United States v. Jordan

• Decision Date: 06 February 1951
• Docket Number: No. 10988.,10988.
• Citation: 186 F.2d 803
• Parties: UNITED STATES v. JORDAN et al.
• Court: U.S. Court of Appeals — Sixth Circuit

186 F.2d 803 (1951)

UNITED STATES v. JORDAN et al.

No. 10988.

United States Court of Appeals Sixth Circuit.

February 6, 1951.

Harold S. Harrison, Washington, D. C. (A. Devitt Vanech, Asst. Atty. Gen., Roger P. Marquis, and Harold S. Harrison, Washington, D. C., John Brown, Edward N. Vaden, Memphis, Tenn., on the brief), for appellant.

John D. Martin, Jr., Memphis, Tenn. (John D. Martin, Jr., John Costen, Memphis, Tenn., on the brief; Sam Costen, Memphis, Tenn., E. T. Palmer, Dyersburg, Tenn., James T. Haynes, and C. S. Carney, Jr., Ripley, Tenn., W. N. Beasley, Halls, Tenn., of counsel), for appellees.

Before SIMONS, McALLISTER and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The Unitel States appeals from a judgment which allowed the appellees separate recoveries for damages to timber located on tracts of land owned by them and used by the Army in connection with the operation of an air to ground gunnery range near Dyersburg, Tennessee.

On June 15, 1944, the United States instituted proceedings to condemn the temporary use of approximately 7,800 acres of land in Lauderdale County, Tennessee, for use in connection with the expansion of the Dyersburg Army Air Base, Air to Ground Gunnery Range. On the same day, the court entered an order of possession. Thereafter, the Army procured voluntary leases from some of the landowners involved and their tracts were dismissed from the proceedings. Following use of the property as an air to ground gunnery range, the Government in 1945 and 1946 surrendered possession to the landowners. In the condemnation suit the Government secured from the landowner at the time an agreement stipulating the fair rental value of the leasehold estate, and by which the landowner agreed to accept said sum in full and complete satisfaction for the land for said period, and in consideration of the sum so paid, released the United States for any and all claims for damages. Judgments were entered upon the stipulations and releases so executed. Following distribution of the funds in court to the landowners entitled thereto, an order closing the case was entered on March 12, 1947. In the negotiated leases, releases were also taken from the landowners upon surrender of possession, under which the landowner, for a consideration of "One Dollar and other valuable considerations" released the United States from all claims, excepting unpaid rent, arising out of the lease and occupation of the land.

On November 25, 1947, the appellees, being the owners of some twenty tracts so held and used by the Government, under both negotiated leases and through condemnation proceedings, filed this action in the district court under the Tucker Act, 28 U.S.Code, § 41(20)¹ at that time to recover damages to the timber thereon resulting from the fact that steel jacketed bullets were lodged in the standing timber to such an extent that it was rendered valueless. Following a trial before the court without a jury, the District Judge made findings of fact and conclusions of law upholding the claims of the appellees. He set aside the releases and stipulations between the parties on the ground that they were executed through mutual mistake of fact, because at the time they were agreed to the parties were ignorant of the fact that the standing timber had been rendered valueless by machine gun bullets. He vacated the judgments entered on the stipulations on the ground that they were manifestly unconscionable. He ruled that the claimants were entitled, in addition to the rental value and crop damage paid, to recover just compensation for the taking of their growing timber under the Fifth Amendment of the Constitution of the United States. Separate awards in favor of the respective claimants, computed on the basis of $12.50 per 1,000 board feet for the standing timber 12 inches and up, and the sum of $8.00 per 1,000 board feet for the standing timber 8 inches to 12 inches, were included in the judgment, which also allowed interest on each award from the date of the filing of the condemnation proceeding and the entry of the order of possession on June 15, 1944.

The Government contends that the District Judge had no jurisdiction to vacate the judgments entered in the condemnation proceeding, because (1) the present proceeding is a collateral attack on such judgments, Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-416, 44 S.Ct. 149, 68 L. Ed. 362; Union Land Bank v. Byerly, 310 U.S. 1, 7-8, 60 S.Ct. 773, 84 L.Ed. 1041, and (2) because the term of court in which they were entered had expired. Bronson v. Schulten, 104 U.S. 410, 415, 26 L.Ed. 797; E. C. Shevlin Co. v. United States, 9 Cir., 146 F.2d 613, 616. Such is the general rule, as shown by the cases cited. However, an apparent final judgment is not necessarily immune from attack, even after term, where equitable considerations require appropriate equitable relief. Julian v. Central Trust Co., 193 U.S. 93, 24 S.Ct. 399, 48 L. Ed. 629; Simon v. Southern Ry. Co., 236 U.S. 115, 35 S.Ct. 255, 59 L.Ed. 492; Ballard & Ballard Co. v. Munson S. S. Line, 6 Cir., 25 F.2d 252. And it has long been a recognized exception to the general rule that under certain circumstances, such as where it was manifestly unconscionable for a successful adversary to enforce a judgment in his favor, relief will be granted by a court of equity against such a judgment, regardless of the expiration of the term of its entry. Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 1281, 88 L.Ed. 1596; Taylor v. Nashville & Chattanooga Railroad Co., 86 Tenn. 228, 6 S.W. 393. See also Pickford v. Talbott, 225 U.S. 651, 657-658, 32 S.Ct. 687, 56 L. Ed. 1240; E. C. Shevlin Co. v. United States, supra, 146 F.2d at page 615. We conclude that jurisdiction in the district court existed in the present case to vacate and set aside the judgments in the condemnation suit upon a showing of such equitable considerations as would justify such relief.

The Government also contends that since the leasehold interests were acquired for use as an air to ground gunnery range, the normal use of the property for such purpose would cause damage to the standing timber thereon, for which it should not be liable beyond the rental paid for the property. The District Judge found that under the express or implied covenants in the negotiated leases, and in the stipulations in the suit for condemnation, the appellees were entitled to recover damages to their standing timber in addition to the rental value paid, or were entitled under the facts in this case, in addition to the rental value paid, to recover just compensation for the taking of their growing timber under the Fifth Amendment to the Constitution of the United States. We are of the opinion that the evidence sustains these findings and conclusions. In the negotiated leases three different lease forms were used. By the provisions of one form, the Government agreed to return the premises in as good condition as that existing at the time of entering upon the same, reasonable and ordinary wear and tear excepted. Another form provided that at such times as the Government destroyed timber from an area in excess of one acre the parties would have a survey and timber cruise made for the purpose of determining the value of the timber destroyed and the Government would reimburse the lessor in the amount of the value of such timber destroyed. A third form provided that the rental payment agreed upon "does not include compensation for damages, if any, resulting from the use of the premises for the purposes leased; and that upon the termination of the lease, damages, if any, will be determined and payment therefor accomplished by supplemental agreement." Even in the absence of an express covenant, as was the situation in the condemnation suit, there is an implied obligation on the part of the lessee to treat the property leased in such manner that no injury be done to the inheritance, and to return the property to the lessor in as good condition as is received, ordinary wear and tear excepted. United States v. Bostwick, 94 U.S. 53, 65-66, 24 L.Ed. 65; Campbell v. W. M. Ritter Lumber Co., 140 Ky. 312, 315, 131 S.W. 20. The...