#### EARL H. FEHL v. THE UNITED STATES

[No. C-704.

Decided May 12, 1924]

*On Defendant's Demurrer*

*Eminent domain; talcing; otenership.*— Wliere the ownership of property at the time of the alleged taking is not set forth in the petition, the plaintiff can not recover for such taking.

*Same; statute of limitations.*— The statute requiring that suits shall be brought within six years after the cause of action accrues is not only a statute of limitations but is also jurisdictional.

*The Reporter's*statement of the case:

*Mr. Benj. F. Lindas*for the plaintiff.

*Mr. Ed/mond 0.*Fletcher, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

The allegations of the amended petition, to which defendant demurs, are substantially as follows:

That he is a citizen of the United States and a resident of the county of Jackson, State of Oregon, and also alleges true allegiance to the Government of the United States.

That he is now, and has been since the 14th day of May, 1921, the owner and entitled to possession of certain real estate described as follows:

“ The east 20 feet of the east half of lots eleven (11) and twelve (12) in block sixty-sis (66) in the original town, now city, of Medford.”

That the United States of America, through its officials and representatives, on or about the 13th day of March, 1911, took full and complete control and possession of said prop*683erty and appropriated all of it to its own use without the consent of claimant, and now refuses to pay said claimant the fair and reasonable value of said property; that having-taken said property and appropriated same to its own use the claimant herein is entitled to compensation thereof from the United States of America on an implied contract for the fair and reasonable value of said property, to wit, the sum of $3,000.

That such taking- and appropriation of said property was without due process of law, and was contrary to and in violation of the fifth amendment of the Constitution of the United States of America, providing that private property shall not be taken for public use without just compensation.

The defendant’s demurrer was sustained and the amended petition dismissed, with the following

MEMORANDUM BY THE COURT

- This case was remanded by an order entered January 21, 1924, which, among other things, required plaintiff to aver when the Government took possession of the property mentioned in the petition, by what authority it took possession, and who was the owner when the alleged tax sale occurred. The amended petition is silent upon the question of ow-nership prior to the alleged sale. It avers, however, that the Government took full control and possession of the property on or about the 13th day of March, 1911, and appropriated all of said property to its own use. If these averments are true, it may be seriously questioned whether a tax sale in any event availed to pass any title. However, the alleged taking was in 1911, and the cause of the action, if any, accrued more than six years before suit was brought. The statute providing that suits shall be brought within six years after the cause of action accrues is not only a statute of limitations but is also jurisdictional. See *Finn*case, 123 U. S. 227, 232; *Wardwell case,*172 U. S. 48, 52.

The amended petition is dismissed.