1. The Act of October 6, 1917, c. 79, 40 Stat. 345, to increase
facilities for testing ordnance materials, appropriated money to
pay for buildings, land, etc., "and damages and losses to persons
resulting from the procurement of the land," and provided that, if
land and improvements could not be procured by purchase, the
Page 267 U. S. 342
President was authorized to take them over, with all appurtenant
rights, and the United States should make jut compensation
therefor, to be determined by the President, and that, if the
amount so determined were unsatisfactory to the person entitled, he
should be paid 75% of it and be entitled to sue the United States
under Jud.Code, §§ 24 and 145, to recover such further sum as added
to the 75% would make up jut compensation.
Held: That persons whose land was taken and who
accepted the compensation fixed by the President were not thereby
precluded from claiming additional compensation under the Fifth
Amendment, as for a taking of their business, or from claiming
damages under the Act itself for the loss of the business. P.
267 U. S.
344.
2. It is a settled rule that damages resulting from a loss or
destruction of business incidental to a taking of land are not
recoverable as part of the compensation for the land taken.
Id.
3. By its reference to "losses . . . resulting from procurement
of land," the above Act doubtless authorized the Secretary of War
to consider losses resulting from destruction of business when
procuring land by agreement, but it is not to be construed as a
departure from the settled policy of Congress to limit compensation
for a taking of land to interests in the land taken. P.
267 U. S.
345.
58 Ct.Clms. 443 affirmed.
Appeal from a judgment of the Court of Claims rejecting, after
full hearing, a claim for compensation for destruction of
appellants' business resulting from the taking of their land and
other land in the vicinity.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
Pursuant to the Act of October 6, 1917, c. 79, 40 Stat. 345,
352, the President declared that the large track of
Page 267 U. S. 343
land in Maryland now known as the Aberdeen Proving Ground was
needed for that military purpose. Proclamations, October 16, 1917,
and December 14, 1917, 40 Stat. 1707, 1731. The land was thereafter
acquired under that Act from the several owners either by purchase
or by eminent domain. Among the parcels acquired by eminent domain
was one of 440 acres belonging to the plaintiffs and used by them
in the business of growing and canning corn of a special grade and
quality. The establishment of the proving ground resulted in
withdrawing from such use the available lands especially adapted to
the growing of this particular quality of corn. Plaintiffs were
consequently unable to reestablish themselves elsewhere in their
former business. For their land, appurtenances, and improvements
the President fixed $76,000 as just compensation. For the business
he made no allowance. The sum awarded was accepted without protest.
In 1921, this suit was brought to recover $100,000 as compensation
for the loss of their business. The Court of Claims, after a
hearing upon the evidence, entered judgment for the defendant. 58
Ct.Cls. 443. The case is here on appeal under § 242 of the Judicial
Code.
The Act appropriated $7,000,000 for
"increasing facilities for the proof and test of ordnance
material, including necessary buildings, construction, equipment,
land, and damages and losses to persons, firms, and corporations
resulting from the procurement of the land for this purpose."
It then provided that, if the land, appurtenances, and
improvements could not be procured by purchase, the President was
authorized to take over the immediate possession and title for the
United States; that just compensation to be determined by the
President should be made therefor, and that, if the compensation so
determined should prove unsatisfactory to the person entitled to
receive it, he was to be paid 75 percent of that amount, and was to
be entitled to sue for whatever
Page 267 U. S. 344
further sum was required for just compensation. Plaintiffs make
two contentions . The first is that, because the business was
destroyed, they can recover, under the Fifth Amendment, as for a
taking of the business upon a promise implied in fact under the
doctrine of
United States v. Great Falls Manufacturing
Co., 112 U. S. 645. The
second contention is that, under the terms of the Act, they can
recover damages for loss of the business although it may not have
been taken. In support of each contention, they rely, among other
things, upon the findings of fact that, before the passage of the
Act, a representative of the War Department had given assurance
publicly that compensation would be paid not only for the land
taken by the government, but also for all injuries and losses
sustained by any person as a result of the establishment of the
proving ground, and that, both before and shortly after the passage
of the Act, the Secretary of War had given somewhat similar
assurances.
