Oro Fina Consolidated Mines v. United States, 49486.

CourtCourt of Federal Claims
Citation92 F. Supp. 1016,118 Ct. Cl. 18
Docket NumberNo. 49486.,49486.
Decision Date02 October 1950

H. H. Martin, Washington, D. C., George A. Nugent, Washington, D. C., on the brief, for plaintiff.

Melvin Richter, Washington, D. C., Newell A. Clapp, Acting Asst. Atty. Gen., for defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judges.


Plaintiff's petition alleges that it has succeeded to the mining rights in a gold mining property known as the Oro Fina Mine in Placer County, California. It is alleged that on October 8, 1942, the Director General for Operations of the War Production Board "arbitrarily and without authority of law" issued a Gold Mining Order, known as Limitation Order L-208, classifying plaintiff's gold mining property as a "nonessential mine" and requiring the operator to close down the mine. On January 18, 1943, the mine was closed in compliance with the order. As a result of the closing of the mine plaintiff has had to spend $72,584.38, so it alleges, in protecting its property. Plaintiff has received no compensation from the defendant on account of having to discontinue its mining operations and claims that it is entitled to receive $72,584.38 as an element of just compensation for the damages sustained as a result of compliance, under threat of punishment, with Order L-208. The order was revoked on June 30, 1945.

Defendant has demurred on three grounds (1) that plaintiff has alleged that the order was issued "arbitrarily and without authority of law" and this court lacks jurisdiction over claims for compensation for unauthorized takings by agents of the Government, (2) that the Director General's actions did not constitute a taking under the Fifth Amendment but rather were those of the Government in the proper exercise of its war powers from which can arise no cause of action against the Government, and (3) that the alleged taking occurred not later than January 1943, and that this suit, which was filed on February 8, 1950, is therefore barred by the six-year statute of limitations.

Any one of these grounds, if established, would be enough to sustain the demurrer. We will first consider the third ground. If plaintiff's suit is barred by its failure to comply with the procedural requirement of the statute, it will not be necessary for us to consider the substantive questions presented by defendant's first two objections. The statutory period is six years, 28 U.S.C.A. § 2501. Order L-208 was issued October 8, 1942. The Oro Fina mine was closed January 18, 1943. The order was revoked on June 30, 1945.

Defendant argues that according to the petition the alleged taking occurred not later than January 18, 1943, and that plaintiff's claim first accrued on that date, which was more than six years before this petition was filed. Defendant further contends that even if the taking be regarded as a series of successive takings ending with the revocation of Order L-208 on June 30, 1945, rather than as a single act, the statute would still bar recovery of any damages accruing before February 8, 1944.

Plaintiff argues that since there was no way of ascertaining the damages or amount of compensation due while Order L-208 remained in effect, the statute did not commence running until the order was revoked, on June 30, 1945. Plaintiff relies on United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789. In that case, part of Dickinson's land, which had not been previously condemned, was flooded by the waters of Winfield Dam. The complaint was filed on April 1, 1943. The Government argued that the statute began to run either on October 21, 1936, when the dam began to impound water, or on May 30, 1937, when the dam was fully capable of operation, the water was raised above its former level, and plaintiff's property was partially submerged for the first time. Although the latter date was within the statutory period, it would still bar Dickinson's claim because he acquired the land after that time.

The Court held that the claim was not barred. The Court said, 331 U.S. at page 748, 67 S.Ct. at page 1384, that in flooding the land without first condemning it, the Government left to the owner "the onus of determining the decisive moment in the process of acquisition by the United States when the fact of taking could no longer be in controversy." The Court further said, 331 U.S. at page 749, 67 S.Ct. at page 1385:

"We are not now called upon to decide whether in a situation like this a landowner might be allowed to bring suit as soon as inundation threatens. Assuming that such an action would be sustained, it is not a good enough reason why he must sue then or have, from that moment, the statute of limitations run against him. If suit must be brought, lest he jeopardize his rights, as soon as his land is invaded, other contingencies would be running against him — for instance, the uncertainty of the damage and the risk of res judicata against recovering later for damage as yet uncertain. The source of the entire claim — the overflow due to rises in the level of the river — is not a single event; it is continuous. And as there is nothing in reason, so there is nothing in legal doctrine, to preclude the law from meeting such a process by postponing suit until the situation becomes stabilized. An owner of land flooded by the Government would not unnaturally postpone bringing a suit against the Government for the flooding until the consequences of inundation have so manifested themselves that a final account may be struck."

