In cases brought under the Tucker Act and coming to this Court
from a district or circuit court, the findings of fact of the trial
court are conclusive, and the question here, unless the record
would warrant the conclusion that the ultimate facts are not
supported by any evidence whatever, is whether the conclusions of
law are warranted by the facts found.
Chase v. United
States, 155 U. S. 489.
Where property is left with the officer of the government who
has charge of the work by the owner relying upon the fact that his
title is not disputed and upon representations made to him that
payment would be recommended for such use, and Congress has given
authority to appropriate property necessary for the particular work
and to pay therefor, there is an implied contract on the part of
the government to pay for the property, and jurisdiction exists
under he Tucker Act.
United States v. Lynah, 188 U.
S. 445, followed, and
Harley v. United States,
198 U. S. 229,
distinguished.
When, in the exercise of its governmental rights, it takes
property the ownership of which it concedes to be in an individual,
the United States, under the constitutional obligation of the Fifth
Amendment, impliedly promises to pay therefor.
United States v.
Lynah, 188 U. S. 445,
188 U. S. 464,
followed.
Hooe v. United States, 218 U.
S. 322, distinguished.
193 F. 905 affirmed.
The facts, which involve the liability of the government under
the Fifth Amendment for the rental value of property used by it,
are stated in the opinion.
Page 234 U. S. 229
MR. JUSTICE DAY delivered the opinion of the Court.
This suit was brought by the Buffalo Pitts Company in the
Circuit Court of the United States for the Western District of New
York to recover for the value of the use of a certain engine which
it was alleged the United States was under an implied contract to
pay. The action was begun under the Tucker act of March 3, 1887, 24
Stat. 505, c. 359, and the court of original jurisdiction, as
required by the statute, § 7, made findings of fact and conclusions
of law under which it held the government liable and rendered
judgment for the plaintiff's claim. On writ of error, the circuit
court of appeals affirmed that judgment (193 F. 905), and the case
is brought here.
The findings of fact show that: the plaintiff is a corporation
organized under the laws of New York, and having its principal
place of business at Buffalo, New York, manufacturing, among other
things, traction engines. On May 20, 1905, it sold a traction
engine with appurtenances to the Taylor-Moore Construction Company,
delivered
Page 234 U. S. 230
at Roswell, New Mexico, and took a chattel mortgage thereon to
secure the payment of $1,600 of the purchase price. The chattel
mortgage conveyed the engine and appurtenances to the plaintiff on
condition that, if the mortgagor should fail to pay the sum of
$1,600 according to certain notes, or should attempt to dispose of
or injure the property, or remove the same from the county of
Chaves, New Mexico, or if the mortgagor should not take proper care
of the property, or if the mortgagee should at any time deem itself
unsafe or insecure, then the whole amount unpaid should be
considered immediately due and payable, and it should be lawful for
the mortgagee to take the property and remove the same, and hold or
sell it and all equity of redemption at public auction, with notice
as provided by law. The mortgage was duly recorded May 22, 1905,
and no part of the money thereby secured has ever been paid to the
mortgagee, which has ever since been the owner and holder of the
mortgage. The engine was put to work by the construction company
upon the so-called Hondo Project, being part of the Reclamation
Service undertaken by the Department of the Interior of the United
States, which work was being prosecuted under a contract between
the United States and the construction company, the engine being
located at or near Roswell, New Mexico.
