c33:No. 139

NOYES, Circuit judge
(dissenting). There is a clear distinction between a governmental and a proprietary right. When the United Slates in the exercise of their sovereign authority appropriate private propeiiy. the Constitution guarantees compensation and the law implies a promise to pay, upon which the owner, waiving formal condemnation proceedings, may sue. But when the government uses property because it claims a title or inlerest in it, it asserts a proprietary right. If this be asserted wrongfully, — if the officers of the government take possession of property in which it has no interest —a tort is committed, but there can he no implication that the government promises to pay for a thing which it claims to be entitled to without paying.
Stated in another way: When the government takes property in a manner equivalent to informal condemnation proceedings, a recognition of the duty to make compensation must be presumed and may amount to an implied promise to pay. In such a case there is no difficulty in treating the relations of the sovereign and the property owner as contractual. But when the government uses property which it claims to own or have an interest in, it occupies the position of a private person asserting a private right and just as an individual who takes property which does not belong to him is liable in trespass or trover and not in contract, so whatever liability attaches to the government officers for a wrongful use is founded in tort. There is nothing to form the basis of a contract.
To illustrate: If the officials had seized this engine because it was available and was a necessary instrument for the prosecution of the public work, there would have been an appropriation by governmental authority from which the law would imply a promise to make payment — such promise being merely the legal recognition of a conceded obligation. But if the officials had used the engine because they claimed that the government had a title giving it the right to use it, there could be no such implied promise even if in fact it had no title, because in such a case the use would be a disclaimer of any accountability therefor. There would be no meeting o.f minds.
The difficulty with the opinion of the majority, as I view it, is not in failing to recognize, but in failing to apply, these principles. The opinion seems almost to beg the whole question bjr stating, without discussion, that “the government did not claim any title to the engine or deny the plaintiff's claim.” If the government did not make a claim of proprietary right and asserted only its governmental authority to take and use the engine in the public work, I certainly could not, consistently with that which has just been written, dissent. But as I read the testimony, the very opposite conclusion to that stated by the majority must be drawn from it. It seems to me entirely clear that the government officials used the engine because the contract with the defaulting contractors gave the government the right to use the machinery upon the works and because they claimed that the rights of the government thereunder were superior to those of the plaintiff as the holder of a chattel mortgage. Thus the chief engineer, to whom the matter was referred, claimed in a letter to the plaintiff that the engine, having been delivered and used upon the works by the contractors before the chattel mortgage was filed, was subject to the provisions of the contract. So the district engineer as a witness stated that he claimed the engine under the contract. There is substantially nothing upon the part of the plaintiff to contradict this testimony.
The record is, in my opinion, insufficient to determine whether the contract provision authorizing the government to take possession of the property of the contractors and continue the work, gave it rights with respect to the engine in question superior to those of the plaintiff as the holder of a chattel mortgage thereon. But upon such a record showing the claims made in behalf of the government of its rights under the contract, I am wholly unable to comprehend how it can be denied that the government asserted a proprietary right or can be held that it acted in its sovereign capacity by proceedings equivalent to those of eminent domain.
In my opinion the judgment should be reversed.

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