Messer v. United States, 11734.

• Decision Date: 14 November 1946
• Docket Number: No. 11734.,11734.
• Citation: 157 F.2d 793
• Parties: MESSER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

157 F.2d 793 (1946)

MESSER et al. v. UNITED STATES.

No. 11734.

Circuit Court of Appeals, Fifth Circuit.

November 14, 1946.

Wade H. Morton, of Birmingham, Ala., for appellants.

David L. Bazelon, Asst. Atty. Gen., Roger P. Marquis and Jason Lee, Attys., Department of Justice, all of Washington, D. C., John D. Hill, U. S. Atty., of Birmingham, Ala., and Duke Logan, Sp. Atty., Department of Justice, of Anniston, Ala., for appellee.

Before HOLMES, McCORD, and LEE, Circuit Judges.

LEE, Circuit Judge.

The United States in the court below instituted condemnation proceedings to acquire in Jefferson County, Alabama, certain land upon which was situated a house and other improvements, for use during a term of years in connection with the Birmingham Municipal Airport. The United States obtained an order of immediate possession of the property and then removed the house and other improvements. Subsequently, the Supreme Court of Alabama¹ decreed that the city of Birmingham was the owner of the fee and that Irene Messer was the owner of the house and improvements on said fee. The court further held that, as a licensee under the city of Birmingham, Irene Messer was entitled, on revocation of the license, to remove the house and improvements within a reasonable time. The United States then contracted with the city of Birmingham for the use of the land for a term of years, and the court below dismissed the condemnation proceedings. Later, the court reinstituted the condemnation proceedings for the sole purpose of determining the value of the house and other improvements located upon the land when the condemnation proceedings were instituted. In a jury proceeding, upon conflicting testimony as to the value of the house and improvements, Irene Messer obtained a judgment for $1,000. From this judgment Irene Messer and her husband, Glenn E. Messer, appealed.

By way of objection to questions posed by counsel for the United States and by way of a motion for a new trial, the appellants raise the sole question upon this appeal: Was it correct for the jury to consider, in its determination of just compensation for the house and other improvements, that the owner was under a duty to the owner of the land to remove them within a reasonable time after notice was given?

Irene Messer was entitled to receive the "market value fairly determined"² for the house and other improvements. Market value is what a willing buyer would pay in cash to a willing seller.³ The Constitution "merely requires that an owner of property taken should be paid for what is taken from him. * * * And the question is, What has the owner lost? not, What has the taker gained?"⁴ A willing buyer of Irene Messer's house would not pay as much for the house and other improvements subject as they were to an obligation for removal as a willing buyer would pay for the house and other improvements not subject to this obligation. Therefore, in finding the "market value fairly determined" the jury correctly considered that a willing buyer would not pay as much for Irene Messer's property subject to the obligation as for her property not subject to the obligation.

The appellants argue: "The right to remove the property was taken, along with the property itself. No right of removal exists in favor of the owner, as it was extinguished upon the taking. Upon the taking, the Government stepped into all of the property rights, both present and prospective, of the licensor and the licensee alike. The Government, however, did not become the licensor as against the licensee. If so, justice would require that the licensee be afforded reasonable notice and opportunity to protect their property rights by removal of the improvements."

The argument must fail because⁵ "compensation for the taking of property for public use must be determined as of the time of taking."⁶ The fact that the United States contracted with the city of Birmingham for the use of the land does not give Irene Messer any greater right against the United States for the taking of her property.⁷ Therefore, Irene Messer is entitled to only what a willing buyer would pay her for her house and other improvements subject to her duty to remove it.

As authority for its argument the counsel for the appellants rely upon three cases, which...