#### MARY R. PEABODY ET AL. v. THE UNITED STATES.

[No. 27500, 27501, 27502, 27503.

Decided January 9, 1911.]

*On the Proofs.*

In 1873-74 the Government purchases land on Gerrish Island and erects a battery. In 1901 it erects Fort Foster on the same site, one of the defenses of Portsmouth Harbor. Between these dates the claimants acquire adjacent land and erect a hotel 1,000 feet distant from the battery. In 1902 guns are fired for practice purposes. The concussion damages the hotel, and the fort continues to be a constant menace to the quietude of the hotel as a summer resort, depreciating its value.

I. The concussion of guns fired from a fort in time of peace for practice purposes may injure an adjacent hotel, and the continued occupancy of the fort by the military forces may be *40a constant menace to tlie quietude of tlie liotel as a summer resort, impairing its value; but tliese acts of Government do not constitute a taking of private property for public use within the meaning of the Constitution.

II.Firing a few guns, each once, in such a direction as to send projectiles over and beyond the claimants’ land is not an assertion of dominion over the land or of an intent to deprive the owner of possession or enjoyment, and does not constitute a taking.

III. The law of Maine is decisive of the boundaries of contiguous properties on the coast between high and low water mark. The rule established by the State set forth, and authorities cited.

IV. The presence of a fort and the certainty that at times the guns will be fired in time of peace for practice purposes, and that the concussion may injure adjacent property and disturb the quietude of a summer resort, constitute but consequential damages, for which the Government is not liable.

*The Reporter's*statement of the case:

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

I. The claimant in No. 27502, Samuel Ellery Jennison, is a citizen of the United States and a resident of Battery Point, in the State of Maine.

II. Mary E. Peabody is a citizen of the United States and a resident of Cambridge, in the county of Middlesex and Commonwealth of Massachusetts, and a single woman.

The Saco and Biddeford Savings Institution is a corporation organized under the laws of Maine and doing business in York County in the State of Maine.

The Portsmouth Harbor Land and Plotel Company is a corporation organized under the laws of the State of Maine and doing business in York County, State of Maine.

III. Samuel Ellery Jennison was at the time of the alleged taking, and had been since July 31, 1893, the owner of certain land and improvements thereon at Gerrish Island, State of Maine, and more particularly described as follows:

All of that tract and parcel of land formerly known as the Seaward Farm on Gerrish Island in the town of Kittery, county of York, State of Maine, containing 200 acres, more or less, with all the buildings, erections, and improvements *41thereon, and bounded as follows, to wit: Beginning at the easterly end of Gerrish Island at the water and southerly boundary of the United States Government military reservation, thence running easterly by the line of said reservation and the lands of Joanna E. McClure, of the heirs of Edward F. Safford, of Joseph B. Warner, of the heirs of Ephraim C. Spinney, of William C. Williams, and of the heirs of William M. Goodwin; thence southerly by the land of the heirs of William M. Goodwin to the Atlantic Ocean, excepting and reserving from the premises as above described, however, certain lots which have heretofore been conveyed therefrom to George H. Higbee, to Henry N. Van Dyke, to Susamia Willard et al., to Olivia Flagg, and to William L. White.

IV. The land was acquired by Jennison by a deed dated February 8, 1884, and by him conveyed to Mary M. Custor, whom he subsequently married. On July 31, 1893, his wife conveyed to Frederick M. Sise, who, on the same date, conveyed the whole tract to Jennison.

On December 30, 1891, Jennison mortgaged to the claimant, Mary R. Peabody, 20 acres of the tract to secure a debt of $12,000; to the Saco and Biddeford Savings Institution the remainder of the tract to secure a debt of $22,000.

On August 20, 1902, Jennison conveyed the entire tract, subject to the above mortgages, to the Portsmouth Harbor Land and Hotel Company, a body corporate, organized under the laws of the State of Maine.

V. The claimant’s land comprises 200 acres of land, of which 179 and a fraction acres are above high-water mark.

VI. At the time of the alleged taking there were on the land owned by the claimant the following structures and additions to the natural advantages: On the westerly end of the tract there were the Pocahontas Plotel and buildings accessory thereto, consisting of a water tower, windmill, ice house, two help cottages, an engine house, stable, carriage house, shed, bathhouses, and steamboat pier. Farther to the east were seven cottages, as follows: Rock Ledge, cottages called the Weirs, Crow’s Nest, Pinecroft, Mooring’s, and the homestead, sometimes called the Seaward, and the farmhouse, sometimes called the Primrose Cottage. Near the Seaward was a stable, and near the farmhouse a great barn, *42blacksmith shop, small boathouse, and a hennery. There was also a water-supply system, which had been installed by the claimant, which supplied water for drinking and other purposes from the springs and pond.

