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possession, but not, it has been held, when the Federal agent who made the lease was acting without authority.

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When the Government of the United States, by such formal proceedings as are necessary to bind it, takes for public use land to which it asserts no claim or title, but admits the ownership to be private or individual, there arises an implied obligation to pay the owner its true value, unless Congress has provided for the payment of the same, in which case no more can be recovered, although the owner has protested. It has been held that an action will lie to recover damages to land, to which the Government claims no title, if the same is permanently flooded or permanently subjected to periodical floods by a work, such as a dam built on adjoining land, under the direction of an Act of Congress; but that it is not liable for damages caused by temporary floods to land which was previously subject to overflow in time of freshets, although increased by a Government dam on adjacent land," or by revetments erected by the Government along the banks of a river to prevent erosion from natural causes, and that.where the Government has agreed to furnish a coffer dam to a contractor for the construction of a public work, it is liable for damage caused by negligence in the construction of the dam, although there was no stipulation in the contract to the effect. Not for damages by dredging to land artificially submerged when the Government had acted

§ 96b. 1 Bryan v. U. S., 6 Ct. Cl. 128; McGowan v. U. S., 20 Ct. Cl. 147.

2 Occidental Const. Co. v. U. S., C. C. A., 245 Fed. 817.

3 Langford v. U. S., 101 U. S. 341, 25 L. ed. 1010. See Hill v. U. S., 149 U. S. 593, 37 L. ed. 862; Great Falls Mfg. Co. v. Att'y Gen., 124 U. S. 581, 31 L. ed. 527; U. S. v. Russell, 13 Wall. 623, 20 L. ed. 474; Grant v. U. S., 1 Ct. Cl. 41; Hollister v. Benedict & B. Mfg. Co., 113 U. S. 59, 67, 28 L. ed. 901, 903; Mills v. U. S., 19 Ct. Cl. 79; Kettler v. U. S., 21 Ct. Cl. 175; Alexander's Case, 39 Ct. Cl. 383 (land used for a camp); Philippine Sugar Estates

Development Co. v. U. S., 40 Ct. Cl.

33.

4 Hooe v. U. S., 218 U. S., 322, 54 L. ed. 1055.

5 U. S. v. Lynah, 188 U. S. 445, 47 L. ed. 539; U. S. v. Welch, 217 U. S. 333; U. S. v. Grizzard, 219 U. S. 180, 55 L. ed. 165, 31 L.R.A. (N.S.) 1135.

6 U. S. v. Cress, 243 U. S. 316. 7 Coleman v. U. S., 181 Fed. 599. 8 Bedford v. U. S., 192 U. S. 217, 48 L. ed. 414. See Manigault v. Springs, 199 U. S. 473, 485, 50 L. ed. 274, 280; Mills v U. S. 46 Fed. 738.

9 Collins & Farwell v. U. S., 34 Ct. Cl. 294,

under the belief that it was part of a navigable river. 10 When damages for the flooding of land are allowed they include the value of a private right of way to other land of plaintiffs, which is thus destroyed,11 and the loss of an easement of access from other land of the plaintiff to a public road.12 When the navigable channel of a river was widened by an Act of Congress damages were allowed against the United States for the consequent partial destruction of piers.13 The location of a battery is not an appropriation of property over which the guns are fired in artillery practice during peace or war.14 Whenever there has been an actual physical taking of part of a distinct tract of land, the compensation to be awarded includes not only the market value. of so much as is actually appropriated, but also the damage to the remainder which therefrom results, including injury due to the probable use to which the part appropriated is to be devoted by the Government; 15 but damage resulting to adjacent but distinct parcels of land has been denied. 16 In a proceeding to condemn the locks and dams of a corporation, the value of the franchise to take tolls for their use must be included in the compensation.17 Before the Tucker act, it was held: that, when the United States takes possession of property, asserting a title hostile to that of the true owner, such owner cannot recover, in a suit in any court, the reasonable value of its use, or the reasonable value of the fee of the same.18 Whether the Tucker act 19 has changed this rule has not yet been authoritatively decided.20

10 Tempel v. U. S., 248 U. S. 121. 11 U. S. v. Welch, 217 U. S. 333, 54 L. ed. 787, 28 L.R.A. (N.S.) 385, 19 Ann Cas. 680.

