United States v. Boston, C.C. & N.Y. Canal Co., 1485.

• Decision Date: 16 February 1921
• Docket Number: 1485.
• Citation: 271 F. 877
• Parties: UNITED STATES v. BOSTON, C.C. & N.Y. CANAL CO. et al.
• Court: U.S. Court of Appeals — First Circuit

271 F. 877

UNITED STATES v. BOSTON, C.C. & N.Y. CANAL CO. et al.

No. 1485.

United States Court of Appeals, First Circuit.

February 16, 1921

[Copyrighted Material Omitted]

Nathan Matthews, of Boston, Mass. (Francis G. Goodale and Daniel J Gallagher, both of Boston, Mass., and A. Mitchell Palmer, of Washington, D.C., on the brief), for the United States.

Sherman L. Whipple, of Boston, Mass. (Frederic B. Greenhalge, of Boston, Mass., Garrard Glen, of New York City, and Currier &amp Young, of Boston, Mass., on the brief), for defendants in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM Circuit Judge.

This proceeding was begun April 1, 1919, in the District Court for Massachusetts under the Act of August 1, 1888 (25 Stat.at Large, 357 (Comp. St. Secs. 6909, 6910)), and the River and Harbor Act of August 8, 1917 (40 Stat.at Large, 250), for the condemnation of certain land and appurtenances constituting the Cape Cod Canal. In the petition the terms of the Act of August 8, 1917, are set forth, the government's compliance with the same, a description of the premises sought to be condemned, and an assertion, on information, that the only parties interested in the property are the Boston, Cape Cod & New York Canal Company and the Old Colony Trust Company, and, after requesting a determination of the value of the property by a jury, it prays that upon proof to the court that the amount of the verdict has been paid or tendered by the United States to the persons entitled, or upon the payment of the same into court, a decree be entered that the fee of the land and appurtenances shall thereupon be vested in the United States.

May 14, 1919, the Canal Company filed its answer, alleging that it was the sole owner of the property described in the petition and requested full compensation therefor.

May 22, 1919, the Old Colony Trust Company filed its answer setting up a mortgage on the property dated January 1, 1910, for the sum of $6,000,000 and asking that its rights be protected and compensation paid to it on the amount of its interest in the property to be taken.

In October and November, 1919, trial was had before a jury. On the question being raised as to the title of the Canal Company it was stipulated, on the 18th of November, 1919, that the only issues to be submitted to the jury should be (1) the value of the property and franchise sought to be condemned, and (2) the amount fairly and reasonable chargeable to the Canal Company on account of dredging and other work done by the United States while the canal was in the control of the United States Railroad Administration, so far as it did not relate to current maintenance.

November 18, 1919, a verdict was returned as follows:

'The jury find that on April 1, 1919, the date of the filing of the petition for condemnation, the Boston, Cape Cod & New York Canal Company was the owner in fee simple of the property and franchise sought to be condemned, and that on said date the value of the property and franchise, estimating the same as an entire estate and as if it were the sole property of one owner in fee simple, was the sum of sixteen million eight hundred and one thousand two hundred and one and eleven-hundredths ($16,801,201.11) dollars.'

At the same time the jury rendered a special verdict, in which they found that the amount reasonably chargeable to the Canal Company on account of the dredging above referred to was $150,000, which, under the stipulation, was to go in reduction of the general verdict.

