#### THE JURAGUA IRON COMPANY (LIMITED) v. THE UNITED STATES.

(No. 22804.

Decided January 28, 1907.)

*On the Proofs.*

An American corporation, having its principal place of business in Philadelphia, becomes the owner of real and personal property in Cuba prior to the war with Spain. During the war buildings thereon are destroyed under proper military authority to preserve the health of troops encamped near them and to " prevent the spreading of yellow fever. Certain railroad cars belonging to the claimant are taken and used in the operations "of the Army during the war and impaired and destroyed.

I.The law is well settled that where a citizen of one belligerent is engaged in business within the territory of the other owning property, which has a permanent situs, it is subject to the same treatment as that of the enemy.

II.A belligerent in enemy’s country has the right under the usages of modern warfare to destroy property for the protection of his troops against the ravages of disease.

III.A belligerent power is not liable for the destruction of property belonging to its own citizens if the destruction be caused by military operations.

*100
      *The Reporters’*statement of the case:

The following are the facts of the case as found by the court:

I. The Juragua Iron Company (Limited) is a corporation duly created and existing under the laws of the State of Pennsylvania, having its principal office and place of business in the city of Philadelphia, in that State, and is now, and for many years has been, engaged in the business of mining and selling iron ore and other mineral products in the United States, Cuba, and elsewhere, and in manufacturing iron and steel products, and was so engaged at the opening of the late war with Spain. To enable it to carry on said business, it owned, leased; and operated mines situate ■ in the island of Cuba, and maintained offices, works, and the necessary tools, machinery, equipments, and supplies for said business, in the Province of Santiago de Cuba, at or near Siboney, Fermeza, and La Cruz. In addition to its mines, works, and their equipments, it also owned real estate at or near said city of Siboney, which was improved by 66 buildings of a permanent character, used for the purposes of its business and occupied as dwellings by its employees, and for other purposes.

II. That in the year 1898, and while the war with Spain was in progress, the lives of the United States troops who were engaged in military operations in the Province of Santiago de Cuba; in the belligerent prosecution of the war, became endangered by the prevalence of yellow fever, and it was deemed necessary by the officers in command, in order to preserve the health of the troops and to prevent the’spread of the disease, to destroy all places of occupation or habitation which might contain the fever germs. On or about the' 11th day of July, 1898, General Miles, commanding the United States forces in the island of Cuba, because of the necessity aforesaid and by the advice of his medical staff, issued orders to his subordinate officers to destroy by fire these 66 buildings at Siboney, in the island of Cuba, which belonged to the claimant, and had been used for the purposes aforesaid; and pursuant to said order, said buildings'and their contents were destroyed by fire by the military authori*101ties of the United States; the reasonable value of which buildings at the time and place of destruction was in excess of $3,000.

About the same time, and in connection with the claimant’s business at said city of Siboney, it also used and operated certain cars upon a railroad track, which were taken possession of by the Eed Cross Eelief Society in connection with the Army of the United States and used in the operations of said Army in the belligerent prosecution of -the said war against the Kingdom of Spain, for the transportation of sanitary supplies for the use of the United States forces; and in such use and operations of said Army unavoidable damage and destruction was done to said cars, the value of which damage and destruction can not be determined from the evidence. The court finds that such destruction by fire of said property was necessary for the preservation of the health of the troops of the United States, and that all of the destruction and damage aforesaid was a necessary incident to the military operations of the troops of the defendants in the belligerent prosecution of said war. •

*Mr. Frederic D.*McKenney• and *Mr. John 8. Flannery*for the claimant:

In the *Pacific Railroad Company’s case*the court cites with approval the cases of *United States*v. *Russell*and *Mitchell*v. Harmony, and lays down the following principle of law, which, in our opinion, is decisive of the case at bar:

“ In what we have said as to the exemption of the Government from liability for private property injured or destroyed during war by the operations of armies in the field or by measures necessary for their safety and efficiency, we do not mean to include claims where property of loyal citizens is taken for the service of our armies, such as vessels, steamboats, and the like, for the transport of troops ancl munitions of war; or buildings to be used as storehouses and places of deposit of war material, or to house soldiers or take care of the sick, or claims for supplies seized and appropriated. In such cases, it has been the practice of the Government to make compensation for .the property taken. Its obligation to do so is supposed to rest upon the general principle of justice that compensation should be made where private property is taken for public use, although the seizure *102and appropriation of private property under such circumstances by the military authorities may not be within the .terms of the constitutional clause.” *(Dow*v. *Johnson.*100 U. S., 171.)

