
    THE PACIFIC RAILROAD v. THE UNITED STATES.
    [No. 11825.
    Decided March 2, 1885.]
    
      On the Proofs.
    
    The government sets up a counter-claim for rebuilding railroad bridges in Missouri during the war. maintaining that the work was done for the claimants’ benefit, with their actual knowledge and at their implied request, amid circumstances from which the law would imply a contract. Also that the destruction of bridges by the United States military authorities for the public safety imposed no obligation to rebuild. The claimants deny that the work was done at their request, and contend that the bridges were avowedly rebuilt for the government’s own military purposes, and that the law will not imply a contract where the plaintiff’s acts’ negative one.
    I.The right of the government in time of war to destroy bridges for the public defense or to rebuild them as a military necessity does not carry with it a right to force an implied contract upon the owner of the realty for the cost of the structures erected. Such a contract must rest upon the owner’s license, express or implied, and be subject to its limitations.
    II.- A conference between a military commander and the officers of a railroad concerning the rebuilding of certain bridges may be bad as a matter of contract but effective as a matter of notice.
    III.Where a railroad company assented to the government’s rebuilding certain bridges, assorting at the same time that those destroyed by its own military authorities should be rebuilt at its own cost, and only those destroyed by the public enemy at the cost of the company, the assent was in legal effect a license which set bounds to the liability of the one party and imposed conditions upon the acts of the other.
    
      The Reporters’ statement of the case:
    The following are the facts as found bv the court, so far-as they are involved in the decision of the case:
    I. In October, .1864, thirteen bridges upon the main line and southwestern branch of the claimant’s railroads had been burnt or destroyed during the then recent invasion of the State by the Confederate forces under General Sterling Price. Early in that month Major-General Eosecrans, commanding the Department of Missouri, summoned to an informal conference in Saiut Louis several gentlemen whom he regarded as the proper representatives of the management of the railroad, among them being the president of the company, the superintendent and engineer of the road, and several of the directors. By General Eosecrans it was stated that the immediate rebuilding of the bridges was a military necessity; that he should expect and require the company to do all in their power to put the roads in working order at the earliest possible moment; and that he intended to have what work they did not do done by the government, and withhold from the freight earnings of the road a suni sufficient to repay the government for such outlays as in law and fact it should be found entitled to have repaid. The gentlemen present assured General Eosecrans that they would do all in their power to rebuild the bridges and put the roads in working order at the earliest moment, but they at the same time represented that several of the bridges, as they believed, had been destroyed by the proper military authority of the United States, and that in such cases the government was properly responsible for the loss and should replace the bridges. Those which the public enemy had destroyed they conceded that the company should replace. General Eosecrans replied in substance :
    “ Gentlemen, the question of the liability of the government for repairing damages to this road is one of both law and fact, and it is too early now to undertake the investigation of that question in this stirring time. I doubt myself whether all the damages which you say the government should be responsible for will be found liable to be laid to the charge of the government. Nevertheless, whatever is fair and right I should like to see done. Yon tell me now, and I have been informed by some of your representatives individually, that the company’s means are insufficient to make these large re]) airs and make them promptly. Therefore, I want to say to you that, as a military necessity, we must have the work done, and shall be glad to have the company do everything it can, and I will undertake to have the remainder done, and we will reserve out of-the freights money enough to make the government good for that to which it shall be fouud to be entitled for rebuilding any or all of the bridges, and we will return the freights to you or settle with you on principles of law and equity.”
    
      The gentlemen interested in the company reiterated their view of the case, that the company should pay for bridges destroyed by the public enemy, and that the government should replace at its own cost the bridges destroyed by its own military authorities. These mutual representationsaud assurances were not intended or understood on either side to form a contract or agreement binding the government or the company. No formal action thereon was taken by the board of directors as such; and there is no proof that the mutual assurances and representations of the conference were ever notified to the directors, save as that fact may be inferred from the facts and circumstances hereinafter set forth in the succeeding findings. It is, however, found that the company, through their directors and officers, promptly exerted themselves in restoring the roads to running order to the full extent of their power, and that they co-operated with the government in so doing, as hereinafter set forth.
    II. At or about the time of the conference referred to in the preceding findings General Rosecrans reported to the Secretary of War by the following telegram:
    “ Hdqes., St. Louis, Mo., Oct. 12, 1864.
    “Hon. Edwin M. Stanton,
    “ Sec. of War :
    
