
    JOHN W. SMITH v. THE UNITED STATES.
    [No. 18793.
    Decided April 5, 1897.]
    
      On the Proofs. ■
    
    Congress authorize the District of Columbia to condemn a sufficient amount of ground at the intersection of certain designated streets for a reservation to he called Hancock Circle, with a proviso that “ said ground be acquired, or the cost of the same be defrayed, otherwise than at public expense.” A Becond statute provides that the circle he transferred to another place, “the location and dimensions of the said circle to be as shoxon on a map on file." A third statute authorizes the authorities to omit the circle from plans being prepared for the extension of streets. Nothing has been done by the Commissioners of the District to transfer the circle or locate it at the place specified by the second statute. The claimant owns property there within the maps on file spoken of in the second statute.
    I.The Act 5th August, JS92 (27 Stat. L., 367), which provides that Hancock Circle be “transferred to and located at or near the intersection of Sixteenth street extended and Morris street, the location and dimensions of the said circle to be as shoxon on a map on file in the office of the Commissioners,” did not operate as an appropriation of land so as to give an owner the right to compensation in the form of a judgment.
    II.The fifth amendment did not originate the right of eminent domain in the Federal Government, but simply recognized it as a prerogative incident to sovereignty, to be exercised only upon the condition that compensation be made to the owner.
    III. The doctrine is firmly established that where the Government takes private property, conceding it to be such, an action will lie to recover the value.
    IV. There may be a taking in law where the possession of the res is unaffected and no invasion is made upon the physical enjoyment of the owner.
    Y. The taking to be binding upon the Government must be by an authorized agent, and may be by the legislature.
    
      VI. Where the taking of property is hy legislative act without ascertainment of value, it is an exception to the general policy of such legislation, and the intent to appropriate and take by force of the statute alone must clearly appear.
    VII. The acts relating to the Hancock Circle are repugnant to each other only as regards the location of the circle.
    
      The Reporters’ statement of the case :
    The following are the facts of the case as found by the court:
    I. On August 5, 1892, the claimant was the owner in fee simple of lot No. 39, in W. Biley Deeble’s recorded subdivision of Meridian Hill, in the District of Columbia.
    II. The map, a blue print, which appears as Exhibit A in this case, is a copy of the map referred to in the following pro-' vision of the Sundry Civil Act of August 5,1892:
    “That the circle at the intersection of Sixteenth street and New Hampshire avenue, known as Hancock Circle, be, and the same is hereby, transferred to and located at or near the intersection of Sixteenth street extended and Morris street; the location and dimensions of the said circle.to be as shown on a map on file in the office of the Commissioners of the District of Columbia.”
    The map, of which Exhibit A is a copy, was on file in the office of the Commissioners of the District of Columbia on the 5th day of August, 1892.
    III. The circle on said map overlapped said lot 39 to the extent of 3,584.4 square feet.
    IV. The said circle, as located by said law and map, was on a 6 per cent grade, ascending from Florida avenue to Morris street. Thereafter the defendants, through the Commissioners for the District of Columbia, excavated and lowered the street in front of said lot to the extent of 8.97 feet below said. 6 per cent grade.
    V. On January 30,1895, the claimant notified the Attorney - General that the claimant assented to the taking of his' land, waived prepayment as a condition thereto, and offered to make to defendants a deed for the land to the extent so taken, as shown by the following letter:
    “Washing-ton, D. C., Jan. 30, 1895.
    
    “Hon. Bichard Olney,
    
      “Attorney-General of the United States.
    
    “Sib: Please take notice that I, as the owner of lot 39 of Deeble’s subdivision of lots in block 6 of Hall and Elvins’ subdivision of Meridian Hill, in the District of Columbia, from wbicb lot about 3,500 square feet was taken by Hancock Circle, as located by act of August 5th, 1892, hereby assent to said taking, waive payment as a condition thereto, oifer to make to the exproprietor a good and sufficient deed to the ground so taken, and shall bring suit in the Court of Claims for the value of said ground.
    “ Yery respectfully, “J. W. Smith.”
    VI. The Commissioners have never taken any action under the act of Congress by way of the location of a circle, nor by entering upon any of the property for the purpose of staking out the circle, or in any wise taking or appropriating any land of said claimant by any entry thereon. The possession of said land by claimant has not been interfered with in any way by the Commissioners of the District of Columbia, or by any person by their authority. The land of claimant within said circle was, on the 5th of August, 1892, worth the sum of-dollars.
    Upon the foregoing findings the court decides, as a conclusion of law, that the petition be dismissed.
    
      Claimant in pro per.
    
