# Hill v. United Stated/Dissent Shiras

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* Dissenting Opinion Shiras
United States Supreme Court
149 U.S. 593
Hill v. United Stated
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.
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. U.S., 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 wellsettled 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, (chapter 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 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 Case, 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 U.S. v. Great Falls Manufacturing Co., 112 U.S. 656, 5 Sup. Ct. Rep. 306, 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 oflegislative 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 bupblic 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 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: 'In 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 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 beneficient 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 coverant, 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 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.

## Notes

1 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, (chapter 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) In 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 ineiuded 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 200 yards from the shore line 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 2 feet deep at low tide.
(4) 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 theUnited 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 stae of Maryland, subject to the riparian rights of the plaintiff under the act of 1862, chapter 129, of the Laws of Maryland.
That under article 1, § 8. Const. U.S., 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.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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