
    JOSEPH C. IRWIN & CO. v. THE UNITED STATES. CHARLES A. PERRY ET AL. v. THE UNITED STATES.
    [Nos. 15215, 15313.
    Decided February 18, 1889.]
    
      On the Proofs.
    
    Judgments are recovered in these cases (23 C. Cls. R., 149). The Supreme Court directs a new trial upon the ground that requiring wagon trains to remain with a military force to prevent the enemy from obtaining information and supplies is not a seizure and impressment of property into the public service.
    Under the decision of the Supreme Court in these cases (127 U. S. R., 125) it must be held that there can be no recovery for cattle lost on the march, for wagons abandoned on the road, for deterioration due to hardships, or for extra expense caused by delay under the private Act 8th July, 1886 (24-Stat. L., 128).
    4
    
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts as found by tbe court:
    I. Tbe firm of J. C. Irwin & Co., at the time of the occurrences hereinafter set forth, was .composed of Joseph C. Irwin, James T. Thornton, and Ulysses Turner. Ulysses Turner died May 20,1879. The said firm was for many years engaged in freighting across the plains.
    II. In June, 1857, this firm made a contract with LiYingston, Kincaid & Co., merchants in Salt Lake City, to transport from Atchison, Kans., to Salt Lake City, 75 wagon loads of merchandise.
    III. Thereafter, and late in the summer of 1857, plaintiffs started their trains from Atchison, Kans., on the way to Salt Lake City, Utah. Progressing successfully upon their journey, the trains reached Rocky Ridge early in October in company with the trains of Charles A. Perry & Co. and R. H. and James Porter. .The animals were in good condition, and the trains were making from 18 to 20 miles per day. At this point they were met by United States troops, under command of Lieutenant-Colonel Smith, who ordered the trains to proceed no farther without his permission.
    IY. Lieutenant-Colonel Smith was under command of Colonel Albert Sidney Johnston. The latter, joining the former’s command a few days after the order recited in finding in, issued the following order:
    “ Head quae tees Aemy oe Utah,
    
      “ South Pass, October 19,1857.
    u Sir : The colonel commanding directs me to inform you, in reply to your letter of to-day, that no goods or supplies of any kind will be permitted to pass this army for Salt Labe City, or other points occupied by the Mormons, so long as they maintain a hostile attitude to the Government of the United States.
    “ I am, sir, very respectfully, your obedient servant,
    “F. J. Porter,
    “ Assistant Adjuta/nt-General.
    
    “ To J. 0. Irwin, Esq.”
    The trains of Irwin, Perry & Co. and of the Porters were together, and this letter was in reply to a request made in behalf of all the detained freighters and was regarded and treated as such a reply by all.
    V. October 24 the following order, intended to carry out the order of October 19, was promulgated:
    “ (1) The following will be the position of the trains during the march from this point (Kooky Kidge):
    1. Headquarters of the Army.
    2. Infantry battalion.
    ■ 3. Yolunteers.
    4. Squadron of dragoons.
    5. Supply train in charge of Mr. Rice.
    6. Supply train in charge of Mr. Goodwin.
    7. Supply train in charge of Mr. Harper.
    8. Supply train in charge of Mr. Shepard.
    9. Sutlers, Fifth Infantry.
    10. Sutlers, Tenth Infantry.
    11. Sutlers, Second Dragoons.
    . 12. Gilbert and Gerrisb.
    “ (2) On arriving in camp each train will be parked in the usual manner; the ox trains about 60 yards from each other— they forming the three or four sides of a rectangle — as may be convenient.
    “ (3) The following will be the disposition of. the troops during the march:
    The infantry guards in the rear of its train.
    The volunteers in the rear of its train.
    The dragoons in the rear of its train.
    Company D, Tenth Infanty, opposite supply train No. 2.
    Yolunteers opposite supply train No. 4.
    