Unlike the Dickinson case, the source of the claim here was a single event — the closing of the Oro Fina Mine in compliance with Order L-208. The cases are distinguishable, perhaps to plaintiff's disadvantage, on that ground. But in one respect, there is more reason in the present case than there was in the Dickinson case for not commencing the statutory period with the Government's first act. From the time the plans for the Winfield Dam were completed, there was no doubt what would be taken; what lands would be inundated was a matter of engineering calculation. The problem there was when. The problem here is not so much when the taking, if it was a taking, occurred, as what it was, precisely, that was taken. Until Order L-208 was revoked, no one could know exactly what had been taken from the standpoint of compensation. The United States never had any intention of keeping plaintiff's mine closed permanently. The order was a wartime measure, designed and intended to divert gold miners into the more essential field of copper mining. There was never any doubt that the ban would be lifted after the war or as soon as the situation permitted. If defendant took anything, it took a temporal interest, perhaps for one year, perhaps for five, perhaps for more. Under the circumstances, it would be unfair if the statute had started running against plaintiff at a time when there was no way of knowing the duration of the interest taken. While not exactly like the case at bar, the Dickinson case is pertinent because it recognized that the statute of limitations in taking cases does not necessarily begin to run at the first moment that the plaintiff could have brought suit. It was held in the Dickinson case that an aggrieved owner need not bring suit until the consequences of the taking "have so manifested themselves that a final account may be struck." Cf. Baker v. City of Fort Worth, 146 Tex. 600, 210 S.W.2d 564, 5 A.L.R.2d 302 and Developments in the Law — Statutes of Limitations, 63 Harv.L.Rev. 1177, 1200 et seq. It was not finally clear until June 30, 1945, what had been "taken" from plaintiff. We cannot hold that the consequences of the alleged taking had so manifested themselves by February 8, 1944 — the day six years prior to the filing of the petition — that, in the language of the Dickinson case, a final account could have been struck at that time or that the situation had by that time become stabilized. Nor would it accord with the spirit of that decision to limit plaintiff's recovery to damages occurring after February 8, 1944.

We must, therefore, consider the question of whether by ordering a closing down of the nation's gold mines the United States took private property and thus became bound either by the Fifth Amendment or by implied contract to make compensation. At the threshold of this inquiry we are met with defendant's first ground of demurrer.

Plaintiff has alleged that the order was issued "arbitrarily and without authority of law." In opposition to the Government's demurrer plaintiff argues that the taking was, nevertheless, tantamount to a taking with full statutory authority since it was under the authority of the War Production Board. Plaintiff relies on International Paper Co. v. United States, 282 U.S. 399, 51 S.Ct. 176, 75 L.Ed. 410. In that case the United States requisitioned a utility company's power output, and the Court held that this constituted a taking of plaintiff's right, under a lease, to some of that power. The Court said, 282 U.S. at page 406, 51 S.Ct. at page 177:

"The Government has urged different defenses with varying energy at different stages of the case. The latest to be pressed is that it does not appear that the action of the Secretary of War was authorized by Congress. We shall give scant consideration to such a repudiation of responsibility. The Secretary of War in the name of the President, with the power of the country behind him, in critical time of war, requisitioned what was needed and got it. Nobody doubts, we presume, that if any technical defect of authority had been pointed out it would have been remedied at once. The Government exercised its power in the interest of the country in an important matter, without difficulty, so far as appears, until the time comes to pay for what it has had. The doubt is rather late. We shall accept...

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