    “ The rebuilding of che bridges on the Pacific R. R., recently burned by the rebels, are essential and a great military necessity in the defence of this State. The railroad co. is unable to replace them.
    “Please authorize Ool. Myers to have them rebuilt at once, the TJ. S. to be reimbursed the cost out of freight on the road.
    “W. S. Rosecrans, ,
    “ Maj. Gen.”
    
    Upon the receipt of the report it was acted upon by the Secretary of War, as shown by the following reference, recommendation, and orders:
    “ Referred to the Quartermaster-General for report.
    “ Edwin M. Stanton,
    “ Sec. of War.
    
    “ OCT. 12, 1864.
    “ Oct. 12, 1864, 8, 1, 2 p. m.
    “ Respectfully returned approved. I recommend that Gen’l Rosecrans be informed that Gen’l McOallum, sup’t of military railroads, will be directed to take the necessary measures for the purpose immediately.
    “ Respectfully,
    “M. 0. Meigs.
    “ I inclose copy of a letter of instructions to Gen’l McCal-lum, which will be carried out if approved.
    “ Respectfully submitted.
    “ M. C. Meigs, Q. M. G.
    
    “Approved.
    “Edwin M. Stanton,
    “ Sec. of War.
    
    “ Washington, 12th Oct., 1804, 8,1, 2 p. m.
    “ Bvt. Brig. Gen’l D. C. MoOalltjM,
    
      “Director and Swp’t Mil’y Railroads, Washington :
    
    “ General : General Rosecrans reports the inability of the Pacific Railroad Go. to rebuild the bridges lately destroyed by the rebels in Missouri, and advises that it is a military necessity that they be rebuilt at once.
    “He desires that Col. Win. Myers, quar’master at St. Louis, be authorized to rebuild them, the cost to be reimbursed out of freights earned by the railroad.
    “The rebuilding is approved; you will report the measures to be taken for this purpose. Col. Myers will be instructed to act in the matter as may upon your report appear to be best for the service.
    “ Respectfully, your ob’t serv’t,
    “M. G. Meigs,
    “ Q. M. Gen’l, Brvt. Maj. Gen’l.
    
    “ Quartermaster-General’s Office,
    “ Washington, D. 0., Oct. 13, 1864.
    “Maj. Gen W. S. Rosecrans,
    “ Corn’d’g, St. Louis:
    
    “ General McCallum will cause the Pacific Railroad bridges to be rebuilt by the quickest and surest possible means. He will communicate with Gol. Myers. Send engineers and skillful contractors to erect trestles and complete bridges.
    “(Telegraph cipher.)
    “M. 0. Meigs,
    “ Qr. Mr. Gen’l, Bvt. Maj. Gen’l, 77. S. A.”
    
    After the issuing of the foregoing orders General McCal-lum remained in charge, and General Rosecrans took no further part in the matter. It does not appear that the company had knowledge or notice of the foregoing reports and orders, or of the terms thereof.
    
      III. On the 1st November, 1864, the president of the company addressed the following letter to the chief quartermaster of the Department of Missouri, by whom it was transmitted to General McOailum:
    “PRESIDENT’S OFFICE, PACIFIC IiAILROAD,
    
      “St. Louis, Nov. 1, 1864.
    “Col. Wm. Myers, A. Q. M., U. S. A.:
    
