Volume 38 — Court of Claims Reports

On the Proofs. The Reporten? statement of the case: The facts of the case appear sufficiently in the opinion of the court. The -case is analogous to those which have frequently occurred in this court of officers of the Navjr who have been furnished with tickets or money for transportation, but who afterwards turned out to be entitled to mileage to a much larger amount.

On the Proofs. The Reporter^ statement of the case: The following are the facts of the case as found by the court: I. At the time of the depredations hereinafter mentioned the. claimant’s decedent'was a citizen of the United States. II. The defendant Indians charged with the alleged depredation were members of tiie tribes known as Creeks, Semi-nóles, Cherokees, Delawares, Chickasaws, Poncas, Pawpaws, and other tribes unknown to the court.

On the Proofs. The Reporters' statement of the case: The following are the facts of the case as found by the court: I. Indians of the Sioux and Cheyenne tribes took… Held: quoting the syllabus— “When it is found by a Circuit Court of the United States that the clerk has failed to put in the record an order which was made at the next preceding term of the court, remanding a case to the District Court, the Circuit Court may direct such an order to be entered nune pro tunc.

The Reporters’ .statement of the case: The following- are the facts of this case as found by the court: I. The schooner Betsey and Polly, William Cottle, master, sailed on a commercial voyage on the 18th -day of December, 1797, from Boston, bound to Martinico, but cleared for-Gua-daloupe.

On the Proofs. The Reporters' statement of the case: The following are the facts of the- case as found by the court: I. The claimant, Edward Everett Hayden, was, at the time of the occurrence of the matters hereinafter set forth, an ensign on the retired list of the Navy, but now a lieutenant-commander on the active list under the provisions of the special act approved January 12, 1901, entitled “An act for the relief of Edward Everett Haj^den, an ensign on the retired list…

On the Proofs. The Meporter's statement of the case: The following are the facts of the case as found by the court: I. The claimant was, on Juljr 4 and 5, 1898, an officer in the United States Navy, and served as such on the U. S. S. Castine in the engagement at Mariel, Cuba, hereinafter referred to, on said dates, and was so borne on the books of the «.Castine. II.

On the defendants’ Motion. The Reporters1 statement of the case: Judgment was entered for the claimant May 14, 1900, for $800, no opinion… Held: independently of any question as to the falsity of the testimony upon which the entry was based, the case was not one which came within the terms of the repayment statute because it did not appear that the error in the allowance of the entry, if there was one, was such as would necessarily prevent the subsequent confirmation of the…

On the claimant1 s Motion. The Reporters' statement of the case: The following are the facts of the case as found by the court:

On the Proofs. The It&porters' statement of the case: The following are the facts of this case as found by the •court: 1.

On the Proofs. The Reporters' statement of the case: The following are the facts of this case as found by the court: I. The claimant, a captain in the United States Volunteer Signal Corps, received… Held: that under the act of March 3, 1899 (30 Stat.

On the Proofs. The Regaorters’ statement of the case: The following are the facts of this case as found by the court: I. The claimant entered service in the United States Navy on the 9th day of September, 1889, and from the 1st day of July, 1899, until the 8th day of September, 1900, was a lieutenant, junior grade, in the Navy, and an aid to Rear-Admiral J. C. Watson; Rear-Admiral Watson was at that time one of the nine higher numbers of the grade of rear-admiral, and was…

On the Proofs. The Beporterfi statement of the ease: The following are the facts of the - case as found b}r the court: I. The claimant was on the 12th day of March, 1900, and during the time thereafter covered by this claim, a lieutenant-commander of more than twenty years’ service in the Navy. II.

On the Proofs. The Reporter^ statement of the case: The following are the facts of the case as found, by the court: I. The claimant, Edward D. Taussig, now a commander in the United States NaAy, Avas, on August 31, 1897, hydro-graphic inspector of the Coast Survey.

On the Proofs. The Reporters’ statement of the case: The following are the facts of this case as found by the court: I. The claimant entered the United States Navy as an acting midshipman on the 28th day of November, 1861, and has served continuously in the Navy since that date. He became a captain on March 3, 1899, and has since continuous^ served in that grade. II.

