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Western Missouri to Santa Fé, at a place in what is now the state of Kansas, Indians belonging to the Osage tribe took and drove away 32 head of oxen, the property of said decedent, which at the time and place of*taking were reasonably worth the sum of four hundred dollars ($400).

"At the time said oxen were taken they were being used by said decedent in the transportation of goods along the route aforesaid, and in consequence of such taking decedent was compelled to abandon the trip, and to sell his portion of said goods and four (4) wagons belonging to him for the sum of one thousand two hundred dollars ($1,200).

"The goods and wagons of said decedent at the time of the depredation were reasonably worth the sum of seven thousand six hundred dollars ($7,600).

"Said property was taken as aforesaid without just cause or provocation on the part of the owner or his agent in charge and has not been returned or paid for."

Fourth. "A claim for the property so taken was presented to the interior department in June, 1872, and evidence was filed in support thereof."

Judgment in that court was entered for $400 (33 Ct. Cl. 106), to review which judgment the petitioner appealed.

John Goode and F. N. Judson, for appellant. Asst. Atty. Gen. Thompson and F. B. Crosthwaite, for appellees.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

The fourth finding simply shows that a claim was presented to the interior department, and evidence filed in support thereof. The petition alleges, not merely the fact of the presentation of the claim, and of the filing of evidence to sustain it, but also an award by the secretary of the amount of $6,800,-a sum covering both the value of the property taken by the Indians, and the consequential damages resulting therefrom. A demurrer by the defendants having been overruled, a traverse was filed, denying all the allegations of the petition. Taking the pleadings with the findings, we might justly assume that there had never been any award by the secretary of the interior. but only a presentation of a claim, and evidence in support thereof; but we notice that the court of claims speaks of the award as though it was a fact found. We feel, therefore, constrained to consider the case on that basis.

The conclusions of the secretary, both as to liability and amount, were placed before the court for consideration by the election of the defendants to reopen the case. This election opened the whole case. Leighton v. U. S., 161 U. S. 291, 16 Sup. Ct. 495.

The liability of the defendants is not disputed. The single question presented is as to the amount which may be recovered. The value of the property taken was awarded, and

the only question is whether the plaintiff was entitled, not merely to the value of that property, but also to the damages to other property which resulted as a consequence of the taking. The property which was not taken or destroyed, which remained in the possession of the plaintiff's intestate, which he could do with as he pleased,-the title and possession of which were not disturbed,-was, as the findings show, reasonably worth $7,600. Be cause out in the unoccupied territory in which the taking of the oxen took place there was no market, and because he had no means of transporting the property not taken to a convenient market, he was subject to the whim or caprice of a passing traveler, and sold it to him for $1,200. The loss thereby entailed upon him he claims to recover under the provisions of the statute of March 3, 1891 (26 Stat. 851, c. 538).

The right of the plaintiff to recover is a purely statutory right. The jurisdiction of the court of claims cannot be enlarged by Implication. It matters not what may seem to this court equitable, or what obligation we may deem ought to be assumed by the government, or the Indian tribe whose members were guilty of this depredation, we cannot go beyond the language of the statute, and impose a liability which the government has not declared its willingness to assume. It is useless to cite all the authorities-for they are many -upon the proposition. It is an axiom of our jurisprudence. The government is not liable? to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it. See, among other cases, Schillinger v. U. S., 155 U. S. 163, 166, 15 Sup. Ct. 86, in which this court said: "The United States cannot be sued in their courts without their consent, and, in granting such consent, congress has an absolute discretion to specify the cases and contingencies in which the liability of the government is submitted to the courts for judicial determination. Beyond the letter of such consent the courts may not go, no matter how beneficial they may deem, or in fact might be, their possession of a larger jurisdiction over the liabilities of the government."

Now, the jurisdiction given by the act of 1891 to the court of claims is over "all claims for property of citizens of the United States taken or destroyed by Indians," etc. 26 Stat. c. 538, § 1. So far as any property was taken or destroyed by the Indians, the Judgment of the court of claims awards full compensation therefor, and no question is made as to the judgment in that respect. The single contention of the plaintiff is that, because of the taking of certain property, the value of other property not taken or destroyed was, under the conditions surrounding the petitioner and such property, diminished. This diminution in value did not arise because of any change in its quality or condition, but simply because the petitioner, left in possession of that property, was, in consequence of the taking away

