MARY R. PEABODY, Saco & Biddeford Savings Institution, Samuel Ellery Jennison, and the Portsmouth Harbor Land & Hotel Company, Appts., v. UNITED STATES.

This is an appeal from a judgment of the court of claims, dismissing petitions for compensation for land alleged to have been taken by the United States for public use. 46 Ct. Cl. 39. Separate suits were brought by Samuel Ellery Jennison, the owner at the time the taking is said to have occurred, by his mortgagees, Mary R. Peabody and the Saco & Biddeford Savings Institution, and by his grantee, the Portsmouth Harbor, Land, & Hotel Company. These suits were consolidated and the merits were heard. The following facts are shown by the findings:

The land in question, comprising about 200 acres, forms the southern corner of Gerrish island, the southernmost point on the coast of Maine. It lies about 3 miles from Portsmouth, bordering on the south and east the Atlantic ocean, and on the west the entrance to Portsmouth harbor. Its value consists almost entirely in its adaptability for use as a summer resort, and it had been improved for this purpose by the erection of a hotel, cottage, outbuildings, and pier, by the construction of roads, and by the provision of facilities for summer recreations.

In 1873, long before Jennison acquired title and improved the property, the United States began the construction of a twelve-gun battery upon a tract of 70 acres lying north and west of the land in suit and abutting upon it. This battery was to be one of the outer line of defenses of Portsmouth harbor, for which appropriation had been made by the act of February 21, 1873, 17 Stat. at L. 468, chap. 175. See also act of April 3, 1874, 18 Stat. at. L. 25, chap. 74. By the year 1876, a large sum had been expended upon the work, which had reached an advanced stage of construction. Operations were closed in September of that year, however, for want of funds, and the fortification was not occupied by the United States thereafter until work was resumed in 1898. The government then constructed on the same site a battery consisting of three 10-inch guns and two 3-inch rapid fire guns. It was practically completed on June 30, 1901, and was transferred to the artillery on December 16, 1901, being named Fort Foster.

No part of the fort encroaches upon the land in suit; the fort is within 200 feet of its northwestern corner and about 1,000 feet from the hotel. The claimants' land lies between the fort and the open sea to the south and southeast; and the guns have a range of fire over all the sea front of the property. As the government reservation on its western side borders the entrance to the harbor, the court found that there was an available portion of the shore belonging to the reservation which permitted the firing of the guns in a southwesterly direction 'for practice and for all other necessary purposes in time of peace' without the projectiles passing over the land in question. This conclusion was reached by applying the local law governing the boundary lines of contiguous proprietors where there is a curvature of the shore. Emerson v. Taylor, 9 Me. 42, 23 Am. Dec. 531. It may be noticed here that the petitioners insist that the guns could not be fired over the narrow area thus found to be a part of the reservation without endangering life and property along the New Hampshire coast, and they present in their brief a map to support their assertion. The government urges that this map has not been identified and is wholly incompetent; and that, as the question is one of fact, the finding must be deemed conclusive. But while thus finding that there was a line of fire available to the government over its own shore property, the court also found that the most suitable field of fire for practice and other purposes in time of peace would be over the claimants' land.

On or about June 22, 1902, two of the guns were fired for the purpose of testing them at a target off the coast, the missiles passing over the land in suit; and another gun was fired for the same purpose and to the same effect on September 25, 1902, the resulting damage to buildings and property amounting to $150.

None of the guns has been fired since, but they have been kept in good condition by a detail from Fort Constitution, which is situated across the Piscataqua river. The court below further states in its findings that 'it does not appear from the evidence that there is any intention on the part of the government to fire any of its guns now installed, or which may hereafter be installed, at said fort in time of peace over and across the lands of the claimants so as to deprive them of the use of the same or any part thereof, or to injure the same by concussion or otherwise, excepting as such intention can be drawn from the fact that the guns now installed in said fort are so fixed as to make it possible so to do, and the further fact that they were so fired upon the occasions as hereinbefore found.'

In the years 1903 and 1904, the hotel, which had previously been profitable, was conducted at a loss; since 1904, it has been closed and the cottages have been rented only in part and at reduced rates. It is found that the erection of the fort and the installation of the guns have materially impaired the value of the property, and that this impairment will continue so long as the fort and artillery are maintained. This is found to be due to the apprehension that the guns will be fired over the property.

The question is whether, upon this showing, the petitioners were entitled to recover.

