#### JOHN CADWALADER v. THE UNITED STATES

[No. B-20.

Decided March 31, 1924]

*On the Proofs*

*Eminent domain; requisition of land; claim of title 6y Government;*• *jurisdiction.■*— Where the Government takes possession of lan'd, claiming title to the same, there can be no promise to pay for such land, and the Court of Claims has no jurisdiction to consider a claim for compensation therefor.

*534
      *The Reporter's*statement of the case:

*Mr. Horace 8. Whitman*for the plaintiff. *Mr. Thomas F. Gad/walader*was on the brief.

*Mr. Edmund G.*Fletcher, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant. *Mr. Lisle A. Smith*was on the brief.

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

I. The plaintiff is a resident and citizen of the city of Philadelphia, State of Pennsylvania, and on the 16th day of October, 1917, was the owner of a tract of land of 10,000 acres, more or les's, in the first election district of Harford County in the State of Maryland. The tract lay between the Brush and Gunpowder Rivers on the east and west, respectively, and the Chesapeake Bay on the south, and up to and across the tracts of the Philadelphia, Baltimore and Washington Railroad Company on the north.

II. By an act of Congress passed on the 6th day of October, 1917, 40 Stat. 352, under the heading of “ Proving ground ” an appropriation was made and the purchase or condemnation of land authorized for a proving ground and for other purposes relating thereto, as will more fully appear by reference thereto.

III. In the month of July, 1917, the plaintiff learned that the Ordnance Department of the Army contemplated the acquisition of a large tract of land for a new ordnance proving ground and that a large tract, in which at least a part of the plaintiff’s land was included, was under consideration. The plaintiff authorized one Lanham, a reai estate broker, to offer his property if the Government desired it, for $525,000, the mansion house and adjacent grounds to be excluded and an offer was so made.

IV. On or about the 12th day of October the plaintiff was informed that persons unauthorized by him had trespassed upon his afores'aid lands, and that under orders from the defendant these persons were constructing spur tracks from the Philadelphia, Baltimore and Washington Railroad (Pennsylvania Railroad) over his land and that they were *535destroying timbers, fences, 'and crops belonging to Mm and bis tenants. Plaintiff went to Washington to see, and wrote to the Secretary of War in order to persuade the latter to lease the property, or if that were not possible to have a strip of land of up to 500 feet in depth along the Pennsylvania Railroad excluded from the proving ground.

V. Acting under and by authority of the act of Congress herein referred to the President of the United States issued a proclamation on the 16th day of October, 40 Stat. p. 1707, wherein it was ordered and declared that all that tract of land therein described, which description included the aforementioned lands of plaintiff south of the Philadelphia, Bal-' timore and Washington Railroad, w'as necessary for the purposes specified in the said act of Congress, and the proclamation further ordered as to lands lying within the limits of the proclamation which could not be procured by purchase on or before October 20, 1917, that the Secretary of War, or his duly accredited representatives, might take possession and title thereto, subject to the provisions of the act as to compensation to be paid therefor and all owners of land taken might appear before a commission to be appointed by the Secretary of War and present their claims for compensation in accordance with the said act.

VI. Thereafter the plaintiff still continued his endeavors to have the strip of land adjacent to the Pennsylvania Railroad excluded, and was told by the officer to whom he was referred by the Secretary of War that the final lines of the land necessary for the proving ground h'ad not been determined upon and that there might be a change that would be subsequent and announced in a second proclamation.

VII. The plaintiff was requested to appear 'at Aberdeen, Maryland, on November 15, 1917, before the commission appointed under the first proclamation, which commission was authorized to purchase the lands mentioned in said proclamation. The plaintiff appeai-ed before the commission, and was offered $400,000 for his entire tract of land and accepted the same, and signed a blank voucher for $400,000, which contained no detailed description of the land by metes and bounds, it being the understanding that the description was to be inserted in the voucher when the land was finally *536surveyed. Thereafter on December 14, 1917, the President issued another proclamation in which he declared certain lands were necessary for the purpose specified in the act of October 6, 1917, which lands included the land of the plaintiff.

