#### PORTSMOUTH HARBOR LAND & HOTEL CO.; CAROLINE E. PEABODY; AMORY ELIOT, ADMINISTRATOR OF THE ESTATE OF MARY R. PEABODY, DECEASED; S. ELLERY JENNISON; AND MARY M. JENNISON v. THE UNITED STATES 1

[No. 34452.

Decided February 20, 1928]

*On the Proofs*

*Eminent domain; firing of coast-defense guns.*— Where the Government sets up coast-defense guns that may be fired over plaintiffs’ lands, but does *not*so fire them, and the facts fail to show *573an intention to fire them in times of peace, there is no servitude imposed or intended to be imposed upon the said lands and there is no taking thereof.

*The Reporter's*statement of the case:

*Mr. Chmncey Hackett*for the plaintiffs. *Mr. James H. Lowell*was on the briefs.

*Mr. ’William* W.*Scott, with whom was *Mr. Assistant Attorney General Herman* J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The Portsmouth Harbor Land & Hotel Co. is a corporation formed and existing under the laws of Maine; Caroline E. Peabody is a single woman, a resident of Cambridge, Mass.; Amory Eliot, of Manchester, Mass., is the administrator of the estate of Mary Rantoul Peabody, late a resident of Cambridge, Mass.; Samuel Ellery Jennison and Mary M. Jennison, his wife, are residents of Kittery Point, Me. All the plaintiffs are citizens of the United States.

II. Gerrish Island is situated at the southerly point of the State of Maine, at the entrance of the Portsmouth (N. H.) Harbor, and is formed on its northerly side by an estuary known as Chauncey Creek, which varies in width from 10 to 200 feet, according to the condition of the tide. On its easterly and southerly side the island is bounded by the Atlantic Ocean and the Piscataqua River. The Piscataqua River, forming the western boundary, is about 114 miles in width at the island and separates the States of Maine and New Hampshire. The island is about three miles from the city of Portsmouth, and between it and that city lie Fort Constitution and the United States navy yard. Portsmouth, at the time of .the events hereinafter described, was a city of about 10,000 inhabitants. The island was served by the York Harbor & Beach Railroad, a branch line operated by the Boston & Maine Railroad, running from the extremity of York Beach through York, through Kittery to Portsmouth, and thence connecting with the main line of the Boston and Maine, eastern division. The railroad station from Gerrish Island was at Kittery Point Station on the mainland, north of Chauncey Creek, about *iy2*miles from the hotel site. *574There was a trolley line, known as the Portsmouth, Dover & York, also on the mainland, running near the bridge over Chauncey Creek, about one mile from the hotel lot.

The sea face of this island is bold and rocky, interspersed with a few short beaches, while the harbor side of the island is a succession of sandy beaches interspersed with ledges running out above high-water mark. The land rises back from the sea and harbor fronts in a series of terraces, the highest point of land being nearly in the center of the island. It was profusely wooded back from ,the shore 750 to 1,000 feet, but contained many natural openings and artificial clearings. Natural attractions abounded.

III. On May 15,1873, Joseph F. Wiggins conveyed to the United States a tract of land on the west side of Gerrish Island, fronting on the entrance to Portsmouth Harbor, containing about 30 acres of land above high-water mark, and on May 29, 1873, Adna B. Lane conveyed to the United States a tract of upland adjoining the land conveyed by said Wiggins on the south and also fronting on the entrance to Portsmouth Harbor, containing 10 acres with the flats appurtenant thereto. The total front of the two tracts on the entrance to Portsmouth Harbor at.high-water mark is about 1,000 feet, and this front is rapidly increased over the flats according to the Maine law, as shown by the dotted line A to F in the accompanying map. These two tracts of land with the flats appurtenant thereto constitute the Gerrish Island Military Reservation, on which Fort Foster is located.

IV. On February 8, 1884, Samuel Jennison conveyed by warranty deed to Samuel Ellery Jennison the “ Seaward Farm” on Gerrish island, in the town of Kittery, Maine, containing about 200 acres, of which approximately 180 acres were above high-water mark. On April 15, 1884, Samuel Ellery Jennison, by warranty deed, conveyed in consideration of one dollar to Mary M. Custor the “ Seaward Farm.” Thereafter the said Samuel Ellery Jennison married the said Mary M. Custor. On July 1, 1893, Mary M. Jennison and Samuel Ellery Jennison conveyed by deed the “ Seaward Farm ” to Frederick M. Sise, and on the same day the said Frederick M. Sise conveyed the “ Seaward Farm ” and salt marsh to Samuel Ellery Jennison. Thereafter, with the *575exception of a few small parcels sold to different persons, Samuel Ellery Jennison held title to the “ Seaward Farm ” until August 20, 1902, when he conveyed the same to the

Portsmouth Harbor Land & Hotel Company, which assumed the payment of two outstanding mortgages described in Findings V and VI. A copy of the deed from Samuel El-lery Jennsion and wife to the Portsmouth Harbor Land & *576Hotel Co. is attached to the petition as Exhibit A and is made a part hereof by reference. Samuel Ellery Jennison owned all of the stock in this corporation except a few shares held by certain persons in order to give them authority to act as directors and officers of said company. The relative locations of “ Seaward Farm ” and the Government reservation are shown by said map hereto attached.