VII. The land borders on its southern and eastern front the Atlantic Ocean, and on its western front the entrance to Portsmouth Harbor. It forms the southern corner of Ger-rish Island, itself the southernmost point on the coast of Maine. The land consists of open, grassy spaces, combined with woods of evergreen and hard wood. The shore is rocky, interspersed with sand beaches,' and inland the land slopes up gradually. That part not occupied by cottages is available for building purposes. Nearly all the parts of the tract have an unobstructed view of the ocean. There is an excellent bathing beach near the hotel.

The island is well watered. There is a pond near the highway, about a quarter of a mile from the hotel. There is another near the road from the homestead, about one-third of a mile from the sea. The former is about 300 feet square and is fed by springs and also from watershed and provides ice. There is an excellent spring near the hotel.

Gerrish Island and the land of the claimant is about 3 miles from Portsmouth. The hotel is about a mile and a half from the trolley line which runs from Portsmouth to York Beach and other towns and seashore resorts. The railroad station of the York Harbor and Beach Railroad, a leased line of the Boston and Maine Railway, is also about a mile and a half from the hotel. The land of the claimant has good roads, which have been constructed by the claimant. The outlook from the property is over the ocean and to the New Hampshire coast across the harbor. There is fishing and facilities for bathing, sailing, riding, and driving; also a place for golf.

The island is connected with the mainland by an iron bridge and a wooden bridge, both highway bridges.

VIII. The land of the claimants was suitable for summer residences or for a summer resort and was otherwise of little value, and at the time of the alleged taking was used as a site for a summer hotel and had several cottages thereon occupied as summer residences.

*43IX. At the time of the alleged taking of the said lands of the claimants the fair value thereof, including the improvements thereon, was $200,000, and there was situated thereon the Pocahontas Hotel, which yielded the claimants a net profit of about $5,000 per annum. For the years 1903 and 1904 there was a loss to the claimants in the conducting of said hotel. Since 1904 the hotel has been closed. At said time the cottages thereon situated were all rented for that summer season at reasonable rates of profit. Since that time the claimants have only rented a portion of said cottages during each summer season and at reduced rates compared with previous years. The value of the land which was actually fired over by the guns of said fort as herein found does not appear.

X. About one-third of the said lands of the claimants lies immediately between said military reservation and the sea toward the south and the balance lies remotely between said reservation and the sea toward the east.

XI. By the act of February 21,1873 (17 Stats., 469), Congress appropriated “ for batteries in Portsmouth Harbor, Portsmouth, New Hampshire, on Gerrish Island and Jerry Point, fifty thousand dollars,” and by the acts of April 3, 1874 (18 Stats., 25), and February 10, 1875 (18 Stats., 313), $30,000 and $20,000 additional, respectively, for the same purpose. Under the authority thus conferred the United States, in May, 1873, purchased a tract of land containing 70 acres, more or less, north and west of and abutting upon the claimants’ land and began to construct thereon, in June, 1873, a 12-gun battery, estimated to cost $45,200, under the supervision of the Chief of Engineers of the United States Army. This battery, with the one opposite on Jerry Point, formed the outer line of defenses to Portsmouth Harbor and to the navy yard at Kittery. In 1876 the work had reached an advanced stage of construction and $50,000 had been expended thereon. The breast-height walls of the fortification were finished and the gun platforms were built except laying the irons. Operations were closed in September of that year, however, for want of funds and said fortification was not occupied by the defendants thereafter until work was resumed thereon as hereinafter stated.