It may be assumd that if the government had installed its battery, not simply as a means of defense in war, but with the purpose and effect of subordinating the strip of land between the battery and the sea to the right and privilege of the government to fire projectiles directly across it, for the purpose of practice or otherwise, whenever it saw fit, in time of peace, with the result of depriving the owner of its profitable use, the imposition of such a servitude would constitute an appropriation of property for which compensation should be made. The subjection of the land to the burden of governmental use in this manner might well be considered to be a 'taking' within the principle of the decisions (Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 177, 178, 20 L. ed. 557, 560; United States v. Lynah, 188 U. S. 445, 469, 47 L. ed. 539, 548, 23 Sup. Ct. Rep. 349; United States v. Welch, 217 U. S. 333, 339, 54 L. ed. 787, 789, 28 L.R.A.(N.S.) 385, 30 Sup. Ct. Rep. 527, 19 Ann. Cas. 680), and not merely a consequential damage incident to a public undertaking, which must be borne without any right to compensation (Northern Transp. Co. v. Chicago, 99 U. S. 635, 642, 25 L. ed. 336, 338; Gibson v. United States, 166 U. S. 269, 41 L. ed. 996, 17 Sup. Ct. Rep. 578; Scranton v. Wheeler, 179 U. S. 141, 164, 45 L. ed. 126, 137, 21 Sup. Ct. Rep. 48; Bedford v. United States, 192 U. S. 217, 224, 48 L. ed. 414, 417, 24 Sup. Ct. Rep. 238; Jackson v. United States, 230 U. S. 1, 23, 57 L. ed. 1363, 1374, 33 Sup. Ct. Rep. 1011).

But, in this view, the question remains whether it satisfactorily appears that the servitude has been imposed; that is, whether enough is shown to establish an intention on the part of the government to impose it. The suit must rest upon contract, as the government has not consented to be sued for torts, even though committed by its officers in the discharge of their official duties (Gibbons v. United States, 8 Wall. 269, 275, 19 L. ed. 453, 454; Langford v. United States, 101 U. S. 341, 343, 25 L. ed. 1010, 1011; Schillinger v. United States, 155 U. S. 163, 169, 39 L. ed. 108, 110, 15 Sup. Ct. Rep. 85; Russell v. United States, 182 U. S. 516, 530, 45 L. ed. 1210, 1215, 21 Sup. Ct. Rep. 899; Harley v. United States, 198 U. S. 229, 234, 49 L. ed. 1029, 1030, 25 Sup. Ct. Rep. 634); and a contract to pay, in the present case, cannot be implied unless there has been an actual appropriation of property (United States v. Great Falls Mfg. Co. 112 U. S. 645, 656, 657, 28 L. ed. 846, 850, 5 Sup. Ct. Rep. 306).

The contention of the petitioners, therefore, is plainly without merit so far as it rests upon the mere fact that there is a suitable, or the most suitable, field of fire over their property. Land, or an interest in land, cannot be deemed to be taken by the government merely because it is suitable to be used in connection with an adjoining tract which the government has acquired, or because of a depreciation in its value, due to the apprehension of such use. The mere location of a battery certainly is not an appropriation of the property within the range of its guns.

The petitioners' argument assumes that the guns, for proper practice, must be fired over the land in suit, and, hence, that this burden upon it was a necessary incident to the maintenance of the fort. The fact of the necessity of practice firing is said to be established by the finding with respect to the line of fire over the government's portion of the shore, in which it is said that this would be sufficient 'for purposes of practice and for all other necessary purposes in time of peace.' But, in the light of other findings, this is far from affording a sufficient foundation for the conclusion upon which the petitioners insist. On the contrary, that no such necessity as is now asserted can be assumed from the mere fact that the fort is maintained is demonstrated by the facts of this case. This suit was tried in the latter part of the year 1910, and it appeared that none of the guns had been fired for over eight years. When the suit was brought in 1905, nearly two years and a half had elapsed since the firing of a shot. The guns have been fired only upon two occasions, or three times in all, and this firing took place in 1902, shortly after the installation of the guns, for the purpose of testing them. It may be that practice in firing the guns would be highly desirable, but it is too much to say upon this record that the fort would be useless without it. Nor are we at liberty to conclude that the government has taken property, which it denies that it has taken, by assuming a military necessity in the case of this fort which is absolutely contradicted by the facts proved.

Reduced to the last analysis, the claim of the petitioners rests upon the fact that the guns were fired upon two occasions in 1902, as stated, and upon the apprehension that the firing will be repeated. That there is any intention to repeat it does not appear, but rather is negatived. There is no showing that the guns will ever be fired unless in necessary defense in time of war. We deem the facts found to be too slender a basis for a decision that the property of the claimants has been actually appropriated, and that the government has thus impliedly agreed to pay for it.

The judgment is affirmed.

Affirmed.