of the means of transportation, unable to carry it to a place where its full value could be realized. In other words, the damages which he thus claims do not consist in the value of property taken or destroyed, but are those which flow, in consequence of the taking, to property which is neither taken nor destroyed. In brief, he asks consequential damages. Now, as we have said, we are not at liberty to consider whether there may not be some equitable claim against the government or the Indians for such consequential damages. We are limited to the statutory description of the obligations which the government is willing to assume and which it has submitted to the court of claims for determination. We may not enter into the wide question of how far an individual taking or destroying property belonging to another may be liable for all the damages which are consequential upon such injury or destruction. If congress had seen fit to open the doors of the court to an inquiry into these matters, doubtless many questions of difficulty might arise; but, as it has only declared its willingness to subject the government to liability for property taken or destroyed, we may not go beyond that, and adjudge a liability not based upon the taking or destruction of property, but resulting from the destruction or taking of certain property to other property not taken or destroyed. Questions, such as arose in Pumpelly v. Green Bay Co., 13 Wall. 166, as to the scope of constitutional limitations upon the right to take property without full compensation, are not pertinent to the present inquiry; for while, if the court had free hand, and could adjudge a liability upon the government commensurate to the wrong done, one conclusion might follow therefrom, yet we are limited by the other fact, that the liability of the government to suit is a matter resting in its discretion, and cannot be enlarged beyond the terms of the act permitting it. Consequential damages to property not taken or destroyed are not within the scope of the act authorizing recovery for damages to property taken or destroyed.

We have thus far considered the case as though it were one de novo, and in no way affected by prior proceedings in the interior department. As heretofore indicated, notwithstanding the limited scope of the findings, we think we ought, in view of the opinion of the court of claims, to consider the case in the attitude of one for which an award had been made by the secretary of the interior; that award including, not merely damages for the property taken and destroyed, but also what, as we have shown, were merely consequential damages. Here we are met by the contention of the plaintiff that larger jurisdiction is given to the court of claims in respect to matters thus determined by the secretary of the interior. Beyond the general jurisdiction given to the extent heretofore indicated by the quotation from the statute is this, expressed in the subsequent part of the same section:

"Second. Such jurisdiction shall also extend to all cases which have been examined and al-* lowed by the interior department and also to such cases as were authorized to be examined under the act of congress making appropriations for the current and contingent expenses of the Indian department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June thirtieth, eighteen hundred and eighty-six, and for other purposes, approved March third, eighteen hundred and eighty-five, and under subsequent acts, subject however, to the limitations hereinafter provided."

It is contended that in cases coming under this clause the court of claims may award all damages which the secretary of the interior has, or might have, given to the petitioner. Conceding for the purpose of the argument that this contention is justified, we cannot see that therefrom any new measure of liability is established, or, at least, none that will avail this petitioner. The act of March 3, 1885 (23 Stat. 376, c. 341), which provided for the investigation by the interior department of claims on account of Indian depredations, and under which it is alleged that the secretary acted in making his award, authorized the secretary "to determine the kind and value of all property damaged or destroyed by reason of the depredations aforesaid." The contention is that the terms "damaged or destroyed" enlarge the scope of the liability assumed by the government. We are unable to perceive that this is of any significance in this case. The property left in the possession of the petitioner was neither damaged nor destroyed by the action of the Indians in taking away the other property. Its inherent intrinsic value was in no manner disturbed. The damages were not to the property, considered as property, but simply consequential from the wrong done, and consisted solely in the fact that the peti tioner, wronged by the taking away of certain property, was unable to realize the real value of property not taken, damaged, or destroyed. Nothing was done by the Indians to disturb the intrinsic value of the property left in possession of the petitioner. It remained his, with full right of control and disposition, in no manner marred or changed in value, and the* sum of the injury results only from the fact that he could not remove it to a suitable market. The property, in itself considered, was neither taken, damaged, nor destroyed. The only result was that his ability to make use of that value was taken away because his means of transportation were destroyed. The damages were therefore consequential, and not to the property itself. We do not perceive how, under the statute, the liability of the govern ment was enlarged by this fact.

The judgment of the court of claims is there fore affirmed.

Mr. Justice WHITE, Mr. Justice PECK. HAM, and Mr. Justice MCKENNA dissented.

⚫392

(174 U. S. 331)

ISRAEL v. GALE.

(May 15, 1899.)
No. 265.

ACCOMMODATION NOTE-RIGHTS OF DISCOUNTING BANK-KNOWLEDGE OF NATURE OF PAPER.

