
    WINCHESTER AND POTOMAC RAILROAD COMPANY v. THE UNITED STATES.
    [No. 16603.
    Decided November 7, 1892.]
    
      On the Proofs.
    
    At the close of the civil wax the Wax Department offers to return railroads in the South to the owners on certain conditions, subject to the approval of the Secretary, “all rolling stools and material to be given tip to theseroads.” The claimant complies with the conditions, and the road is accordingly turned over. Some material belonging to it is not turned over, but sold. The claimant’s president applies for the return of the material before sale by a personal application to the Secretary of War. Subsequently a formal claim for the money is filed.
    I.The offer of the War Department in 1865 to turn over the Southern railroads to their owners with “ all rolling stock and material,” when complied with and carried into effect must be regarded as a contract.
    II.Where material belonging to a road was casually sold after the road had been turned over to the company, an action will lie to recover the money.
    III. When it appears by the records of an Executive Department that a claim referred under the Revised Statutes, § 1063, was presented to the Department within six years, though in an informal manner, it is not barred. Rev. Stat., § 1069.
    IV. The absence of an appropriation out of which payment can be made is no defense to a valid claim.
    
      The Reporters’ statement of tbe case:
    The following are the facts of this case as found by the court:
    I. The claimant was, in 1862, and is now, a body corporate, owning a line of railroad running from Harpers Ferry, in the State of West Virginia, to Winchester, in the State of Virginia, and had owned the same for many years prior to 1862. The road was 32 miles in length, of which 22 were in the State of West Virginia and 10 in the State of Virginia. The capital stock of the company was largely owned by citizens of loyal States.
    II. Some time in March, 1862, the military authorities of the United States took possession of, repaired, and held the road, except at intervals, until January 20,1866. During that period the Government had the exclusive use of it for military purposes, received all tolls and revenues, and used tbe same for Government purposes. In repairing said road tbe United States removed a quantity of strap rails and put in tbeir place “T” rails, taken from tbe Manassas Gap Eailroad Company, wbicb remained upon said road at tbe time of its surrender by tbe United States to tbe Winchester and Potomac Eailroad Company, January 20,1866. Tbe rails so removed were stored in Alexandria, Ya. Tbe United States bas never paid anything for its use, nor bas it ever accounted to tbe claimant for tbe revenues of tbe road wbicb it collected and appropriated, nor for said rails so removed. Immediately upon tbe restoration of tbe roads to tbeir respective companies, tbe Manassas Company made demands upon tbe Winchester and Potomac Company for tbe iron so laid upon its road, or for its value, and its demand not being complied with, it brought suit and obtained a judgment for tbe value thereof, wbicb judgment was, in 1873 or 1874, settled by a compromise, tbe Winchester ami Potomac Company paying tbe Manassas Company tbe sum of $25,000.
    III. At tbe time of taking of tbe road by tbe United States it was being used and operated by said company for tbe use and benefit of tbe Confederate States in tbe transportation of troops, munitions of war, and other subjects of transportation as required by tbe Confederate States, in pursuance of a written contract executed between Frank P. Clark, captain and acting quartermaster, Confederate States Army, and William L. Clark, president of Winchester and Potomac Eailroad Company, on tbe 11th day of September, 1861.
    IV. In May and July, 1865, tbe Quartermaster-General addressed letters to tbe Secretary of War, wbicb, so far as material in this case, and tbe approval of tbe Secretary of War, are as follows:
    “ Quartermaster-General’s Oeeioe,
    “ Washington, D. O., May 19,1865.
    
    “Sir: I have tbe honor to inclose certain papers .relative to tbe Orange and Alexandria Eailroad. * * *
    
      u* * * Tbe question of tbe disposition of tbe railroads in tbe States lately in rebellion is a large one; and after reflection, I have tbe honor to advise that tbe following principles be established to govern tbe Quartermaster’s Department, and of tbe mihtary authorities in disposing of all of them:
    “ 1st. Tbe United States will, as soon as it can dispense with tbe military occupation and control of any road of wliicli tbe Quartermaster’s Department is now in charge, turn it over to tbe parties asking to receive it wbo may appear to bave tbe best claim, and be able to operate it in such manner as to secure tbe speedy movement of all military stores and troops; tbe Quartermaster-General, upon tbe advice of tbe military commander of tbe department, to determine when this can be done, subject to tbe approval of tbe Secretary of War.
    “ 2nd. No charge to be made against the railroad for expense of material or expense of operation.
    “ 3rd. All materials for permanent way used in tbe repair and construction of tbe road,, and all damaged material of this class which may be left along its route, having been thrown there during tbe operation of destruction or repair, to be considered as part of tbe road and given up with it.
    “ 4th. No payment or credit to be given to tbe railroad for its occupation or use by tbe United States during tbe continuance of tbe military necessity which compelled the United States to take possession of it by capture from tbe public enemy. Tbe recovery of tbe road from tbe public enemy and its return to loyal owners, and tbe vast expenditure of defense and repair, are full equivalent and more than an equivalent for its use.
    “ 5th. All movable property, including rolling stock of all kinds, tbe property of tbe United States, to be sold at auction after full public notice, to tbe highest bidder.
    “ 6th, All rolbng stock and material, tbe property before tbe war of railroads, and captured by tbe forces of tbe United States, to be placed at tbe disposal of tbe roads which originally owned it, and to be given up to these roads as soon as it can be spared and they appear by proper agents authorized to receive it.
    “ 7th. When a State has a board of public works, able and willing to take charge of its railroads, tbe railroads in the possession of tbe Quartermaster’s Department to be given up to this board of public works, leaving it to tbe State authorities and tbe judicial tribunals to regulate all questions of property between said boards, agents, or stockholders.
    “ 8th. Eoads not being operated by tbe United States Quartermaster’s Department not to be interfered with unless under military necessity. Such roads to be left in possession of such persons as may not bave possession, subject only to the removal of every agent, director, president, superintendent, or operator wbo has not taken the oath of allegiance to the United States, which rule should be rigidly enforced.
    
