
    Benjamin B. Dykes’s Administrator v. The United States.
    
      On the Proofs.
    
    
      The Confederate forces take and occupy property adjoining the Andersowoille prison. After the capture of the place the forces of the United States continue to occupy and use the premises. This occupancy for military purposes continues until 1875.
    I.“Where real property was appropriated “by the Army engaged in the suppression of the rebellion, this court is precluded by the Act Ath July, 1864 (13 Stat. L., p. 381, § 1, ch. 240), from entertaining jurisdiction of an action for an implied rent, though the occupancy continued subsequent to the suppression of the rebellion'.
    II.An action for rent against the government must be governed by -well-settled principles of the common law applicable to individuals.
    III.An action for rent against the government, as against individuals, - must be founded upon privity of contract, xrpon a holding by permission of the owner and a promise by the occupant, express or implied, to pay rent.
    IY. Where one is in possession of land as a mere trespasser, the owner cannot waive the tort and maintain an action on an implied contract for the use and occupation.
    Y. This court has not jurisdiction of an action against the governmentfor the use and occupation of real property, unless the claimant can establish a promise, oxpress or implied, to pay rent.
    YI. Where military officers seized real property in the insurrectionary district, during the war, and continued to occupy it after the suppression of the rebellion, under a claim of right, no promise can be implied on the part of the government to pay rfent.
    
      The Reporters' statement of the case:
    The following are the facts of this case as found by the court: I. In the year 1862, Benjamin B. Dykes, who instituted this action, was the reputed owner-and in possession of about 873 acres of land in and around Anderson, subsequently called Andersonville, in the State of Georgia.
    
      II. Some time during’ that year, tbe Confederate States of America, so called, through their military authorities, established, near said land, a military prison for the confinement of captured Union soldiers, known as the Andersonville prison-pen. They also, at the same time, took possession of all said land, except about 12 acres with a dwelling-house thereon occupied by said Dykes, and used the same in connection with the prison for military purposes during the rebellion, and until they were forced to evacuate and abandon the property upon the approach of the Union armies, in the spripg or summer of 1865.
    They constructed thereon various temporary structures, not attached to the freehold, for the use of the Confederate officers and soldiers who guarded the Federal prisoners, and for cooking purposes for themselves and the prisoners, and for hospitals and other purposes connected with the management of the prison.
    III. In May, 1865, all of said land and buildings thus previously occupied and used by the rebel authorities were captured, seized, and appropriated by the Army of the United States engaged in the suppression of the rebellion.
    Under that seizure the United States officers, through the War Department, continued to hold possession and control of the land until 1875. In the year 1868 they established a national cemetery on part of the land, and more than 13,000 of deceased soldiers of the Union forces were buried there.
    IV. In the summer or autumn of 1868 said Dykes made demand for the return of said land to him, but his demand was not acceded to by the Secretary of War, who directed the officer in charge to hold possession of the property for the United States. The action of the War Department appears in the following reports and orders:
    
      " Quartermaster-General’s Oeeice,
    “ Washington, D. 0.,June 1th, 1869.
    
      il Honorable J. A. Rawlins,
    
      "Secretary of War, Washington, D. O.:
    
    
      " Sir : I have the honor to submit herewith certain papers relating to lands at Andersonville, Georgia, which were occupied by the rebel government as the infamous prison of Andersonville, for hospitals and other buildings connected therewith.
    This prison and its adjuncts having been captured by the U. S. forces, have been held since by the Quartermaster’s Department.
    
      “ Whether tbe lands were ever sold to the rebel authorities,, or whether they were leased or given to them by sympathizing owners, the United States, I think, should be held to have acquired possession and title as successor to those who erected the stockade and buildings, and starved so many thousand patriotic men.
    “I do not think the land should be allowed to revert to the former owners, some of whom, it has been stated, have boasted that the soil, enriched by the bodies of our martyrs, would produce excellent wine, and should be converted into vineyards. These people should not be allowed to make themselves drunk on the blood of their enemies — our friends. It ought to remain •desolate forever, in respect to the memory of the martyrs who suffered and perished on it.-
    “ Thirteen thousand seven hundred and five graves of the martyrs who fell here, victims of the Andersonville barbarities, are located on a portion of the land in question. Twenty-five acres of ground are inclosed for a national cemetery, and it is believed that that amount of land is amply sufficient for that sacred purpose ; it is not intended, nor is it recommended, to make any additional expenditure for the clearing or fencing of more ground for cemeterial purposes.
    “I recommend that the general commanding the Department of the South be instructed to hold the land as belonging: to the United States — at least until the United States is shown to be unable to hold it.
    “I am, sir, very respectfully, your obedient servant,
    “M. C. Meigs,
    