Where an accommodation note was executed at the request of the person to whom it was delivered, on his statement that he needed to raise money, and had exceeded his line of discounts on his own paper, and was made payable to a bank, the obvious purpose of the transaction was to procure the discount of the note at such bank; and the fact that the bank, at the time it made the discount, was chargeable with notice of the purpose for which the note was given, would not prevent its recovery thereon.

In Error to the United States Circuit Court of Appeals for the Second Circuit.

Frank Sullivan Smith and David Willcox, for plaintiff in error. Martin Carey and W. S. Bissell, for defendant in error.

Mr. Justice WHITE delivered the opinion of the court.

The receiver of the Elmira National Bank, duly appointed by the comptroller of the currency, sued George M. Israel, the plaintiff in error, on a promissory note for $17,000, dated New York, May 14, 1893, due on demand, and drawn by Israel to the order of the Elmira National Bank, and payable at that bank. The defenses to the action were, in substance, these:

First. That the note had been placed by Israel, the maker, in the hands of David C. Robinson, without any consideration, for a particular purpose, and that, if it had been discounted by Robinson at the Elmira National Bank, such action on his part constituted a diversion from the purposes for which the note had been drawn and delivered; that from the form of the note (its being made payable to the bank), from. the official connection of Robinson with the bank, he being one of its directors, and his personal relations with the cashier of the bank, as well as from many other circumstances which it is unnecsary to detail, the bank was charged with such notice as to the diversion of the note by Robinson as prevented the bank from being protected as an innocent third holder for value.

Second. Even if the discount of the note was not a diversion thereof from the purpose contemplated by the drawer, the bank was nevertheless subject to the equity arising from the want of consideration between Israel, the drawer, and Robinson, because, although the note may have been, in form, discounted by the bank, it had in reality only been taken by the bank for an antecedent debt due it by Robinson. And from this it is asserted that as the bank had not parted, on the faith of the note, with any actual consideration, it was not a holder for value, and was subject to the equitable defenses existing between the original persons.

At the trial the plaintiff offered in evidence the note, the signature and the discount thereof being in effect admitted, and then rested its case. The defendant thereupon offered testimony which it was deemed tended to sustain his defenses. At the close of the testimony the court, over the defendant's exception, instructed a verdict in favor of the plaintiff. On error to the court of appeals, this action of the trial court was affirmed. 23 C. C. A. 274, 77 Fed. 532.

Both the assignments of error and the argument at bar but reiterate and expand, in divers forms, the defenses above stated, and which it is asserted were supported by evidence competent to go to the jury, if the trial court had not prevented its consideration by the peremptory instruction which it gave.

The bill of exceptions contains the testimony offered at the trial, and the sole ques-: tion which arises is, did the court rightly in-2 struct a verdict for the plaintiff? From the evidence it undoubtedly resulted that the note was delivered by the maker to D. C. Robinson, by whom it was discounted at the Elmira National Bank. It also established that Robinson at the time of the discount was a director of the bank; had large and frequent dealings with it; that he bore close business and personal relations with the cashier, and occupied a position of confidence with the other officers and directors of the bank. The occasion for the giving of the note, and the circumstances attending the same, are thus shown by the testimony of the defendant:

"I reside in Brooklyn. I am 42 years of age. I am at present engaged in the insurance business. In the months of April and May, 1893, I was employed in the banking house of I. B. Newcomb & Co., in Wall street, New York, as a stenographer and typewriter. I was not then, and am not now, a man of property. I know D. C. Robinson. At the time I made this note I did not receive any valuable thing or other consideration for the making of it. I have never received any consideration for the making of the note. I had a conversation with D. C. Robinson at the time of the making of the note. He stated to me the object or purpose for which he desired the note. He said to me that he desired some accommodation notes, and he wanted us clerks to make them, and stated the amount. He said that the reason he wanted the accommodation note was that he had exceeded his line of discount, and could not get any more accommodation; that he was building a power house up there [in Elmira], and needed some money to accomplish that purpose; and that, if we would give him these notes, it would enable him to accomplish that. He also added that we would not be put in any position of paying them at any time, that he would take care of them, and gave us positive assurance on that point; and naturally, knowing the man, and thinking that he was a millionaire, as he probably was at that time, we had no hesitation about going on the notes."

There was no testimony tending to refute these statements, or in any way calculated to enlarge or to restrict them.

