Lynn v. United States, 110 F.2d 586

Lynn v. United States

110 F.2d 586

5th Cir.

1940

Check Treatment

*1 when, as should receive some of and for appellant what he received would endorse keep complete it. and There was definiteness Thompson Company them and also'a Thompson in and 31, 1928, of the others, he caused the sales stock and on December Company, cash, receipt his Thompson and for in of on the books of credit sales, upon $15,000, date and Company, on that commissions such of received stock Company sales own of for it as its the shares the Phoenix Finance of companies. year. during The the other of its sales stock receipts from the these net result facts, these definite payments Companies and of Phoenix his law, commissions settled rules make was, Thompson Company of the that Earl, him, paid earnings, his v. Lucas commissions, $63,637.50 he in he received 50 S.Ct. 74 L.Ed. 731. $44,887.50. paid Thompson Company, Saenger Commissioner, Cir., F.2d v. return, credit income he took In his tax prevent part payment of his difference, $18,750 for the commissions as Thompson, them to some kind of $3,250.81, received, charged expenses paid, mind, distributive measure had in he then $15,499.19, net as income with a result of claimed, Thomp from now either as Thompson Com- from commissions. earnings paid by or as him it as son’s pany reported amounts received it the as expenses, proper de business and therefore paid he it. ductions. judgment right. was affirmed. thus, attempt- his standing Matters when was re- ed the commissions allocation of commissioner, jected by appellant found very position. In the himself in a difficult alone, provid- him face of a contract with paid to ing that commissions would- be sold, must main- him stocks were he when prin- undisclosed agent tain that he as was of, Company; or fail- cipal Thompson and that, entirely, shift foot ing in he must LYNN UNITED STATES al. et Thompson that and maintain claim No. 9278. purchaser Company though ostensible Appeals, Court of Fifth Circuit. stocks, really selling them with March arrangement pay- him under an or for of the commissions to it of a share ment own, compensation for its as its as to him. services Judge that agree with District We heavy borne and was too to be burden proof carry appellant it. failed that year done, only in the to what as years, does indeed question in other corporations, Thompson and that show alter-ego, and of which one he others, genius, did directing very lost motion together work little show, too, It does formalism. due to he reference was with situated feel need companies, he did not commitments, resolutions, written definite felt, etc., have been had the would ownership control of as to situation And, it shows companies been different. a general sort under- there was a all concerned that standing among general distributed to the stocks would Thompson through Company. complete precise But, there was with him the contracts definiteness receive commission should to who *2 Gerry Cabaniss, Paul both Johnston Ala., Birmingham, appellant. Fitts, Jr., Counsel, General C. William Valley Authority, Knoxville, Tennessee Tenn., Asst, Sidney Kaplan, Sp. Atty. J. Smith, Gen., Atty., U. S. C. and Jim acres, Bradford, Atty., covering simple both fee Asst. U. S. W. R. warranty full Ala., appellees. and with Birmingham, no mention of time, however, At the drains. insistence that same on her SIBLEY, HUTCHESON, and Before pro- drainage rights *3 McCORD, Judges. Circuit writing, tected in license there was a inserted in given occupy her to the 104 acres SIBLEY, Judge. flooded, till following agreement an that she crops appellant brought right waived all petition damages of to claim to The expressly backwater, under the like of against United States because head- the 505, water, Act, amended or surrendering possession 24 Stats. other- the Tucker wise, 972, 41(20); and provision being these words: 43 Stats. 28 U.S.C.A. “This § Authority expressly which conveyed limited against Valley to the land to Tennessee creation, 48 of its Stats. the United States The under the Act on this date.” 831, 58, seq., may and et sue license shows 16 U.S.C.A. the water was to be § judgment level, prayed' against raised to the ex- be sued. She 556 foot and another a hibit for the fair value of lands shows that off the United States while the land sold along taken belonging and to her the river feet easements had elevation of 568 the through raising the waters of the Tennes- reserved lands from 562 were elevated Dam, petition alleges de- feet by see River Wheeler and a down to 558 feet. The claratory judgment rights her under a that the raised as to waters of the river now for long periods previously to deed she had obstruct the outlets States, impound re- drains necessary up that the deed be and and and back the surface Valley Author- on Against causing Tennessee waters her lands of formed. the most in- ity prayed money judgment for the land to boggy swampy a remain and and lands, incapable of juring profitable her a declaration her It cultivation. Authority rights. Valley alleged