75 Ct. Cl. 569 | Ct. Cl. | 1932
Lead Opinion
delivered the opinion:
This is one (Senate bill 1524) of a number of cases referred to this court under Senate congressional reference, Resolution No. 107, 67th Congress, 1st session.
The plaintiff is a West Virginia corporation engaged in the business of manufacturing chewing gum and was, in the year 1918, a tenant of the Bush Terminal Buildings Company under four leases, all of which expired August 1, 1921. The leases covered 60,748 square feet of space in Buildings No. 5 and No. 6 of the Bush Terminal property in Brooklyn, New York. On June 18, 1918, the Navy Department, acting under authority of the act of March 4, 1917, ch. 180, 39 Stat. 1168, 1192, 1193, and the act of June 15, 1917, ch. 29, 40 Stat. 182, served notice upon the Bush Terminal Build
Coincident with the requisition order the Navy Department had set up a board of appraisers to determine the rental value of the premises to the owner, and the compensation which should be paid to tenants for losses sustained. On June 21, 1918, two days after plaintiff received the requisition order, plaintiff was required to furnish the above board with a detail list of personal property possessed by plaintiff and of machinery installed inside its lease, and the plaintiff at once supplied this information, and later, on July 9, 1918, the commandant of the third district in acknowledging receipt of this confirmation, said:
“ The filing of the questionnaire by you does not in any way act as a stay, or release you from the obligation to vacate the premises on or before December 1, 1918.
“ It is the intention of the board to make a personal visit to each plant affected by this commandeer, for the purpose of verifying such statements as have been filed, and this, you appreciate, will take some time, as there are some sixty-odd firms affected by the commandeer.
*580 “When and as soon as you have made definite arrangements to vacate the space now occupied by you, kindly notify the board as to the date upon which you expect to remove from the premises now occupied.”
Again on September 8, 1918, accredited representatives of the Government personnally visited the plaintiff and requested that the vacation of its lease be expedited. A representative of the Government personally visited the leased quarters of the plaintiff to verify and check over plaintiff’s return of property and machinery located therein, and for 2 months and 20 days the requisition order was as completely effective as to the plaintiff as though it had been consummated by court procedure in times of peace.
The plaintiff is now suing to recover just compensation for the taking of its leasehold interest in the Bush Terminal Buildings, and contends it is entitled to recover for the following items:
(1) The value of the unelapsed period of the leases.
(2) The value of certain fixtures which were incapable of being detached and removed to the new plant.
(3) The cost of removal; the damages incident to the change of location, including the charges for removing and reinstalling equipment; salaries of officers and employees for time spent in moving, and overhead expenses for one day when the plant Vas idle.
(4) The difference between the rate paid for fire insurance at the Bush Terminal Buildings and that paid at the new plant during the unexpired term of the leases.
(5) Interest on investment, interest on mortgage, insurance, depreciation, and taxes in connection with the new plant for the period from July 29, 1918, to January 25, 1919.
It is true that the Navy Department did not enter into physical possession at any time of the space leased by the plaintiff but, due to the commandeer order, the plaintiff was forced out of its leaseholds and compelled to seek other premises. It was in compliance with the commandeer order that the plaintiff acted in good faith to deliver the premises. Ever since the decision of the Supreme Court in Duckett & Co. v. United State, 266 U. S. 149, and Phelps v. United States, 274 U. S. 341, it has been settled law that the use of
The naval appropriation bill of March 4, 1917, 89 Stat. 1168, 1192, 1193, and the urgent deficiency bill of June 15, 1917, 40 Stat. 182, under which the commandeer order was issued, gave to the President extraordinary powers in the matter of requisition and taking of private property. The right to requisition and take over any factory or part thereof, without taking possession of the entire building, was a part of the power conferred. It was emergency legislation and an order issued thereunder was mandatory. It was to be obeyed. The one restrictive provision was that, in the event of the exercise of the authority given, the President was to fix the amount of just compensation, which, if unsatisfactory, could be accepted to the extent of 75 per cent and the desired balance sued for in this court. The President was not bound by legal formalities or procedure, but the exercise by him of the authority granted was as effective in character as if formal condemnation or procedure had been pursued, and the mandatory provisions of the legislation left no option upon the part of anyone receiving a requisition order except to consider himself divested of all present ownership, discretion, or title to the property or materials desired, inconsistent with the President’s exercise of the power and authority conferred by the acts.
The extraordinary power to be exerted under the acts was not burdened with court procedure. There can be no question in this case that all the formalities requisite (if they can be called that) were complied with by the Government, so far as issuance of the order and service of notice is concerned. The subject matter of the requisition, that is, the contracts of lease (the Navy Department was to pay rent), was one that could be and was requisitioned. The case of Brooks-Scanlon Corp. v. United States, 265 U. S.