On the Proofs. The Reporters' statement of the case: The facts of this case appear sufficiently in the opinion of the court. The paper relied upon bjr the -Government in this case is strikingly similar in its terms to that which received such elaborate consideration in the case of San Francisco Letter Carriers v. United States (35 C. Gis. R., 223, 236). There the law conferred upon the letter carriers certain pay for overtime.

On the Proofs. The Reporters' statement of the case: The following- are the facts of this case as found by the court: I. The claimant entered the United States Navy June 16, 1813, and served continuously in the Navy since that date. He became a lieutenant October 12, 1895, and served in' this rank between September 29, 1899, and October 31, 1901. II.

On the Proofs. The Reporters' statement of the case: The following are the facts of this ease as found by the court: I. The claimant, James S. Taylor, was, on the 29th day of June, 1898, appointed from civil life an acting- assistant surgeon in the temporary service of the Navy under the provisions of the act of Congress approved 1898, May 4 (chap. 234, par. 4, 2 Supp.

On the elaimant’s Motion. The Reporters’ statement of the case. The facts on which the motion is based appear in the opinion of the court.

On the claimants Motion. The Reporter's statement of the case. The facts of this case will be found in the opinion of the court.

On the Proofs. The Pefporteri statement of the case. The following are the facts of this case as found by the court: I. The claimant, John Lowe, then a captain in the United States Navy, with a creditable record, and who had served during the civil war, was retired by the following order: “NAVT DEPARTMENT, “ Washington, ’December 8, 1900. “Sir: On December 11, 1900, jrou will regard yourself transferred to the retired list of officers of the United States Uavy, in accordance…

On the Proofs. The Hei^orteri statement of the case: The following are the facts of this case as found by the court: I. Claimant was ajipointed from civil life an assistant sur-. geon in the Navy from May 18, 1901, with the rank of lieutenant, junior grade, and accepted his appointment and executed the required oath of office on June 3, 1901. On June 6 following he was ordered to the naval hospital, New York, where he reported on June 10.

On the Proofs. The Reporters’ statement of the case. The following are the facts of this case as found by the court: I. Claimant was, on June 2, 1898, appointed an assistant surgeon in the Navy for temporaiw service during the war with Spain, and on June 9,1898, ordered to duty at the naval hospital, Mare Island, Cal. June 29, 1898, detached from said hospital and ordered to duty on board the U. S. S. Philadelphia.

On the Proof*. The Reporter's statement of the case. The following are the facts of this case as found by the court: I. The claimant is now, and was between April 26 and June • 15, 1901, inclusive, a pay inspector in the United States Navy, having- the rank of commander. He entered the naval service on September 29, 1869, and was appointed paymaster July 16, 1886, and pay inspector December 23, 1899. II.

On the Proofs. The Reporters’ statement of the case: The facts of this case appear sufficiently in the opinion of the court.

On the Proofs. The Bejoorters’’ statement of the case: The facts of this case appear sufficiently in the opinion of the court.

On the Proofs. The Reporters' statement of the case: The following are tbe facts of this case as found by the court: I. The claimant is a corporation incorporated under the laws of the State of New York and has its principal place of business in the city and State of New York. II.

On the Proofs. The Reporters statement of the case; The following are the facts of this case as found by the court: I. The schooner Bird, Lemuel Bartlett, master, sailed on a commercial voyage about June, 1799, from North Carolina, bound to Martinique.

On the Proofs. The Bejwrters’ statement of the case: The facts of this case will be found in the opinion of the court.

On the Proofs. The Rej)orte)'s> statement of the case: The following are the facts of this case as found by the court: I. On the 20th of November, 1897, the claimant enlisted in the United States Navy as a’ fireman of the second class, to serve for three years from that date unless sooner discharged by proper authority.

