149 U.S.

593
13 S.Ct. 1011
37 L.Ed. 862

HILL
v.
UNITED STATED.
No. 108.
May 15, 1893.

J. Alex. Preston, for plaintiff in error.

Atty. Gen. Miller, for the United States.
Mr. Justice GRAY 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, (chapter
359,) by Nicholas S. Hill, a citizen of Maryland, against the United States, for
the use and occupation of land for a lighthouse.

The petition alleged that the plaintiff, since February 14, 1873, had been seised
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 lighthouse,
known generally as the 'Miller's Island Lighthouse," 'without any compensation
to your petitioner for such use and occupation, and without the consent thereto
of your petitioner of 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 fishing and gunning
purposes.' The plaintiff 'claims, as damages, for the use and occupation of his
said property as aforesaid, the sum of $9,999 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:
3

(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 lighthouse, 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 over ruled 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. Rep. 172.

On June 27, 1889, the circuit judge filed findings of facts and conclusions of
law, which are copied in the margin.1

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 demurrer to
the 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
recoir. But this is comparatively unimportant, because those findlings 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

lighthouse 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 remained in the state after the adoption of the
constitution of the United States, except so far as any right in such land was
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 a necessary incident the exclusive right to regulate and control the
building and maintenance of lighthouses for the protection of navigation, and
except, also, so far as any right on such lands has been lawfully granted by the
state of Maryland to private persons.
10

By the statued of Maryland of 1862, c. 129, article 54 of the Public General

Laws of the state was amended by adding the following sections:

11

'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 lide extent as such right may
or can be claimed by the proprietor of land bounding on water not navigable.

12

'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.

13

'Sec. 39. No patent hereafter issued out of the land office shall 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.'

14

The plaintiff contends that the entire title in the land below high tide, with the
right to improve and build upon the same, remained 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 for the erection and maintenance of a lighthouse
for the public use, without just compensation.
15

The United States, on the other hand, assert, and the court below had held, that
the United States, upon the adoption of the constitution, acquired the
paramount right to the use of this submerged land for a lighthouse, 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.

16

The question thus presented is of such importance to the United States, as well
as to owners of lands bounding on tide waters, 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.

17

The whole effect of the act of March 3, 1887, (chapter 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. U. S. v. Jones, 131 U. S.
1, 16, 18, 9 Sup. Ct. Rep. 669.

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 tort 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. U. S., 8 Wall. 269, 274; Langford v. U. S., 101 U. S. 341,
346; U. S. v. Jones, above cited.

19

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. U. S., 17 Wall. 489, 493.

20

In langford v. U. S. 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.

21

It has since been held that if the United States appropriate to a public use ladn
which they admit to be private property, they may be held, as upon an implied

contract, to pay its value to the owner. U. S. v. Great Falls Manuf'g Co., 112 U.
S. 645, 5 Sup. Ct. Rep. 306, and Id., 124 U. S. 581, 8 Sup. Ct. Rep. 631. 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. Manufacturing Co., 113 U. S. 59, 5 Sup. Ct. Rep.
717; U. S. v. Palmer, 128 U. S. 262, 9 Sup. Ct. Rep. 104. 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. U. S., 24 Ct. Cl. 278.
22

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 lighthouse. 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 lighthouse, 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.

23

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

24

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

25

Mr. Justice SHIRAS, dissenting.

26

When the fifth amendment of the constitution of the United States declares that
'private property shall not be taken for public use without just compensation,' a
compact or contract of the highest degree of obligation is thereby established
between the American people of the one part and each and every citizen of the
other part. In and by that constitutional provision every citizen agrees that his
property may be taken for public use whenever the nation, through its
legislative department, demands it; and the United States agree that, when the
property of the citizen is so taken, just compensation shall be made.

