Peabody v. United States

delivered the opinion of the court.

■ 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. Cls. 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 and Biddeford Savings Institution, and by his grantee, the Portsmouth Harbor Land and 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 two hundred acres, forms the southern corner of Gerrish Island, the southernmost point on the coast of Maine. It lies about three miles from Portsmouth, bordering on the south and

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 seventy 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, c. 175, 17 Stat. 468 . (See also act of April 3, 1874, c. 74, 18 Stat. 25 .) 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 ten-inch guns and two three-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 two hundred feet of its northwestern corner and about one thousand 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 direc

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 tó 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

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 assumed 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 arid 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 Co., 13 Wall. 166 , 177, 178; United States v. Lynah, 188 U. S. 445 , 469; United States v. Welch, 217 U. S. 333 , 339) and not merely a consequential damage incident to a public undertaking which must be borne without any right to compensation (Transportation Co. v. Chicago, 99 U. S. 635 , 642; Gibson v. United States, 166 U. S. 269 ; Scranton v. Wheeler, 179 U. S. 141 , 164; Bedford v. United States, 192 U. S. 217 , 224; Jackson v. United States, 230 U. S. 1 , 23).

But, in this view, the question remains whether it satis

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 main

Reduced to the last analysis, the claim of the petitioners rests upon the fact that the guns were fired upon the 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.