*44Plans were subsequently prepared for tlie completion of the work and an appropriation of $36,000 requested for this purpose during each fiscal year from 1876 to 1886 in the annual reports of the Secretary of War. No appropriation was made, however, nor was work resumed upon said fortification until after the passage of the act of May 7, 1898 (30 Stats., p. 400), “ making an appropriation for fortifications and other works of defense, for the armament thereof, and for procurement of heavy ordnance for trial and service, and for other purposes,” when allotment was made and the work of constructing a battery consisting of three 10-inch guns mounted on disappearing-gun carriages and two 3-inch rapid-fire guns was begun in September, 1898. This battery was located on the site of the former uncompleted battery, commenced in 1873, which had been designed to contain nine guns with an angular field of fire greater than that provided for the guns of Battery Bohlen. The battery was practically completed on June 30, 1901, and was transferred to the Artillery on December 16, 1901, and named “Fort Foster.” No part of said fort encroaches upon the abutting land of the claimants. Said fort is located within 200 feet of the northwest corner of the claimants’ land and about 1,000 feet from said Hotel Pocahontas. At the time of the reconstruction of said Fort Foster, as stated, the hotel and cottages before mentioned were already built and in operation.

XII. The said guns installed in said fort have a range of fire over and across all of the sea front of the lands of the claimants. If the dividing line between the claimants’ land and the Government reservation between high and low water mark is a continuation in the same direction of the undisputed dividing line between said premises above high-water mark, the guns of said Fort Foster can not be fired toward the sea without the projectiles from the same passing over and across the claimants’ land.

If, however, said dividing line between high and low water mark from the point of termination of the undisputed dividing line above high-water mark is a line bisecting the angle caused by lines diverging from said point of termination occasioned by the application of the following rule: “ Draw a base line from the two corners of the claimants’ land and *45the Government reservation, respectively, where they strike the shore and from said corners Extend parallel lines to low-water mark at right angles with the base lines,” the guns of said Fort Foster may be fired for practice and for all other necessary purposes in time of peace without the projectiles from the same passing over or across the claimants’ land.

XIII. The Government by its officers and men did, on or about the 22d day of June, 1902, fire two of its said guns for the purpose of testing them at a target off the coast and in such a direction that the missiles therefrom went over and across said lands of the claimants; and fired another of its said guns for the same purpose and to the same effect on the 25th of September, 1902, the effect of such fire being to do damage by concussion to the buildings thereon situated, and the furniture therein, to the extent of $150.

None of these guns have been fired since, but ever since their installation they have been kept in good condition by a detail from Fort Constitution, situated just across the Pis-cataqua Eiver.

XIY. It does not appear from the evidence that there is any intention on the part of the Government to fire any of its guns now installed, or which may hereafter be installed, at said fort in time of peace over and across the lands of the claimants so as to deprive them of the use of the same or any part thereof or to injure the same by concussion or otherwise, excepting as such intention can be drawn from the fact that the guns now installed in said fort are so fixed as to make it possible so to do and the further fact that they were so fired upon the occasions as hereinbefore found.

XY. The value of said real estate consists almost entirely in its adaptability and desirability as a summer resort and for the erection and maintenance thereon of summer hotels and cottages for occupation during the summer season, and the erection of said Fort Foster contiguous thereto and the installation therein of said guns has materially impaired the value thereof, and said impairment will continue so long as said fort and said artillery therein are maintained. Said impairment of value consists in this, viz, probable guests for the hotels which now are or may be hereafter erected thereon, or probable lessees or occupants of the cottages which now are *46or hereafter may be erected thereon, or probable purchasers of any of said lands for summer resort purposes will apprehend that said artillery may fire in time of peace over and across said lands or so near thereto as to create a disturbance which will destroy its otherwise quietude and by concussion materially do damage to the buildings which may be erected thereon.

*Mr. William Frye White*and *Mr. Chaimcey Hachett*for the claimants.

Lewis, in his work on Eminent Domain, Chapter III, section 54, says:

“ In determining the question as to what constitutes a taking of property it is important to have, at the outset, a clear understanding of what property really is. ‘ Sometimes,’ says Austin, ‘ it is taken in a loose and vulgar acceptation to denote not the right of property or dominion, but the subject of such a right. A little reflection, however, will suffice to convince anyone that property is not the corporal thing itself of which it is predicated, but certain rights in and over the thing.5

“ Property may be defined as certain rights in things which pertain to persons and which are created and sanctioned by law. These rights are the right of user, the right of exclusion, and the right of disposition. A person’s right of property in things consists of the right to possess, use, and dispose thereof in such manner as is not inconsistent with the law of the land.”

Chief Justice Shaw, of Massachusetts, in speaking of this subject, says:

The word £ property ’ in the tenth article of the bill of rights, * * * should have such a liberal construction as to include every valuable interest which can be enjoyed as property and recognized as such.”

