(dissenting).
I cannot agree with the opinions of the majority. In the first place, I do not agree with the reason assigned by Judges *468LARAMORE and LITTLETON for the nonliability of the United States to pay just compensation for the occupation of plaintiff’s property, to wit, that it was an occupation not by the United States, but by the Allied Powers.-
The occupation of Japan was a joint enterprise of the United States, Great Britain, Russia and other Powers, but each Power was liable for the expense of the maintenance of its own forces., Food and clothing were purchased by the United States for its troops, by Great Britain for its troops, etc. Liability for these purchases was on the Government making them, and on it alone. The cost of quartering its troops was also the responsibility of the several Governments. That each of them was engaged in a joint venture with the others affords no escape from liability. See Anglo Chinese Shipping Co. v. United States, 127 F.Supp. 553, 130 Ct.Cl. 361.
However, there is in my mind a serious question of the liability of the United States on another ground. After the outbreak of war with Japan, plaintiff’s property, located in Japan, was, under international law, enemy property, and during hostilities, at least, was liable to utilization, or even to destruction, by our forces with impunity; the owner had no redress against the United States therefor. Juragua Iron Co., Ltd. v. United States, 42 Ct.Cl. 99, affirmed 212 U.S. 297, 29 S.Ct. 385, 53 L.Ed. 520; Herrera v. United States, 222 U.S. 558, 32 S.Ct. 179, 56 L.Ed. 316; Oppenheim, International Law (6th Ed.) Vol. II, section 140; Wheaton International Law (7th Ed.) p. 248; Hyde, International Law (2d Rev. Ed.) Vol. III, pp. 1726-1731.
Does this rule apply to the property of .a citizen of the United States, or a corporation of the United States, after the •formal surrender of the enemy?
Technically, of course, the war is not over until the treaty of peace is signed, and occupation forces are a necessary aftermath of the surrender. Also, it will not be disputed that during the period of occupation our Government could require the use of the property of a Japanese national; and that national would have no recourse against it. But does this same rule apply to the property of an American citizen or an American corporation after the enemy has surrendered ? After the surrender, is the property of an American citizen still enemy property?
The war was fought for the protection of American lives and property, for the protection of this property as well as other property of our citizens; it was fought to secure restoration of American property that had been seized by the enemy. This purpose was partly accomplished by the order of the Supreme Commander requiring the restoration of the property seized by the Japanese Government. The Japanese Government restored title to it, and would have restored possession except for its occupancy by the American Army. From that time on, Japanese sovereignty over this property was ended; its dominion and control over it was surrendered and the title of its former owner was recognized.
Thereafter, this property could not in reason be classified as enemy property. It was the property of an American corporation, which had been liberated from the hands of the Japanese.
Now, the right of the American Army of Occupation to use it in furtherance of the purposes of the occupation is not open to question; but when so used, it was used, not as enemy property, but as the property of an American corporation. Its owner was entitled to the same recompense as the owner of other property taken by the Government for public purposes, to wit, the payment of just compensation.
The United States had the right, as the victor, to require the conquered enemy to pay the cost of occupation, including the rental value of plaintiff’s property; but this does not mean that the United States can shift to Japan’s shoulders the responsibility the United States is under to one of its own citizens for the taking of its property. It must compensate the citizen itself, and then look *469to Japan for restitution. Seery v. United States, 127 F.Supp. 601, 130 Ct.Cl. 481.
I think the plaintiff is entitled to recover the fair rental value of the property from the time title to it was restored to plaintiff by the Japanese Government, and until possession of it was restored to plaintiff by the United States Government.
I would remand the case to a Commissioner to determine this amount.