#### MARY E. PEABODY v. THE UNITED STATES.

[No. 27500.

Decided December 2, 1907.]

*On the*defendants’ *Demurrer.*

The facts alleged are these: Fort Foster is built on land adjoining the claimant’s. On her land is a summer resort hotel. Heavy guns are installed in the fort. “ *On one occasion these guns were discharged ”*“ *and the concussion thereby produced did considerable damage to the claimant’s buildings.” “ The project for the erection and maintenance of the guns*” *“ is such that the stone cmd range of fire includes all of her real estate.”*

I. An averment that on one occasion the firing of guns from a fort caused a concussion “ *which did considerable damage to the claimant’s buildings,"*with no claim for damages, can effect no other purpose than to show that the firing of guns may cause damage to the claimant if the right to fire them should be exercised.

II. An injury to property, which under the maxim sic *utere tuo ut alienum non laedas,*will entitle the owner to redress, does not amount to a taking of property, and will not give the court jurisdiction as against the Government and has no application to the present case.

*6III. It is well settled that where an officer takes private property and appropriates it for public use, claiming it as belonging to the Government, no contract can be implied, and the court can not entertain jurisdiction; but where private property is so taken and used under no claim of title, an implied contract to pay for it arises and the court will have jurisdiction.

IV. Under recent decisions an owner deprived of the use of his property by the Government may be entitled to compensation though the property be not actually taken.

V.Property is a person’s right to possess, use, enjoy, and dispose of a thing; and in the case of real property it involves the negation of the right of an owner of contiguous property to interfere with or lessen this use and enjoyment.

VI.But there must be some actual, physical invasion of land and appropriation of some of its uses to constitute a taking for which compensation can be awarded.

VII.The general rule to be deduced from the decisions is that where there is practical destruction, or material impairment in the value of property, there is a taking; but where the owner is merely put to some expense in warding off consequences resulting from a public work there is not a taking.

VIII.Where it must be inferred from the claimant’s allegations that the only right asserted by the Government is the right to fire guns from a fort over and across his land in time of war at a public enemy, it is the assertion of a right to which all property is subject, and for the exercise of it no damages are recoverable.

*The*Reporters’ statement of the case:

The facts alleged by the claimant sufficiently appear in the opinion of the court.

*Mr. Assistant Attorney-General Van Orsdel*and *Mr. Frederick De O. Faust*for the demurrer:

It is conceded in this case that Fort Foster is a public improvement, lawfully erected under legislative authority, entirely upon government property, and does not encroach in any manner upon the abutting land owned by the plaintiffs.

The law is well settled that to entitle an owner to the protection of the fifth amendment the property must be actually taken in the physical sense of the word and that the pro*7prietor is not entitled to claim remuneration for indirect and consequential damage, no matter how serious or how clearly and unquestionably resulting from the exercise of the power of eminent domain. (Sedgwick Statutory and Constitutional Law, pp. 457-458; Dillon Muncp. Corp., sec. 784; *Transportation Company*v. *United*States, 99 U. S., 642.)

This is supported by an immense weight of authority. Those who are curious to see the decisions will find them collected in Cooley on Constitutional Limitations, page 542, and notes.

It is conceded that the United States has not appropriated any part of the plaintiffs’ land, in the sense that its officers or agents actually entered upon or physically took possession of the land or ousted the plaintiffs therefrom.

But it is asserted that (1) by the erection of the fort and (2) by the firing of two shots in June, 1902, across the plaintiffs’ land the United States thereby took a right in said land in the nature of a perpetual easement; that such easement includes the land as well as the air over it, and is therefore a taking of private property for public use within the meaning of the fifth amendment of the Constitution.

In *Bedford*v. *United States*(192 U. S., 224) the Supreme Court said:

“ The Constitution provides that private property shall not be taken without just compensation, but a distinction has been made between damage and taking, and that distinction must be observed in applying the constitutional provision.”

The Government’s property in this case had been applied to the use of a fort, and all rights essential to such lawful and proper use had become vested long before the plaintiffs acquired their respective interests in the land now in dispute. Among other rights thus acquired by the Government was the right to discharge the guns of the fortification in any direction that public exigency might require.

