be reached with the owner or owners of the lands the Secretary was authorized to secure the lands by condemnation proceedings. In reviewing this case Judge Deady said:
    “The selection of lands by the Secretary and the bringing of this action by the United States to ascertain the value do not alone constitute a taking of private property for public use.”
    Touching proceedings in condemnation see Lewis in his work' on Eminent Domain (sec. 240) and numerous authorities.
    There never was a contract or. an agreement of any kind between the claimant and a representative of the Government as to the compensation to be paid for the land in controversy. No steps had been taken in the way of condemnation proceedings.
    Congress has provided for the way and manner in which lands may be acquired by the Government for river and harbor improvements and other public uses. (25 Stat. L., 94, 357.) These statutes were not in any way observed.
    There is nothing in the acts of Congress authorizing the appropriation of claimant’s land, nor is any compensation provided therefor.
    As a general rule, the courts which hold that compensation need not precede occupation also hold that some provision must be made for compensation whereby the owner will certainly obtain it, and that it is not enough that the law provides a mode for ascertaining the amount of compensation and imposes on the party taking the duty of making payment. (Lewis, Em. Dom., sec. 457.)
    The Government can not, unaer the circumstances, oe held liable for the acts of Captain Carter, even though they were committed in its service and apparently for its benefit. (Gibbons v. United States, 8 Wall., 269; Moffat v. United States, 112 U. S., 24.)
   Nott, Ch. J.,

delivered the opinion of the court:

This is one of those cases where a citizen of the United States has suffered sei’ious loss by ignorance of Federal law and too great reliance upon the assertions and assurances of officers of the Government. The court, nevertheless, has -regretfully reached the conclusion that his losses and injuries lie beyond the limits of judicial redress.

The misfortunes of the claimant began with the Act 11th August, 1888 (25 Stat. L., p. 425), which authorized the Secretary of War to establish a hai’bor line. On the 14th May, 1889, the Secretary, basing his plan undoubted^ on the existing plan of the Chief of Engineers for improving the harbor of Savannah by widening the liver, established a line which clipped off a strip of Hutchinson’s Island opposite the city 100 and more feet in width, the property of the claimant, and compi’ising substantially all of his river frontage. Two years afterwards Congress enacted another .statute, which authorized the Secretary to establish harbor lines generally, and contained a stringent provision making it a misdemeanor, punishable by fine and imprisonment, for any person to make encroachments beyond a hai’bor line established by the Secretary. (Act 19th September, 1890, 26 Stat. L., p. 454, sec. 12.) Again, two years later, Congress enacted a third statute, making an appropriation of $318,750 for “improving harbor at Savannah,” and authorizing the Secretary of War to enter into contracts “ for such materials and work as may be necessary to complete the present project of improvement.” (Act 13th July, 1892, 27 Stat. L., p. 92.) Up to this time no statutory authority existed for acquiring the land necessary for widening the river according to “the present project of improvement,” either by contract or judicial proceedings, unless it waá to be found in the general statutes. (The Acts 24th April, 1888, 25 Stat. L., p. 94, and 1st August, 1888, ib., 357.)

Such being the legislative conditions of the case, Capt. Oberlin M. Carter, the officer of engineers in charge of the improvement of the harbor of Savannah, proceeded, under the appropriation act of July, 1892, to advertise for proposals; and on the 20th of October, 1892, entered into a contract for dredging the river and cutting away the claimant’s land. This contract was approved by the Chief of Engineers, but was never carried into effect beyond dredging the river. That is to say, the contractors neirer entered or encroached upon the property of the claimant. The claimant was threatened with this impending cutting away of his river frontage, but his land was not actually taken or occupied bjr the contractors.

But about the time that Captain Carter was advertising for proposals he also gave notice to the claimant that he would shortly begin the work of cutting away his land, and that he (the claimant) must cease making certain improvements which he was then making on the strip which would be cut away. These improvements were vital to the claimant’s business— that of docking vessels for repairs. The claimant accordingly called on Captain Carter, who' reiterated that he must remove everything capable of removal outside of the new harbor line.