      Company A, Tenth Infantry, opposite sutlers.
    Tenth Infantry.
    A non-commissioned officer and six privates will accompany each detachment of infantry.
    A like detail will serve as an escoríate the commanding officer.
    The remainder of the mounted force will march in front and intherearof the whole tram, the companies alternating.
    Companies A and D, Tenth Infantry, will also alternate in position.
    “ (4) In case of attack the teamsters are expected to stand to their wagons and use their fir-e-arms from them.
    “The commanders of detachments will act as the circumstances seem to call for, sending instant information to the commanding officer, who will be habitually in front, as well as to . the other commanders of detachments.
    “ By order of Brevet Colonel Smith:
    J. MoNab,
    “ First Lieutenant, Tenth Infantry, Acting Adjutant?
    
    Plaintiffs did not seek or desire military protection, and requested Colonel Johnston to be allowed to proceed on their journey, as they were not, in their opinion, in danger from the Mormons. This request was denied.
    VI. Plaintiffs were required by the commander to have their teams yoked and ready by 10 in the morning, and they often had to stand for many hours in consequence of delay in the general movement. The teams always got into camp late, and consequently were grazed at great disadvantage. They also were limited to a defined and contracted space assigned them, and were not permitted by the military authorities to go beyond this space. The animals belonging to the Army, heading the column, arrived first at camp and were posted on the best grass. As a necessary result freighters’ teams were insufficiently fed. If left free, sufficient grass could have been found by the freighters for their animals. Plaintiffs were forced against their desire to remain with the army column. They requested to be allowed to go in advance of the army, to winter at South Pass, or to return East, but their requests were denied, and from Kocky Bidge to Fort Bridger they were held under strict military control, and subject to Colonel Johnston’s orders. The trains were stopped by Colonel Johnston to prevent them and their lading from falling into the hands of the Mormons and thus aiding the enemy. For the same reason the trains were held in column until arrival at Fort Bridger. The purchase there of cattle and appropriation there made of plaintiffs’ property were necessary to supply the army.
    YII. Plaintiff’s anjmals were used to aid in hauling the Government wagons, and thus did extra work on insufficient food. Whether substantial injury was caused to the stock by this work, which was not extensive, which was apparently accidental, and which was incidental to the method of grazing, by which the herds became mixed together, is not proved; but it does appear that the principal and important cause of the loss and deterioration of stock were the fatigue caused by the slow movement of the column, the insufficient food resulting from the orders confining the teams to a very limited grazing area, and the orders which, by requiring plaintiffs’ trains to move with the Army column, necessarily impeded their progress and held them back until the bad weather set in. Had the trains been allowed either to proceed, or to return east, or to remain near Bocky Bidge, the loss would not have occurred.
    YIII. For the reason set forth in the preceding findings, plaintiffs’stock became greatly reduced in flesh, and many died from overwork, cold, and starvation. The Army was blocked by snow at Fort Bridger and wintered there. The wagons, with their outfit, were used by Colonel Johnston’s orders for various Army purposes; among them the following: The sheets were used for tents and covers for huts, the planks for tent floors, the wagon-wheel tires for horseshoes and door-hinges, and the running-gear for the hauling of wood. Plaintiffs were paid for the cattle living upon arrival of the column at Fort Bridger, and these cattle were used for beef. Plaintiffs were not paid for any animals that were lost to them while on the march, nor for any of the wagons and outfit used at Camp Bridger, nor for any deterioration in stock or extra expenses incident to the delay.
    IX. Plaintiffs’ trains were loaded with goods and merchandise notoriously intended for trade with the Mormon inhabitants of the Territory of Utah, who were then in avowed rebellion and in actual hostilities with the Government of the United States, but plaintiffs were ignorant of this state of affairs upon starting and until arrival at Bocky Bidge.
    X. E. H. and James Porter were also freighters, like plaintiffs; they also were detained at the same time, under the same circumstances as those hereinbefore set forth, and experienced identical treatment. An act for their relief is found in volume 24 of the Statutes at Large, at page 900.
    XI. Some of the trains containing supplies forthe Army had been destroyed by the Mormons, and plaintiffs’ wagons were loaded with supplies of the kind needed by the Army. On reaching Fort Bridger the supplies on these wagons were either taken by the Government or were sold by the owners to sutlers and others. No claim is made for these supplies.
    XII. By reason of the events hereinbefore described plaint-
    iffs suffered the following losses:
    Animals which died on tlie march.,. $12,318.00
    Wagons and outfit taken at Fort Bridger. 9,735.00
    Deterioration of cattle during march (these being the cattle aft-erwards sold to the Army, and this being the difference between their value at Rocky Ridge and their value on arrival
    at Fort Bridger, the deterioration being due to the events here-inbefore described). 3,627.00
    Extra wages paid employés by reason of delay caused by said events, including expense of provisioning them... , 10,962.50
    And in addition to the foregoing findings the court also found in the case of Perry et al.:
    
