
    MARTHA H. ALEXANDER, Executrix, v. THE UNITED STATES.
    [No. 22526.
    Decided April 4, 1904.]
    
      On the Proofs.
    
    In 1898 tiie claimant’s farm in Pennsylvania, by authority of the Secretary of War, is taken for a military. camp. The owner does not object and makes no effort to resume possession until the military forces relinquish it. There, is no agreement for compensation. When the troops leave, the lands are in a bad condition, unfit for farming purposes; fences have been destroyed and other damage done. At the time of the taking the land is in the possession of a tenant.
    I.The United States have the constitutional right to appropriate property for public use upon the condition that they pay for it. Where land is in the possession of a tenant the Government may by its taking become liable to the reversioner as well.
    II.Where the extraordinary use to which land is put by the Government (a military camp) impairs its value, the reversioner may recover for the damage done.
    III.Where the land of a citizen, not within the area of war, is taken as private property for a military camp, an implied contract arises. The distinction between this case and United States v. Pacific R. R. Go. (120 U. S., 227), stated.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The decedent .of claimant was, on the 28th day of September, in the year 1898, the owner in fee simple of certain lands in West Donegal Township, in Lancaster County, and Londonderry Township, in Dauphin County, Pa., consisting of 262 acres.
    
      II. In the prosecution of the war between the United States and Spain a military camp had been established at Camp Meade, Pa., about 1 miles distant from the land referred to in finding i. This camp was used for the assembling of recruits for drill and for returning troops for the purpose of muster out.
    The Two hundred and third Regiment of New York Volunteers was stationed at Camp Meade prior to September 28, 1898, but on account of the breaking out of typhoid fever in the regiment it became necessary to move it. On the 28th day of September the regiment, under command of officers of the Army of the United States, by authority of the Secretary of War, took possession of that portion of the lands of the claimant referred to in finding i lying in Lancaster County, Pa., and consisting of 129 acres, excepting a small portion of the land occupied by the farm dwelling. Their occupancy excluded the claimant and his tenant from the use of the land for farming purposes. The Army remained there until November 11, 1898.
    III. The lands were occupied, the defendants making no claim to nor asserting any title to the same.
    Neither the decedent nor any representative of his made any objection to the occupation of said lands for military purposes, and made no effort to resume possession of said lands until the Army voluntarily quit possession thereof. No agreement was made between the United States and the decedent for any compensation for the use and occupation of his lands.
    IV. When the Army took possession of the land in question it was in good condition for use as a farm. The farm was well fenced and the fences were in a good state of repair.
    It was well watered by springs rising on the farm and by a large stream, Conewago Creek, and two smaller streams running through in several places, and was well drained by the streams.
    On a part of the land so occupied cereal crops were growing.
    Another part consisted of permanent natural grass. This was of a very good quality, suitable for pasturing, and that portion of the land possessed far greater value on that account than land cultivated for cereals. The land was particularly well fitted for such a crop, and the grass grew perennially without seeding or cultivation. The' crop for grazing purposes was unusually nutritious, greatly superior to cultivated grasses.
    V. When the Army left the lands they were in a condition unfit for farming purposes.
    The fences were in some part torn down ancl used for fuel or for filling in soft places.
    A portion of the farm had been used for a parade ground, with the result that the growth of grass on it was destroyed and the ground beaten down so hard that no grass or other crop would grow without unusually difficult and expensive cultivation.
    A portion of the land was used for corrals for officers’ horses, and this part was also a thoroughfare for heavy teams. Being on inclined ground, heavy furrows from wagon wheels caused washing of the soil into the creek.
    A portion of the farm was occupied by tents of the Army, including those of the typhoid fever hospital, with similar results to the ground.
    A part of the fields was cut up by making roads over them and by the passing to and fro of heavy army wagons, and the ground was so trodden down by animals and wheel tracks that the land could not be used for farming without expenditure for cultivation.
    Large sinkholes and cesspools had been dug in various portions of the land aud used for the deposition of foul matter from hospital and camp. These were lined with boards, which wrere left sticking up above the ground. Some of these were filled in with earth and some left open.
    YI. The greater part of the land hereinbefore referred to was, during the occupation by the United States Army, under lease by the previous owners to Henry L. Heisey. A claim was presented to the War Department by said Heisey for the rent of said land, but not for any of the damages hereinbefore stated,
    
      An allowance wras made to said tenant, and lie was paid the sum of $500 for the use by the defendants of the aforesaid premises. The tenancy of said tenant was to terminate on the 1st day of April, 1899.
    VII. The value of' the improvements taken by the defendants and the damage in the use of the land during the period aforesaid was the sum of $1,956.
    