A week or two later Captain Carter’s authority was reenforced bjr a letter from the United States district attorney — a letter which is remarkable in its terms and intimations and in the effect which it produced upon the claimant. It is an important letter inasmuch as the claimant’s counsel regards it as in legal effect the taking of the land — as the Government’s assertion of its right to take the land to the exclusion of the owner. It is in these words:

“Macon, Ga., Aug. 21tfh, 1892.
“H. F. Willink, Esq., Savannah, Ga.
“Sir: O. M. Carter, Capt. Corps of Engineers, U. S. A., reports that you have had some piles driven in Savannah River outside of the bulkhead line, opposite Whitaker st., Savannah, obstructing navigation, in violation of river and harbor act of Sept. 19, 1890 (26 Statutes L., p. 453,451). You will at once desist from further obstruction, and remove such piling as Capt. Carter desires removed, i. e., all piling outside of the bulkhead line. Unless this matter is attended to at once I will have to take put proceedings in court to compel compliance and to recover the penalties prescribed by the statute. I will be in Savannah in about two weeks to look after this matter, and I trust that the difficulties will have been adjusted to the-satisfaction of Capt. Carter by that time.
“Yours, truly,
“Marion Erwin,
“U. S. Atty.”

The claimant accepted this reference to the act 19th September, 1890, as a hint that he was putting himself in jeopardy, and interposed no more objections to the demands of the Government’s officers. The whole of his tract was not occupied; the strip of land was not cut away; the river frontage remained as it was; but for five years he was (as he believed) debarred from making a cutting or driving a pile on his own land. At the end of five years (December 2, 1897), after the well-known downfall of Captain Carter, the Secretary of War, by a stroke of his pen, established a “modified” harbor line-opposite the city of Savannah — that is to say, he reestablished the old harbor line. The claimant was thereby restored to the undisputed possession of his property, but during the interval his possession had been impaired and the valuable part of his business destroyed. He now sues for a constructive use and occupation by the Government.

After the act 13th July, 1892, authorizing contracts for work “necessary to complete the present project” of improving the harbor, and after the approval by the War Department of the contract 20th October, 1892, for cutting away the claimant’s liver frontage, it can not be maintained that Captain Carter was wholly without authority to use and occupy the claimant’s land. The court does not intend to intimate that he could enter upon the land against the claimant’s protest and occupy it vi at armis without his consent; but merely that his occupancy, as an agent of the defendants, for purposes incidental to the work of improvement and with the claimant’s assent, express, or implied, would not have been ultra vires. Undoubtedly for a trival occupancy of this character, which has not hitherto been adverted to, a contract in the nature of a tenancy should be implied.

But it seems to the court only too obvious that the action is not brought for use and occupation, but to recover damages sustained and suffered by reason of the illegal and unjustifiable acts and intimidations of two Government officers. As to the act 19th September, 1890, upon, which these officers seem to have based their action, it. is one of those statutes which, being against common right, is to be strictly construed and which is to be interpreted and applied in accordance with the constitutional rights of individvals. The pains and penalties prescribed for erecting obstructions must be restricted to obstructions below lowwatermark — to obstructions erected, not by an owner of private property on his own land, but obstructions erected in public waters on land which, if it belongs to anyone, belongs to the United States. Certain it is that Congress never intended that an executive officer, bjr drawing a line through a man’s farm, should make it unlawful for him to step over it or subject him to fine and imprisonment for driving a pile or building a house on his own land. The harbor line of the Secretary of War, so far as it affected dry land and private ownership, was a line in the air— a line upon paper only — until the Government should acquire a legal right in harmony with the Constitution and in the manner prescribed by law. The claimant’s mistake was that he did not appeal from one officer to the Secretary of War and from the other to the Attorney-General.

The fact has been adverted to that, apart from the loss and damage which the claimant suffered in consequence of his complying with the demands of the engineer officer and the district attorney, the officers in charge of the improvement of the harbor used, with his consent, his wharves and a portion of his land for dockage and storage purposes. From this use and occupation the Government derived a benefit-, and for it there should be recovered a reasonable rent, which is found to be §2,000.

The judgment of the court is that the claimant recover §2,000.

Weight, J.,

dissenting:

I do not concur in so much of the conclusion of the court as results in a judgment against the United States. There was no authority, of the defendant given to the officers or agents, who assumed to act in its behalf, to take or damage private property; and if they did so, such acts were the torts only of the individual persons who may have committed them, and for which the defendant is not liable. Claimant had a complete remedy against such tortfeasors by private action in the courts of justice established in his locality, and if he failed to avail himself of this it is liis own fault.  