A claim by a person asserting title in land under tidewater, for
damages for the use and occupation thereof by the United States for
the erection and maintenance of a lighthouse, without his consent
and without compensation to him, but not showing that the United
States have acknowledged any right of property in him as against
them, is a case sounding in tort of which the circuit court of the
United States has no jurisdiction under the Act of March 3, 1887,
c. 359.
The case is stated in the opinion.
MR. JUSTICE GRAY delivered the opinion of the Court.
This was a suit, brought November 1, 1888, in the Circuit Court
of the United States for the District of Maryland under the Act of
March 3, 1887, c. 359, by Nicholas S. Hill, a citizen of Maryland,
against the United States, for the use and occupation of land for a
lighthouse.
The petition alleged that the plaintiff, since February 14,
1873, had been seised and possessed in fee simple of certain
Page 149 U. S. 594
tracts of land in Baltimore County, in the State of Maryland,
fronting upon Chesapeake Bay, as shown upon a plat, and
specifically described in a deed of that date to him from Thomas
Donaldson, copies of both of which were annexed to the petition,
"with all the riparian rights attached thereto under the law of
this state;" that since his acquisition of said land and rights, "a
valuable part thereof has been used and occupied by the United
States government" for
"the erection and maintenance of a lighthouse, known generally
as the 'Miller's Island Lighthouse,' without any compensation to
your petitioner for such use and occupation, and without the
consent thereto of your petitioner of his predecessors in
title,"
and that
"by the use and occupancy by the government as aforesaid of his
property, he has been prevented from using the same within the
limits above mentioned, and from erecting buildings thereupon and
using the same for fishing and gunning purposes."
The plaintiff
"claims, as damages, for the use and occupation of his said
property as aforesaid, the sum of $9,999 from November 1, 1885,
until November 1, 1888, and prays the judgment and decree of this
honorable court thereupon on the facts and the law."
The United States pleaded three pleas:
1. A former judgment. The plaintiff replied that there was no
such judgment, and the United States joined issue on the
replication.
2.
"That the land referred to and described in the petition filed
in this cause is submerged land, and part of the bottom of the
Chesapeake Bay, one of the navigable waters of the United States,
and that the said defendant, under the law, for the purposes of a
lighthouse, has a paramount right to its use as against the
plaintiff or any other person."
To this plea the plaintiff demurred.
3. "That the defendant did not commit the wrongs alleged." The
plaintiff joined issue on this plea.
On June 22, 1889, the circuit court overruled the demurrer to
the second plea and gave judgment thereon for the United States,
with costs, and filed a written opinion, which is published in 39
F. 172.
Page 149 U. S. 595
On June 27, 1889, the circuit judge filed findings of facts and
conclusions of law, which are copied in the margin.
*
Page 149 U. S. 596
The Act of March 3, 1887, c. 359, ยง 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 have 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 lighthouse is below low water mark, and under the
tidewaters 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 tidewaters 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
Page 149 U. S. 597
incident the exclusive right to regulate and control the
building and maintenance of lighthouses 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
following 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 hereafter 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 lighthouse for the public use without
just compensation.
Page 149 U. S. 598
The United States, on the other hand, assert, and the court
below had held, that the United States, upon the adoption of the
Constitution, acquired the paramount right to the use of this
submerged land for a lighthouse 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 tidewaters, 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,
131 U. S.
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 tort 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,
75 U. S. 274;
Langford v. United States, 101 U.
S. 341,
101 U. S. 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,
42 U. S. 159;
Carpenter v. United
States, 17 Wall. 489,
84 U. S. 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
belonged
Page 149 U. S. 599
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 Mfg. Co., 112 U.
S. 645, and
124 U. S. 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 Mfg. 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 Ct.Cl. 278.
The case at bar is governed by
Langford's Case. It was
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
lighthouse. 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 lighthouse, 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.
Page 149 U. S. 600
MR. JUSTICE SHIRAS, dissenting.
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.
Page 149 U. S. 601
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.
If it shall appear that, in point of fact, the United States
have not taken the plaintiff's property for public use and that all
that the plaintiff has to complain of is that some persons, known
or unknown, but claiming to be officers or agents of the Unites
states, have committed a trespass upon his property, and it does
not appear that the acts complained of were in pursuance of any law
of the United States, or that they have been ratified by the United
States by taking possession of and occupying the property for
public use, then the plaintiff's case will fall within the doctrine
of
Langford v. United States, 101 U.