This is not a case, therefore, of acquiring the right to do something, but it is a case of doing something which the United States already had the right to do.

The intervening riparian land upon which the plaintiffs’ mortgage deeds are secured was burdened with this right or

*8servitude, now claimed to constitute a taking of the land, years before the mortgages were executed, and the plaintiffs necessarily acquired their interests with full knowledge of that fact and subject to that right.

The principle announced by the Supreme Court in *Gibson*v. *United, States*(166 TJ. S., 269) is directly applicable to the case at bar.

It will not be contended that the erection of a fort wholly on government property, purchased for that express purpose, of itself constitutes an appropriation of contiguous private land. Neither will it be seriously asserted that damage or injury due entirely to noise or concussion from the discharge of the guns of a fort thus located, without any further act on the part of the Government, would be sufficient of itself to sustain an action of this character by the owners of the abutting land.

It is insisted that the acts relied upon do not establish the taking of an easement or right in the land at all. At most they show but an encroachment upon the easements of light and air appurtenant to the plaintiffs’ estate by the assertion of a right by the Government to use the air or atmosphere over the land through which to discharge projectiles for the public' defense in time of war. {Commissioners, *etc.,*v. Withers, 29 Miss., 1, quoted with approval by this court in the Gibson case.)

Upon the same principle that it has been repeatedly held that the land under navigable waters belongs to the state, but is subject to an easement in favor of the National Government for the purpose of navigation *{Gibson*v. *United*States, 166 U. S., 69; *Scranton*v. *Wheeler,*179 U. S., 141), so it must be held that, while as between individuals the right to the undisturbed use of light and air over private property is an easement appurtenant to the estate of every private owner, it is subject, nevertheless, to the paramount right of the Government to its use at all times for the purpose of repelling foreign invasion and preserving the general welfare of the whole people. In both cases the sovereign is exercising its constitutional right — in one case in improving navigation of a river, and in the other affording protection *9to navigation and commerce and the integrity of the nation, for the consequences of which no action will lie.

The law relating to easements of this nature have been more carefully and extensively considered by the courts of New York in the Elevated Railroad cases *(Story*v. *New York Elevated B. E.*Go., 90 N. Y., 122, and *Laker*v. *Metropolitan Elevated Ry.*Co., 104 N. Y., 269) than by any other tribunal. The subject was again reviewed by the Court of Appeals in the recent case of *Sauer*v. *The City of New York*(90 App. Div., p. 36; 180 N. Y., p. 27), and appealed and twice argued in the Supreme Court of the United States.

In this case it is insisted that there has been no improper use or perversion of the property which the United States acquired for the purpose of the fortification and that no additional servitude has been imposed upon the abutting land which did not exist before the plaintiffs acquired their interests in this land, and they are not entitled, therefore, to maintain this action.

It may be stated as a general rule that if the legislature, acting within its constitutional limitations, directs or authorizes the doing of a particular thing, the doing of it in the authorized way and without negligence can not be wrongful; if damage results as a consequence of its being done, it is *damnum absque injuria*and no action will lie for it. (8 *Am. and Eng. Ency.,*p. 697, and note; *Transportation Go.*v. *United*States, 99 U. S., 642; *Radclif's Executors*v. Mayor, *etc.,*4 N. Y, 195.)

The question of damage to property and taking of property has frequently been considered by the courts in various phases in many different cases, but the broad distinction between the two classes of cases has always been rigidly and carefully observed. *(Gibson*v. *The United*States, 166 U. S., 269; *Bedford*v. *United*States, *supra;*Chicago, *Burlington and Quincy R. R. Go.*v. *Drainage*Gom’rs, 200 U. S., 561.)

The principal and that laid down by that court in *Transportation Gompany*v. *United*States, supra, heretofore quoted, to the effect that acts done in the proper exercise of governmental powers and not directly encroaching upon private property, though their consequence may impair its use, *10are universally held not to be a taking within the meaning of the constitutional provision appears to completely dispose of the plaintiff’s contention in this case.

