of life itself. Were the state strictly to indemnify all those whose property is injured in this manner, the public finances would soon be exhausted, and every individual in the state would be obliged to contribute his share in due proportion,—a thing utterly impracticable." Book 3, c. 15, p. 402, § 232.

Three cases in congress, one before the house of representatives in 1797, and two before the senate, one in 1822 and one in 1872, illustrate this doctrine.

In the first of these a Mr. Frothingham, of Massachusetts, presented a petition to the house of representatives, asking compensation for a dwelling-house, the property of his mother, burned at Charlestown, in March, 1776, by order of Gen. Sullivan, then commanding the American troops at that place. The committee on claims, to whom it was referred, made a report that they found that the house, for which compensation was sought, was, with several other buildings in the vicinity at that time, in possession of the British troops; and that, for the purpose of dislodging them, the general sent a party of troops with orders to set fire to the buildings, which was done accordingly; and that they apprehended that the loss of houses and other sufferings by the general ravages of war had never been compensated by this or any other government; that, in the history of our Revolution, sundry decisions of congress against claims of this nature might be found; and that the claim presented rested upon the same basis with all others where sufferings arose from the ravages of war. As the government had not adopted a general rule to compensate individuals who had suffered in a similar manner, the committee were of opinion that the prayer of the petitioner could not be granted, and no further action was had upon the claim. Amer. State Papers, class 14, claims, p. 199.

In the second of the cases referred to, a Mr. Villiers, of Louisiana, presented a petition to the house of representatives, stating that during the invasion of the British in 1814-15, after the enemy had landed near the city of New Orleans, in order to prevent him from bringing up his cannon and other ordnance to the city, Gen. Morgan commanding the Louisiana militia, caused the levee to be cut through, at or near the plantation of the petitioner, whereby the greater part of his plantation was inundated, and remained so till after the departure of the invading army from the state; that in consequence the petitioner had suffered great losses in the destruction of his sugarcane, cane plants, and in the expenses of repairing the levee, appraised at $19,250, for which he prayed compensation. The committee on claims, to whom the petition was referred, recommended that its prayer should not be granted, on the ground that the losses were sustained in the necessary operations of war, for which the United States were not liable; and their recommendation was adopted. Amer. State Papers, class 14, claims, p. 835; Annals Seventeenth Cong. (1st Sess.) pt. 1, p. 311.

The third of the cases referred to is that of J. Milton Best, which was much discussed in the senate. His claim was for the value of a dwelling-house and contents destroyed by order of the officer com

manding the Union forces in defense of the city of Paducah, Kentucky, in March, 1864. The city being attacked by the Confederates in force, the Federal troops, numbering 700, were withdrawn into Fort Anderson. The claimant's house, which was about 150 yards from the fort, was taken possession of by the sharp-shooters of the enemy, who did great execution picking off men at the guns within the defenses. They were driven from the house by shells from the fort and gun-boats, and late that night the Confederates retired from their assault without success. They appeared with reinforcements the next morning, and the Union officer, regarding his command in great peril, his ammunition being nearly exhausted, gave orders for the destruction of all houses within musket-range of the fort. The claimant's loyalty was unquestioned. The officers in command at the post from time to time during the war testified to his reliability, and the effective aid he rendered the Union cause.

The senate committee on claims reported the case as one presenting the "simple question of who shall pay for the destruction of a loyal citizen's property, destroyed by the order of a commanding officer to save his imperiled army, at the claimant's home, a place never in possession of the enemy, and in a non-seceding state." Upon this question they say: "It appears to your committee that the facts establish a just claim against the government for private property taken and destroyed to prevent a greater destruction of its own property, and the massacre of its troops." They reported that "the injuries to the claimant's house, by shelling out the rebels in the battle of the twenty-fifth of March, [the day preceding the destruction of the property,] may be regarded as a casualty by the general ravages of war, which might properly be deducted from the amount of loss proved by claimant," and they made what they deemed a proper deduction on that account in the bill presented by them for the payment of the damages. The bill was intended to cover the value of his property at the time it was burned to prevent its use by the reinforced enemy on the following day. In the debate which followed, it was contended by advocates of the bill that while the damage by shelling from our own fort during the battle came within the ravages of war, the subsequent burning of the house to prevent its being used by the sharp-shooters of the enemy was a taking by the government of private property for public use, for which compensation should be made.