The plaintiff was not paid the said sum of $400,000 until December 22, 1917, because all the lands to be taken had not been determined upon, and the payment was withheld until after the proclamation of December 14, 1917.

VIII. The plaintiff exercised rights of ownership over 'and retained possession of that part of the land which is the subject matter of this suit until January 25,1919. In April, 1918, the commission aforesaid desiring to perfect title to all of the land taken from the plaintiff and for which he had been p'aid forwarded to him a deed for the land lying between the railroad and the fence along the line of the proving ground, which deed ran in favor of the Pennsylvania Pailroad. The plaintiff refused to execute the deed, claiming that the land still belonged to him, and he 'also refused to execute a deed to the United States for said land.

IX. On January 25, 1919, the President issued a proclamation whereby he took over for the defendant the land of the plaintiff, which is the subject matter of this suit. In so far as the said proclamation affects this suit it reads as follows: “And whereas, settlement has been made with John Cadwalader for his entire tract of 8,000 acres, all of which was included in and taken over by the above proclamation, except two narrow strips outside of the boundary line as described therein, and the said owner has refused to quitclaim to the Government his title to the said strips so as to complete the title of the Government to the said tract. Now, therefore, in order to perfect the title of the Government to the land required for said right-of-way, and to the said strips of land formerly comprising a part of the Cadwa-lader property, I, Woodrow Wilson, President of the United States of America, pursuant to the authority vested in me by the said act of Congress, do hex-eby order and declare that the said lands are necessary for the pui’poses specified in the said appropriation, and I do hereby take over for the United States immediate possession of and title thereto, including *537all easements, rights of way, riparian, and other rights appurtenant to the said lands for use for the purposes specified in said act of Congress, the lands in question being more particularly described by metes and bounds as follows.” And the said proclamation further declares: “ Two strips of .land formerly comprising a part of the Cadwalader property, the value of which has been paid by the Government, but lying outside of the tract taken over by the President’s proclamation of December 14, 1917,” and there follows a description of said two strips by metes and bounds. See 40 Stat., pages 1923, 1924, 1925.

X. The plaintiff appeared before the commission in Baltimore, Maryland, and requested compensation for the two .strips of land which are the subject matter of this suit; no .attention was paid to his request.

The value of the 34.389 acres of land and improvement 'thereon is the sum of $20,000.

MEMORANDUM BT THE COURT

The facts are fully set out in the findings and disclose that the plaintiff sold to the Government his entire tract of land and accepted payment therefor. The entire tract so sold to the Government, and paid for by it, included at the time of the sale the two strips of land for the value of which the plaintiff is now bringing this suit. That being so, the plaintiff can not recover.

But even if the Government has not paid for these two strips of land, and if the plaintiff did not sell the said two strips to the Government when he sold the residue of his land, yet he can not'recover. For if he can recover, it must be upon an implied contract. And in order that a promise to pay may be implied, the property must be property to which the Government asserts'no title, and is taken pursuant to an act of Congress, as private property to be applied for public uses. In the case at bar the facts found preclude the implication of a promise to pay,- for the title of the property in question is not and was not conceded to be in the plaintiff. The proclamation of the President by which the property was taken asserts that when it was taken it was the property *538of the United States, and that the value of it had been paid for by the Government.

“ The law can not imply a promise by the Government to pay for a right over, or interest in, land, which right or interest the Government claimed and claims it possessed before it utilized the same. If the Government’s claim is unfounded, a property right of plaintiff was violated; but the cause of action therefor, if any, is one sounding in tort, and for such, the Tucker Act affords no remedy.” *Tempel*v. *United*States, 248, U. S. 121, 130; *Klebe*v. *United States,*263 U. S., 188, affirming 57 C. Cls., 160.