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INDEX DIGEST.

ACTIONS.
I. A cause of action for the value of private property, alleged

to have been taken within the scope of the Fifth Amend-
ment to the Constitution by reason of the construction of a
dam in aid of navigation, accrues when the dam was com-
pleted and put in operation by the filling of the pool. Co.

Ct. Marion Co., 120.
II. A plaintiff must have a cause of action when the suit is

brought and can not supply the want of a valid claim at the
commencement of the action by the acquisition of one during

the pendency of the action. Id.
ACTS OF CONGRESS.

See STATUTES.
ADDITIONAL PAY.

See ARMY; CIVIL SERVICE; NAVY.
ADMISSIONS.
An admission by Government counsel of the Government's liability

is not controlling on this court. Hooper, 90.
ALIENS.

See STATUTES, X.
ARMY.
Congress by the act of June 3, 1916, 39 Stat., 183, gave to retired

officers of the Army detailed on active duty the longevity pay
which would accrue to them by reason of their added active
service after retirement, which pay they could not therefore
receive by reason of the act of March 2, 1903, 32 Stat., 932.

Jonas, 254.
See CONTRACTS, X.
ASSIGNMENT.
I. It is the legal effect of the instrument by which a transfer of

patent rights is made that determines whether it is an as-

signment or a license. E. W. Bliss Co., 47.
II. The act of June 25, 1910, 36 Stat., 851, authorized suit by

the owner, and plaintiff, being a mere licensee and not an
assignee, can not maintain an action thereunder for in-

fringement. Id.
II. Where two corporations enter into an agreement to merge or

consolidate into a new corporation, the transaction in
legal contemplation is similar to a purchase by the new
corporation of the railroads and properties of the two

former companies, so far as the right to collect the debts
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673

ASSIGNMENT-Continued.

or claims of the former companies is concerned, and the
new company can not sue for such claims in view of
Section 3477 Revised Statutes forbidding assignment of
claims against the United States. Seaboard Air Line Ry.,

107.
ASSUMPSIT.

See CONTRACTS, XXVII.
BURDEN OF PROOF.

See CONTRACTS, II, XVI, XXI.
CIVIL SERVICE.
I. Where an employee of the United States in the classified civil

service is discharged from the service and claims the pay
of the office subsequent to his removal, it must appear affirma-
tively that he was willing and able to discharge the duties

of the office during said period. Nicholas, 463.
II. Where an employee in the classified civil service is regularly

removed from office under charges, and the officers remoring
him were empowered by law so to do, the question as to
whether there was just cause for such removal is one for the
executive authorities, and the courts deal only with any de-

parture from the law itself, Eberlein, 466.
III. Where after such removal it is discovered that the charges

upon which said removal was based were without merit,
and the employee is " reinstated ” in his former position by
proclamation of the President, such reinstatement was not
intended to convert the removal into a suspension from
duty but to render the employee again eligible for the same

position. Id.
IV. A civil-service employee whose position was in the Engineer

Department at Large may be suspended without pay by the
officer in charge, in conformity with the provisions of Par,
13, Section V, of General Orders, No. 5, Office of Chief of
Engineers, and with the instructions governing the classified
civil service as applied to the Engineer Department at Large.

Burnap, 605.
CONSTITUTIONAL LAW.
I. In an action seeking the recovery of the value of property

alleged to have been taken within the meaning of the Con-
stitution by reason of the firing of certain coast-defense guns
over plaintiffs' lands at irregular intervals, it is necessary
to establish that there was an intention on the part of the
Government to impose a servitude upon the premises of

plaintiffs. Portsmouth H. L. & H. Co., 210.
II. The noise, vibration, or concussion caused by the firing of

guns does not constitute a taking of the premises, but
is merely a nuisance for which the Government is not
liable. Id.

CONSTITUTIONAL LAW-Continued.
III. No claim for the taking of private property under the Fifth

Amendment of the Constitution can be predicated upon a
contract to carry the mails, even though it appear that the com-
pensation received was unreasonable and to that extent con-
fiscatory, when the contract was entered into voluntarily and
the railroad was under no duress to continue the service.

N. Y., N. H. & H. R. R., 222.
IV. The construction of a levee by the agents of the United States

upon the lands of plaintiffs subjects the Government to

liability for its value. Archer, 405.
V. While the property rights in a public highway helă by a

county in Kentucky is an easement, held in trust for the
benefit of the public, and is within most of the definitions of
public and not private property, yet for purposes of compensa-
tion, as for a taking under the Constitution, it is to be re-

garded as private property. Wayne County, Ky., 417.
VI. A placer mining claim which has been perfected in accordance

with law is property. When so perfected it has the effect of
a grant by the United States of the right of present and
exclusive possession, and if taken by the United States just
compensation must be made therefor under the Constitution.

