Statement of the Case.

complainants, the dam to be constructed after the manner of Plan A. And your complainant is informed and believes, and therefore avers, that the War Department of the United States has occupied said land with a force sufficient to prevent any opposition of your complainant to its acts and doings, or the acts and doings of its servants, agents, and employés without a breach of the peace of the State of Maryland."

It is also averred in the bill that the plaintiff waited, after several applications by it, both verbally and in writing, to the Attorney General and Secretary of War, until the last day before the year limited by said act in which claims might be filed in the Court of Claims for damages, expecting that steps would be taken by which its land and water rights might be legally taken by the United States in such form that it could obtain reasonable compensation for such property; and that nothing being done, from great caution and fear lest it might lose all benefit of any provision of said act by limitation, it then filed a petition in that court, setting forth its claim in order to save its rights, and for no other purpose whatever. But it protests that what the Secretary of War and the Attor ney General did are simple trespasses and wrongs done to the plaintiff, and that for the want of legal steps on their part, for the condemnation of its property, the Court of Claims is without jurisdiction to ascertain and award compensation to it.

The bill concludes with the averment that, even if the provisions of the act of Congress had been strictly followed, the steps taken by the Secretary of War and the Attorney General would not be justified in law, because the act under which they claimed to proceed is unconstitutional and void. The grounds upon which its validity is assailed will be hereafter indicated.

The relief asked is a decree restraining defendants and each of them from further occupying the plaintiff's lands and premises or from building any structure thereon, or in any way hindering or interfering with the natural flow of the water between Conn's Island and the Virginia shore; that the defendants and each of them be required to remove and cause to be removed every structure, dam, and embankment heretofore

Argument for Appellant.

erected by them or by any officer of the United States, acting in their behalf in the premises; that if it shall appear that its land and water rights have been legally condemned to the use of the United States, an issue be framed, triable by a jury, for the ascertainment of the compensation due the plaintiff, and that it have judgment for the amount so found in its favor; and that all persons, claiming to act for or on behalf of the United States, be restrained from occupying or in any way interfering with said land and water rights until the amount of such judgment be paid or tendered to plaintiff, or paid into court for its use.

In the court below a demurrer to the bill was sustained, and the plaintiff declining to amend, its suit was dismissed with Great Falls Manufacturing Co. v. Garland, 25 Fed.

costs.

Rep. 521.

Mr. Benjamin F. Butler and Mr. O. D. Barrett for appel

lant.

I. The act of 1882 in its provisions is unconstitutional: (1) In that it does not take private property for public use. Instead thereof it takes land and water-power, the property of the United States under the award, but for which the Government has not paid compensation to the owner: (2) In that the act tends to avoid an adjudication and determination of damages for land already taken by the United States by a new taking: (3) In that the act tends to avoid and set aside a compact with a sovereign State for the making of which the Government has received consideration from the State and its citizens, to which the faith ́of the Government is solemnly pledged: (4) In that it takes private land and water privileges in that State without the assent of the State of Maryland, or any cession of jurisdiction thereof, for the use of the inhabitants of Washington and Georgetown:

II. It is unconstitutional in that it does not provide for a constitutional and impartial tribunal to assess and determine the damages or compensation for the private property taken, if the taking is a "purchase" or condemnation in these: (1) It provides for a valuation of land and water rights taken, for the

Argument for Appellant.

purpose of fixing just compensation for the taking by appraisers, all appointed by an agent of the Government only, and does not provide any notice to the injured party to take part in such appointment, or to be present, or heard at the appraisement. And the only provision for compensation is a tender of such valuation, and to get that, a deed of its land must be executed at his own expense by the injured party: (2) It provides that such appraisers shall not consider the true and just value of the property taken or injured as compensation, in these words: "In making the valuation the appraiser shall only consider the present value of the land, without reference to the value for the uses for which it is taken, under the provisions of this act:" (3) It does not provide for a constitutional tribunal by which damages and compensation shall be assessed for private lands taken for a public use, such controversy being a “suit at law," the trial by jury was not provided, nor any tribunal whose judgment as to compensation can be enforced; nor is any pledge of the faith of the Government that said compensation shall be paid, or any payment ordered, save in case such appraisement is accepted: (4) In this, that it provides as the only tribunal, the Court of Claims, which has no power to enforce the payment of any of its decisions, or to adjudicate cases or suits like the present, where specific performances of contracts is to be adjudged and enforced: (5) In that the act does not provide, nor is there any other provision of law by which the compensation for the property taken shall be paid, or any fund from which it shall be paid, save such as may hereafter be voted by the legislature, and approved by the accounting officers of the Treasury.