In the case of *Grant*v. *United, States*(1C. Cls. R,., 41), which was for private property, consisting of mills, dwelling houses, storehouses, etc., destroyed and abandoned in Arizona bjr order of the commander of the United States forces in 1861, this court carefully reviews the law governing such claims, quoting with approval passages from Yattel, Grotius, and *Mitchell*v. Harmony, above referred to, and concludes with the following clear and concise statement of the law as gathered from the authorities and text writers:

“ The authorities cited are direct and emphatic, and are supported by eveiw writer of respectability upon public and national law. It may safely be assumed as the settled and fundamental law of Christian and civilized States that governments are bound to make just indemnity to the citizens or subject whenever private property is taken for the public good, conAenience, or *safety."*(See also *United States*v. Lynali, 188 U. S., 445.)

The right of the claimant to compensation for property taken and appropriated deliberately and as a precautionary measure to prevent the spread of disease among the troops of the United States would seem to be as meritorious as a claim of a citizen whose ships were used to transport troops, or whose supplies and provisions were taken to feed and clothe them, or whose medicines were made use of to cure their bodily ills.

The case at bar is not a case such as *Langford*v. *United States*(101 U. S., 341, 346), where an officer of the United States took and held possession of the land of a private citizen under a claim that it belonged to the Government; nor is it an action to recover for the use and occupation of real estate, which requires a contractual relation to support it *(Hill*v. *United*States, 149 U. S., 593598) ; nor is it an action to recover damages for a tort committed by General Miles, for which he and not the United States would be responsible *(Schillinger*v. *United States,*155 U. S., 163) ; but is an action to recover compensation for the appropriation of the pri*103vate property of an individual citizen to a public use, in exercise of tbe right of eminent domain, from which act of appropriation an implied contract of payment upon the part of the Government arose. But, even if no contract could be implied from the action of General Miles, this court, under the first section of the Tucker Act of March 3,1887 (24 Stat. L., 505), would have power to assess and award the amount of the damages sustained by the claimant by the taking and destruction of its property, such appropriation not having-been tortious.

It can not, we think, be successfully contended that the destruction of this property can be justified under the law of public or military necessity. It does not come within the rule of the common law kn.ow as “ The right of necessity,” which permitted the destruction of private property to prevent the spread of fire, the ravages of pestilence, or any other public calamity, but falls wholly within the doctrine of the right of eminent domain. The right of necessity is purely an individual right founded upon the laws of nature; that of eminent domain is a public right arising from the laws of society. The right of necessity is purely defensive; that of eminent domain is offensive. The right of necessity can only be exercised by an individual where the property destroyed is in the pathway of a conflagration or pestilence and would probably not only be itself destroyed, but also cause the destruction or infection of the property of the individual exercising that right. The right of eminent domain, upon the other hand, depends upon the needs of the state and is the right which every properly constituted government possesses to take or destroy private property for the benefit of the state or its citizens or subjects. (Lewis on Eminent Domain, secs. 7 and 8 and notes.)

Nor can this taking and appropriation be regarded as a valid exercise of.the war power, which has its foundation in the law of military necessity and is exercised by the state or its agents and not by individuals. (Lewis on Eminent Domain, sec. 8.) This property, consisting of houses, furniture, mining tools, machinery, etc., was purely nonmilitary in character; it was not in the pathway of hostilities; it was not destroyed in actual conflict, nor to prevent it from *104falling into the hands of the enemy, or because it might become useful to the enemy. It' was the property of a lojral citizen and not of an alien enemy. It was not wantonly or tortiously destroyed by General Miles, but was burned and scattered for the avowed reason that it was infected with yellow-fever germs, and its destruction was deemed necessary to protect the health of United States troops.

Even had this property belonged to an enemy of the United States, being nonmilitary in character, not within the path of hostilities and not having been destroyed in actual conflict, the United States would, under the modern law of war and its army regulations, have been bound to make compensation therefor. This rule is very concisely stated in article 38, Section II, of General Liebler’s Instructions for the Government of Armies of the United States in the Field, which was issued without modification for the government of our armies during the war with Spain. (Davis’s Elements of International Law, 501, 507.)

Said article reads:

“ Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by ivay of military necessity for the support or other benefit of the Army or of the United States.

“ If the owner has not fled, the commanding officer will cause receipts to be given which may serve the spoliated owner to obtain indemnity.”

