
    JOHN J. SCHILLINGER v. THE UNITED STATES.
    [24 C. Cls. R., 278; 155 U. S. R., 163.]
    
      On the claimant’s Appeal.
    
    The owner of a patent for concrete pavement protests against the pavement in the Capitol Grounds being laid by the contractor, and notifies the Architect of the Capitol that it will be an infringement of his patent. He now brings an action in the nature of an infringement.
    The court below decides:
    1. A contract may be implied whenever the Government, acting through a competent agent, takes private property, acknowledging explicitly or tacitly that it is such.
    2. When there is a denial of private right in an alleged invention used by the Government, the appropriation or use is in the nature of a tort, and this court is without jurisdiction.
    3. When the proper agent of the Government does not acknowledge the validity of a patent, nor recognize the work done by his authority as embodying or infringing the invention, no contract can be implied.
    4. If tangible property be appropriated the owner thereby suffers loss, and the Government at the same time acquires value, and a contract may be impjlied, though the act of the agent was unauthorized; but the use of the patented process or article deprives the owner of nothing of intrinsic value, and is per se only an invasion of a right.
    The decisioa of the court below is affirmed on the same grounds.
   Mr. Justice Brewer

delivered tbe opinion of tbe Supreme Court, Nopvember 19, 1894.

Mr. Justice Harlan delivered a dissenting opinion, in wbicb Mr. Justice Shiras concurred.  