Under this head they cited as to the first and second propositions: Rhine v. McKinney, 53 Texas, 354; Cooley's Constitutional Limitations, 656; Great Laxey Mining Co. v. Clague, 4 App. Cas. 115; Nicklin v. Williams, 10 Exch. 259; Hamer v. Knowles, 6 II. & N. 454; Lamb v. Walker, 3 Q. B. D. 389; Boom Co. v. Patterson, 98 U. S. 403; and as to their right to a trial by jury: Charles River Bridge v. Warren Bridge, 11 Pet. 420; Doe v. Stetson, 8 Greenleaf, 365; Isom v. Mississippi Central Railroad, 36 Mississippi, 300; Raleigh & Gaston Rail

Argument for Appellant.

road v. Davis, 2 Dev. & Bat. Law, 451; Evansville &c. Railroad v. Miller, 30 Indiana, 209; Plank Road Co. v. Pickett, 25 Missouri, 535; Kohl v. United States, 91 U. S. 375; Mitchell v. Illinois & St. Louis Railroad, 68 Illinois, 286; Lake Shore Railroad v. Sanford, 23 Michigan, 418; Whitehead v. Arkansas Central Railroad, 28 Arkansas, 460; Burt v. Merchants' Ins. Co., 106 Massachusetts, 356; Jones v. United States, 109 U. S. 513; 2 Kent Com., 12th ed., 239, note f.; Bloodgood v. Mohawk & Hudson River Railroad, 18 Wend. 9; S. C. 31 Am. Dec. 313; Gardner v. Newburgh, 2 Johns. Ch. 162; S. C. 7 Am. Dec. 526; Southwestern Railroad v. Southern & Atlantic Telegraph Co., 46 Georgia, 43; Ligat v. Commonwealth, 19 Penn. St. 456; Penrice v. Wallace, 37 Mississippi, 172; Brown v. Beatty, 34 Mississippi, 227; Talbot v. Hudson, 16 Gray, 417; Orr v. Quimby, 54 N. H. 590; Connecticut River Railroad v. Franklin County Commissioners, 127 Massachusetts, 50; Haverhill Bridge Proprietors v. Essex County Commissioners, 103 Massachusetts, 120; Callison v. Hedrick, 15 Grattan, 244; Green v. Mich. Southern Railroad, 3 Michigan, 496; Jackson v. Winn's Heirs, 4 Littell, 323; Charleston Branch Railroad Co. v. Middlesex, 7 Met. 78; White v. Nashville &c. Railroad, 7 Heiskell, 518; Simms v. Memphis &c. Railroad Co., 12 Heiskell, 621; State v. Messenger, 27 Minnesota, 119; Loweree v. Newark, 38 N. J. Law, (9 Vroom,) 151; Long v. Fuller, 68 Penn. St. 170; People v. Hayden, 6 Hill, 359.

III. The Circuit Court erred in this: Assuming the provisions of the act to be within the purview of the Constitution, and the manner of taking as described by the act is not in any of its parts constitutionally objectionable, the court should have overruled the demurrer, and granted the relief sought for by the bill by some proper order and decree in favor of your orator: (1) Because it was the duty of those charged with the execution of the act to carry out and enforce every provision thereof in relation to purchasing and to "acquiring said land and water rights," and providing for valuation and appraisement thereof, and so to do all things that your orator might get relief in the premises without any delay except that

VOL. CXXIV-38

Opinion of the Court.

of urgent necessity. As to all and each of which duties, doings, and things to be done, prescribed by said act relative to your orator or his said lands, said officers or either of them did nothing: (2) Because that the Secretary of War and his officers and agents became trespassers ab initio, by entering upon the lands of your complainant and taking possession of them. By the provisions of said act, "upon the publication of the notice as above directed, the Secretary of War may take possession of the premises embraced in the survey and map, and proceed with the constructions herein authorized; and upon payment being made therefor, or without payment upon the expiration of the time above limited, without the filing of a petition, an absolute title shall vest in the United States;" and no surveys or proper map embracing the lands had been made by him, as is charged in the bill, and as is admitted by the demurrer; nor was any provision for payment made; and, without payment or provision for payment, Congress cannot vest an absolute title to the lands of the citizen in the United States: (3) Because, if the officers charged with the execution of this act, do on the land anything not authorized and directed by the act, or take any other and different, or more property, or for any other purpose than they are permitted by the act, then such officers become trespassers ab initio, and should be enjoined, and other relief against them be afforded.

To these points they cited: Kelley v. Horton, 2 Cowen, 424; Carpenter v. Grisham, 59 Missouri, 247; McCord v. High, 24 Iowa, 336; Beckwith v. Beckwith, 22 Ohio St. 180; Newell v. Wheeler, 48 N. Y. 486; Stockett v. Nicholson, Walker (Miss.), 75; Mayor &c. v. Delachaise, 22 La. Ann. 26; Dyckman v. Mayor &c. of New York, 5 N. Y. (1 Selden), 434; Burt v. Brigham, 117 Mass. 307; Reitenbaugh v. Chester Valley Railroad, 21 Penn. St. 100; United States v. Reed, 56 Missouri, 565; Currier v. Marietta & Cincinnati Railroad, 11 Ohio St.

228.

Mr. Solicitor General for appellees.

MR. JUSTICE HARLAN, after stating the case as above reported, delivered the opinion of the court.