Grant v. United States

2 Ct. Cl. 551 | Ct. Cl. | 1866

Loring, J.,

dissenting :

By the provision of the Constitution the petitioner is entitled to a compensation for his property taken for public use. What is to be paid for is the loss to him, and not the benefit to the United States ; and the measure of compensation is the value of the property at the time and place it was taken.

But, before it was taken, circumstances had reduced the value of the petitioner’s property by making it utterly unavailable to him. He could neither sell it nor use it, nor carry it away, nor keep it there; he could only abandon it. This was certain, and he did abandon all that was not destroyed. This position of the petitioner’s property was his misfortune, and he must bear that alone. He is not to be relieved of it at the cost of the United States, for they are not responsible to him for the circumstances that created it; and if the petitioner is to bear the depreciation of his property, I think the United States are to pay only for what they added to that, viz: the substitution of its burning for its abandonment, or the difference between these to the petitioner. If he had left, and thus abandoned his property the day before it was burned, would the fact of its actual abandonment have been immaterial in estimating his damages 1 And is it less material that the necessity and his purpose of abandonment were fixed before the burning, and acted on with it 1 The whole question is, whether a man shall be paid for property he is under the necessity of abandoning, the same price as if he held it clear of any such necessity, and free for its full beneficial use. I think that he should not be, and therefore I do not concur in the opinion of the majority of the court.

The evidence suggests that some of the property of the petitioner might have been removed in his wagons, which the United States took and paid him for. But as, in such case, the property would have been abandoned or destroyed by the United States when the wagons and their contents were destroyed, at the time of the flight into the mountains, it is not considered to alter the question.