      1It. William B. King for the claimant. Messrs. George A. and William B. King were on the brief.
    
      Mr. Philip M. Ashford (with whom was Mr. Assistant Attorney - Gener al Pradt) for the defendants.
    > That the Government of the United States is suable only by its own consent is too well established to admit of argument. In granting consent to be sued in the Court of Claims, which, in other words, is granting jurisdiction to the Court of Claims, the Congress has excluded all claims' sounding in tort.
    Of course, an action for damages not sounding in tort must be an action for damages for breach of a contract, for' the presence of tort in the transaction precludes the idea of contract or agreement. (United States v. Jones, 131 U. S., 1-16.)
    In Dooley v. United States (182 U. S., 222, 224) it was held that “ the words ‘ not sounding in tort ’ are in terms referable only to the fourth class of cases ” — that is, to actions for damages, liquidated or unliquidated. This seems to be in contravention of what was said by the court in the Schillinger ease (155 IT. S., 163,169), in-which it was strongly intimated that these words were a limitation upon the entire grant of jurisdiction to this court. Neither of these decisions, however, removes the question entirely from the realm of doubt. So far as they are concerned, there is still room for argument. This honorable court has decided clearly and unequivocally in the Marion case (29 C. Cls. K.., 250) that the exercise of the power of eminent domain excludes all idea of wrong, and therefore all tort. From this it would seem to follow that the words “ not sounding in tort ” have no application to cases arising under the Constitution at least. This view seems to be the rational and reasonable one, adopted it would seem, that the use of the words “ not sounding in tort ” has no significance whatever, for it is perfectly clear that the grant of jurisdiction over actions arising on contracts, expressed or implied, covers all damages not sounding in tort. The use of the words in question, therefore, seems neither to extend nor limit the jurisdiction of the court. The court has no jurisdiction in the cases of tort, not merely because of the use of the words above quoted, but because Congress has given it jurisdiction in actions ex contractu only. The question, however, is largely in the abstract. A clear understanding of the purpose of Congress in using these words would clarify the situation somewhat, but it is not absolutely necessary to a correct determination of the questions at issue in the case at bar.
    any jurisdiction in this case it must fall within the provision with reference to claims arising under the Constitution — that is, it must appear that the property of the claimant Avas taken by the Government in the exercise of the poAver of eminent domain, or it must appear that a contract Avas made between the claimant and the defendants, for the breach of AA’liich damages are recoverable.
    took any property from claimant under the power of eminent domain it is bound to compensate him for it, and failing so to do is liable to him in an action in this court. But there Avas nothing taken .from claimant in this case. The thing taken Avas the use of the lands in question.
    therefore, that if this action can be maintained at all it must be under the jurisdictional provision with reference to implied contracts, but there Avas no contractual relation between the claimant and defendants. In the case of Schilling er (155 TJ. S., 163, 167) it Avas held that “ some element of contractual liability must lie at the foundation of eArery action.” That Avas a case for the infringement of a patent bjr the United States; the same thing, in laAv, as a trespass upon lands. (United States v. Russell, 13 Wall., 623, 626; United States v. Great Falls Mfg. Go., 112 U. S., 645; United States v. Berdan Fire Arms Co., 156 U. S., 562, 569. See also Eill v. United States, 149 TJ. S., 595, 598; Gibbons v. United States, 8 Wall., 269; Morgan v. United States, 14 Wall., 531; Ooston v. United States, 33 C. Cls. R., 438; United States v. Palmer, 128 TJ. S., 262, 269.)
    Cases might be cited almost without a umber affirming this doctrine. As has been before pointed out in this brief, it was manifestly impossible for the minds of the agents of the United States and the claimant in this case to meet upon any proposition connected with the use and occupation of the premises in question. The contract in this case was between the United States and the tenant Heisey. The officers and agents of the Government had the right to contract to pay him a rental commensurate with the uses to which the lands were to be put. This rental would of course contemplate any damages or injuries to the premises incident to the use and occupation of the same for the purposes indicated. There was no power or authority in the officers or agents of the United States to contract to pay Heisey, or anyone else, damages, except such as were incident to the contract for use and occupation; and since the claimant had no legal right to contract with the United States for the use and occupation of the premises in question it follows that a contract between them was an utter impossibility, and the law will certainly not imply a contract where no express contract could have been entered into.
    The law will not imply any contract liability for waste unless the parties stand in the relation of landlord and tenant. In other words, there must be a contract of lease, express or implied, between the parties before an action ex contractu can be brought for the commission of waste. This is a proposition so simple and plain that it needs no argument. If the damages were incident to the use and occupation, then, as has been suggested, they were settled for in the payment to Heisey. No matter which horn of the dilemma claimant takes, he is without right of action against the United States under the general jurisdiction of this court. As to him, the things complained of are simply damnum absgue injuria.
    