    “Sir: The delay on the part of the War Dept, in providing for the repairing and rebuilding of the bridges on this road has prompted the company to unusual resources for some of them, and I therefore beg to say that we are constructing .the Gasconade and Moreau bridges ourselves, and expect to have them ready by the 25th of this month, leaving only the Usage to be replaced. In view, then, of the avoiding any misunderstanding on the part of General McOailum in the premises, may I request that you immediately communicate the facts by telegram, as those with whom he has contracted may be led into error. I repeat that the only bridge on the main line to be replaced by the government is the Osage, 1,200 feet in length, this company having replaced all the smaller and are now replacing all the larger ones.
    “I learn that McNairy, Olaflin & Co., with whom Gen. Mc-Callum contracted, are at Cleveland, Ohio.
    ‘•‘I am, most respectfully,
    “ G. R. Taylor, Pres’i.”
    IY. The bridge across the Osage, referred to in the preceding finding, had been destroyed on the 5th October, 1864, by order of Brig. Gen. Egbert B. Brown, commanding the central district of Missouri, he in so doing acting under instructions from General Rosecrans to “ use every means in his power to prevent the advance of the enemy.” The court finds that the destruction of the bridge was ordered to prevent the advance of the enemy and for the public defense, and that the exigency appeared to the officer, and in fact was, of the gravest character and an imperative military necessity. Subsequently to the letter set forth in the preceding finding the government rebuilt the bridge, and expended in so doing the sum of $96, L52.65. The bridge across the Moreau, referred to in the preceding finding, had likewise been destroyed by command of the samé officer and in the same military exigency. The company, as indicated in the letter of their president, proceeded to rebuild it, but during the progress of its reconstruction it was washed away by a freshet in the river. The company being then in financial embarrassment were unable to resume the work, and the bridge was rebuilt by tbe government, which expended in so doing the sum of $30,801. On the southwestern branch of the railroad two bridges across the Maramec River had been destroyed, but not by the forces of the United States. Nevertheless they were rebuilt by the government, which expended in so doing the sum of $54,595.24, making a total of $181,548.89 expended in the rebuilding of the four bridges. The remaining nine bridges were rebuilt by the company.
    V. As soon as the bridges were rebuilt the company resumed the management and operation of their roads. Neither before nor after the destruction of the bridges did the government take possession of or operate the roads by its own agents; but the company, after as before, continued to carry passengers and freight for the government, and the government continued to pay for the services so performed. No claim growing out of the destruction or reconstruction of the bridges was asserted by either party against the other from the completion of the bridges, in the spring of 1865, until the 28th June, 1867.
    