North Am. Trans, & Trad. Co., 424.
See OVERFLOWED LAND, I, II, III.
CONTRACTS.
I. In a suit for damages for alleged breach of specifications pro-

viding that the plaintiff shall be allowed “reasonable space
at the site of the work; proof that passes were issued to
plaintiff's workmen and a requirement that the same be
exhibited to sentries; that the hours for the entrance of
laborers seeking work were regulated, with a requirement
that certain streets should be used by plaintiff for the haul-
ing of supplies and materials, does not constitute a breach
of such specifications where it does not appear that the
commandant of the navy yard in performing a military
function acted unreasonably or unduly interfered with plain-

tiff's work. Miller, 1.
II. Even though the engineer officer in charge act in an arbitrary

and overbearing manner on occasions involving some trivial
things, the burden is upon the plaintiff to establish that his
conduct is chargeable to bad faith on the officer's part, and

that plaintiff's loss was directly caused thereby. Id.
III. Contract between plaintiff and the Commissioner of Indian

Affairs for certain lumber in the Klamath Indian Reservation.
Plaintiff requested permission to remove certain rocks and
bowlders from the Williamson River, which was granted, but
thereafter revoked. Thereafter further revocable permit was
granted plaintiff to improve said river to facilitate the driving

CONTRACTS—Continued.

of logs; thereafter said permit was revoked by the Secretary
of the Interior, because such use of the river was held to be
injurious to the fish therein. Plaintiff abandoned work and
never performed contract and sues for failure of the United
States to comply with the contract, claiming damages. Held,
There being nothing in the contract referring to the use of
the river, the revocable permit granted thereafter for said
use was not part of the contract nor could it affect the terms

of the written instrument. Knapp, 18.
IV. Congress by the act of May 27, 1908, 35 Stat., 412, empowered

the Postmaster General to withdraw from the mails empty
mail bags and to transmit the same by freight, and by their
withdrawal said bags ceased to be a part of the mails for
any purpose of weighing, and thereafter plaintiff was not
entitled to have their weight added to the average weight
of the mails, and the act in nowise impaired the obligation

of the contract theretofore made. St. L., I. M. & So. Ry., 45.
V. Where the Government engineers, prior to advertising for

bids for the construction of a lock and dam to rest on
bedrock, make soundings of the river bed to ascertain the
depth of bedrock and delineate the result so obtained upon a
map or drawing, upon which map all other drawings per-
taining to the work are based, and bidders are not afforded a
reasonable time within which to verify the depths of bedrock
so obtained, the United States is liable as for a misrepre-
sentation of a material fact, even though the error was

honestly made. Sheridan-Kirk Con. Co., 82.
VI. On a review of the authorities, the following rule is now well

established: Where there is a provision in a contract making
the decision of an engineer officer in charge or other official
final as to quality and quantity, distance to be ascertained.
classification of material, or any other subject matter in the
contract which may be matter of dispute and which may arise
during the execution of the work, the decision of that officer
will be treated as final and will not be subject to review in the
absence of fraud or such gross error as implies bad faith, or

a failure to exercise an honest judgment. Brinck, 170.
VII. Where a party not only chargeable with knowledge but actu-

ally having knowledge of changed conditions proceeds with
performance of his contract without a protest or assertion
of a right to additional compensation, he will be held to
have waived all rights on account of such ascertained

changed conditions. Monad Eng. Co., 179.
VIII. If a person to whom a misrepresentation as to a collateral

fact is made subsequently learns the truth and with full
knowledge of the facts elects not to rescind, he thereby
waives his right to rescind and elects to ratify the con-
tract. Id.

CONTRACTS—Continued.
IX. Where a railroad executes a distance circular and contempo-

raneously refuses to accept the amount there stated as full
compensation and the Postmaster General then informed
the railroad that said compensation was all that would be
paid, and the railroad continues to carry the mails, there
was a “meeting of the minds” and said road is bound by
the terms offered for such service. N. Y., N. H. H. R. R.,

222.

X. Where the United States contracts with a railroad for spe-

cially expedited transportation of equipage and troops,
and where the same in all respects conforms to the pro-
visions of the acts of March 3, 1909, 35 Stat., 745, and
March 23, 1910, 36 Stat., 256, no reduction can be made
from the contract rates not authorized by a provision in

the contract. So, Pac. Co., 332.
XI. Full performance of a special contract for a special service

at a stated price requires payment of the contract rate. Id.
XII. A contract provision making the decision of an officer final

as to a subject matter of the contract that may arise dur-
ing the performance of the work will be so regarded and is
not reviewable in the absence of fraud, actual or con-

structive. At. Gulf & Pac. Co., 339.
XIII. Where specifications call for certain kinds of wood to be

used for piling, and the person designated by the con-
tract rules that Georgia yellow pine may be used, it was
wrongful for one of his subordinates to reject the short-
leaf variety and insist upon the long-leaf variety, where
it further appears that the short-leaf variety was as good
as other varieties of wood mentioned in the specifications.
A fortiori, this is true, where plaintiffs were permitted
later to use a different kind of pine piling in the same
character of work and the contracting parties by a sub-
sequent supplemental agreement relative to a change in
the wall specified long-leaf variety. Plaintiff is entitled
to recover the difference between what it could have fur-
nished the short leaf for and what it reasonably ex-

pended for the long-leaf variety. P. J. Carlin & Co., 376.
A specification requiring the heads of piles to be cut off

horizontally at the levels shown in the drawings and
plans, with no greater variation than 1 inch, when
reasonably construed, means that the variation should be
with reference to the datum line and not with reference to
the highest and lowest pile heads in different parts of the

work. Id.
XV. The Government is liable in damages for unreasonable de-

lays to the work due to investigations during which the
work is retarded or wholly stopped. Id.

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