
    The Illinois Central Railroad Company v. The United States.
    
      On the Proofs.
    
    
      Congress in 1862 authorise the President to take possession of railroads, their rolling stocle, #o., to prescribe rules for holding and using them, and to place the officers and employés thereof under military control. The Quartermaster-General gives notice that the President takes possession of all railroads. The comma/nding officer and the chief quartermaster of the Division of the Mississippi give notice that the claimants’ road must carry government freight to the exclusion of all other, if necessary. During the winter of 1864-65 the officers of the Quartermaster Department give orders to the road to carry supplies purchased from various contractors. Such an order is given in favor of Cobb, Blasdell ‡ Co. They ship a large quantity of grain to Cairo. The road is then blocked in the vicinity of Cairo with government freight. " By reason of that delay, C. B. Co. lose heavily. They bring an action against the claimant as common carriers, and recover. The claimants n ow seek to recover the amount of that judgment from the government.
    
    I.Though the President exercised the authority given to him hy the Act 31si January, 1862 (12 Stat. L., 334), in taking possession to a certain extent of the claimant’s road, and though the officers of the Quartermaster Department interfered with the claimants’ management hy compelling them to receive larger quantities of government supplies than the road had terminal facilities for handling and storing, yet if the claimants were guilty of contributory negligence which tended to consummate or increase the injury, they cannot recover from the government the damages they were compelled to isay as common carriers to a third person for delay in the transportation of his grain.
    II.It was the duty of a railroad in such a case to make every effort to keep its tracks clear, and failure to show such effort is fatal to a recovery against the government.
    III.It is no defense in such a case that the road had not at the point of delivery sufficient warehouses and terminal facilities to dispose of the freight shipped there.
    IV.There can be no implied contract to indemnify a party against a loss-caused by his own neglect of duty.
    
      Y. Where officers of the government require a railroad to transport the freight of government contractors, -without otherwise interfering with its management, and the road thereby becomes blocked, and a-shipper brings an action against the road as a common carrier and obtains judgment because of (he road’s delay in transporting his freight,, the judgment cannot be regarded as the natural and proximate consequence of the acts of the officers, but must be deemed remote damages.
    
      The Reporter s’ statement of the case :
    The following are the facts of this case as found by the court:
    I. The claimant was, at the time of the happening of the matters and things hereafter set forth, and still is, a corporation duly incorporated under the laws of the State of Illinois, and was then owning and operating as a common carrier a line of railway between Cairo, in said State of Illinois, and Dubuque, in the-State of Iowa, and other points.
    II. Under the act of Congress entitled “An act to authorize-the President of the United States, in certain cases, to tahe possession'of railroad and telegraph lines, and for other purposes,” approved, January 31,1862 (12 Stat. L., 334), the Secretary of War caused to be issued the following order :
    “War Department,
    “ Washington City, D. G., May 25, 1862.
    “ Ordered :
    
    “By virtue of the authority vested by act of Congress, the President takes military possessson of all the railroads in the-United States from and after this date until further order, and directs that the respective railroad companies, their officers and servants, shall hold themselves in readiness for the trans- • portation of troops and munitions of war, as may be ordered by the military authorities, to the exclusion of all other business.
    “By order of the Secretary of War:
    “M. C. Meigs,
    “ Quartermaster- General.”
    III. On the 24th of December, 1863, Major-General U. S. Grant, then in command of the Military Division of the Mis- • sissippi, caused to be issued a general order in the following terms:
    “By order of the Secretary of War, par. 7 of his special order ■ of date Louisville, Kentucky, October 19,1863, in reference to-military railroads, will be replaced by tbe following: Tbe Quartermaster’s Department will bave control of military railroads, ■so far as relates to tbe transmission of military freight and military passengers, with power to exclude sucb other freight and passengers as may be deemed necessary.”
    IV. On tbe 11th of January, 1864, Brigadier-General and Chief ■Quartermaster Eobert Allen issued tbe following order to Col. William Myers, chief quartermaster of tbe Department of tbe Missouri:
    “Office op the Chief Quarterycaster,
    “ Louisville, 11th Jan}y, 1864.
    “ Colonel : In consequence of tbe obstruction to river navigation, tbe full force of all tbe railroads leading from tbe source of supply is required. Tbe Illinois Central is one of these roads, and whatever government freight you may bave at any point for shipment over this road must be carried to tbe exclusion of all private property, if necessary. Further, whatever supplies tbe government agents may bave contracted for, or may hereafter contract for, must take precedence of private ■freight. These are orders of Major-General Grant. You will accordingly make requisitions upon tbe Illinois Central B. Eoad agents for transportation to tbe full extent of their means, if necessary, and tbe same of any other roads along tbe line of which you may bave freight.
    “Very respectfully, your ob’t servant,
    “Bobt. Allen,
    
      “Brig. Gen. & Oh. Q. M.
    
    “Col. Wjm. Myers,
    “ Chief Q. M., St. Louis.”
    
    Upon this order Colonel Myers made tbe following indorsement, and communicated tbe order and the indorsement to tbe ■claimant:
    “Office Chief Q. M. Dept, of the Mo.,
    “ St. Louis, Jan. 16, 1864.
    “This copy is respectfully furnished for tbe information and guidance of tbe officers of tbe Illinois Central Eailroad. AH sucb transportation as is referred to herein will be approved and ordered by tbe chief Q. M. in charge of this depot.
    “W. Myers,
    « Gol. & A. Q. M.”
    
