Bogart v. United States

• Decision Date: 22 July 1948
• Docket Number: No. 3619.,3619.
• Citation: 169 F.2d 210
• Parties: BOGART et ux. v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

169 F.2d 210 (1948)

BOGART et ux. v. UNITED STATES.

No. 3619.

Circuit Court of Appeals. Tenth Circuit.

July 22, 1948.

Dale M. Stucky, of Wichita, Kan. (Howard T. Fleeson, Homer V. Gooing, Wayne Coulson, Paul R. Kitch, and Manford Holly, all of Wichita, Kan., on the brief), for appellants.

Elizabeth Dudley, Atty., Dept. of Justice, of Washington, D. C. (A. Devitt Vanech, Asst. Atty. Gen., Paul L. Aylward, Sp. Atty., Dept. of Justice, of Ellsworth, Kan., and Roger P. Marquis, Atty., Dept. of Justice, of Washington, D. C., on the brief), for the United States.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

PHILLIPS, Circuit Judge.

John W. Bogart was the fee owner of 240 acres of land situated in Greenwood County, Kansas. On March 25, 1946, the Inland Construction Company¹ acquired a rock and gravel lease on 7½ acres of the land. On March 26, 1946, the United States instituted a proceeding for condemnation of the land. On the same day, an order was entered in the proceedings granting the United States immediate and exclusive possession.

Two employees of the War Department contacted Bogart and Hattie Bogart, his wife, and obtained their signatures to an instrument entitled "Entry of Appearance and Stipulation." It described the land and stipulated that the Bogarts entered their appearance; that the fair cash value of the land was $1,900; that the Bogarts should be permitted to remain in possession until April 1, 1946; and that the improvements should be removed "on or before ____, 1946." One copy was retained by the Bogarts. Another copy was delivered to the Department of Justice. The latter copy differed from the Bogarts' copy in three particulars: It fixed the date for relinquishment of possession as March 26, 1946, provided that the improvements should be removed on or before August 1, 1946, and was signed by Paul L. Aylward, a Special Attorney for the Department of Justice. The stipulation bore the caption and number of the instant case in the District Court and must have been signed by the Bogarts after March 26, 1946.

Aylward testified that he was authorized to approve the stipulation July 17, 1946, and signed it shortly thereafter.

On July 24, 1946, the United States filed a declaration of taking under 40 U.S.C.A. § 258a, and deposited $1,900 as estimated compensation.

On August 22, 1946, Bogart wrote a letter to the Department of Justice, referred to the condemnation proceeding and the stipulation and inquired when settlement would be made for the land. On August 24, 1946, Peter F. Caldwell, Special Attorney for the Department of Justice, wrote a letter to Bogart in which he acknowledged receipt of Bogart's letter and advised him that $1,900 had been deposited in the registry of the court; that the abstract of title disclosed an outstanding oil and gas lease and the rock and gravel lease of the Construction Company, and enclosed an affidavit of nonproduction and nondevelopment for the Bogarts' execution and return to cure the defect in the title created by the oil and gas lease, and a motion for withdrawal of the deposit for signature, verification, and return by the Bogarts. Caldwell stated that he would present the motion and approve an order of disbursement. The motion was for an order directing payment to the Bogarts of the $1,900 deposited as estimated just compensation, or so much thereof as the court should find just and equitable, and stated expressly that such sum should be paid without prejudice to the rights of the Bogarts to any additional amount finally adjudged to be just compensation, and without prejudice to the United States to recover from the Bogarts any amount paid to them in excess of the amount finally adjudged to be just compensation. The motion was signed and verified by the Bogarts and returned to Caldwell.

On September 10, 1946, Honorable Walter A. Huxman, sitting under assignment in the United States District Court for the District of Kansas, entered an order approved by Caldwell, which directed the payment of $1,000 to the Bogarts, and further ordered that the sum so paid should be without prejudice to the rights of the Bogarts to recover any additional sum which might be decreed to be just compensation "upon final determination" of the proceedings and without prejudice to the rights of the United States to recover from the Bogarts any sum paid to them in excess of the amount determined to be just compensation "upon final determination" of the proceedings. The Bogarts accepted the $1,000.

On October 1, 1946, the Construction Company filed its answer claiming damages for its leasehold in the amount of $5,000. Appraisers were appointed. On December 18, 1946, the appraisers filed their report fixing the damages and compensation at $2,900. On January 13, 1947, the United States appealed from the award of the appraisers. The matter came on for a pretrial conference. At the pre-trial conference, the court stated: "Let the record show as to another issue in this case, with reference to the purported agreement that the parties in open court have waived a jury trial as to that issue and have agreed to submit it as to this tract to the Court, without prejudice of either of the parties, to have a determination of the value at the time of this trial." The cause came on for trial. The jury returned a verdict fixing the just compensation at $4,400 and expressly finding that the rock and gravel deposit did not enhance the value of the land. Thereafter, on May 26, 1947, the United States filed a motion for a judgment on the stipulation, notwithstanding the verdict. On July 7, 1947, the United States filed a motion to modify the order of disbursement entered on September 11, 1946, by eliminating therefrom that portion of the order which provided that the amount paid to the Bogarts...