The order of General Miles directing the destruction of this property was given on July 11, 1898, and seven days later, on July 18, President McKinley issued the following order, which clearly shows the intention and desire of the Government of the United States to make just compensation for private property appropriated for the use of the army.

“ Private property, whether belonging to individuals or corporations, is to be respected, and can be confiscated only for cause. Means of transportation, such as telegraph lines and cables, railways and boats, may, although they belong ■to private individuals or corporations, be seized by the military occupant, but, unless destroyed under military necessity, are not to be retained. * * * Private property taken for the use of the Army is to be paid for, when possible, in cash at a fair Valuation, and when payment in cash is not possible, receipts are to be given.”

*105
      *Mr. Felix Brctnnigan*(with whom was. *Mr. Assistant Attorney-General Van Orsclel)*for the defendants:

When the President approved General Orders, No. 101, Adjutant-General’s Office, series of 1898, which was framed according to Lieber’s Instructions for the Government of , Armies of the United States in the Field, and while the President directed that “ private property taken for the use of the Army is to be paid for, if possible, in cash, at a fair valuation, and wheii payment in cash is not possible,.receipts to be given,” nevertheless those orders did not and could not change the universally adopted international rules of civi-*i*lized warfare. Nothing less than an act of Congress could do that, and no such act is cited in claimant’s brief.

Lieber’s “ Instructions ” were adopted and authorized for the government of armies of the United States in the field during the late civil war, and were to that extent authorized by Congress. Those rules were anomalous- in their beneficence and were not and have not been adopted by any other civilized government, either before or since that war. Congress, by enacting the abandoned and captured property acts, March 12, 1863 (12 Stats.,- 820), and July 2, 1864 (13 Stats., 375), made a wonderful evasion of the *lex jure "belli*— -which was developed from the Koman *Jus Gentium*— by authorizing this court to entertain suits for certain personal property of certain noncombatants that had been seized or appropriated by our armies during that war; but that novel legislation only conferred jurisdiction of suits in favor of claimants who could establish their loyalty to the United States during the whole period of said war. Up to the time of these enactments such claimants were regarded under the laws of civilized warfare as “ enemies ” in every sense and their property as “ enemy’s propertyand the maxim *Quce ab hostibus cápiuntur, statim eapientium*fiunt, Inst. 2, 1, 17, Grotius, *de jure*belli; 1,3, c. 6, section 12, applied in all its rigor. Indeed, the rule that things taken from public enemies immediately became the property of the captors was the foundation principle of the abandoned and captured property act and of all the other legislation in favor of our “ loyal friends ” in the South during the war of the rebellion. *(Young*v. *United*States, 97 U. S., 39, 61.)

*106Of course it requires no argument to show that the President’s order to our army in Cuba to pay for private property or to give receipts therefor, did not and could not confer jurisdiction upon this court to entertain a suit either upon an express or implied contract or departmental regulation for the value of such property, and of course Congress alone could confer such jurisdiction.

Such an Executive order has no more effect to confer jurisdiction on this court than had the general amnesty proclamation of President Johnson, issued on December 25, 1868 (15 Stat., 711), the power to confer jurisdiction on this court in *Hay craft's case.*(22 Wall., 81.) Presidential authority to pay a “ war claim ” is a very different right from a demand by suit in a judicial tribunal for the allowance of the same claim. *(United States*v. *Winchester and Potomac R. R. Go.,*163 U. S., 244.)

Mr. Chief Justice Fuller, delivering the unanimous opinion of the Supreme Court in *Ghesebrough*v. *United States*(192 U. S., 253, 263), said, in regard to section 3220 of the Revised Statutes, that by that section—

“Authority is.given and opportunity offered to do what justice and right are found to require, and the conditions which govern contested legislation may be regarded as waived; but it does not follow that there is any statutory waiver of such conditions when the Government is proceeded against *in*invitum.”

So, if President McKinley thought that justice and right required that our army in Cuba should pay for “ enemy’s property ” appropriated by our army in Cuba during the yrar with Spain, it does not follow that the same rule can be adopted in this court “ when the Government is proceeded against *in invitum.”*The President’s order only justified such payments as were actually made for enemies’ property. It did not repeal the *juris belli. (Little*v. Bárreme, 2 Cranch, 170-176.) The law of war is supreme in the enemy’s country. *{Dow*v. Johnson, 100 U. S., 170.)