    It is urged, however, by the learned counsel for claimant that a claim for war damages inflicted by proper military authority is cognizable by this court as a claim based upon an implied contract. Evidently it-is intended to claim that this is true whether there was any of the elements of a contract present in the transaction or not. The opinion of the court in the case of Grant v. United States (1 C. Cls. R., 41) is librally quoted from in claimant’s brief in support of his contention in this respect. That was a very able opinion, but its logic and reasoning appeal more to the sympathies than to the settled rules of law. The weight of authority is against it. The learned judge who delivered the opinion of the court quotes from Yattel in support of the conclusions .reached, but it must be borne in mind that Vattel wrote -not of the legal, but of the moral obligations of the state. It is questionable, too, whether at the time the text was written the doctrine that the sovereign is suable only by his own consent had been generally recognized. Certain it is that the recognition of that doctrine in this country precludes the idea that individuals may enforce their claims against the Government in the courts as a matter of right. Congress has seen fit, in granting the consent of the Government to be sued, to exclude from the jurisdiction of the Court of Claims “ actions for damages, liquidated or unliquidated, in cases sounding in tort,” or, in other words, all actions for damages not based on a breach of contract.
    In the case of the United States v. Pacific Railroad (120 U. S., 227) the law with respect to injuries to or destruction of private property caused by military operations of armies in the. field or measures.taken, for their safety and efficiency was clearly defined, and held to be that the United States is not chargeable therefor.
    This decision seems to make it clear that the United States' is not liable, as upon an implied contract or under the exercise of the power of eminent domain, for private property seized and appropriated by the military authorities, unless the contractual relation, in all of its essential elements, is shown to exist between the parties from whom the property is taken and appropriated and the proper agents of the Government.
    It is true that this was a suit for the recovery of damages inflicted during the civil war, but nowhere in the decision is the act of Congress prohibiting the Court of Claims from taking jurisdiction of Avar claims referred to. Manifestly, these conclusions were reached by the court without reference to the act of 1864, and would have been reached had that act never been passed. The principle here laid down, that “ Government can not be charged for injuries to or destruction of private property caused by military operations of armies in the field or measures taken for their safety and efficiency,” is of universal application. That was the law before the act of Congress excepting from the jurisdiction of this court claims arising out of the civil Avar, and it must necessarily be the law with reference to claims growing out of any war in Avhich the GoA^ermnent maj'- be engaged.
    There is another feature of the section granting jurisdiction to this court which appears to be Avorthy of consideration in connection with this case, and that is as to the meaning of the clause “ in respect of Avhich claims the party would be entitled to redress against the United States * * * if the United States were -suable.” It is well settled that the courts will not hold the Government to a liability which Avould not have been imposed upon a citizen. Judgments are always confined to cases where an individual could have recovered against an individual. (Ingram v. United Staten, 32 G. Cls. B., 147, 169.) Applied to the facts in this case, what does that mean? Suppose the United States Avere an indi-vidual named John Smith? This John Smith, Ave will further suppose, enters upon the premises owned by A but under lease to B, and takes possession of a portion thereof under circumstances which forbid the implication of a contract with A. In the course of the use to Avhich he puts the property he tears out partitions, cuts holes in the Avails and. floors and takes out the windows, and otherwise injures and destroys the property, or as incidental to such use some damage is done to the property. What redress in a court of hnv would A have against John Smith? Would he sue him for damages for breach of a contract? Hardly. If he sued him at all it must be for a tort pure and simple, a kind of action which is excluded from the jurisdiction of this court. It is conceded that if the contractual relation existed between Smith and the tenant B, said B might sue on the contract for the waste, but A must find his remedy in an action against his tenant B, who has permitted waste on the leased premises, or he must sue Smith for the tort. The foregoing illustration is an exact parallel with the case at bar.
   Weldon, J.,

delivered the opinion of the court:

In this case the decedent ivas the owner of certain land in the State of Pennsylvania. Claimant is seeking remuneration for the use and occupation of such land, which ivas used by the United States as a military camp from the 28th day of September, 1898, to the 11th day of the following November. The land ivas, during the occupation of the United States, in the possession of a tenant whose term expired on the 4th day of April, 1899. The theory of the claimant is, that the United States took and appropriated the property of the decedent in the exercise of the right of eminent domain without having made compensation therefor.