The bill passed in the senate January 5, 1871, but was not acted upon by the house during that congress. It again passed in the senate, April 8, 1872, and in the house, May 18, 1872. It was vetoed by the president, June 1, 1872. In his message to the senate the president, after speaking of the claim as one for compensation on account of the ravages of war, and observing that its payment would invite the presentation of demands for very large sums of money against the government for necessary and unavoidable destruction. of property by the army, said: "It is a general principle of both international and municipal law that all property is held subject, not only to be taken by the government for public uses, in which case,

under the constitution of the United States, the owner is entitled to just compensation, but also subject to be temporarily occupied, or even actually destroyed, in times of great public danger, and when the public safety demands it; and in this latter case governments do not admit a legal obligation on their part to compensate the owner. The temporary occupation of, injuries to, and destruction of property, caused by actual and necessary military operations, is generally considered to fall within the last-mentioned principle. If a government makes compensation under such circumstances, it is a matter of bounty rather than of strict legal right." Cong. Globe, Forty-second Cong. (2d Sess.) pt. 5, p. 4155.

The message was referred to the committee on claims, and on the seventh of February, 1873, it was reported back with a recommendation that the bill be passed, the objections of the president to the contrary notwithstanding. On the twenty-fourth of the same month the bill was reached on the calendar, and was passed over upon objection. No further action was ever taken upon it in the senate, and consequently it never reached the house. The claim has been repeatedly presented to congress since, but has never been considered by either house. The principle that, for injuries to or destruction of private property in necessary military operations during the civil war, the government is not responsible, is thus considered established. Compensation has been made in several such cases, it is true; but it has generally been, as stated by the president in his veto message, "a matter of bounty rather than of strict legal right."

In what we have said as to the exemption of government from liability for private property injured or destroyed during war, by the operations of armies in the field, or by measures necessary for their safety and efficiency, we do not mean to include claims where property of loyal citizens is taken for the service of our armies, such as vessels, steam-boats, and the like, for the transport of troops and munitions of war, or buildings to be used as store-houses and places of deposit of war material, or to house soldiers or take care of the sick, or claims for supplies seized and appropriated. In such cases it has been the practice of the government to make compensation for the property taken. Its obligation to do so is supposed to rest upon. the general principle of justice that compensation should be made where private property is taken for public use, although the seizure and appropriation of private property under such circumstances by the military authorities may not be within the terms of the constitutional clause. Mitchell v. Harmony, 13 How. 134, 14 L. Ed. 75; U. S. v. Russell, 13 Wall. 623, 20 L. Ed. 474.

While the government cannot be charged for injuries to, or destruction of, private property caused by military operations of armies in the field, or measures taken for their safety and efficiency, the converse of the doctrine is equally true, that private parties cannot be charged for works constructed on their lands by the government to further the operations of its armies. Military necessity will justify the destruction of property, but will not compel private parties to erect on their own lands works needed by the government, or to

pay for such works when erected by the government. The cost of building and repairing roads and bridges to facilitate the movements of troops, or the transportation of supplies and munitions of war, must therefore be borne by the government.

