#### Edward F. Bishop et. al. *v.*The United States.

*On the Proofs.*

*Vie United States cede property to the city of Memphis. The city leases certain lots of the same, until the year*1887. *The property is used in aid of the rebellion. On the capture of Memphis the property is totem possession of by the army of the United States and appropriated to its use. Afier the close of the rebellion the leases are assigned to the claimants, who are loyal; the assignor being disloyal. The defendants continue in possession. The claimants seek to recover rent for the property from the time of the assignment of the leases to them.*

A claim for rent for the occupation of real property, since the close of the rebellion, where the property was seized by the army during the rebellion, is a claim *“growing out of the appropriation of property by the army,”*within the meaning of the *Aet July*4, 1864, (13 Stat. L., p. 381,) and the *Act February*21, 1867, (14 Stat. L., p. 397,) whereof the Court of Claims has not jurisdiction.

*Messrs. Hughes, Denver*and *Peeh,*for the claimants:

This is an action brought to recover compensation for the use and occupation of lots 48 and 49 in the old navy yard, at Memphis, Tennessee, since the close of the rebellion.

The title to this property was granted by the United States to the city of Memphis, *Aet August 5th,*1854, (10 Stat. L., p. 587.)

Lot 48 was leased by the city to Samuel McKenna on the 15th of June, 1858, for 28 years, 7 months, and 2 days. On the 12th of October, 1861, McKenna assigned the lease to 0. Richmond. On the 24th of March, 1866, Richmond assigned the lease to claimants. Lot 49 was leased by the city to Richmond on the 1st day of January, 1858, for the term of 29 years, (p. 54.). On the 24th of March, 1866, Richmond assigned the lease to these claimants, together with all the improvements, and fixtures, and machinery upon the premises.

Richmond, the grantor of these claimants, entered into possession of these premises, and, while occupying them, was entered upon and dispossessed by the United States, and it has continued in occupation of the premises ever since.

The reasonable rent of the premises is stated by the wit*449nesses to be from one hundred to one hundred and twelve dollars per month.

The obligation of the United States to pay a reasonable compensation for the use of land which it occupies has been settled by this court in the case of Johnson, 2 O. Gis. B., p. 391.

The United States have never attempted to acquire title by legal proceedings of any kind, but, on the contrary, the officers of the government whose duty it would be to take such steps have deliberately decided not to do so.

The act of July 4,1864, presents no bar to this suit, because we only claim the rent which accrued after the close of the rebellion.

We claim $112 per month from the 2d of April, 1866, to the 11th of March, 1868, 23 months and nine days, amounting to $2,609 60, for which we respectfully ask the judgment of this court.

*Mr. T.*JET. *Talbot,*(with whom was the *Assistant Attorney General,)*for the defendants.

The petitioners claim rent for the navy yard property in Memphis, Tennessee, occupied by the .quartermaster department. The period for which they claim rent commenced March 24, 1866, when, as they allege, they became owners of the property. The occupation by the quartermaster department of this property commenced long before that date, namely, immediately after the taking of Memphis, in June, 1862, when the quartermaster department took possession of this property as prize of war, especially as it had been used as a place for manufacturing arms for the rebel forces.

This case presents no grounds for the jurisdiction of this court. Its aspect is that of a case *ex contractu;*and yet no contract is shown. None express, obviously; quite clearly, none implied; for the occupation in this case was hostile, without and against intention to pay rent. The Quartermaster General, not acknowledging, has uniformly denied the obligation to pay rent.

Moreover, this claim is excluded from the jurisdiction of this court by positive prohibition, found in the terms of the first section of the act of July 4,1864, since it is a claim growing *450out of the appropriation of property by the army engaged in the suppression of the rebellion between the commencement and close thereof.

