NATIONAL BD. OF YOUNG MEN'S CHRISTIAN ASS'NS v. United States

• Decision Date: 14 June 1968
• Docket Number: No. 344-66.,344-66.
• Citation: 396 F.2d 467
• Parties: The NATIONAL BOARD OF the YOUNG MEN'S CHRISTIAN ASSOCIATIONS, the Sojourner's Lodge, Masonic Temple, and the Commerce and Industry Insurance Company v. The UNITED STATES.
• Court: U.S. Claims Court

396 F.2d 467 (1968)

The NATIONAL BOARD OF the YOUNG MEN'S CHRISTIAN ASSOCIATIONS, the Sojourner's Lodge, Masonic Temple, and the Commerce and Industry Insurance Company v. The UNITED STATES.

No. 344-66.

United States Court of Claims.

June 14, 1968.

Ronald A. Jacks, Washington, D. C., attorney of record, for plaintiffs.

Martin Green, Washington, D. C., with whom was Asst. Atty. Gen., Clyde O. Martz, for defendant.

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

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT.

COWEN, Chief Judge.

Plaintiffs¹ brought this action to recover just compensation under the fifth amendment for the destruction of and damage to their properties in the Canal Zone during the course of and shortly after the Panama riot of 1964. There are two parts to plaintiffs' claim. The first and major portion is for damages inflicted on plaintiffs' buildings by the rioters after the buildings had been entered by United States troops seeking cover from snipers' bullets. In the second and lesser segment of the claim, plaintiffs seek recovery for losses alleged to have been caused after the cessation of the riot as a result of certain changes made in the Masonic Temple by the defendant for the purpose of fortifying it for use in any future riot. For the reasons hereinafter stated, we hold that plaintiffs are not entitled to recover.

The case is before us on cross-motions for summary judgment, and the basic facts have been stipulated.²

The buildings involved in this action are the YMCA building owned by the National Board of the Young Men's Christian Associations and the Masonic Temple owned by the Sojourner's Lodge of the Masonic Order. Both are situated on the Atlantic side of the Canal Zone in the City of Cristobal and are located next to each other just inside the Zone on Bolivar Avenue. At this location, 11th Street and Bolivar Avenue intersect and form a right angle boundary between the Canal Zone and the Republic of Panama. The Masonic Temple is located just inside the right angle, and it is bounded on the right by the YMCA which faces Bolivar Avenue and on the left by the Old Commissary Building which faces 11th Street.

On the evening of January 9, 1964, a group of 200 Panamanian students entered the Pacific side of the Zone in the vicinity of the Balboa High School and became embroiled in a dispute over the failure to fly the Panamanian flag alongside the United States flag at the school. The students left in anger without raising their flag, and, as they did so, they began to damage property in the Zone.

As stated in the introduction of the United States Presentation to the Select Committee of the Organization of American States, the "students' fury became the spark for mass incursions into the Canal Zone by Panamanian rioters at numerous points along an extended border. The mobs attacked and killed U.S. and Panamanian citizens and burned and looted their properties. A maximum effort by the Canal Zone Police force was required to prevent the mobs from reaching U.S. residential areas. The number and force of mob attacks upon persons and property in the Zone exceeded the capacity of the police to contain them, and at 8 p.m. on January 9th, the Commander of the Armed Forces in the Canal Zone assumed responsibility for law and order in the Canal Zone." Exhibit A at VI

The rioting first reached major proportions on the Pacific side of the Zone and at 8:30 p.m. on January 9, 1964, General O'Meara, Commander of the Armed Forces in the Canal Zone, dispatched troops to the Pacific side with instructions to clear the area of rioters and to secure it against further unauthorized intrusions. Soon, thereafter, the military units began to clear the Pacific side, encountering moderate resistance.

Rioting in the Cristobal-Colon area on the Atlantic side of the Canal Zone, 50 miles away from the Pacific side, began at 8 p.m. on the night of January 9, 1964. By 9:15 p.m., a mob of 1,500 persons had formed and proceeded to the Panama Canal Administration Building, where they raised a Panamanian flag. Shortly thereafter, a contingent of the rioters broke into, looted, and destroyed the contents of the Panama Canal Company Office and Storage Building. They then broke windows in the Masonic Temple, and after entering the YMCA building, looted and wrecked its interior.