      Mr. James Coleman for the claimant:
    1. The United States military forces took possession of this railroad because they had the power to do so. They rebuilt the bridges, without either the consent or the assent of the railroad company, because they were compelled by military necessity to have them. They deducted what they expended in rebuilding them from what they owed the railroad company, without the consent of the company, and the railroad company was powerless to prevent their so doing.
    It was for the benefit of the military service that the bridges were reconstructed by the United States, and the necessities of the company were not considered.
    2. It is equally clear that the United States rebuilt the bridges without any agreement on the part of the railroad company to pay them for so doing. By the charter of the company such agreement could only have been entered into on behalf of the railroad company by the officers of the company, as such, in the manner prescribed by the act of incorporation.
    3. We submit that because the company did not object to the United States repairing the bridges, or protest against it, there is no authority which can hold that the company by any act agreed to reimburse the United States.
    '4. There was neither an agreement on the part of the company to repay for rebuilding the bridges, nor consent or assent that they should be rebuilt at the expense of the company. Until the terms of the agreement have been received by the assent of both parties, the negotiation is open and imposes no obligation upon either. (Carr v. Duval, 14 Pet., 76; Parsons on Contracts, vol. 1, 475; Bruce v. Parsons, 3 Johns., 534.)
    5. The doctrine contended for as to the liability of the government to make compensation to the owners for private property taken by the government for the benefit of the public has been recognized by all publicists and writers on civil law, and determined by the courts of both England and America. And not only is it the doctrine established in this country by authority of law, as found in the decisions of our courts, but the legislative branch of our government have over and again recognized the doctrine by payment of like claims. There cannot be a case found ujion the statute-books where a claim of this kind has been turned from the doors of Congress unsatisfied.
    The principle of the liability and obligation of the government is well settled by authority, and has been well settled by moralists and jurists ever since the days of the civil law. (Yat-tel, 112, 403; G-rotius, b. 2, ch. 14, sec. 7; b. 3, cli. 20, sec. 7; Bradshaw v. Rogers, 20 Johns., 103.)
    Whether or not the government exercises the right of eminent domain in taking the property, or whether it acts from necessity outside of the constitutional principle, in either case the sufferer is entitled to compensation. (Mayor of New York v. Lord, 17 Wend., 285-201; Mayor, &c., of New Yorlc v. Lord, 18 Wend., 126; Stone v. Mayor, t&c., of New York, 25 Wend., 173;. Grant v. U. 8., 1 C. Ols. B., 41.)
    This decision was reaffirmed in this court in case of Wiggins v. 77. 8., 3 O. Ols. B., 412, and afterwards in Bussell v. U. 8., affirmed by the Supreme Court in 13 Wallace.
    Chief Justice. Taney says: “There are without doubt occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also when a military officer, charged with a particular duty, may impress private property into the public service or take it for public use. Unquestionably in such cases the government is bound to make full compensation to the owner, but the officer is not a trespasser.” (Mitchell v. Harmony, 13 How., 135; Bussell v. The United States, 13 Wall., 623.)
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    1. The destruction of the bridges by the Federal troops as part of a military movement imposed no obligation, legal or moral, to pay therefor. The question before the court in Mitchell v. Harmony was not the responsibility of the United States, but of Colonel Mitchell. Anything said concerning the former was not essential to nor involved in the decision, and is the individual opinion of Taney, C. J.
    This court, in Mrs. Perrins Case (4 C. Ols. R., 543), has very clearly laid down the law, in the opiuion of Casey, C. J., as follows:
    “ No government, except as a special favor bestowed, has ever paid for the property of even its own citizens in its own country destroyed in attacking or defending against a common public enemy.”
    The doctrine in Grant’s Case and the dictum in Mitchell v. Harmony are contrary to numerous carefully considered principles. (Bespuhliea v. Sparhawlt, 1 Hall., 357 ; Taylor v. Nashville and Chattanooga Railroad Company, 6 Cold well, 646; Par-hams. The Justices of Decatur County, 9 Georgia, 348; Surocco v. Geary, 3 Cal., 69; American Print Works v. Lawrence, 1 Zab., 248; Rimell v. The Mayor of Hew York, 2 Denio, p. 461; McDonald v. City of Bed Wing, 13 Minn., 38; American Print Works v. Lawrence, 3 Zab., 1, S. 0., 604; Whiting' on War Powers under the Constitution of the United States, 340, 341.
    2. General Rosecrans distinctly informed such of the directors and officers as he could find that he was not rebuilding for the purpose of reimbursement. ,
    3. Wherever the authority may have rested to compensate this company for its loss, it is certain that it was not reposed in General Rosecrans, the Quartermaster-General, or the Secretary of War.
    
      4. Tbe directory of the company did not understand that this rebuilding was compensatory, nor did it inform the stockholders to that effect.
    5.'While the reconstruction of the bridges was a military and political advantage to the United States, the pecuniary benefit® to the company were none the less on account of this advantage, and the tacit acceptance of our work, first by the officers in charge of the road and second by the stockholders, created the implied contract. (United States v. Dandridge, 12 Wheaton, 70.)
    It is a well-settled principle of law that wherever a party avails himself of the benefit of services done for him, although without his positive authority or request, the law supplies the formal words of contract and presumes him to have promised an adequate compensation. (Abbot v. Sermon, 7 G-reene, 121; Fisher v. School District, 4 Gush., 494; Lewis v. Trielcey, 20 Barbour, 387; James v. Bixby, 11 Mass., 34; Farmington Academy, 14 Mass., 174.)
   Nott, J.,

delivered the opinion of the court:

This case, which has been twice argued, has twice presented some of the most perplexing questions of constitutional and international law, and of the conflicting rights of the government as a sovereign and as a contracting party, that have been before the court for many years. A closer analysis of the facts, however, has separated the relevant from the irrelevant, and so simplified the ultimate questions to be determined that the court is now able to reach its conclusions with a sense of tolerable certainty, if not of absolute freedom from doubt.

The controversy arises entirely from the cross-action of the defendants, who seek to recover for the building of certain railroad bridges in Missouri in 1864-65. On the part of the government it is maintained that the destruction of those bridges was an act of war and the rebuilding of them a matter of contract ; that no liability having been incurred for an act performed' for the public defence, and the bridges having been rebuilt with the claimants’ knowledge, under their tacit permission, and for their immediate use and benefit, the law implies a contract to pay the fair value of the service so rendered. This is good law, and if properly applicable to tbe facts of tbe case leads to an inevitable conclusion.