    I. In August, 1857, Charles A. Perry, Elias H. Perry, and John D. Harper were partners, doing a general merchandise business as such at Salt Lake City, Utah, under the firm-name of Charles A. Perry & Co.
    II. About the 13th August, 1857, this firm started three ox-trains — two of twenty wagons each, and one of eighteen wagons, with five wagons drawn by mules — from Fort Leavenworth, Kans., to Salt Lake City, Utah.
    *###*#*
    The trains of Irwin & Co., of Perry & Co., and of the Porters were together, and this letter was in reply to a request made in behalf of all the detained freighters, and was regarded and treated as such a reply by all.
    Y. October 24 the following order, intended to' carry out the order of October 19 (set forth in finding iy), was promulgated:
    “ (1) The following will be the position of the trains during the march from this point (Rocky Ridge):
    1. Headquarters of the Army.
    2. Infantry battalion.
    3. Volunteers.
    
      4. Squadron of dragoons.
    
      5. Supply train in charge of Mr. Rice.
    6. Supply train in charge of Mr. Goodwin.
    7. Supply train in charge of Mr. Harper.
    8. Supply train in charge of Mr. Shepherd.
    9. Sutlers, Fifth Infantry.
    10. Sutlers, Tenth Infantry.
    11. Sutlers, Second Dragoons.
    12. Gilbert and Gerrish.
    “ (2) On arriving in camp each train will be parked in the usual -manner, the ox-trains about 60 yards from each other— they forming the three or four sides of a rectangle, as may be convenient.
    “ (3) The following will be the disposition of the troops during the march:
    The infantry guards in rear of its train.
    The volunteers in rear of its train.
    The dragoons in rear of its train.
    Company D, Tenth Infantry, opposite supply train No. 2.
    Yolunteers opposite supply train No. 4.
    Company A, Tenth Infantry, opposite sutlers.
    Tenth Infantry.
    A non-commissioned officer and six privates will accompany each detachment of infantry.
    A like detail will serve as an escort to the commanding officer.
    The remainder of the mounted force will march in front and in the rear of the whole train, the companies alternating.
    Companies A and D, Tenth Infantry, will also alternate in position.
    “ (4) In case of attack the teamsters are expected to stand to their wagons and use their ñre-arms from them.
    “ The commanders of detachments will act as the circumstances seem to call for, sending instant information to the commanding officer, who will be habitually in front, as well as to the other commanders of detachments.
    “ By order of Brevet Colonel Smith :
    “J. McNab,
    