Y. On December 30, 1897, to secure a loan of $12,000, payable in three years, Samuel Ellery-Jennison and Mary M. Jennison gave a mortgage to Mary E. Peabody, a single woman, on 20 acres, more or les,s, of the western part of the “ Seaward Farm ” south of the military reservation and bordering on the Atlantic Ocean and the entrance to Portsmouth Harbor, on which were located the Hotel Pocahontas and certain other buildings connected therewith. There was a covenant in the mortgage that the right of redemption of the mortgaged premises must be exercised within one year “ after the commencement of foreclosure by and of the methods now provided by law.” The-said mortgage is attached to plaintiff’s petition as Exhibit B and is made part of this finding by reference thereto. On February 3, 1914, the mortgage wa^ assigned by Amory Eliot, administrator of the estate of Mary E. Peabody, deceased, to Caroline E. Peabody. The payment of this mortgage' was assumed by the said Portsmouth Harbor Land *&*Hotel Company in the said deed from the Jennisons to that company. On February 3, 1914, the Portsmouth Harbor Land & Hotel Company, to secure a loan of $2,000, payable in six months, gave a second mortgage on said 20 acres of the “ Seaward Farm ” to Caroline E. Peabody. A copy of the assignment of the said first mortgage to Caroline E. Peabody and a copy, of the second mortgage to Caroline E. Peabody are attached to plaintiffs’ petition as Exhibits C and D, respectively, and are made part of this finding by reference thereto.

The said Samuel Ellery Jennison and Mary M. Jennison having defaulted in the conditions of the mortgage to the said Mary E. Peabody, the said Caroline E. Peabody on September 30, 1919, in accordance Avith the laws of the State of Maine in force at the time, foreclosed said mortgage. *577(Revised Statutes of Maine, 1916, chapter 95, sec. 5, par. 1, and sec. 7.) The .said mortgagors did not exercise their right of redemption, and the said Caroline E. Peabody has been in possession of the mortgaged premises ever since.

VI. On January 22, 1900, Samuel Ellery Jennison and Mary M. Jennison, to secure a note of $22,000 of even date, gave a mortgage to the Saco & Biddeford Savings Institution to become due in one year, with interest at the rate of 6 per cent per annum, payable semiannually. The property described in the mortgage consisted of 155 acres of the “ Seaward Farm ” east of the 20 acres of land mortgaged to Mary R. Peabody, on which the Pocahontas Hotel stood, and lay southeast, east, and northeast of the military reservation, and its eastern and southern line bordered on the Atlantic Ocean. The payment of this mortgage had been assumed by the said Portsmouth Harbor Land & Hotel Company, as already stated. The mortgage contains a covenant that “ the said mortgagors and mortgagee hereby agree upon one year as the time in which this mortgage and the right of redeeming the premises shall be forever foreclosed by any of the modes prescribed by statute for the foreclosure of mortgages of real estate.” The mortgagors defaulted in the conditions of the mortgage and the Saco & Biddeford Savings Institution on June 30, 1915, foreclosed the said mortgage in accordance with the laws of the State of Maine. (Revised Statutes of Maine, chapter 92, sec. 3, Par. Ill, and sec. 4, as amended by chapter T63 of the act of 1907.) The said mortgagors never exercised their right of redemption and the Saco & Biddeford Savings Institution became and is the owner, and has remained in possession, of the said mortgaged premises ever since.

VII. At the time of Jennison’s purchase in 1884 there was on the property a farmhouse known as the “ Seaward ”; also a small farmhouse, barn, stable, and blacksmith shop. The new owner began immediately to improve the property for a summer resort, and in 1885 erected the Hotel Pocahontas. This consisted of 40 guest rooms, was later enlarged, and in 1902 had about 90 guest rooms and could accommo*578date at that time about ISO guests. It was a plain, substantial building, quite simple. It had no private bathrooms, elevators, nor fireplaces in the bedrooms. Besides the hotel, the owner erected five guest cottages of from 9 to 11 rooms, with plumbing, a bathhouse, steamboat pier, steam-engine house, ice house, stable, carriage house, gasoline-engine house, water tower, and also two cottages for servants. The property contained two ponds, one about a quarter to a third of a mile from the hotel and the other near a road running through the center of the island, about one-third or a quarter of a mile from the sea. These ponds were fed from springs and the natural watershed. There was also on the property a good spring, an excavated well, and an artesian well. To the spring was attached a 60-foot power 12-foot wheel windmill, with a windmill pump and connected by pipes to the water tower, which was of 17,000 gallons capacity. The spring water was also piped directty to a tank in the hotel for drinking purposes. At the excavated well was a 45-horsepower steam boiler and pump, which had a capacity of 50 to 60 gallons per minute. This supplied water for the stables and for toilet purposes. At the artesian well was a 60-foot power windmill and a deep-well pump.

The roads on Gerrish Island were unimproved country roads. The amusements for summer visitors consisted of bathing, sailing, fishing, horseback, carriage riding, and tennis.

Summer hotels of the type of the Pocahontas about the time it closed were out of date and were not running at a profit in that pai’t of Maine. Similar hotels more attractively located about nine miles south of Gerrish Island in the Isle of Shoals had not been running at a profit since 1900.

The said 20 acres of the “ Seaward Farm ” on which the hotel stood, including improvements thereon, were in 1902 reasonably worth the sum of $80,000. The said 155 acres of the “Seaward Farm” embraced in the mortgage to the Saco & Biddeford Savings Institution, including all of the improvements thereon, were reasonably worth the sum of $120,000 in 1902.