      “ 9th. When tbe superintendents in actual possession decline to take such oath, some competent person to be appointed as receiver of tbe railroad, who shall administer the affairs of tbe road and account for its receipts to tbe board of directors, wbo may be formally recognized as tbe legal and loyal board of managers. This receiver to be appointed, as in tbe case of other abandoned property, by tbe Treasury Department. * * *
    “ I bave tbe honor to be, very respectfully,
    “ M. C. Meigs,
    “ Bvt. Maj. Gen., Qr. Mr. General.
    
    “ QUARTERMASTER-GENERAL’S OEEICE,
    “ Washington, D. G., July 17,1865.
    
    “ Sib: I submit herewith an estimate for funds required by tbe disbursing officers for railroads at Nashville, Term. 1
    # # # # # * #
    “ It will be perceived from tbe aforegoing statement that these railroads bave been costing, during the present year, upwards of $1,000,000 monthly, and tbe expenditures are still going on.
    “ These expenditures were necessary during tbe war, but it appears to me that tbe Government should be relieved from this heavy expenditure by tbe restoration of tbe railroads to tbe companies, and I recommend that this be done as soon as it is possible to make arrangements for tbe transfer on tbe basis on my report of 19th of May last.
    “The appropriation for transportation of tbe Army is exhausted, and there is no money in tbe Treasury for Army appropriation against which requisitions can be drawn.
    “ Yery respectfully, your obedient servant,
    “M. C. Meigs,
    
      “BvH Major-General U. 8. A., Qr. Mr. General.
    
    “Hon. E. M. Stanton,
    “ Secretary of War, Washington, D. O.
    
    “ Tbe recommendation of tbe Quartermaster-General is approved, and be is directed to turn over tbe roads immediately.
    “ By order of tbe Secretary of War:
    “Thomas T. Eokert,
    
      Acting Assistcmt Secretary of War.
    
    “ War Department, July 26,1865.”
    
    V. These letters were followed by tbe following executive orders:
    “War Department,
    “ Washington, August 8th] 1865.
    
    “Major-General George H. Thomas,
    “ Gommcmding Military Division of Tennessee,
    
    “ Nashville, Tennessee:
    
    “ General : It having been determined by tbe Government to relinquish control over all railroads in tbe State of Tennessee, and their continuations in adjoining States, that have been in charge of, and are now occupied by, the United States military authorities, and no longer needed for military purposes, you are hereby authorized and directed to turn over the same to the respective owners thereof at as early a date as practicable, causing in all cases of transfer, as aforesaid, the following regulations to be observed and carried out:
    “ 1. Bach and every company will be required to reorganize and elect a board of directors, whose loyalty shall be established to your satisfaction.
    
      “ 2. You will cause to be made outin triplicate, by sucliperson or persons as you may indicate, a complete inventory of the rolling stock, tools, and other materials and property on each road.
    
      u 3. Separate inventories will be, in the same manner, made of the rolling stock and other property originally belonging to each of said roads, and that furnished by and belonging to the Government.
    “ 4. JSaeh eompamy will be required to .give bonds satisfactory to the Government that they will in twelve months from the date of transfer, as aforesaid, or such other reasonable time as may be agreed upon, pay a fair valuation for the Government property turned over to said companies, the same being first appraised by competent and disinterested parties at a fair valuation, the United States reserving all Government dues for carrying mails, and other service performed by each company until said obligations are paid, and if at the maturity of said debt, the amount of Government dues, retained as aforesaid, does not liquidate the same, the balance is to be paid by the company in money.
    “ 5. Tabular statements will be made of all expenditures by •the Government for repairing each road, with a full statement of receipts from private freights, passage, and other sources; also a full statement of all transportation performed on Government account, giving the number of persons transported, and amount of freight, and the distance carried in each case, all of said reports or tabular statements to be made in triplicate, one each for the Secretary of War, the military headquarters of the department, and the railroad company.
    
      u 6. All railroads in Tennessee will be required to pay all arrearages of interest due on the bonds issued by that State prior to the date of its pretended secession from the Union to aid in construction of said roads before any dividends are declared or paid to the stockholders thereof.
    
      u 7. Buildings erected for Government purposes on the line of railroads, and not valuable or useful for the business of said companies, should not form a legitimate charge against such companies, nor should they be charged for rebuilding houses, 
      
      bridges, or other structures which were destroyed by the Federal Army.
    
    “ 8. You are authorized to give any orders to quartermasters within your division which you may deem necessary to carry into execution this order.
    “ By order of the President:
    “Edwin M. Stanton,
    “ Secretary of Wa/r.
    
    “War Department,
    “ Washington, IJ. 0., 14th October, 1865.
    
    “ Major-General George H. Thomas,
    “ Commanding Military Division of the Tennessee,
    
    
      “Headquarters, Nashville, Tennessee:
    
    “General: The provisions and benefits of the executive order of 8th August are hereby extended to all railroads within the limits of your command desiring to purchase railroad rolling stock and material from the United States, for the purpose of repairing the losses of the war.
    “ You are also authorized to direct the sale to any such railroads of rolling stock now within the limits of your command, and not needed by the United States for actual use, upon the following conditions, if they are preferred to the terms of the order of 8th August and the individual security required by you under that order:
    “ You will take care that this property is distributed among the several roads in proportion to their actual needs, and that none is sold to any railroad in excess of the reasonable requirements of its business or to be used for purposes of speculation, sale, or hire to other roads.
    “ You will require from all such railroad companies satisfactory bonds, in the form herewith enclosed, binding them to the payment to the United States of the full appraised value of the property sold to them, in equal monthly installments, with interest at the rate of seven and three-tenths per cent per annum, within two years credit being allowed to them, on the first of each month, for any service of military transportation rendered by them during the preceding month at the established rates now allowed to northern railroads for such service.
    “ Full reports of all sales under this order will be made to the War Department from time to time as required by existing orders.
    “ The serviceable railroad iron in possession of the quartermaster’s department at Chattanooga and Nashville is excepted. It will be sold only for cash at the prices fixed by the War Department.
    “ By order of the President:
    “Edwin M. Stanton,
    “ Secretary of War.7’
    
    
      VI. In reply to the oral application of the claimant, Novem•ber 16,1865, to have its road restored, the following action was taken:
    “ War Department,
    “ Washington City, Nov. 16, 1865.
    