The construction company having made default in the performance
of its contract, on or about June 7, 1905, work was suspended
thereunder, and the construction company then assigned all its
interest in the contract to the United States, which, pursuant to
the contract, took possession of all material, supplies, and
equipment belonging to the construction company, including the
engine and appurtenances. On June 16, 1905 at Roswell, New Mexico,
the plaintiff, by its agents, made a demand upon the defendant
through Wendell M. Reed, District Engineer of the Reclamation
Service under the Department of the Interior,
Page 234 U. S. 231
for the possession of the engine and appurtenances, which the
defendant then and there refused, and thereafter it retained and
used the property in the work under the contract until June 21,
1906. Reed was, during, and before, and after, such period, the
local representative of the government in charge of the work under
the contract at and near Roswell, and as such took possession of
the engine and appurtenances for the United States. Thereafter the
defendant, by the Director of the United States Geological Survey,
to whom the Secretary of the Interior referred the matter, and by
the Chief Engineer and Assistant Chief Engineer of the Reclamation
Service, under the direction of the Department, ratified and
adopted the acts of Reed in respect to the possession of the engine
and appurtenances. The mortgagor has never made any claim to the
property since the suspension and assignment of the contract to the
defendant.
Plaintiff, on or about June 16, 1905, and also on or about
September 30, 1905, notified the defendant of the execution and
filing of the chattel mortgage, and that the plaintiff claimed the
property under the title thereby vested in it, and claimed the
right of possession because of the default by the mortgagor in the
conditions thereof, and the defendant at all times well knew of the
existence and filing of the chattel mortgage, and did not at any
time dispute the validity thereof. On September 30, 1905, the
defendant represented to the plaintiff that it was using and would
continue to use the engine and appurtenances in its work, and that
any legal proceedings to recover the possession thereof would be
resisted by the defendant, and further represented to the plaintiff
that, if such property was left in the defendant's possession, its
attorney would recommend payment therefor. The plaintiff relied
upon the fact that its title to the property under the chattel
mortgage was not disputed by the defendant, and upon the
representations made to it as aforesaid, and consented
Page 234 U. S. 232
to defendant's retaining possession of the property in
expectation of receiving due compensation therefor.
The question in this case is, did these facts warrant the
deduction that the government was liable upon an implied contract
to pay for the use of the engine? In cases brought under this act
coming up from a district or circuit court of the United States,
the findings of fact of the trial court are conclusive, and the
question is whether the conclusions of law were warranted by the
facts found (
Chase v. United States, 155 U.
S. 489,
155 U. S.
500). Exceptions to the rule may exist if the record
enables the court to conclude that the ultimate facts found are not
supported by any evidence whatever (
Collier v. United
States, 173 U. S. 79).
We think the circuit court and the circuit court of appeals were
right in concluding that, under the facts found, the United States
was liable upon an implied contract. As to the plaintiff, it is
specifically found that it left the property with the defendant,
relying upon the fact that its title to the property under the
mortgage was not disputed, and upon the representations made to it,
and consented to the defendant's retaining possession of the
property in expectation of receiving compensation for it; as to the
government, it is found that it was well known to it that the
chattel mortgage existed, and its validity was undisputed, and that
it would continue the use of the engine and appurtenances, and, if
left in its possession, payment would be recommended for such
use.
True it is that, under the Tucker Act, there is no jurisdiction
in the Court of Claims or district courts of the United States to
recover for acts merely tortious, the statute providing that there
shall be no recovery except in cases not sounding in tort. It has
been said in the case cited for the government,
Harley v.
United States, 198 U. S. 229,
that there must be some meeting of the minds of the parties upon
the fact that compensation will be made. In
Page 234 U. S. 233
that case, it was found that there was no demand based upon a
convention between the parties, or coming together of minds, for
while the plaintiff, an employee of the government in the Bureau of
Printing and Engraving, supposed and understood he would be
entitled to compensation for certain improvements made in printing
presses which were used for many years by the Bureau, the findings
also set forth in express terms that it was supposed and understood
by the officers of the government that the claimant would neither
expect nor demand remuneration, and this fact, said this Court,
distinguished it from
McKeever v. United States, 14
Ct.Clms. 396, affirmed by this Court; also from
United States
v. Lynah, 188 U. S. 445, and
the other cases cited by appellant.
In the present case, as we have said, there is nothing to show
that the government expected to use the engine and appurtenances
without compensation. It did not dispute the mortgage, and the
findings of fact clearly show that, if the government had the right
to take the property, notwithstanding the mortgage interest which
the plaintiff had in it, it made no claim of right to take and use
it without compensation as against the prior outstanding mortgage,
which distinctly reserved the right to take and sell the property
under the circumstances shown, and which, after the breach of
condition, vested the right of possession and the right to convert
the property in the mortgagee.
