United States v. Huff

• Decision Date: 21 July 1949
• Docket Number: No. 12579-12582.,12579-12582.
• Citation: 175 F.2d 678
• Parties: UNITED STATES v. HUFF. UNITED STATES v. BLAND. UNITED STATES v. ARLEDGE et al. UNITED STATES v. ARLEDGE.
• Court: U.S. Court of Appeals — Fifth Circuit

175 F.2d 678 (1949)

UNITED STATES v. HUFF.

UNITED STATES v. BLAND.

UNITED STATES v. ARLEDGE et al.

UNITED STATES v. ARLEDGE.

Nos. 12579-12582.

United States Court of Appeals Fifth Circuit.

June 29, 1949.

Rehearing Denied July 21, 1949.

A. W. Christian, Asst. U. S. Atty., Fort Worth, Tex., for appellant.

Dallas Scarborough, Abilene, Tex., Jack Sayles, Abilene, Tex., for appellees.

Before HUTCHESON, SIBLEY, and McCORD, Circuit Judges.

McCORD, Circuit Judge.

This is the second appeal in this case. We consider it unnecessary to restate the case at length, since a full and complete statement of the entire controversy is set forth in United States v. Huff, 5 Cir., 165 F.2d 720, 1 A.L.R.2d 854.

The owners of approximately 68,412 acres of adjoining tracts of land near Camp Barkeley in Taylor County, Texas, executed leases of their land to three named trustees in order that the trustees might include same in a "blanket lease" of all the tracts to the Government, for use as an Army training and maneuver area and as an artillery firing and target range during World War II. The trustees did execute such blanket lease, which was dated January 2, 1941, and expired July 1, 1943.

Under the provisions of the lease agreement the Government agreed to pay one dollar per acre annual rental for the leased area. However, at the time the blanket lease was executed, the lands in question were already under lease to certain ranchers who were engaged in raising sheep and goats thereon, the rental to these tenants being fifty cents per acre. In consideration of the Army's occupancy of the land and of the use for which it was intended the owners of the land agreed with their respective tenants to reduce their rent from fifty to twenty-five cents per acre for the duration of the blanket lease agreement, and on that portion of the leased land which was to be used as an artillery firing range, no further rent was to be charged. The tenants accepted the proposed reduction in their rent, and consented to the Army's occupancy of the land with knowledge that it was to be used for war time troop training under simulated combat conditions.

It is alleged in each complaint that the district court had jurisdiction of the suits under the Tucker Act, Title 28 U.S.C.A. § 41(20), now section 1346(a) (2), and liability on the part of the Government under that enactment is predicated upon the following provisions of the blanket lease agreement:

"12. The Government will not be liable, during the life of this lease, or any renewal thereof, for the loss of, or damage of any nature to livestock that may be on said premises, save and except the loss of, or damage to, said livestock due to negligence on the part of the Government or its agents or employees.

"13. The Government shall have the right, during the existence of this lease, to let down any wire on the now existing wire fences, with the understanding that following the crossing of said fences by the troops, the Government will restaple the said wire to the posts, and leave the fence in as good condition and repair as it was at the time of entry upon the leased premises by the Government."

On the former appeal this court held,¹ in reversing and remanding the case for a new trial, that the suits were properly brought under the Tucker Act, 28 U.S. C.A. § 1346(a) (2); that while the plaintiffs were not parties to the contract, "the lease was drawn with the double purpose of benefiting both the owners of the lands in question and their tenants," and that as such tenants they were entitled to maintain these suits. It was stated, however, that upon another trial "The evidence should be limited to evidence of damages proximately caused by breach of the contract by failure to repair the fences. All other evidence of damages arising either out of the Army's use of the land consistent with the purposes of the lease (e. g., pollution of the water), or out of negligence independent of the contract to maintain the fences, should be excluded." We find each of these rulings to be the law of the case, and binding on this appeal. United States v. Huff, 5 Cir., 165 F.2d 720, 723, 1 A.L.R.2d 854.

Throughout both trials and on the former appeal these four companion cases have been consolidated by us and the district Court, and since they have consistently presented substantially similar issues of law and fact, we shall consider and dispose of them together on this second appeal. The entire evidence adduced upon the second trial is set out in the case of United States v. Elmer Huff, No. 12,579, the records in the other three cases containing only their respective pleadings and judgment entries. In each case, plaintiffs are either the tenants or heirs of a deceased tenant of the lands included in the blanket lease to the Government.

The trial court has again rendered judgments for plaintiffs in each case, which judgments are supposedly predicated on the loss of sheep and goats resulting from the destruction of the fences by the Army during the life of the lease contract. However, from a careful and painstaking review of the entire record evidence we are led unerringly to the conclusion that, with the exception of those damages allowed for the actual destruction and cost of repairing the fences, the damages proved were entirely speculative in nature, and must therefore be disallowed.

It is without dispute that in each case the damages awarded for the loss of sheep and goats was determined by first computing the number of animals on hand at various intervals throughout the term of the lease agreement, then making allowance for a normal increase in birth and subtracting a normal death loss, and finally comparing the resulting figure with the number of sheep and goats on hand at the end of the lease period. The discrepancy between the number of animals then remaining, and the number which plaintiffs should have had, according to the above theory of computation, was considered as a loss directly attributable to the Government's failure to maintain and repair the fences, in accordance with its contractual...