    There is at least one point in this matter at which moral and municipal law meet and agree. It is this, that whatever be the point deemed a taking, it be correlative and coincident, binding alike on both parties, giving reciprocal rights to the one to exact the property and to the other to exact its then value, regardless of future ups or downs of the market, or of accidents, or discoveries respecting the property. The golden rule is not more clearly right than this; it is primary and must serve as a guide in exploring this question. It is not so important which milestone be selected to mark the taking as that a selection be made, so that the exact point of exchange of right to property for right to compensation be made certain and indisputable.
    Itarely, now, is this question of the point of taking left to the uncertainty in which the Federal Constitution leaves it. That uncertainty was prolific of litigation; and it has long been customary for the statute, the corporation charter, or the State constitution to more definitely specify what point or stage shall be deemed a taking, a point to be kept in mind in reading the cases, and especially the text-books. Sometimes Congress adopts State laws as part of the process, sometime its confides to executive or judicial officers whether or what to take, and sometimes it makes what would otherwise be an absolute — a conditional taking. Of the latter class was the Eock Creek Park Case, wherein the finality of the map as a taking was conditioned by section 1 of the act upon the mapped lands costing not over $1,200,000. So, too, in the Pittsburg Case the law used words that postponed the right to claim pay, and consequently the correlative effect of the map as a taking, until the streets should be actually opened. The public could not have the street and the owner not have his right to compensation. Of the former class was the Oregon Case, wherein both the Federal statute and the State law to which the proceedings were subjected denied validity to the taking till payment was made.
    Oases arising under such statutes and constitutions are not, of course, precedents. Here the taking, if any, was unconditional, direct, and immediate, and it was accepted and ratified by the landowner, as was not done in either of defendant’s citations.
    In Massachusetts, where the question has been probably more often and more analytically considered than in any other State, the ruling has become a maxim that “the filing of the location is the act of taking the land.” (Charleston Br. B. B. v. Middlesex, 7 Met., 78.)
    “The effect of the location is to bind the land to that servitude and to conclude the landowner and all parties having-derivative interests in it from denying the title of the company to their easement in it. We think, therefore, that the filing of the location is the taking of the land. It is upon that act that the owner is forthwith entitled to compensation; it is that act which gives the easement to the corporation and the right to have damages to the owner of the land.” (Boston and Prov. B. B. v. Midland B. B., 1 Gray, 359; Beed v. Éanover Br. B. B., 105 Mass., 303; Kidder v. Oxford, 116 Mass., 165; Beto ton v. Perry, 163 Mass., 319; Boynton v. Peterboro and 8. By., 4 Cush., 467.)
    Whether the taking be by means of a map already made and filed or by means of one to be made and filed has no bearing, of course, except on the date of the taking. (Parles v. Boston, 15 Pick., 198.)
    To the same effect is Old Colony B. B. v. Miller (125 Mass., 1).
    The power of eminent domain is a sword that, it is true, is suspended always over every article of property, but between that power and the exercise of it, as stated in the foregoing-case, by its rightful depositary, lies the very difference to which the constitutional guaranty of compensation is annexed. (Hazen v. Boston and Me. It. B,., 2d Gray, 574.)
    And where entry was made and construction begun in August, 1873, but the locating map was not filed till March, 1874, the latter date, rather than the former, was held to be the time of taking and for computing value and interest. (Hamp-den Paint Go., &c., v. Springfield, c6c., 124 Mass., 118; citing: Meacham v. Fitchburg B. B., 4 Cash, 291; Dickerson v. Fitch-burg B. B., 13 Gray, 546; Whitman v. Boston and Me. B. B., 7 Allen, 313; Ham v. Salem, 100 Mass., 350; Wiggs et al. v. Gape God Ship Canal Go., 137 Mass., 71; Broclo v. Old Colony B. B., 146 Mass., 194.)
    The case of Fdmunds v. Boston (108 Mass., 535) is in principle very like the one at bar.
    That is, on December 8, 1868, the city took the status of landlord to the tenants, crediting them with the then value of their losses and charging them for subsequent occupation. (Brock v. Old Colony B. B., 146 Mass., 194.)
    Whether the option to say whether there shall be a taking be retained by the exproprietor or conceded to the landowner, the definite expression of that option is a taking. Where the law gave the landowner the option to fill his land to abate a nuisance or to yield the land to the State under eminent domain, the State thereupon to file a declaration of the taking, it was held that the taking dated from the landowner’s notice that he yielded. (Bancroft v. Cambridge, 126 Mass., 138.)
    “Property may be taken in point of law without being actually reduced to useful possession.” (Eandolph, Em. Dom., 177.)
    “Any permanent change in title or an incumbrance on property, * * * any proceeding the effect of which is to vest in the public the right of using the property, constitutes a taking within the constitutional provisions.” (Mills Em. Dom., §§30, 36a.)
    “In those States in which it is held that compensation need not precede or be concurrent with the taking, the time of the taking is usually fixed upon as the date for estimating the damages. In those States the title is held to vest upon filing a certain instrument of location or appropriation, and the compensation is permitted to be adjusted afterwards. The title would probably be held to vest upon condition of making compensation, and when made the title would be perfect from the date of the appropriation. Whenever the compensation is estimated, therefore, it should be estimated as of this date. (Lewis Em. Dom., §§ 477, 499, 663; Hampton v. Coffin, 4 N. H., 517; Davis v. Bussell, 47 Me., 443; Shannahan v. Waterbury, 63 Conn., 420.)