    V. It does not appear that any officer of tbe United States 'Government ever took actual manual possession of- the railway, or rolling stock, or other effects of tbe claimant, except in tbe following instance:
    On tbe lOtb of January, 1865, there was a large accumulation of government grain at Dunleith, Ill., which claimant allowed to lie on the ground exposed to the weather and employed its whole rolling stock in transporting i>rivate property. Thereupon General Sully declared that the necessity had arisen (as provided in the order of January 11, 1864) for the exclusion of private property. He took possession of all freight cars then at or coming to Dunleith, and directed the Illinois Central to unload all cars containing private freight and load the same with government grain consigned to Cairo.
    Four days afterwards this order was rescinded.
    YI. It does not appear that any officer of the United States Government, in the years 1864 and 1865, interfered in any way with the actual operation of the claimant’s railway, or exercised any actual control over the claimant’s officers or employés, •except In the instance stated in the next preceding finding; but the officers of the Quartermaster’s Department exercised •control over the management of said railway, by requiring the elaimant to transport over its road military supplies for contractors with the government, as such transportation was needed, and, when necessary, requiring it to be furnished in preference to that needed by private parties. Otherwise than •as stated in this finding and the next preceding one, the claim.ant was left free in the management of its road and all the business thereof.
    The requisitions for transportation made upon the claimant by the officers of the Quartermaster’s Department were not made after any prescribed or settled form. Among them were the following, which are given as illustrations:
    ‘‘Assistant Quartermaster’s Opeice,
    “Forage Department,
    “ Cairo, 111., Nov. 12,1864.
    “Mr. Eobt. Forsythe,
    “ General Freight Agent Ills. C. R. N.:
    
    “Sir: Mr. J. W. Munson has authority to deliver at this depot one hundred thousand búshels of oats for acti. of govt. You will please furnish him transportation as soon as practicable.
    “Wi. Gurrie,
    “ Gapt. and- A. Q. ilf.”
    
      [By telegraph from Louisville, 1865. ]
    “JANY. 25,1865.
    “To W. E. Arthur,
    “ Geni. Supt. I. G. B. B.:
    
    “Let Bamsey Brothers & Co. have all the cars they can load with oats until further orders.
    “Bobt. Allen,
    
      “Brig. Gen.n
    
    “Office of the Chief Quartermaster,
    . 11 Louisville, February 9th, 1865.
    “B. Forsythe, Esqr.,
    “ General Freight Agent,
    
    
      Illinois Ventral B. B., Chicago, Illinois:
    
    “Yon will idease furnish transportation for seventy-five thousand bushels of oats from Mineral Point to Cario, and one hundred thousand bushels from other points; this for Messrs. Spruance, Preston & Co., of Chicago.
    “Very respectfully,
    E. W. Allen,
    
      “Brig. Gen. & Chief Q. M.”
    
    “Depot Quartermaster’s Office,
    “ Chicago, Ills., Feb. 28, 1865.
    “Dear Sir: You will please furnish cars without delay for 2,000 brls. corn-meal from Chicago, Ill., to Cairo, Ill., on gov. acc., for which bill lading will be furnished you from this office.
    “Bespectfully,
    “Charles Goodman,
    “ Capt. and, A. Q. M.,
    
    “By M. O. Sullivan, A. M. K.
    
    “Kobt. Forsythe, Esq.
    “ Gen. Frgt. Agt. III. Gen. B. B., Chicago, 111.”
    YII. During the winter of 1864-’65 and the spring of 1865 the officers of the Quartermaster’s Department were engaged, to an extraordinary extent, along the lines of the claimant’s road, in making contracts for the purchase of forage to be transported by that road to Cario; and from time to time, with great frequency, vendors of forage, at different points, would inform the officers of that department that they were ready to ship forage, for the delivery of which they had contracted. Upon receiving such information the quartermaster in charge would request the claimant’s freight agent, in the manner indicated in the next preceding finding, to furnish the necessary transportation for the forage; which would then be shipped to Cairo consigned to the contractors or representatives at that place, and the freight thereon would be paid by them.
    Upon the arrival of forage at Cairo the company would send to the consignee a printed notice, and either the contractors or the railroad company would announce its arrival to the quartermaster whose duty it was to attend to the reception and shipping of forage, and the railroad company would place the cars on the side tracks appurtenant to the warehouses that had been built by the government.
    VIII. To store the large quantities of freight and forage which the claimant was thus required to transport government warehouses were provided in Cairo by the Quartermaster’s department, and the claimant, its officers and servants, were required by the said department to make delivery of the said freight and forage at the said government warehouses, and not ■elsewhere.
    IX. A system of inspection of grain and other forage intended for the use of the government was established by said department at Cairo, and all grain and other forage which the claimant was thus required to bring to that place was required to pass inspection by an officer of that department and said department refused to receive from claimant, at the said government warehouses or elsewhere, any grain or other forage that failed to pass inspection by its officers. And in the mean time, and until inspected, the claimant was not permitted to remove the forage from the cars.
    The forage quartermaster, when ready to inspect, would open the cars and inspect the grain.
    If the grain proved good it was unloaded into the warehouse by the government employés; if found unfit for use, the car was closed, marked “rejected,” and removed from the government, side track. When the contractors presented to the forage quartermaster the railroad company’s receipt for freight he would give them a receipt for the amount of grain accepted.
    At first the company unloaded these rejected cars into their private warehouses, two or three wharf-boats, and two old steamboats.
    During the winter of 1865, so great was the amount of forage thus rejected that after all of claimant’s warehouses in Cairo (which were sufficient for the ordinary and usual business of the road) had become full, and all the private warehouses and other storage facilities in Cairo had become full, the claimant for want of storage room at Cairo was obliged to hold large quantities of it in its cars on the side tracks at Cairo (which side tracks were sufficient for the ordinary business of the road), and said side tracks were filled with cars containing rejected forage.
    When the claimant’s cars were so used the shippers were required by the claimant’s regulations to pay the claimant de-murrage for such use.
    X. During the winter and spring of 1865 the claimant carried into Cairo only such forage as was ordered by the Quartermaster’s Department; and a large portion of the forage carried into Cairo during that time by claimant under the orders of the Quartermaster’s Department was rejected by the government inspector of forage at Cairo as unfit for the Army. After the month of December, 1864, from one-half to three-fourths of all the corn and a very great portion of the hay were rejected as unfit for the use of the Army. And the forage thus rejected by the inspector was refused to be received or unloaded by the Quartermaster’s Department.
    . XI. Owing to the large amount of rejected forage which accumulated at Cairo, and for which there was no sufficient storage, and which therefore remained in the cars, as above stated; and owing to the very large orders issued by the officers of the Quartermaster’s Department for transportation of grain, to an amount far in excess of that which could be stored and forwarded by the officers of that department at Cairo, with the means then at their disposal, the tracks, side tracks, and other terminal facilities of the claimant at Cairo became blocked up; and in consequence thereof the claimant was unable to bring into Cairo, and was obliged to side-track and hold at stations along the line of its road large quantities of forage, which it had received for transportation to Cairo for the Quartermaster’s Department; whereby some of the forage became heated, and was rejected by the government officers at Cairo.
    XII. In January, 1865, the freight agent of the claimant was notified by officers of the Quartermaster’s Department that Cobb, Blasdell & Co. were contractors for the delivery of oats at Cairo, and was requested that necessary facilities for transportation might be afforded, and that they should, with certain other specified contractors, have a preference.
    