Milligan, J.,

delivered the opinion of the court:

By an act of Congress, approved August 5,1854, (10 Stat. L., 586,) the United States ceded all the grounds and appurtenances thereunto belonging, known as the Memphis navy yard, in Shelby County, Tennessee, to the mayor and aldermen of the city of Memphis, and they have retained, under regular deeds of cession, the legal title thereto to the present day. These grounds are included within the city limits, and have been laid off into lots. On the 15th of June, 1858, lot No. 48 appears to have been leased by the city corporation to one Samuel McKenna for the term of twenty-eight years, seven months, and two days. On the 12th of October, 1861, McKenna, for a valuable consideration, assigned his term to O. Richmond, and Richmond, on the 24th of March, 1866, to the claimants. Lot No. 49 was in a like manner leased by the corporate authorities to C. Richmond onthelst of January, 1858, for the term of twenty-nine years, which he transferred, on the 24th of March, 1866, to the claimants, together with all the improvements, fixtures, and machinery upon the premises.

Richmond entered under his lease and held and occupied the premises until he was dispossessed by the United States military forces in 1862. During his tenancy, from about the 1st of April, 1861, until the capture of the city of Memphis, on the 6th of June, 1862, he and the employés under him were engaged in the manufacture of sheet-iron, copper work, blacksmitking, manufacturing gun-carriages, caissons, and- sabres for the Confederate military authorities.

Soon after the occupation of the city the navy yard, with all its appurtenances, fixtures, and machinery, was taken possession of by the United States military forces, and they have continued to hold and occupy it up to the present time.

The assignments of the leases to the claimants, it will be observed, bear date after the seizure of the property by the Federal forces, and it does not appear that the claimants ever entered or took any benefit under them.

Under this- state of facts this action is brought to recover *451rents for tbe lots Nos. 48 and 49 from tbe close of tbe war until tbe 19tb of December, 1867.

Tbe loyalty of tbe claimants is sufficiently established, and tbe essential facts necessary to a decision of this case are contained in tbe preceding statement.

Tbe property for wbicb rent is claimed having been used to support tbe rebellion, it is conceded, under tbe “ Confiscation Acts,” was lawful prize of war; but as tbe title has never been divested out oí tbe city corporation of Memphis by any proceeding in court, under tbe *Act August*6,1861, (12 Stat. L., p. 319,) it is insisted that tbe bolding over by tbe United States after tbe termination of tbe war was an unlawful detainer, and imposes, by implication, an obligation on tbe defendants to pay a fair and reasonable value for tbe use of tbe property.

How this might be, were tbe original lessees, who were actually ejected by tbe defendants in an attitude to present this claim, we do not feel called upon to determine. But it is clear, under tbe second section of tbe act of June 25, 1868, they could not prosecute this action; and it is difficult, upon princi- , pie, to see bow their lessees can stand on any higher ground than their immediate lessors occupied. Tbe United States’ right to tbe possession of tbe premises, for tbe time being, was paramount, and tlieir entry and occupation would, therefore, have discharged tbe original lessees from all obligation to pay rent to tbe city corporation or to those bolding under it. Now, can tbe claimants come in under tenants, who by law were discharged from tbe payment of rent, and by action in this court, compel tbe tenants in possession under paramount right of entry and possession, to pay rent to them? We think not. Tbe claimants never entered under tlieir assignments, and when they took them they knew they could not enter, except by tbe permission of tbe defendants, who heldunder lawful entry and claim of right under tbe act of 1861. No consent on tbe part of tbe United States or argreement with tbe claimants is shown, and they are not chargeable for rents to then- mean lessors until they could enter and occupy tbe premises. They have, therefore, lost nothing by tbe United States, and can in justice take nothing from them.

But we are not left to this course of reasoning, nor do we put tbe decision of this case wholly upon it. Tbe first section of tbe act of July 4, 1864, provides: “ That tbe jurisdiction of *452the Court of Claims shall not extend to, or include, any claim against the United States growing out of the destruction or appropriation of, or damage to, property by the army and navy, or any part of the army or navy, engaged in the suppression of the rebellion from the commencement to the close thereof.”