On the Proofs. The Reporters? statement of the case: The following are the facts of the case as found bjr tho court: I. That the claimants, E. M. Switzer and Estill McHenry, are citizens of the United States and the duly qualified executors of the estate of James B. Eads, deceased. II. That in accordance with the terms of an act of Congress .approved March 3,1875 (18 Stat. L., 163), and act amendatory thereof approved March 3, 1879 (29 Stat.

On the Proofs. The Pejoorters’ statement of the case: The following are the facts of the case as found by the court: I. That on the 29th day of October, 1883, at the city of Washington, D. O., Maj. G. J. Lydecker, of the Corps of Engineers of the United States Army, acting for the United States, and the claimants, Clinton Beckwith and John V. Quaekenbush, entered into a contract for the extension of the Washington Aqueduct, set out as Exhibit A to the claimants’ petition. II.

On the Proofs. The Reporters' statement of the case: The following are the facts of the case as found bj^ the. court: I. Charles D. Colman, mentioned in the petition, was appointed by the President, J une 2,1863, provost-marshal for the First Congressional district of the State of Missouri, wilh the rank of captain of cavalry.

On the Proofs. The Reporters' statement of the case: The following are the facts of the case as found by the court: I. On the 12th of October, in the year 1898, the claimant, Michael P. Corcoran, a letter carrier in the post-office at Brockton, Mass., entitled to a salary of $850 a year, was suspended from the performance of his official duty by the postmaster at said city, by the following communication handed him by the postmaster on that day: ‘ ‘ BrooutoN Post Office,…

On the Proofs. The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant, Thomas L. Hartigan, entered the United States Military Academy as… Held: in an opinion dated August 21, 1819, that cadets are subject to trial by court-martial, but are not commissioned officers entitled to sit as members of a court-martial.

On the defendants’ Demurrer. The Reporters’ statement of the case: The facts set up in the petition appear in the opinion of the court. It is the law, as laid down in many well-considered cases, both in this court and in the Supreme Court, that no contract can be implied from the taking of property by the United States unless the United States acknowledges specifically or by its conduct that the property taken is private property.

On the Proofs. The Reporters’ statement of the case: The following are the facts of the cáse as found by the court: I. That claimant is… Held: as it has been held, that an assignment by operation of law with which the original creditor had no connection and which he did not institute and which he could not prevent is not intended to be prohibited by that statute; but if that statute intended to prohibit anything it must have intended to prohibit just this sort of a contract.

On the Proofs. The B ('forte rtf statement of the case: The ' ' ng are the facts of the case as found by the court: I. The claimant, Charles M. Truitt, entered the United States Army as cadet July 1, 1875, and reached the grade of first lieutenant on April 24, 1886 (Army Register). On July 2, 1898, he was promoted to the rank of captain, to date from April 26, 1898. II.

On the Proofs. The Reporters'1 statement of the case: The following are the facts of the case as found by the court: I. The claimant, John A. Hull, was appointed judge-advocate in the Volunteer Army of the United States under the provisions of section 10 of the act of April 22, 1898 (30 Stat. L., 362; 2 Supp. R. S., 743), with the rank of lieutenant-colonel. He accepted his commission as such May 17, 1898, at his home, Des Moines, Iowa.

On the Proofs. The Reporters' statement of the ease: The following are the facts of the case as found b}r the court: I. In 1892 the District Court of the United States for the first judicial district of the Territoiy of Utah was being held in the county court-house of the count}7 of Utah, at Provo City.

On the Proofs. The Reporter £ statement of the case: The following are the facts of the case as found by the court: I. At the time of the… Held: and now holds, the same position. II. On the 14th January, 1901, the claimant was appointed and commissioned by the President captain of infantry, to rank as such from the 18th day of December, 1900; and on the 21st January, 1901, he accepted the appointment and took the oath of office and was placed on the retired list under and…

On the defendants' Demurrer. The Reporters' statement of the case: The facts set up in the petition appear in /the opinion of the court.

On the Proofs.. The Reporters' statement of the case: The following are the facts of the case as found by the court: I. At the time of the depredation hereinafter stated the claimant’s decedent was a citizen of the United States. II.

