Year: 1864

ton We cannot say that hs acted rashy and without
sufficient The necessity TO us appears 70 have
been urgent-tbe danger impending Texas, adjoining
New Mexico, Of which Arizona then part was IN
fragrant rebellion "A few days after the destruction OF
the property at Tuscon Capt Moore received information
that Fort Fillmore with companies. had surrendered
10 the rebels when no took TO the mountains fnay bring
ing his comDand safely nte Fort Craig We do not be


eye that any court would hold bis conduct in the destruc
ton of this property illegal and without cause
yet we must hold to relieve the Government from re
spons bity


Private property must not only be taken upon urgent
necessity but for public use in order to fix the liability OF
the Government to make compensation Was the de-
structon OF this property taking OF IL Tor pubic use
II almost Of equal public Importance that military sup
plies be kept from the use OF the enemy as that hey mn
ster to the support of own armies Writers on pup


lie law do not discriminate between property destroyed 10
prevent from falling into the hands OF an enemy ana
property taken for the actual sustenance OF our own


tary forces In both it 10 treated as taking lot
public use In the of the American Print works vs.
Lawrence Zabrskie the Supreme Court OF New Jersey
a that the destruction OF private property TOT poc
is taking of it within the meaning OF the Consutu
tiOn''


We hold in this that the property was destroyed by
the rghtfu order of the commanding ocer ana upon a
argent and pressing necessity and to prevent It from fa-
ing into the hands of the public enemy and those hostile
to the United States that it taking for public use
and that the bound under the Constitution
to make just compensation to the owner Inc legal au
to make raises implied promise to do So
and here h found the jurisdiction OF TINS Court 10
this proceeding.
r.
lection taken against the allowance Of any thing on the
ground that the property III the circumstances ~ Whch
it placed without value toihe owner; taat tne
abandonment by the United States troops OF the ort


the vicinity of uscon the inevitable loss to Grant OF
the entire property and therefore its destruction dd nun
injury. This ground of objection we believe IS without
law to support it, The claimant suffered greas
loss Its Immediate and direct WAS the burning of
bis property order Of Capt Moore that the same loss
would have bealen him in another way is an ibera ana
think illegal response to the claim for compensation.
ita
enemy the of its destruction. In apecunlary
point of view it may have been matter OF 70
the claimant whether his property was destroyed or ie


into the hands Of the enemy but to the State IL was OF
serious and Government preferred to pay


it's fair value rather than give its enemies the
Of its possession In such to hold the properly
worthless and deny damages that ground 10 10 deny


the constitutional right to compensation II the properly


crcunstanced that unless destroyed the enemy Wouu
take it, then the principle contended for no injury was
done the and unless the grounds we're very strong


Indeed for believing that would be taken the destruc
ton is Illegal aud the Government CLEARLY not haDle


1t the mmnence" a" the danger the pressing necessity


that gives the State the right to take private properly
et on this hypothesis when the danger becomes GER
tainty the necessity inevitable the Government s renewed
from liability The legal maxim damnum aosque iyur'a'
would defeat the constitutional provision secur ng con-
penaation, if effect given to case Ike the one
before the court 1t has application Whatever when
property actually taken for public use AMI mas peen 80
held by the courts in numerous decisions (See note 10
page ILL., Sedgwick the Measure OF Damages) IL Is
only when the property sken that the Constitution
provides for compensation it makes menton OF ind
rect consequential damage, and here and here only
the maxim damxum absgue injuria applies. When the
grantees of franchise the agent Of the State acts
within the strict line Of authority, and indirect damage
results from thar acts here, then is no abiltyt Is
dunun absgne njuria As when 10 grading street, an
kment is raised or the ground cut down. to the
injury Of adjoining owner, but OF his hand ls acu
lay taken here the applies 1t is an injury Tor
which the agent is not liable for he acted within the me
of his duty The State j. not liable because the Const
tuition provides for compensation only when property ls
actually taken for public use and not for indirect injuries


may result from ts exercise of the right OF eminent
domaiu