This court, in its opinion upon the demurrer, said:

“ Property has well been 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, the negation 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.”

*47Measured by the definitions quoted, the claimant has something more than a mere ownership of so much land and so many buildings. She has the right to use that land and those buildings to the point of utmost enjoyment and profit, and that right to use is property.

2. This court, in its opinion on the demurrer, said:

“ The rule of interpretation as to what shall be considered ‘ property ’ and as to what shall constitute a ‘ taking ’ of the same * * * has been somewhat modified in recent years and is doubtless more liberal to the owner than formerly. Mr. Sedgwick, writing more than forty years ago, foreshadowed the change by assuming to differ with the weight of authority at that time, * * *. He * * * maintains that an owner may be deprived of property though a particular piece may not be actually taken (Sedgwick’s Constitutional Laws, 2d ed., 456-458). The following are some of the authorities which seem to support the modification of the rule as noted.”

The court then cited *Pumpelly*v. *Green Bay Go.*(13 Wall., 166) ; *Manigault*v. *Springs*(199 U. S., 473, 484); *Chappell*v. *United States*(34 Fed. Eep., 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).

We wish to direct the court’s attention to the discussion of Mr. Pollock, in his work on Torts, page 423, where, after referring to the opinions of Lord Ellenborough and Lord Blackburn *á propos*the right to shoot across the land of another, he says:

“ The doctrine suggested by Ellenborough, if generally accepted and acted on, would so far be for the benefit of the public service that the existence of a right of *‘*innocent passage 5 for projectiles over the heads and lands of the Queen’s subjects would increase the somewhat limited facilities of the land forces for musketry and artillery practice at long ranges. But we are not aware that such a right has in fact been claimed or exercised.”

The court, in *Pumpelly*v. *Green Bay Co.,*referred to decisions to the effect that for consequential injury to the property of the individual arising from the prosecution of public improvements there was no redress, and said that—

“ we do not deny that the principle (i. e., no redress for *48consequential injuries) is a sound one in its proper application. * * * But we are of the opinion that the decisions referred to have gone to the uttermost limit of sound judicial construction in favor of this principle, and in some cases beyond it, and that it remains true that where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having’ any artificial structure placed on it, so as to effectually destroy or impair its usefulness,, it is a taking. * * * ” (Opinion, p. 181.)

The case at bar falls within the reason and the language of this case. The claimant’s real estate is actually invaded by physical material on the firing of a gun. The projectile from a gun is “ superinduced addition of material ” within the language quoted above. Projectiles when fired physically encroach on claimant’s land, which extends in contemplation of law *usque ad eoelum.*(Co. Litt., 4a; 2 Bla. Com., 18; 3 Kent Com., 401; *Lyman*v. *Hale,*11 Conn., 546.)

*United States*v. *Lynah*reaffirms the principle of *Pumpelly*v. *Green Bay*Co., that acts which involve physical invasion, depriving the owner of the use and enjoyment of his property and diminishing its value constitute a taking, although there has not been any formal appropriation of the legal title.

In *Chappell*v. *United States*(34 Fed. Rep., 673) is a case in point.

The court cited the case of *United States*v. *Great Falls Manufacturing Co.*(112 U. S., 645).

The gist of the action lies in the fact that the lawful use of the plaintiff’s land was incompatible with the purposes of the United States in erecting the beacon lights, and that, therefore, there was a denial to the plaintiff of the right to exercise such lawful rights in building structures upon his land.

It is to be noted that *Gibson*v. *United States*(166 U. S. B., 269) and *Transyortation Co.*v. *Chicago*(99 U. S. B., 635) present situations different in essence from the case at bar. In neither of these cases is there a *transfer*of a right in property. Although the plaintiff is deprived of access to his property, the defendant has not acquired the access of which the plaintiff has been deprived. The defendant has not assumed dominion over anything over which he did not *49formerly have dominion. Property is not taken unless it be acquired by the taker. A taking involves deprivation of the former owner coincident with the acquisition of the new owner. And both elements — gain and loss — must be present in every true taking. In the *Transportation Oo. case*and the *Gibson case*there is only one element present — that of loss. A valuable property right may have been destroyed, but it was not taken.

We may deduce that to constitute a taking of property by the United States there must be—

1. A loss of property by the owner;

2. An acquisition of the same property by the United States;

3. The transfer of the property must be evidenced by some physical encroachment or invasion of the owner’s land.

All the above elements are present in the case at bar.

