United States v. Rogers

• Decision Date: 25 March 1919
• Docket Number: 5166.
• Citation: 257 F. 397
• Parties: UNITED STATES v. ROGERS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

257 F. 397

UNITED STATES v. ROGERS et al.

No. 5166.

United States Court of Appeals, Eighth Circuit.

March 25, 1919

P. W Dent, Dist. Counsel U.S. Reclamation Service, of El Paso Tex. (S. Burkhart, U.S. Atty., of Albuquerque, N.M., and J O. Seth, Asst. U.S. Atty., of Santa Fe, N.M., on the brief) for the United States.

J. M. Hervey, of Roswell, N.M. (W. C. Reid and George S. Downer, both of Albuquerque, N.M., on the brief), for defendants in error.

Before HOOK, Circuit Judge, and TRIEBER, District Judge.

HOOK Circuit Judge.

This is a writ of error by the government to review awards in condemnation proceedings instituted by it in the court below. Act Aug. 1, 1888, c. 728, 25 Stat. 357 (Comp. St. Secs. 6909, 6910); Reclamation Act June 17, 1902, c. 1093, 32 Stat. 388 (Comp. St. Secs. 4700-4708). The only questions involved are whether the landowners are entitled to interest as part of the awards, and, if so, from what time and at what rate?

Lands of the defendants in error in New Mexico were appropriated by the government for public use in a reclamation project. They were actually taken by flooding on April 19, 1912, and private use and enjoyment thereafter were destroyed. Formal proceedings in condemnation were not begun until January 18, 1915, when the government filed its petition in the court below for that purpose. The petition expressly averred that the lands 'were flooded and thereby appropriated by the government of the United States' on April 19, 1912, but that no compensation had yet been paid. The prayer of the petition asked, among other things, that the lands be decreed to be the property of the government 'from the date of the said taking or the appropriation thereof. ' Commissioners were appointed to assess the damages. Their report, February 23, 1917, was confirmed by the court, and on July 27, 1917, the government was directed to pay the awards to the clerk for the benefit of the defendants in error. The commissioners followed the customary practice of valuing the property as of the time of appropriation, and they therefore stated in their report that the amounts awarded were as of April 19, 1912; also that they had included therein no interest to the time the government's petition was filed or to the date of their report. Upon motion of the defendants in error the court, by supplemental order on October 1, 1917, required the government to deposit with the clerk, in addition to the amount of the awards, a sum equal to interest thereon at 6 per cent. per annum from April 19, 1912, to the time the deposit was made. The addition required was not interest as such, but a sum equal to interest.

It is urged that no interest can be allowed against the United States in a condemnation case for any period prior to final judgment, or for any period prior to an order of the court placing the United States in possession of the lands condemned; also that, irrespective of the time for computation, there is no authority of law for a rate of 6 per cent. Among the many authorities relied on is United States v. Bayard, 127 U.S. 251, 260, 8 Sup.Ct. 1156, 1161 (32 L.Ed. 159), where the court said:

'It has been established, as a general rule, in the practice of the government, that interest is not allowed on claims against it, whether such claims originate in contract or in tort, and whether they arise in the ordinary business of administration or under private acts of relief, passed by Congress on special application. The only recognized exceptions are where the government stipulates to pay interest, and where interest is given expressly by an act of Congress, either by the name of interest or by that of damages.'

Section 177 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1141 (Comp. St. Sec. 1168); Rev. Stats. Sec. 1091) provides:

'No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest.'

Without further reference to the many authorities cited, it may be said that the position of the government is fully illustrated by the above excerpt and statute. We think that the question is settled in this court by United States v Sargent, 89 C.C.A. 81, 162 F. 81, in which interest at 6 per cent. was allowed in a similar case as a part of the 'just compensation' required by the Fifth Amendment to the Constitution. In the matter of the time and the rate of interest, the court followed the...