Kitchen v. Schuster, 14
N.M. 164.
Furthermore, the government was authorized by § 7 of the Act of
June 17, 1902, 32 Stat. 388, c. 1093, under which this improvement
was being made, to acquire any property necessary for the purpose,
and, if need be, to appropriate it. It may be said, as contended,
that, under the contract with the construction company, the
government had a right to take possession of this engine, which was
in possession of the company as mortgagor, and by virtue of the
terms of the agreement complete the work, but it could not in
this
Page 234 U. S. 234
manner extinguish the rights of the mortgagee, nor did it
undertake to do so. Under such circumstances, we think the former
decisions of this Court, recognizing the general principles of
justice which give rise to implied obligations and enforcing the
right of compensation when private property is taken for a public
use, require the government to make compensation for the use of
this engine, and that the facts bring this case within
United
States v. Great Falls Mfg. Co., 112 U.
S. 645, and
United States v. Lynah, supra. In
the latter case, where it was sought to recover damages for the
alleged taking of the plaintiff's property in the construction of a
dam which had the effect to overflow lands belonging to him, and
destroy their value, after an extended review of the previous cases
in this Court, it was said (p.
188 U. S.
464):
"The rule deducible from these cases is that, when the
government appropriates property which it does not claim as its
own, it does so under an implied contract that it will pay the
value of the property it so appropriates. It is earnestly contended
in argument that the government had a right to appropriate this
property. This may be conceded, but there is a vast difference
between a proprietary and a governmental right. When the government
owns property, or claims to own it, it deals with it as owner and
by virtue of its ownership, and if an officer of the government
takes possession of property under the claim that it belongs to the
government (when in fact it does not), that may well be considered
a tortious act on his part, for there can be no implication of an
intent on the part of the government to pay for that which it
claims to own. Very different from this proprietary right of the
government in respect to property which it owns is its governmental
right to appropriate the property of individuals. All private
property is held subject to the necessities of government. The
right of eminent domain underlies all such rights of property. The
government may take personal or real
Page 234 U. S. 235
property whenever its necessities or the exigencies of the
occasion demand. So the contention that the government had a
paramount right to appropriate this property may be conceded, but
the Constitution, in the Fifth Amendment, guarantees that, when
this governmental right of appropriation -- this asserted paramount
right -- is exercised, it shall be attended by compensation."
". . . Whenever, in the exercise of its governmental rights, it
takes property, the ownership of which it concedes to be in an
individual, it impliedly promises to pay therefor. Such is the
import of the cases cited as well as of many others."
P.
188 U. S.
465.
In
Hooe v. United States, 218 U.
S. 322, the attempt to make the government liable for
rent was in the face of a statute of the United States which
provided that no contract should be made for rent until an
appropriation for that purpose had been made by Congress. In the
present case, the government had the right to contract for this
work under statutory authority, and to acquire property necessary
to that end. Under the contract, it might take possession of the
construction company's property, and, it may be conceded, finish
the contract with such property, but it had no right to use the
property of others without compensation, and in this case it did
not assume to do so. The mortgagee had a distinct right in the
property, which had accrued to it before the property was entered
upon, and was authorized to take and hold the same as against the
attempted transfer of the mortgagor. While the government claimed
the right to thus take and use the property, it nevertheless held
it without denying the right of the owner to compensation. When it
takes property under such circumstances for an authorized
governmental use, it impliedly promises to pay therefor. This
accords with the principles declared in the previous cases in this
Court, and arises because of the Constitutional obligation embodied
in the Fifth Amendment to the Constitution of the United
Page 234 U. S. 236
States, guarantying the owner of property against its
appropriation for a governmental use without compensation.
We find no error in the judgment of the circuit court of
appeals, and it is
Affirmed.