#### GILL’S CASE. Andrew J. Gill *v.*The United States.

*On the Proofs.*

*In*1864 *the claimant is ike owner of*536 *tons of hay stacked on the prairie near Fort MTlmore, Colorado. The commanding officer at the fort gives the claimant a receipt for the hay stating that it is received for the use of the Government. Sitbsequently the military inspector of the district orders the quartermaster at another fort to take the hay and. use it for Government stock. After this the claimant exercises no control over it. During the winter about one-half of the hay is fed to Government animals ; about one-quarter is thrown out of the ricks and destroyed ; the remainder is left m the rides till it becomes worthless.*

It has not yet been determined at what points the liability of Government begins and ends, where private property has been taken by its agents without there being a valid, express contract to fix the rights and liabilities of the parties. And it is to be understood that the report of the cases of *Adams*and *Salomon*(7 C. Cls. R., px>. 437, 482) states a point as determined which is yet unsettled.

*The Reporters’*statement of the case.

The court found the following- facts:

I. In November, 1864, the claimant was the owner of 536 tons of hay at Point of Books, near Fort Fillmore and Fort Lyon, in the Territory of Colorado. On the 27th November, 1864, he applied to Lieut. Clark Dunn, the commanding officer at Fort Fillmore, to purchase the same for the use of the defendants. Lieutenant Dunn declined to make the purchase on the ground that he was not authorized, but he gave to the elaim-ant his receipt in writing, wherein it was stated that he had “received of A. J. Gill 536 tons of hay, in good order and well ricked, for the use of the Government,” which was signed *“*Clark Dunn, First Lieut. 1st Cav. of Col., corn’d Camp Fillmore,” and he at the same time referred the claimant to the commander of the district and to the quartermaster at Denver, who could purchase the hay if they saw fit. The commander*of the district was applied to, but declined to purchase at that time. During the same month the military inspector of the district of Colorado, anticipating a short supply of hay for the winter, ordered *392Lieutenant Gossett, the quartermaster of Fort Lyon, “to take the hay belonging to Andrew J. Gill and use it for Government stock.” After this the claimant exercised no control over the hay. And the defendants having proved on the trial that the claimant left Colorado on the 4th February, 1865, on business of his own, and that he did not return until the summer of 1866, and that in consequence of Indian troubles then existing it being unsafe for small parties to remain outside of Government posts, he was compelled to leave the hay without any one in charge of it, but in July, 1865, his agent visited the place and found the entire 536 tons gone, the court finds as matter of fact that the claimant did not abandon or intend any abandonment of the hay, and that at the time he left the Territory it had gone into Government use as set forth in the next finding.

II. In the month of December, 1864, and during the winter 1864-’65, the quartermaster and forage-master at Fort Lyon directed Government trains to go to the hay and quarter there. A military expedition having about 2,000 horses was also quartered there, and used the hay. In the spring, about one-half of' the hay had been fed to Government animals; about one-quarter had been thrown out of the ricks,-trampled down, wasted, and destroyed; and about one-quarter remained in the ricks, though in a worthless condition.

III. After Lieutenant Dunn was relieved at Camp Fillmore, his successor, Lieutenant Dennison, assumed the responsibility of the custody of the hay, and in June, 1865, the post commander at Fort Lyon ordered the quartermaster there to receive the balance of hay remaining, so as to relieve Lieutenant Dennison from responsibility. A board of survey being demanded, it was found that the balance remaining was spoiled and worthless, and no. receipt was then given or responsibility assumed by the post quartermaster.

IY. The fair and reasonable value of the hay in November, 1864, was $38.50 per ton; and during *the*winter, at the time it was used, $45 a ton.

*Mr. Thomas J. Durant*for the claimant:

This is a claim growing out of the use by defendants in 1864-’65, at Fort Lyon, Colorado Territory, of 536 tons of hay belong*393ing to claimant. It was used without a contract of purchase. It is therefore founded on an implied contract. It has been presented for payment in the Treasury Department and rejected. The defendants took posession of this hay in November, 1864, and all of the same that was not used while in custody of defendants was destroyed by them. The portion of the Army by which this forage was used was not engaged in the suppression of the rebellion. The jurisdiction of this court as to claims founded on implied contracts arising from the use or destruction of or damage to property by portions of the Army when not engaged in the suppression of the rebellion remained unaffected by the 1st section *Act July*4, 1864.

*Mr. Assistant Attorney - General McMichael*for the defendant:

This is an action on an alleged implied contract between the defendant and the claimant, for 536 tons of hay, alleged to have been taken and used by the defendant in November, 1864, in the vicinity of Fort Lyon, Colorado Territory. The claimant had, prior to this time, entered into a contract with the defendant to deliver 2,000 tons of hay, and it was executed.

