Playa de Flor Land & Improvement Co. v. United States
| Decision Date | 20 March 1945 |
| Docket Number | Civ. No. 969. |
| Citation | 70 F. Supp. 281 |
| Parties | PLAYA DE FLOR LAND & IMPROVEMENT CO. v. UNITED STATES. |
| Court | U.S. District Court — Panama Canal Zone |
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George R. Shields (of King & King) of Washington, D. C., and C. P. Fairman, of Cristobel, C. Z., for plaintiff.
Daniel E. McGrath, U. S. Atty., and Brice Toole, Atty. Department of Justice both of Washington, D. C. (Francis M. Shea, Joseph A. Fanalli, and William S. Ward, all of Washington, D. C., of counsel), for the United States.
This case was filed on November 5, 1941, under the authority of and pursuant to the provisions of the Act of Congress approved May 21, 1934, 48 Stat. 1361, and the amendment thereto of August 10, 1939, 53 Stat. 1532. (Court's memorandum, p. 1 and 2.)
The complaint alleged that the Playa de Flor Land and Improvement Company was an unincorporated association of individuals, setting forth the names of the individuals and their interests, and stated that they were joint owners and had acquired title and rights of ownership to specific real property, which was described as Tracts Nos. 1, 2, 3, and 4. After alleging their muniments of title, there is a plea of prescription that the joint owners, under the name of the Playa de Flor Land and Improvement Company, their predecessors in interest and title and those under whom they claimed, had been and were in the actual open, notorious, and adverse possession, use, and cultivation of the lands described, without violence, concealment, or interruption, for a period of more than forty years prior to the Treaty between the United States of America and the Republic of Panama, which was ratified February 26, 1904, 33 Stat. 2234, and for a period of more than fifty years prior to their forcible dispossession on February 1, 1912.
It was further alleged that plaintiffs were forcibly and unlawfully evicted and dispossessed of the lands and improvements on the 1st day of February 1912, by the then duly-constituted authority of the representatives of the United States of America within the territory of the Canal Zone and that the joint owners had not been paid nor received compensation for the property taken from them.
The further allegation was made in the complaint that the lands described as fronting on the Bay of Limon and extending in depth eight hundred feet from the shoreline comprised an area of 228.2 acres and that the fair and average market value of said sea-front area at the time of taking was $298,942; that the balance of the lands described in the complaint as lying contiguous and adjacent to the area having sea frontage at the time of the taking thereof was of a total value of $91,461; that the improvements, including fruit trees, on Tracts Nos. 1 and 2 were of the reasonable value of $24,500; and that the improvements, including fruit trees, on Tract No. 3 were of the reasonable value at the time of taking of $7,671.50. It was further alleged that the total value of the lands and improvements thereon, as set forth in the complaint, at the time of the taking thereof was the sum of $422,574.50, with interest on said sum at the rate of six per cent per annum from the 1st day of February 1912, and judgment was prayed against the United States of America for said sum.
Summons was issued by the Clerk of Court and, on December 13, 1941, the acting United States District Attorney filed defendant's motion to quash summons, service, and return.
As previously set forth in the Court's statement herein, counsel for the plaintiffs, who had instituted the suit by mailing the complaint, etc., to the clerk of this court, was in Washington, D. C. There was some delay in the trial of this motion as a result, the case being continued from time to time in order that counsel might properly present the question and be heard.
The motion came on for trial on the 24th day of June, 1942, and, it appearing that counsel for plaintiffs and plaintiffs had attempted informal service on an assistant District Attorney in the Canal Zone and by delivering a copy to an attorney of the Claims Division of the Department of Justice in Washington, D. C., the motion was sustained. The Court might mention in this connection that, assuming that plaintiffs and their counsel were familiar with the history of this litigation, by attempting this informal service they convicted themselves of being incurable optimists.
The case was continued and alias summons awarded, and service was had on same, as the law required.