On tbe part of tbe claimants it is maintained that the bridges were rebuilt for military purposes, tbe reconstruction being, like tbe destruction of them, a matter of public defense; that the government was morally and equitably, if not legally, bound to rebuild where it bad destroyed; that tbe claimants never requested tbe rebuilding and never authorized it, tbe government avowedly rebuilding for its own uses and purposes, without regard to any supposed agreement or consent; and that tbe law will not imply a contract where tbe plaintiff’s acts negative one. This also is good law, and if it covers tbe whole of tbe case likewise leads to an inevitable conclusion.

Viewed from tbe standing place of either counsel, tbe problem is easy of solution. Its difficulty lies partly in tbe fact that tbe premises of each party do not cover tbe entire ground, but chiefly in the perplexity of finding the right analogy of municipal law where one of tbe parties to tbe alleged implied contract comes into court in tbe duplex character of belligerent and contractor, and where questions of Constitutionalrigbt and military necessity intermingle with questions of voluntary agreement.

There are numerous cases in the books illustrative of this chapter of tbe law of implied contracts; but generally they may be resolved into questions of- license or of trespass. If one man goes upon tbe land of another under a license, express or implied, and does work beneficial to tbe owner, with bis knowledge and assent and in tbe reasonable expectation of being paid for it, tbe law imputes to tbe owner both consent and request, and therefrom implies a contract. But if a man goes upon tbe land of another in tbe character of a trespasser, asking no license, seeking no remuneration, and intent only upon bis own purpose, be cannot- subsequently assume tbe character of a contractor, but must leave tbe fruit of bis labor, whatever it is, behind him, and it inures to the benefit of tbe owner. If tbe government bad been an ordinary bridge-builder, going about tbe country seeking work for gain, and tbe railroad company bad stood by acquiescing in and profiting by those services, tbe defendants’ demand would fall within tbe first class and tbe claimants be liable upon tbe counter-claim. And conversely, if nothing bad passed between tbe parties looking like assent, but the government had gone upon the land of the claimants without their knowledge or against their protest and rebuilt these bridges for its own military purposes, giving no> notice, asking no co-operation, the facts would negative the implied request which the defendants allege, and nothing could be recovered for the work which they did in their own wrong, though the user and the benefit inured entirely to the claimants.

But the case has facts which forbid that it should be assigned to either class, and the question of difficulty is what legal obligation should be deduced from the peculiar and unprecedented circumstances and conditions which involve it. In dealing with that question the court has reached the following conclusions: ■

1. The conference held by General Rosecrans with the presi-dentandsome of the directors of the companymaynot havebeen effective as a matter of contract, but was effective as a matter of notice. It is true that the charter of the companyplaced the control and management in a board of directors, and that the board was the one controlling authority of the company; yet, nevertheless, bodies corporate are operated by agents, and, like other principals, their responsibility is measured by the law of agency. No man when he brings an action against a corporation is bound to get together the directors and serve a writ upon the assembled board. No man who has a notice to give is obliged to await the meetings of the directors and make the notification personal to them. The laborer who renders his service, the tradesman who delivers his goods to a body corporate through the proper channel of its proper executive officers, cannot be defeated, when seeking his just compensation, by the usual provision in the charter that the affairs of the corporation shall be managed by a board of directors. In this case, if the action of the board was needful either to permit or forbid the rebuilding of the bridges, it was the business of the president and superintendent, and not the business of General Rosecrans, to summon the board and bring before them the proposed action of the government.

We therefore regard the conference, which was never disavowed by the board of directors, as being to all intents and purposes a conference in which the corporation, through their executive officers, were in law as in fact participants. We agree that the board might, within a reasonable time, have disavowed the presence of their officers and notified the government of the company’s determination not to permit the rebuilding of the bridges, but we are satisfied, both by the silence of the directors and by the subsequent action and co-operation of the company, that the proposals and notice of General Bose-crans were as effective as if they had been addressed in writing and delivered directly to the board.

