United States v. 20.08 Acres of Land in Harmar Tp., 8047.

• Decision Date: 29 October 1940
• Docket Number: No. 8047.,8047.
• Citation: 35 F. Supp. 265
• Parties: UNITED STATES v. 20.08 ACRES OF LAND IN HARMAR TP., ALLEGHENY COUNTY, PA., ON FOURTEEN MILE ISLAND, ALLEGHENY RIVER.
• Court: U.S. District Court — Western District of Pennsylvania

35 F. Supp. 265

UNITED STATES v. 20.08 ACRES OF LAND IN HARMAR TP., ALLEGHENY COUNTY, PA., ON FOURTEEN MILE ISLAND, ALLEGHENY RIVER.

No. 8047.

District Court, W. D. Pennsylvania.

October 29, 1940.

McCrady, McClure, Nicklas & Hirschfield, by M. H. Hirschfield, all of Pittsburgh, Pa., for plaintiff.

George Mashank, Acting U. S. Atty., of Pittsburgh, Pa., for defendant.

McVICAR, District Judge.

The plaintiff, McCrady-Rodgers Company, a corporation, on May 10, 1935, was the owner of a certain island in the Allegheny River known as "Fourteen Mile Island". On the date mentioned, the Government condemned a portion of said island for dam purposes. A Board of Viewers was appointed to determine the damages occasioned by said condemnation. It made its return to this court. The Government appealed from the award made to McCrady-Rodgers Company and an issue was formed, wherein said company was the plaintiff and the Government the defendant. Trial was held which lasted about a week. The court, at the trial, instructed the jury in determining the damages, that it should determine the market value of plaintiff's property before the condemnation and the market value of what was left immediately after the condemnation; and that in addition thereto, they had the right to allow damages for delay, not to exceed the legal rate of interest, 6 per cent. per annum. The jury returned a verdict November 24, 1939, which reads: "We, the Jurors empaneled in the above entitled case, find a verdict for the Plaintiff, of Twenty-nine Thousand Two Hundred Dollars, plus interest for 4½ years, a total of Thirty-seven Thousand and Eighty-four Dollars ($37084)"

The Government filed a motion for a new trial and has argued in support thereof, that the jury erred in allowing interest as a part of the verdict. It is conceded by the Company and the Government that the instruction of the Court to the jury as to the measure of damages is correct. It is also conceded, that Pennsylvania law governs as to the measure of damages, including damages for delay in payment. In Pennsylvania Co. for Insurance on Lives, etc. v. Philadelphia, 268 Pa. 559, 565, 112 A. 76, 80, it is stated: "It has been held that an owner of property taken under condemnation is entitled to compensation for delay in payment of damage, which begins to run from the date of appropriation. Hoffman v. Philadelphia, 261 Pa. 473, 104 A. 674; Whitcomb v. Philadelphia, 264 Pa. 277, 107 A. 765. This compensation, like all other charges for wrongfully withholding money, is measured by an interest rate, recoverable as damage. It will be the normal commercial rate during the period of detention, and if there is no evidence as to that rate, the presumption is that the legal rate was in effect. There was no evidence in this case of any rate of interest lower than the legal rate. The assignments bearing on these questions are dismissed."

In Whitcomb v. Philadelphia, 264 Pa. 277, 107 A. 765, 767, the Supreme Court of Pennsylvania stated: "When land is taken under the power of eminent domain, the owner thereof acquires the right to its value immediately upon appropriation. Until that value has been definitely ascertained, it is called damages, not a debt due; but when ascertained it relates back to the time of taking, and the owner is entitled to compensation for delay in its payment, unless just cause be shown to the contrary. Wayne v. Pennsylvania R. R. Co., 231 Pa. 512, 80 A. 1097; Hoffman v. Philadelphia, 250 Pa. 1, 95 A. 322, and Id., 261 Pa. 473, 104 A. 674. This compensation, like all other charges for wrongfully withholding money, is measured by an interest rate recoverable as damages. This rate will be the normal commercial rate during the period of detention. If no evidence is given as to that rate, the presumption is that the legal rate was in effect."

In Lackawanna Iron & Steel Co. v. Lackawanna & Wyoming Valley R. R., 299 Pa. 503, 149 A. 702, 704, the Supreme Court of Pennsylvania stated:

"The only complaint here insisted on is based on the inclusion by the arbitrators of interest on the damages awarded for the occupation of the separate lots involved. Ordinarily, a jury allows compensation for detention from the time of taking to that of verdict, adding the amount to the total of actual property loss, without designating it as a distinct item. Shevalier v. Postal Telegraph Co., 22 Pa. Super. 506. Where, however, such a charge is properly to be considered and allowed, the declaration of the elements included in the verdict is not fatal. Harvey v. Lackawanna & B. R. R. Co., 47 Pa. 428; Western Pennsylvania R. R. Co. v. Hill, 56 Pa. 460. * * *

"`This compensation, like all other charges for wrongfully withholding money, is measured by an interest rate recoverable as damages. This rate will be the normal commercial rate during the period of detention. If no evidence is given as to that rate, the presumption is that the legal rate was in effect.' See also, Delaware, L. & W. R. R. Co. v. Burson, 61 Pa. 369; Cox v. Pennsylvania Co., 263 Pa....