    “It is true that property owners are not absolutely divested of the fee until the confirmation of the assessment under proceedings to acquire title, but the real taking was none the less upon the filing of the map. The hand of the law was then placed upon the property. From that moment it was impounded for the public use. The owner might, of course, use the property until formally divested of his title, but he could make no improvements for which compensation would be afforded, and even his use would have been hampered by the uncertainty as to the actual moment of dispossession.” (Matter of Munson, 29 Hun., 325.)
    The essential steps in eminent domain proceedings are set out in Williamsport, &c., R. R. v. Fhila., &c., B. B. (141 Pa. St., 407).
    So the act of 1892 “makes what was before experimental and open,” the plan the Commissioners had prepared for this circle, “a fixed and definite location. It fastens a servitude upon the property affected thereby, and so takes from the owner and appropriates.”
    It is to be noticed that neither entry into permanent possession nor assessment or payment of the value of the property is prescribed by the above case as essential to a valid taking. The case does say that “as against him (the landowner) the corporation can acquire only conditional title by its act of location, which ripens into an absolute one upon making compensation.” That is, the property is his henceforth as a security only, in the nature of a mortgage or vendor’s lien. His status henceforth is that of a vendor’s under an executory contract for sale; and to this effect are many of the adjudications. (Mills Em. Dom., §137; Randolph Em. Dom., §385; Adams v. St. Johnsbury, 57 Yt., 240; Lycoming Cas Go. v. Mayer, 99 Pa., 615; Biwell v. Bastern By., 124 Mass., 160; Manchester B. B. v. Keane, 62 N. H., 47; People v. Westchester, 4 Barb., 64; Gaslight Co. v. Syracuse, 78 N Y., 57.)
    In Smedley v. Irwin (51 Pa. St., 450) city commissioners were directed, within thirty days, to open a street within specified metes and bounds. Attempting to do this after the thirty days they were sought to be enjoined. Strong, J., held:
    “It (the law), therefore, in effect appropriates the land for the street by its own force, and the direction respecting the time and agency for opening it are but incidents to the main purpose.” ( West et al. v. Blalce, 4 Blackf., 234.)
    Acts declaring nonnavigable rivers henceforth navigable, stopping the collection of tolls on turnpikes, appropriating to exclusive sovereign use a patent for an invention are samples of takings without any possessory act.
    A corporation wants B’s property for its uses. The two may agree that the property be yielded up, the value to be arbitrated. The proceeding is wholly consensual, and all resulting-questions are tested by the law of contract.
    Now, substitute compulsory yielding and arbitration and the case becomes an exercise of eminent domain on the corporation’s part. There is public necessity for the compulsory yielding and arbitration. But what necessity can there be for projecting the arbitrary feature further into the proceeding? So hostile is the spirit of our laws to arbitrary power that the right to take by eminent domain is usually made to await the failure of an effort to buy.
    Again, A personates B, and in B’s name deeds the latter’s property to A, to himself. Nothing passes; the deed is a nullity. Why? Because B was wholly without power to make it. But the sovereign is not wholly without power to take B’s property to itself, and if its statutory declaration that it has done so is not a taking till followed by possession, ox-payment, then the burden is cast on B, whenever his chain of title comes in question, to prove two negatives — nonpayment and no possessory act on the sovereign’s part.
    In Oherolcee Nation v. Kansas By. (135 U. S., 642), and again in Sweet v. Bechel (159 U. S., 380), the Supreme Court applied to the Federal Constitution the construction expressed in Kennedy v. Indianapolis (103 U. S., 599):
    “On principle and authority the rule is, under such a constitution as that of Indiana, that the right to enter on and use the property is complete as soon as the property is actually appropriated under authority of law for a public use, but the title does not pass from the owner without his consent until just compensation has been made to him.” .
    That is, the right to enter precedes the entry. The entry spoken of was not the temporary entry to survey and explore and otherwise acquire the information necessary to decide wisely whether to take or not, but the permanent entry and use ultimately desired. In tbe Cherokee Case the defendant had entered and was building its railway before payment and pending an appeal from the award, and it was held that such entry and use were lawful under the Federal Constitution.
    And .this rule is general wherever the constitution is like that of the United States. (Tiedeman’s Laws of Police Power, 421 and citations.)
    The lawfulness of such entry and use must have been predicated on the fact that such entry, or something prior to such entry, was a taking.
    In The Great Falls Mfg. Case (112 U. S., 645, and 124 U. S., 581) it is questionable if the decision did not go to the extent that title*, actually passed prior to payment; surely all that made title of any virtue or value was held to have passed.
    In Sweet v. Rechel, above, the court went to the full extent of holding that title might pass prior to payment or tender.
    The general rule unquestionably is, wherever the question is left to constitutions and statutes like those that control this case, that the taker may enter, for the permanent use, before the finding or payment of the compensation, but that formal title does not pass till payment if the taker be a corporation.
    But what are the muniments, powers, and virtues of such title as remains to the owner whose property may be thus entered upon? If the entry be lawful, it can not be enjoined, especially if the owner has a remedy at law, nor will trespass lie, especially if the owner assent to the taking (Mills Em. Dorn., §§ 140-142), or if the sovereign choose to defer taking possession.
    
