Klein v. United States

• Decision Date: 14 April 1967
• Docket Number: 66-66.,No. 60-66,60-66
• Citation: 375 F.2d 825,179 Ct. Cl. 910
• Parties: (1) Jake KLEIN, (2) Julian Garrett, and Loyat Bland Garrett, husband and wife v. The UNITED STATES. Julian GARRETT, and Loyat Bland Garrett, husband and wife, Neill Garrett and Pearl Garrett, husband and wife, and Earl Wagner, Third-Party Plaintiff, v. The UNITED STATES.
• Court: U.S. Claims Court

179 Ct. Cl. 910, 375 F.2d 825 (1967)

(1) Jake KLEIN, (2) Julian Garrett, and Loyat Bland Garrett, husband and wife v. The UNITED STATES.

Julian GARRETT, and Loyat Bland Garrett, husband and wife, Neill Garrett and Pearl Garrett, husband and wife, and Earl Wagner, Third-Party Plaintiff, v. The UNITED STATES.

Nos. 60-66, 66-66.

United States Court of Claims.

April 14, 1967.

Bert A. Bandstra, Knoxville, Iowa, for plaintiffs.

Hugh W. Lundy, Albia, Iowa, attorney of record for plaintiff Jake Klein.

Julian Garrett, attorney of record for plaintiffs Julian Garrett and Loyat Bland Garrett, Neill Garrett and Pearl Garrett.

Howard O. Sigmond, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

ON DEFENDANT'S MOTIONS AND PLAINTIFFS' CROSS-MOTIONS FOR SUMMARY JUDGMENT

PER CURIAM.^*

These cases arise out of proceedings instituted by the United States in the United States District Court for the Southern District of Iowa to condemn land in Marion County, Iowa, for flood control purposes. The cases are before the court on cross-motions for summary judgment and have been ordered consolidated under Rule 47(a).

The Garretts, who were owners of two parcels of land in Marion County, Iowa, entered into two 5-year gravel contracts, one in January 1962 with Earl Wagner¹ and the other in October 1962 with Jake Klein, pursuant to which Wagner was granted the right to stockpile and remove gravel from one parcel, and Klein was granted the right to stockpile and remove gravel from the other parcel, upon payment to the Garretts of 10 cents per cubic yard.

After the execution of each of the gravel contracts, the Government in 1962 instituted a condemnation proceeding with the result that the fee simple titles to several tracts of land, including the two above-mentioned parcels owned by the Garretts, were taken, subject to then existing easements, and moneys were deposited with the district court as estimated just compensation. No mention was made of the gravel contracts or of the gravel rights in any of the documents filed in any of the proceedings, but all plaintiffs in the instant cases were served with notice of the proceedings. Thereafter, upon application of the Garretts, the district court issued orders under which there was disbursed to the Garretts approximately $130,000 which was part of the moneys deposited as estimated just compensation without prejudice to their right to have the sum of just compensation adjudicated.

In February 1966, the petitions in the instant cases were filed in this court, in which plaintiffs seek amounts which they claim as just compensation under the Fifth Amendment for the "taking" by defendant of the use and benefits of the gravel contracts. The parties agree that the fee simple titles taken by defendant included the gravel deposits which are real property and part of the land; but plaintiffs contend that the gravel contracts are personal property and are not included in the condemnation cases; and hence that plaintiffs are entitled to make claim in this court for losses sustained because of the "taking" of the contracts. Defendant's position is in substance that plaintiffs' only remedy is in the district court in which the condemnation cases are pending, and that frustration of the gravel contracts is a consequential damage which is not compensable.

In April 1966, a condemnation commission, appointed by order of the district court, conducted a trial on the issue of just compensation for the taking of the parcel from which Earl Wagner had the contract rights to stockpile and remove gravel. At the trial the testimony of Julian Garrett, Earl Wagner and other witnesses, adduced by both parties, was received. The commission found and reported to the court that the just compensation for the taking of the title in fee was $121,800 of which $5,000 was to be apportioned to Earl Wagner for the loss of his gravel contracts, and $116,800 was to be apportioned to the Garretts as the former property owners. In valuing the parcel, the commission allowed $16,000 as an additional increment for the underlying sand and gravel. The district court confirmed the commission's award on October 19, 1966, in an opinion which specifically dealt in some detail with the enhancement in value flowing from the sand and gravel, and with the value of the sand and gravel lease. That court has also confirmed (on December 13, 1966) the commission's award on the parcel from which Jake Klein had the right to stockpile and remove gravel. The award for that tract was $117,345 plus an enhancement for sand and gravel of $6,000, a total of $123,345; $1,000 was assigned to Klein's lease.

It is not, of course, the province of this court to review these reports of the commissions or to review the rulings of the district court in the condemnation cases; but it is sufficient for the purpose of ruling on the motions for summary judgment which are before this court to announce the conclusion which the decided cases compel, namely, that on the basis of the pleadings, the motions and the exhibits which accompany the motions, plaintiffs do not have a cause of action in this court.

As stated above, both parties agree that the fee simple titles taken by defendant included the gravel deposits which are real property and part of the land. Hence, the compensation for such deposits as part of the land is for the determination of the district court. A. W. Duckett & Co. v. United States, 266 U. S. 149, 45 S.Ct. 38, 69 L.Ed. 216 (1924); Travis v. United States, 287 F.2d 916, 152 Ct.Cl. 739 (1961), cert. denied, 368 U.S. 824, 82 S.Ct. 42, 7 L.Ed.2d 28; Brooks v. Shepard, 157 F.Supp. 379 (S.D.Ala., 1957); United States v. 158.76 Acres of Land, 298 F.2d 559 (2d Cir. 1962); United States v. Sunset Cemetery Co., 132 F.2d 163 (7th Cir. 1943).

We come then to the legal implications of the alleged "taking" of the gravel contracts as distinct from the gravel deposits. A leading case which lays down the guidelines that must be followed in the instant case is Omnia Commercial Co. v. United States, 261 U.S. 502, 43 S.Ct. 437, 67 L.Ed. 773 (1923), in which the Government requisitioned the entire production of a steel company and directed that company not to comply with an outstanding contract for the sale of steel plate to a customer. The customer brought an action in this court to recover losses which it sustained as the result of its inability to perform the contract. The Supreme Court, in affirming the judgment of this court denying recovery, stated at pp. 510-511, 43 S.Ct. at p. 438:

* * * If, under any power, a contract or other property is taken for public use, the government is liable; but if injured or destroyed by lawful action, without a taking, the government is not liable. What was

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