On the Proofs. The Reporters' statement of the case: The following are the facts of the case as found by the court: • I. The brig Juno, James Smith, master, sailed on a commercial voyage on or about the 8th day of May, 1800, bound from New London to Barbados.

On the Proofs. The Reporters’ statement of the case: The following is the statute referring the claim: [Private — No. 645.] “Be it enacted by the Senate cmd Souse of Representatives of the United States of America in Congress assembled, That the claim of Joshua Bishop for alleged items of pay and unpaid to him for services as a lieutenant-commander, United States Navy, between the dates of September thirteenth, eighteen hundred and sixty-seven, and March ninth, eighteen…

On the Proofs. The Recorten? statement of the case: The following are the facts of the case as found by the court: I. The claimant, the Phoenix Bridge Company, is a corporation duly created and existing under the laws of the State of PennsjTvania, having an office and place of business in the city of Philadelphia, in that State, and is engaged in the business of constructing bridges of metal and wood and manufacturing the materials necessarity entering into the same.

On the Proofs. The Reporteri statement of tbe case: The following are the facts of the case as found by the court: I. The claimant, an enlisted man in the Army of the United States, being a first… Held: that retired enlisted men couid not legally be discharged by Executive order under the 4th article of war, which contemplates soldiers on the active list only.

On the defendants’ Demurrer. The Reporters' statement of the case: The facts set itp in the petition appear in the opinion of the court. In the case of Foster v. United States (32 C. Cls. 11., 170), in the argument for the defense, certain fundamental principles of statutory construction are set forth. So concisely are they put and so apt their application to the question presented in the case at bar, that I present them anew for the consideration of the court.

On the Proofs. The Reporters' statement of the case: The facts of the case appear sufficiently in the opinion of the court.

On the Proofs. The Reporten? statement of the case: The following are the facts of the case as found by the court: I. The claimants herein, Ernest J. Cotton, Charles E. Cotton, and James B. Agassiz, are citizens of the United States and of the State of California, and are partners engaged in a general contracting business under the firm name of Cotton Brothers & Co. II.

On the Proofs. The Reporters' statement of the case: The facts of the case appear sufficiently in the opinion of the court.

On the Proofs. The Pepot'ters’ statement of the case: The facts of the case appear sufficiently in the opinion of the court.

On the Proofs. The Reporters' statement of the case: The facts of the case appear sufficiently in the opinion of the court.

On the Proofs. The Reporters' statement of the case: The following are the facts of the case as found by the court: I. From January 1, 1896, to June 30, 1901, the claimant was clerk of the United States Circuit and District Courts for the western district of Texas, duly appointed, qualified, and acting. II.

On the Proofs. The Reporters’ statement of the ease: The following are the facts of the case as found by the court: I. The claimant is a citizen of the United States, and a resident of Kansas City, in the State of Missouri. II.

On the Proofs. The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. Claimant is a loyal citizen of the United States residing at San Francisco, Cal., and is the owner of the claims in question, and has neither assigned nor sold them. II.

On the Proofs. The Reporters' statement of the case: The following are the facts of the case as found by the • court: I. Claimant is a corporation and a loyal citizen of the United States, residing at San Francisco, Cal., and is the owner of the claims in question, and has neither assigned nor sold them. II.

On the Proof*. The Reporter’s statement of the case: The following are the facts of the case as found by the court: I. Claimant is administratrix of Charles P. James, late a citizen of the United… Held: notwithstanding the fact that the District of Columbia was not specifically named in said act, and, moreover, the District had at said time a special law covering sub-stantialty the same subject.

On the Proofs. The Reporters' statement of the case: The following are the facts of the case as found by the court: I. That the claimant is the widow of James L. Henry, deceased, who was a citizen of the United States, domiciled in the State of Maryland, who died on the 4th day of July, 1881, and that the said claimant is the legally appointed administratrix of the estate of the said J ames L. Henry, letters of administration on the said estate having been granted to her by…

On the Proofs. The Beporterx’ statement of the case: The following are the facts of the case as found by the court: I. The claimant is a citizen of the United States and a resident of the c.ity^ of Chicago, State of Illinois. II.