It is true that, in some instances, the works thus constructed may afterwards be used by the owner. A house built for a barrack, or for the storage of supplies, or for a temporary fortification, might be converted to some purposes afterwards by the owner of the land, but that circumstance would impose no liability upon him. Whenever a structure is permanently affixed to real property belonging to an individual, without his consent or request, he cannot be held responsible because of its subsequent use. It becomes his by being annexed to the soil, and he is not obliged to remove it to escape liability. He is not deemed to have accepted it so as to incur an obligation to pay for it merely because he has not chosen to tear it down, but has seen fit to use it. Zottman v. San Francisco, 20 Cal. 96, 107, 81 Am. Dec. 96. Where structures are placed on the property of another, or repairs are made to them, he is supposed to have the right to determine the manner, form, and time in which the structures shall be built, or the repairs be made, and the materials to be used; but upon none of these matters was the company consulted in the case before us. The government regarded the interests only of the .army; the needs or wishes of the company were not considered. No liability, therefore, could be fastened upon it for work thus done. We do not find any adjudged cases on this particular point,whether the government can claim compensation for structures erected on land of private parties, or annexed to their property, not by their request, but as a matter of military necessity, to enable its armies to prosecute their movements with greater efficiency; and we are unable to recall an instance where such a claim has been advanced.

It follows from these views that the government can make no charge against the railroad company for the four bridges constructed. by it from military necessity. The court will leave the parties where the war and the military operations of the government left them. The judgment of the court of claims must therefore be reversed, and judgment be entered for the full amount claimed by the railroad company for its services; and it is so ordered.

MIL.L.-19

8. ST. LOUIS HAY & GRAIN CO. v. UNITED STATES. (Supreme Court of the United States, 1903. 191 U. S. 159, 24 Sup. Ct. 47, 48 L. Ed. 130.)

Appeal from the Court of Claims to review a judgment dismissing a petition for damages for the breach by the United States of a contract made with it by the claimant.

See same case below, 37 Ct. Cl. 281.

Mr. Justice HOLMES delivered the opinion of the court:

This is an appeal from a judgment of the court of claims dismissing the appellant's petition. 37 Ct. Cl. 281. The petition alleges a contract by the United States to buy 9,000,000 pounds of hay from the claimant at the rate of $.611⁄2 per hundred weight, a refusal by the government to take the hay at the rate of one sixtieth daily, as required by the contract, according to the claimant's interpretation, and a failure to accept 255,291 pounds out of the 9,000,000. The rest, it is admitted, was taken and paid for at contract rates. The claimant seeks compensation for an increased price paid by it, increased cost of transportation, and loss of anticipated profits, caused by the delay, all as damages for the breach of the contract, or, alternatively, the market value of the hay less the amount paid by the United States. The answer is a general denial.

The court of claims finds that during the late war with Spain an advertisement was published by a quartermaster for 9,000,000 pounds. of hay, among other things, seemingly for use in Camp George H. Thomas, Georgia, and that in connection with it the following information was furnished: "The foregoing are the estimated quantities which will be required, but bids will be accepted in whole or

in part * * * and awards made under accepted bids will pro

vide that the quantities awarded may be increased or decreased at the option of the United States, not exceeding 20 per centum thereof * * * and further, that if the troops should be wholly or in part withdrawn, the awards shall become inoperative to the extent of such reduction. * * * * * Hay and straw. * Deliveries of the supplies to begin within five days from date of award, and proceed at daily rates of at least one sixtieth of amount, or in such quantities and at such times afterwards, as may be designated by the chief quartermaster," etc. A bargain was made on these terms on July 12, 1898. Shipments were made, amounting, on August 27, 1898, to 4,685,949 pounds. On August 28 the quartermaster telegraphed to the claimant not to ship any more hay until notified to do so. This suspension of orders was due to the withdrawal of troops. The claimant then had 100 carloads in transit, which it was obliged to sell for what it could get, and protested against the stoppage. At different dates between September 12 and May 18 following the quartermaster telegraphed orders for hay, which were filled. Hay meantime had risen in value, and cost the claimant more than it would have cost in the summer. Accordingly, the claimant asked to be relieved from delivery, but the quartermaster refused, holding