    “ Generad : Mr. Conrad, president of the Winchester and Potomac Eailroad, applies to have that road transferred to him on the same terms on which other railroads have been transferred. I understand that the road is partly in the State of Virginia and partly in the State of West Virginia, so that it can not properly be turned over to the board of public works of the former State. The matter is referred to you for such arrangement and recommendation as you deem proper on the facts of the case.
    “ Yours truly,
    “Edwin M. Stanton,
    “ Sec. of War.
    
    “ Brevet Major-Gen’l M. C. Meigs,
    “ Qr. Mr. Gen’l.”
    
    [1st indorsement.]
    “ Eespectfully returned to the Secretary of War.
    “ I recommend in the case of the Winchester and Potomac Eailroad that, as the president of the road now comes forward on the part of the company and applies to have the road transferred to him, that this be done, and that in making the transfer the company shall be admitted to the privileges of the executive order of 14th of October last, as has been done in case of the Wilmington and Weldon Eailroad of North Carolina.
    “ General McCallum, in charge of military E. E’d’s, to carry this into effect. All rolling stock and railroad materials upon that road which the company may not elect or purchase to be sold, as soon as preparations can be made, at public auction.
    “M. 0. Meigs,
    “ Qr. Mr. Gen’l, tí. 8. A., B’v’t Mag. Gen.
    
    “ Q. M. G. O'., Nov. 16,’65.”
    
    [2d endorsement.]
    “Eeturned to the Quartermaster-General with directions to turn over this road to the company. ¿
    “By order of the Sec’y of War:
    “Thos. T.-Eckert,
    
      uAet’g Ass’t See’y of War.
    
    “War Dep’t, Dec. 14, ’65.”
    
    
      “ Quartermaster-General’s Oeeioe,
    “ Washington, D. 0., Dee. 5th, 1865.
    
    “To General Meigs,
    “ Quar. Mas. Geni.:
    
    “ Sir : In pursuance of my application, verbally made about the 16th Nov. last, I have the honor now to ask your favorable consideration to the wish of the Winchester and Potomac Eail-road Company to have their road (from Harpers Ferry in W. Ya., to Winchester, Ya.) delivered up to the board of directors of the company, the same being now used as a military road.
    “ Y ery respectfully,
    “Eob’t Y. Conrad,
    “ Pres’t W. and P. B. B. Go.”
    
    [1st endorsement.]
    “ Quartermaster-General’s Oeeioe,
    “ Washington, December 15th, 1865.
    
    “ Eespectfully referred to Br’v’t Brig. Gen. D. 0. McCallum, general sup’t Mñ. E. E., Washington, D. C., who will turn over this road (the Secretary of War having so directed) to the Winchester and Potomac Eailroad Co., EobertY. Conrad, president.
    “ The company wül be admitted to the privileges of the Executive order of October 14th.
    “ All rolling stock and E. road material upon thesroad which the company may not elect to purchuse will, unless otherwise directed, be sold at public auction as soon as preparations can be made.
    “By order of the Quartermaster-General:
    “Alexander Bliss,
    
      uBr,v,t Gol. and A. Q. M., in charge 4th Div.”
    
    [2d endorsement.]
    “ Qr. Mr. Gen’l’s Oeeioe, Dec. 15th, 1865.
    
    “ General M. C. Meigs directs that the Winchester and Potomac E. E. to be turned over to the Co., Eob’t Y. Conrad, pres’t, the Co. to be admitted to the privileges of Ex. order or Oct. 14.
    “ Oeeioe Dr. and Gen. Manager, Mil. E. E’ds U. S.,
    “ Washington, D. G., Jam?y 12th, 1866.
    
    “Mr. J. J. Moore,
    “ Ghf. Png. and Supt. Mil. B. Bids of Va., Alexandria, Va.:
    
    “ Sir : Mr. I. H. Sherard, prest, of the Winchester and Potomac E. E’d Company, in a letter to this office dated Jan’y 10th, 1866, states that the company declines purchasing any of tlxe property of the U. S. now upon that road, but are prepared to receive the transfer of the road to them at once, and names Monday next as the time he would like to meet you for that purpose. They have made arrangements with the B. & O. E. Bid Co. to run it for the present.
    “Mr. Wilson was anxious to accompany you to Harpers Ferry when you went.
    “ Very respectfully, &c.,
    “ D. C. McCallum,
    
      “Bvt. Brig. General, &cP
    
    VII. The claimant company made arrangements with the Baltimore and Ohio Bailroád Company, by which it leased its road, rolling stock, and other property to the latter company from the 1st day of January, 1866, although the written lease was not signed until the following July. The road was thereupon (January 16,1866) turned over under the aforesaid orders, and was taken possession of by the Baltimore and Ohio Bail-road Company, lessees, and thereafter run by the latter company.
    VIII. In regard to the disposition of the iron removed from the claimant’s road and stored as stated in finding I, the following proceedings took place:
    November 16,1865, the following letter was written:
    “Washing-ton, D. C., Nov. 16,1865.
    
    “ To Brevet Brig. Gen. D. C. McCallttm:,
    “ Director and Gen’l Manager Mil. B. R’d’s U. 8.:
    
    “ Sie : The undersigned, president of the Winchester and Potomac Eailroadin Virginia, has the honor to represent: We are informed that a quantity of the iron from our road — fiat or strap bar — is now in possession of your department at Alexandria, Va., which we are anxious to recover, as we hope the road is about to be returned to the company.
    “We respectfully request that the fact may be inquired into, and, if proper, an order made to return the said iron, to my order as president of the company.
    “Your ob’t servant,
    “Bobt. Y. Conead,
    “ President.”
    
    To this application no answer was ever returned, nor were any affidavits or other proof of the ownership or value of the iron mentioned nor of any of the other facts therein alleged offered to or filed in any Executive Department of the Govern-meat prior to the 11th day of May, 1885, when the Baltimore and Ohio Eailroad Company made the written application mentioned in finding x. At or about the time said letter from Mr. Conrad was written, he made also an oral application to to the Quartermaster-General for the same. Said iron, with a large quantity of other iron, amounting in all to more than $2,000,000, was sold at auction. The claimant’s iron sold for the sum of $30,240, and was paid for January 9, 1860. The proceeds were used for the benefit of the United States through the War Department.
    IX. — On December 2,1875, Mr. J. W. Garrett, president of the Baltimore and Ohio Eailroad Company, addressed the following letter to the Quartermaster-General:
    “ Baltimore and Ohio Eailroad Company,
    “Oeeice oe the President,
    
      Baltimore, December 2, 1875.
    