S. 341, and must be treated as an attempt, under the
assumption of an implied contract, to make the government
responsible for the unauthorized acts of its officers, those acts
being themselves torts.
But if it shall be shown or be admitted that the United States,
by law, either authorized their agents to appropriate the property
of the plaintiff or have ratified the action of their agents by
taking possession of the property and subjecting it to public use,
then the constitutional duty of the court is to pronounce judgment
for the plaintiff and to award him just compensation.
These views do not overlook the well settled doctrine that
unless and until Congress shall, by adequate legislation, provide a
legal remedy, private rights against the government may be in
abeyance. But when Congress, in obedience to the behest of the
Constitution, has provided such a remedy, then there is no legal
obstacle to the plaintiff's recovery. That Congress has provided
such a remedy is seen in the Act of March 3, 1887, c. 359, whereby
it is enacted that the Court of Claims, and, concurrently, the
district and circuit courts of the United States,
"shall have jurisdiction to hear and determine
all claims
founded upon the Constitution of the United States or any law
of Congress, except for pensions, or upon any regulation of an
executive department, or upon any contract, express or implied,
with the government of the United States, or for damages,
liquidated or unliquidated, in cases not sounding in tort, in
respect of which claims the party would be entitled to redress
against the United States either in a
Page 149 U. S. 602
court of law, equity, or admiralty, if the United States were
suable."
This legislation perhaps originated in the regret expressed by
this Court in
Langford's Vase that "Congress has made no
provision by general law for ascertaining and paying this just
compensation." That was a suit brought in the Court of Claims,
under section 1059 of the Revised Statutes, in which there is no
remedy provided for claims founded upon the Constitution of the
United States, and was, in the language of the Court, the case of
"an unequivocal tort."
The later case of
United States v. Great Falls Manufacturing
Co., 112 U. S. 656,
is in some respects like the present one. It was there held that it
was clear
"that these property rights have been held and used by the
agents of the United States, under the sanction of legislative
enactments by Congress, for the appropriation of money specifically
for the construction of the dam from the Maryland shore to Conn's
Island was, all the circumstances considered, equivalent to an
express direction by the legislative and executive branches of the
government to take this particular property for the public objects
contemplated by the scheme for supplying the capital of the nation
with wholesome water. The making of the improvements necessarily
involves the taking of the property, and if, for the want of formal
proceedings for its condemnation to public use, the claimant was
entitled at the beginning of the work to have the agents of the
government enjoined from prosecuting it until provision was made
for securing in some way payment of the compensation required by
the Constitution, upon which question we express no opinion, there
is no sound reason why the claimant might not waive that right,
and, electing to regard the action of the government as a taking
under its sovereign right of ancient domain, demand just
compensation. In that view we are of opinion that the United
States, having, by their agents, proceeding under the authority of
an act of Congress, taken the property of the claimant for public
use, are under an obligation imposed by the Constitution to make
compensation. The law will imply a promise to make the required
compensation
Page 149 U. S. 603
where property, to which the government asserts no title, is
taken pursuant to an act of Congress, as private property to be
applied for public use. Such an implication being consistent with
the constitutional duty of the government, as well as with common
justice, the claimant's cause of action is one that arises out of
implied contract within the meaning of the statute which confers
jurisdiction upon the Court of Claims of actions founded 'upon any
contract, express or implied, with the government of the United
States.'"
Having distinguished the case from that of
Langford,
the Court proceeded to say:
"n such a case, it is difficult to perceive why the legal
obligation of the United States to pay for what was thus taken
pursuant to an act of Congress is not quite as strong as it would
have been had formal proceedings for condemnation been resorted to
for that purpose. If the claimant makes no objection to the
particular mode in which the property has been taken, but
substantially denies it by asserting, as is done in the petition in
this case, that the government took the property for the public
uses designated, we do not perceive that the court is under any
duty to make the objection in order to relieve the United States
from the obligation to make just compensation."
It will be noticed that this decision, in terms so applicable to
the present case, was made before the Act of March 3, 1887, in
which, for the first time, an express remedy was given for "all
claims founded upon the Constitution of the United States," and
in
"respect to claims for which the party would be entitled to
redress against the United States, either in a court of law,
equity, or admiralty, if the United States were suable."
In the present case, although no express proceedings have been
instituted by the United States to condemn the property for public
use, yet it is admitted in the pleas that the United States have
taken possession of it for a public use or purpose, and by various
acts of Congress, of which we can take judicial notice, large sums
of money have been granted to construct and maintain the lighthouse
on the site in question.
