# Hill v. United Stated/Opinion of the Court

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* Dissenting Opinion Shiras
United States Supreme Court
149 U.S. 593
Hill v. United Stated
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, (chapter 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 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.'
(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 over ruled 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 Fed. Rep. 172.
On June 27, 1889, the circuit judge filed findings of facts and conclusions of law, which are copied in the margin.
The act of March 3, 1887, c. 359, § 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 recoir. But this is comparatively unimportant, because those findlings 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 tide waters 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 tide waters 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 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 statued 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 lide 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.
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 tide waters, 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, (chapter 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. U.S. v. Jones, 131 U.S. 1, 16, 18, 9 Sup. Ct. Rep. 669.
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. U.S., 8 Wall. 269, 274; Langford v. U.S., 101 U.S. 341, 346; U.S. 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, 159; Carpenter v. U.S., 17 Wall. 489, 493.
In langford v. U.S. 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 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 ladn which they admit to be private property, they may be held, as upon an implied contract, to pay its value to the owner. U.S. v. Great Falls Manuf'g Co., 112 U.S. 645, 5 Sup. Ct. Rep. 306, and Id., 124 U.S. 581, 8 Sup. Ct. Rep. 631. 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. Manufacturing Co., 113 U.S. 59, 5 Sup. Ct. Rep. 717; U.S. v. Palmer, 128 U.S. 262, 9 Sup. Ct. Rep. 104. 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. U.S., 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.
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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