27

Whenever a case arises in which that constitutional provision is invoked, two

questions present themselves: First, is the property dealt with the private
property of the party claiming it? and, secondly, has it been taken by the United
States for public use?
28

If the property to be affected is not that of the claimant, of course his appeal to
the constitutional protection will be vain. But it is equally plain that the
question of title is not one to be decided by the party claimant, or by the
legislative or executive departments of the United States. That is a judicial
question. Accordingly if, in a given case, it is either admitted or proposed to be
shown that the property concerned belongs to a party before a court having
jurisdiction to deal with the subject, then the only question that remains is
whether such property has been taken by the United States for public use. In
such a case the United States cannot, by a plea denying the plaintiff's title,
make it the duty of the court to dismiss the plaintiff's suit. Such a denial cannot
be treated, in face of the constitutional compact, as an exercise of sovereign
power, whereby the right of the citizen to assert his property rights is forbidden,
but it merely raises a judicial issue, to be determined by the court.

29

If the court shall determine that the property in question is the private property
of the claimant, then the second question comes up,whether the United
States have taken it for public use.

30

If it shall appear that, in point of fact, the United States have not taken the
plaintiff's property for public use, and that all that the plaintiff has to complain
of is that some persons, known or unknown, but claiming to be officers or
agents of the Unites States, have committed a trespass upon his property, and it
does not appear that the acts complained of were in pursuance of any law of the
United States, or that they have been ratified by the United States, by taking
possession of and occupying the property for public use, then the plaintiff's
case will fall within the doctrine of Langford v. U. S., 101 U. S. 341, and must
be treated as an attempt, under the assumption of an implied contract, to make
the government responsible for the unauthorized acts of its officers, those acts
being themselves torts.

31

But if it shall be shown or be admitted that the United States, by law, either
authorized their agents to appropriate the property of the plaintiff, or have
ratified the action of their agents by taking possession of the property and
subjecting it to public use, then the constitutional duty of the court is to
pronounce judgment for the plaintiff, and to award him just compensation.

32

These views do not overlook the wellsettled doctrine that unless and until

congress shall, by adequate legislation, provide a legal remedy, private rights

against the government may be in abeyance. But when congress, in obedience
to the behest of the constitution, has provided such a remedy, then there is no
legal obstacle to the plaintiff's recovery. That congress has provided such a
remedy is seen in the act of March 3, 1887, (chapter 359,) whereby it is enacted
that the court of claims, and, concurrently, the district and circuit courts of the
United States, 'shall have jurisdiction to hear and determine all claims founded
upon the constitution of the United States or any law of congress, except for
pensions, or upon any regulation of an executive department, or upon any
contract, express or implied, with the government of the United States, or for
damages, liquidated or unliquidated, in cases not sounding in tort, in respect of
which claims the party would be entitled to redress against the United States
either in a court of law, equity, or admiralty, if the United States were suable.'
33

This legislation perhaps originated in the regret expressed by this court in

Langford's Case, that 'congress has made no provision by general law for
ascertaining and paying this just compensation.' That was a suit brought in the
court of claims, under section 1059 of the Revised Statutes, in which there is no
remedy provided for claims founded upon the constitution of the United States,
and was, in the language of the court, the case of 'an unequivocal tort.'

34

The later case of U. S. v. Great Falls Manufacturing Co., 112 U. S. 656, 5 Sup.
Ct. Rep. 306, is, in some respects, like the present one. It was there held that it
was clear. 'that these property rights have been held and used by the agents of
the United States, under the sanction oflegislative enactments by congress; for
the appropriation of money specifically for the construction of the dam from
the Maryland shore to Conn's island was, all the circumstances considered,
equivalent to an express direction by the legislative and executive branches of
the government to take this particular property for the public objects
contemplated by the scheme for supplying the capital of the nation with
wholesome water. The making of the improvements necessarily involves the
taking of the property; and if, for the want of formal proceedings for its
condemnation to bupblic use, the claimant was entitled, at the beginning of the
work, to have the agents of the government enjoined from prosecuting it until
provision was made for securing in some way payment of the compensation
required by the constitution,upon which question we express no opinion,
there is no sound reason why the claimant might not waive that right, and,
electing to regard the action of the government as a taking under its sovereign
right of ancient domain, demand just compensation. In that view we are of
opinion that the United States, having, by their agents, proceeding under the
authority of an act of congress, taken the property of the claimant for public
use, are under an obligation imposed by the constitution to make compensation.