VIII. Forts Constitution, Stark, and Foster form a system of coast-defense batteries for the protection of Ports*579mouth Harbor, N. H. The land for the erection of Fort Constitution was purchased and the fort was constructed the latter part of the eighteenth century. Fort Constitution was and still is the headquarters for the garrison of the three forts, and it is here that the barracks for the accommodation of the men are located, and from here detachments of troops are detailed for duty at Forts Stark and Foster, usually 10 men at the former and 6 men at the latter, to take care of the guns and carriages and keep them in serviceable condition. Fort Stark is located in New Hampshire about one mile south of Fort Constitution at “Jerry’s Point” on the west side of the Piscataqua River at its mouth, and about a mile and one-third southwest of Fort Foster. .Fort Foster is located on the east side of the Piscataqua River on Gerrish Island, Maine, about one mile southeast of Fort Constitution. Fort Stark was established as the principal defense-to Portsmouth Harbor, and is located well below the south end of Gerrish Island, and commands an unobstructed field of fire eastward over the roadstead, the entrance to the river and harbor, and toward the Atlantic Ocean. The lands upon, which Forts Stark and Foster are located were acquired by-purchase in 1873. At the time of the transactions hereinafter described the armament of Fort Constitution consisted of an 8-inch battery of two guns and a 3-inch battery of two guns; Fort Stark, a 12-inch battery of two guns, a 6-inch battery of two guns, and two 3-inch batteries of two guns each; Fort Foster, a 10-inch battery of three guns and a 3-inch battery of two guns. All of the 3-inch guns were intended to protect mines that might be laid in the channel of the river and harbor.

IX. By the act of February 21, 1873, 17 Stat. 468, 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 Stat. 25, and February 10,1875,18 Stat. 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 40 acres of upland, more or less, north and west of and abutting *580upon the “ Seaward Farm,” and began to construct thereon, in June, 1873, a 12-gun battery capable of firing across the harbor entrance, estimated to cost $45,200, under the supervision of the Chief of Engineers of the United States Army. In 1876 the work had reached an advanced stage of construction and $50,000 had been expended thereon. The breast-height wall's of the fortification were finished and the gun platforms were built except laying the irons.

Plans were subsequently prepared for the 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 Stat. 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. Battery Bohlen was located on the site of the uncompleted battery and its plans differed materially from the old plans. The fort was practically completed on June 30, 1901, transferred to thé Coast Artillery in December, 1901, and named “ Fort Foster.” No part of the fort encroaches upon the land of the plaintiffs. Fort Foster is located north of the 20 acres of the “ Seaward Farm ” on which the hotel' was built, and about 300 feet from the nearest point of said 20-acre lot, and about 1,200 feet from the site of the Pocahontas Hotel. The original battery as designed in 1873 ran parallel with the Piscataqua River; Battery Bohlen faces south. The hotel is southeast of the battery. At the time of the completion of Fort Foster the hotel and cottages described in Finding VII were already built and in use.

X. The southern line of the military reservation running westward terminates at A, the high-water mark as shown on the accompanying map, then the boundary line of said reservation over the flats runs with the dotted line A-F to *581the ocean. Projectiles from the 10-inch gams of Battery Bohlen can be fired exclusively over Government land for the testing of gun carriages or errors in the guns or for any purpose for which it is necessary in time of peace to fire said guns, and at all ranges for which such guns are practicable. It was a duty well understood in seacoast artillery that a battery commander should not fire over land where it might cause damage if it could be avoided. Coast-defense batteries almost without exception have the direction in which their guns can be fired limited by adjacent property of private owners.

XI. The Government on or about June 22, 1902 fired one shot each from guns Nos. 1 and 2 at a target offshore for the purpose of testing their carriages and their installation generally. The projectile passed over a corner of the western part of the “ Seaward Farm,” then owned by Samuel Ellery Jennison. The concussion from these shots broke a number of windows in the hotel and cottages, some crockery, knocked bricks off a cottage chimney, and caused some damage to the hotel foundation, amounting in all to $150. On September 25, 1902, the third or easternmost-gun of the battery was installed and fired, the projectile passing over a corner of the westernmost part of the 20-acre lot which had been conveyed to the Portsmouth Harbor Land & Hotel Company.

XII. The profits realized from the Hotel Pocahontas for the summer season of 1902 amounted to $5,951.40. For the season of 1903 there was a loss of $2,700 and for the season of 1904 a loss of $1,915. During the 1903 season the hotel was comfortably filled with guests. At the end of the 1904 season it was closed and was never thereafter opened. Mr. Cotton, of the law firm of Cotton & White, who represented the plaintiffs in the first suit, advised Mr. Jennison to close the hotel. In 1902 the five cottages — Rock Ledge, the Weirs, Crow’s Nest, Pinecroft, and the *“*Seaward Homestead ” — and the little farmhouse rented for $4,050. In the season of 1903 all of the cottages except one were rented, and in 1904 four were rented, and in 1905 three were rented. The hotel building, its grounds and beaches, and other build*582ings and structures were thereafter allowed to deteriórate, and in the year 1920 the hotel building was razed. Whether any of the cottages or other buildings were rented after 1905, before they were repaired by the Saco & Biddeford Savings Institution in 1917, is not shown by the evidence. The first suit was brought in February, 1905,’ 43 C. Cls. 5, 46 C. Cls. 39, 231 U. S. 530.

XIII. On November 23, 1914, one shot was fired from gun No. 1 and two shots from gun No. 2; on August 26,1915, two shots were fired from gun No. 3; and on November 15, 1915, one shot was fired from gun No. 2. These shots were fired for the purpose of testing certain changes made a short time before in the gun carriages. An attempt was made at these tests to avoid firing across the 20 acres then owned by the hotel company, but owing to misinformation given to the ■officer in charge as to boundary lines the shots passed over a small corner of the western part of said land. It does not appear that any damage was done to the hotel company’s buildings or other improvements by these shots. It was after these firings that the second suit was filed in June, 1915, 53 C. Cls. 210, 250 U. S. 1.

XIV. In handling these guns the detail charged with keeping them and their carriages in serviceable condition would point the unloaded guns in various directions over and across the 20-acre lot and sometimes in the general direction of the buildings. Such guns are not maintained in a loaded condition. No orders were ever given to the commander of the Coast Artillery at Portsmouth to fire over plaintiffs’ land, and it does not appear from the evidence that there was any intention to fire the guns of Battery Bohlen over such land in time of peace.