The assumption of dominion by the United States of the space over the claimant’s soil involves a deprivation to the claimant by limiting his use and enjoyment of the land. The United States, by the same act, has acquired enlarged property rights which they had not formerly possessed. The transfer was of dominion over the identical space and was a necessary incident to the use of the fort. The physical encroachment is evidenced by the actual firing of shot over the land, as well as by the inclusion of the land in a fire range and the agitation of it by concussion.

The United States Government has the power and the right to fire the guns of its battery whenever and in what direction it desires. This right necessitates the dominion of .the space over the claimant’s land. Previous to the erection of the fort the claimant had the ordinary use of his land, which included the right to the exclusive use of the space above to an indefinite height. The right of the Government to fire through air. space is in derogation of his rights in it. The United States has now a perpetual easement which gives it the dominion over the air space and prohibits the claimant’s use.

It is submitted that the United States has taken the use of this land to the extent that'it has obtained the right to fire *50over it, to tbe derogation of the claimant’s use and enjoyment. This contention is supported by the cases above discussed.

See also, for a learned and exhaustive treatment of the law on this point, *Eaton*v. *Railway*(51 N. H., 504).

In *Manigault*v. *Springs*(199 U. S., 473), Mr. Justice Brown, after referring to *Pumpelly*v. *Green Bay Co., United States*v. *Lynah,*and other cases, says:

“ 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 the plaintiff’s lands, there is a taking; but otherwise where, as in this case, plaintiff is merely put to some extra expense in warding off the consequences of the overflow.”

In the case at bar we have a practical destruction, unavoidable by any expenditure or act of the claimant, just as real as in the case of the physical invasion of her soil by water. The use, enjoyment, profit to which she was entitled have been- as completely taken from her. The rights taken are property.

*Mr. Frederick De 0. Faust*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.

The vital question in the case turns upon the apportionment of flats on tidal waters in the State of Maine between adjoining proprietors of lands above high water, which of course is a purely local question, to be determined in accordance with the decisions of the courts of Maine. *(Water Power Oompa'ivy*v. *Water Commissioners,*168 U. S., 349, 358; *Barney*v. *Keokuk,*94 U. S., 324; *Packer*v. *Bird,*137 U. S., 661; *St. Louis*v. *Rutz,*138 U. S., 226, 242; *Shively*v. *Bowlby,*152 U. S., 1; 3 Farnham on Waters, p. 2483; *Emerson*v. *Taylor,*9 Maine, 42; *Treat*v. *Strickland,*23 Maine, 234; *Keomebec Ferry Company*v. *Bradstreet,*28 Maine, 374.)

From these citations it appears that the entire theory of the right or easement which the United States is alleged to have taken in the claimants’ property and upon which this action wholly depends, namely, the necessary use of the claimants’ lands over which to fire the guns, is without foundation both in fact and in law.

*51It is also equally clear from the evidence, irrespective of the question of the existence of a field of fire not over the claimants’ land, that it is not now, nor has it ever been, the intention or plan of the United States to fire the guns of this fort in any direction at any time or for any purpose so as to damage, by concussion or otherwise, adjacent private property.

Counsel places much emphasis upon the firing of these shots and insists that they were a physical encroachment or invasion of the claimants’ property of a character sufficient to bring the claim within the established rule that to constitute a taking of private property actual encroachment or physical invasion of the owner’s land must be shown. *{Pumpelly*v. *Green Bay Go.,*13 Wall., 166; *United States*v. Lyndh, 188 U. S., 445; *Ghappel*v. *United States,*34 Fed., 613.)

This same contention was vigorously urged at the first hearing of the case on demurrer upon a similar allegation in the original petition, but was disposed of by the court in the following terms:

“ 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.” *{Peabody*v. *The United*States, 43 C. Cls., 314.)

