64 Ct. Cl. 572 | Ct. Cl. | 1928
delivered the opinion of the court:
This case is before the court upon the facts. It has been decided that the amended petition- states a cause of action. Portsmouth Harbor Land & Hotel Company case, 260 U. S. 327. It is there stated that “ similar claims in respect of the same land based upon earlier acts of the Government have been made before and have been denied,” citing the Peabody case, 231 U. S. 530, and the Portsmouth Harbor Land & Hotel Company case, 250 U. S. 1. The earlier of these suits was brought in March, 1905; the next was brought in June, 1915; and the original petition in the present suit was filed in February, 1920. For convenience of reference they will be referred to as the first, second, and instant suits. While these first and second suits involved claims based upon earlier acts of the Government, it is to be noted that there is a difference of parties and that the land owned by any of the parties to the instant suit is very much less than that claimed to have been taken in the first suit. Notwithstanding the averments appear to include a claim for all of the land, it must ‘be confined to that part which is owned by a party or parties to the suit, and, as we show later, the claim is for a parcel of about 20 acres of upland on which at one time stood a hotel and in which only one of the parties plaintiff had any title or interest when the petition was filed. The hotel itself had been razed. It is to be noted also that the opinion of the Supreme Court on the question of the demurrer does not question or qualify either of the two earlier opinions. On the contrary, the controlling principles as announced in the first suit is quoted and approved, 260 U. S. 329. The two first suits must be taken as res adjudicóla upon the issues involved, and while it is said in the opinion by Mr. Justice Holmes (p. 330) that “ the fact that the evidence was not sufficient in 1905 does not show that it may not be sufficient in 1922,” and because of this condition the evidence adduced is to be considered in ascertaining its suffi
What, then, is the new or additional evidence to establish the averments of the petition? By an amendment, filed after a demurrer had been sustained to the original petition, it is alleged that “ since the termination of hostilities and subsequent to the filing of the petition ” the United States “ have set up the said guns so as to fire over and across the land of said claimants, and have set the guns as aforesaid with the intention of firing and of pointing them as aforesaid over and across the land of the said claimants,” and further have in the use of said fort discharged all of said guns on or about the 8th day of December, 1920, “ over and across the said land.” The petition was filed February 10, 1920, the amendment was made in March, 1921, and the firing mentioned occurred in December, 1920. The facts establish that from the time of the bringing of the second suit in June, 1915, which complained of firings of the guns “ on or about November 23, 1914,” to the time of bringing the instant suit in 1920 not a gun had been fired at Fort Foster. Indeed, from the fall of 1911 until after the instant suit was brought there were no guns at Fort Foster to be fired, with the exception of two small-caliber guns at Battery Chapin, which have never been complained of, and, so far as that is concerned, are not shown to have ever been fired. The complaint in all the suits has been of 10-inch guns. These were dismounted in 1917 after the United States entered the World War and were removed to New York for shipment to France. They were not sent to France but were returned to Fort Foster in the latter part
It would seem, however, from the petition that the contention is that the guns, when discharged at all, must be fired over the land in question. Such is the plain implication of the averments, and certainly it is alleged that the guns were fired over this land in 1920. The proof does not sustain the latter allegation and fails to show the direction of the fire directed in 1920 by the officers of the Ordnance Department. Nor can the other contention be sustained. The guns can be fired entirely over and across Government property without impinging in the least on the land in question. This was pointed out by Judge Barney’s opinion in the first suit, Peabody case, 46 C. Cls. 39, 55. The line of division of the flats appurtenant to the 20-acre parcel and the Government reservation in accordance with the rule established by the Maine courts is shown on the map attached to the findings by the line A to F. The rule is thus stated by Judge Barney: “To divide flats between adjoining riparian proprietors, draw a base line from one corner, at high-water mark, of each lot to the other, and run a line from each end of this line at right angles to low-water mark. If, by reason of the curvature of the shore, the lines diverge or conflict with each other, the gain or loss is to be divided equally between adjoining lot owners by bisecting the angles made by ,the diverging or conflicting lines.” To sustain the rule there is cited Emerson v. Taylor, 9 Maine 42, and some other cases. After illustrating the rule by lines on map attached to the opinion, it continues: “ It will thus be seen that under this rule ,the Government is the proprietor of that part of the flats situated to the west of line A to F, which the findings show is sufficient territory over and across which
Another basis of complaint is the alleged use of the land “ for the establishment of a fire-control station and service for the use of said fort.” It is said in the opinion of the Supreme Court (p. 330) that “ the establishment of a fire control is an indication of an abiding purpose ” to utilize the lands at will. It becomes important, therefore, to examine the facts as to the fire-contro) station. There was no fire-control station at Fort Foster prior to the war. There was none there when this su.it was brought. There is none there now. What was done relative to the establishment of a fire control was largely developed in the testimony taken in the second suit. It was evidently not deemed of such serious import at that time because it was not made by plaintiffs the basis of a request for a finding of fact in the second suit. The plaint.iffs asked for a finding that “ the fort was maintained in a condition of readiness, except for the fact that no fire-control system was installed.”