    “ General Eueus Ingalls,
    
      uActg. Quartermaster-General U. 8. A., Washington, D. G.:
    
    “ Sir : Subsequent to the termination of the late war the United States military railroad authorities sold a quantity of old rails in Alexandria, Ya., which had been taken from the line of the Winchester and Potomac Eailroad.
    “I have the honor to request that you will furnish me with the dates the said rails were sold, the quantity sold, the prices per ton, the amount realized from the sale of the rails taken from the line of the Winchester and Potomac Eailroad, and the disposition made by the U. S. M. E. E’d managers of the proceeds. *
    
    “You will further oblige me by stating the date on which the Winchester and Potomac Eailroad was surrendered by the War Department to its owners.
    “I am, very respectfully, your obedient servant,
    “ J. W .Garrett,
    “ President.
    
    “December 11,1875.
    “Mr. John W. Garrett,
    “ President B. amd O. B. B. Go., Baltimore, Md.:
    
    “ Sir : In reply to your letter of the 2d instant, requesting certain information in relation to a quantity of old rails taken from the Winchester and Potomac Eailroad and sold at Alexandria, Ya., I have the honor to state that the quantity so taken and sold was 501i||{¡ tons.
    “The iron was sold on the 13th day of December, 1865, at public auction, for about $36,340.00; the exact price can not be given, as the iron was sold with other old iron; neither can it be stated just what disposition was made of the proceeds of the sale. The sale was made by General H. L. Robinson, C. Qr. M;r. His accounis show that a portion of the funds were used in paying current expenses of the Mil. R. R. department and that a portion were transferred to General D. H. Rucker, Quartermaster U. S. A. It is presumed, however, that they were legitimately used.
    “The Winchester and Potomac Railroad was surrendered to its former owners on the 20th day of January, 1866.
    “Very respectftdly, your obedient servant,
    “Ruetjs Ingalls,
    
      uActing Quartermaster-General, Brevet Major-General,
    
    “ U. S. Army.'”
    
    X. On the 11th of May, 1885, the Baltimore and Ohio Railroad Company, as lessees of the claimant company, by its president, made a written application to the Quartermaster-General for the proceeds of the sale of said iron, as follows :
    “ The United States to the Baltimore and Ohio Railroad Company, lessee of the Winchester and Potomac Railvoad Company, Dr.
    
    “ For 507 tons 1,940 pounds (2,240 pounds to the ton) of iron rails appertaining to the Winchester and Potomac Railroad Company, and the property of that company, which once formed a part of the superstructure of that road by the United States authorities, and was subsequently sent to Alexandria, Va., and sold at auction by the United States military railroad department in December, 1865, for the sum of $30,840.
    [SEAL.] “ WJ'I. T. TlIELIN,
    “ General Auditor Baltimore and Ohio RaAlroad Compa/rvyP
    
    November 10,1885, this application was forwarded to the Secretary of War, and was returned to the Quartermaster-General lor report. December 7,1885, the Quartermaster-General made the following report (omitting what is immaterial), which the Secretary of War approved December 14, as appears thereon:
    “War Department.
    “ Quartermaster-General’s Oeeióe,
    “ Washington, December 7,1885.
    
    “To the honorable the Secretary op War:
    “Sir: In compliance with your instructions of November 18, I have the honor to return herewith the communication of the president of the Baltimore and Ohio Railroad Company, dated May 11, 1885, presenting a claim of that company, as lessee of tbe Winchester and Potomac Eailroad, for tbe value of 507 tons 1,940 pounds iron rails, alleged to bave been taken from tbe latter road and sold at auction by the U. S. military authorities in December, 1865, stated at $30,340.00, and to submit tbe following report of the result of tbe consideration of tbe case in this office:
    “ It is of record that tbe Winchester and Potomac Eailroad was in possession of and operated by the TJ. S. military authorities at intervals between March 24, 1862, and January 20, 1866. The road from Harper’s Ferry to Winchester was so operated continuously from March 24 to May 25,1862, when its operation was interrupted by a Confederate raid, and not resumed until June 11,1862, from which date it was continuously operated until Sex>tember 3,1862, when it again fell into the hands of the Confederate forces.
    “After the battle of Antietam, about September 18 or 19, 1862, the rails were torn up and bridges destroyed from Hall-town (6 miles from Harper’s Ferry) to Winchester by the Confederate army on its retreat down the Shenandoah Valley. From that time to August, 1864, no organized management or control seems to have been exercised by the United States, except occasionally and irregularly, over the piece of the road not destroyed between Harper’s Ferry and Halltown (6 miles), the territory traversed by the railroad being alternately in the possession of the United States and the Confederate forces during that time.
    “From August 14,1864, the United States military railroad department assumed the control and management of the railroad, repaired it, and operated it continuously until January 20,1866, the date of its relinquishment to the Winchester and Potomac Eailroad Company.
    “In March, 1864, Lt. John E. Meigs, chief engineer, Department of West Virginia, called the attention of the military railroad department to this railroad, with the view of having it repaired and put in running order tor military purposes. Copies of his two letters on the subject are inclosed as contemporaneous testimony of the condition of the road at that time.
    “Gen. D. C. McCallum, director and general manager U. S. military railroads, states in his annual report for year ending June 30,1866:
    “ The Winchester and Potomac Eailroad was repaired from Harpers Ferry to Halltown, 6 miles, between August 14 and 19,1864, to Stevenson, 28 miles, between November 2 and 24, and was used to supply the army of General Sheridan, operating in the VaRey of Virginia. The iron used in the reconstruction of this line was principally that taken from the Manassas Gap Eailroad. The bridges were all rebuilt. The road remained in charge of this department until January 20, 1866, when it was restored to the railroad company.”
    