It may not be amiss to refer to a few cases in which the principle has been applied. *{Scranton*v. *Wheeler,*179 U. S., 141; *TJnion Bridge Go.*v. *United States,*204 U. S., 364, and authorities therein cited; *Bedford*v. *United States,*192 U. S., 217; *Monongahela Navigation Company*v. *Coons,*6 Watts & S., 101; *Lansing*v. *Smith et al., 8*Cowen, 146.)

The same rule has also been applied to acts done by railroad companies in the proper exercise of power conferred upon them by lawful authority. *{Booth*v. *R. R. Co.,*140 N. Y., 262; *Hurdman*v. *N. E. R. R. Co.,*L. It. [3 C. P. Div.], 168; *Beseman*v. *R. R. Co.,*50 N. J. L. R., 235; *Carroll*v. *R. R. Co.,*40 Minn., 168; *Stevens*v. *Patterson R. R. Co.,*34 N. J. L., pp. 532-49; *Benner*v. *Atlantic Dredging Co.,*134 N. Y. Rep., 156; *Ray*v. *Cohoes Co.,*2 N. Y, 159; *Tremain*v. *Cohoes Co.,*id., 163; *St. Peter*v. *Denison,*58 id., 416.)

In the case at bar there was no encroachment whatever upon the lands of the plaintiffs, nor the slightest interference or restriction upon the use of the property. The fort is a public improvement, lawfully erected under the authority of Congress. The guns and carriages were installed and tested as a part of the construction of the fort by the only practicable method possible, with due care and caution, and with proper regard for the rights of the plaintiffs, for the purpose of repelling foreign invasion. Not a single additional shot has since been fired from the guns, and, in view of the purpose for which they were erected, the future use of the guns is extremely remote, if not improbable. Indeed, it may never occur.

*Mr. John B. Cotton*opposed. *{Messrs. Cotton & White*were on the brief) :

1. The United States makes no claim that it has any right, title, or interest in or upon the land of the plaintiff and does not deny the title of the plaintiff, and nowhere does the United States set up any title antagonistic to that claimed by the plaintiff. *(United States*v. *Great Falls Mfg. Co.,*112 U. S., 645.)

*112. The United States, by its agent, proceeding under authority of acts of Congress, by the erection of Fort Foster and the firing of the shots across the land of the plaintiff, took a right in plaintiff’s land in the nature of a perpetual easement; that such easement includes the land as well as the air over it. *(Chappel*v. *United*States, 34 Fed. Rep., 673; 160 U. S., 499; Randolph on Eminent Domain, sec. 136.)

The interest in land usually acquired by condemnation is a right of possession as broad as the needs, as lasting as the life of the public use. This is commonly called an easement, whether or not the occupation is exclusive. (Randolph on Eminent Domain, sec. 207.)

As a rule, the public use is of indefinite, continuous, and presumably perpetual duration, and therefore impresses upon the land an interest of the same quality. Yet the use may be temporary, definite, or intermittent. (Randolph on Eminent Domain, sec. 208.)

If there is no statutory direction as to the quantity of property to be condemned, the expropriator may take as much as is necessary for the acomplishment of the purpose. (Randolph on Eminent Domain, sec. 185.)

But there may be other acts within the primary definition of a taking. Acquisition may be for use, and yet not be physical. (Randolph on Eminent Domain, sec. 135.)

3. That it is a necessary and unavoidable part of the scheme in erecting Fort Foster for public defense, contiguous to the plaintiff’s land, to fire at all times across the same, at any elevation and at any radius, projectiles weighing 1,000 pounds, from three 10-inch guns mounted on disappearing carriages.

To be effective as a means of defense, there could be no constraint. Something more than subjecting the plaintiff’s land to noise, the only thing incident to the old project, was essential to the new scheme. It was the actual use of the plaintiff’s land over which to shoot projectiles. Projectiles of such guns notoriously weigh about one thousand pounds; to hamper the Government in respect to either the foregoing things would be to prevent the proper use of the armament, a proposition which the ordnance department would quickly *12and rightfully reject. All rights necessary to any supposable exigency must belong to the Government. Underlying all is the use of the plaintiff’s land.