On the Proofs. The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The Harvey Steel Company, the claimant herein, is, and at all times since the year 1887 has been, a corporation created, organized, and existing under the laws of the State of New Jersey. II.

On the Proofs. The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The claimant, Henry Ii. Humphreys, was on June 14, 1898, a major in the United States infantiy, having been in the service for more than twenty years, and was in said grade until his promotion to the grade of lieutenant-colonel on December 23, 1898. II.

<p> On the Proofs. </p> <p>The Reporters' statement of the case:</p> <p>The following are the facts of the case so far as they relate to the points decided by the court:</p> <p>V. The harbor line opposite the city of Savannah was established by the Secretary of War May 4, 1889, in accordance with section 12 of the act of August 11,1888 (25 Stat. L., 425). It cuts off a strip of land from Hutchinsons Island averaging about 100 feet wide for a distance of about 2,500 feet, and the projects for the improvement of the harbor have contemplated the dredging away of this portion of the island by the United States to give a uniform ciear width of 600 feet in the river opposite the city.</p> <p>A contract was made on October 20, 1892, by Captain Carter, and approved by the Chief of Engineers, for cutting off the land outside the harbor line fixed by the order of May 4, 1889, but the work was never done, the appropriation having-been used for other purposes, and the project, except as to the future, having been completed.</p> <p>VI. The harbor line aforesaid, shown on Exhibit A, cut off a portion of the claimant’s property, about 86 feet in width along its entire front, including 133 linear feet of the ship railway.</p> <p>VIL The unobstructed use of the railway is an essential to the use of any of the shipbuilding and repairing plant. In order to use this railway it was necessary to keep the lower end, which was under water at high tide, free from deposits of mud. For this purpose the claimant had built sheet piling-on both sides of it. This was found effectual for the purpose, except that the piling rotted after a number of years’ use, and new piling- was required.</p> <p>YI1I. This condition existed in the summer of 1892, and the claimant proceeded to renew his piling, and had more than half completed his work when he was told by Captain Carter, the engineer officer in charge of the improvements in Savannah, to desist, and was notified by him that he must remove everything which was on the outside of the harbor line; and on the 26th or 27th day of August, 1892, ^he ceased his improvements in consequence of the following letter from the’United States district attorney for the southern district of Georgia:</p> <p>“MacoN, Ga., Aug. glrfh, 189%.</p> <p>•• 11. F. WilliNK, Esq., Savannah, Ga.</p> <p>“Sir: O. M. Carter, Capt. Corps of Engineers,'U. S. A., reports that you have had some piles driven in Savannah Fiver outside of the bulkhead line, opposite Whitaker st., Savannah, obstructing navigation, in violation of river and harbor act of Sept. 19, 1890 (26 Statutes L., p. 453, 454). You will at once desist from further obstruction and remove such piling as Capt. Carter desires removed, i. e., ail piling-outside of the bulkhead line. Unless this matter is attended to at once I will have to take out proceedings in court to compel compliance and to recover the penalties prescribed by*the statute. 1 will be in Savannah in about two weeks to look after this matter, and I trust that the difficulties will have been adjusted to the satisfaction of Capt. Carter by that time.</p> <p>“Yours, truly,</p> <p>“MarioN ErwiN,</p> <p>“ TI. 8. Atty.”</p> <p>IX. The claimant was also rebuilding his wharf on the west side of the railway, and had it framed and all finished but planking it, but was forbidden by the engineer in charge to cover it with plank and obliged to leave it unfinished.</p> <p>X. The result of ceasing work as aforesaid was that the deposits ’of mud filled up the railway to such an extent that vessels of large draft could not be hauled up on the railway, and the claimant thereafter was obliged to confine his work to much smaller vessels than he had heretofore been able to repair.</p> <p>XI. The chief profit in the claimant’s business was in the repair of larger vessels, from which he was thus shut out.</p> <p>XII. In order to continue work on the smaller vessels it was necessary to keep up almost continuous dredging at a large expense. Restoring the piling would have obviated the need of dredging.</p> <p>XIII. The claimant also lost tenants to whom buildings were rented.</p> <p>The 'unfinished wharf and some of the adjacent land was actually used by the United States engineer officers in connection with the improvement'of the harbor.