Hill v. United States

Delivered the opinion of. the court.

This was a suit, brought November 1, 1888, in the Circuit Court of the United States for the District of Maryland, under the act of March 3, 1887, c. 359, by Nicholas S'. Hill, a citizen of Maryland, against the United States, for the use and occupation of land for a light-house. .. '

The petition alleged that- the plaintiff, since Februáry 14, 1873, had been seized and possessed' in fee simple of certain tracts of land in Baltimore County in the State of Maryland, fronting upon Chesapeake Bay, (as shown upon a plat, and specifically described in a deed of that date to him from Thomas Donaldson, copies of both of which were annexed to the petition,) “ with all the riparian rights attached thereto under the law of this State;” that, since his acquisition of said land and rights, “ a valuable part thereof has been used and occupied by the United States government ” for “ the erection and maintenance of a light-house, known generally as the Miller’s Island light-house,” “ without any compensation to your petitioner for such use and occupation, and without the consent thereto of your petitioner or his predecessors in title; ” and that “ by the use and occupancy by the government as aforesaid of his property he has been prevented from using the same within the limits above mentioned, and from erecting buildings thereupon, and using the same for fishihg and gunning purposes.” The plaintiff “claims, as damages for the use and occupation of his said property as aforesaid, the sum of $9999 from November 1, 1885, until November-1, 1888, and prays the judgment and decree of this honorable court thereupon on the facts and the law.”

The United States pleaded three pleas :

1. A former judgment. The plaintiff replied that there was no such judgment; and the United States joined issue on the replication.

2. “ That the land referred to and described in the petition filed in this cause is submerged land and part of the bottom of the Chesapeake Bay, one of the navigable waters of the United States, and that the said defendant, under the law, for the purposes of a light-house, has a paramount right to its use as against the plaintiff or any other person.” To this plea the plaintiff demurred.

3. “ That the defendant did not commit the wrongs alleged.” The plaintiff joined issue on this plea.

On June 22, 1889, the Circuit Court overruled the demurrer to the second plea, and gave judgment thereon for the United States, with costs, and filed a written opinion, which is published in 39 Fed. Kep. 172.

On June 27, 1889, the Circuit Judge filed findings of facts and conclusions of law, which are copied in the margin.

■ The act of March 3,1887, c. 359, § 7, provides that “ it shall be the duty of the court to cause a ’written opinion to be filed in the cause, setting forth the specific. findings by the court of the facts therein, and the conclusions of the court upon all questions of law involved in the case, and to’ render judgment-thereon. If the suit be in equity or admiralty, the court shall proceed with the same according to the rules of such courts.”' 24 Stat. 506. But, in the case at bar, the only judgment, entered, and upon which this writ of error was sued out,, appears to have been given for the United States on the-plaintiff’s depmrrer to th&- second plea, which presented' an issue of law only, upon which the findings of fact can have no-possible bearing or effect. It would seem to follow that the* findings of facts cannot be taken into consideration by this-court upon this record. But this is comparatively unimportant,. because those findings do but state in greater detail the facts; alleged and admitted by the petition, the second plea and the demurrer to that plea.

’ The land in question, upon which the. United States have-built and maintain a light-house, is below low water mark,, and under the tide waters of Chesapeake Bay. Both parties, assume that • by the common law of England, which was the common law of Maryland, the title in land below high water, mark of tide- waters was in the King, and -upon the Declaration of Independence passed to the State of Maryland, and. remainéd in the State after the adoption of the Constitution! of the United States, except so far as any right in such land wás surrendered to the United States by virtue of the grant-to Congress of the "power to regulate commerce with foreign nations and among the several States, including as á necessary Incident the exclusive right to regulate and control'the building and maintenance of light-houses for the protection of navigation; and except, also, so far as any right bn such lands has been lawfully granted by the State of Maryland to private persons.

By the statute of Maryland of 1862, c.,129, article 51 of the Public General Laws of the State was amended by adding the followings sections'

Sec. 37. “ The proprietor of land bounding on any of the •navigable waters of this State is hereby declared to be entitled -to all accretions to said land by the recession of said water, whether heretofore or hereafter formed or made, by natural -causes or otherwise, in like manner and to like extent as sufth right may or can be claimed by the proprietor of land bounding on water not navigable.”

Sec. 38. “The proprietor of land bounding on any of the navigable waters of this State is hereby declared to be entitled to the exclusive right of making improvements into the waters in front of his said land; such improvements, and other accretions as above provided for, shall pass to the successive -owners of the land to which they are attached, as incident to "their respective estates. But no such improvement shall be so made as to interfere with the navigation of the stream of water into which the said improvement is made.”

Sec. 39. “No patent hereafter issued out of the land office «hall impair or affect the rights of riparian proprietors, as explained and declared in the two sections next preceding this-section, and no patent shall hereafter issue for land covered by navigable waters.”

The plaintiff contends that the entire title in the land below high tide, with the right to improve and build upon the same, Temained in the State after the adoption of the Constitution that, by the statute of 1862, the title to .such land, at the place in question, or at least the exclusive right of building thereon, was vested in the plaintiff; and that the title or right so acquired by him was his private property, which, by the Fifth Amendment of the Constitution," could not be taken by the United States forbhe erection and maintenance of a light-house for the public use, without just compensation.

The United States, on the other-hand, assert, and the court below has held, that the United States upon the adoption of the Constitution acquired the. paramount right to the use of this submerged land for a light-house, without making any compensation therefor; and that any title or right conferred on the plaintiff by the subsequent statute of the State was-necessarily subject to this paramount right of the United States.