      u If the company is not a trespasser and can not be ousted by ejectment and an injunction would not issue, it has a right of property as well as a license. Its title would be complete and perfect on the payment of compensation when ascertained.” (W. P. R. R. v. B. & M. R. R., 2 McCrary, 203.)
    In other words, its status, as before stated, is that of vendee under a contract for sale, except that it needs no deed or decree, its title resting on taking and payment, both nonjudicial acts.
    The Great Falls Manufacturing Case implied that the Government might take by force of words alone. It gave the owners one year in which to sue for compensation. One year from when 1 From the time the Attorney-General should proclaim that the lands had been taken; and this without regard to when, or whether ever, the Government might take possession. It might not have taken possession till the year had expired. It was there urged by the landowners that their Compensation had not been paid, or tendered, or secured, or even appropriated for. But the court held that this Govern, ment must be deemed incapable of bad faith, and that it could, therefore, take on credit; and that the owners, for compensation, must be contented with a Government claim — a secured claim, possibly, in that case, as the property was land; but had it been personalty, like fuel or provender, consumable in the use, then a naked claim like any other.
    The privilege to enter and survey and to have the compensation computed before deciding to take or not, are provisions for the expropriator’s protection, just as the guaranty of compensation is for the landowner’s protection. Both may be waived, and this waiver may be by word or act. If, thus waiving these privileges, the expropriator take permanent possession, or file of record his declaration that he has taken, he should be concluded by such waiver as fully as the landowner would be by a waiver of prepayment. So long as the landowner resists the taking, such resistance may operate as assent to discontinuance, but when he adopts and ratifies the taking the case presents other questions. (Mills Em. Dom., §§ 140-142; Davis v.-San Lorenzo B. I?., 47 Cal., 517; Sanborne v. JBel-den, 51 Cal., 266.)
    In Davis v. San Lorenzo B. B. (47 Cal., 517), where otherwise there would have been no taking till compensation assessed and paid, the defendant, by consent of court, entered into permanent possession, and this was held to be a taking. It was a taking or it was a trespass, and those cases that hold such entry not to be trespass, but to be lawful and constitutional, must proceed on the theory that the privilege to defer taking till compensation is assessed is one that the expropriator may waive by act; and if by act, why not by word as well? {Sanborne v. JBelden, 51 Cal., 266; San Mateo Water Go. v. Sharpstein, 50 Cal., 284.)
    In Cohen v. St. Louis, Ft. S. & W. B. B. (34 Kans., 158) it was held that where the railroad company entered and constructed without the landowner’s consent and without condemnation proceedings the owner had his election to bring trespass or to affirm the taking and sue for value of the property. Said the court:
    “He had his election, but he did not choose to treat the railroad company as a trespasser, but elected to ratify and confirm the railroad company’s selection of his land for a permanent right of way, and simply brought this action to recover such compensation or damages as he would recover in an ordinary condemnation proceeding.” (0., B. & U. P. R. R. v. in-times, 26 Nans., 711; N. P. R. R. Go. v. B. <& M.R. R. Go., 2 McCrary,.203; Drath v. B. & M. R. R. Go., 15 Nebr., 367; Pou-lard v. St. Louis, 36 Mo., 546; Witt v. St. Paul and W. Ry., 35 Minn., 407.)
    From the foregoing authorities, and for cases affected only by the Federal or like constitutions, these conclusions may be drawn:
    1. That the taking is the point beyond which neither party may recede without the consent of the other.
    2. That till the compensation is found the expropriator need not decide whether to take or not; on the other hand, he may waive that privilege and conclude the taking at an earlier stage.
    3. That the taking may precede the assessment or payment of compensation or the vesting of title.
    4. That real property consists of rights or dominion over the subject of property.
    5. That anything done on the part of the sovereign in lawful exercise of the eminent-domain power that subtracts from such dominion or rights takes the property pro tanto.
    6. That it is the right to use or possess, not actual use or possession, that is to be paid for.
    