      During the fall and winter of 1864-’G5 Cobb, Blasdell & Co. purchased a large amount of oats to be delivered to the government, and during the winter of 1865 transported over claimant’s road to Cairo in the neighborhood of 800,000 bushels.
    A large amount stored at Dubuque, Iowa, Galena, Council Hill, and Polo, Ill., intended for the use of the government,, was not transported by the claimant, although Cobb, Blasdell & Co. made frequent application to the officers of the claimant for cars in which to transport it.
    The quantity of oats which the claimant failed to transport was about 300,000 bushels.
    Cobb, Blasdell & Co. were among the consignees of the rejected forage at Cairo, and were the principal consignees who were urged by the railroad company to receive and make some disposition of it. They delayed doing so, contending that they were not responsible for rejected forage consigned to them by O. P. Cobb, Christy & Co.
    NHL On the 5th March, 1870, Cobb, Blasdell & Co. filed their petition in the district court of Dubuque County, Iowa, against the Illinois Central Eailroad Company. The pleadings were amended from time to time; the cause coming on for trial, oil the 26th May, 1872, the verdict of the jury was returned assessing the damages on the 2d, 3d, 4th, 5th, 6th, and 8th counts at $187,827.81.
    On appeal to the supreme court of .the State of Iowa, judgment was entered for this sum, with interest from May 26,1872. (38 Iowa, 633.)
    A substantial statement of the cause of action as set forth in the said 2d, 3d, 4th, 5th, 6th, and 8th counts is as follows:
    That the defendants were common carriers; that certain parties had agreed to deliver to defendants at Dubuque, Polo, Council Hill, and Galena grain to be transported by defendants to plaintiffs at Cairo, the plaintiffs agreeing with said sellers that transportation should be furnished, and that plaintiffs would accei>t, receive, and pay for such grain at said places on the line of defendants’ road. The plaintiffs thereupon in the month of March, 1865, notified defendants that said grain was ready for shipment, and defendants promised plaintiffs orally to furnish the necessary cars at the several places. Within a reasonable time plaintiffs caused said grain to be offered, and requested defendants to receive and transport the same. The defendants wholly neglected and refused to do so, whereby, &e.
    Plaintiffs further alleged that they had a contract to deliver the said grain to the United States G-overnment.
    The Illinois Central Eailroad Company traversed the petition .and pleaded the statute of limitations; it also pleaded in sub.stance that, by reason of the action of the President of the United States, and of the military under the act of Congress of January 31, 1862—
    (1) Defendants were deprived of the control and manage-•rnent of their said railroad and ceased to be common carriers.
    (2) Defendants ceased to be common carriers to the town of Uairo, and were not bound to receive and transport the freight .alleged to have been tendered.
    They further pleaded that, through the gross negligence or .carelessness of plaintiffs in refusing to receive at Cairo other grain consigned to them they contributed to produce the damages mentioned in the petition.
    For the oats tendered, which the defendants refused to receive and transport, the jury allowed as follows:
    Tendered at Dubuque. $65,953 38
    Tendered at Galena... 78,515 09
    Tendered at Council Hill. 26, 574 02
    Tendered at Polo . 16, 782 62
    The grounds of the judgment of the supreme court of Iowa appear in the report of the case in 38 Iowa, 622.
    XIV. The claimant appeared to the said action, in the manner prescribed by the laws of Iowa, and in good faith, and to ■the utmost of its ability, with the aid of attorneys shilled in the law, defended against said action, in the ■ circuit court of the ninth judicial district, and in the supreme court of Iowa; but such proceedings were had therein that on the 7th of November, 1872, judgment was rendered by the said supreme court, on appeal, against the claimant for the sum of $211,120.95.
    XV. The judgment of the supreme court of Iowa was satisfied October 13, 1874, by payment to Cobb, Blasdell & Co. of the sum of $200,000.
    
