Portsmouth Harbor Land & Hotel Co. v. United States

Court of Claims · Property

Propertytakingsservitudecoastal defensetest firinggovernment intenttemporary occupationtrespass versus taking

Facts

The claim concerned about 20 acres of upland and appurtenant flats on Gerrish Island, owned at the time of suit only by Caroline E. Peabody; the hotel formerly on the parcel had already been razed. No 10-inch guns were fired at Fort Foster between the 1915 suit and the filing of this action in February 1920, and from 1911 until after suit there were effectively no such guns there until they were remounted in late 1920. In December 1920 the remounted guns were fired by the Ordnance Department solely to test installation, as similar firings had been done in 1902 and 1914. During World War I the government also placed temporary observation and related fire-control facilities on parts of Gerrish Island, but the stations were abandoned after hostilities ceased.

Issue

Did the remounting and December 1920 test firing of the guns at Fort Foster, together with the wartime fire-control arrangements on Gerrish Island, prove that the United States had taken the plaintiffs' land or imposed a compensable servitude upon it? More specifically, did the evidence show an authorized, continuing governmental purpose to fire over the plaintiffs' land in peacetime or to appropriate the land for fire-control use?

Rule

A taking or servitude is not shown merely because the Government erects and remounts coast-defense guns on its own land and fires them for necessary installation or repair tests. To recover, a claimant must prove the essential averments that authorized government action actually used or was intended to use the claimant's land with an abiding purpose, rather than only occasional acts or temporary wartime intrusions that amount at most to torts.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In San Diego, the federal military reinstalled two heavy coastal guns on government land after replacing their carriages. Army ordnance officers fired each gun once to confirm that the mounting and recoil systems worked properly, and then transferred the battery back to the unit that ordinarily controlled it. A neighboring landowner sued for compensation, alleging the mere firing created a servitude over her beachfront parcel.

Which is the strongest argument that no compensable taking occurred?

Explanation. The governing rule is that the government may establish coast defenses on its own property, and remounting and firing guns for necessary installation testing does not by itself prove a taking or servitude. The claimant must show authorized governmental action reflecting an abiding purpose to use the claimant’s land, not merely isolated testing activity. (Derived from Portsmouth Harbor Land & Hotel Co. v. United States (n.d.).)