If property is in, or comes from, enemy territory “ it bears the impress of enemy property;” and although owned by a loyal citizen of the country of the captors, “it is as liable to *107condemnation, or seizure as if owned by a citizen or subject of the hostile country.” “ The liability of the property is irrespective of the *status domicilii,*guilt or innocence of the owner. (The *Grey Jacket*v. *United States,*5 Wall., 342, 369; *The William Bagaly,*ib., 377; *The*Cheshire, 3 Wall., 231; *The*Venice, 2 Wall., 258; *Alexander's*Cotton, 2 Wall., 404; *The Friendschaft,*4 Wheat., 105; *The Antonia Jo*hanna., 1 Wheat, 159; *The Venus,*8 Cr., 253; *The Frances ib.,*258-363; *The Resolution,*2 Dali., 2, 3; *Titus*v. *United States,*20 Wall., 475; *Lamar*v. *Browne,*92 U. S., 187.)

Under the laws of war commercial intercourse ceases at once between the belligerent people. *(Grossmayer's case,*9 Wall., 72.)

The property of claimant was “ enemy’s property,” because, for one reason, it was subject to Spanish law until it was taken into the possession of our military forces. This'principle is sustained in *American Ins. Co.*v. *Canter,*1 Pet., 511, and all the recent Insular cases. .

The fact that Siboney, and claimant’s property there, came within our military lines did not change its status as “ enemy’s property ” in hostile territory until peace with Spain was proclaimed by the President. • *(Hamilton*v. *Dillon,*21 Wall., 94.) No suit can be maintained in this court on an implied contract arising from the taking (or destruction) of enemy property in enemy’s territory in time of war by the military forces of the United States unless Congress expressly grants the privilege of maintaining such a suit. *(FLaycraft's case,*22 Wall., 81; 10 C. Cls. P., 95.)

*Mr. Frederic D. McKenney*and *Mr. John S. Flannery*in reply:

Conceding for the purpose of this argument that the fact that this property was located within enemy’s territory stamped it as enemy’s property, we respectfully submit that under the “ rules of public law relative to the conduct of modern civilized warfare,” which counsel admits govern this case and to which alone we shall confine our discussion, the United States is bound to make compensation for its appropriation *108and destruction, because it was nonmilitary in character and was not appropriated or destroyed in or during military operations or to prevent it from falling into the enemy’s hands.

Under the rules of modern international law, private property of an enemy which is taken, appropriated, or destroyed by the invading forces, except such as is destroyed in or as the result of necessary military operations, must be paid for. (Hall’s International- Law (4th Ed.), 441, 447, 455, 497.)

And this rule, as the following authorities will show, is more strictly enforced in reference to real than personal property. (Hall’s International Law, 487, 438, 441, 442; 2- Halleck’s International Law, 68; *Id.,*67; 2 Halleck, 71, 72, and authorities there cited; Treatise on International Law by Cushman K. Davis, 144, 145, 146.)

Speaking of the duties of the commanding general of the invading forces in the enemy’s territory, Judge-Advocate-General George B. Davis, in his Elements of International Law (333, 334),says:

“ Upon him [the commanding general], therefore, international law places the responsibility of preserving order, punishing crime, and protecting life and property within the limits of his command. His power in the premises is equal to his responsibility. * .* * He appears in the occupied territory as an agent of his government, charged with conduct of certain military operations. * * * He can impose no unusual or unauthorized burdens upon persons and property, because the laws of war require him to protect them.”

Counsel for the defendant seeks to find a justification for the destruction of the claimant’s property involved in this case in the many acts of confiscation and appropriation by the Union forces in the War of the ^Rebellion. But, as is well stated by Hannis Taylor in his admirable work on International Law (546) :

“All rules designed to prevent devastation are most often violated during civil wars, because of hatreds engendered by counter accusations of treason and oppression. During the American civil war, which constitutes no exception, many acts of vandalism occurred, especially in the South, the main seat of hostilities. The same humanity should, however, be *109exacted in all wars; and the difficulty of securing it only makes the duty the more imperative.”

And again, says Mr. Taylor (ib., 556) :

“ The unusual severity with which cotton and certain other articles Avere treated during the American civil Avar does not accord with the theories and tendencies of modern international law.”