The rights and liabilities of the parties, therefore, must be measured and ascertained with reference to the representations and assurances which were mutually given to each other at that conference.

2. In matters of contract the parties stand upon an equal footing, and it is essential to the existence of an express contract that there be that mutual consent and agreement which courts have called the meeting of minds.” Where there is no consent there is no contract. But there are other transactions among men wherein they do not stand upon an equal footing, and wherein one may dictate terms to the other. If a debtor owe two debts to the same creditor, he may designate at the time of payment upon which the money shall be applied, and the creditor cannot aver that, on the contrary, if it be paid he shall apply it otherwise. If he takes the money he will take it, no matter what he may say, upon the terms prescribed by him who pays it.

So when a man seeks a license to go upon theland of another, it is for the owner to prescribe the terms; and whenever the terms of the license can be ascertained they measure the rights of the one party and the liabilities of the other. What General Bosecrans said he would do or would not do was immaterial, for it did not lie in the mouth of the government, as a would-be contracting party, to dictate terms to the owners of the property under whom and to whom they, sought to render a contractor’s service. On the contrary, the railroad company, as owners of the land had the legal right to limit the terms of their consent; and when they exercised that right, prior to the rendering of the service, they set bounds to their own liability and imposed conditions upon the government. Those conditions limited its future right to remuneration.

“A license is an authority to do a particular act or series of acts upon the land of another, without possessing an estate therein”; “and it is strictly a matter of favor, and in no sense a matter of right.” (Morgan & Rhinehart’s Case, 14 C. Cls. R., 319.)

The license which was accorded to the government through General Eosecrans was in substance this: That the government might go upon the laud of the company and do all things needful for its military purposes and the public defense, but upon condition, nevertheless, that those bridges which had been destroyed by the order of its own military authorities should be rebuilt at the cost of the United States. We are not unmindful that General Eosecrans said in reply that he would subsequently investigate the matter and determine the right of it according to law and justice; but it is clear, we think, that the representatives of the company stood fast in their position, maintaining always that such bridges as had been destroyed by the proper military authorities of the United States ought to be and must be rebuilt at the cost of the United States, and that for them the company would not be accountable; conceding at the same time that bridges which had been destroyed by the ^public enemy might be rebuilt by the government at the cost of the company.

3. If the case stood exclusively upon the conference with General Eosecrans, the license there accorded would measure the responsibility of the company, am i the defendants here would be entitled to recover only for the two bridges across the Mara-mec; but it appears that the government did not act immediately under that license, and that, so far as the main line of the road was. involved, the license was modified and enlarged by the letter of November 1, 1864, from the president of the company to the chief quartermaster of the department. When that letter is construed in the light of the previous and then continuingarrangement, it meant, we think, that as to the southwestern branch of the road the designated terms and conditions of the license should continue unchanged, but that as to the main line the license should be enlarged to this extent: That if the government would rebuild the bridge across the Osage at its own cost, it should be reimbursed for any other which it might rebuild upon the main line. The government thereupon proceeded to rebuild the bridge across the Osage almost immediately after that letter was sent; and, nothing to the contrary be-iug shown, it mast be inferred that the government acted upon the faith thereof.

In this plight the evidence leaves the case so far as notice, consent, license, and agreement are involved. The government proceeded to rebuild the bridge over the Osage and the company to rebuild the bridge over the Moreau, both of which had been destroyed by the military authorities of the United States. But when the latter was nearly completed by the company it was carried away by a freshet, after which it was rebuilt by the government. Nothing is before the court to show what correspondence, request, representation, or arrangement led to that result. We must therefore conclude that the service of the government was rendered under the modified arrangement above described, viz, that if, the government would rebuild the one bridge the company should rebuild the other. The company having failed to carry out its part of the agreement, it must be inferred that the government acted at its request and on its behalf, and should recover for the rebuilding of the bridge over the Moreau.

The judgment of the court is that, the claimants being entitled to recover on their cause of action $130,196.98 and the defendants being entitled to recover on their counter-claim $85,396.24, judgment be entered in favor of the claimants for the balance, to wit, the sum of $44,800.74.  