      “November 16, 1865, Robt. Y. Conrad, president, addressed tbe following letter to General McCallum:
    
      “1 Tbe undersigned, president of the Winchester and Potomac Railroad in Virginia, has the honor to represent: We are informed that a quantity of the iron from our road, flat or strap bar, is now in possession of your department at Alexandria, Va., which we are anxious to recover, as we hope the road is about to be returned to the company.
    “‘We respectfully request that the factmay be inquired into, and, if proper, an order made to return the said iron to my order as president of the company.’
    “ This letter was referred to J. J. Moore, general superintendent, etc., ‘ for information as to the quantity of iron now in possession of military railroad department that can be fully identified by the Winchester and Potomac Railroad Com])any,’ and was returned November 17,1865, with the following report:
    “ ‘ We have at this place (Alexandria) 501-’-||« tons of strap rail taken from Winchester and Potomac Railroad.
    “The records of the military railroad department for-this time, which are in excellent condition, have been closely scanned for a reply to Mr. Conrad’s letter ,• none h as been found or is noted in the records, and it is assumed that no reply was made.
    “ In December, 1865, and January, 1866, Captain H. L. Robinson, A. Q. M., U. S. military railroads, finder orders of the War Department, sold at auction the accumulation of railway rolling stock and material at Alexandria in possession of the Government. The aggregate sum realized by these sales at Alexandria was $2,248,825.41; among them was that of a lot of strap rail, 506J tons, purchased by J. W. Middleton for $30,657.63, and paid for January 9,3 866. The Winchester and Potomac Railroad iron was, it is believed, included in this sale. The funds realized by these sales, which were not turned into the Treasury, were used to defray the current expenses of the Quartermaster’s Department and the U. S. military railway department. The exact disposition of the actual money received for the lot of iron referred to can not be more precisely stated than that it took one or the other of the courses mentioned.
    “ Reverting to November 16,1865, the day on which Mr. Conrad applied to General McCallum for the return of the iron to the railroad company, it is remarked that on the same day an. autograph note and memorandum was received at this office from Secretary Stanton that Mr. Conrad, in company with Mr. Garrett, had applied to him to have the railroad delivered to the company, and upon this note the Quartermaster-General recommended the transfer of the railroad, which was eventually ordered by the Secretary of War, December 34, 1865.
    “General McCallum was thereupon directed by the Quartermaster-General, December 15, to turn over the railroad to the Winchester and Potomac Eailroad Company, Eobt. T. Conrad, president, and on January 12, 1866, General McCallum in-forme^ Mr. Moore, the mil’y superintendent, that the railroad company was prepared to receive the transfer of the road at once, and had made arrangements with the Baltimore and Ohio Eailroad Company to run it for the present. The road was accordingly relinquished to the Winchester and Potomac Eailroad Company January 20, 1866, and has since been extended to Lexington, Va., 162 miles, and operated exclusively by the management of the Baltimore and Ohio Eailroad Company under the name of the Harper’s Perry and Talley Branch of that road.
    “ In this transfer no mention is made of the iron rails taken from the railroad and sold at auction.
    
      u With reference to the matters of fact stated in the claimant’s application, which aye not touched upon in the foregoing summary, it is remarked:
    
      u (1) That the railroad when operated by the Government was used primarily for military purposes to the exclusion of all private traffic which interfered with such use, but transportation for private parties was customary, and when furnished the U. S. military railroad department collected fares and freights according to a schedule of rates imposed for such service.
    “ (2) That the condition of the railroad when turned over to the company was clearly better than it would have been if the United States had permitted it to go to destruction and decay during the war instead of keeping it in use and repair.
    “ (3) That the payment which the Winchester and Potomac Eailroad Company was constrained to make for the iron placed in its road by the United States, taken from the tracks of the Orange and Alexandria and the Manassas Gap railroads, is a matter to which the following remarks of Quartermaster-General Meigs, in his annual report for 1865, are pertinent:
    “ ‘ Questions of ownership, claims to material of the road, tracks transferred, either by rebel or by United States authority, from one road to another, are left for decision of the courts; the United States merely retires, leaving the lawful owners to resume their property.’
    
      u (4) That the only reason which can be given for the failure of the company to secure possession of its old iron is the fact that the company was not in condition to receive it before its sale. If the transfer of the road to the Winchester and Potomac Eailroad Company had been authorized and effected before the sale of the iron it is believed that the company would have been permitted to take possession of it. A denial of this privilege or right would have involved an unjust discrimination by the Government between the treatment of this company and that of all other companies whose roads were used for military purposes during tbe war, and would bave been a marked departure from tbe policy and practice of tbe Government toward sucb companies upon tbe restoration of tbeir roads.
    “ In tbe accompanying copy of Executive Document No. 155, House of Representatives, 39tb Congress, 1st session, may be found on page 485 1 a schedule of captured railroad property in tbe possession of tbe United States on tbe 1st day of May, A. D. 1865, in the Department of Virginia, returned to original owners.’ In this document may also be found statements of sucb property so returned in other military departments, together with considerable information showing the action taken by tbe War Department in disposing of railroads and railroad property at tbe close of tbe war.
    “ Tbe larger portion of tbe property listed on page 485 was delivered at Alexandria to tbe railroad companies named, having been stored in tbe military railroad depot in that place.
    “Receipts for tbe property given by tbe companies to J. J. Moore, chief engineer and general superintendent military railroads, Department of Virginia, are on file in this office.
    “ Tbe correspondence resulting in tbe restoration to its former owners of the iron taken from tbe track of tbe Seaboard and Roanoke Railroad is inclosed, as showing tbe action taken by tbe Department in sucb cases.
    • “ It is considered that these official records verify tbe allegation of tbe claimant that ‘the other Virginia railroad co’s whose roads bad been restored to tbeir owners and whose reorganization bad been effected before tbe public auction was held at Alexandria at which these rails were sold were freely accorded tbe privilege of inspecting tbe property which bad accumulated at Alexandria, and were permitted to withdraw sucb as they could identify and prove to be tbeir own;’ that tbe claims and arguments made upon this fact are sound, and that the claimant is entitled to tbe relief which tbe circumstances of tbe case seem to justify.
    “ But it is not believed to be in tbe power of tbe executive department to afford relief at this time without tbe intervention of Congress.
    “Under section 5 of tbe act of Congress approved June 20. 1874 (18 Stat., 110), all balances of appropriations for previous years have been turned into tbe Treasury and are not available, and under section 4 of tbe act of June 14,1878 (20 Stat., 130), and amendatory and supplemental acts, it is made tbe duty of the accounting officers of tbe Treasury to examine claims under appropriations tbe balances of which bave been turned into the Treasury, tbe amount due each claimant to be reported to Congress by tbe Secretary of tbe Treasury.
    “ It is, therefore, respectfully recommended, if this report be approved, that this claim, with tbe papers accompanying it, be referred to tbe Third Auditor for adjudication by tbe accounting officers of tbe Treasury, with recommendation for such action as tbe law and facts of tbe case require.
    “ In stating this claim tbe railroad company has fallen into tbe error of fixing 506 tons 1,940 pounds as tbe quantity of iron involved; 501 tons 1,940 pounds is tbe actual quantity. Tbe error was undoubtedly caused by the incorrect copy made by tbe company of Acting Quartermaster-General In gall’s letter to Jno. W. Garrett, dated December 11,1875. A true copy of that letter is herewith.
    “ It also seems that tbe average price per ton secured for tbe iron was $60.55, which makes its value $30,387.99, instead of $30,340, as stated in General Ingall’s letter.
    “ Very respectfully, your obedient servant,
    