The question thus presented is of such importance to the-United States, as well as to owners of lands bounding on tidewaters, that it becomes this court, before expressing any opinion upon it, to inquire whether the courts have jurisdiction to determine the question in this form of proceeding against the United States.

The whole effect of the act of March 3, 1887, c. 359, under which this suit was brought, was to give the Circuit and District Courts of the United States jurisdiction, concurrently with the Court of Claims, of suits to recover damages against the United States, in cases not sounding in tort. United States v. Jones, 131 U. S. 1, 16, 18.

The United States cannot be sued in their own courts without their consent, and have never permitted themselves to be sued in any court for torts committed in their name by their officers. Nor can the settled distinction, in this respect, between contract and tort, be evaded by framing the claim as. upon, an implied contract. Gibbons v. United States, 8 Wall. 269, 274; Langford v. United States, 101 U. S. 341, 346 United States v. Jones, above cited.

An action in the nature of assumpsit for the use and occupation of real estate will never lie where there has been no relation of contract between the parties, and where the possession has been acquired and maintained under a different or adverse title, or where it is tortious and makes the defendant a trespasser. Lloyd v. Hough, 1 How. 153, 159; Carpenter v. United States, 17 Wall. 489, 493.

In Langford v. United States, it was accordingly adjudged that, when an officer of the United States took and held possession of land of a private citizen, under a claim that it belonged to the government, the United States could not be charged upon an implied obligation to pay for its use and occupation.

It has since been held that if the United States appropriate to a public use land which they admit to be private property, they may be held, as upon an implied contract, to pay its value to the owner. United States v. Great Falls Manuf. Co., 112 U. S. 645, and 124 U. S. 581. It has likewise been held that the United States may be sued in the Court of Claims for the use of a patent for an invention, the plaintiff’s right; in which they have acknowledged. Hollister v. Benedict Manuf. Co., 113 U. S. 59; United States v. Palmer, 128 U. S. 262. But in each of these cases the title of the plaintiff was admitted, and in none of them was any doubt thrown upon the correctness of the decision in Langford's case. See Schillinger v. United States, 24 C. Cl. 278.

The case at bar is governed by Langford's case. It was not alleged in this petition, nor admitted in the plea, that the United States had ever in any way acknowledged any right of property in the plaintiff as against the United States. The plaintiff asserted a title in the land in question, with the exclusive right of building thereon, and claimed damages of the United States for the use and occupation of the land for a light-house. The United States positively and precisely pleaded that the land was submerged under the waters of Chesapeake Bay, one of the navigable waters of the United States, and that the United States, “under the law, for the purpose of a light-house, has a paramount right to its use as against the plaintiff or any other- person ” ; and the plaintiff demurred to this plea. The Circuit Court, instead of rendering judgment for the United States upon the demurrer, should have dismissed the suit for want of jurisdiction.

Judgment reversed, and case remanded to the Circuit Count with directions to dismiss it for want of jurisdiction.

Mr. Justice Jackson, not having been a member of the court when this .case was argued, took no part in its decision.

Findings of Facts.

1. I find that copies of the plaintiff’s petition were, in compliance with the requirements of the act of March 3, 1887, c. 359, duly served on the United States district attorney and the Attorney General of the United States, and said law in all respects complied with.

2. I find that the plaintiff, since February 14, 1873, has been seized and possessed in fee simple of the tract of land described in these proceedings, and known as Miller’s Island, and of all the riparian rights attached thereto under the laws of the State of Maryland.

3. I find that no part of the fast land included in the deed of the plaintiff has been used or occupied by the United States; but that a site for the rear range light of Craighill channel, situated about two hundred yards from the shore line of the plaintiff’s land, has been occupied and used by the United States; that the said site is submerged laud in the Chesapeake Bay, one of the public navigable waters of the United States, and within the ebb and flow of the tide, and in water about two feet deep at low tide.

4. I find that Craighill channel is a channel in Chesapeake Bay, constructed by the United States, and used by ocean vessels in their approach to the port of Baltimore; and that the light-house constructed by the United States in the year 1874 on the site in question is an important and necessary aid to the navigation of said channel.

5. I find that the United States took possession of said site for the purpose of building the light-liouse in question, without condemnation, or the paymentvof any compensation to the plaintiff or any other person, in the year 1874.

6. I find that the land of Miller’s Island, belonging to the plaintiff, was heretofore used and is chiefly valuable on account of the gunning for geese, swan and ducks, and for the fishing privileges with nets; and that since the erection of the light-house adjoining the shore the value of the land has decreased greatly, and that the plaintiff’s testimony tended to show that said decrease is due to tlie'erection of said light-house, and that the island formerly rented for $3000 per annum, but since the erection of the light-house the rent has decreased to $500 per annum.

Conclusions of Law.

That the legal title to the site of the light-house in question is in the State of Maryland, subject to the riparian rights of the plaintiff under the act of 1862, c. 129, of the laws of Maryland.

That under article 1, section 8, of the Constitution of thé United States, which provides that Congress shall have the power “ to regulate commerce with foreign nations and among the several States and with the Indian tribes,” both the title of the State of Maryland and the riparian rights of the plaintiff are subject to the paramount right of the United .States to use and occupy the site in question Tor the purposes of commerce, which includes navigation, without condemnation or compensation, the submerged' land forming the site of the light-house being, as to such a use by the-United States, public and not private property.

I therefore overrule the demurrer of the plaintiff to the second plea of" the United States, and -1 do give judgment under said plea for the United States', with costs, to include what has been actually incurred for witnesses and for summoning the same, and fees paid to the clerk of the-court.