      11 Quartermaster General, Brevet Major-General
    
    
      United States Army?
    
    flndorsements.]
    “War Department,
    “Bureau op Military Justice,
    “ Washington, I). O., June 10,1869.
    “Respectfully returned.
    “The views and sentiments so earnestly and eloquently expressed by the Quartermaster-General are fully concurred in by this bureau.
    “As no formal claim to the lands described, so defined as to be capable of examination, appears yet to have been made, it would seem to be premature to decide how far the government can or will enforce those rights of capture and conquest on which its title must depend.
    “When a claim adverse to its occupation of the premises shall be urged, and the grounds on which it rests brought to' light, then it will be time to consider and determine whether the nation can be brought to surrender soil consecrated by the martyrdom and as the resting place of its fallen heroes, to the keeping and desecration of the traitors through whose barbarities these graves have been filled.
    “ It is believed, therefore, that the recommendations of the Quartermaster-General that the military occupation of the lands and houses referred to, with their adjuncts, be for the present continued, should be followed.
    “J. Holt,
    
      “Judge-Advocate- General.
    
    “Approved by the Secretary of War, and respectfully referred to the General of the Army to give the necessary instructions.
    “E. D, Townsend,
    
      11 Adjutant-General.
    
    “War DEPARTMENT, June 11,1869.”
    “A. G. O., June 12,1869.
    “ Respectfully referred to the commanding general of the Department of the South, who will see that the cemetery grounds at Andersonville are held in possession of the United States.
    “ W. T. SHERMAN, General.”
    
    V. In the spring of 1875 the United States purchased from said Dykes about 101 acres of said land, including the cemetery proper and the land adjacent thereto needed for its maintenance; and thereupon the Secretary of War, on the 2d. of March, 1875, surrendered possession of the remainder of the property to said Dykes as the reputed owner. The claimant, in his brief, waives all claim to rent of the land thus purchased by the defendants.
    VI. The rentable value of said land and property, exclusive of the 101 acres purchased by the United States, from September 29, 1869, six years before the commencement of this action, to the time when they were surrendered by the Secretary of War was $2,031.25.
    VII. Said Dykes died after the commencement of this action, testate; and Jerre Aycock was appointed by the ordinary of Sumter County, Georgia, January 6, 1879, administrator of his estate with the will annexed.
    
      Mr. Thomas Wilson and Mr. JSnooh Totten for the claimant.
    
      Mr. A. I). Robinson (with whom was the Assistant Attorney-General) for the defendants.
   Richardson, J.,

delivered tbe opinion of the court:

The claimant seeks to recover for the use and occupation, by the defendants, of certain real estate reputed to be owned by his testator at Andersonville, G-a., adjoining the famous rebel Andersonville prison-pen, seized and appropriated by the Army of the United States engaged in the suppression of the rebellion, May, 1865, and held by order of the War Department until the spring of 1875.

At the outset he is met with an objection to the jurisdiction of the court, founded upon the provision of the Act July 4,1864 (13 Stat. L., p. 381, ch. 240, § 1), re-enacted by the act of 1875, February 18, ch. 80, and incorporated into section 1059 of the second edition of the Bevised Statutes in the following words:

“The jurisdiction of the Court of Claims shall not extend to any claim against the United States growing out of the destruction or appropriation of, or damage to, property by the Army or Navy engaged in the suppression of the rebellion.”

The counsel for the claimant concede that this statute is an effectual bar against the power of this court to allow compensation to owners of property appropriated by the Army engaged in the suppression of the rebellion, for the use or occupation of real estate held by such appropriation while the rebellion continued. But they insist that as soon as the rebellion ended, as it did in the State of Georgia on the 2d of April, 3866 (The Protector, 12 Wall., 700), then the operation of that enactment «eased as to the future and continuing use by the United States or its military authorities of lands which the Army had previously captured, seized, and appropriated.

They further insist that the holding and use of the claimant’s property after the suppression of the rebellion, in time of peace, is a taking of private property for public use, for which they are entitled to just compensation by the provisions of the Constitution. (Const. Amend., art. 5.)