      “ S. B. Holabird,
    “ Quartermaster- General U. S. Army.
    
    [lat indorsement.]
    “84338.] “War Department,'
    “ December 14,1885.
    
    “Tbe within report of tbe Quartermaster-General is approved, and tbe accompanying papers in tbe claim of tbe Baltimore and Ohio Eailroad Company for the proceeds of railroad iron, stated by tbe company at $30,340, are hereby respectfully referred (through office of tbe Quartermaster-General) to tbe Third Auditor of tbe Treasury for settlement from tbe appropriation 1 Transportation of tbe Army and its supplies,’ tbe amount found due to be reported to Congress for appropriation.
    “Wm. C. Endicott,
    
      “Secretary of War.”
    On March 4,1887, tbe Third Auditor reported against tbe claim “ without expressing an opinion on tbe merits of tbe claim by tbe Winchester and Potomac Eailroad Company, if such a claim should ever be presented.” Thereupon tbe following proceedings took place before said auditor:
    “ Be claim of tbe Winchester and Potomac Eailroad Company against tbe United States, pending before tbe Hon. John S. • Williams, 3d Auditor.
    “To tbe Hon. John S. Williams, the Third Auditor:
    
    “Your petitioner, tbe Winchester and Potomac Eailroad Company, being advised that, in tbe judgment of your Department, this claim should have been preferred by tbe Winchester and Potomac Railroad Company directly, and not through or by the Baltimore and Ohio Railroad Company, its lessee, both pray that it may be substituted as the claimant in interest in the stead of the Baltimore and Ohio Railroad Company, its lessee, claiming on its behalf.
    “ In witness whereof your petitioner doth hereto cause to be affixed its corporate seal and doth cause these presents to be signed by William L. Clark, its acting president, and by Win, A. McCormick, its secretary, this the twelfth day of February, in the year 1887.
    “ [seal.] ■ “ Wji. L. Clark,
    
      “Acting Preset W. cmd Pot. B. It. Go.
    
    “ Wk. A. McCormick,
    “ Sec’tfy.
    
    “Witnesses as to both:
    “ Wl. M. ATKINSON.
    “Dorset Walter.
    “ The Baltimore and Ohio Railroad Company hereby gives its assent to the substitution of the Winchester and Potomac Railroad Company for itself as the petitioner and claimant in this case.
    “In witness whereof the said Baltimore and Ohio Railroad Company doth hereby cause to be affixed its corporate seal and doth cause these presents to be signed by Robert Garrett, its president, this the 28th day of March, 1887.
    “[seal.] “Robert Garrett,
    ít C$i
    
    “Attest: “W. H. Ijams,
    “ Secretary.”
    
    “ Baltimore, April 2nd,, 1887.
    
    “ Col. Jno. S. Williams,
    
      “3rd Auditor:
    
    “ My Dear Sir : I beg to submit herewith the petition of the Winchester and Potomac Railroad Company, praying to be made the party claimant in this case in lieu of the Baltimore and Ohio R. R. Co.
    “ This is done to remove what appears to be an obstacle in your way in arriving at a conclusion, to wit, that the latter co., as lessee of the former, has no right to prosecute and collect this claim.
    “May I beg for the case your early'and, I trust, favorable decision?
    “ Respectfully, yours,
    “Frank P. Clark,
    “ Attorney for the Winchester and Potomac B. B. Go.”
    
    
      April 18,1887, tbe Third Auditor again reported upon the claim in the -name of the present claimant, recommended its disallowance, and certified the same to the Second Comptroller. The farther action in the Treasury Department appears by the following letters:
    “ Treasury Department,
    “ Second Comptroller’s Oeeice,
    
      “Washington, D. C., March 9th, 1889.
    
    
      “ Hon. William Windom,
    
      “Secretary of the Treasury:
    “ Sir : In pursuance of the provisions of section 1063, Ee-vised Statutes, I hereby certify that the claim of the Baltimore and Ohio E. E. Co., as lessees of the Winchester and Potomac E. E. Co., against the United States, now pending in this Department — claim No. 84338 — is one that involves disputed facts and controverted questions of law; questions that this office has not the proper means to'examine and determine; and that the amount in controversy exceeds three thousand dollars.
    “ I therefore transmit herewith the vouchers, papers, proofs, and documents pertaining to said claim, on file in this office, being thirty-three separate papers, as set forth in the “ list” hereto attached, with request and recommendation that the case be transmitted, with all said vouchers, papers, documents, and proofs, to the Court of Claims for trial and adjudication.
    “ Yery respectfully,
    “Sigourney Butler,
    
      “ Comptroller P
    
    “Treasury Department,
    “Oeeice oe the Secretary,
    “ Washington, D. C., March 12,1889.
    
    
      “To the Chief Justice a/nd Judges of the Court of Claims :
    
    
      “ Under the provisions of section 1063 of the Eevised Statutes of the United States, I herewith transmit to your honorable court, upon the certificate and recommendation of the Second Comptroller, the claim of the Baltimore and Ohio E. E. Co., as lessees of the Winchester and Potomac E. E. Co., against the United States, with all the vouchers, papers, proofs, and documents pertaining to said claim, for trial and adjudication as provided by láw.
    “The Secretary is in doubt whether the Department has jurisdiction of the claim herewith transmitted, and the question of jurisdiction and authority to transmit the same to your honorable court is therefore submitted with the other questions in the case.
    
      u Eespectfully, yours,
    “Hush S. Thompson,
    
      “Acting Secretary.”
    