The defense, theL, amounts to this: That the form of the paper, and Robinson's relation with the bank and its officers, were such as to bring home to the bank the knowledge of the transaction from which the note arose, and that such knowledge prevents a recovery, because Robinson, taking the transaction to be exactly as testified to by the defendant, was without authority to discount the note. Granting, arguendo, that the testimony tended to show such a condition of fact as to bring home to the bank a knowledge of the transaction, the contention rests upon a fallacy, since it assumes that the note was not given to Robinson to be discounted, and that his so using it amounted to a diversion from the purpose for which it was delivered to him. But this is in plain conflict with the avowed object for which the defendant testified the note was drawn and delivered, since he swore that he furnished the note because he was told by Robinson that he needed accommodation, that his line of discount on his own paper had been exceeded, and that, if he could get the paper of the defendant, he would overcome this obstacle; in other words, that he would be able successfully to discount the paper of another person, when he could not further discount his own. This obvious import of the testimony is fortified, if not conclusively proven, by the form of the note itself, which, instead of being made to the order of Robinson, was to the order of the Elmira National Bank. The premise, then, upon which it is argued that there was proof tending to show that the discount of the note by Robinson at the Elmira National Bank was a diversion, is without foundation in fact. The only matters relied on to sustain the proposition that there was testimony tending to establish that the note was diverted, because it was discounted at the bank to whose order it was payable, are unwarranted inferences diawn from a portion of the conversation, above quoted, which the defendant states he had with Robinson when the note was drawn and delivered. The part of the conversation thus relied upon is the statement that Robinson said when the note was given "that he was building a power house up there [in Elmira], and needed some money to accomplish that purpose, and, if we would give him these notes, it would enable him to accomplish that." This, it is said, tended to show that the agreement on which the note was given was not that it should be discounted at the Elmira National Bank, but that it should be used by Robinson for obtaining money to build the power house. In other words, the assertion is that the mere statement by Robinson of the causes which rendered it necessary for him to obtain a note to be discounted at the Elmira National Bank had the effect of destroying the very purpose for which the note was confessedly given. When the real result of the contention is ap19 SA-49

prehended, its unsoundness is at once dem onstrated. Other portions of the record have been referred to in argument as tending te show that it could not have been the intention of the defendant, in giving the note, that Rob inson should discount it; but, on examining the matters thus relied upon, we find they have no tendency whatever to contradict of change the plain result of the transaction as shown by the defendant's own testimony.

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As the discount of the note at the Elmira National Bank was not a diversion, but, on the contrary, was a mere fulfillment of the avowed object for which the note was asked, and to consummate which it was delivered, it becomes irrelevant to consider the various circumstances which it is asserted tended to impute knowledge to the bank of the purpose for which the note was made and delivered. the agreement authorized the discount of the note, it is impossible to conceive that knowledge of the agreement could have caused the discount to be a diversion, and that the mere knowledge that paper has been drawn for ac commodation does not prevent one who has taken it for value from recovering thereon is too elementary to require citation of authority.

The contention that, although it be conceded the note was not diverted by its discount, nevertheless the bank could not recover thereon, because it took the note for an antecedent debt, hence without actual consideration, depends-First, upon a proposition of fact (that is, that there was testimony tending to so show); and, second, upon the legal assump tion that, even if there was such testimony, it was adequate as a legal defense. The latter proposition it is wholly unnecessary to consider, because the first is unsupported by the record. All the testimony on the subject of the discount of the note was introduced by the defendant in his effort to make out his de fense. It was shown, without contradiction, that the note had been discounted by Robinson at the bank, and that the proceeds were placed to his credit in account. It was also shown that for some time prior to the day of the discount his account with the bank, to the credit of which the proceeds of the discount were placed, was overdrawn. The exact state of the account on the day the discount was made was stated by the cashier and a bookkeeper of the bank, and was moreover referred to by Robinson. On the morning of the discount the debit to the account of Robinson, by way of overdraft, is fixed by the cashier at $35,400, and by the bookkeeper at $35,000. Robinson made the following state ment: "The amount of other notes wiped out the overdraft and made a balance." The bookkeeper's statement is as follows:

"There was an overdraft of $35,000 against Mr. Robinson upon the books of the bank ou the morning of May the 4th. There were items coming through the exchanges that amounted to about $73,000, and there was a deposit made of $33,000 to make the overdraft good. These were to take up the items tha:

297

came through the exchanges. I think that was the way of it. His account would have been overdrawn that night for about $50,000, if it had not been for the entry on the books of the proceeds of these notes."