It will be seen from the foregoing authorities that General Orders No. 101, issued by President McKinley, >vhich Avere based upon Lieber’s Instructions for the Government of-the Armies of the United States in the Field, do not, as counsel for the defendant contends, “ change the universally adopted rules of civilized .warfare,” but are in entire harmony with them. Lieber’s Instructions, after revision by a board of officers of the United States- Army, were issued in 1863, and reissued, Avithout modification, for the government of the armies of the United States during the Avar with Spain, in 1898. (Davis’s Elements of International Law, 501.) These Instructions permit the taking of private property by the invading forces “ only for temporary and military uses,” and provide that “ private property, unless forfeited by crimes or offenses of the owner, can be seized *only*by Avay of military necessity for the support or other benefit of the Army of the United States. If the owner has not fled, the commanding-officer Avill cause receipts to be given Avhich will serve the spoliated owner to obtain indemnity.” (Lieber’s Instructions, 37, 38; Davis’s Elements of International Law, 507.)

The instructions prepared by Doctor Lieber Avere amplified and adopted in substance by the Brussels conference of 1879 as a part of a code or manual for the regulation of war on land (Davis’s El. Int. Law, 567, 577) and from the basis of the second convention of the International Peace Conference held at The Hague in 1899, to which the United States Avas a party. (See Articles 46, 47, 52, 53, Holl’s Peace Conference at The Hague, 447, 448, 449, 451, 478, 489, 515, and ,519.)

If the argument of the learned counsel for the defendant should prevail, an American citizen Avhose property holdings in Cuba consisted of real estate (which form of property, according to all of the authorities on international laAv, as *110we have hereinbefore shown, is given the greatest protection in time of Avar) would have less security than his brother who had invested in goods and chattels which are more readily consumed, scattered, and destroyed, and therefore have been uniformly protected by our commercial treaties with foreign powers. (See Treaties and Conventions of the United States, published by the State Department in 1899, for our commercial treaties with France, England, Prussia, Sweden, Italy, Mexico, Central America, and Spain.)

Section 13 of the treaty of 1795. between the United States and Spain provided:

“For the better promoting of commerce on both sides, it is agreed that if a war shall break out between the said two nations, one year after the proclamation of war shall be allowed to the merchants in the cities and towns where they shall live for collecting and transporting their goods and merchandises, and if anything be taken from them, or any injury be done them within that term by either party, or the people or subjects of either, full satisfaction shall be made for the same by the Government.”

This provision, having been made in contemplation of war, remained in full force and effect throughout the war of 1898. (Wheaton’s Int. Law (9th ed.), sec. 275 and note; Hall’s Int. Law (4th ed.), p. 402; Phillimore’s Int. Law, Yol. Ill, p. 602; Pomeroy’s Int. Law, p. 862; ITalleck’s Int. Law, Vol. I, p. 643; Taylor’s Int. Law, sec. 462; *Gospel Society*v. *New*Haven, 8 Wheat., 494.)

See also note of Secretary of State Day, May 8, 1898 (Foreign Relations, vol. 61, p. 972), in which he says:

“ Department does not consider treaty provisions expressly applicable to war between contracting parties as abrogated by war, and therefore can not propose or make new agreement embodying the conditions of article 13, treaty 1795. So inform British ambassador, Madrid.”

Upon the established principles of international law, therefore, it will be seen that the general orders issued by President McKinley providing for payment for property appropriated for the use of the Army was not the announcement of a new principle of law, but was the declaration of a very old and very well settled rule of international and military jurisprudence, having its foundation in equity and justice.

*111BaRNEx, J.,

delivered the opinion of the court:

The claimant is a corporation organized and existing under the laws of "Pennsylvania, having its principal office and place of doing business in the city of Philadelphia. This corporation is now, and for several years has been, engaged in the business of mining and selling iron ore and its products, and in manufacturing iron and steel products, and was engaged in that business during the Spanish war. In furtherance of the business, it owned, leased, and-operated mines in the island of Cuba, and maintained offices and manufacturing works in Cuba during such war; and also owned, in connection with such works, 66 buildings, which had been used as dwelling houses for the use and occupation of its employees, and as storehouses, offices, etc., in connection with the business of the claimant.

While the Spanish war was in progress, and on or about July 11, 1898, General Miles, then in command of the United States forces in Cuba, by the advice of the medical staff, ordered the destruction by fire of the 66 houses mentioned, to prevent the spread of the yellow fever then prevalent in that vicinity, by the destruction of the fever germs which were believed to be lurking therein. At the time of the destruction of these houses, troops of the United States were stationed near them, and they were burned for the purpose of preserving the health and lives of these troops. In connection with these houses, some furniture and tools belonging to the claimant were also incidentally destroyed by said fire. Also, about the same time, other personal property of the claimant was damaged by the necessary military operations of the United States troops.