It is contended that when the defendants took possession of the land an implied contract arose not only to pay a reasonable rental for the occupation of the property, but to restore it in the same condition in which it was when first occupied, except for such ordinary wear and tear as is compensated by rent, and that the jurisdiction rests upon the Tucker Act. (1 Supp. It. S., 559.)

To this theory the defendants reply that there was no taking of property within the meaning of the Constitution, and whatever loss or damage the decedent suffered was by the way of consequential damages, and that for such a grievance there is no jurisdiction in this court, the case sounding in tort.

The findings show that the decedent was the owner of the land in fee at the time the United States took possession; that no person, neither the decedent nor the tenant, made any objection to the defendants taking possession of the land for the purpose of a military camp; that no effort was made by decedent or the tenant to resume possession of the land during the occupation of the United States; that the defendants did not claim any title, to the land, but entered in' pursuance to their right in the exercise of the right of eminent domain;' that no compensation has been paid to the claimant or decedent ; that compensation was made to the tenant for the use of the premises, but nothing was allowed him for any damages done during the occupation of the United States.

The legal right of the decedent is complicated by the fact that he was a reversioner subject to the subsisting particular estate of his tenant, and that the occupation of the United States was as to mere occupancy in derogation of the rights of the tenant of the particular estate knd not the reversioner.

In the maintenance of the jurisdiction of the court, counsel have cited many decisions of the Supreme and this court, insisting that upon the authority of those decisions the jurisdiction of the court and the right of recovery on the part of the plaintiff are fully established. In the case of Dooley v. The United States (182 U. S., 222) it is said in reference to the Tucker Act:

“ The first section evidently contemplates four distinct classes of cases: (1) Those founded upon the Constitution or any law of Congress, with an exception of pension cases; (2) cases founded upon a regulation of an executive department; (3) cases of contract, express or implied, with the Government; (4) actions for damages, liquidated or unliqui-dated, in cases not sounding in tort.. The words ‘ not sounding in tort ’ are in terms referable only to the fourth class of cases.”

It is contended that this case falls within three of the jurisdictional provisions — it is a claim founded on the Constitution ; it is a case of implied contract; and it is a case for unliquidated damages not sounding in tort.

The case of Grant v. The United States (1 C. Cls. R., 41) and the case of Wiggins v. The United States (3 C. Cls. R., 412) are cited as sustaining the doctrine of the law upon which the claimant predicates her right to recover in this proceeding.

In the case of Merriam v. United States (29 C. Cls. R., 250) it is said:

“ The right of eminent domain being recognized by the supreme law of the land, it ivould involve a contradiction to hold that in the exercise of that there can exist the legal elements of a wrong.
“ In the civil economy of political society whatever is legal is right; being right in legal contemplation it excludes from the transaction to which it is properly applied all wrong, and therefore all tort.
“ The taking of private property without the consent of the owner on the part of an individual is wrong per se; but not necessarily so upon the part of the Government, as it has the constitutional right to take private property against the will of the owner, subject to the condition of paying for it. Individuals hold their property,subject to the wants and necessities of the public, and if in the exercise of the right of eminent domain the public approjDriate such property, a compensation in value is the only redress due the owner.”

Substantially the same principle is announced in the case of Pope v. United States (26 C. Cls. R., 14) :

“ Every person who acquires property in this country, real or personal, in effect subscribes to an agreement to hold it subject to the right of the Government to take it for public use on the payment of just compensation. All property is held on this condition, whether it be the most tangible known to the law, real property, or the most intangible, the patented mind work of the inventor. There is no action of trespass against the Government for the one nor of infringement for the other.”

In the case of United States v. Great Falls Manufacturing Company (112 U. S., 646) it is, in substance, stated that the law will imply a promise to pay where property taken for the use of the United States is private property to which the United States asserts no title, and for such a taking there is jurisdiction in the Court of Claims to adjudicate and determine the measure of compensation.

This property was taken and appropriated for the time being as private pi’operty, without any objection from either the holder of the particular estate or the reversioner. The United States had the constitutional right to appropriate the property as it did upon the condition that they would pay for it.