12 U. S. v. Grizzard, 219 U. S. 180, 55 L. ed. 165, 31 L.R.A. (N.S.) 1135. 13 Greenleaf Johnson Lumber Co. v. U. S., 204 Fed. 489.

14 Peabody v. U. S., 231 U. S. 530; Portsmouth Harbor Land & Hotel Co. v. U. S., 250 U. S. 1.

15 U. S. v. Grizzard, 219 U. S. 180, 55 L. ed. 165, 31 L.R.A. (N.S.) 341.

16 Sharp v. U. S., 191 U. S. 341, 353, 48 L. ed. 211, 215.

17 Monongahela Navigation Co. v.

U. S., 148 U. S. 312, 315, 37 L. ed. 463, 464.

18 Langford v. U. S., 101 U. S 341, 25 L. ed. 1010.

19 24 St. at L. 505; 30 St. at L. 494, Jud. Code, § 24, quoted supra, § 96.

20 U. S. v. Lynah, 188 U. S. 445, 474, 47 L. ed. 539, 550; where Brown, J., with the concurrence of Shiras and Peckham, JJ., expressed the opinion: that a case of trespass upon real estate by the government, was a taking of property within the meaning of the Fifth Amendment to the Constitution of the United States, and was the subject of an

When the claim is not based upon the Constitution, or a law of the United States, or a department regulation, it must "be founded on a convention between the parties, a coming together of minds." 21 It has been said that to constitute an impled contract upon which a suit can be brought, "there must have been some consideration moving to the United States, or they must have received the money charged with a duty to pay it over; or the claimant must have had a lawful right to it when it was received, as in the case of money paid by mistake." 22

§ 96c. Suits against the United States for damages for use of, and injury to, personal property. A similar rule is applied to the action of the Government in regard to personal property. Where Congress has given the authority necessary for certain work and property for use in such work is left with the officer in charge by the owner whose title is not disputed, upon the representation that payment will be recommended for such use; an implied contract arises on the part of the Government to pay its value. But the Government is not liable to pay for damages caused by the negligence of an agent of the United States to mules hired by him without authority.2 Suits may be brought against the United States, by a contractor for extra work done by him under the direction of a government agent authorized to order the same, and for damages for an improper interference by such agent with the fulfillment of the contract, to recover the value of property delivered in pursuance of an express

action under the Tucker act. See Dooley v. U. S., 182 U. S. 222, 45 L. ed. 1074; Hooe v. U. S., 218 U. S. 322, 54 L. ed. 1055. But see U. S. v. Lynah, 188 W. S. 445, 47 L. ed.

539; U. S. v. Welch, 217 U. S. 333,

54 L. ed. 787, 28 L.R.A. (N.S.) 385, 19 Ann. Cas. 680; U. S. v. Grizzard, 219 U. S. 180, 55 L. ed. 165, 31 L.R.A. (N. S.) 1135.

21 Harley v. U. S., 198 U. S. 229, 234, 49 L. ed. 1029, 1030. The retention without express rejection of a proposal, although the proposal purports to be an assignment, does not amount to an acceptance of the same, when it expressly states that

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contract which is void; but not, it has been held, for negligence to property hired by an agent of the Government without authority; to recover for salvage services, including maritime services in saving property, upon which duties had been paid that the government might otherwise have been obliged to refund, and for the share of general average reasonably due.

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§ 96d. Suits against the United States for money had and received through mistake. Suits may be brought to recover money paid to a public officer under a mutual mistake of fact,1 but not money paid under a mutual mistake of law; 2 to recover the purchase price paid upon void entries of public land; to recover money paid a land officer as part payment for a certificate of entry which he refuses to deliver, the consideration for the payment thus failing to recover money of the claimant received by the United States for other purposes, and appropriated by them for the payment of an illegal tax; to recover money of the claimant obtained and paid into the Treasury by a fraud perpetrated by an officer of the United States.6

§ 96e. Suits against the United States to recover money paid under duress. Suits may be brought against the United States to recover money paid under a void judgment of a military commission or a fine illegally imposed by a provisional court 2 or taxes which have been illegally collected by compulsion; provided that in the last class of cases a contemporary protest or notice was given by the tax-payer.