An officer who devised the plan for a fire control in 1917, after the United States entered the war, and who put his plan into execution, was examined as a witness in 1917 and stated positively that the plan was for a fire control at Fort Stark and not for Fort Foster. It may pertinently be asked what purpose cou)d be subserved by setting up a fire-control station at Fort Foster when the guns had been removed.
Let it be supposed that a vessel is seen approaching. The fact is communicated by the one observation station to the other and each of them takes the line of direction from its end of the base line across the supposed vessel. Knowing the exact length of the base line and the size of the angle made at each end by the line projected from the end of the base line across the object, the distance between the several stations and the object is readily ascertained by a method of triangulation, and thus the position of the vessel is accurately found, it being located at the point of intersection of the two lines projected from the ends of the base line. But what is needed is to get this information to the central station where the guns are to be fired at the object-sup
Before constructing any observation points the officer in charge sought the consent of known property owners to the temporary occupation. It does not definitely appear that any owner of the 20-acre parcel was asked or consented. The Saco & Biddeforcl Savings Institution, as the owner in possession of the 155 acres, gave express consent for any use of the property found necessary during the period of the war. M.iss Belle H. McClure, the owner of a lot near the Government reservation on which the cable connecting the primary station at Cedar Point with Fort Foster would probably pass, cordially assented to the use of her property, and not having a reply from the authorities she properly insisted upon and received an official acknowledgment of her willingness that her property could be used by the Government during the war. That there was no purpose to disregard private rights may be assumed from the fact that the authorization for the establishment of the fire-control station and its accessories stated that the consent of property owners had been obtained, but as we have said, it does not appear that the use of any part of the 20-acre tract was authorized, nor does it appear that any objection was made to the use. A small detail of men was kept at the two stations until hostilities ceased and was then removed, together with the telephones and other appliances. The stations were then
Notwithstanding the decisions in the two cases, the plaintiffs contend that the property was taken in 1902, and upon their brief say, “ The date of the alleged taking is 1902; due compensation includes the ordinary increase in value of the property to 1926. The mortgagees are entitled to their proper adjustment, but the United States took the property in 1902, though the action only accrued upon the manifestation of intention in 1920.” This contention has no basis of support, in the op,inion of the Supreme Court. If the taking was, as is contended, in 1902, the claim is clearly barred by the statute of limitations, which is jurisdictional. See Wardwell case, 172 U. S. 52. And if the property was taken in 1902, it is difficult to understand how there can be a claim for “ lost profits for 24 years at $10,000 per year,” or how that fact can give a right to claim an increase of value in 1920 of nearly double the value in 1902. Indeed, it is difficult to follow the reasoning that the existence of the fort and the handling of its guns so thoroughly destroyed or injured the beneficial use of the property when it is contended that during the period involved it so largely increased in value. But, as already said, there was no talking of the land or imposition of a servitude thereon either in 1902 or 1915, and the facts do not warrant a different conclusion in the instant suit.
Reference has been made to the question of ownership. The facts show that the Saco & Biddeford Savings Institution is the owner of 155 acres of the land, the taking of which was claimed in the first suit. That concern was not a party to the second suit, though it was the then owner of the 155 acres. It is not a party to the instant suit. The balance of the land, originally made the subject of claim, consists of about 20 acres of upland with some appurtenant flats. The hotel mentioned in the findings was located on this 20 acres.
Our conclusion is that the petition should be dismissed. And it is so ordered.