United States v. North American Transportation Tranding Co North American Transportation Trading Co v. United States, Nos. 319 and 320

• Court: United States Supreme Court
• Writing for the Court: BRANDEIS
• Citation: 64 L.Ed. 935,253 U.S. 330,40 S.Ct. 518
• Parties: UNITED STATES v. NORTH AMERICAN TRANSPORTATION & TRANDING CO. NORTH AMERICAN TRANSPORTATION & TRADING CO. v. UNITED STATES
• Docket Number: Nos. 319 and 320
• Decision Date: 01 June 1920

253 U.S. 330 40 S.Ct. 518 64 L.Ed. 935 UNITED STATES

v.

NORTH AMERICAN TRANSPORTATION & TRANDING CO. NORTH AMERICAN TRANSPORTATION & TRADING CO. v. UNITED STATES.

Nos. 319 and 320. Argued April 30, 1920. Decided June 1, 1920.

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Messrs. Burt E. Barlow and A. R. Serven, both of Washington, D. C., for North American Transportation & Trading Co.

Mr. Assistant Attorney General Davis, for the United States.

Mr. Justice BRANDEIS delivered the opinion of the Court.

This suit was brought by the North American Transportation & Trading Company in the Court of Claims on December 7, 1906. The petitioner seeks to recover the

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value of a placer mining claim situated on the public land near Nome, Alaska, which is alleged to have been taken by the government on December 8, 1900, and also compensation for use and occupation thereof after that date. Ownership of the property by the company and the physical taking and continued possession of it by the government were not controverted. The lower court found, also, that about July 1, 1900, Gen. Randall, United States Army, commanding the Department of Alaska took possession, as a site for an army post, of a large tract of public land which included the mining claim. The company yielded possession of the part occupied by it being unable to withstand his authority, but at the same time it demanded compensation, which Gen. Randall promised would be paid. Use of the site for an army post was thereafter recommended by him to the Secretary of War. Pursuant to this recommendation, the President issued on December 8, 1908, an order by which the tract was reserved from sale and set aside for military purposes; and on December 20, 1908, the Secretary of War announced it as a public reservation, for the present under the control of the War Department. The tract has been used as an army post continuously since possession was first taken by Gen. Randall. The buildings erected thereon are situated on that portion of the land which had been the company's placer claim; so that at no time since Gen. Randall took possession of the land has the company been able to operate its claim or do any further mining work thereon.

The government contended that, if on the facts there was a legal taking or other act entitling petitioner to recover compensation, the cause of action had accrued more than six years prior to the commencement of this suit, and that therefore under section 156 of the Judicial Code (Comp. St. § 1147) the petition should be dismissed. The Court of Claims found that the company's property was taken within the

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six years—that is, on December 8, 1900—and that its then reasonable value was $23,800. It entered judgment for that amount. 53 Ct. Cl. 424. Both parties appealed—the government, on the ground that the right of recovery, if any, was barred; the company, on the ground that no compensation was allowed for the use and occupation between the date of the taking and the date of entry of judgment.

First. When the government, without instituting condemnation proceedings, appropriates for a public use under legislative authority private property to which it asserts no title, it impliedly promises to pay therefor. United States v. Great Falls Manufacturing Co., 112 U. S. 645, 5 Sup. Ct. 306, 28 L. Ed. 846; United States v. Lynah, 188 U. S. 445, 462, 465, 23 Sup. Ct. 349, 47 L. Ed. 539; United States v. Kelly, 243 U. S. 316, 37 Sup. Ct. 380, 61 L. Ed. 746; United States v. Cress, 243 U. S. 316, 329, 37 Sup. Ct. 380, 61 L. Ed. 746. But, although Congress may have conferred upon the Executive Department power to take land for a given purpose, the government will not be deemed to have so appropriated private property, merely because some officer thereafter takes possession of it with a view to effectuating the general purpose of Congress. See Ball Engineering Co. v. J. G. White & Co., 250 U. S. 46, 54-57, 39 Sup. Ct. 393, 63 L. Ed. 835. In order that the government shall be liable it must appear that the officer who has physically taken possession of the property was duly authorized so to do, either directly by Congress or by the official upon whom Congress conferred the power.

The Acts of March 3, 1899, c. 423, 30 Stat. 1064, 1070, and of May 26, 1900, c. 586, 31 Stat. 205, 213, making appropriations for barracks and quarters for troops, furnish sufficient authorization from Congress to take land for such purposes, so that the difficulty encountered by the claimant in Hooe v. United States, 218 U. S. 322, 31 Sup. Ct. 85, 54 L. Ed. 1055, does o t exist here. But the power granted by those acts was conferred upon the Secretary of War. Act Aug. 1, 1888, c. 728, § 1, 25 Stat. 357 (Comp. St. § 6909); Act Aug. 18, 1890, c. 797, § 1, 26 Stat. 316 (Comp. St. § 6911). It was for him to determine whether

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the army post should be established and what land should be taken therefor. Compare Nahant v. United States, 136 Fed. 273, 70 C. C. A. 641, 69 L. R. A. 723; Id., 153 Fed. 520, 82 C. C. A. 470; (C. C.) United States v. Certain Lands in Narragansett, R. I., 145 Fed. 654. Power to take possession of the company's mining claim was not vested by law in Gen. Randall; and the Secretary of War had not, so far as appears, either authorized it or approved it before December 8, 1900. It was only after the President reserved from sale and set aside for military purposes the large tract of land in which the company's mining claim was included that the Secretary of War took action which may be deemed an approval or ratification of what Gen. Randall had done. What he had done before that date having been without authority, and hence tortious, created no liability on the part of the government. Higo v. United States, 194 U. S. 315, 323, 24 Sup. Ct. 727, 48 L. Ed. 994. Since the cause of action arose after December 7, 1900, this suit was not barred by section 156 of the Judicial Code.

The suggestion is made that, as the President's order reserved the land 'subject to any legal rights which may exist to any land within its limits,' the Secretary's action thereafter was not a taking of the mining claim. But this clause and the reference to it in the announcement made by the Secretary must, in view of the circumstances, have meant merely that the right to compensation of...