XV. Before firing the guns of Battery Bohlen in 1914 and 1915 notice was given by the officer in charge to all near-by residents, including the occupants of the hotel and cottages on the land in question, of their purpose to fire, and this notice was given in order that such parties might take precautions such as the opening of dooi-s and windows to avoid possible damage by concussion.

XVI. After the entrance of the United States into the World War in April, 1917, ,it became important to take stock *583of heavy guns on hand available for foreign service, and a list of guns that could be spared from seacoast batteries was made, and this included the 10-inch guns of Battery Bohlen. The 10-inch guns of Battery Bohlen at Fort Foster were dismounted in September, 1917, and carried to New York City for transportation to France. The disappearing carriages were not removed. These guns were returned to Fort Foster in the fall of 1920 and remounted ,in Battery Bohlen, and then two rounds from each gun were fired on December 8, 1920, for the purpose of testing their carriages and installation. The evidence does not show that any of the projectiles or gases at these tests passed over any part of the land in question.

All of the shots fired by the guns of Battery Bohlen in 1902, 1914, 1915, and 1920 were fired by the Ordnance Department for testing the guns or carriages before turning them over to the Coast Artillery. No shots have ever been fired by the Coast Artillery with the guns of Battery Bohlen. The Ordnance Department has charge of all artillery guns and equipment and makes all the tests of guns and carriages before turning them over to the proper branch of the artillery.

The third suit was brought on February 10,1920, 56 C. Cls. 494, 260 TJ. S. 327.

XVII. The installation of a standard fire contro,1 costs about $15,000, and is a system of wires or cables connecting two observation stations on the coast with a central station at the battery for controlling or regulating the fire of the heavy guns of a coast-defense battery. It consists of a central station comprising the battery commander station and a plotting room located at the battery and a carefully measured base line of considerable length near the coast, with an observation station usually of reinforced concrete protected by earth bombproof construction at each end, designated as the primary and secondary stations. These stations are each connected by wires or cables with the central station at the battery and with each, other. Observers at these stations fix by triangulation with angle-reading instruments a target on the water offshore and communicate *584,its position to the central station, where the target is immediately located on the plotting board by a mechanical device and its position telephoned to the battery. Plans for a fire control for Battery Bohlen at Fort Foster were drawn by the engineers in 1906, but no permanent or other fire control was installed at Fort Foster. Base-end stations are not used for locating targets for 3-inch batteries. Coincident range finders are used for this purpose, and a permanent range finder of this type was erected for the 3-inch guns of Battery Chapin.

In compliance with requests by the defendant, the Saco & Biddeford Savings Institution on April 17, 1917, gave the Government permission to install searchlights, and on September 5, 1917, to install an observation station and lay a cable on its land on Gerrish Island “ free of i’ent during the continuance of the war.” This permission to install searchlights and observation station and lay a cable was confirmed by a letter of September 8,1917, from the treasurer of the institution to the commanding officer at Fort Constitution. In response to a request of Captain Locklin, Miss Belle H. McClure, on August 22, 1917, and September 14, 1917, gave to the commanding officer of coast defense at Portsmouth Harbor permission to use a portion of her estate on Gerrish Island “ called Guard Hill, for Government purposes during the war.” The McClure land adjoined the *“*Seaward Farm.”

On September 28, 1917, the commanding officer at Fort Constitution asked permission from the Saco & Biddeford Savings Institutiton to use temporarily as quarters for *“*an observing detachment of two to six men ” one of the rooms on the lower floor of the Hotel Pocahontas. It does not appear whether any request was addressed to the owners of the 20-acre tract. It was difficult at the time permission was asked for establishing these temporary stations to determine who owned all the different tracts between the reservation and the ocean shore line. After receiving the permission described above the Government proceeded to establish a temporary fire-control system for the use of the 12-inch battery at Fort Stark on the opposite side of the Piscataqua *585Elver. For this purpose the cable already connecting Fort Stark and Fort Foster was to be utilized in transmitting information. A primary observation station was established 150 yards in the rear of Cedar Point and approximately 800 yards northeast of the Pocahontas Hotel. This station consisted of a small three-wall inclosure • of concrete without roof or framework. The secondary observation station was located at the other end of the base line about 50 yards south of the Pocahontas Hotel, and was a framework about 10 feet square of 2 by 4 lumber to support canvas sides and top. There were two wooden pedestals in this station for observation instruments. These two stations were of temporary character. Cables inclosing the necessary wires were run underground from these two stations to Fort Foster, where they connected with the cable between Fort Foster and Fort Stark, so that the information showing the position of the target would be transmitted to Fort Stark. There was also a wire connection between the primary and secondary stations at either end of the base line. These stations were abandoned on the cessation of hostilities. About 40 feet west of the Pocahontas Hotel a shack covered with rooBng paper was erected for a searchlight station. Three Avires ran from this station to Fort Foster. A searchlight could not be procured for it and it was never used. This station was also abandoned on the close of hostilities. The cables and wires from these stations ran partly over the land of the savings institution and partly over the 20-acre tract. During the period of the construction of these stations and their occupancy there were no 10-inch guns at Fort Foster, they haA'ing been removed, as above stated.

The authorization for the erection of said stations was contained in letter to headquarters, coast defense, Portsmouth, dated December 21, 1917, stating: “Permission has been secured in writing for their occupancy during the period of the war.”

XVIII. Fort Foster was never garrisoned and no target or practice firing was done there. The quarters at the fort-consisted of a small four-room house. Its batteries,.Battery Chapin, of two 3-inch guns, and Battery Bohlen, of three *58610-inch guns, were kept in serviceable condition for defensive use by a small detail from Fort Constitution, except for the period when they had been dismounted in September, 1917, and remounted in December, 1920.