By the first section of the act of February 21,1867, this provision of the act of 1864 has undergone a legislative construction, by which it is declared: “That the provisions of chapter two hundred and forty of the acts of the thirty-eighth Congress, first session, approved July 4, 1864, shall not be construed to authorize the settlement of any claim for supplies or stores taken or furnished for the use of, or used by, the armies of the United States, nor for the occupation of, or injury to, real estate, nor for the consumption, appropriation, or destruction'of, or damage to, personal property, by the military authorities or troops of the United States, where such claim originated during the war for the suppression of the rebellion, in a State, or part of a State, declared in insurrection-by the proclamation of the President of the United States, dated July 1, 1862, or in a State which, by an ordinance of secession, attempted to withdraw from the United States government.”

The construction given the act of 1864 by the legislature clearly excludes the jurisdiction of the department bureaus from settling the class of accounts and claims mentioned in the statute, and at the same time fails to provide any other tribunal in which such claims can be settled. They are clearly not cognizable by this tribunal, or any other known to the laws of the United States.

But it is insisted, as the acts of appropriation, or destruction of, or damage to property, are limited to the period of the war, and that this action- is for the use and occupation of the premises since its close, it is not, therefore, affected by the act of 1864Í

In this view of the statute it is possible this action might be maintained, all other things out of the way, as the assignment of the term was before the close of the war, and the claim here set up accrued, if at all, after the war ended and civil authority was restored in Tennessee. It is not, therefore, obnoxious to the act of March 3,1863, 12th section; because “ *the*claim” was never assigned, but, if at all, accrued after the termination of the war.

*453But tbe act of 1864 cuts off our jurisclictioa in all cases which. *grew out*of the appropriation of the premises in question. Now, can it be said that this case did not *grow out*of the appropriation of the Memphis navy yard by the United States army ? We think not. We have shown that the United States entered rightfully, and it is not pretended that they assume to hold over under any other or different right than that under which they entered. It may be wrong that they continue to hold the premises after the close of the war; but, if so, it is a wrong which this court has no power to redress.

We cannot assent to the position that the seizure of this property was made under the exercise of the inherent sovereign power of the State to take private property for public use, but it was a capture, or seizure, under the express authority of the Met *August*6,1861,(12 Stat. L.,p. 319,) which is widely different from a taking under the right of eminent domain. In. the one case, private property cannot be taken without just compensation; but in the other, it may be, and the title under the confiscation acts absolutely divested.

But be this as it may, the continued possession by the United States under the right by which they first seized the premises brings the case within the act of 1864, and excludes the jurisdiction of this court.

The petition must, therefore, be dismissed.

Nott, J.,

concurring:

This action is brought to recover for the use and occupation of the claimants’ premises by the quartermaster department *since*the suppression of the rebellion. I doubt whether it can be deemed a claim *"growing*out” of the appropriation of property *before*the suppression of the rebellion.

If the claimants’ action were for the use and occupation by the army before the close of the rebellion, that would be a claim “growing out” of the “appropriation” of their land; or if the claimants had sued for damages suffered since the rebellion by the loss of a stream diverted from its course by the army during the rebellion; or for the annual profits of their mill lost to them now because the army destroyed the dam; or for the rent of a tenement which would have accrued since the rebellion if the army had not' destroyed the buildings; or if the action were brought for any other loss, the proximate cause *454whereof was some act done before the close of the rebellion, that would be a claim “growing out” of the appropriation or destruction of property by the army.

But tbe claimants do not complain of the defendants’ entry upon the land; nor of their use of it during the continuance of the rebellion. All of those acts they concede to be an appropriation of or damage to the property by the army within the meaning of the statute. What they do complain of is the withholding, *i. e.*the use and occupation of their property by the government after the close of the rebellion. Is it not this withholding, after the close of the rebellion — after the expiration of the period to which the act confines the appropriation of property by the army, out of which the claim grows?

Therefore, if the “appropriations” of property by the army, whereof this court is by the statute expressly excluded from exercising jurisdiction, are by the statute limited expressly to the rebellion and did expire with its close, it would seem to follow that for the “public use” of private property by the government since the rebellion, the statute intended this court should retain jurisdiction.