The law will imply a promise to make the required compensation where
property, to which the government asserts no title, is taken pursuant to an act of
congress, as private property to be applied for public use. Such an implication
being consistent with the constitutional duty of the government, as well as with
common justice, the claimant's cause of action is one that arises out of implied
contract, within the meaning of the statute which confers jurisdiction upon the
court of claims of actions founded 'upon any contract, express or implied, with
the government of the United States."
35

Having distinguished the case from that of Langford, the court proceeded to
say: 'In such a case it is difficult to perceive why the legal obligation of the
United States to pay for what was thus taken pursuant to an act of congress is
not quite as strong as it would have been had formal proceedings for
condemnation been resorted to for that purpose. If the claimant makes no
objection to the particular mode in which the property has been taken, but
substantially denies it, by asserting, as is done in the petition in this case, that
the government took the property for the public uses designated, we do not
perceive that the court is under any duty to make the objection in order to
relieve the United States from the obligation to make just compensation.'

36

It will be noticed that this decision, in terms so applicable to the present case,
was made before the act of March 3, 1887, in which, for the first time, an
express remedy was given for 'all claims founded upon the constitution of the
United States,' and in 'respect to claims for which the party would be entitled to
redress against the United States, either in a court of law, equity, or admiralty, if
the United States were suable.'

37

In the present case, although no express proceedings have been instituted by the
United States to condemn the property for public use, yet it is admitted in the
pleas that the United States have taken possession of it for a public use or
purpose; and by various acts of congress, of which we can take judicial notice,
large sums of money have been granted to construct and maintain the
lighthouse on the site in question.

38

The opinion of the court seeks to withdraw the case from the operation of the
constitution and the act of 1887, and to bring it within the decision of the
Langford Case, by contending that, because the United States by their pleas
deny the plaintiff's right to recover, the acts complained of are thereby shown
to have been sheer torts, and therefore expressly exempted from judicial
cognizance. I am unable to see the force of this reasoning. The statute having
provided that all claims founded upon provisions of the constitution shall be
enforceable, surely a district attorney of the United States cannot by a mere

plea, not denying the plaintiff's title to his land, but claiming that the land is
legally subject to a servitude in favor of the United States, which exonerates
them from making compensation, deprive the plaintiff of his right under the
statute to have his claim adjudicated. Can it be possible that, after congress, in
recognition of the constitutional provision and of the repeated suggestions of
this court, has provided a legal remedy, a subordinate legal functionary can by a
plea, either of matter of fact or of law, defeat the beneficient purpose of
congress, deprive the plaintiff of his remedy, and convert the United States,
against their will, as expressed in the constitution and the act of congress, into a
wrongdoer? I cannot accept the proposition that, by a plea putting the plaintiff
upon proof of his claim, the United States thereby escape from their
constitutional coverant, and nullify the statute which provides a remedy.
39

The question presented by the second plea in the court below is, no doubt, one
of difficulty and importance, which, if and when it comes before this court, will
demand serious consideration; but that question is waived by the opinion of the
court, and any discussion of it in this opinion would be out of place.

40

I therefore have a right to assume that the property of the plaintiff below,
though held subject to the right of eminent domain, is entitled to the protection
of the constitution; that there is no kind of private property, whatever may be its
nature or origin, that can be taken for public use without just compensation
being made.

41

Hence it follows that the court below erred in overruling the demurrer to the
second plea. I think the judgment of the court below should be reversed, and
the cause be remanded to the circuit court to proceed therein in exercise of the
jurisdiction conferred upon it in such ample terms by the act of March 3, 1887.

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, (chapter 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) In find that the plaintiff, since February 14, 1873, has been seised 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 ineiuded 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 200 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 land 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 2 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 lighthouse 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 theUnited States took possession of said site for the purpose of
building the lighthouse in question, without condemnation, or the payment of
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 lighthouse 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 the erection of said lighthouse; and that the island formerly
rented for $3,000 per annum, but since the erection of the lighthouse the rent
has decreased to $500 per annum.
Conclusions of Law.
That the legal title to the site of the lighthouse in question is in the stae of
Maryland, subject to the riparian rights of the plaintiff under the act of 1862,
chapter 129, of the Laws of Maryland.
That under article 1, 8. Const. U. S., 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 for the purposes of commerce,
which includes navigation, without condemnation or compensation; the
submerged land forming the site of the lighthouse 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 I 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.