      Mr. Frank P. Clark for the claimant:
    
      Mr. Henry M. Foote (with whom was Mr. Assistant Attorney-General Cotton) for the defendants:
    The court would be bound to dismiss the petition in this case (which was filed June 24, 1889), were it not for the provisions of section 1063, under which it is being considered, and even under this section the limitation would apply if the claim is not within the principle of the cases of Lippitt and Finn, which are accepted as authority by this court for entertaining jurisdiction of the case under its finding of facts. We accept the rule laid down in these cases as conclusive against the right of claimant to recover upon the facts as we understand them to appear by the record; and we maintain that the Winchester and Potomac Eailroad Company never presented its claim for the proceeds or value of this iron to any department of the Government, and no claim upon which a settlement could have been made (had it been legally presented), was ever presented until that filed by the Baltimore and Ohio Eailroad Company on the 11th day of May, 1885, as set forth in finding x.
    
      “A claim,” said Lord Dyer, in Stowell vs. Lord Zouch, Plowd., 359, u is a challenge by a man of the property or ownership of a thing which is not in his possession but is wrongfully detained from him” — and as was said by the court in Prigg vs. Pennsylvania (16 Peters, 540) :
    “A ‘claim,’ in a just judicial sense, is a demand of some matter as of right, made by one person upon another to do or forbear to do some act or thing as a matter of duty.”
    The doctrine therefore announced in the Finn case is to the effect that unless a claim has been presented to the proper Department within six years from the time a right of action accrued by voluntary petition in this court, that the court has no jurisdiction to consider it although transmitted under section 1063. And tbe court said referring- to tbe petition filed in a transmitted case:
    
      “ In sucb cases tbe statement of tbe facts upon wbicb tbe claim rests, in tbe form of a petition, is only another mode of asserting tbe same demand wbicb bad previously, and in due time, been presented at tbe proper Department for settlement.”
    Tbe court evidently in tbis opinion concluded that tbe section under consideration contemplated that tbe claim should not only have been a demand made upon tbe Department-for tbe same cause of action disclosed in tbe petition filed in court, but that it should have been so far proceeded in before tbe Department as that its identity should have been established, and tbe proceeding caused to assume a case or cause of action involving disputed facts or controverted questions of law.
    Tbe court speaks of it as being a case transferred, and tbe section itself is as comprehensive as tbe language of tbe court in its provisions that u tbe vouchers, papers, proofs, and documents pertaining to tbe claim shall be transmitted to tbe court.” In tbe case of WatMns (9 Wallace, p. 759) tbe court said, “That a claim to be legally presented to tbe Treasury Department should be presented by items and with proper vouchers.”
    Was tbis claim as described in tbe petition presented to tbe War Department within six years after it accrued within tbe reason, spirit, and letter of tbe section as interpreted by tbe Supreme Court?
    Can it be said that a request made to an officer not authorized to restore tbis property, and without authority to settle a claim for it, shall be considered in law or practice tbe presentation of a claim for compensation to tbe proper department of tbe Government? If tbe court entertains jurisdiction of this case it is upon tbe theory that a written request to Gen. Mc-Callum was in contemplation of tbe statute and tbe decision of tbe Supreme Court sucb a presentation. Was it so considered by tbe quartermaster-general? For nearly twenty years after tbis letter of Mr. Conrad was written no steps were taken by anyone and no efforts were made to effect a settlement of tbis controversy.
    No claim in tbe meantime, and as a fact none to tbe present day was ever filed by tbis claimant in any department of tbe Government for tbe value of this iron, and bad it not been for the interest displayed by the Baltimore and Ohio Eailroad Company (who are the real beneficiaries in this judgment) this court would not have been troubled about the assertion of a right which for some reason was allowed to rest for nearly a quarter of a century. The fact is, no case such as could be considered and acted upon was presented to the War Department until the 11th day of May, 1885, when that company forwarded its letter to the Department, and it is significant that the case transmitted is that of the Baltimore and Ohio Eail-road Company as lessees of this claimant.
    If the Department had considered that claimant had a claim pending before it, why was not some disposition made of it by reference here1? It is true that while the claim was pending before the Treasury Department claimant applied by letter to be substituted in place of the Baltimore and Ohio Eailroad Company as claimants, which application with the assent of the latrer company was allowed.
    Will the court against the logic of events which surround this cuse, and against claimant’s own interpretation of its legal status, give it a right upon which it had slumbered for twenty years?
   Eichabdson, Ch. J.,

delivered the opinion of the court:

It is a well-known historical fact that soon after the commencement of the war of the rebellion the Government took control of all the railroads in the seceding States. There was appointed a “ director and general manager of military railroads,” and the business formed one of the divisions of the Quartermaster-General’s Office in the War Department.

The claimant’s road, being so situated, was taken actual possession of, repaired, and run by the defendants. In making the repairs there was removed from the road a quantity of scrap iron, and “ T ” rails taken from the Manassas Gap Eail-road Company were put down in the place of the iron removed, and remained there until the road was surrendered to the claimants in January, 1866. The scrap iron so removed was stored in a warehouse of defendants in Alexandria, Va.

In May and July, 1865, the Quartermaster-General wrote letters to the Secretary of War (set out in finding iv) advising the following, among other things:

“ 1st. The United States will, as soon as it can dispense with the military occupation and control of any road of which the Quartermaster’s Department is now in charge,,turn it over to the parties asking to receive it who may appear to have the best claim and be able to operate it in such manner as to secure the speedy movement of all military stores and troops; the Quartermaster-General, upon the advice of the military commander of the department, to determine when this can be done, subject to the approval of the Secretary of War.
“ 3d. All materials for permanent way used in the repair and construction of the road, and all damaged material of this class which may be left along its route, having been thrown there during the operation of destruction or repair, to be considered as part of the road and given up with it.
“6th. All rolling stock and material, the property before the war of railroads, and captured by the forces of the United States, to be placed at the disposal of the roads which originally owned it, and to be given up' to these roads as soon as it can be spared and they appear by proper agents authorized to receive it.” .

