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Opinion of the Court.

The act of March 3, 1887, c. 359, § 7, provides that " it shall be the duty of the court to cause a written opinion to be filed in the cause, setting forth the specific findings by the court of the facts therein, and the conclusions of the court upon all questions of law involved in the case, and to render judgment thereon. If the suit be in equity or admiralty, the court shall proceed with the same according to the rules of such courts." 24 Stat. 506. But, in the case at bar, the only judgment entered, and upon which this writ of error was sued out, appears to have been given for the United States on the plaintiff's demurrer to the second plea, which presented an issue of law only, upon which the findings of fact can bave no possible bearing or effect. It would seem to follow that the findings of facts cannot be taken into consideration by this court upon this record. But this is comparatively unimportant, because those findings do but state in greater detail the facts alleged and admitted by the petition, the second plea and the demurrer to that plea.

The land in question, upon which the United States have built and maintain a light-house, is below low water mark, and under the tide waters of Chesapeake Bay. Both parties assume that by the common law of England, which was the common law of Maryland, the title in land below high water mark of tide waters was in the King, and upon the Declaration of Independence passed to the State of Maryland, and remained in the State after the adoption of the Constitution of the United States, except so far as any right in such land was surrendered to the United States by virtue of the grant to Congress of the power to regulate commerce with foreign nations and among the several States, including as a necessary

and occupy the site in question for the purposes of commerce, which includes navigation, without condemnation or compensation, the submerged land forming the site of the light-house being, as to such a use by the United States, public and not private property.

I therefore overrule the demurrer of the plaintiff to the second plea of the United States, and I do give judgment under said plea for the United States, with costs, to include what has been actually incurred for witnesses and for summoning the same, and fees paid to the clerk of the court.

Opinion of the Court.

incident the exclusive right to regulate and control the building and maintenance of light-houses for the protection of navigation; and except, also, so far as any right on such lands has been lawfully granted by the State of Maryland to private persons.

By the statute of Maryland of 1862, c. 129, article 54 of the Public General Laws of the State was amended by adding the followings sections :

SEC. 37. “The proprietor of land bounding on any of the navigable waters of this State is hereby declared to be entitled to all accretions to said land by the recession of said water, whether heretofore or bereafter formed or made, by natural causes or otherwise, in like manner and to like extent as such right may or can be claimed by the proprietor of land bounding on water not navigable."

Sec. 38. “The proprietor of land bounding on any of the navigable waters of this State is hereby declared to be entitled to the exclusive right of making improvements into the waters in front of his said land; such improvements, and other accretions as above provided for, shall pass to the successive owners of the land to which they are attached, as incident to their respective estates. But no such improvement shall be so made as to interfere with the navigation of the stream of water into which the said improvement is made."

SEC. 39. “No patent hereafter issued out of the land office shall impair or affect the rights of riparian proprietors, as explained and declared in the two sections next preceding this section, and no patent shall hereafter issue for land covered by navigable waters."

The plaintiff contends that the entire title in the land below high tide, with the right to improve and build upon the same, remained in the State after the adoption of the Constitution; that, by the statute of 1862, the title to such land, at the place in question, or at least the exclusive right of building thereon, was vested in the plaintiff; and that the title or right so acquired by him was his private property, which, by the Fifth Amendment of the Constitution, could not be taken by the United States for the erection and maintenance of a light-house for the public use, without just compensation.

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Opinion of the Court.

The United States, on the other hand, assert, and the court below has held, that the United States upon the adoption of the Constitution acquired the paramount right to the use of this submerged land for a light-house, without making any compensation therefor; and that any title or right conferred on the plaintiff by the subsequent statute of the State was necessarily subject to this paramount right of the United States.

The question thus presented is of such importance to the United States, as well as to owners of lands bounding on tide waters, that it becomes this court, before expressing any opinion upon it, to inquire whether the courts have jurisdiction to determine the question in this form of proceeding against the United States.

The whole effect of the act of March 3, 1887, c. 359, under which this suit was brought, was to give the Circuit and District Courts of the United States jurisdiction, concurrently with the Court of Claims, of suits to recover damages against the United States, in cases not sounding in tort.