      Mr. JohnD. McPherson and Mr. J. M. Griffith for the claimant:
    The government in ordering and compelling claimant to carry into Cairo the forage referred to, regardless of the legal obligations of claimant, as a common carrier, to the rest of the woi’ld, impliedly undertook and agreed with claimant that, such forage should be received by the government or by some one in its behalf, within a reasonable time after its arrival at the place of destination. And the defendant is liable for any damage sustained by claimant in consequence of the .violation of such implied agreement. (2 Parsons on Contracts, 5th ed., 199. Marshall et al. v. The American Express Co., 7 Wis., 24; 2 Eed-field on the Law of Eailways, 5th ed., p. 82, part 8, pi. 18; 2 Parsons on Contracts, 5th ed., 185, bottom.)
    As to the forage that failed to pass inspection and was absolutely refused, the claimant continued responsible therefor as an ordinary or involuntary bailee, and was bound to act with reasonable care and caution with respect to the goods. (Eed-field, supra, §§ 25, 30; Heugh v. L. & N. IF. Railway, L. E. 5th Excli., 51; Eagle v. White, 6 Wharton E., 518; Hemphill v. Chenie, 6 Watts & S. E., 65.)
    The failure on the part of the government to receive within a reasonable time after its arrival in Cairo the forage which it ordered and compelled claimant to transport to that place, in violation of its implied agreement to do so, having disabled and prevented claimant from transporting the forage of Cobb, Bias-del & Co., and subjected it to damages, the government is legally bound to indemnify claimant therefor.
    The government having ordered and compelled claimant to transport and carry into Cairo the forage mentioned regardless of the legal obligations of the claimant, as a common carrier, to the rest of the world, and having disabled and prevented it from transporting the forage of Cobb, Blasdel & Co., thereby putting in jeopardy and exposing claimant to the damage it has sustained in consequence thereof, the law implies that the government undertook and agreed to indemnify claimant against such damage. (Ohitty on Contracts, 9th Am. ed., 520, marginal 445; Betts v. Gibbons, 2 A. & E., 57; Nelson v. Coolc, 17 Ill., 449; Story on Agency, § 339; 18 Me., (6 Shepley E.), 83; Nash v. Smith, 6 Conn., 421; 1 Swift’s Digest, 414; David King’s Case, 1 C. Ols. E., 38; Dozier’s Case, 9 ib., 342; Russell’s Case, 5 ib., 121. Where a boat impressed into the military service grounds by reason of being overladen by a quartermaster, the government is liable for the lighterage paid by the owner in getting her afloat. (Affirmed, 13 Wall., 623; Baird’s Case, 5 O. Cls. E., 348.
    