XIX. On May 23, 1901, the Saco & Biddeford Savings Institution took a mortgage for $5,000 from William L. White on a lot of land on the south side of the road leading to the Pocahontas Hotel, on which two cottages, “ The Pine-croft ” and “ The Moorings,” were located, and having a front of 110 feet on the ocean. The said mortgage was to become due and payable $1,000 in one year and the balance in three years. This mortgage provided that the right of redemption might be foreclosed in one year. The mortgagor having defaulted in the condition of the mortgage, the Saco & Biddeford Savings Institution foreclosed the same June 29, 1915, and took possession of the premises in accordance with the laws of Maine, and the said mortgagor has never exercised his right of redemption. (Revised Statutes of 1903, chapter 92, sec. 3, Par. Ill, and sec. 4, as amended by chapter 163 of the act of 1907.) The Saco & Biddeford Savings Institution was also given a quitclaim deed, dated January 23, 1914, by the inhabitants of the town of Kittery, executed by the treasurer of the town, in consideration of the sum of $2,017.81 for taxes paid by it on said lands, for the lot on which the two said cottages stood, and the “ Seaward Farm” foreclosed June 30, 1915, by said institution heretofore described in Finding VI. All the cottages except one were repaired and painted and three of them were fitted with furniture purchased at the auction sale of the furniture of the Pocahontas Hotel by Mr. Jennison in October, 1915. They had been placed in condition, all except one, for renting by October 23, 1917. The Saco & Biddeford Savings Institution also made a contract with the town of Kittery to lay its water pipes to supply the cottages, and agreed to pay a certain rate for five years for its own cottages, provided that the owners of 10 cottages took the water; and it further agreed to pay any difference between its rate and the- rate paid by other parties owning cottages. The bank also rebuilt the road leading to “ Seaward Farm ” house and also contributed to the town of Kittery for repairs *587on its roads leading to these buildings. Since 1902 the value of similar property in the neighborhood of Fort Foster has increased over 75 per cent.

XX. During the year 1902 there were, and up to the present time there still are, a large number of hotels and United States forts where the conditions of location are similar to those presented by the Hotel Pocahontas and Fort Foster. Sometimes the proximity of a fort with its garrison, music, parades, and dancing, is an element of attraction. The Chamberlain Hotel and Fort Monroe nearby were similarly situated with relation to each other, as also were the Cliff House and Fort Miley near San Francisco, and Fort Story on Cape Henry and Virginia Beach. At the latter place the buildings approached close to the fort and town lots had to be purchased for the Government’s observation towers for the fire-control station.

XXI. The petition filed in this court during the December term, 1914, in the name of Portsmouth Harbor Land and Hotel Company et al. docket No. 38079 (see 53 C. Cl's. 210, 250 U. S. 1), was signed by Mr. Chauncey Hackett, the attorney of record for plaintiff, and was verified by him as such. The rules of the court required the filing by an attorney bringing suit of a power of attorney or proper writing evidencing his employment, and also required that petitions and other pleadings should be signed “by the attorney of record.” The rules make provision for the substitution of another as attorney of record upon the production of a power, of attorney or other- proper instrument executed by the parties in interest.

On December 8, 1917, a motion was filed by Frank W. Hackett, the father of Chauncey Hackett, in which it was stated that the latter had entered the service of the United States as an officer of the Reserve Corps, and asking that the court allow Frank W. Hackett to be substituted as attorney of record. This motion was accompanied bj? a duly executed power of attorney from the Portsmouth Harbor Land and Hotel Company, dated December 5, 1917, constituting and appointing Frank W. Hackett as “ its true and lawful attorney ” for it and in its name to prosecute said suit, and also accompanied by a similar power of *588attorney of the same date, duly executed by Samuel Ellery Jennison and his wife appointing Frank W. Hackett as attorney to prosecute this suit, and also accompanied by a separate power of attorney from Caroline E. Peabody appointing Frank W. Hackett as attorney to prosecute this suit. Upon the presentation of this motion and the accompanying powers of attorney, the motion was endorsed allowed without prejudice to any interest of the former attorney, and thereafter pleadings were signed in the name of Frank W. Hackett as attorney of record, usually accompanied with the name of John-Lowell, “of counsel.” Bequests for findings of fact had been filed in this case signed by Chauncey Hackett, attorney of record, accompanied by John Lowell and James A. Lowell, of counsel.

On December 8, 1917, additional or amended requests for findings of fact were filed, signed Frank W. Hackett, attorney for plaintiff, and the names of John Lowell and James A. Lowell, of counsel, appear thereon. The case came on for trial. Frank W. Hackett and John Lowell appeared for the petitioners and the case was argued by Mr. John Lowell, whose name appeared on all of the briefs. The court having thereafter rendered its opinion and filed its findings of fact on the 25th day of February, 1918, an application for appeal in proper form was presented on the 28th day of February, 1918, signed by Frank *W.*Hackett, attorney of record, and the same was allowed. At that time Frank W. Hackett had been for many years and was a practicing attorney -in the Court of Claims. The transcript of record for appeal to the Supreme Court was given to Mr. Hackett on March 5, 1918. No motion was made to withdraw the application for appeal.

Frank W. Hackett was 75 years of age in 1916. The court was not apprised of any failure of any of his mental powers. It now appears that he had symptoms indicating senile failure from -a mental standpoint and the condition gradually crept on him. By 1921 this condition had advanced considerably to that of senile dementia. The appeal taken in the case was without consultation with Mr. Lowell, of counsel. Exhibit D to the petition is a correct copy of the affidavit of Frank W. Hackett.