This case is somewhat complicated by the fact that the taking, so far as the same interfered with the occupancy of the land, was not strictly in derogation of the rights of the reversioner, the land being at the time of the appropriation in possession of the tenant, whose term did not expire until after the use bjr the United States had ceased and the damage to the reversioner.

In reply to that argument it may be said the property right' of the reversioner was taken to the extent that the land had been diverted from the kind of use and occupation contemplated by the tenancy, in having been rented for agricultural purposes, and by the act of defendants used for military purposes beyond and different from the contemplated purpose of its use by the tenant.

The defendants were not trespassers as to the rights of the tenant or decedent. There was no tort or wrong in the acts of the United States. It ivas a peaceable appropriation of the land for a legitimate purpose and use, against which no objection ivas made either by the tenant or landlord.

The defendants took it in pursuance of a right which was acknowledged and recognized by the owners, and by their consent.

Can a transaction be said as “ sounding in tort ” where all parties in interest agree to and acquiesce in the act of the taking? The findings show that no objection was made by any persons, but all agreed to what was done.

The decedent in this proceeding had the fee-simple title— the highest estate which can be held in land, but subservient to the paramount right of the Government to take it for public use, upon the condition that compensation be made to him for its use, or its value. The estate of the tenant was limited in time and use, and beyond that all belonged to the decedent. That estate was the reversion of the land with all the incidents of the estate, except what might arise from the use and occupation of the land during the term of the lease.

The value of that estate was taken to the extent that the extraordinary use by the defendants impaired its value, and from which the defendants derived a substantial benefit in the use and .occupation of the land for military purposes.

It is said by the defendants that if the court has jurisdiction in this case it must arise from the taking of the property of the claimant in the exercise of the right of eminent domain, or it must arise from a contract made by the decedent and the defendants, for the breach of which damages are recoverable. And it is insisted that the circumstances under which the land was taken are not sufficient to establish a taking in the exercise of eminent domain and that there is no pretense that any contract wras made as to the use and occupation of the premises.

In support of such contention the case of the United States v. Pacific R. R. Co. (120 U. S., 227) is cited as sustaining such contention:

“ In what we have said about the exemption of Government from liability for private property injured or destroyed during war by the operations of armies in the field, or by measures necessary for their safety and efficiency, we do not mean to include claims where the property of loyal citizens is taken for the service of our Army, such as vessels, steamboats, and the like, for the transportation of troops and munitions of war, or buildings to be used as storehouses and places of deposit for war material or to house soldiers or take care of the sick, or claims for supplies seized and appropriated. In such cases it has been the practice of the Government to make compensation for the property .taken. Its obligation to do so is supposed to rest upon the general principle of justice that compensa,tion should be made where the private property is taken for public use, although the seizure and appropriation of private property under such circumstances by the military authorities may not be within the terms of the constitutional clause. (The italics are ours.) ”

The circumstances under which the question of the taking or destruction of private property arose in the case cited and relied on by the counsel for the defendants are very different from the circumstances unclfer which the United States took and used the land of the decedent.

The possession was taken after the cessation of hostilities between the United States and the Kingdom of Spain, and while in law a state of war did exist, there was a cessation of hostilities preceding the treaty of peace which was made in December following the occupation of the land, which terminated on the 11th of November. The protocol between the United States and Spain preparatory to the treaty of peace was made on the 12th day of August, 1898, and by virtue of that protocol hostilities had ceased and preparation made for the establishment of peace. (30 Stat. L., 1742.) The property which was taken was not within the area of war and never had been, being removed more than 1,000 miles from the nearest approach of a public enemy.

It was taken as private property, and the lease, which was a part of the estate belonging to a tenant, was paid for upon the theory that he was entitled to pay for the reason that the United States had taken his property for public use. There was a military necessity that some land in that vicinity should be taken. There is always a necessity when property is taken, and it implies no wrong on the part of the Government that it does take property without the consent of the owner. Underlying the exercise of the right is grant of power upon the expressed condition that compensation be made.

The court will take judicial notice of the condition of the Government during the existence of the Spanish war; that it was in no embarrassed condition in the resources of supplies to occasion the exercise of the powers of war, such as surrounded it during the civil war. The law was not silent in the State of Pennsylvania, so as to deprive the citizen from all the safeguards of the Constitution in the protection of his rights of property and the lawful means of redress.

Judgment will therefore be entered for the claimant for the sum of $1,956, as indicated in the conclusion of law.  