      a First Lieutenant, Tenth Infantry, Acting Adjutant.”
    YI. Plaintiffs were required to have their teams yoked and ready by 10 in the morning, and they often had to stand for many hours in consequence of delay in the general movement. The teams always got into camp late, and consequently were grazed at great disadvantage. They also were limited to a-confined and contracted space assigned them, and were not permitted by the military authorities to go beyond this space. The animals belonging to the Army heading the column, arrived first at camp and were posted on the best grass. As a necessary result freighters’ teams were insufficiently fed. If left free, sufficient grass could have been found by the freighters for their animals. Plaintiffs were forced against their desire to remain with the Army column. They requested to be allowed to go in advance of the Army, to winter at South Pass or to return east; but their requests were denied, and from Eocky Eidge to Fort Bridger they were held under strict military control and subject to Colonel Johnston’s orders. The trains were stopped by Colonel Johnston to prevent them and their lading from falling into the hands of the Mormons, and thus aiding the enemy. For the same reason the trains were held in column until arrival at Fort Bridger. The purchase there of cattle and appropriation there made of plaintiffs’ property were necessary to supply the Army.
    VII. Plaintiffs’ animals were used to aid in hauling the Government wagons, and thus did extra work on insufficient food. Whether substantial injury was caused to the stock by this work, which was not extensive, which was apparently accidental, and which was incidental to the method of grazing, by which the herds became mixed together, is not proved; but it does appear that the principal and important cause of the loss and deterioration of stock were the fatigue caused by the slow movement of the column, the insufficient food resulting from the orders confining the teams to a very limited grazing area, and the orders which, by requiring plaintiffs’ teams to move with the Army column, necessarily impeded their progress and held them back until the bad weather set in. Had the trains been allowed either to proceed or to return east, or to remain near Eocky Eidge, the loss would not have occurred.
    VIII. For the reasons set forth in the preceding findings plaintiffs’ stock became greatly reduced in flesh, and many died from overwork, cold, and starvation, and many wagons were necessarily abandoned on the road. The Army was blocked by snow at Fort Bridger and wintered there. The wagons with their outfit were used by Colonel Johnston’s orders for various Army purposes, among the following: The sheets were used for tents and covers for huts, the planks for tent floors and doors, the wagon-wheel tires for horseshoes and door-hinges, and the running-gear for the hauling of wood. Plaintiffs were paid full value for the cattle living upon arrival of the column at Fort Bridger, and these cattle were used for beef. Plaintiffs were not paid for any animals that were lost to them while on the march, nor for any of the wagons and outfit used at Camp Bridger or lost while the trains were under Colonel Johnston’s orders, nor for “any extra expenses incident to the delay.
    IX. Plaintiff's’ trains were loaded with goods and merchandise notoriously intended for trade with the Mormon inhabitants of the Territory of Utah, who were then in avowed rebellion and in actual hostilities with the Government of the United States, but plaintiffs were ignorant of this state of affairs upon starting and until arrival at Booty Bidge.
    X. B. H. and James Porter were also freighters, like plaintiffs ; they also were detained at the same time, under the same circumstances as those hereinbefore set forth, and experienced identical treatment. An act for their relief is found in volume 24 of the Statutes at Large, at page 900.
    XI. Some of the trains containing supplies for the Army had been destroyed by the Mormons, and plaintiffs’ wagons were loaded with supplies of the kind needed by the Army. On reachingFort Bridger the supplies on these wagons were either taken by the Government or were sold by the owners to sutlers and others. No claim is made for these supplies.
    XII. By reason of the events hereinbefore described plaintiff
    suffered the following losses:
    Animals winch died on the march . $40,880
    Wagons and outfit taken at Fort Bridger. 5,320
    Extra wages and expenses on account of emifioyés made necessary ky reason of delay caused by the events aforesaid. 3,000
    
      Mr. William E. Earle for the claimants.
    
      Mr. Assistant Attorney-General Howard for the defendants.
   Davis, J.,

delivered the opinion of the court:

These cases were tried during the last term; judgments were entered in favor of plaintiffs and appeals were taken to the Supreme Court. That court, affirming the decision of this court upon the other points of law discussed, reverse the cases and send them back for the reason:

“As it appears from the findings of the Court of Claims that plaintiffs’ animals were often used to aid in hauling Government trains, and thus did extra work on insufficient food,’ there is perhaps ground for a recovery to some extent under the terms of the act for property taken and impressed into the service of the United States, but we are unable from the findings to determine the amount properly allowable on that account. It becomes necessary, therefore, to reverse the judgments in both cases, and remand them to the Court of Claims for more definite and specific findings; and inasmuch as we have determined that the facts as found by the Court of Claims in the present record do not enable us to determine what property of the plaintiffs was taken and impressed into the service of the United States by Colonel Johnston the cases may be opened for further proofs oh that point. The judgments are therefore reversed, and the causes remanded to the Court of Claims for further proceedings in accordance with this opinion.” (127 U. S. R., 125.)

The order of the Supreme Court has been complied with; the cases have been again tried, and the findings made more explicit and full as to the property “ taken and impressed into the service of the United States.” The act of Congress sending these cases here also embraces “ property alleged to have been sold to the Government,” but it is not contended that any of the property (the subject of this litigation) was sold to the Government.

It appears from the findings that plaintiffs were not only prevented from proceeding to their destination but were not allowed to leave the Army column. They desired to remain at South Pass, or to return east, or to diverge from the line of march to obtain better pasturage for tbeir animals, but were refused all liberty of action and were strictly held to the military column.

