
    LAGOW’S CASE.
    John Lagow v. The United States.
    
      On the Proofs.
    
    
      In 1862 a building is taken as a military small-pox hospital. While thus used the Government pays rent for it. Immediately after it is vacated and the owner restored to possession, but lohile some Government property remains in it, it is burned down. Suit is brought io recover its value.
    
    The Government is not liable for the burning of a building whicb it has seized and used as a small-pox hospital, and it is immaterial whether it has given up possession or whether it remains constructively in possession. Its legal liabilities in such a case are simply those of a tenant.
    
      The Reporters' statement of the case:
    In the'month of March, 1862, John W. Davis, aii assistant surgeon of the Army of tbe United States, took possession, for the use of the Government, as a pest-house for soldiers of the Army who were afflicted with small-pox, of a three-story brick building near the town of Evansville, Ind. The building had been built for use as a starch-factory, and had been used as such, but when so taken for the use of the Government was wholly unoccupied. It was used by the Government as a pest-house until the 4th of December, 1862, when it was vacated. For the period of such use a rent of $ 15 per month was paid by the military authorities of the United States to one Edward Burtis, who was in possession of the premises; and when the building was vacated as a pest-house, the possession of it was delivered to said Burtis.
    On the 6th of December, 1S62, two days after the military authorities gave up the possession of said building, it took fire and was burned down. It does not appear how it became fired.
    There were in the building some stoves, tables, and bedsteads, the property of the United States, which were left there when the occupation of the military authorities ceased; but the beds, bedding, and clothing which had been used by the small-pox patients were, on the afternoon of the 4th of December, 1862, taken out of the building and burned up.
    
      Mr. F. P. Stanton for the claimant:
    If it be admitted that buildings used for the accommodation of small-pox patients are usually destroyed as a consequence of such use, then if the Government seize the property of a citizen and apply it to that purpose, and the property be actually destroyed on account of such dangerous occupation, the obligation to compensate the owner for his loss would seem to be undeniable. The property is taken for the public use; and the law will imply a contract in accordance with the nature of the use to which it is applied and the incidents usually attending it. Destruction being one of those incidents, compensation for it is necessarily implied, especially when the .party interested is not consulted as to the taking and use of the property, and has no power to prevent it.
    
      Mr. Assistant Attorney-General Goforth for the defendants:
    All claims arising from the destruction or damage to property by the Army or Navy, &c., being excluded from the jurisdiction of this court, the claimant must base his action upon a contract, either express or implied, in order to bring it before the court. (See Gibbons v. Ogden, 8 Wall., 274, 275; Kim-ball v. The United, States, 13 Wall., 636.) There was no contract of any kind. In Filor’s Case, (7 O. Ols. B., 120; 9 Wall., 45,) there was a written lease, signed by the acting assistant quartermaster on the one part, and by the legal owner on the other part. An annual rent’of $6,000 was agreed upon, and the property was occupied by the United States officers for five years. The action was brought for the recovery of rent on the lease, and the Supreme Court held that “ the agreement was the work of strangers.” “ The obligation of the Government for the use of the property is exactly what it would have been if the possession had been taken and held without the existence of the agreement. Any obligation of that character cannot be considered by the Court of Claims.” If that was not considered a valid contract, what shall be said of this case ?
   Drake, Ch. J.,

delivered the opiuion of the court:

The claimant seeks to subject the Government to liability for the value of a building near Evansville, Ind., which was in 1862 used for a time by the military authorities of the United States as a small-pox hospital for soldiers, and which was burned dowm two days after these authorities had ceased so to use it, and had given up the possession of it.

We are unable to see any ground for this claim.

If the Government is to be regarded as a tenant of the building, it was only a tenant at its own will, and when it gave up the premises there could be no responsibility upon it for the safety of the building thereafter. But even if the occupancy of the premises had not been terminated before the burning of the building, there was no legal liability of the Government to pay for the building.

If, on the other hand, the occupation of the building as a hospital was an appropriation of it for military use, it carried with it no liability on the part of the Government capable of being enforced in this court. There may be circumstances in the case which might commend it to the liberality of Congress, but none which could give this court jurisdiction of this claim.

The petition must therefore be dismissed.  