implied moved Tennessee that she as a matter-of law had an petition because it stated no discharge to dismiss reserved easement to her moved against through claim it. The United States drains and under lands she deeded, open obvious, because claim was stated to dismiss drains against them, jurisdiction necessary under enjoyment want of her to Act, lands, misjoinder of and for only the Tucker to obstruct them a was not likely Authority cause Valley by Valley Authority Tennessee tort the Tennessee but jury trial. district property confusion about a The also a her for a motions, ap- by both and this court sustained use the United States for which she has peal remedy followed. a Tucker Act. Appellant contends Rule peti- 'of be from the The facts must taken 20, 25, 1935, following Civil Procedure 28 U.S.C.A. appellant tion. Prior to October 723c, joinder section authorizes the aof lying productive farm of 323 acres owned a against Valley Authority Tennessee claim nearly Tennessee River all along the against with one States under the United land. That nearest the river river bottom think the Tucker Act. We otherwise. The higher that more re- 8 10 feet than authority procedure sys- to make rules of and'to mote, by drained two and the latter was supersede given drains, inconsistent which led statutes ditches and one of tems of 19, Supreme by 1934, Court the Act of through cave and it to the into a natural June 723b, 723c, only river; 28 U.S.C.A. related .other into a concrete box led §§ equity. pro actions at law suits in A water was which the accumulated ceeding under the Tucker underground emptied which Act neither. by drains taken money adjudi In it claims for be usual level. can into the river above its surface States, be of the con cated. Reformation through Tennessee Val- can The United money arises, on which the claim Authority agents, to tract ley and its undertook equitable Appellant’s relief as to land. improve navigation not prayers floods and control be- for reformation of the deed and a Dam across river erecting Wheeler judgment declaratory would have Appellant’s lands were sur- farm. low the Jones, drains, ignored. 131 maps showing United States U.S. veyed, 669, 90; S.Ct. 33 L.Ed. United States levels indicated. intended lake were It acquire Imprinting Co., for the United States Milliken v. 26 S.Ct. desired ap- 980. The claim for along the 50 L.Ed. of the land acres money here asserted is at law rather than in assurances that the lake would pellant, on equity, not an drainage proceeding her other but the action interfere with law; allowed, land, not de- jury a deed executed land, equally effects her unsold Amendment. on under the Seventh maridable expected sovereign immu- United States a clear Act waives The Tucker height. contemplated raise the waters to the classes suit in court in the nity from procedure and with specifies, on claims it expectations regardless But 28 U.S.C.A. out. it sets reservations side, or her land on either has her easement proceeding is 762, 763, §§ appurtenant it is been taken fall under new generis. does not sui drains meaning of the Constitution? any' than further procedure rules conveyed are in themselves lands ones. 761, supra, old it fell under the Sect. apart service to the of no value from their by joining other be embarrassed not to though drained The case lands. trial, jury may be litigants who entitled open led natural stream or ditch had across *4 depend necessarily liability whose must conveyed understand that the land. We principles. on different exercising their con the United States in power navigable stitutional over streams But, 21, pe spirit of Rule the may thereby obstruct raise their level and for the ought to be dismissed not tition nearby drainage on the of surface waters ought to be claims misjoinder, but the lands, thereby damage done although be trial, repleadcr if separated with a for private person acting for for him which a each consider advisable. We shall deemed tort, as for the land self would be liable a claim. unless is not Constitution taken under the can against States That upon be the waters the stream backed taking property only money for be for a improving acquiring land. Persons previous The deed the Constitution. adjacent navigable so to waters do land license ly be reformed. The made cannot subject to such results says only provision quoted that no above improve The cases to and use streams. not con liability waived as to the land is in this effect are cited and discussed to ; veyed reformation is it creates none. But States, Cir., United 6 101 F.2d Franklin v. needed, opinion for we that not not are dividing taking line 459. between appellant made withstanding deed which by merely damaging the land is illustrated warranty, simple full there fee with in Lynah, 188 comparing United States v. maintain implied reserved to a easement 445, 539, 349, relied 23 S.Ct. 47 L.Ed. U.S. the established drains were use States, by appellant, with Mills v. United on necessary to the open and obvious and en 738, 673, D.C., 12 L.R.A. therein cited 46 F. conveyed, joyment land no