The opinion of the Court seeks to withdraw the case from
Page 149 U. S. 604
the operation of the Constitution and the act of 1887, and to
bring it within the decision of the
Langford Case, by
contending that because the United States by their pleas deny the
plaintiff's right to recover, the acts complained of are thereby
shown to have been sheer torts, and therefore expressly exempted
from judicial cognizance. I am unable to see the force of this
reasoning. The statute having provided that all claims founded upon
provisions of the Constitution shall be enforceable, surely a
district attorney of the United States cannot by a mere plea, not
denying the plaintiff's title to his land, but claiming that the
land is legally subject to a servitude in favor of the United
States, which exonerates them from making compensation, deprive the
plaintiff of his right under the statute to have his claim
adjudicated. Can it be possible that after Congress, in recognition
of the constitutional provision and of the repeated suggestions of
this Court, has provided a legal remedy, a subordinate legal
functionary can by a plea, either of matter of fact or of law,
defeat the beneficent purpose of Congress, deprive the plaintiff of
his remedy, and convert the United States, against their will, as
expressed in the Constitution and the act of Congress, into a
wrongdoer? I cannot accept the proposition that, by a plea putting
the plaintiff upon proof of his claim, the United States thereby
escape from their constitutional covenant and nullify the statute
which provides a remedy.
The question presented by the second plea in the court below is,
no doubt, one of difficulty and importance which, if and when it
comes before this Court, will demand serious consideration, but
that question is waived by the opinion of the Court, and any
discussion of it in this opinion would be out of place.
I therefore have a right to assume that the property of the
plaintiff below, though held subject to the right of eminent
domain, is entitled to the protection of the Constitution; that
there is no kind of private property, whatever may be its nature or
origin, that can be taken for public use without just compensation
being made.
Hence it follows that the court below erred in overruling
Page 149 U. S. 605
the demurrer to the second plea. I think the judgment of the
court below should be reversed, and the cause be remanded to the
circuit court to proceed therein in exercise of the jurisdiction
conferred upon it in such ample terms by the Act of March 3,
1887.
*
"
Findings of Facts"
"1. I find that copies of the plaintiff's petition were, in
compliance with the requirements of the Act of March 3, 1887, c.
359, duly served on the United States district attorney and the
Attorney General of the United States, and said law in all respects
complied with."
"2. I find that the plaintiff, since February 14, 1873, has been
seised and possessed in fee simple of the tract of land described
in these proceedings, and known as 'Miller's Island,' and of all
the riparian rights attached thereto under the laws of the State of
Maryland."
"3. I find that no part of the fast land included in the deed of
the plaintiff has been used or occupied by the United States, but
that a site for the rear range light of Craighill Channel, situated
about two hundred yards from the shoreline of the plaintiff's land,
has been occupied and used by the United States; that the said site
is submerged land in the Chesapeake Bay, one of the public
navigable waters of the United States, and within the ebb and flow
of the tide, and in water about two feet deep at low tide."
". I find that Craighill Channel is a channel in Chesapeake Bay,
constructed by the United States and used by ocean vessels in their
approach to the port of Baltimore, and that the lighthouse
constructed by the United States in the year 1874 on the site in
question is an important and necessary aid to the navigation of
said channel."
"5. I find that the United States took possession of said site
for the purpose of building the lighthouse in question without
condemnation or the payment of any compensation to the plaintiff or
any other person, in the year 1874."
"6. I find that the land of Miller's Island, belonging to the
plaintiff, was heretofore used and is chiefly valuable on account
of the gunning for geese, swan, and ducks, and for the fishing
privileges with nets, and that since the erection of the lighthouse
adjoining the shore, the value of the land has decreased greatly,
and that the plaintiff's testimony tended to show that said
decrease is due to the erection of said lighthouse, and that the
island formerly rented for $3,000 per annum, but since the erection
of the lighthouse the rent has decreased to $500 per annum."
"
Conclusions of Law."
"That the legal title to the site of the lighthouse in question
is in the State of Maryland, subject to the riparian rights of the
plaintiff under the act of 1862, c. 129, of the Laws of
Maryland."
"That under Article I, Section 8 of the Constitution of the
United States, which provides that Congress shall have the power
'to regulate commerce with foreign nations and among the several
states and with the Indian tribes,' both the title of the State of
Maryland and the riparian rights of the plaintiff are subject to
the paramount right of the United States to use 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 lighthouse 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."