United States v. Jones, 131 U. S. 1, 16, 18.

The United States cannot be sued in their own courts without their consent, and have never permitted themselves to be sued in any court for torts committed in their name by their officers. Nor can the settled distinction, in this respect, between contract and tort, be evaded by framing the claim as upon an implied contract. Gibbons v. United States, 8 Wall. 269, 274; Langford v. United States, 101 U. S. 341, 346; United States v. Jones, above cited.

An action in the nature of assumpsit for the use and occupation of real estate will never lie where there has been no relation of contract between the parties, and where the possession has been acquired and maintained under a different or adverse title, or where it is tortious and makes the defendant a trespasser. Lloyd v. Hough, 1 How. 153,159 ; Carpenter v. United States, 17 Wall. 489, 493.

In Langford v. United States, it was accordingly adjudged that, when an officer of the United States took and held possession of land of a private citizen, under a claim that it be

Opinion of the Court.

It was

longed to the government, the United States could not be charged upon an implied obligation to pay for its use and occupation.

It has since been held that if the United States appropriate to a public use land which they admit to be private property, they may be held, as upon an implied contract, to pay its value to the owner. United States v. Great Falls Manuf. Co., 112 U. S. 645, and 124 U. S. 581. It has likewise been held that the United States may be sued in the Court of Claims for the use of a patent for an invention, the plaintiff's right in which they have acknowledged. Hollister v. Benedict Manuf. Co., 113 U. S. 59; United States v. Palmer, 128 U. S. 262. But in each of these cases the title of the plaintiff was admitted, and in none of them was any doubt thrown upon the correctness of the decision in Langford's case. See Schillinger v. United States, 24 C. Cl. 278.

The case at bar is governed by Langford's case. not alleged in this petition, nor admitted in the plea, that the United States had ever in any way acknowledged any right of property in the plaintiff as against the United States. The plaintiff asserted a title in the land in question, with the exclusive right of building thereon, and claimed damages of the United States for the use and occupation of the land for a light-house. The United States positively and precisely pleaded that the land was submerged under the waters of Chesapeake Bay, one of the navigable waters of the United States, and that the United States, “under the law, for the purpose of a light-house, has a paramount right to its use as against the plaintiff or any other person"; and the plaintiff demurred to this plea. The Circuit Court, instead of rendering judgment for the United States upon the demurrer, should have dismissed the suit for want of jurisdiction. Judgment reversed, and case remanded to the Circuit Court

with directions to dismiss it for want of jurisdiction. MR. JUSTICE JACKSON, not having been a member of the court when this case was argued, took no part in its decision.

Dissenting Opinion: Shiras, J.

MR. JUSTICE SHIRAS dissenting.

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When the Fifth Amendment of the Constitution of the United States declares that “private property shall not be taken for public use without just compensation,” a compact or contract of the highest degree of obligation is thereby established between the American people of the one part and each and every citizen of the other part. In and by that constitutional provision every citizen agrees that his property may be taken for public use whenever the nation, through its legislative department, demands it; and the United States agree that, when the property of the citizen is so taken, just compensation shall be made.

Whenever a case arises, in which that constitutional provision is invoked, two questions present themselves : first, is the property dealt with the private property of the party claiming it? and, secondly, has it been taken by the United States for public use?

If the property to be affected is not that of the claimant, of course his appeal to the constitutional protection will be vain. But it is equally plain that the question of title is not one to be decided by the party claimant, or by the legislative or executive departments of the United States. That is a judicial question. Accordingly, if in a given case it is either admitted, or proposed to be shown, that the property concerned belongs to a party before a court having jurisdiction to deal with the subject, then the only question that remains is whether such property has been taken by the United States for public use. In such a case the United States cannot, by a plea denying the plaintiff's title, make it the duty of the court to dismiss the plaintiff's suit. Such a denial cannot be treated, in face of the constitutional compact, as an exercise of sovereign power, whereby the right of the citizen to assert his property rights is forbidden, but it merely raises a judicial issue, to be determined by the court.

If the court shall determine that the property in question is the private property of the claimant, then the second question comes up, whether the United States have taken it for public use.

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