4. That the damage done by such taking of the easement is the direct and not the incidental or consequential result of such scheme.

If the argument deduced under the third proposition is correct, it fully sustains that of the fourth.

There are no elements in the taking which come within the definition which the courts have applied to incidental or consequential damage. The damage in the present case is a direct result of the taking, and we look in vain in the decisions of the Supreme Court for any case where the relation between the taking and the damage, as found in this case, is considered incidental or consequential.

5. That said fort can not be used for the purpose of public defense except by firing projectiles across the plaintiff’s land.

Considering the previous history of the fortification at this point, the Endicott report and the building of the new fort, the mounting of 10-inch guns, with their radius of fire, this proposition is a plain one.

It is evident that so far as the principal battery of the new fort is concerned, it must have been placed in such way as necessarily to use the plaintiff’s land. This proposition is enforced by the fact that in addition to the 10-inch guns, the United States erected what is called in evidence a water battery with guns of a small caliber, whose use was to fire directly toward the river; thus taking the part of the old 12-inch guns which were to accomplish the same purpose.

6. That by no expenditure of money or in any way can the injury to the land or structures of the plaintiff be avoided under said scheme.

It is plain that by no engineering process on the plaintiff’s land can the injury resulting from the use of the guns be avoided which does not itself preclude the use of such guns for defensive purposes.

It is inconceivable that any structure erected by the plaintiff on her own land could prevent such damage unless by the building of a wall of the strength and height which *13would' necessarily prevent the use of the guns of the fort. The erection of such a wall in front of the battery would effectually cut off the sight of the enemy’s vessels anchored in the bay outside of the island, and the' various elevations of the guns and at the different parts of the radius. Thus the usefulness of the fort would be destroyed, and the expense of building the structure would be too great as to be brought within the rule of a reasonable sum. *(Manigault*v. *Springs et*al., 199 U. S., 473.)

7. That by the reason of the building of Fort Foster and the rights acquired by the United States, the land of the plaintiff and the structures thereon have been practically destroyed for the purposes for which they were best adapted, and that to which they were lawfully put, and has caused a material impairment of the value thereof.

This proposition is fully sustained by the evidence. *{Manigault*v. *Springs et al., supra.)*

8. That by reason of the easement taken by the United States, the plaintiff is prevented from the lawful use of her land, hotel, and buildings, and from building structures upon the land as she may lawfully elect, and from disposing of the same by sale. *(United States*v. *Lynah,*188 U. S., 479; *Chap-pell*v. *United*States, 34 Fed. Itep., 675.)

"When rights are held and used by the agents of the United States under the sanction of legislative enactments of Congress, the owner may waive the ordinary process of taking by right of eminent domain, and treat the matter as if such formalities had been taken. *{United States*v. *Great Falls Mfg. Co.,*112 U. S., 645; *United States*v. *Lynah,*188 U. S., 445.)

Congress need not designate. *(Chappell*v. *United States,*160 U. S., 499.)

The plaintiff relies upon the following cases: *{United States*v. *Great Falls Mfg. Co.,*112 U. S., 645; *Chappell*v. *United States,*34 Fed. Kep., 673; *United States*v. *Lynah,*188 U. S., 445; *Pumpelly*v. *Green Bay Co.,*13 Wall., 166.)

Barney, J.,

delivered the opinion of the court:

This is a suit to recover damages for property which it is claimed has been taken by the Government in the exercise *14of its power of eminent domain, but for which no compensation has been made pursuant to the fifth amendment to the Constitution.

The defendants demurred to the petition on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was interposed after the evidence of the claimant had been taken, and was to the evidence as well as to the petition; but the demurrer to the petition only was presented and argued to the court and is alone before it for decision.

The petition alleges that the claimant is the owner of certain real estate situated upon the seashore in the State of Maine upon which is located a summer resort hotel, and cottages and other buildings used in connection therewith. That some years since the Government erected a fort, called Fort Foster, upon lands adjoining the lands of the claimant and distant about one thousand feet from the hotel and other buildings mentioned, and installed in said fort three 10-inch disappearing guns. That the project for the erection and maintenance of the guns so installed, or which may hereafter be installed therein, is such that the zone and range of fire of the same includes all of the real estate of the claimant; and that on one occasion these guns were discharged by the agents of the defendants, and that the concussion thereby produced did considerable damage to the said buildings.

