Town of Hingham v. United States

• Decision Date: 09 April 1908
• Docket Number: 760.
• Parties: TOWN OF HINGHAM v. UNITED STATES. In re UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

161 F. 295

TOWN OF HINGHAM v. UNITED STATES.

In re UNITED STATES.

No. 760.

United States Court of Appeals, First Circuit.

April 9, 1908

John D Long and Joseph O. Burdett, for plaintiff in error.

Asa P French, U.S. Atty., and William H. Garland, Asst. U.S. Atty (Roscoe Walsworth, Sp. Asst. U.S. Atty., on the brief), for the United States.

Before COLT, PUTNAM, and LOWELL, Circuit Judges.

PUTNAM Circuit Judge.

This is a proceeding on the part of the United States for the condemnation of certain lands belonging to the town of Hingham, for the site, location, and construction of a naval magazine. The proceeding was authorized by Act April 27 1904, c. 1622, 33 Stat. 324, 338. In support thereof an act was passed by the Legislature of Massachusetts (chapter 446, p. 398, of the Acts and Resolves of 1905), giving the consent of that state to the acquisition by the United States by condemnation of the lands in question for the purposes described in the statute of the United States which we have cited. This act ceded jurisdiction to the United States, and also all tide-water lands belonging to Massachusetts within the area to be acquired.

The petition for condemnation was filed in the District Court on August 7, 1905. This seems to have been the initiation of the proceedings, and it closes with a prayer to the effect that, on proof that the amount awarded had been paid by the United States, the court should enter a decree that the fee of the land and 'all and every right, title, and interest in and to the same,' should be vested in the United States. The case was tried to a jury, by which verdict fixing the damages was rendered on the 1st day of November, 1907. A decree of condemnation was entered on December 7, 1907, which concluded as follows:

'It is now, to wit, on this 7th day of December, 1907, further ordered, adjudged, and decreed that upon the payment within 30 days after the date of this decree to the said town of Hingham of the sum of $10,500 damage, and its lawful costs in this proceeding, to be taxed by the clerk, or, upon the neglect or refusal of the said town of Hingham to receive said sums, then upon the payment of said sums into the registry of this court for the use of the said town of Hingham, the fee of said land hereinbefore described, and all easements, rights, and interests therein, be vested in the United States of America, to have, hold, possess, and enjoy for its use, forever.'

There never has been any final order in accordance with the closing paragraph of the petition for condemnation, to the effect that, after payment of the award, the District Court would decree that the fee of the land be vested in the United States.

During the course of the trial the town reserved exceptions which make the basis of this writ of error. The facts are better stated by extracts from the bill of exceptions than otherwise, as follows:

'This was a proceeding for condemnation of a tract of about 750 acres of land in Hingham, and about 250 acres of land in Weymouth, for the purposes of a naval magazine, under the act of Congress approved April 27, 1904. The entire tract included in the petition for condemnation is shown upon a plan, entitled 'Plan Showing Ownership of Lands at Hingham and Weymouth, Taken by the United States of America for Purposes of a Naval Magazine, August, 1905,' which may be referred to in argument by either party.

'That portion of the respondent's land included within the tract sought to be condemned consisted of about 35 1/3 acres, and was a part of the poor farm of said town. The remaining part thereof contained some 20 acres, and the poorhouse, barn, and other buildings for the accomodation and support of the town poor were situated thereon. The jury took a view of the land so taken and of the said remaining land, with the buildings thereon, and a plan showing both, and showing the contiguity and proximity of said remaining land to the land so taken for a naval magazine, was proved and put in evidence. Said plan is made a part of this bill, and may be referred to. Except as above, and the fact that the taking was for use as a naval magazine, no evidence was introduced tending to show damage to respondent's remaining land, or tending to show the proposed location of said naval magazine upon the tract, or its character or proximity to or distance from respondent's remaining land. Nor, except said view and plan, was there any evidence as to any diminution of accessibility to said remaining part by reason of said taking. The respondent requested the judge to rule that the jury, in considering the damage to the respondent's remaining land, might consider the damage resulting to it from the contiguity and proximity of said remaining land to the land condemned, and that the respondent's counsel might argue to the jury the damage so resulting.'

The judge refused so to rule; but he, among other things, instructed the jury as follows:

'I instruct you, gentlemen, that you have no evidence before you which will warrant you in finding that the value of that part left has been diminished or made less in any other way.

You have before you no evidence which would warrant you in concluding, from the mere fact that the part left will hereafter adjoin land taken for a naval magazine, that its value is thereby diminished by that fact alone.'

This last ruling forms the basis of the first exception brought to our attention. The bill of exceptions proceeds further, as follows:

'The evidence showed that the town had made no use of the land taken since the filing of condemnation proceedings, to wit, August 7, 1905. It had before that permitted one Peterson to excavate and take away therefrom small amounts of sand gravel, of the value of about $200 a year. Peterson testified that previous to August 7, 1905, he had excavated some 3,500 tons, and had left it lying in a pile in the form of screenings. These he has taken away since said date.

'The United States had caused the land described in the petition to be surveyed, and monuments to be erected thereon, marking its boundaries. There was no other evidence tending to show an entry upon the land by the United States.

'The respondent asked the judge to instruct the jury that, having determined the amount of damage to the respondent as of the 7th of August, 1905, they should add thereto interest from that date to the date of their verdict, or such sum as would cover the loss of the use of the land in question between said dates, which request the court refused to give, but instructed the jury as follows:

''I shall instruct you that there is no evidence here by which it could be found that the town has been deprived of the use of the land since August 7, 1905, and no evidence, therefore, upon which any interest should be awarded by you upon the amount of your verdict, when made up as of the date which I have named.''

It thus appears that we have two questions. The first is whether there was evidence which the law regards as sufficient to enable the jury to ascertain whether the value of the part of the parcel not taken had been diminished by the taking, and if 'Yes,' to what extent it had been so diminished. The other is whether interest from the time of the filing of the petition for condemnation to the time of the verdict of the jury should have been included in that verdict. As to the first question, it is plain that, unless there was evidence which enabled the jury to determine with a reasonable degree of definiteness to what extent the value of the part left had been diminished, it would have been useless for the jury to have undertaken to determine whether it had been in fact...