      Mr. George IT. Gorman (with whom was Mr. Assistant Attorney-General Podge) for the defendants:
    Any act (not tortious) on the part of the United States whereby the claimant is deprived of his land or of its beneficial use or enjoyment, or whereby its value is impaired as the direct and proximate result of such act, is a taking, within the meaning of the Constitution, for which the claimant may recover. But this is the utmost limit of the doctrine, beyond which no court has ever gone, but, on the contrary, has refused to go. (Chicago v. Taylor, 125 U. S., 161.)
    The court also held that this view was not in conflict with the doctrine announced in Pompelly v. Green Bay Company (13 Wall., 166).
    
      The question, presented in this contention of the claimant was passed upon by Judge Deady, in the Circuit Court for the district of Oregon, in 1883. (United States v. Oregon Bailway and Navigation Company, 16 Fed. Rep., 524.)
    The question as to the finality of location described in the map and the consequent specific taking resultant upon such definite location were, for all practical purposes, passed upon by the Supreme Court in the Rock Creek Park Condemnation Case. (Shoemaker v. United States, 147 U. S., 282-308, 320.)
    Such a contention, of course, could only have been made upon the theory that the act of Congress itself was the “ taking” of certain specifically designated land, in the map set forth and described, which is the identical doctrine here invoked; and the denial of such a doctrine by the Supreme Court is a complete answer to the contention here. (State v. Hudson Land Company, 35 N. J. Law, 47-53; Ciarle v. City of JSlizabeth, 37 N. J. Law, 120-126; District v. -City of Pittsburg, 2 W. and S., 320; Rogers v. Bradshaw, 20 Johns, 735; Musloio v. Gifford, 6 Cushing, 327.)
    The most liberal modern doctrine on this subject — I say umodern” because the doctrine does not seem to be more than thirty years old (see Lewis on Eminent Domain, § 57) — is to regard property as consisting not of tangible things themselves, but of certain rights in and appurtenant to these things, from which it follows that when a person is deprived of any of those rights he is to that extent deprived of his property, and hence that his property may be u taken” in the constitutional sense, though his title and possession remains undisturbed; and the general proposition is sometimes laid down, based upon this conception of the nature of property itself, that whenever the lawful rights of an individual to the possession, use, or enjoyment of his land are in any degree abridged or destroyed by reason of, the exercise of the power of eminent domain his property is taken pro tanto. The leading cases and best examples of this rule are to be found in Baton v. Railroad, 51 N. H., 504 (1872), subsequently reaffirmed in a very elaborate opinion by the same cou*rt (1874) in Thompson v. Improvement Company, 54 N. H., 545, and in Pumpelly v. Green Bay Company, 13 Wall., 166.
    But under these doctrines, it will be observed, no recovery can be had for damages to property, no part of which is taken, unless such, damages result from a violation of some one or more of the rights which constitute property. In other words, the damage must be an actionable damage — such a damage as would be remediable if done by an individual without any pretense of statutory authority.
   "Weldon, J.,

delivered the opinion of the court:

On the 5th day of August, 1892, the claimant was the owner in fee of lot 39, in the city of Washington, on Meridian Hill, at or near the intersection of Sixteenth street extended and Morris street in said city.

In the Act of August 5,1892 (27 Stat. L., 367), making appropriation for sundry civil expenses of the Government, there is the following provision:

“That the circle at the intersection of Sixteenth street and New Hampshire avenue, known as Hancock Circle, be, and the same is, transferred to and located at or near the intersection of Sixteenth street extended and Morris street; the location and dimensions of the said circle to be as shown on a map on file in the office of the Commissioners of the District of Columbia.”

In the Act of March 2,1895 (28 Stat. L., 750), it is provided that the authorities in charge of preparing plans for the extension of streets are authorized to omit the circle hitherto required to be located at or near Morris street.

The act by which Hancock Circle was originally provided for is found in 25 Stat. L., 798, and reads as follows:

“ Condemnation of streets, roads, and alleys: For condemnation of streets, roads, and alleys, five thousand dollars. And the Commissioners of the District of Columbia are authorized and directed to condemn a sufficient amount of ground at the intersection of Sixteenth and U streets and New Hampshire avenue, from squares one hundred and seventy-five, one hundred and seventy-six, north, one hundred and seventy-seven, one hundred and eighty-nine, and one hundred and ninety, for the purpose of constructing a circular reservation, the same to be called Hancock Circle: Provided, That the said ground be acquired, or the cost of the same be defrayed, otherwise than at public expense.”