*589The court decided that plaintiffs were not entitled to recover.

1

 Certiorari denied.

Campbell, *Ohief Justice,*

delivered the opinion of the court:

This case is before the court upon the facts. It has been decided that the amended petition- states a cause of action. *Portsmouth Harbor Land & Hotel Company case,*260 U. S. 327. It is there stated that “ similar claims in respect of the same land based upon earlier acts of the Government have been made before and have been denied,” citing the *Peabody case,*231 U. S. 530, and the *Portsmouth Harbor Land & Hotel Company case,*250 U. S. 1. The earlier of these suits was brought in March, 1905; the next was brought in June, 1915; and the original petition in the present suit was filed in February, 1920. For convenience of reference they will be referred to as the first, second, and instant suits. While these first and second suits involved claims based upon earlier acts of the Government, it is to be noted that there is a difference of parties and that the land owned by any of the parties to the instant suit is very much less than that claimed to have been taken in the first suit. Notwithstanding the averments appear to include a claim for all of the land, it must ‘be confined to that part which is owned by a party or parties to the suit, and, as we show later, the claim is for a parcel of about 20 acres of upland on which at one time stood a hotel and in which only one of the parties plaintiff had any title or interest when the petition was filed. The hotel itself had been razed. It is to be noted also that the opinion of the Supreme Court on the question of the demurrer does not question or qualify either of the two earlier opinions. On the contrary, the controlling principles as announced in the first suit is quoted and approved, 260 U. S. 329. The two first suits must be taken as *res adjudicóla*upon the issues involved, and while it is said in the opinion by Mr. Justice Holmes (p. 330) that “ the fact that the evidence was not sufficient in 1905 does not show that it may not be sufficient in 1922,” and because of this condition the evidence adduced is to be considered in ascertaining its suffi*590ciency to establish the case alleged, it is to be observed that generality of averment can not take the place of proof. There is proof of the firing of the guns in 1902, made the subject of the first suit, and of firings in 1914 stated in the second suit, and these, it has been decided, did not constitute a taking of plaintiffs’ property or the imposition of a servitude. But it is said that “the repetition of those acts through many years and the establishment of the fire control may be found to show an abiding purpose to fire when the United States sees fit, even if not frequently, or they may be explained as still only occasional torts.” *Portsmouth Co. case, supra*(p. 330).

What, then, is the new or additional evidence to establish the averments of the petition? By an amendment, filed after a demurrer had been sustained to the original petition, it is alleged that “ since the termination of hostilities and subsequent to the filing of the petition ” the United States “ have set up the said guns so as to fire over and across the land of said claimants, and have set the guns as aforesaid with the intention of firing and of pointing them as aforesaid over and across the land of the said claimants,” and further have in the use of said fort discharged all of said guns on or about the 8th day of December, 1920, “ over and across the said land.” The petition was filed February 10, 1920, the amendment was made in March, 1921, and the firing mentioned occurred in December, 1920. The facts establish that from the time of the bringing of the second suit in June, 1915, which complained of firings of the guns “ on or about November 23, 1914,” to the time of bringing the instant suit in 1920 not a gun had been fired at Fort Foster. Indeed, from the fall of 1911 until after the instant suit was brought there were no guns at Fort Foster to be fired, with the exception of two small-caliber guns at Battery Chapin, which have never been complained of, and, so far as that is concerned, are not shown to have ever been fired. The complaint in all the suits has been of 10-inch guns. These were dismounted in 1917 after the United States entered the World War and were removed to New York for shipment to France. They were not sent to France but were returned to Fort Foster in the latter part *591of 1920. When the petition was filed they had not been remounted. Clearly there is nothing in this situation to sustain a right of action. But in December,, 1920, the guns having been remounted, were fired for the definite purpose of testing their installation. This firing was necessary and was done under the direction of officers of the Ordnance Department. Likewise, the firings of 1902, and again in 1914, were done by details under the direction of the Ordnance Department. Whether the guns were fired by one or another branch of the service can not justify a wrong, if any was committed, but the authorized firing and the purpose of it are facts to be considered when we come to determine the Government’s intention in the premises. The setting up of the guns, the adjustment of the carriages, the decision that they are in condition for use, and the making of necessary changes or repairs are duties devolving on the Ordnance Department. When this duty is discharged the guns are turned over to the Coast Artillery, which thereafter controls their firing or manipulation. Hence it was that in 1902, after the Ordnance Department had mounted the 10-inch guns, its officers directed them to be fired in order to determine their installation and suitableness. They were then turned over to the Coast Artillery. Again in 1914 some changes were necessary in the gun carriages. The Ordnance Department again took charge, made the alterations, and fired the guns to ascertain that the work had been efficiently done. This being found, the guns were again put in charge of the Coast Artillery.- In 1920, after it was decided to remount the guns at Fort Foster, from which they had been removed in 1917, as already stated, it again became the Ordnance Department’s duty to perform the work and put the battery in a condition of efficiency. That being done, the guns were transferred to the management and control of the Coast Artillery. They have at no time been fired by the Coast Artillery, in whose general charge they have always been, except in the instances stated, nor is there any proof or reasonable deduction to be drawn that this branch intends to fire the guns at all in times of peace. It has never done so. It can not be maintained that the Government may not establish coast defenses on its *592own property. The remounting of the guns in 1920, notwithstanding their proximity to the land in question, does not give a right of action. *Peabody*case, 231 U. S. 530, 539. Firing them, as was done in December, 1920, under the conditions and for the purposes already stated, does not support an action any more than the firing in 1902 or1 that in 1914 gave a right to recover damages. To say that such guns may be installed, but may not be fired to test the machinery that manipulates or bears them, would be to defeat the very purpose for which coast defenses are erected.