      In the case at bar, the claimant being obliged and compelled -under the act of Congress, tile proclamation of the President, and the orders of the Department of War, to obey the orders of the Quartermaster’s Department, a contract of indemnity against damage resulting from a compliance with the orders is necessarily implied. The claimant in the case at bar was not in a position to demand terms or conditions, or to exact special contracts of indemnity, but was compelled to obey. And hence arises an implied contract of indemnity on the part of the government, none the less obligatory than the special promise given iu Baird’s Case. {Talbott v. United States, 7 O. Cls. E., 417.)
    The government having in effect impressed claimant’s railroad, rolling stock, agents, and servants into the service of the ..government, so far as the transportation of military stores and forage to Cairo was concerned, and having thereby disabled it from discharging its common-law duties as a common carrier, to the rest of the world, and thereby exposed and subjected it to the damage it has sustained in consequence thereof, is under obligation by implied contract to indemnify complainant therefor. (See Dozier’s Case and RusseWs Oase, supra; Grant's Oase, 1C. Cls. E., 41.)
    The defendant, occupying the position of an indemnitor, by implied contract, is bound by the judgment rendered against claimant and paid by it. {Stovall v. Banks, 10 Wall., 583; Blank's Executors v. Carrington, 7 Cranch, 308.)
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants :
    The central fact in this case, and the one which does more to define the relations of the gwernment to the claimant corporation, is, that the grain'which came into' Cairo was not consigned to the United States; that they paid no freight on it and had no property in it until after inspection, and in the rejected grain they never had any property. Ancillary to this is the further fact that for just such a contingency as the grain remaining in cars over twelve hours the claimant and its consignees had provided stipulated damages in the sum of $3 per car per day. Under these circumstances, the most reasonable view of our liability for delay in inspection is that we are responsible to. our contractors for the damages we inflicted on them, and that the amounts they paid the company for demur-rage before inspection would be the measure of their recovery.
    But this position could not be widened to enable claimant to recover from us the demurrage, for we are not in privity with it.
    Suppose the whole accumulation resulted from our failure' promptly to inspect, the legal aspect of the case is this: We violated our implied agreement with the contractors to unload promptly. The contractors violated their agreement with the company to unload within twelve hours. The company violated its agreement with certainj]other contractors to transport grain that was tendered.
    For the last violation Cobb, Blasdell & Go. recover damages • from the company. Now, if the company should attempt to hold the consignees at Cairo responsible for their breach, it goes without argument that the damages recovered by Cobb, Blas-dell & Co. would not measure the liability of the consignees, for the damages between the company and the consignees were liquidated. How, then, can this claimant, as it attempts to do, pass by the party with whom it is in privity and recover from us on a basis of damage which would not be admissible in the action against the parties who inflicted the injury on it?
    It is to be presumed that the railroad company has recovered from the consignees, either by sale of the rejected grain or in cash, all that they agreed to pay for demurrage. Whether the sum so received was greater or less than the resulting damage at the other end of the line is a question with which we have no concern. It is sufficient for us that the company provided by agreement with its consignees the exact amount that should be paid. And it is to be observed that the act of January 31, 1862, has nothing to do with the present case.
    If the court will bear in mind that the United States were not consignees, and did not pay freight for the transportation of the grain, it will have little difficulty in disposing of this case. That the government ordered transportation to be furnished to these people who were supplying forage created no privity between it and the company; certainly it did not create an implied contract that the United States would care for and dispose of worthless forage brought down by the company and tendered by the contractors.
    The Supreme Court of Iowa has decided that, notwithstanding tbe act of 18G2 and the orders th.eren.nder, the claimant remained a common carrier; orders or requests for the transportation of contractors’ grain were issued to the company as a common carrier, and added nothing to the obligations of the carrier to transport grain tendered by such contractors. The case is very different from one wherein, by the requests to transport immediately or exclusively contractors’ grain, the company was mulcted in damages for non-transportation of freight- intended for private use. In such a case the United States might be liable either in damages directly or by an implied contract of indemnity. Betts v. Gibbons (2 A. & E., 57) might have-some application to the present case if the United States had expressly directed the claimant not to transport the grain tendered by Oobb, Blasdell & Co., at Dunleith and Dubuque, but I utterly fail to see how, from Flannigan’s omissions or from any alleged delay on his part in inspecting grain at Cairo, a contract can be implied to indemnify the claimant for such indirect and remotely consequential damages as claimant’s inability to transport other grain at the further end of the route. If the act of 1862 be held to govern the case, it will be difficult to extract from it any covenant of indemnity.
    Unless claimant can make out a contract of indemnity he has no status in court, for if we are simply bound in damages, the cause of action first accrued more than six years prior to the filing of claimant’s petition. And section 3 of the act of 1862 provides for damages suffered, and compensation to be paid, and does not, as in the case of Baird (o C. CIs. E., 348), expressly promise indemnity.
    But claimant says that by ordering the transportation of contractors’ grain an implied contract arose that we would reasonably inspect and unload it. Even if this be so, for a violation of such implied contract we would be liable in damages. But a new implied contract is what claimant seeks to construct upon the first implication. His position is this: By ordering the transportation we impliedly agreed to unload promptly • that by failing to unload promptly, we impliedly agreed to indemnify, and to indemnify against the most remote consequences. Again, it does not seem that the sovereign, without an express i)romise, should be bound by a judgment rendered against an individual (see Carr v. United States, 98 U. S. E., 433), and that implied contracts of indemnity between citizens furnish no criterion by which to determine the obligations of the sovereign. It is not pretended in the present case that the United States were notified of the action brought by Cobb, Blasdell-& Co., or that they had any opportunity to be heard. Now, as we did not direct claimant not to transport Cobb, Blas-dell & Co.’s grain, and as we did not direct Flannigan to delay inspecting grain, we have not done anything from which a contract of indemnity can arise. (See 1 Campbell, 343; 6 Hurl-stone & Norman, 211.)
    Mr. Griffith, for the claimant, in reply:
    The obligation of the government to indemnify the claimant might be safely rested on the common-law doctrine that where •one person, by direction of another, does an act not manifestly unlawful but which subjects the doer to damages, he is entitled to be indemnified. (See also Battard v. Haioes, 2 B. & B., 296; Brittan v. Lloyd, 14 M. & W., 762; Theobald Pr. & Sur., p. 268.)
    The case in hand is, however, much stronger. The United States did not merely direct, but compelled the claimant to do the act which involved the consequences. The law of the United States commanded and compelled the claimant to use its cars for a purpose inconsistent with the discharge of its duties under the law of Illinois. And this fact places the case on the ground stated in the fourth point of the brief; that is, the act of the United States was a taking of private property for a public purpose, and imposed on the United States the obligation of making just compensation.
    The taking of property is not merely the change of possession •of that which is susceptible of manual caption; but any interference which deprives the owner of the control and use of his property is a taking, within the meaning of the Constitution. (Sedgwick’s Const. Stat. and Const. Law, ch. x, 2d ed., p. 442, citing numerous authorities; Matter of Hamilton Avenue, 14 Barb., 405, 411, cited and approved by Sedgwick’s Stat. and Const. Law, p. 460.)
    It is not necessary that the owner should be divested of all ■estate in the whole or in any part of the particular piece of property; nor that the exclusive possession of the whole or of any part thereof should be acquired-as against him. (Sedgwick, p. 455, note a; Bum/pelly v. Greenbay Go., 13 Wall., 166, 181.)
    
      Tbe peremptory order to devote so many cars to tbe conveyance of sucb goods, and tbe occupation by these cars, under these orders, of a great extent of track and siding, constituted a taking of tbe cars and siding, if not of tbe franchise itself. It was sucb an interference as deprived tbe company tempora-lity of tbe control of its property, and entailed upon them tbe loss for which indemnity is claimed.
    Just compensation is sucb as will make tbe claimant whole.
    Compensation under tbe constitutional guarantee is not limited or extended to tbe payment by tbe government of tbe value to tbe public of tbe thing taken. That would be incapable of computation, and would, in a great majority of cases, far exceed tbe value to tbe owner. A railroad train that carries, a regiment to tbe battle-field, a swift horse that carries tbe bearer of a dispatch, has a value to a state that it can never have to tbe owner. Nor was sucb compensation in tbe minds of th e framers of tbe Constitution. In that instrument were recognized and protected certain natural rights of persons long previously contended for by writers on tbe law of nature and nations j and tbe right on which they insisted was simply and only tbe right of tbe owner to be indemnified — to be made whole.
    G-rotius bad said that when tbe subject was deprived of bis property tbe state should “repair tbe damages sustained.” (B. 3, cb. 20, § 7.) Puffendorf, that tbe subject was entitled to “restitution or satisfaction.” (B. 8, cb. 5, § 7.) Yattel, that be should be “recompensed.” (B. 1, cb. 20, § 244.). Blackstone, that be should have “indemnification.” (Yol. 1, p. 13.)
    Tbe framers of tbe Constitution, in twelve words, adopted tbe obligation here insisted on, in its fullest extent. .(See-Pumpelly v. Greeiibay Go., supra, and cases there cited and approved.)
    Sucb has been tbe construction of tbe same provision in tbe constitutions of nearly all tbe States of tbe Union. (See Sedg-wick’s Const. Stat. and Const. Law, cb. x, “ Compensation,” note a, p. 463.)
   Drake, Ch. J.,

delivered tbe opinion of tbe court:

This suit is brought to recover damages averred to have-been sustained by tbe claimant through acts of officers of tbe Army engaged in the suppression of the rebellion; which act® are alleged to have been performed under military orders authorized by the first section of the “ Act to authorize the President of the United States, in certain cases, to take possession of railroad and telegraph lines, and for other purposes,” approved January 31, 1862 (12 Stat. L., 334), which is as follows:

“That the President of the United States, when, in his judgment, the public safety may require it, be, and he is hereby,, authorized to take possession of any or all the railroad lines in the United States, their rolling stock, their offices, shops, buildings and all their appendages and appurtenances; to prescribe, rules and regulations for the holding, using and maintaining of the aforesaid railroad lines, and to extend, repair and complete the same in the manner most conducive to the safety and interest of the Government; to place under military control all the officers, agents, and employees belonging to the railroad lines thus taken possession of by the President, so that they shall be considered as a post-road and part of the military establishment, ofthe United States, subject to all the restrictions imposed by the rules and articles of war.”

Under the authority of this provision the President of the United States, through the Secretary of War, caused the following order to be promulgated:

“War Department,
Washington City, D. G., May 25, 1862.
Ordered:
“By virtue of the authority vested by act of Congress, the-President takes military possession of all the railroads in the United States from and after this date until further order, and directs that the respective railroad companies, their officers and servants, shall hold themselves in readiness for the transportation of troops and munitions of war, as may be ordered by the military authorities, to the exclusion of all other business.
“By order of the Secretary of War.
“M. C. Meigs,
Quartermaster- GeneralP

On the 24th of December, 1803, Major-General U. S. Grant, then in command of the Military Division of the Mississippi, caused to be issued a general order, in the following terms:

“By authority of the Secretary of War, par. 7 of his special order of date Louisville, Kentucky, October 19,1863,in reference, to military railroads, will bereplaced by the following: The Quartermaster’s Department will have control of military railroads, so far as relates to the transmission of military freight and military passengers, with power to exclude such other freight and passengers as may be deemed necessary.”

On the 11th of January, 1804, Brigadier-General and Chief Quartermaster Robert Allen issued the following order to Col. William Myers, chief quartermaster of the Department of the Missouri:

“Office of the Chief Quartermaster,
Louisville, 11th Jany., 1864.
“Colonel: In consequence of the obstruction to river navigation, the full force of all the railroads leading from the source of supply is required. The Illinois Central is one of these roads, and whatever government freight you may have at any point for shipment over this road must be carried to the exclusion of all private property, if necessary. Further, whatever supplies the government agents may have contracted for, or may hereafter contract for, must take precedence of private freight.. These are orders of Major-General Grant. You will accordingly make requisitions upon the Illinois Central R. Road agents for transportation to the full extent of their means, if necessary, and the same of any other roads along the line of which you may have freight.
“Very respectfully, your ob’t servant,
. “Robt. Allen,
Brig. Gen. & Oh. Q. M.
“Col. War. Myers,
Chief Q. M., St. Louis.”

Upon this order Colonel Myers made the following indorsement, and communicated the order and the indorsement to the claimant:

■ “Office Chief Q. M. Dept, of the Mo.,
St. Louis, Jan. Í6, 1864.
“This copy is respectfully furnished for the information and guidance of the officers of the Illinois Central Railroad. All such transportation as is referred to herein will be approved and ordered by the chief Q. M. in charge of the depot.
“W. Myers,
“Col. & A. Q. M.”

Afterwards, in the winter of 1864-’5, the officers of the Quartermaster’s Department, on duty in the State of Illinois, in contracting for the purchase of forage for the Army engaged in the suppression of the rebellion, made numerous and very large requisitions upon, the claimant for transportation on its railroad of forage which contractors had undertaken to deliver at Cairo. This transportation, though required by government officers, was not to be performed for the government, nor to be paid for by it, but for tbe contractors and to be paid for by them.

All forage transported by the claimant to Cairo for contractors, under such requisitions, had to be inspected and accepted by the officers of the Quartermaster’s Department stationed there, before being delivered to and received by “them. A large amount of the forage taken by the claimant to that place in January and February, 1865, was rejected by those officers, and had to remain in the claimant’s cars on the tracks there, because neither the claimant nor the contractors had provided storage therefor in Cairo. Owing to that fact, and to the further fact that the amount of forage sent to Cairo, and inspected, accepted, and received by the government officers, was largely in excess of what could be stored and forwarded by them, with the means at their command, the claimant’s tracks, side tracks, and other terminal facilities at Cairo became blocked up; in consequence whereof the claimant was unable to bring into Cairo, and was obliged to side-track and hold at stations along the line of its road large quantities of forage which it had received for transportation to that place.