The very purpose of the statutes was expedition. The effect of requisitions thereunder was immediate, in no way deferred by refusal or delay upon the owner’s part to comply with them.
It is undeniable, from the facts found, that the Navy Department was anxious to gain occupancy of the premises as soon as possible. The course taken both by plaintiff and defendant plainly shows that there was no question as to the effectiveness of the order. The defendant required obedience, and the plaintiff proceeded to obey. The plaintiff could not have sublet the premises, even with the landlord’s consent. Its lease had been taken from it, it was no longer lessee, and it had nothing it could assign.
It was physically impossible for the Government immediately to occupy the premises. The course pursued was eminently practical. That the Government should simultaneously with service of notice enter upon the premises and physically oust this tenant, is hardly to be imagined. The very terms of the order precluded such a course. The order effectively expropriated plaintiff’s leases. In all the circumstances of the case it can not be said that the Government omitted any act which could have been a more complete exercise of its power and authority under the statutes which authorized the procedure.
The Government could not recall what it had done. That was consummated. It could only go through the form of canceling the requisition order, and refrain from further exercising the right of the requisitioned tenancy. This course was adopted. That the defendant had theretofore
The plaintiff is entitled to recover just compensation for the value of its leases from January 25, 1919, the date it surrendered the premises, to the end of the term of its leases, namely, August 1, 1921. Taking into consideration the character and location of the space in question and the facilities afforded the tenant, the general condition in and about the port of New York regarding space for manufacturing purposes, and the rates at which like space was then held and being rented by the Bush Terminal Buildings Company, the just compensation to be paid the plaintiff for the unexpired term of the leases is $40,979.14, together with interest from January 25, 1919.
The plaintiff claims, in addition, the cost of moving its stock, the dismantling and removing of its equipment from the old to the new plant, and the cost of reinstalling the same; in other words, the cost of moving, together with the salaries and wages of certain employees for the time spent in moving, the idleness of its plant for one day, and the value of fixtures which could not be removed. These are set out in detail in Finding XX. The plaintiff was not the owner of the fee, but a tenant holding under leases which contained no right of renewal. At the termination of the leases it would have had to move to a new location. The cost, labor, and expense of dismantling, removing, and reassembling the appliances, the loss of fixtures, idleness of plant and overhead, would all have been incurred at that time. The removal at an earlier date imposed no additional burden. Mayor v. Gamse & Bro., 132 Md. 290.
Just compensation is fixed for the fair value of the property requisitioned at the time of the taking. It does not include consequential damages resulting from forced removal of property not taken by the Government. The plaintiff’s right to occupy and use certain footage, or space, in the buildings was taken over, nothing more. The liability of the Government is for the value of this right given by the leases to the end of the period mentioned in them. The
In Bothwell v. United States, 254 U. S. 231, the lands of a cattle ranch were condemned and as a consequence a sale of the cattle was forced, but it was held that the Government was not responsible in damages for the loss due to the enforced sale of the cattle or the destruction of business.
In Southern Products Co. v. United States, 61 C. Cls. 801, the plaintiff was ordered to remove a large quantity of cotton from the Bush Terminal Buildings, which had been taken over by the War Department under requisition, and the plaintiff sued to recover the removal costs and damages sustained by reason of the cotton being injured by exposure to the weather. No recovery was allowed on the ground no property was taken and the expense was incident to its removal. See also Gershon Bros. Co. v. United States, 284 Fed. 849, and United States v. Meyers, 190 Fed. 688.
There is no claim made by the plaintiff that its business was taken. On the contrary, it is seeking to recover a loss it claims to have sustained by reason of the change from one location to another. Whatever injury to business this may have been, for such an injury the Government is not liable.
In Mitchell v. United States, 267 U. S. 341, it it held “ No recovery therefor can be had now as for a taking of the business. There is no finding as a fact that the Government took the business, or that what it did was intended as a taking. If the business was destroyed, the destruction was an unintended incident of the taking of land. There can be no recovery under the Tucker Act if the intention to take is lacking.”
There was no attempt to take the business of plaintiff, and any injury caused thereto was incidental to taking over the use of the premises on which the business was conducted, without intention to injure or destroy the business itself.