It is contended by the claimant that the Government, by the location of the fort and the installation of its guns so that the zone of fire of the same is over and across her lands, has thereby established an easement in said lands, and taken property from the claimant for which it is liable to pay, pursuant to the fifth amendment to the Constitution. If material to the statement of the case at all, which is doubtful, the averment as to the single occasion when the concussion produced by the firing of the guns caused the injury to the buildings situated on the land described, can only answer the purpose of showing the extent of the damage to the claimant by the occupation of the easement as claimed.

The doctrine of *sic utere tuo ut alienum non laedas*has no application in this case for the reason that if there has been *15any unjustifiable use by the Government of its own property to the damage of the claimant, however serious, but not amounting to a taking, it would clearly be damage for the recovery of which this court has no jurisdiction.

The law seems to be well settled that when an officer of the Government takes possession of property and appropriates it to the use of the Government, claiming it as belonging to the Government, there is no implied contract to pay for the same, and hence this court has no jurisdiction in a suit to recover damages for such taking; but when property is taken and appropriated by the Government under no claim of title an implied contract to pay for the same is raised and this court does have jurisdiction in such a case. *(Schillinger*v. *United*States, 24 C. Cls. R., 278; *Great Falls Mfg. Co.*v. *United*States, 112 U. S., 645; *Langford*v. *United*States, 101 U. S., 341; *Palmer*v. *United*States, 128 U. S., 262; *Lynah*v. *United*States, 188 U. S., 445.)

In the case at bar it does not appear from the petition that the Government makes any claim of title to any part of the lands of the claimant, hence if there has been any taking of the same within the meaning of the fifth amendment this court has jurisdiction.

The rule of interpretation as to what shall be considered “ property ” and as to what shall constitute a “ taking ” of the same, under the fifth amendment or similar constitutional provisions, has been somewhat modified in recent years and is doubtless more liberal to the owner now than formerly. Mr. Sedgwick, writing more than forty years ago, in discussing this subject, foreshadowed this change by assuming to differ with the weight of authority at that time, which, tersely stated by him, was “ that to entitle the owner to protection under this clause, the property must be actually taken in the physical sense of the word, and that the proprietor is not entitled to claim remuneration for indirect or consequential damage, no matter how serious or how clearly and unquestionably resulting from the exercise of the power of eminent domain.” He challenges the soundness of this doctrine and maintains that an owner may be deprived of property, though a particular piece may not be actually taken *16(Sedgwick’s Constitutional Laws, 2d ed., 456-458). The following are some of the authorities on this subject, and seem to support the modification of the rule as noted: *Pumpelly*v. *Green Bay Co.,*13 Wall., 166; *Manigault*v. Springs, 199 U. S., 473, 484; *Chappell*v. *United*States, 34 Fed. Rep., 673; *Arimond*v. *Green Bay Co.,*31 Wis., 316, 335; *Eaton*v. *Railway Co.,*51 N. H., 504; *Thompson*v. *Improvement Co.,*54 N. H., 545.

The following forcible language of Mr. Justice Miller in the opinion of the court in *Pumpelly*v. *Green Bay Co., supra,*is instructive in this connection:

> “ It would be a very curious and unsatisfactory result if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the Government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the Government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of the word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the Government, and may give an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.” *{Id.,*177-178.)