Among the contractors for the delivery of forage was a firm of Cobb, Blasdell & Co., who, during the winter of 1865, had had transported over the claimant’s road to Cairo some 800,000 bushels of oats for the government, under requisitions of transportation made by the officers of the Quartermaster’s Department. Besides this quantity, Cobb, Blasdell & Co. had bought for transmission to Cairo, for the government, some 300,000 bushels more of oats, for which the claimant had, prior to the month of March, 1865, agreed with them to furnish transportation; but which it failed to transport when tendered to it by Cobb, Blasdell & Co., in March, 1865, for that purpose. For this breach of its contract, Cobb, Blasdell & Go. sued the claimant, and recovered judgment for damages in the sum of $211,120.95; which judgment was satisfied by the claimant by the payment of $200,000.

The claimant sued the United States to recover this sum, and expenses paid by it in defending Cobb, Blasdell & Co.’s ■suits.

In the case as thus stated, it is necessary, in order to charge the defendants at all, to find a contract, express or implied, on the part of the government. There is no averment of the existence of an express contract; but tbe claimant’s petition, after setting out tbe facts relied on, thus avers an implied contract:

“And your petitioners say that tbe Government of the United States, in subjecting your petitioners, their officers, agents, and servants to tbe orders and control of the Quartermaster’s Department and military authorities of tbe government as aforesaid, and in obstructing and preventing yonr petitioners as aforesaid from transporting the said grain of tbe said Cobb, Blasdell & Co., undertook and promised your petitioners, by an implied contract, to indemnify and save harmless your petitions from all loss and damage which they might suffer in consequence thereof. Wherefore and because of the said several matters and things hereinbefore set forth, your petitioners ask judgment against the defendant in the sum of $217,403.30, so paid by your petitioners as aforesaid.”

So much of this averment as alleges that the government subjected the claimant, its officers, agents, and servants to the orders and control of the Quartermaster’s Department and the military authorities is found to be true; but the remainder is not so found; and the real facts are those set forth in part of finding IX, and in findings X and XI, as follows:

“ During the winter and spring of 1805 the claimant carried into Cairo only such forage as was ordered by the Quartermaster’s Department; and a large portion of the forage carried into Cairo during that time by claimant under the orders of the Quartermaster’s Department was rejected by the government inspector of forage at Cairo as unfit for the Army. After the month of December, 1804, from one-half to three-fourths of all. the corn and a very great portion of the hay were rejected as unfit for the use of the Army. And the forage thus rejected by the inspector was refused to be received or unloaded by the Quartermaster’s Department.
“So great was the amount of forage thus rejected that after all of claimant’s warehouses in Cairo (which were sufficient for the ordinary and usual business of the road) had become full, and all the private warehouses and other. storage facilities in Cairo had become full, the claimant for want of storage room at Cairo was obliged to hold large quantities of ir in its cars on the side tracks at Cairo (which side tracks were sufficient for the ordinary business of the road), and said side tracks were filled with cars containing rejected forage.
“ Owing to the large amount of rejected forage which accumulated at Cairo, and for which there was no sufficient storage, and which therefore remained in the cars, as above stated, and owing to the very large orders issued by the officers of the Quartermaster’s Department for transportation of grain, to am amount far in excess of that which could be stored and forwarded by the officers of that department at Cairo, with the means then at their disposal, the tracks, side tracks, and other terminal facilities of the claimaint at Cairo became blocked up; and in consequence thereof the claimant was unable to bring into Cairo, and was obliged to side-track and hold at stations along the line of its road large' quantities of forage which it had received for transportation to Cairo for the Q u artery aster’s. Department; whereby some of the forage became heated, and was rejected by the government officers at Cairo.”

If there was any implied contract on the part of the government it grew out of the facts thus found; which, it will be observed, make a different case from that upon which the claimant’s petition relies.

The petition charges upon the government the whole respon-. sibility of obstructing the claimant’s road, and consequently disabling it to transport Cobb, Blasdell & Co.’s grain; but the facts as found do not sustain that position.

The charge rests upon two grounds : 1. That in consequence' of the large quantities of grain rejected by the government, inspector of forage at Cairo the claimant’s warehouses there became filled with such rejected forage and other grain, and ■ the claimant was unable to store the same; and its side tracks. ■ there, which were sufficient and ample for the usual and ordinary business of the road, “ became and were wholly filled and occupied with cars loaded with such rejected grain and other-forage, and forage awaiting inspection and reception; and the claimant was unable to dispose of the same, or to clear their sidetracks thereof”5 and, 2. That the government officers delayed, neglected, and refused to receive with reasonable diligence from the claimant large quantities of government forage transported by it to Cairo under orders of the Quartermaster’s. Department.

This second ground is not sustained by the facts found, and we therefore lay it aside.

As to the first ground, we will suppose that there might be a case of such blocking up of the claimant’s road with freight, transported by order of the government officers, to the exclusion of private freight, that, in spite of all the claimant’s efforts,., it would be compelled to violate a contract with an individual, and in consequence thereof be subjected to damages 5 and that. upon that state of facts, a contract might be implied, on the part of the government, to indemnify the claimant against those damages; yet between such a case and this there are material points of difference.

In the first place, let it be noted that it was not until the 5th -of March, 1865, that Cobb, Blasdell & Co.’s grain was tendered to the claimant, and the claimant failed to transport it according to its agreement with them.

In the next place, let it be observed that the rejection of forage at Cairo began, most probably, with the very beginning of the year 1865; or, in the language of finding X, “after the month of December, 1864, from one-half to three-fourths of all the corn, and a very great portion of the hay, were rejected.” We are justified by that finding in holding that at least two weeks before the 5th of March the blocked-up condition of the road began at Cairo.

In the third place, let it be noted that the claimant does not aver, nor is it found as a fact, that when it found its warehouses full and its tracks blocked up with cars containing rejected and other forage it made any effort to remove the rejected forage from the cars or the cars from the tracks.

