United States v. 17,280 ACRES OF LAND, ETC.

• Decision Date: 10 November 1944
• Docket Number: No. 138.,138.
• Citation: 57 F. Supp. 745
• Parties: UNITED STATES v. 17,280 ACRES OF LAND, MORE OR LESS, SITUATE IN SAUNDERS COUNTY, NEB., et al.
• Court: U.S. District Court — District of Nebraska

57 F. Supp. 745

UNITED STATES v. 17,280 ACRES OF LAND, MORE OR LESS, SITUATE IN SAUNDERS COUNTY, NEB., et al.

No. 138.

District Court, D. Nebraska, Lincoln Division.

November 10, 1944.

Joseph T. Votava, U.S. Atty., and A. Z. Donato, Sp. Atty., Department of Justice, both of Omaha, Neb., and William M. Whelan, Sp. Atty., Department of Justice, of Hastings, Neb., for petitioner.

E. B. Perry and Robert VanPelt, of Perry, VanPelt and Marti, all of Lincoln, Neb., and M. O. Cunningham, of Omaha, Neb., for respondents.

DELEHANT, District Judge.

A single question is submitted to the court for determination; and that is the extent to which interest shall be included in the final judgment in this action, by which the petitioner has acquired real estate as the site for a defense plant. The question concerns twenty-six of the condemned tracts, the just compensation for whose taking was determined by the verdict of a jury in a single trial. Upon the return of the verdict, judgment upon it was announced, and the present problem arises in the course of the preparation of the formal judgment.

This action was instituted on November 27, 1941, and upon the trial of the case before the jury it was agreed between the petitioner and the respondents that that was the date of taking. Declarations of taking were filed and deposits of the estimated just compensation were made in respect of the several tracts, under the provisions of Title 40 U.S.C.A. § 258a, on various dates between January 9, 1942, and February 16, 1942, both inclusive. Upon the trial, the jury's verdict as to the just compensation for each tract exceeded in some measure the estimated and deposited just compensation for the tract.

The parties agree that interest, in its ordinary sense, is not allowable against the United States except in those instances where either it is pledged by contract, or provision for it is made by statute. Tillson v. United States, 100 U.S. 43, 25 L.Ed. 543; Smyth v. United States, 302 U.S. 329, 58 S.Ct. 248, 89 L.Ed. 294, 114 A.L.R. 807. But they are equally in agreement that, even apart from the provisions of Title 40 U.S.C.A. § 258a, interest from the date of taking upon the fair market value of lands taken by the United States in the exercise of its right of eminent domain is to be allowed as an element of that just compensation to which the owner is entitled under the Fifth Amendment to the Constitution of the United States. Such allowance had received judicial sanction before the enactment in 1931 of Title 40 U.S.C.A. § 258a. United States v. Rogers, 255 U.S. 163, 41 S.Ct. 281, 65 L.Ed. 566; Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 43 S.Ct. 354, 67 L.Ed. 664; United States v. Sargent, 8 Cir., 162 F. 81. And it has been approved since that date. United States v. 1,997.66 Acres of Land, 8 Cir., 137 F.2d 8; United States v. Certain Lands, D.C.Mo., 41 F.Supp. 809; United States v. 6.87 Acres of Land, D. C.N.Y., 52 F.Supp. 594.

Several considerations repel the suggestion that the language respecting interest in the Declaration of Taking Act, Title 40 U.S.C.A. § 258a, should be construed to intercept the allowance of interest upon the entire determined value of the condemned land from the date of its taking to some later date on which in connection with each tract a declaration of taking was filed and the estimated just compensation for the taking was deposited. In the first place, the practice of allowing interest from the date of taking rests upon the Constitution as interpreted by the Supreme Court. The Declaration of Taking Act should be construed, if it be possible, in harmony with, rather than as attempt to alter, the settled construction of a constitutional right. Then, Title 40 U.S.C.A. § 258a, does not assume to erect a complete condemnation procedure. It provides, rather, a supplemental and optional course, United States v. 1,997.66 Acres of Land, 8 Cir., 137 F.2d 8; United States v. 76,800 Acres of Land, D.C.Ga., 44 F.Supp. 653; United States v. 17,280 Acres of Land, D.C.Neb., 47 F.Supp. 267, whereby, if it be so advised, the United States as petitioner may "with the petition or at any time before judgment" file in the condemnation case a declaration of taking including, inter alia, "a statement of the sum of money estimated * * *...