</p> <p>XIV. The conditions herein set forth continued until December, 1897. On the 2d day of said month the Secretary of War established a new harbor line, of which notice was given the claimant on the 8th of said month.</p> <p>This line, shown on Exhibit A, restored that existing prior to May 4, 1889, and the claimant was thereby restored to possession of his property as it had existed prior to that date.</p> <p>XY. The reasonable rental value of the wharves and land actually used and occupied during the period of about five years was $2,000.</p> <p>XVI. If the claimant is entitled to recover for losses and injuries consequent to his having complied with the demands of-the defendants’ officers, set forth in Finding VIII, his damages were as follows:</p> <p>For the expense of dredging out the entrance within the boundaries of his own land, of the approach to his marine railroad, $7,697, such dredging having been rendered neces sary in consequence of the order of Captain Carter forbidding him to drive piles and protect the approach from the caving-in of the banks and-the deposits of the river.</p> <p>For his losses in business consequent to the diminished depth of water and his inability to dock lai-ge vessels, 112,500.</p> <p>The first proposition to be maintained to uphold the jurisdiction of the court is that this is not a claim for damages sounding in tort.</p> <p>In Bich v. New York, etc. B. B. Go. (87 N. Y. 382), it is said:</p> <p>“We have been unable to find any accurate and perfect definition of a tort. Between actions plainly ex contracinc and those as clearly ex delicto, there exists what has been termed a border land, where the lines of distinction are shadowy and obscure, and the tort and the contract so approach each other and become so nearly coincident as to make their practical separation somewhat difficult.”</p> <p>Bayley, J., in Bex v. Pogrom Commissioners (8 B. & C. 362), says that to constitute a tort two things must occur— actual or legal damage to the plaintiff, and a wrongful act committed by the defendant. However great the difficulties in exactly defining a tort, or in fixing the status of any action lying near this shadowy border land, the essential element of tort, that the defendant has done some wrongful act, must appear. A refusal to pay an obligation is not such an act, however great the wrong suffered by the plaintiff, since no invasion of right is involved in this.</p> <p>This is the condition presented here. The prosecution of a great public work, the improvement of the Savannah River for the regulation of foreign and interstate commerce, (Const. Art. 1, Sec. 8) was authorized by numerous acts of Congress, which appear in finding ni, ante, pp. 92-94.</p> <p>When, under these conditions, the engineer officer in charge took possession of claimant’s land and excluded him from it, there was no legal wrong committed. The claimant’s right in his land was always subject to the Government’s superior right to take it for public use, controlled by the condition that, if so taken, it must be paid for {Pope v. United States 26 C. Cls. R., 13.)</p> <p>An extended discussion of this principle in its application to this case is rendered unnecessary through the quite recent decision of this court in Merriam v. United States (29 C. Cls., 250),</p> <p>All the cases which might be cited in opposition to the present claim are so fully considered in this case that it is quite unnecessary to devote any time to discussing them.</p> <p>The importance of the present case lies in the application of the constitutional principle of compensation for taking private property for public use. Mr. Justice Brewer, in the opinion of the court in the case just cited, eloquently states this principle:</p> <p>“Obviously, this question, as all others which run along the line of the extent of the protection the individual has under the Constitution against the demands of the Government, is of importance; for in any society the fulness and sufficiency of the securities which surround the individual in the use and enjoyment of his property constitute one'of the most eertain tests of the character and value of the Government.”</p> <p>If the constitutional protection of private property from uncompensated public use is to be enforced in this case the claimant must be put, so far as a delayed money payment can accomplish it, in the same monetary position as would have been his had his property not been taken. No other rule of compensation can be just.</p> <p>It is clear from the language of the acts of Congress, and that-of the reports of the Chief of Engineers, that the project of widening the channel of the river was an old one, and there is nothing in the later acts that indicates an intention on the part of Congress to give it more attention than had been accorded it in the past.