It would seem, however, from the petition that the contention is that the guns, when discharged at all, must be fired over the land in question. Such is the plain implication of the averments, and certainly it is alleged that the guns were fired over this land in 1920. The proof does not sustain the latter allegation and fails to show the direction of the fire directed in 1920 by the officers of the Ordnance Department. Nor can the other contention be sustained. The guns can be fired entirely over and across Government property without impinging in the least on the land in question. This was pointed out by Judge Barney’s opinion in the first suit, *Peabody*case, 46 C. Cls. 39, 55. The line of division of the flats appurtenant to the 20-acre parcel and the Government reservation in accordance with the rule established by the Maine courts is shown on the map attached to the findings by the line A to F. The rule is thus stated by Judge Barney: “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.” To sustain the rule there is cited *Emerson*v. Taylor, 9 Maine 42, and some other cases. After illustrating the rule by lines on map attached to the opinion, it continues: “ 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 to F, which the findings show is sufficient territory over and across which *593to fire ,the guns at Fort Foster for practice or any other purpose in time of peace.” The view thus expressed remains the view of this court. The plaintiffs have taken issue with it, maintaining that the rule of *Emerson*v. Taylor, *supra,*is not the correct rule, and saying in their brief that the case relied on “ has been long since overruled.” But it is proper to say that when the Government’s brief called attention to the reaffirmance of the doctrine of *Emerson*v. *Taylor*by the Supreme Judicial Court of Maine in the case of *Portsmouth Harbor Land & Hotel Company*v. Swift, 109 Maine 17, the plaintiffs’ counsel promptly withdrew their criticism of the earlier case. In this last-named case the Portsmouth Co. there named is the same company that is a plaintiff here, the flats in question in the case being flats appurtenant to a part of Gerrish Island, and the court said that “ the doctrine of *Emerson*v. *Taylor*has been the rule in this State for eighty years, and as it makes an equitable division of the flats in this case and as the running of the side lines of defendant’s upland straight overboard would work injustice between the owners by giving to the plaintiff more than its proportional part of the flats,” it was the opinion of the court that the rule of *Emerson*v. *Taylor'*applied. This being the case, there can be no question that the Government line over-the flats is' the line A to F on the map, as was said in the court’s opinion in the first suit decided in 1911. It leaves no question that the guns could be fired westward of the line A to F without impinging on the lands in question. That the firing in 1914 was across a small corner of the land was shown by the findings of fact in the second suit, as was also the fact that this occurred because the officer in charge was misinformed as to the lines and set a flag to mark the supposed correct line a little too far to the east. It was decided that the firing then done did not constitute a taking or- the imposition of a servitude, 250 U. S. 1. There being plenty of space for the firing of the guns entirely over and across Government property, it can not be accepted, especially in the absence of proof of the direction the guns were pointed, that they were fired over lands of any of the plaintiffs in 1920. To say the'-least of *594it, the averment of the amended petition that the Government “ has discharged all of the said guns as aforesaid on or. about the 8th day of December, 1920, over and across the said land ” is not established by the evidence. Nor do the facts show or furnish a basis for inference that there is or ever has been any intention to fire the guns in times of peace, except for the unusual purposes for which .they have been fired, two of these occasions being when the guns were being mounted and the other occasion when the gun carriages were being altered. It would seem to be a serious defect in the system of coast defense^ that would erect machinery for disappearing guns, place the guns upon their carriages, and then leave them to be used when the enemy appears, without any sort of preliminary test of the sufficiency or efficiency of either, the machinery or guns.

Another basis of complaint is the alleged use of the land “ for the establishment of a fire-control station and service for the use of said fort.” It is said in the opinion of the Supreme Court (p. 330) that “ the establishment of a fire control is an indication of an abiding purpose ” to utilize the lands at will. It becomes important, therefore, to examine the facts as to the fire-contro) station. There was no fire-control station at Fort Foster prior to the war. There was none there when this su.it was brought. There is none there now. What was done relative to the establishment of a fire control was largely developed in the testimony taken in the second suit. It was evidently not deemed of such serious import at that time because it was not made by plaintiffs the basis of a request for a finding of fact in the second suit. The plaint.iffs asked for a finding that “ the fort was maintained in a condition of readiness, except for the fact that no fire-control system was installed.”

An officer who devised the plan for a fire control in 1917, after the United States entered the war, and who put his plan into execution, was examined as a witness in 1917 and stated positively that the plan was for a fire control at Fort Stark and not for Fort Foster. It may pertinently be asked what purpose cou)d be subserved by setting up a fire-control station at Fort Foster when the guns had been removed. *595There was and is a battery of large 12-inch guns at Fort Stark commanding the entrance to Portsmouth Harbor. Fort Stark is on the New Hampshire side of the Piscataqua Uiver and about one and a half miles southwest of Fort Foster, which is on the Maine side of the river. It has a plotting room and the mechanical and necessary appliances of a.complete fire-control station. To be effective as a fire-control station it is necessary to connect the fort with outside points from which the desired information as to the location of the enemy vessel or target can be obtained. The plan to accomplish this for Fort Stark was explained by the officer stating that two suitable points on Gerrish Island were selected, one at or near the shore line on the east side of the island and the other south and near the site of the hotel. These were observation points, connected by what is called the base line, the distance being carefully measured. At the eastern extremity of this base line was built a small concrete affair for housing the detail charged with the duty of keeping careful outlook. A cruder structure was used by the detail with like duty at the western extremity of the base line. The eastern station was called the primary station and the other the secondary station. Not only was the distance between the two, the base line, known to each, but there had to be a means of quick communication between them, and hence a cable or wire connection was made and telephones installed.