other of her not correctly distinguished. In decided and as way draining them in convenient plantations w.ere both cases similar rice Hamby Stepleton, 221 existence. v. Ala. by raising of the water affected the same 536, 76; Birmingham 130 So. Trust & Sav im in River for level the Savannah done 38, Mason, ings 222 Co. v. Ala. 130 So. 559. navigation. Lynah’s In proving case it its 75, Am.Jur., Easements, Sect. 17 445, 351, 47 23 S.Ct. was found U.S. [188 By raising of property “X. An easement which L.Ed. 539]: ** * compensated, must of the Savannah river when taken be in level it * * * Monongahela been caused Navigation water thereof has self valuable. Co. plantation in States, 312, upon flow back this 622, 148 13 v. United U.S. S.Ct. to * * * actually 463; Welch, and has invaded said 37 L.Ed. United States v. 217 raising directly 333, 527, 787, water plantation, U.S. 30 S.Ct. 54 L.Ed. 28 inches, plantation 18 which it is 385, about L.R.A.,N.S., said Ann.Cas. 680. But it plantation. from impossible remove said happened does follow that what has not permanent flooding is the condition complaint may This a of which be made. now, thereby plantation rice appellant’s and the Nothing done has been drains * * * destroyed for practically rice except raise the river to the 556 foot agriculture, any known other culture level. She knew that was to be done and bog and has no $5,397 irreclaimable she sold and received value.” that the land an taken, thereby and a claim to be bought It was held for with intent. She knew was Act was In the Tucker sustained. only from 2 her reserved land was to 6 feet plantation was not over- Mills case the says given the higher. The assurance she was flowed, drainage prevented by though was drainage her that would not be des plantation but the could be warranty. troyed made a is the was not as raised dykes by raising making its up protected opinion. mere It is set on its face a not drainage another direction at a cost has as an intentional deceit. There been no $10,000, the sum asked for the which was expected no ill effort to rescind. If she States, taking, was no made her deed taking.' held there plain I think it damage that she had had before. for which an unintended For, makes this will at all do. it remedy. In that afforded Tucker Act no. 34, States, Cir., nullity purchase leaves 45 F.2d v. United Jacobs waters, paid plaintiff, after United States and it the raised there invasion received, though $5,000, statutory provision paying and she had as for and also a paid agree nothing Unit- had been received. I damages as were involved. such may use that she use the drains but this Kelly, still ed v. Cress States & subject of the con- especially is effect on them 61 L.Ed. 37 S.Ct. purpose making struction premises were for the mill whose respects the Any would power the land was sold. other view overflowed, but whose water it out, permit cake and eat distinguish; but be to to have her difficult drowned not, therefore, I do prece- too. not to taken ought agree we think it opinion majority dam- that United for all the for Tucker Act relief dent Kelly, supra, distinguish river and difficult ages the lands near the all creeks, case, made it, been this the mill owner had there leading which have into here, any conveyance, plaintiff had. wetter, while but not overflowed ap- time, raising of the water. plaintiff’s petition say This is not *5 pellant alleges no overflow from taking as of action would state a cause all her land is she does not claim claims, it if she drainage easements to the is use- affected land not boggy, that the or That amade deed. showed that had not no any purpose, or .that there ful for say that question It is not before us. otherwise, dry it. way, by pumping or including the plaintiff pleads, facts on the taking is No shown. deed, case making of her made out. be concluded that also It must Authority liable. Valley not Tennessee .is agency it is In of dams erection builds The dams it States. of the United and cannot States belong the United (h) (i) (k). 831c sold it. 16 U.S.C.A. § under the agent about them does What this justified authority rightly could have done United States expressly alleges ROTHENSIES, directly. petition it Internal Reve- Collector Authority nue, ux. Valley has ULLMAN et Tennessee that what was “under the raising the river done in No. 7110. authority of the United States power and Appeals, Third Circuit. Circuit Court Valley Author Tennessee expressed said March river improvement ity Act.” unlawful, an act a tort which is right do States had agent this to do. commanded and had immunity liability question not a suit, thing done whether the but of think it We lawful unlawful. appellant’s property was lawful, and since far damage must be borne so not taken courts is as relief concerned. affirmed. Judgment

HUTCHESON, Judge (concur-

ring). result, and with most of agree with I majority opinion. I do in the is said what said, or least what agree with plaintiff opinion, implied and use the to maintain the same connection with drains in established conveyed, land not after

enjoyment