Upon this state of the case there are well-established legal ■doctrines which to us seem clearly to forbid any implication against the government of a contract on its part to indemnify the claimant against the damage to which it was subjected through Cobb, Blasdell & Co.’s recovery.

1. He who seeks legal redress must not only show his adversary to be in the wrong, but must also be prepared to prove that no negligence of his own tended to increase or consummate the injury.

2. He cannot recover compensation for any damage which he might have avoided by the use of ordinary care and diligence, ■after first becoming aware of the injury of which he complains.

3. Much more, if he proximately contributed by his own or his agent’s negligence to produce the injury, so that, but for his ■concurring and co-operating fault, the injury would not have happened to him, he cannot recover at law or in equity.

These almost axiomatic rules of law are fatal to any implication, growing out of the facts of this ease, of a contract on the part of the government to indemnify this claimant against loss ■or damage on the grounds alleged.

It cannot be questioned that the claimant’s officers, servants, and agents knew, first, that the officers of the Quartermaster’s Department at Cairo would inspect all military supplies transported to that place by the claimant for contractors, and would receive only such of those supplies as, upon inspection, those officers should approve and accept; second, that such supplies were, in January and February, 1885, being constantly shipped by contractors, at various points on its road, for delivery at Cairo; and, consequently, third, that if the road should become- and be allowed to remain blocked up at that place, the difficulty would inevitably extend northward along the lines of the road to an indefinite extent.

Knowing all this, it was the clear obligation of the claimant,, with all needful diligence, to remove the rejected supplies from its tracks at Cairo. If it had done so, there is nothing tending to show that it would have had any difficulty in carrying Cobb,. Blasdell & Co.’s grain according to its agreement with them.. It made no effort to remove from its Cairo traeks the cars containing those rejected supplies, and hence the disabled condition. of the road there, and along the lines northward.

It is no sufficient answer to this for the claimant to say that it had not at Cairo sufficient warehouses or sheds in or under-which to empty its cars of those supplies; and that it could not pitch the supplies out upon the ground in an unsheltered and exposed condition without becoming liable in damages to the owners thereof; for its dut3r was to have all the warehouses and sheds that were necessary to contain so much of the rejected supplies as it could not otherwise put out of the way, and so leave its tracks open for accruing use. Its failure to have such shelter for those supplies was negligence, which proximately contributed to produce the state of things out of' which eventuated the claimant’s liability for damages to Cobb, Blasdell & Co.

Such being the case, what ground is there for charging the-United States as upon an implied contract1? ‘‘Implied contracts,” says Blackstone, “are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform.” An implied contract, therefore, is coordinate and commensurate with duty, and whenever it is certain that a man ought to do a particular thing the law supposes him to have promised to do that thing. Does reason,. justice, or duty dictate that tlie United States should repay to the claimant the damages recovered from it by Cobb, Blasdell & Co. for its failure to fulfill its contract with them, when that 'failure resulted from its own neglect to do what, under the cir•cumstances, reason, justice, and duty required it to do? To ask such a question is to answer it emphatically in the negative. There is, then, no possible ground for finding an implied contract on the part of the United States to indemnify the claimant against any loss or damage growing out of a blocked-up condition of the claimant’s road, which it was the claimant’s duty to have prevented, which it had the time and the power to prevent, and which, with a full knowledge of all the facts •from the very beginning of that condition, it took no steps to prevent.

But laying aside all those views, and supposing that there was an implied contract of indemnity, as averred by the claimant, and that there was no fault whatever on its part, the damages claimed are, in our judgment, quite too remote to -authorize a recovery here.

■ The law refuses to take into consideration any damages remotely resulting from the act complained of. This proposition, •or one correlative to it, is expressed in the maxim Causa próx-ima, non remota, speotatur ; or, in the language of Lord Bacon, “it were infinite for the law to judge the cause of causes and their impulsion one on another. Therefore, it contenteth itself with the immediate cause, and judgeth of acts by that without looking to any further degree.” (1 Sedgwick on Damages, 7th Ed., 91.) And says Greenleaf, “the damage to be recovered must be the natural and proximate consequence of the act complained of.” (2 Greenleaf on Evidence, § 253.) Was Cobb, Blasdell & Co.’s recovery against the claimant the natural and proximate consequence of any act of government officers ? Not •at all, even on the claimant’s own showing. Those officers required nothing of the claimant but that it should transport -supplies for contractors. One of the results of the transportation was that the claimant’s road got blocked up at Cairo with •cars containing rejected supplies. Supposing the claimant •entirely blameless in connection with that result, and the government liable for damages on account of it, its liability would •extend only to compensation for the injury done then and there ■by the blocking up of the road. But between the acts of the ■government officers and the accruing of tbe claimant’s liability to Oobb, Blasdell & Go. an act of the claimant intervened, of which those officers bad no knowledge or notice, and without the doing of which there could have been no recovery by Oobb, Blasdell & Oo., namely, the claimant’s contract with that firm to transport their grain to Cairo at a certain time. It was for its failure to fulfill that contract that Oobb, Blasdell & Co. recovered judgment against it. This was a matter with which the government had no sort of privity, and of which its officers had no knowledge; which was brought about by the claimant’s own voluntary and independent act, and which had no fair or legitimate connection with the orders or proceedings of those officers. The damage resulting from it to the claimant was, therefore, so remote from anything that could legally and naturally have been expected to follow the acts of the government officers that it can form no foundation for a judgment against the TTnited States in this suit.

Other points adverse to this claim might be made, but we need not present them. The claimant has no cause of action, and its petition is therefore dismissed.  