Peabody v. United States, 231 U.S. 530 (1913)

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Peabody v. United States, 231 U.S. 530 (1913)

No. 289

Argued February 27, 1913
Decided December 15, 1913
231 U.S. 530

APPEAL FROM THE COURT OF CLAIMS

Syllabus

The subjection of land to the burden of governmental use by constantly discharging heavy guns from a battery over it in time of peace in such manner as to deprive the owner of its profitable use would constitute such a servitude as would amount to a taking of the property within the meaning of the Fifth Amendment, and not merely a consequential damage.

In order, however, to maintain an action for such a taking, it must appear that the servitude has actually been imposed on the property. A suit against the government must rest on contract, as the government has not consented to be sued for torts, even though committed by its officers in discharge of their official duties.

A contract with the government to take and pay for property cannot be implied unless the property has been actually appropriated.

The mere location of a battery is not an appropriation of property within the range of it guns.

Where it appear that the guns in a battery have not been fired for more than eight years, and the government denies that it intends to fire the guns over adjacent property except possibly in time of war, this Court will not say that the government has taken that property for military purposes.

46 Ct.Clms. 39 affirmed.

The facts, which involve the determination of whether the establishment of a battery in connection with its military fortifications by the United States in the vicinity of claimants’ land amounted under the circumstances of this case to a taking of property under the Fifth Amendment, are stated in the opinion.