It is admitted that the shots were fired merely as a test of the guns and carriages, which was, of course, an essential part of the construction. Whatever injury, therefore, may have resulted from the concussion produced by this firing was clearly incidental to a use by the Govermnent of its own property, which by innumerable decisions has been held again and again not to be a taking of property within the meaning of the constitutional provision. *{Transportation Go.*v. *The United*States, 99 U. S., 642; *Badclif’s Executors*v. *Mayor, etc.,*4 N. Y., 195; *Gibson*v. *United States,*166 U. S., 275; *Chicago B. B. Go.*v. *Drainage Commissioners,*200 U. S., 561; *Scranton*v. *Wheeler,*179 U. S., 141; *Union Bridge Go.*v. *United*States, 204 IT. S., 364; *Bedford*v. *52
      *United States,*192 U. S., 217; *Monongahela Navigation Go.*v. *Goons,*6 Watts and S., 101; *Lancing*v. *Smith,*8 Cowen, 146; *Booth v. R. R. Go.,*140 N. Y., 262; *Eerdman*v. 7?. 72. (7c., L. E. (3 C. P. Div.), 168; *Beseman*v. *R. R. Go.,*50 N. J. L. E., 235; *Garroll*v. i?. 7?. *Go.,*40 Minn., 168;' *Stevens*v. *Paterson R. R. Go.,*34 N. J. L., pp. 532-549; *Berner r. Atlantic Dredging Go.,*134 N. Y., 156.)

And this result necessarily follows, irrespective of the question whether the Government’s use of its own property was justified or not, for, as declared by this court in its former decision—

“ The doctrine of *sic utere tuo’ ut alienum non laedas*has • no application in this case for the reason that if there has been any 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 not jurisdiction.” *{Peabody*v. *United*States, 43 C. Cls., pp. 14, 15.)

Barney, J.,

delivered the opinion of the court:

The above suits have been consolidated by stipulation, and for the purposes of this decision will be treated as one case. In fact, we see no reason why they were not originally brought as one case.

These suits are to recover compensation for property alleged to have been taken by the United States in the exercise of its power of eminent domain and for which no compensation has been made pursuant to the fifth amendment of the Constitution.

The original petition in this suit was demurred to by defendants, and this demurrer was sustained by the court. *{Peabody*v. *United States,*43 C. Cls. R., 19.) Pursuant to leave granted the petition was amended, evidence was submitted, and the whole case is now before the court for its decision upon the merits.

The case made by the claimants, as appears from the findings, is as follows: In the month of May, 1873, the Government purchased a tract of land containing about 70 acres on what is known as Garrish Island, which is located at the extreme southwest extremity of the State of Maine, at the *53mouth of the Piscataqua River, and is only separated from the mainland at high water by a narrow inlet. In the fol-. lowing year it began the erection of a battery on this reservation and continued operations to that end until about the year 1876, up to which time about $50,000 had been expended in the work. It does not appear that up to the latter date any guns had been installed in the battery, and the work seems to have been abandoned or neglected until 1898, when an allotment was made for the completion of this battery, and in pursuance thereto a battery consisting of three 10-inch guns was constructed on the old site. This battery was completed about June 30, 1901, and named *“*Fort Foster,” and is a part of the defenses of Portsmouth Harbor, which begins at the mouth of the Piscataqua River.

In 1883 the claimant Jennison became the owner of about 200 acres of land on Garrish Island, situated south and west of the Government reservation and fronting about 1 mile on the Atlantic Ocean. This land is peculiarly adapted for use as a summer resort on account of its shore front, bathing beaches, timber, springs, etc., and is otherwise of little value. The next year Mr. Jennison began the erection of a summer hotel thereon called the Pocahontas, which has been added to from time to time since, till at the time of the alleged taking it contained 90 guest rooms and had cost about $50,000. In the meantime he also built and furnished several cottages on this land to rent during the summer season, at a cost of about $16,000. This hotel and the cottages had been yielding Mr. Jennison considerable profit for several years prior to the alleged taking of the land by the Government. The hotel and cottages were built and in operation for some years before the reconstruction of Fort Foster, as stated, and the fort is located within 200 feet of the northwest corner of the claimant’s land and within 1,000 feet of the hotel.

In the month of June, 1902, the soldiers stationed at Fort Foster fired two of the guns there installed, for the purpose of testing the same, over and across the premises of Mr. Jennison at a target located several miles off the shore, and fired the other gun in the same manner in the month of September following. The effect of this firing, by way of concussion, was to do considerable damage to the hotel and cot*54tages by disturbing the foundation of the hotel, breaking glass, etc. None of these guns have since been fired, but they are kept in constant condition by a detail from a neighboring fort.

It appears from the findings that the erection of this fort and the installation therein of said guns in the manner stated has materially impaired the value of claimants’ land by standing as a constant menace to its quietude as a summer resort and thereby keeping from it probable guests and purchasers. The question, then, before us is, Whether such impairment of value brought about in the manner stated is a “ taking ” of the property of the claimants within the fifth amendment of the Constitution?