The mere fact that compensation for the taking of the land was
fixed by the President and was accepted does not bar recovery on
the present claim, whether the suit be deemed to be upon a promise
implied in fact for a taking or for the recovery of statutory
damages. The claim now asserted is on account of property other
than that for which the Act provided that compensation should be
made upon the President's determination. Acceptance of the award
did not operate, under the doctrine of
United
States v. Childs & Co., 12 Wall. 232, as a
voluntary settlement of this claim. There are, however, other
obstacles to a recovery. The Act authorized the taking only of
"land and appurtenances and improvements attached thereto," and it
did not declare that compensation should be made for losses
resulting from the establishment of the proving ground.
The special value of land due to its adaptability for use in a
particular business is an element which the owner
Page 267 U. S. 345
of land is entitled, under the Fifth Amendment, to have
considered in determining the amount to be paid as the just
compensation upon a taking by eminent domain.
Boom Co. v.
Patterson, 98 U. S. 403,
98 U. S. 408,
New York v. Sage, 239 U. S. 57,
239 U. S. 61.
Doubtless such special value of the plaintiffs' land was duly
considered by the President in fixing the amount to be paid
therefor. The settled rules of law however, precluded his
considering in that determination consequential damages for losses
to their business, or for its destruction.
Joslin Manufacturing
Co. v. Providence, 262 U. S. 668,
262 U. S. 675.
Compare Sharp v. United States, 191 U.
S. 341;
Campbell v. United States, 266 U.
S. 368. No recovery therefor can be had now as for a
taking of the business. There is no finding as a fact that the
government took the business, or that what it did was intended as a
taking. If the business was destroyed, the destruction was an
unintended incident of the taking of land. There can be no recovery
under the Tucker Act if the intention to take is lacking.
Tempel v. United States, 248 U. S. 121.
Moreover, the Act did not confer authority to take a business. In
the absence of authority, even an intentional taking cannot support
an Action for compensation under the Tucker Act.
United States
v. North American Co., 253 U. S. 330.
By including in the appropriation clause the words "losses to
persons, firms, and corporations, resulting from the procurement of
the land for this purpose," Congress doubtless authorized the
Secretary of War to take into consideration losses due to the
destruction of the business where he purchased land upon agreement
with the owners. But it does not follow that, in the absence of an
agreement, the plaintiffs can compel payment for such losses. To
recover, they must show some statutory right conferred. States have
not infrequently directed the payment of compensation in similar
situations. The constitutions of some require that compensation be
made for consequential damages to private property resulting from
public improvements.
Chicago v. Taylor, 125 U.
S. 161;
Richards v. Washington Terminal Co.,
233 U. S. 546,
233 U. S. 554.
Others have, in authorizing specific public improvements, conferred
the right to such compensation.
* Ettor v.
Tacoma, 228 U. S. 148;
Joslin Manufacturing Co. v. Providence, 262 U.
S. 668. Congress had, of course, the power to make like
provision here.
Compare United States v. Realty Co.,
163 U. S. 427. But
the mere reference in the appropriation clause to losses "resulting
from the procurement of the land for this purpose" does not confer
such a right. The settled policy of Congress, in authorizing the
taking of land and appurtenances, has been to limit the right to
compensation to interests in the land taken. The only Act called to
our attention in which was conferred a right to compensation for
injury to property other than an interest in the land taken is the
statute involved in
United States v. Alexander,
148 U. S. 186,
which was passed more than 40 years ago, and in which the injury
provided for was a direct result of the taking. We need not
consider other objections to a recovery.
Affirmed.
*
See, for example, Earle v. Commonwealth, 180 Mass.
579;
Allen v. Commonwealth, 188 Mass. 59; Acts and
Resolves Mass. 1895, c. 488, § 14; Id., 1896, c. 450;
id.,
1898, c. 551;
Matter of Board of Water Supply, 211 N.Y.
174.