April 17, 1942, defendant filed its motion that the attorney of record for plaintiffs produce his authority to act in the name of the plaintiffs and to file suit and, in default of same, to dismiss the case.
Again there was delay because counsel for the plaintiffs had no counsel associated with them in the Canal Zone in the practicing of the case, and at that particular time, as set forth in the attached statement, not only were communications slow and uncertain between the Canal Zone and the United States but transportation was also in the same condition.
Counsel for plaintiffs submitted their brief, and, on the 20th day of November, 1942, the defendant appeared by the District Attorney and a special assistant to the District Attorney; the plaintiffs William E. Weigle and C. P. Fairman appeared and testified for the plaintiffs, and this motion was heard and was very promptly overruled on the same day.
The Court, realizing the difficulties of plaintiffs proceeding with the case in the absence of local counsel, made the suggestion as set forth in the Court's statement herein, and local associate counsel appeared.
December 22, 1942, the District Attorney moved the Court for an extension of time to plead, for the reasons and upon the grounds that he was awaiting instructions from the Attorney General of the United States. There was no objection to the motion, and it was sustained and the defendant was given until the 16th day of February 1943, to plead.
February 11, 1943, counsel for the defendant filed a demurrer to the complaint setting forth six grounds, as follows:
A voluminous brief was also filed on the same day in support of the demurrer, but only the first ground of the demurrer, as set forth above, was mentioned.
March 9, 1943, plaintiffs responded to defendant's demurrer and filed a brief in support of their response, or answer.
March 19, 1943, defendant filed a reply memorandum in support of its demurrer.
On the same day the demurrer came on regularly for trial. The plaintiffs appeared by associate counsel C. P. Fairman, and the defendant appeared by the District Attorney and Brice Toole, attorney of the Department of Justice, Washington, D. C. The Court heard the argument of counsel and, having in mind an order that it desired to formulate, deferred a decision on same until it could prepare the order. The demurrer was overruled for the reasons stated in the order, and plaintiffs were immediately ordered to prepare and file their amended complaint making parties plaintiff all the parties owning an interest in the land, as set forth in the complaint, not only for themselves but on behalf and for the benefit of all others who might have an interest or claim in the lands described and in controversy. The defendant was given sixty days to plead further.
April 22, 1943, defendant filed a demurrer to the amended complaint, and a memorandum in support of same, the grounds of which were the same as those urged in the demurrer to the complaint.
May 18, 1943, the demurrer to the amended complaint came on to be heard, was overruled, and counsel for defendant then moved that it be given thirty days to file an answer, which motion was sustained.
June 15, 1943, the defendant made another motion for an extension of time to file its answer; there being no objection, it was given until and including June 21, 1943, to file answer.
June 16, 1943, answer was filed controverting all the material allegations of the complaint. Practically all the denials were based on lack of information sufficient to form a belief.
Pursuant to agreement of counsel, the case was continued and set for trial on October 20, 1943; however, on August 17, 1943, by agreement of counsel, the trial was re-set for the 17th day of November, 1943.
Non-resident counsel were notified by the Court that we desired to have a meeting of the attorneys in the nature of a pre-trial conference a week before the trial. We fully expected by doing so to confine the issues, lessen the labors of the trial, and, most important of all, to straighten out the records and the exhibits.
Counsel being present in the Canal Zone, we met with them in Cristobal. After surveying the situation in informal conferences for a day or two, we realized it was a vain hope to dispose of any matters connected with the case until the trial. Nothing was accomplished.
November 9, 1943, counsel for defendant offered an amended answer in which was set forth the decision of the Supreme Court of the Canal Zone in the old case of Villalobos v. Foleston et al., No. 66 which case involved Tract No. 1 in plaintiffs' complaint herein, and pleaded same as res judicata. No reasons were given why this matter should not have been plead long before this nor as to why it should be offered just on the eve of the trial. There can be...
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