The Government did not authorize Gill to cut and stack any hay except what the contract called for, and the 536 tons for which he now brings suit was in excess of this contract and put up at his own risk. Lieut. Clark Dunn, then in charge of Camp Fillmore, which was a short distance from Fort Lyon, after receiving the 2,000 tons, gave a memorandum receipt for the 536 tons to the claimant, with the understanding that he was not authorized to purchase this amount, but that Gill should take this memorandum receipt to the district commander and quartermaster, at Denver, who could purchase the hay if they saw fit. The Government refused to receive the hay, and Gill abandoned it, and did not return himself or employ any one to protect it. The hay, from December, 1864. to June, 1865, was deprived of all care, both by himself and his agents. 11 By its nature, its location, its exposure on the open prairie to the heavy rains, snow-storms, and terrible winds of the plains during the entire winter of 1864-’65, and to the depredations of wild and and passing animals, and other causes, it must have been greatly reduced in bulk, if not entirely destroyed, even if not a pound of it had been taken by the United States.” The hay was near the public highway, accessible to all teams, and it appears that *394there was considerable travel on that road during the fall and winter of 1864-’65. In June, 1865, one-half of the original amount was still there, and the ricks being uncovered, it had the appearance of being molded by the storms. The hay in controversy was Government hay, cut on Government lands by United States troops, by a United States officer, Oapt. A. J. Gill. The United States troops, in November, 1864, were engaged in fighting the Indians near Fort Lyon.

No authorized agent of the Government ever, directly or indirectly, induced-the claimant to put up the hay. The memorandum receipt given by Lieutenant Dunn was in no way binding upon the United States, and was only given to accommodate the claimant. Notwithstanding the memorandum receipt, the hay was never purchased, as the claimant admits. After the Government refused to receive the hay, the claimant abandoned it entirely, exposed as it was to all .the destructive powers of the elements. Having been thus abandoned, it became the property of any and every passer-by. If the Government is chargeable'for any part of the hay, the court has no jurisdiction, as it would be an “appropriation,” within the meaning of the *Act July*4, 1864. (13 Stat. L., 381;) see *United, States*v. *Mlor,*(9 Wallace, 48.) If the agents of the defendant did use the claimant’s hay, it was a trespass, and the Court of Claims has no jurisdiction of the case. (1 *Gibbons*v. *United*States, 7 G. Cls. B., p. 105.) ■

Nott, J.,

delivered the opinion of the court:

The question in this case relates to the extent of the Government’s liability where private property has been taken by. its agents without there being a valid express contract to fix the rights and liabilities of the parties. The court is not agreed ujion the points at which this liability begins and ends. And it is to be understood that the report of the cases of *Adams*and *Salomon*(7 C. Cls. R., pp. 437, 482) states a point as determined which is yet unsettled by this court, and cannot be until a case can be heard before a full bench. In the present case it is different^' thought that the claimant should recover for the entire quantity of the hay, for three-fourths, and for none of it. But as a majority concur that he is entitled to three-fourths, if no more, judgment will be rendered accordingly.

*395The judgment of the court is that the claimant recover of the defendants for 402 tons of hay, at $45 a ton, the sum of $18,090.

Drake, Oh. J.,

dissenting;

I dissent from the opinion just read.

The case, in its material features, is set forth in the claimant’s petition, and in an affidavit made by him in support of his claim, and filed in the Department of War. From those papers I gather the principal part, of the facts which will .now be stated.

In the fall of the year 1864, the claimant, under a written contract, furnished to the United States at Point of Books and vicinity, west of Fort Lyon, Colorado, on the Arkansas Biver, 2,000 tons of hay, at $38.50 per ton, which was duly received and paid for by the United States.

Anticipating a further demand for hay by the United States at that point, the claimant continued cutting hay until frost came, in order to be sure to have sufficient to fill said contract, and because he believed the Government would need any surplus that he might have. The result was that he prepared and had ready the additional quantity of 536 tons of hay, over and above the 2,000 tons furnished under his contract.

Lieut. Clark Dunn, quartermaster at Camp Fillmore, concurred with the claimant in the belief that the Government would need all the hay in that neighborhood; but as he was not authorized to purchase, he gave to the claimant a memorandum receipt in the following words:

> “Point or Books, *November*27, 1864.

> “ Beceived of A. J. Gill five hundred and thirty-six tons of hay, in good order and well ricked, for use of Government.

> “ OLAEK DUNN,

> *"First Lieut. 1st Gar. of Gol., Quartermaster Gamp*Fillmore.”

The said Dunn referred the claimant to the commander of the district and quartermaster at Denver, who could purchase the hay if they saw fit. The commander of the district, however, thought he would not be justified in purchasing it at that time, and did not do so.