This action of Colonel Johnston appears to have been a reasonable and prop'er exercise of military authority; by it he obtained control of the trains which might have fallen into the hands of the Mormons if they had been allowed to quit the column, and held at hand stores which might become necessary to him, and which, in fact, after his arrival at Fort Bridger, he used.

■ “ It by no means follows from that alone,” say the Supreme Court,” that their [the plaintiffs’] property was taken and impressed into the service of the United States in the sense of the act of Congress of July 8, 1886. * * * To require the plaintiffs’ trains to remain with the military force, in order to insure the success of the expedition by preventing the enemy from obtaining information and supplies, can not be construed as a seizure and impressment of their property into the public service.”

The primary object of stopping the trains was to prevent their falling into the hands of the Mormons. Probably Colonel Johnston feared that, even if left at Eocky Eidge or South Pass, or allowed to return east, or to wander from the protecting military column, these trains might have suffered the fate of other trains, and have been confiscated or destroyed by the Mormons. It was a great hardship to the freighters to be detained as they were, and their severe losses are directly attributable to the military control. On the other hand, Colonel Johnston exercised with reasonable discretion a power properly lodged in him as commander of a military expedition opposed by a hostile force. One of his most important duties was to prevent the supplies and information from reaching his enemy. An exercise of this power alone is not a seizure or im-pressment into the service of the United States, and for the losses resulting therefrom there can be no recovery in law, however great the suffering of the innocent individual.

On the road to Fort Bridger, and owing to the military control, the freighter»’ stock suffered greatly and many died, overcome by cold, by fatigue, and by insufficient food. This loss would not have occurred had the trains been allowed to proceed to their destination, to return east, or to remain in camp in the neighborhood where they were found by Colonel John: ston’s column. Separated from the Army column, free to move as they liked, to seek shelter and to graze upon a larger area, the stock could have been kept substantially unimpaired in number and strength.

As to this loss, the Supreme Court have said :

“Even if it be a just inference of fact that the plaintiff's were under compulsion in keeping with the column of Colonel Johnston, it by no means follows from that alone that their property was taken and impressed into the service of the United States in the sense of the act of Congress of July 8, 1886. However proper it might have been for the legislature to have provided indemnity for the losses occurring by reason simply of the detention thus occasioned, we can not think it was the intention of the act to go beyond the payment for property actually used and employed by the Government in its .service. To require the plaintiffs’ trains to remain with the military force, in order to insure the success of the expedition, by preventing the enemy from obtaining information and supplies, can not be construed as a seizure and impressment of their property into the public service.”

There does not appear to have been any appropriation of plaintiffs’ property until arrival at Fort Bridger. Their cattle were occasionally yoked to the Government wagons, but this use of them seems to have been accidental and incidental to a mixture of the herds in grazing; nor is it shown to have had any material effect upon the result. The direct causes of the losses on the road were the hardships incident to the military order, the delay and march in column under strict discipline. This fatigued the cattle, delayed the trains until cold weather set in, deprived the animals of shelter and of sufficient food.

Under the rule prescribed by the Supreme Court, which we have already quoted, there was no “seizure” or “impressment’^ of these trains within the meaning of the act of Congress prior to the arrival of the column at Fort Bridger, and the plaintiffs therefore can not recover for the losses sustained by them on the road to that fort from Rooky Ridge. There can, then, be no allowance for stock lost on the march, for wagons abandoned on the road, for deterioration of stock due to the hardships of the march, or for extra expense occasioned by delay. All these items of loss arose from the order forcing the trains into column, an order intended to prevent the Mormons from receiving information or supplies, and were not caused by anything which occurred at Fort Bridger.

After arrival at Fort Bridger the commissary bought plaintiffs’ cattle, paying to the Perrys the full value thereof, but paying the Irwins less than their value, because of deterioration on the march.

The Army also appropriated plaintiffs’ wagons with their outfits, and put them to Army use; this was a “seizure or im-pressment” within the meaning of the statute, and for this plaintiffs may recover.

Judgment for J. C. Irwin & Co. in the sum of $9,735.

Judgment for Charles A. Perry & Co. in the sum of $5,320.  