At 9:50 p.m. on the same evening, Colonel William Sachse, Commanding Officer of the 4th Battalion, was ordered to proceed with his troops to Cristobal with the objective of clearing the rioters from the Atlantic end of the Zone and sealing the border from further encroachment. When the battalion, consisting of about 700 men, arrived in the area, a large group of the Panamanians retreated across Bolivar Avenue into the Republic of Panama. However, a number of rioters jumped from the second floor windows of the Masonic Temple and attacked the troops with lead pipes and sticks. After the Panamanians were ejected from the buildings, the troops linked up to seal off the Zone boundary. By that time, the troops were confronted with a mob of about 3,000 people, which began to assault them with a shower of rocks, bricks, plate glass, and Molotov cocktails.

Sniper fire began; one trooper was killed, two others were wounded by bullets, and many others were injured by the flying debris and Molotov cocktails. Although they were under continuous attack, the American troops were ordered not to return the fire lest innocent persons be injured in the crowded area. Therefore, only tear gas grenades were used to contain the mob and discourage the attacks. Finally, in order to protect his troops from sniper fire, the commanding officer moved them into the YMCA building, the Masonic Temple, and the adjoining Old Commissary Building shortly after midnight on January 9, 1964.

At 10 a.m. on January 10, 1964, the rioters launched a heavy attack of Molotov cocktails against the YMCA building, setting it afire. The Canal Zone firefighters, who attempted to control the blaze, were hampered by sniper fire and by 2 p.m., the troops were forced to evacuate the building and take up positions at the rear of the building in a parking lot which had been sandbagged during the night. The rioters then attacked the Masonic Temple with Molotov cocktails, and the command post which had been established in that building had to be abandoned. However, an observation post was maintained on the top floor of the structure, which was the highest building in the area. The YMCA continued to be a target for Molotov cocktails throughout the day and sniper activities continued at 12th Street and Bolivar Avenue. During the evening of January 10, the soldiers on the top floor of the Masonic Temple were under heavy sniper fire for 2½ hours. On January 11, the Old Commissary Building was totally destroyed by fire started by the Molotov cocktails.

By 2:45 p.m. on January 11, 1964, three American soldiers had been killed and twelve had been wounded by sniper fire. When these casualties were reported, the commanding officer was granted permission to allow selected marksmen using shotguns to return fire on known snipers.

On January 12, heavy sniper fire and the use of Molotov cocktails were prevalent in the Masonic Temple area, and the second story of the Masonic Temple was set afire on the same morning. Sniper and fire bomb activity continued in the area until midnight of January 12, 1964, when the crowd dispersed.

On January 13, 1964, the Panamanian National Guard took effective control of the Colon side of the boundary and hostile action in the area thereafter ceased. At 8 a.m. on Thursday, January 16, 1964, General O'Meara relinquished control of the Canal Zone to the Governor of the Canal Zone.

The YMCA's auditorium-gymnasium was totally destroyed and the remainder of the building was badly damaged. After deducting an amount which they have allocated to damage done by the rioters before the Army entered the building, the YMCA and its insurer seek recovery of $212,196 for the loss and damage to that building. Because of its predominantly concrete and brick construction, the Masonic Temple suffered considerably less damage. After again making an allowance for damage attributable to the rioters prior to Army occupancy, plaintiffs claim $32,996.70 for property loss to the Masonic Temple.

In addition to the YMCA building and the Masonic Temple, private properties of churches, steamship agencies and lodges were damaged during the riot. Also, some 160-odd automobiles were damaged or destroyed.

Publicly owned property damaged or destroyed in Cristobal included the Panama Canal Office and Storage Building, the Sanitation Office, many railroad ties, street lights, and traffic and railroad signals. A substantial portion of Government property used by the Inter-American Geodetic Survey was burned and looted. In addition, United States military personnel reported loss of household goods and possessions valued at $72,000.

I

Against the foregoing factual background, our first task is to decide whether the destruction of the YMCA building and the damage to the Masonic Temple during their temporary occupancy by American troops occurred under such circumstances as to constitute a compensable taking. It is axiomatic that the fifth amendment is not suspended in wartime, but it is equally well recognized that a destruction of private property in battle or by enemy forces is not compensable. As this court declared long ago, "No government, except as a special favor bestowed, has ever paid for the property of even its own citizens in its own country destroyed in attacking or defending against a common public enemy * * *." Perrin v. United States, 4 Ct.Cl. 543, 547-548 (1968), aff'd, 79 U.S. (12 Wall.) 315, 20 L.Ed. 412 (1870). See also United States v. Pacific R.R., 120 U.S. 227, 7 S.Ct. 490, 30 L.Ed. 634 (1887).

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