The findings show that from and after the passage of the act of August 5,1892, nothing was done on the part of the Commissioners to institute proceedings of any kind to transfer or locate a circle at the intersection of the continuation of Sixteenth street and Morris street; no surveys were made after said date, and the close of the claimant was not broken by the entry of the Commissioners or their agents in the prosecution of the plan or purpose of the act of August 5,1892.

In the proposed transfer of Hancock Circle from the original location to the crossing of Sixteenth and Morris streets the claimant acquiesced, as is shown by his letter of January 30, 1895, to the Attorney-General, in which he waives payment as a condition precedent, and offers to make a deed to the “expropriator” for the land within the circle, as indicated on the map on file in the office of the Commissioners. In the communication to the Attorney-General the claimant avows his purpose of bringing suit in the Court of Claims, which he has done by the present proceeding, thereby acquiescing in the alleged taking of his property by the act of Congress.

The claimant avers in his amended petition, in substance, that the defendants, in the exercise of the right of eminent domain and by force and means of the statute, took for the use of the public 3,584 square feet of said lot, thereby impliedly agreeing to pay claimant a just compensation, to wit, the sum of $5,000.

This, then, becomes a proceeding on the part of the claimant to recover the value of property alleged to have been taken by the defendants for the public use, and for which no compensation has been made.

The defendants deny the taking in law and fact, and the question presented for determination is: Did the passage of the act of August 5,1892, operate in law as an appropriation of land, so as to give the right of compensation to the claimant in the form of a judgment in this case?

The last clause of the fifth amendment to the Constitution provides, “nor shall private property be taken for public use without just.compensation.” That is the constitutional recognition of the right of eminent domain; and while the right is fully recognized, it is limited and qualified by the provision that it shall not be fully exercised “ without just compensation ” to the owner.

That provision of the Constitution did not originate the right in the Federal Government, but simply recognized it as a prerogative incident to sovereignty, to be exercised upon the part of the Government upon the condition that compensation should be made to the owner. It is one of the remarkable facts of our constitutional history that many of' the more important safeguards of person and property are embodied in the amendments to the Constitution, and do not form any part of the original instrument. As is said in the case of Merrimam, v. The United States (29 C. Cls. R., 257)—

“ The right of eminent domain is not inherent in the Government because of any provision of constitutional recognition, but.is an essential element in the essence of sovereignty, and the only recognition of it in the American Constitution is the limitation on its exercise as provided by the fifth amendment.”

The right of the plaintiff to recover depends upon the verity of allegation of the petition that “the defendants, in the exercise of the right of eminent domain, by force and means of the statute, took for the use of the public” property of the claimant.

If that allegation is sustained by the facts the right of the claimant to recover the value of the property so taken is clear and unquestionable. The Supreme Court and this court in many cases have adjudged a right of recovery whenever private property has been taken for public use in the exercise of the right and power of eminent domain. (The United States v. Great Falls, 112 U. S., 645; Same, 16 C. Cls. R., 160; Shillinger’s Case, 24 C. Cls. R., 278; Merriman’s Case, 29 C. Cls. R., 250; Gibson’s Case, 29 C. Cls. R., 18; Berdan’s Case, 26 C. Cls. R., 48.)

From these and other cases which plight be cited the doctrine is firmly established that where the United States take private property, conceding it to be such at the time of appropriation, an action will lie in this court to recover the value of the property so taken.

In one of the latest cases involving the question of the jurisdiction of the Circuit Court under the Act of March 3, 1887 (24 Stat. L., 505), it was held by a divided court that where property is taken by the United States without an acknowledgment of the claimant’s right of property the case sounds in tort. (Hill v. United States, U. S., 149, 593.)

In this case there is no claim made upon the part of the defendants that the land in question belonged to the United States; and the law, whatever other effect it had, clearly indicated a purpose to take private property for public use.

The issue, therefore, resolves itself into the inquiry, Has there been a taking of private property by the defendants within the meaning of the Constitution and law? If so, the plaintiff is entitled to recover, and if not, tbe petition should be dismissed.

Tbe usual and ordinary form of taking is by an actual appropriation of tbe property, by taking physical possession of it and ousting tbe owner from tbe enjoyment and use of it; but there may be a taking in law where tbe possession of tbe res is unaffected and no invasion is made upon tbe physical enjoyment of tbe owner. . “ Property may bo taken in point of law without being actually reduced to useful possession.” (Randolph Em. Dom., 171.)

As is shown by tbe findings, nothing was done by the-defendants iff the consummation of tbe purpose of tbe act of 1892, and, so far as tbe enjoyment of tbe estate is concerned, tbe claimant was unmolested by any act of tbe defendants. Tbe defendants never entered upon tbe close in fact, and in 1895 abandoned tbe project of locating tbe circle by tbe passage of tbe law of 1895.