In an attempt to make the averment in the amended petition in this suit set forth a taking of claimants’ property within the meaning of the law, the substantial statement in that regard is that it was and is the intention and plan of the Government to fire the guns of Fort Foster over and across the premises of the claimants for practice and other purposes, and that none of said guns can be so fired for any effective purpose without the projectiles from the same passing over the claimants’ intervening land, and evidence has been furnished to sustain this averment.

The findings show (and there appears to be no dispute upon this subject) that if the dividing line between claimants’ land and the Government reservation between high and low water mark is a continuation in the same direction of the undisputed dividing line between said premises above high-water mark, the guns of this fort can not be fired toward the sea without the projectiles therefrom passing over and across claimants’ land. On the other hand, however, the findings show that if the undisputed boundary line between. the claimants’ and the Government’s land terminates at high-water mark, and the boundary line between them from said point to low water is the line bisecting the angle formed by two lines drawn from said point to low-water mark, .one at a right angle to a base line drawn between the two extreme points where the' claimants’ land touches the shore line at high water, the other at a right angle to a base line drawn between the two extreme points where the Government’s *55land touches the shore at high water, the guns of said Fort Foster may be fired for practice and for all other necessary purposes in time of peace without the projectiles passing over and across claimants’ land.

Hence the settlement of the location of this boundary line may be considered as decisive of this case. The law of the State of Maine as to boundary lines of contiguous proprietors between high and low water mark of course must be looked to in order to settle this question. *(St. Anthony Falls Water Power Co.*v. *Water*Commission, 168 U. S., 358, 389.)

The Colonial Ordinance of 1641 provides that the coast line of all lands in the State of Maine shall be the line of low-water mark, and while the ordinance makes no express provision for it, the courts of Maine appear to have decided that under this ordinance the flats lying between high and low water mark must be equitably divided between adjacent owners. It will readily be seen without illustration that such equitable divisions in many cases would not be effected by an extension over the flats of the lines bounding the uplands, as some of them might be so oblique as to almost entirely deprive some of the riparian proprietors of any part of the ocean beach. This question came before the courts of Maine many years ago, and the following rule as to such subdivision was adopted:

To divide flats between adjoining riparian proprietors, draw a base line from one corner, at high-water mark, of each lot to the other, and run a line from each end of this line at right angles to low-water mark. If, by reason of the' curvature of the shore, the lines diverge or conflict with each other, the gain or loss is to be divided equally between adjoining lot owners by bisecting the angles made by the diverging or conflicting lines. *(3 Farnham on*Waters, 2483;) *Emmerson*v. Taylor, 9 Maine, 42; *Call*v. *Carroll,*40 Maine, 31; *Dillingham*v. Roberts, 77 Maine, 284.

The following map ivill show the application of this rule to this-case:

The red line A-B represents the base line drawn from where claimants’ and Government’s land terminates at high-water mark to the point where claimants’ next dividing line terminates at high water. The red line A-C represents the *56base line of the same character relating to the Government reservation. The blue lines A-D and A-E are drawn at . right angles from said base lines and form the angle which bisected by the dotted line A-F gives the boundary line of the Government reservation and claimants’ land between high and low water mark. » If said boundary line were a continuation in the same direction of the dividing line between said premises, the same is substantially indicated by the blue line A-E, angling, however, a little too far to the south.

It will thus be seen that under this rule the Government is the proprietor of that part of the flats situated to the west of line A-F, which the findings show is sufficient territory over and across which to fire the guns at Fort Foster for practice or any other purpose in time of peace. Such being the case, it can hardly be contended that the firing of these guns, each of them once, in another direction so1 as to send the projectiles over the claimants’ land constitutes a “ taking ” of their property. We can only judge of what property, if any, the Government has desiged to have taken by that over which it has asserted some dominion, or from the possession or enjoyment of which it has actually deprived the owner. If the single discharge of its guns over the lands of the claimants caused them any damage, as it doubtless did, it was a loss over which, as against the Government, this court and no court has any jurisdiction.

The presence of Fort Foster and the probability and perhaps certainty that at times the guns there installed will be fired in time of peace for practice, and that such firing by concussion will injure the property of the plaintiffs, as well as disturb the quietude of summer resorters in its locality, is but consequential damage for which the Government is not liable.

Hence the petition is dismissed.

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