On the 31st of August, 1920, a judgment of condemnation was entered as of August 3, 1920. The judgment recites the giving of notice, describes the property sought to be condemned, and refers to the appearances of the Canal Company and the Old Colony Trust Company, and to the assertions of title in their respective answers; also to the appearances of certain other parties, to the agreement as to the issues to be tried by the jury, and to the verdicts of the jury, general and special. It then adjudged that on the 1st of April, 1919, the Canal Company was, 'except for the rights which the United States may have acquired therein and the rights of the claimant, Old Colony Trust Company, as trustee, sole owner in fee simple of the land, interest, appurtenances and other property hereinbefore described; that the value of the same on that date was $16,801,201.11; that the amount fairly and reasonably chargeable to the Canal Company on account of dredging, etc., was the sum of $150,000; 'and that, of said resultant sum of $16,651,201.11, if paid, the Boston, Cape Cod & New York Canal Company shall receive $10,076,701.11, and the Old Colony Trust Company, trustee, shall receive $6,574,500. ' It was further ordered that, upon payment into the registry of the court by the United States within a reasonable time after the date of the decree of the sum of $16,651,201.11, 'the fee to said land hereinbefore described and to all rights, etc., * * * therein, if not already so vested, shall vest in the United States of America, to have, hold, possess, and enjoy for its use forever; but, if within a reasonable time said sum is not paid into the registry of the court, such further order may be made in this proceeding for dismissal or otherwise as justice may require, and the Boston, Cape Cod & New York Canal Company and the Old Colony Trust Company, trustee, and each or either of them, may pursue in such form and in such court as they or it may be advised their or its remedy or remedies against the United States upon the claim of ownership by the United States of said canal and its appurtenances, as set forth in the Canal Company's said petition for judgment, without prejudice by this decree except so far as said claim shall, if at all, have become res judicata by this proceeding.'

It appeared in the case that, pursuant to the proclamation of the President of July 18, 1918, the control of the canal was taken over by the United States on July 25, 1918, as a war measure; that the government was in possession and control of the canal at the time the petition for condemnation was filed and the trial was had, and remained in such control down to March 1, 1920, when it was turned back to the Canal Company.

March 1, 1920, the Canal Company filed in the District Court a document entitled 'Petition for Entry of Judgment,' in which it set out that on the 25th of July, 1918, the President, through the Secretary of War, took possession of the canal pursuant to the authority conferred by section 1 of the Act of Congress of August 29, 1916 (Comp. St. Sec. 1974a). It alleged that neither the proclamation nor the act contained any provision for the return of the property or limited the power of the President to take and acquire less than the whole property or required the President to take only the use thereof for a limited time; that since July 25, 1918, the canal and its appurtenant property had remained continuously in the possession and under the control of the Director General of Railroads and had been completely and exclusively sequestered for public uses; that prior to the date of the taking by the President on July 25, 1918, to wit, on August 8, 1917, Congress enacted legislation which authorized the condemnation proceedings; and that, at the time when the canal was taken by the President, proceedings had already been instituted under the Act of August 8, 1917; that the engineers had made their report, the Secretaries named had considered the report and recommended that the canal be acquired by the government, and the Secretary of War had undertaken negotiations with its owner for the purchase of the canal, which negotiations had failed, and the Secretary of War had caused the Attorney General to file the condemnation proceedings. It was further alleged that the act of Congress under which the President had taken over the canal contained no provision for procedure for the recovery of the value by the owner; that therefore there arose on the part of the government an implied obligation to pay the fair value thereof; that the 'petition for condemnation had and could have no other object except the single one of having determined by a jury at the bar of this honorable court the fair value of said canal and its appurtenant property and just compensation to be paid to the former owner thereof by the government. ' After setting out other matters unnecessary to relate, it prayed that judgment be entered 'either that the United States shall pay to your petitioner as compensation for its canal and appurtenant property taken as heretofore set forth and applied to public uses, the amount of the verdict heretofore found by the jury and accepted by the court, or in such other form as upon hearing of the facts this honorable court shall deem proper and appropriate. ' In other words, the Canal Company by its petition, sought to obtain an absolute judgment for a fixed sum rather than a conditional one as called for by the act of 1917, and this is the petition which is referred to in the judgment that was entered.

From the judgment of August 31, 1920, the government prosecuted this writ of error. In its assignments of error it complains that the court erred (1) in the admission of evidence; (2) in its charge to the jury; (3) in its refusal to grant certain requests for instructions; and (4) in the substance and form of the decree entered.

The Canal Company was incorporated June 1, 1899 (Stat. Mass 1899, c. 448). By the charter it was authorized to build and operate a canal across a strip of land on Cape Cod lying in Sandwich and Bourne and extending a distance of some 8 miles. The charter depth of the canal was to be 25 feet at mean low water, and its width at the bottom 100 feet, and...