This action is brought by the claimant to recover from the defendants a judgment for damages growing out of this destruction.

The first question to be considered in the determination of this case is the status of the property destroyed — i. e., whether it is to be treated as “ enemy property ” or the property of a citizen of the United States. The law seems to be well settled that when a citizen of one belligerent country is doing business in the other belligerent country and *112has built up and purchased property there which has a permanent situs, such property is subject to the same treatment as property of the enemy. At first sight this rule of law seems to be a harsh one, but when we .consider that the property therein situated is a part of the assets of a country, and in a certain sense a part of the country itself, and further consider the difficulty, in stress of war, of discriminating between enemy and citizen property situated in the same country, the rule seems to be reasonable and necessary.

“A foreigner living and established within the territory of a State is, to a large extent, under its control; he can not be made to serve it personally in war, but he contributes by way of payment of ordinary taxes to its support, and his property is liable, like that of subjects, to such extraordinary subsidies as the prosecution of a war may demand. His property being thus an element of strength to the State, it may reasonably be treated as hostile by an enemy.” (Hall’s International Law, 5th. eel., 491.)

“ Property is considered to- be necessarily hostile by its origin when it consists in the produce of estates ownecl by a neutral in belligerent territory, although he may not be resident there. Land, it is held, being fixed, is necessarily associated with the permanent interests of the State to which it.belongs, and its proprietor, so far from being able to impress his own character, if- it happens to be neutral, upon it or its produce, is drawn by the intimacy of his association with property which can not be moved into identification in respect of it with its national character. The produce of such property therefore is liable to capture under all circumstances in which enemy’s property can be seized.” (Hall’s International Law, 5th eel., 504.)

The same doctrine is laid down in Halleck’s International Law, volume 1, 414-415, and in Taylor’s International Law, 553, and has been recognized by the Supreme Court *(Thirty Hogsheads of Sugar*v. Boyle, 9 Cranch, 191).

Assuming the property in question to be treated as “ enemy property,” we see no ground for the contention that the Government is liable for its destruction under the circumstances as stated; for, while the severities of war are being much ameliorated by recent treaties and international conferences, war, within certain limits, is and always will be destructive of the lives and property of the enemy.

*113Some of the circumstances under which the property of-the enemy may be destroyed are stated by the same authority as follows:

“ Finally, all devastation is permissible when really necessary for the preservation of the force committing it from destruction or surrender; it would even be impossible to deny to an invader the right to cut the -dikes of Holland to save himself from such a fate.” (Hall’s International Law, 5th ed., 535; see also Taylor’s Interational Law, 482-483.)

In the exigencies of war, the military forces of the United States were placed in a position where the lives of the soldiers were endangered by the prevalence of yellow fever, and the germs of this disease were believed to be lurking in the buildings belonging to the claimant, near which these soldiers were necessarily encamped. The danger to health and life was imminent and seemed to call for heroic measures. It would not be contended that a belligerent would not have the right, under the most humane usages of modern warfare, to destroy the property of the enemy for the purpose of protecting its army from artillery or musket fire; and we can see ' no reason why it should not have the same right, if necessary for the protection of its army against the ravages of disease.

About the time of the destruction of these buildings other property belonging to the claimant was damaged as a neces- * sary incident to the military operations of our troops. As to the want of liability of the defendants for such damage, it is hardly necessary to cite authorities, but reference is made to the above text-books at the pages as noted.

We have thus far considered this case upon the assumption that the property destroyed was “ enemy property,” but we believe that even if it is to be considered as the property of an American citizen, no cause of action is proven against the defendant.

That a belligerent is not liable for the necessary destruction of private property of a citizen caused by necessary military operations, is also so well settled as hardly to need reference to authorities. This question arose in the case of *Pacific Railroad*v. *United States*(120 U. S., 227), and in deciding that case the court said :

*114“ The principle that, for injuries to or destruction of property in necessary military operations during the civil war, the Government is not responsible is thus considered established. Compensation has been made in several cases, it is true, but it has generally been, as stated by the President in his veto message, ‘ a matter of bountv rather than of strict legal right.’ ”

Hence, whether considering the property destroyed as “ enemy property,” or otherwise, we do not believe the claimant is entitled to recover, and the petition is dismissed.