Tbe taking, to be binding on tbe United States, must be by some authoritative agent for tbe benefit of tbe United States, and may be accomplished by different modes, among which is a taking by tbe legislature, which is tbe most authoritative and responsible agent of tbe Government. As was said by tbe Supreme Court in tbe case of Boom Co. v. Patterson (98 U. S., 406)—

“The right of eminent domain — that is, tbe right to take private property for public uses — appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty. Tbe clause found in tbe constitutions of tbe several States providing for just compensation for property taken is a mere limitation upon tbe exercise of tbe right. When tbe use is public, tbe necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. The property may be appropriated by an act of tbe legislature, or the power of appropriating it may be delegated, to private corporations, to be exercised by them in tbe execution of works in which the public is interested.”

In tbe same direction may be cited tbe following cases: Spears v. New York (87 N. Y., 359); Smaley v. Irwin (51 Pa. State Repts., 445); B. & O. R. R. Co. v. The P., W. & Ky. R. R. Co. (17 West Va., 812).

“It requires no judicial condemnation to subject private property to public uses. Like tbe power of tax, it resides in tbe legislative department to whom the delegation is made. It may be exercised directly or indirectly by that body.” (Cooley’s Con. Lim., 528.)

Establishing, as these authorities do, the power of the legislature to appropriate lands so as to constitute a taking by the passage of a law, does the act under which it is alleged an appropriation was made in this case operate as a taking within the meaning of the law, so as to compel the defendants to pay the reasonable value of the property?

The legislation from which this litigation springs is peculiar. A circle was first established at the intersection of Sixteenth street and New Hampshire avenue, which, by the act of August 5,1892, is transferred to and located at a point including a portion of the land of the plaintiff. Under the original act providing for the Hancock Circle the Commissioners of the District of Columbia are authorized and directed to condemn a sufficient amount of ground for the circle; but to that power there is annexed the proviso “that the said ground be acquired or the cost of the same be defrayed otherwise than at public expense.” Nothing is said in the statute of 1892 as to the payment for the land embraced within the circle transferred, and the only change made by the act of the provisions of the original law of March 2,1889, is a change in the location of the circle.

The law originally providing for the location of Hancock Circle followed the usual course and form of such legislation, by empowering the Commissioners to proceed to condemn a sufficient amount of ground to establish a circle at the intersection of Sixteenth street and New Hampshire avenue, and the further provision as to the mode and manner of payment.

While the Congress of the United States and the legislatures of the different States may, in the exercise of the sovereign power of eminent domain, take and appropriate directly and without the intervention of judicial proceedings of condemnation, the usual mode in cases where no emergency exists is to authorize proceedings to condemn, and thereby ascertain the compensation to be paid to the owner and determine from that proceeding whether it is expedient to take the property for the public use at the assessment of its value.

The taking of the property directly by the act of the legislature without any ascertainment of its value being the exception to the general policy of such legislation, it should distinctly appear by the terms of the law and the circumstances under wbicb tbe alleged appropriation is made that tbe purpose of tbe law was to appropriate aud take by force of tbe statute, and not tbe initiation of judicial proceedings to ascertain value and thereby determine tbe ultimate question of tbe expediency of tbe appropriation.

That there was no emergency in this case calculated to precipitate tbe action of Congress to take directly by tbe statute without reference to judicial proceedings is established by tbe history of tbe legislation applicable to tbe subject-matter of this controversy. While Congress exercises exclusive power of legislation within the District of Columbia, tbe Commissioners are the immediate agents of tbe District in the control of all its municipal interests affecting its improvement.

Tbe act authorizing tbe establishment of tbe circle was passed on tbe 2d of March, 1889; and it is not shown that tbe Commissioners did anything by way of condemning tbe land either before or after tbe act of August, 1892, changing tbe location from Sixteenth street and New Hampshire avenue to Morris street. There is no express repeal of tbe law of 1889, and tbe only change is as to tbe location of tbe circle, a change not at all incompatible with tbe other provisions of tbe act.

It is insisted by tbe claimant that tbe act of 1892 repealed tbe act of 1889, and that bis claim is relieved from the effect of that act both upon tbe question of condemnation by appropriate proceedings and compensation. If the act of 1889 is repealed in its provisions as to condemnation and compensation, it must be by way of implication, wbicb is not a favorite mode in judicial contemplation.