</p> <p>“ Since the exercise of the power of eminent domain — the taking, of a man’s property without his consent — is against common right, it can not generally be implied from a grant of authority to construct a public work. * * * All acts relating to the taking of private property are to be strictly construed and not extended by implication. (A. and É. Encycl. of L., second edition, p. 1054, and authorities therein referred to.)</p> <p>“An act of this sort,” says Bland, J., deserves no favor; to construe it liberally would be sinning against the rights of property.” {Bmney’s ease, 2 Bland Ch., 99.)</p> <p>It is true that a contract was entered into for cutting off the strip of land in question, but “the work was never done, the appropriation having been used for other purposes, and .the project, except as to this feature, being completed.”</p> <p>Let us suppose, for the sake of argument, that Congress did intend by the acts cited' to acquire the land of the claimant. How could it be acquired ? Certainly not by the act of Captain Carter in writing the letter of April 7, 1893. When the Constitution prescribes that just compensation shall be made it means that which shall be fair and reasonable, and it implies such compensation as may be satisfactory to the owner, if an agreement may be reached; otherwise the compensation shall be ascertained in the way and manner prescribed by kw— that is, by proceedings in condemnation.</p> <p>“It is not competent for the State itself to fix the compensation through the legislature, for this would make it the judge in its own cause. (Cooley’s Constitutional Limitations, 695.)”</p> <p>The case here presented recalls that of the United States y. Oregon Saihoay cmdNavigation Compcmy (16Fed. Rep., 521), in which the Secretary of War had been authorized by an act of Congress to select lands at the Cascades of the Columbia River in Oregon for'the construction and operation of a canal and locks around the Cascades. In the event that an agreement could not be reached with the owner or owners of the lands the Secretary was authorized to secure the lands by condemnation proceedings. In reviewing this case Judge Deady said:</p> <p>“The selection of lands by the Secretary and the bringing of this action by the United States to ascertain the value do not alone constitute a taking of private property for public use.”</p> <p>Touching proceedings in condemnation see Lewis in his work' on Eminent Domain (sec. 240) and numerous authorities.</p> <p>There never was a contract or. an agreement of any kind between the claimant and a representative of the Government as to the compensation to be paid for the land in controversy. No steps had been taken in the way of condemnation proceedings.</p> <p>Congress has provided for the way and manner in which lands may be acquired by the Government for river and harbor improvements and other public uses. (25 Stat. L., 94, 357.) These statutes were not in any way observed.</p> <p>There is nothing in the acts of Congress authorizing the appropriation of claimant’s land, nor is any compensation provided therefor.</p> <p>As a general rule, the courts which hold that compensation need not precede occupation also hold that some provision must be made for compensation whereby the owner will certainly obtain it, and that it is not enough that the law provides a mode for ascertaining the amount of compensation and imposes on the party taking the duty of making payment. (Lewis, Em. Dom., sec. 457.)</p> <p>The Government can not, unaer the circumstances, oe held liable for the acts of Captain Carter, even though they were committed in its service and apparently for its benefit. (Gibbons v. United States, 8 Wall., 269; Moffat v. United States, 112 U. S., 24.)</p>

On the Proofs. The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The claimant was enrolled as colonel of the First Ohio Volunteer Infantry on April 26, 1898, and was mustered into the military service of the United States in the war with Spain on May 6, 1898.

On the Proofs. The Reporteri statement of the case: The following- are the facts of the case as found by the court: I. On the 11th day of February, 1897, the claimant was a chief engineer in the United States Navy on the active list, performing duty on the U. S.- It. S. Richmond, at League Island, Pa.

On the claimant's Motion. The Reporters1 statement of the case: The grounds of the motion appear in the opinion of the court.

On the Proofs. The Reporters' statement of the ease: The following are the facts of the case as found by the court: I. The claimant is a corporation incorporated under the laws of the State of New Jersey, having its principal place of business in Philadelphia, Pa. II. On April 1, 1899, the Acting Secretary of War transmitted to the court the claim in this case under the provisions of the Revised Statutes, section 1069. III.