No other testimony tending to contradict these statements made by the defendant's own witnesses is contained in the record. They manifestly show that although at the date of the discount there was a debit to the account, resulting from an overdraft, nearly the sum of the overdraft was covered by items of credit, Irrespective of the note in controversy, and that subsequent to the credit arising from the note more than the entire sum of the discount was paid out for the account of Robinson, to whose credit the proceeds had been placed. With these uncontradicted facts in mind, proven by the testimony offered by the defendant, and with no testimony tending the other way, it is obviously unnecessary to go further, and point out the unsoundness of the legal contention relied upon.

Affirmed.

(174 U. S. 690)

UNITED STATES v. RIO GRANDE DAM & IRRIGATION CO. et al. (May 22, 1899.) No. 215.

NAVIGABLE WATERS-APPROPRIATION OF WATER-INJUNCTION-STATUTES-JU

DICIAL NOTICE-APPEAL.

1. The district court of New Mexico cannot take judicial notice that the Rio Grande river is nonnavigable within the territory of New Mexico.

2. The Rio Grande river is not a navigable stream within the territory of New Mexico.

3. Since the duty of the United States to its own citizens, to preserve the navigability of the Rio Grande river, is as great as any arising out of a treaty with Mexico, the court, on a bill by the United States to enjoin the erection of a dam in such river, will not consider the question whether the erection of such dam would be a violation of the treaty.

4. On review of a decree dismissing a bill for want of equity, the allegations of the bill will be taken as true, although denied by the answer.

5. Rev. St. U. S. § 2339, 19 Stat. U. S. 377, and 26 Stat. U. S. 1101, recognizing and assenting to the appropriation of water for mining and irrigation purposes, under laws of the states, in contravention of the common-law rule as to continuous flow, cannot be construed to confer upon any state the right to appropriate all the waters of streams tributary to a navigable water course, so as to destroy its navigability.

6. Act U. S. Sept. 19, 1890 (26 Stat. 454) § 10, prohibiting "the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction," prohibits the construction of a dam in a river, at a point where it is not navigable, which so retards the flow of water as to affect the navigability of the river at a point where the river was navigable before.

7. Whether the appropriation of the upper waters of a navigable stream should be enjoined on application of the attorney general, as authorized by 26 Stat. U. S. 454, § 10, is a question of fact, dependent on whether such appropriation interferes with the navigability of the stream.

Appeal from the Supreme Court of the Territory of New Mexico.

On May 24, 1897, the United States, by their attorney general, filed their bill of complaint in the district court of the Third judicial district of New Mexico against the Rio Grande Dam & Irrigation Company, the purpose of which was to restrain the defendant from constructing a dam across the Rio Grande river in the territory of New Mexico, and appropriating the waters of that stream for the purposes of irrigation. A temporary injunction was issued on the filing of the bill. Thereafter, and on the 19th day of June, 1897, an amended bill was filed, making the Rio Grande Irrigation & Land Company, Limited, an additional defendant, the scope and purpose of the amended bill being similar to that of the original. The amended bill stated that the original defendant was a corporation organized under the laws of the territory of New Mexico, and the new defendant a corporation organized under the laws of Great Britain. It was averred that the purpose of the original defendant, as set forth in its articles of incorporation and as avowed by it, was to construct dams across the Rio Grande river, in the territory of New Mexico, at such points as might be necessary, and thereby "to accumulate and impound waters from sald river in unlimited quantities in said dams and reservoirs, and distribute the same through said canals, ditches, and pipe lines.” The new defendant was charged to have become interested as lessee of, or contractor with, the original defendant. The bill further set forth that the new defendant "has attempted to exercise, and has claimed the right to exercise, all the rights, privileges, and franchises of the said original defendant, and has given out as its objects, as said agent, lessee, or assignee, as aforesaid, to construct said dams, reservoirs, ditches, and pipe lines, and take and Impound the water of said river, and thereby to create the largest artificial lake in the world, and to obtain control of the entire flow of the said Rio Grande, and divert and use the same for the purposes of irrigating large bodies of land, and to supply water for cities and towns, and for domestic and municipal purposes, and for milling and mechanical power"; "that the Rio Grande re ceives no addition to its volume of water be tween the projected dam and the mouth of the Conchos river, about three hundred miles below, and that the said Rio Grande, from the point of said projected dam to the mouth of the Conchos river, throughout almost its entire course from the latter part to its mouth, flows through an exceedingly porous soil, and that the atmosphere of the section of the country through which said river flows, from the point above the dam to the Gulf of Mexico, is so dry that the evaporation proceeds with great rapidity, and that the impounding of the waters will greatly increase the evaporation, and that from these causes but little water, after it is distributed over the surface of the earth, would be returned to the river." The bill also averred that the Rio

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