Tbe only provision of tbe act of 1892 inconsistent with tbe act of 1889 is tbe location of tbe circle, and tbe two acts can be enforced in perfect harmony to accomplish tbe purpose of establishing a circle, notwithstanding a change in tbe location. By tbe provisions of tbe act of 1889 tbe circle was to be established by tbe proceedings of tbe Commissioners and without any expense to tbe defendants. It was, therefore, a conditional grant of power under tbe first statute. It is true there is some force in tbe argument that if Congress intended to amend tbe first law it would have been so provided, but Congress often enact incompatible statutes wbicb operate as amendments and modifications of tbe original law, and tbe original law is to be enforced so long as it is not repealed, either by express provision or necessary implication.

It is said in substance in Golds Case (3 C. Cls. R., 64) that a statute is not repealed by a subsequent act unless the latter uses apt and appropriate words for that purpose or unless there is such a direct conflict and absolute repugnancy between the two that both can not stand together.

Repeals by implication are not favored in law. (Dwarris on Statutes, 532.) “An act oí Parliament may be repealed by the express words of a subsequent statute or by necessary, irresistible implication.” (Sedgwick on Constitutional Law, 125.) In the case of Wood v. The United States (16 Pet., 362) it is said:

“The question then arises whether the 66th section of the act of 1799, ch. 128, has been repealed or whether it remains in full force. That it has not been expressly or by direct terms repealed is admitted, and the question resolves itself into the narrow inquiry whether it has been repealed by necessary implication. W e say by necessary implication, for it is not sufficient to establish that subsequent laws cover some or even all of the cases provided for by it, for they may be merely affirmative or cumulative or auxiliary, but there must be a positive repugnancy between the provisions of the new law and those of the old, and even then the old law is repealed only pro tanto to the extent of the repugnancy.”

In the case of Daviess et al. v. Fairbairn et al. (3 Howard, 636) the same doctrine in substance is announced.

The statutes of 1889 and 1892, although radically repugnant as to the exact location of the circle, are not necessarily contradictory of each other in other particulars. They relate to the location of a circle to be named in memory of a distinguished soldier, on the same street and not very distant from each other, so that they may be said to be in pari materia, coming within the language of the Supreme Court of Connecticut in the case of The United Society v. The President and Directors of the Eagle Bank of New Haven. (7 Conn. Rep., 456.) “ Statutes are pari materia which relate to the same person or thing, or to the same class of persons or things.” Although the statutes are not a part of a general system such as usually characterize statutes on a general subject, they do relate to substantially the same subject-matter, with the difference of location.

As is said by Chancellor Kent:

“Several acts in pari materia, and relating to the same subjects, are to be taken together, and compared, in the construction of them, because they are considered as having one object in view, and as acting upon one system. This rule was declared in the cases of Rex v. Loxdale and The Earl of Ailesbury v. Pattison; and the rule applies though some of the statutes may have expired or are not referred to in the other acts. The object of the rule is to ascertain and carry into effect the intention; and it is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy, and ivas intended to be consistent and harmonious in its several parts and provisions.” (Kent’s Commentaries, 12th ed., vol. 1, 404.)

Counsel for claimant on the trial of the case called the attention of the court to the Congressional Kecord, tending to prove, as the counsel claimed, that the legislative intent was to repeal the act of 1889.

While it'is proper for a court, in the construction of a statute, to consider the. historical circumstances under which it was passed and the action of a committee in making a report, it is not proper to go beyond that in the consideration and examination of the debates incident to its passage.

On this point it is said by the Supreme Court:

“In expounding this law the judgment of the court can nor, in any degree, be influenced by the construction placed upon it by individual Members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing the amendments that were offered. The law, as it passes, is the will of a majority of both Houses, and the only mode in which that will is spoken is the act itself; and we must gather their intention from the language they used, comparing it when any ambiguity exists with the laws upon the same subject, and looking, if necessary, to the public history of the times in which it was passed.” (Al-dridge et al. v. Williams, 3 Howard, p. 9.)

In the case of United. States v. Union Pacific Railroad (91 U. S., 72) it is held, in substance, that a court may recur to the history of the times in order to ascertain the reason for the law as well as the meaning of particular provisions; but the views of individual Members in debate, or the motives which induced them to vote for or against the passage of a statute, can not be considered.

While the incorporeal rights of an owner are equally protected with his corporeal, there must be such a taking as that he is deprived of, or circumscribed in some way, in the use and enjoyment of his estate, in order to. make the defendants liable. If his possession is undisturbed and his property in its value and use is undiminished, it can not be said that there is a taking within the meaning of the Constitution and law. In the case at bar it is not shown that either result followed from the acts of the defendants.

Aside from the continued operation of the act of 1889, as indicated by the theory of this decision, the court holds that the contention of the defendants that there was no taking of the claimant’s property as alleged in the petition and required by the law is correct, and therefore the petition is dismissed.

Howry, J., took no part in the decision, the case having been argued before he took his seat.  