4 U. S. v. Bostwick, 94 U. S. 53, 24 L. ed. 65.

5 Occidental Constr. Co. v. U. S., C. C. A., 245 Fed. 817.

6 U. S. v. Cornell Steamboat Co., 202 U. S. 184, 50. L ed. 987; affirming, C. C. A., 137 Fed. 455.

7 Brown v. U. S., 15 Ct. Cl. 392. 8 Bowe v. U. S., 42 Fed. 761.

§ 96d. 1 U. S. v. Edmonston, 181 U. S. 500, 45 L. ed. 971; U. S. v. Wilson, 168 U. S. 273, 42 L. ed. 464; U. S. v. Lawson, 101 U. S. 164, 25 L. ed. 860.

2 Emmons v. U. S., 42 Fed. 26.
3 Slocum v. U. S., 35 Ct. Cl. 485;

3

Anthracite Mesa Coal Min. Co. v.

U. S., 38 Ct. Cl. 56, 63.

4 Johnston v. U. S., 17 Ct. Cl. 157.

5 U. S. v. State Bank, 96 U. S. 30, 24 L. ed. 647.

6 Heathfield v. U. S., 8 Ct. Cl. 213.

§ 96e. 1 Basso's Case, 40 Ct. Cl.

202.

2 U. S. v. Shipley, C. C. A., 197 Fed. 265.

3 Swift Co. v. U. S., 111 U. S. 22, 28 L. ed. 341.

4 Swift Co. v. U. S., 111 U. S. 22, 28 L. ed. 341; Christie Street Com

Duress exists when taxes of either internal revenue taxes or duties upon imports have been illegally exacted and paid under protest and the payment was necessary to avoid stopping the business in which the plaintiff was engaged. Or where drastic penalties are imposed for their non-payment and due protest upon their payment was made. Suits cannot be brought against the United States to recover taxes paid voluntarily without any contemporary protest or notice of objection, nor money paid for the purchase of revenue stamps under similar circumstances. Neither a statute imposing a tax, nor execution thereunder, nor a mere demand for payment, constitutes duress; but where the statute contains self-operating provisions, by which non-payment of the tax results in heavy penalties and a forfeiture of the right to do business, payment by one within the class affected is not voluntary but compulsory. In such a case, payment by one not included in such a class is not made under duress.10 The refusal, by a recorder, to accept a deed without the revenue stamps,11 and the refusal of the collector to give to a ship a clearance without such stamps; 12 do not constitute such duress as will authorize a suit to recover the taxes, when there was no contemporary protest or notice, although the statute made the omission of the stamps a misdemeanor.13 Where one protest has been duly made, subsequent protests against similar exactions are not necessary.14 A subsequent application to the internal revenue commissioner for a return of the money paid for the stamps is not equivalent to a contemporary protest or notice.15 The payment of an inherit

mission Co. v. U. S., C. C. A., 136
Fed. 326, reversing 129 Fed. 506;
Devlin v. U. S., 12 Ct. Cl. 266;
Simons v. U. S., 19 Ct. Cl. 601.

5 Ewers v. Weaver, 182 Fed. 713;
Emery, Bird, Thayer Realty Co. v.
U. S., 198 Fed. 242; Swift Co. v.
U. S., 111 U. S. 22, 28 L. ed. 341;
Christie Street Commission Co. v. U.
S., C. C. A., 136 Fed. 326; reversing
129 Fed. 506. See N. Y. Consol.
Card Co. v. U. S., 20 Ct. Cl. 174.
6 International Paper Co. v. Bur-
rill, 260 Fed. 664.

7 Chesebrough v. U. S., 192 U. S. 253, 48 L. ed. 432; U. S. v. New

York & Cuba Mail S. S. Co., 200
U. S. 488, 50 L. ed. 569.
8 Ibid.

9 Gaar, Scott & Co. v. Shannon,
223 U. S. 468, 56 L. ed. 510.
10 Ibid.

11 Chesebrough v. U. S., 192 U. S. 253, 48 L. ed. 432.

12 U. S. v. N. Y. & Cuba Mail S. S. Co., 200 U. S. 488, 50 L. ed. 569. 13 Chesebrough v. U. S., 192 U. S. 253, 48 L. ed. 432..

14 Johnson v. Herold, 161 Fed. 593.

15 Herold v. Kahn, C C. A., 159 Fed. 608.

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