These very questions arose in the case of Bishop & Westcott (4 C. Cls. B., 448), and were then passed upon and decided; the court saying:

“But the act of 1864 cuts off our jurisdiction in all cases which grew otit of the appropriation of the premises in question. We have shown that the United States entered rightfully, and it is not pretended that they assume to hold over under any other or different right than that under -which they entered. It may be wrong that they continue to hold the premises after the close of the war; but, if so, it is a wrong which this court has no power to redress.
“We cannot assent to the position that the seizure of this; property was made under the exercise of the inherent sovereign power of the State to take private property for public use, but it was a capture, or seizure, under express authority of the Act of August 6, 1861 (12 Stat. L., 319), which is widely different from a taking under the right of eminent domain. In the one case, private property cannot be taken without just compensation ; but in the other, it may be, and the title under the confiscation acts absolutely divested.
“ But be this as it may, the continued possession by the United States under the right by which they first seized the premises brings the case within the act of 1864, and excludes the jurisdiction of this court.”

Independently, however, of that statute and that decision* there is a fatal defect in the claimant’s case. The action is substantially that of assumpsit for use and occupation of land, which is governed by well established and familiar principles of the common law. It is founded upon privity of contract; upon a holding by permission of the owner of the property, and a promise by the occupant to pay rent, either express or implied. Mere occupancy under circumstances which are inconsistent and at variance with the presumption of such permission and promise is not sufficient to establish a cause of action.

Where one is in possession of land as a mere trespasser, the-owner cannot waive the tort and maintain an action of contract for use and occupation. The action does not lie against a vendor who remains in possession after having conveyed his title; nor against one who occupies under a contract to purchase which is not consummated; nor against a tenant in common by his cotenant; nor against one claiming title to the property in himself, or otherwise holding by a claim adverse to that of the rightful owner. (Smith v. Stewart, 6 Johns., 46; Carpenter v. United States, 6 C. Cls. R., 156; Langford v. United States, 101 U. S., 341.)

These principles involve more than the mere form of the action, which is immaterial in this court, where all cases are commenced by petition. They go to the merits of the case, since the court has no jurisdiction of cases of trespass and other torts, and cannot award judgment for mesne profits as in a real action. The claimant must prove a promise, either express or implied, or he has no standing here.

The findings show beyond all question that the land for which rent is now claimed was taken and held neither by permission of the claimant nor with the intention on the part of the defendants or any of their officers to pay rent for it. The reputed owner was a citizen of a State in rebellion, and so, in law, was a public enemy. (Greeks Case, 10 C. Cls. R., 466; Desmare’s Case, ib., 385; affirmed 93 U. S. R., 605; United States v. Huckabee, 16 Wall., 414.) The property was seized by the military authorities in time of war because it had been occupied and used by the rebels in connection with the Andersonville prison-pen, and it continued to be held on that account, as incident to the war, long after the rebellion had been suppressed.

Nothing could have been further from the intention of the officers of the United States than the payment of rent for such property thus taken possession of and held by them. This is made manifest by the report of General Meigs in reply to the demand of the claimant’s testator in 1868 for a return of the property to him. This report was approved by Judge-Advocate-General Holt, and by the Secretary of War, who referred it to the General of the Army, to give the necessary instructions for the enforcement of its recommendations. In that report we find the grounds on which the Department of War maintained possession of the property, and they are wholly inconsistent with any promise to pay rent. Title to the property was claimed on behalf of the United States by the right of conquest. This claim of right was thus expressed:

“Whether the lands were ever sold to the rebel authorities, or whether they were leased or given to them by sympathizing owners, the United States, I think, should be held to have acquired possession and title as successors to those who erected the stockade and buildings and starved so many thousand patriotic men.
“I do not think the land should be allowed to revert to the former owners, some of whom, it has been stated, have boasted that the soil, enriched by the bodies of our martyrs, would produce excellent wine, and should be converted into vineyards. These people should not be allowed to make themselves drunk on the blood of their enemies — our friends. It ought to remain desolate forever in respect to the memory of the martyrs who suffered and perished on it.
“I recommend that the general commanding the Department of the South be instructed to hold the land as belonging to the United States — at least, until the United States is shown to be unable to hold it.”

As the military authorities of the United States held this property under a claim of right, adverse to that of the reputed owner of the title, whoever he might be, without admitting or creating, either expressly or by implication, the relation of landlord and tenant, the present claimant has no cause of action.

With these views it becomes immaterial whether or not the reputed ownership of the property by the claimant’s testator, unaccompanied by proof of record title in him, would be a sufficient ground of recovery, if there were no other objections to the claim, and we express no opinion on that point.

The judgment of the court is that the petition be dismissed.  