Thеse cases arise out of proceedings instituted by the United States in the United States District
The Garretts, who were owners of two parcels of land in Marion County, Iowa, entered into two 5-year gravel contracts, onе in January 1962 with Earl Wagner
After the execution of each of the gravel contracts, the Government in 1962 instituted a condemnation proceeding with' the result that the fеe simple titles to several tracts of land, including the two above-mentioned parcels owned by the Garretts, were taken, subject to then existing easements, and moneys were deposited with the district court as estimated just compensation. No mention was made of the gravel contracts or of'the. gravel rights in any of the documents filed in any of the proceedings, but all plaintiffs in the instant cases were served with notice of the proceedings. Therеafter, upon application of the Garretts, the district court issued orders under which there was disbursed to the Garretts approximately $130,000 which was part of the moneys deposited as estimated just compensation, without prеjudice to their right to have the sum of just compensation adjudicated.
In February 1966, the petitions in the instant cases were filed in this court, in which plaintiffs seek amounts which they claim as just compensation under the Fifth Amendment for the “taking” by defendant of the use and benefits of the gravel contracts. The parties agree that the fee simple titles taken by defendant included the gravel deposits which are real property and part of the land; but plaintiffs contеnd that the gravel contracts are personal property and are not included in the condemnation cases; and hence that plaintiffs are entitled to make claim in this court for losses
In April 1966, a condemnation commission, appointed by order of the district court, conducted a trial on the issue of just compensation for the taking of the parcel from which Earl Wagner had the contract rights to stockpile and remove gravel. At the trial the testimony of Julian Garrett, Earl Wagner and other witnesses, adduced by both parties, was received. The commission found and reported to the court that the just comрensation for the taking of the title in fee was $121,800 of which $5,000 was to be apportioned to Earl Wagner for the loss of his gravel contracts, and $116,-800 was to be apportioned to the Garretts as the former property owners. In valuing the parcel, the commission allowed $Í6,000 as an additional increment for the underlying sand and gravel. The district court confirmed the commission’s award on October 19, 1966, in an opinion which specifically dealt in some detail with the enhancement in value flowing from the sand and gravel, and with the value of the sand and gravel lease. That court has also confirmed (on December 13, 1966) the commission’s award on the parcel from which Jake Klein had the right to stoсkpile and remove gravel. The award for that tract was $117,345 plus an enhancement for sand and gravel of $6,000, a total of $123,345; $1,000 was assigned to Klein’s lease.
It is not, of course, the province of this court to review these repоrts of the commissions or to review the rulings of the district court in the condemnation cases; but it is sufficient for the purpose of ruling on the motions for summary judgment which are before this court to announce the conclusion which the deсided cases compel, namely, that on the basis of the pleadings, the motions and the exhibits which accompany the motions, plaintiffs do not have a cause of action in this court.
As stated above, both parties agree that the fee simple titles taken by defendant included the gravel deposits which
We come then to the legal implications of the alleged “taking” of the gravel contracts as distinct from the gravel deposits. A leading case which lays down the guidelines that must be followed in the instant case is Omnia Commerical Co. v. United States,
* * * If, under any power, a contract or other property is taken for public use, the Governmеnt is liable; but if injured or destroyed by lawful action, without a taking, the Government is not liable. What was here requisitioned was the future product of the Steel Company, and, since this product in the absence of governmental interference would have been delivered in fulfillment of the contract, the contention seems to be that the contract was so far identified with it that the taking of the former, ipso facto, took the latter. This, however, is to confound the contract with its subject-matter. The essence of every executory contract is the obligation .which the law imposes upon the parties to perform it. “It [the contract] may be defined to be a transaction between two or more persons, in which each party comes under an obligation to the other, and each reciprocally acquires a right to whatever is promised by the other.” Dartmouth College v. Woodward,4 Wheat. 629 , 656. Plainly, here there was no acquisition of the obligation оr the right to enforce it. If the Steel Company had failed to comply with the requisition, what*915 would have been the remedy? Not enforcement of the contract but enforcement of the statute. If the Government had failed to pаy for what it got what would have been the right of the Steel Company ? Not to the price fixed by the contract but to the just compensation guaranteed by the Constitution.
In exercising the power to requisition, the Government dealt only with thе Steel Company, which company thereupon became liable to deliver its product to the Government, by virtue of the statute and in response to the order. As a result of this lawful governmental action the performance of the contract was rendered impossible. It was not appropriated but ended.
Parties and a subject-matter are necessary to the existence of a contract, but neither constitutes any part of it — the сontract consists in the agreement and obligation to perform. If one makes a contract for the personal services of another or for the sale and delivery of property, the Government, by drafting one of thе parties into the army, or by requisitioning the subject-matter, does not thereby take the contract.
Two years later the Supreme Court was again confronted with a claim similar to that which was made in the Omnia Commercial case. In Mitchell v. United States,
Mitchell, supra, was recently cited and followed by this court in B. J. Widen Co. v. United States,
* * * Undoubtedly, the United States could here have “taken” plaintiff’s personal property and business, in which case just compensation would be due. But this was not done. The only taking in the present case was of the plaintiff’s real estate and water rights, for which compensation has been fully paid * * *: The additional losses claimed in this proceeding are in the nature of consequential damages, that is to say, they were “an unintended incident” of the actual taking. * * *
It is settled law that in the absence of specific statutory mandjate, compensation tinder the Fifth Amendment may be recovered only for property taken and not for incidental or consequential losses, the rationale being that the sovereign need only pay for what it actually •takes rather than for all that the owner has lost, [citing cases] Hence the incidental spoliation of the plaintiff’s inventory and equipment, the reduction or loss of its good will and profits, and the expenses incurred in having to re-adjust its manufacturing operations are non-compensable under long-established legal рrinciples.
We conclude that, to the extent the gravel contracts gave an interest in the land, that interest has been paid for in the condemnation suits but that, to the extent these contracts were personal property, they were not taken by the United States at all but simply frustrated as in the cases cited. In connection with the plaintiff’s argument that the contracts were personal property under Iowa law, it is worth noting that federal law determines what constitutes real property for the purposes of federal eminent domain. State of Nebraska v. United States,
Defendant’s motions for summary judgment are granted, plaintiffs’ cross-motions for summary judgment are denied, and plaintiffs’ petitions are dismissed.
Notes
Tilia opinion incorporates with minor changes the opinion prepared by Commissioner Richard Arens at the direction of the court, under Rule 54(b), •with additions required by subsequent events.
Pursuant to a motion of the Garretts, Earl Wagner was made a plaintiff in case No. 66-66.