Peabody v. United States

Citations

• 231 U.S. 530
• 34 S. Ct. 159
• 58 L. Ed. 351
• 1913 U.S. LEXIS 2531
• 49 Ct. Cl. 683

Syllabus

<p>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 depriye 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.-</p> <p>In order, however, to maintain an action for such a taking it must appear that the servitude has actually been imposed on the property.</p> <p>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.</p> <p>A contract with the Government to take and pay for property cannot be implied unless the property has been actually appropriated.'</p> <p>The mere location of a battery is not an appropriation of property within-the range of its guns. ■</p> <p>Where it appears 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.</p>