257 F. 397 | 8th Cir. | 1919
Lands of the defendants in error in New Mexico were appropriated by the government for public use in a reclamation project. They were actually taken by flooding on April 19, 1912, and private use and enjoyment thereafter were destroyed. Formal proceedings in condemnation were not begun until January 18, 1915, when the government filed its petition in the court below for that purpose. The petition expressly averred that the lands “were flooded and thereby appropriated by the government of the United States” on April 19, 1912, but that no compensation had yet been paid. The prayer of the petition asked, among other things, that the lands be decreed to be the property of the government “from the date of the said taking or the appropriation thereof.” Commissioners were appointed to assess the damages. Their report, February 23, 1917, was confirmed by the court, and on July 27,1917, the government was directed to pay the awards to the clerk for the benefit of the defendants in error. The commissioners followed the customary practice of valuing the property as of the time of appropriation, and they therefore stated in their report that the amounts awarded were as of April 19, 1912; also that they had included therein no interest to the time the government’s petition was filed or to the date of their report. Upon motion of the defendants in error the court, by supplemental order on October 1, 1917, required the government to deposit with the clerk, in addition to the amount of the awards, a sum equal to interest thereon at 6 per cent, per annum from April 19, 1912, to the time the deposit was made. The addition required was not interest as such, but a sum equal to interest.
It is urged that no interest can be allowed against the United States in a condemnation case for any period prior to final judgment, or for
“It has been established, as a general rule, in the practice of the government, that interest is not allowed on claims against it, whether such claims originate in contract or in tort, and whether they arise in the ordinary business of administration or under private acts of relief, passed by Congress on special application. The only recognized exceptions are where the government stipulates to pay interest, and where interest is given expressly by an act of Congress, either by the name of interest or by that of damages.”
Section 177 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1141 [Comp. St. § 1168] ; Rev. Stats. § 1091) provides:
“No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest.”
Without further reference to the many authorities cited, it may be said that the position of the government is fully illustrated by the above excerpt and statute. We think that the question is settled in this court by United States v. Sargent, 89 C. C. A. 81, 162 Fed. 81, in which interest at 6 per cent, was allowed in a similar case as a part of the “just compensation” required by the Fifth Amendment to the Constitution. In the matter of the time and the rate of interest, the court followed the rule in Minnesota, where the property was located and the condemnation proceedings were had. The case was taken to the Supreme Court, but was afterwards dismissed on the motion of the Solicitor General. In New Mexico, where the case at bar arose, the legal rate is-6 per cent. In Atchison, T. & S. F. R. Co. v. Richter, 20 N. M. 278, 148 Pac. 478, L. R. A. 1916F, 969, it was held that the owner should have interest “from Ihe time his possession is invaded * * * either with or without an order of court.”
“The sole question for you’to determine, in each one of the cases, is the value of the lands and the property at the time of the actual taking and occupation by the United States, together with interest at the rate of 8 per cent, per annum, the legal rate in Alabama, on said sums so ascertained by you, from the-date of suc-h actual taking and occupation.”
The proceedings in that case were under Act July 2, 1917, c. 35, 40 Stat. 241 (Comp. St. 1918, § 6911a), which provided that they should “be prosecuted in accordance with the laws relating to suits for the condemnation of property of the states wherein the proceedings may be instituted.” But, as regards the essential elements of the just compensation to be paid, the requirement is not different from the conformity provisions of section 2 of the act of August 1, 1888, supra, applicable to the case at bar.
The order is affirmed.