These are all inconveniences and expenses incident to the surrender of the possession and are not elements to be considered in determining the compensation to which the
The plaintiff has brought to our attention several cases which have held consequential damages recoverable. All these cases involve State statutes permitting municipalities and railroads to condemn but no case has been cited which involved the exercise by the United States of its power of Eminent domain in which consequential damages have been allowed, and the statutes under which this property of the plaintiff was taken are silent as to such damages. Just compensation alone is provided and the cases cited, sufra, fix the basis of what shall be included in those two words.
The items mentioned in Finding XX are disallowed. The plaintiff is entitled to recover just compensation for the value of its leases from January 25, 1919, to August 1, 1921, which is found to be $40,979.14, with interest from the former date.
It is so ordered.
Dissenting Opinion
dissenting:
Plaintiff sues to recover $160,284.81 as losses and damages sustained, including an amount of $41,400.89 as the value of its leases on certain space in the Bush Terminal buildings from the date of plaintiff’s removal from said premises, January 19, 1919, until the expiration of said leases, August 1, 1921. It also sues for interest upon each item of damage from the date on which it was incurred.
The majority opinion correctly, holds that the United States can not be held! responsible under the acts of March 4 and June 15, 1917, for plaintiff’s damage or loss incident to the lawful exercise by the Government of its right to requisition, or commandeer private property. I am of opinion, however, that plaintiff is not entitled to judgment for any amount as just compensation for the reason that there was no taking of its property.
The United States did not at any time subsequent to September 9, 1918, issue a requisition order covering the buildings of the Bush Terminal or the space therein occupied by the plaintiff under its four leases expiring August 1, 1921. Nor did the United States at any time enter into actual possession of any of the Bush Terminal buildings, or use or occupy any of the space therein occupied by plaintiff. It is well settled that proceedings to take property for public use, whatever their nature, may be abandoned before consummation, and, if the owner of the property has never been disturbed in his use or possession, he can not, in the absence
The disadvantages arising from the institution of eminent domain proceedings may be considerable, but they can not be recognized as the subject of an action against the sovereign because of the action of officers authorized to prosecute such proceedings. In the nature of things, Government officials must exercise discretion on the question whether the public
In Liggett & Myers Tobacco Co. v. United States, 274 U. S. 215, in Duckett & Co., Inc., v. United States, 266 U. S. 149, and in Phelps v. United States, 274 U. S. 341, the United States issued requisition orders for delivery of certain articles and certain properties under which the articles and the properties called for were subsequently delivered. In the Duckett and Phelps eases, as a result of conferences, the properties requisitioned were vacated by the lessees and use and possession were taken by the United States. There was at no time a withdrawal or cancellation of the commandeering proceeding. Those cases are not, therefore, authority for the plaintiff’s claim for judgment in this case.
When the Government issued the requisition order in this case on June 18, Í918, it was only considering the taking of the Bush Terminal buildings, but it did not take. By so considering no new relation between the Government and the plaintiff’s property came into being, for at all times the property of the plaintiff and of every other owner is exposed to the right of the public to take it for public use. By issuing the requisition order and considering the matter, the taking of such property became more probable than before, but it remained only a possibility. Plaintiff’s exclusive possession was not interrupted; its use was made less profitable only by its apprehension lest a possibility might ripen into a certainty.
I am of the opinion that the United States is not liable, as for a taking, for loss suffered through the revocation of the commandeering process where the owner had retained possession of the property and the Government had neither accepted, used, nor injured it. Garrison v. City of New York, supra; Bauman v. Ross, 167 U. S. 548, 598-9; Omnia Commercial Co., Inc., v. United States, 261 U. S. 502, 508-9.
In these circumstances I think the facts in the case should be found by the court and reported to the Senate pursuant to Senate Resolution 170, 67th Congress, 1st session, No
Dissenting Opinion
also dissenting:
I concur with that part of the majority opinion which holds there was in fact a taking of the use of the property from the time that the plaintiff was served with notice that the Government required the use of the premises which it occupied and that possession be delivered on or before December 1,1918. The Government thus took over the control of the premises and plaintiff submitted to its action. Thereafter the situation of the plaintiff was practically the same as a tenant at will who must surrender the possession of the leased premises at any time when demanded.
The language of the bill which has been referred to this court by the action of the Senate raises a strong doubt in my mind as to whether it does not apply to some matters which can not be considered by the Court of Claims. The bill provides for the payment to the plaintiff of $113,554.49 “ as just compensation and in full settlement and satisfaction of its damages and loss incurred and suffered by it in complying with United States Navy Commandeer Order Numbered N-3255, dated June 18, 1918.”
It will be observed that the bill proposes to make this payment not only for “ just compensation,” but for damages and loss incurred and suffered by plaintiff. The majority opinion holds that the plaintiff is entitled to recover just compensation for the value of its lease from the date it