These letters were indorsed July 23, 1865, by the Secretary of War as follows: “ The recommendation of1 the Quartermaster-General is approved, and he is directed to turn over the roads immediately.”

November 16,1865, the claimant’s president made application to the Secretary of War for a return of its road, which application was referred to the Quartermaster-General, who, on the same date, recommended compliance with the request. December 14,1865, the Secretary of War made this indorsement on the application: “Eeturned to the Quartermaster-General with directions to turnover the road to the company.” (Finding vi.)

There was some delay in carrying out this order, apparently while the claimant’s company was making arrangements for operating the road in compliance with the requirements of the War Department by the first of a series of “principles” or conditions recommended by the Quartermaster-General in his letter of May 13,1865, and approved by the Secretary of War.

The condition to be complied with by the claimant’s company before it became entitled to a return of its road and the iron is set out in the letter of the Secretary of War of August 8,1865, to General Thomas, commanding the military division of Tennessee, in connection with other roads similarly situated, as follows:

ul. Each and every company will be required to reorganize and elect a board of directors whose loyalty shall be established to your satisfaction.” (Finding y.)

The condition was treated by the Secretary of War, December 14, 1865, by said indorsement directing the road to be turned over to the claimant without mentioning the condition, as practically complied with. As there had been some oral communications between him and the president of the company it maybe presumed that the negotiations for leasing and operating the road by the Baltimore and Ohio Eailroad Company were known to him and the loyalty of its directors assumed, and that on this account the condition was in effect held to be satisfied. Whatever were the reasons, the same poAver which made the condition could determine Avhat was a compliance with its provisions, or could waive its performance in any case in accordance with its discretion.

By this order of the Secretary of War the claimant became entitled to the return of its road and to all the benefits of the executive order set out in the findings. The defendants thereafter, either because it Avas inconvenient to continue the storage of the iron any longer, or because it Avas so mingled with a large quantity of other iron that there was difficulty in restoring it in kind, proceeded to sell the iron for $30,340.00 and to use the proceeds, received early in January, 1866, for the benefit of the defendant through the War Department.

This brief statement, more folly set outindetail in the findings, shows the claimants to have a meritorious cause of action, and that they are entitled to recover unless their claim is barred by the statute of limitations because the petition was not filed within six years after the cause of action first accrued, according to the provisions of Eevised Statutes, section 1069, as interpreted by the Supreme Court with reference to claims transmitted to the court by the heads of Departments under Eevised Statutes, section 1063, as Avas done with this claim by the Secretary of War, March 12,1889.

In Finn’s Case (123 U. S. R., 227) the Supreme Court decided that “ when the claim is of such a character that it may be allowed and settled by an Executive Department, or may, in tbe discretion of tbe bead of sncb Department, be referred to tbe Court of Claims for final determination, tbe filing of tbe petition sbonld relate back to tbe date when it was first presented at tbe Department for allowancs and settlement,” substantially as bad been previously decided in Lippitt's Case (100 U. S. R., 663).

As early as November, 1865, tbe claimant made application for a return of tbe iron. Without questioning tbe claimant’s right to tbe same, but apparently while negotiations were pending with tbe -Baltimore and Ohio Eaüroad Company for operating the road, tbe matter was then postponed. Tbe claimant acquired a right to tbe iron when tbe Secretary of War directed tbe road to be turned over to it December 14, 1865, which carried with it, according to tbe executive orders, tbe same right as other roads similarly situated, to “all tbe rolling stock and material tbe property before tbe war, of railroads.”

Tbe Baltimore and Ohio Eailroad Company, by its president, wrote to tbe Quartermaster-General on tbe subject, and received a reply of facts, disclosed, it must be assumed, by tbe records of bis office. Some years after that tbe same company formally presented a claim to the War Department for tbe money for which tbe rails bad been sold.

This was referred to tbe Quartermaster-General, who made a report December 7, 1885, treating tbe claim as tbe same presented for tbe iron in 1865, and as still pending in tbe Department. He reported that “tbe claimant is entitled to tbe relief which tbe circumstances of the case seem to justify. But it is not believed to be in the power of tbe Executive Department to afford relief at this time without tbe intervention of Congress.”

Upon that report the Secretary of War made tbe following indorsement:

“ Tbe within report of tbe Quartermaster-General is approved, and tbe accompanying papers in tbe claim of tbe Baltimore and Ohio Eailroad Company for tbe proceeds of railroad iron, stated by tbe company at $30,340, are hereby respectfully referred (through office of tbe Quartermaster-General) to tbe Third Auditor of tbe Treasury for settlement horn tbe appropriation 1 Transportation of tbe Army and its supplies; ’ the amount found due to be reported to Congress for appropriation.”

It bas repeatedly been held that the absence of available money or an appropriation out of which payment could be made by executive officers, is no defense in this court to a valid claim against the Government. (Collins’ Case, 15 Ct. Cls. R., 35; Shipman’s Case, 18 Ct. Cls. R., 147, and other cases.)

We think these proceedings show a sufficient presentation of the claim to the War Department within six years after it occurred, within the principles laid down in the Lippitt and Finn cases. From 1865 down to the time of its allowance by the Secretary of War, in 1885, the same claim was pending in the Department, where all the facts were matter of record. Unlike claims originating outside of the Department and requiring other than record proof of their validity, it did not require that particular demand, either oral or in writing, exacted for the latter claims, so long as the attention of the Department officers wras called to it in any informal manner, and it was held under consideration by them.

The Quartermaster-General and the Secretary of War treated the claim as one pending there since the demand of the claimant’s president in 1805. (Finding vm.)

The claim was referred by the Secretary of War to the Third Auditor as one in favor of the Baltimore and Ohio Eailroad Company, who were lessee of the claimant and to whom, as being able to operate it, the road was in fact surrendered in I860. Before the auditor an amendment was allowed by consent of all parties substituting the claimant corporation instead of the Baltimore and Ohio Eailroad Company, as appears by finding x. This was right and proper, both because Department proceedings are not subject to rules of pleading and technicalities and because there was a privity between the two companies, and the claim was presented to the War Department by the Baltimore and Ohio Eailroad Company, as lessee of the Winchester and Potomac Eailroad Company, setting out the fact that the iron was taken from the latter company.

In our opinion the claimants are entitled to judgment for $30,340, and it will be so entered of record.  