Let it be supposed that a vessel is seen approaching. The fact is communicated by the one observation station to the other and each of them takes the line of direction from its end of the base line across the supposed vessel. Knowing the exact length of the base line and the size of the angle made at each end by the line projected from the end of the base line across the object, the distance between the several stations and the object is readily ascertained by a method of triangulation, and thus the position of the vessel is accurately found, it being located at the point of intersection of the two lines projected from the ends of the base line. But what is needed is to get this information to the central station where the guns are to be fired at the object-sup*596posedly an enemy vessej. Hence it was that a cable with wires was constructed from both the primary and the secondary station and carried to Fort Foster, where there already was established a cable connection with Fort Stark, the central station, where the guns were located. Each of the two observation stations communicate by telephone with this central station. The latter has the length of the base line and is given the angle made between ,it and the line projected on the object, and with these data readily fixes the position and distance, using appliances made for the purpose in connection with its plotting board. By using the cable connection, already existing between Forts Foster and Stark, the necessity of another cable across the P.iscataqua River to connect the latter with the primary and secondary stations was obviated.

Before constructing any observation points the officer in charge sought the consent of known property owners to the temporary occupation. It does not definitely appear that any owner of the 20-acre parcel was asked or consented. The Saco & Biddeforcl Savings Institution, as the owner in possession of the 155 acres, gave express consent for any use of the property found necessary during the period of the war. M.iss Belle H. McClure, the owner of a lot near the Government reservation on which the cable connecting the primary station at Cedar Point with Fort Foster would probably pass, cordially assented to the use of her property, and not having a reply from the authorities she properly insisted upon and received an official acknowledgment of her willingness that her property could be used by the Government during the war. That there was no purpose to disregard private rights may be assumed from the fact that the authorization for the establishment of the fire-control station and its accessories stated that the consent of property owners had been obtained, but as we have said, it does not appear that the use of any part of the 20-acre tract was authorized, nor does it appear that any objection was made to the use. A small detail of men was kept at the two stations until hostilities ceased and was then removed, together with the telephones and other appliances. The stations were then *597abandoned. There was also erected during the war on a knoll near the hotel a small improvised structure for a searchlight, but no light was ever installed and no use was made of the structure. In the absence of permission to thus use the property, a tort would be committed, but it was not a taking of the land.

Notwithstanding the decisions in the two cases, the plaintiffs contend that the property was taken in 1902, and upon their brief say, “ The date of the alleged taking is 1902; due compensation includes the ordinary increase in value of the property to 1926. The mortgagees are entitled to their proper adjustment, but the United States took the property in 1902, though the action only accrued upon the manifestation of intention in 1920.” This contention has no basis of support, in the op,inion of the Supreme Court. If the taking was, as is contended, in 1902, the claim is clearly barred by the statute of limitations, which is jurisdictional. See *Wardwell*case, 172 U. S. 52. And if the property was taken in 1902, it is difficult to understand how there can be a claim for “ lost profits for 24 years at $10,000 per year,” or how that fact can give a right to claim an increase of value in 1920 of nearly double the value in 1902. Indeed, it is difficult to follow the reasoning that the existence of the fort and the handling of its guns so thoroughly destroyed or injured the beneficial use of the property when it is contended that during the period involved it so largely increased in value. But, as already said, there was no talking of the land or imposition of a servitude thereon either in 1902 or 1915, and the facts do not warrant a different conclusion in the instant suit.

Reference has been made to the question of ownership. The facts show that the Saco & Biddeford Savings Institution is the owner of 155 acres of the land, the taking of which was claimed in the first suit. That concern was not a party to the second suit, though it was the then owner of the 155 acres. It is not a party to the instant suit. The balance of the land, originally made the subject of claim, consists of about 20 acres of upland with some appurtenant flats. The hotel mentioned in the findings was located on this 20 acres. *598It had been razed before this suit was brought. The facts show Caroline E. Peabody to be the owner of the 20-acre parcel under foreclosure proceedings under a mortgage of which she was assignee. The other parties plaintiff are not shown to have any title to or interest in the property. Clearly there can not be a recovery by the real plaintiff for anything occurring before she became owner. The petition prays that the court exercise certain equitable jurisdiction by reviewing and setting aside the findings of fact made in the second suit, and also that it “ restrain the use of the fort.” The Court of Claims has no such jurisdiction. Its powers as a court of equity are limited and it has no authority to issue a restraining order. See *Jones case,*131 U. S. 1, 18; *Milliken Imprinting Co. case,*202 U. S. 168; *Leather & Leigh case,*61 C. Cls. 388; *Jackson case,*21 C. Cls. 14, 85. The second suit, long before the present' suit was brought, had passed out of the jurisdiction of the court under the applicable rules of law as well as the rules of court, and even if the facts presented would sustain in a court of equity a bill of review or an original bill in the nature of a bill of review, which it seems to us they signally fail to do, this court could not afford relief. See *Kingsbury*v. Buckner, 134 U. S. 650, 611. We think that the reason for closing the hotel in 1904 after the firings of the guns in 1902 and not reopening it, even though no gun was fired thereafter until 1914, is to be ascribed to other causes .than the proximity of the fort or the firing of its guns. The hotel probably lacked conveniences as well as attractions. However, in the instant suit, as in the two earlier suits, there is a failure of proof that any agent of the Government was authorized to take the land in question or impose any servitude upon it. There is an absence of proof that the Government or its authorized agents ever had or now have an intention of firing over any of this property in time of peace. There is a want of proof to sustain the essential averments of the petition as amended.

Our conclusion is that the petition should be dismissed. And it is so ordered.

Moss, *Judge;*Graham, *Judge;*and Booth, *Judge,*concur.