This doubt, so far as the statute of 4th July, 1864, is concerned, makes it necessary for me to examine the case further.

It is an action substantially for rent. The claimants allege that they have an estate for years in the premises and are entitled to possession. They cannot eject the defendants, but seek to make them their tenants.

The law of evidence by which a party might maintain an action against a mere intruder on his freehold, does not apply to an action against the government. The government having possession always has with it the “right of possession,” and he who would recover against it must prove, unless the government concede it, his higher “right of property.” Ejectment is not always a possessory action; it lies for land wholly covered by a highway. *(Goodtitle dem., Chester*v. *Acker,*1 Burrows R., 133.)

The only case in this court wherein any such question has arisen is that of *Johnson,*(2 C. Cls. R., p. 391.) There the government in effect set up its own title adverse to the claimant. The claimant accordingly proved his right of property, and the court first passed upon the question.of his title. Finding the title to be in him, the court could not eject the government, *455but it could treat tbe government as tbe tenant of tbe rightful owner, entering’ and bolding by its right of eminent domain upon tbe terms prescribed by tbe Constitution. Tbe court accordingly fixed tbe value of this implied rent, and tbe appeal, which ivas taken at first to tbe Supreme Court, tbe late eminent Attorney General on examination did not think worth bis while to prosecute, and it was accordingly dismissed.*

Tbe quantity of interest which these claimants bad in tbe land was to be measured by tbe’duration of about twenty-one years. That was tbe estate or interest transferred to them by a grantor who could not maintain an action in this court. Tbe action which they bring is for a fraction of this quantity of interest — for tbe one-twenty-first part of tbe estate for years conveyed to them.

Tbe government has never treated tbe claimants as owners of tbe property, nor by implication conceded tbe title to be in them. Further, it appears that their title accrued while tbe government was in actual possession, and when tbe property, that is, when tbe claimants’ leasehold estate was liable to forfeiture, for tbe treasonable uses to which it bad been put by its previous owner. Tbe government’s possession, therefore, at that time was, to all intents and purposes, an adverse possession. Tbe government did not enter under tbe claimants nor under their grantor, and is a stranger to their title. If they would recover they must first maintain it. Tbe right to recover for tbe use of tbe thing, here depends upon tbe right to recover tbe thing itself.

Tbe title to tbe land is therefore tbe thing in controversy. Tbe compensation for use and occupation is but an incident to it. Hence tbe action, though in form for tbe rent or mesne profits, is in substance for tbe land itself. It is to all intents and purposes an action of ejectment, which will not oust tbe government from possession, because of its right of eminent domain, but which will make tbe government subject to tbe claimants’ right of property, and compel it to bold only as their tenant.

Tbe case will be made plainer by considering tbe fact that if tbe claimants recover them rent in this action, they will be entitled to recover all future rent in future actions. And it will be made still plainer by considering tbe fact that if tbe govem*456ment should avow, in a legal way, tbeir intent of holding throughout the period of the claimants’ estate, then they would be entitled to recover, not for a yearly use and occupation, but for their estate in the land. Their cause of action then, to be determined in legal effect now, will be the thing assigned. They will then be recovering in form what they are seeking to recover in substance now, the leasehold estate of which they are the grantees or assignees, and of which they claim to be the true and lawful owners.

If this be so, the claimants have no greater estate in the land and no better standing in this court than had their grantor. It is a case contemplated and provided for by the act which reconstituted this court, *(Act 3d March,*1863, 12 Stat. L., p. 765, § 12,) wherein it is enacted that “the petition shall set forth that the claimant and the original and every prior owner thereof, where the claim has been assigned, has at all times borne true allegiance to the government of the United States.” He who has no standing in court cannot evade the statute by transferring his estate to another, and he who takes such an estate cannot evade the statute by bringing an action for a part instead of the whole — for the use of the thing for one year instead of the use of the thing for twenty years.

*

 See opinion in a second suit hy the same claimant, p. 249.