Much of this seeming conflict of authorities upon this subject has arisen from a confusion as to the definition of property. Property has been well defined to be a person’s right to possess, use, enjoy, and dispose of a thing not inconsistent with the law of the land; and as regards real property this definition involves the negative of the right of the owners of contiguous and neighboring property to interfere with and lessen this use and enjoyment, *provided such interference is not a reasonable use of such neighboring property. (1 Lewis Eminent Domain, Sec. 54-58.)*

*17While, as already stated, it is believed that the trend of recent decisions in the construction and application of the constitutional provision referred to and similar ones is as indicated, it appears from the weight of authority, and particularly from the numerous decisions of the Supreme Court upon this subject, that there must be some actual physical invasion of land and visible appropriation of some of its uses to constitute a taking of property for which damages will be awarded. *(Transportation Co.*v. Chicago, 99 U. S., 635; *Gibson*v. *United*States, 166 U. S., 269; *Lynah*v. *United*States, 188 U. S., 445; *Bedford*v. *United*States, 192 U. S., 217; *Manigault*v. *Springs,*199 U. S., 473; *Chappell*v. *United*States, 34 Fed. Rep., 673, S. C., 160 U. S., 499.)

In *Transportation Co.*v. *Chicago,*supra, the court, speaking through Mr. Justice Strong, said :

> “ But acts done in the proper exercise of govermental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision.” *(Id.,*624.)

This language is quoted approvingly in *Gibson*v. *United States, supra,*at page 275.

*Lynah*v. *United States, supra,*was a suit for the recovery of damages for the injury to lands by flowage, and in sustaining a judgment for such recovery the court, speaking through Mr. Justice Brewer, said:

> “ It is clear from these authorities that where the Government, by the construction of a dam or other public works, so floods lands belonging to an individual as to substantially destroy their value there is a taking within the scope of the fifth amendment. While the Government does not directly proceed to appropriate the title, yet it takes away the use and value. When that is done, it is of little consequence in whom the fee may be vested.” *(Id.,*470.) .

In *Manigault*v. *Springs, supra,*in rendering the opinion of the court, Mr. Justice Brown, after reviewing many of the authorities in the Supreme Court on this question, said: *18mands compensation, but otherwise where, as in this case, plaintiff is merely put to some extra expense in warding off the consequences of the overflow.” *(Id.,*484-485.)

> *17“We think the rule to be gathered from these cases is that where there is a practical destruction or material impairment of the value of plaintiff’s lands there is a taking which de-

*18*Chappell*v. *United*States, *supra,*is an instructive case upon this subject as indicating what kind of an invasion or appropriation of the uses of lands will be regarded as an actual physical invasion within the authorities quoted. That was a suit to recover damages caused by the erection of two light-houses on the Patapsco River. They were range lights located about 1 mile apart, one in front of the shore of the plaintiff’s land and the other upon the land of another party about 1 mile distant and in such a direction that the zone of light between them extended across the plaintiff’s lands. For the intended use of these light-houses it was requisite that there should be no intervening object obstructing the passage of light between them, and the plaintiff had been forbidden by the officers of the Government from erecting buildings upon his lands which would have that effect. A demurrer by the Government to a petition setting up the foregoing facts was overruled by the court.

Shylock announces the essence of the doctrine under discussion when, after he has been deprived of his property by the judgment of the court, he says:

> “ You take my house, when you do take the prop That doth sustain my house; you take my life, When you do take the means whereby I live.”

Giving to the petition in this case the most liberal construction, we think there has been no taking of the property of the claimant or of any of its uses, within any of the authorities upon this subject. A fort has been erected upon lands adjoining the lands of the claimant and guns have been installed therein directed over and across these lands of the claimant; but there is no averment that one of these guns has ever been fired so as to throw a missile in that direction; and no presumption arises that one ever will be so fired in time of peace. The only easement which the Government has asserted over the claimant’s property is the right to fire its guns across it at an invading enemy in time of war. Such an easement, if it may be so called, the Government has over *19every foot of its territory; and if the necessities of war ever require the exercise of such an easement no recoverable damages will result to the owner. That this is the law is conceded by the claimant.

If the averments of the petition had shown an intention and plan on the part of the Government, in time of peace, to fire the guns of the fort over and across the premises of the claimant for practice or any other purpose, and thereby interfere with her exclusive use of the same; or if it had been alleged that there was any intention and plan on the part of the Government, in time of peace, to continue to fire the guns of the fort in any direction so as to repeat and make permanent the damage by concussion to the claimant’s property and thereby destroy its use, an entirely different question would be presented and one which is not here decided.

It is ordered that the demurrer be sustained with leave to the claimant to amend her petition within sixty days.