It does not appear that the claimant ever returned to where *396tbe hay was, after the refusal of the commander of the district to buy it, but in consequence of the Indian troubles existing in the winter of 1864-’65, it was unsafe for small parties to remain outside of Government posts, especially in that locality; and he was therefore compelled to leave the hay without any one in charge of it, and on the 4th of February, 1865, he left Colorado on a business trip, and did not return thither until the summer of 1866.

The statement thus far is to a large extent in the words of the claimant himself, as found in his petition and affidavit.

The use and abuse of his hay by Government troops, or parties in the Government service, rests upon the evidence of witnesses.

Upon the whole case the majority of the court give him judgment for three-fourths of the 536 tons of hay, as having been either used or trodden down and ruined by such troops and parties; and the judgment is at the rate of $45 per ton, which is $6.50 more per ton than the claimant demanded in his petition, or in the brief of his counsel.

The case, condensed, is this: that, without the order or request of any officer of the Government, the claimant cut and ricked 536 tons of hay, ostensibly in connection with a contract, but in reality for speculation on the Government; that it was cut and ricked in a wild country, which was so infested with hostile Indians as to preclude his leaving any one in charge of it; that he tried but failed to sell the hay to the Government, and from the time of such failure till the present hehas, so far as shown, never attempted to exercise ownership over the hay, but, as I consider, abandoned in the wilderness what he was powerless to keep in possession or to protect, and what, after the refusal of the Government officers to buy, he could put to no possible use.

I can see no right or justice in making the Government pay for hay so abandoned. The following are the reasons for my dissent:

1. If the claimant ever had property in the 536 tons of hay, he renounced it wdien he left the hay in a wild and savage land, where he had, and could have, no force or law to protect it, and where he dared not go, or have another go, to guard or even oversee it. So to leave it was necessarily to abandon it o inevitable and speedy decay, or to destruction by marauders, *397or to the use of any wayfarers who, while using it, were able to protect themselves against the savages of that region.

2. If, however, the claimant had property in the hay, and Government troops and parties took and used the hay without his knowledge or consent — much more if they scattered and trampled it under foot — it was a trespass, for which no action lies iu this or any other court against the Government. The case seems to me to be pointedly condemned by the expressions of the Supreme Court in *Gibbons*v. *United States,*(8 Wallace, 269.) Said that court: “The language of the statutes which confer jurisdiction upon the Court of Claims excludes, by the strongest implication, demands against the Government founded on torts. The general principle which we have already stated as applicable to all governments, forbids, on a policy imposed by necessity, that they should hold themselves liable for unauthorized wrongs inflicted by their officers on the citizen, though occurring while engaged in the discharge of official duties. In the absence of adjudged cases determining how far the Government may be responsible on an implied assumpsit for acts which, though unauthorized, may have been done in its interest, and of which it may have received the benefit, the apparent hardships of many such cases present strong appeals to the courts to indemnify the suffering individual at the expense of the United States. These reflections admonish us to be cautious that we do not permit the decisions of this court to become authority for the righting in the Court of Claims of all wrongs done to individuals by the officers of the General Government, though they may have been committed while serving that Government, and in the belief that it was for its interests. In such cases, where it is proper for the nation to furnish a remedy, Congress has wisely reserved the matter for its own determination. It certainly has not conferred it on the Court of Claims.”

3. But if the preceding views are erroneous, and the claimant’s right of action should be held good, what should he recover? Manifestly no more than what the hay was worth to him at the spot where he left it, about fifteen miles from Fort Lyon, iu a place where no civilized people lived, or could venture to attempt to live, and where a military guard was necessary while he was engaged in cutting the hay. When he cut and ricked it there, he knew the absolute impossibility of his removing it thence, except with military transportation and guard. And *398be knew, moreover, that he had not, and could not command, any such transportation or guard. And he still further knew that if the Government should decline to purchase and remove the hay, it was certain that it must stay till it rotted just where he ricked it, unless it should be fed to the animals of parties passing by.

Its value to him at that spot is, therefore,- the measure of his damages, if he is entitled to any. The value of hay delivered at Fort Lyon affords no criterion for estimating the value of hay at the place where this was. I have looked in vain in the record for any evidence that the claimant’s hay at the Point of Bocks, fifteen miles away from Fort Lyon, had any money-value whatever. It is evident to me that his view of its value was not in the thing itself, which he could not utilize, but in the anticipated sale of it to the Government, which could utilize it. When that hope vanished, so did the money-value of the hay to him. There was but one possible market for it in all that great region; and when that failed, there was probably not a man in the United States who would have given him ten cents a ton for what it might have cost him his scalp to attempt to reduce to possession.

These are my reasons for dissenting from the judgment of the majority of the court.