United States v. Shingle

• Decision Date: 19 July 1937
• Docket Number: No. 7975.,7975.
• Citation: 91 F.2d 85
• Parties: UNITED STATES v. SHINGLE et al.
• Court: U.S. Court of Appeals — Ninth Circuit

91 F.2d 85 (1937)

UNITED STATES v. SHINGLE et al.

No. 7975.

Circuit Court of Appeals, Ninth Circuit.

June 7, 1937.

Rehearing Denied July 19, 1937.

Ingram M. Stainback, U. S. Atty., and J. Frank McLaughlin and Jean Vaughn, Asst. U. S. Attys., all of Honolulu, Hawaii, and H. H. McPike, U. S. Atty., of San Francisco, Cal.

Robertson & Castle and A. G. M. Robertson, all of Honolulu, Hawaii, for appellee Campbell Estate Trustees.

Anderson, Marx, Wrenn & Jenks, Robbins B. Anderson, Heaton L. Wrenn, and Norman W. Applegarth, all of Honolulu, Hawaii, for appellee Oahu Ry. & Land Co.

Before WILBUR, DENMAN, and MATHEWS, Circuit Judges.

MATHEWS, Circuit Judge.

The United States, hereinafter called appellant, brought this condemnation proceeding under and pursuant to the Act of April 14, 1930, c. 149, 46 Stat. 165, which provides:

"That the Secretary of the Navy is hereby authorized to examine and appraise the value of all privately owned rights of fishery in Pearl Harbor, island of Oahu, Territory of Hawaii, lying between extreme high-water mark and the sea and in and about the entrance channel to said harbor, within a specified area, and . . . to make contracts for the purchase of same subject to future ratification and appropriation by Congress; or, in the event of the inability of the Secretary of the Navy to make a satisfactory contract for the voluntary purchase of the said rights of fishery, he is hereby authorized and directed, through the Attorney General, to institute and carry to completion proceedings for condemnation of said rights of fishery, the acceptance of the award in said proceedings to be subject to the future ratification and appropriation by Congress. Such condemnation proceedings shall be instituted and conducted in, and jurisdiction of said proceedings is hereby given to, the District Court of the United States for the District of Hawaii, substantially as provided in `An Act to authorize condemnation of land for sites for public buildings, and for other purposes,' approved August 1, 1888 c. 728, 25 Stat. 357, 40 U.S.C.A. §§ 257, 258. . . . The Secretary of the Navy is further authorized and directed to report the proceedings hereunder to Congress."

The rights sought to be condemned in this proceeding are the privately owned rights of fishery within a designated area of approximately 2,340 acres in Pearl Harbor, this being a part of the larger area specified in the Act.

Appellees and numerous other persons who, it was alleged, had or claimed to have some interest in the rights sought to be condemned were named as respondents and were served with process. Answers were filed by appellees Robert W. Shingle, Albert N. Campbell, and John K. Clarke as trustees of the estate of James Campbell, deceased, and by appellee Oahu Railway & Land Company, hereinafter called the Railway Company.¹ The other appellees appeared and participated in the trial, but filed no answer. Default was entered against all respondents failing to appear.

At the trial below, the Railway Company was permitted, over appellant's objection, to file an amended answer in which it set up a claim for damages alleged to have been sustained by it prior to the commencement of this proceeding. These damages were alleged to have been caused by the enforcement of naval regulations which prohibited fishing in certain parts of Pearl Harbor, thereby preventing the Railway Company from exercising, within a part of the abovementioned area of 2,340 acres, rights claimed by it as a lessee of the Campbell estate, which, the amended answer alleged, was the owner of the rights here sought to be condemned. The regulations referred to were alleged to have been issued by the Secretary of the Navy under and pursuant to the Act of August 22, 1912, c. 335, 37 Stat. 341 (33 U.S.C.A. § 475), which provides: "For the proper control, protection, and defense of the naval station, harbor, and entrance channel at Pearl Harbor, Territory of Hawaii, the Secretary of the Navy is authorized, empowered, and directed to adopt and prescribe suitable rules and regulations governing the navigation, movement, and anchorage of vessels of whatsoever character in the waters of Pearl Harbor, island of Oahu, Hawaiian Islands, and in the entrance channel to said harbor, and to take all necessary measures for the proper enforcement of such rules and regulations."

The case was tried by the District Court, sitting without a jury, trial by jury having been expressly waived. The court thereafter entered a judgment which condemns, for public use, all privately owned rights of fishery within the above-mentioned area of 2,340 acres, adjudges the value of said rights to be the sum of $79,000, awards said sum of $79,000 to the trustees of the Campbell estate and three other respondents, namely, Adelaide K. Akina, H. N. Kaikainahaole, and the Dowsett Company, Limited, and directs that distribution thereof be made by paying to each of the three last mentioned respondents the sum of $1 and to the trustees of the Campbell estate the sum of $78,997. The judgment also awards to the Railway Company, as damages² found to have been sustained by it prior to the commencement of this proceeding, the sum of $27,100.05. This appeal followed.

There are 37 assignments of error. Eleven of the assigned errors (assignments 5, 7, 10, 11, 12, 13, 21, 26, 30, 34 and 35) are not specified in appellant's brief as required by our rule 24, and are therefore disregarded.

Assignments 1, 2, 3, 4, 6, 8, 9, 14, 15. 16, 17, 18 and 19, which are printed in the margin,³ attempt to raise questions which, for several reasons, cannot be considered. In the first place, the rulings complained of are not in the record. These assignments are based, not on the record, but on a so-called "decision," which is printed in the transcript and occupies 37 pages thereof. Preceding it and forming part of it is a 5-page syllabus, stating, under appropriate heads, the several points of law therein decided. In this "decision" the trial judge indicates the nature of the proceeding, states the issues, reviews the evidence, discusses and decides the questions involved, cites numerous authorities in support of his conclusions, and states that judgment in conformity therewith will be signed upon presentation. Though labeled "decision," this obviously is merely the trial judge's opinion. Compare China Press v. Webb (C. C.A.9) 7 F.(2d) 581, 582; Rasmusson v. Eddy's Steam Bakery (C.C.A.9) 57 F.(2d) 27, 28; Alexander Pickering & Co. v. Chinese American Cold Storage Ass'n (C.C.A. 9) 71 F.(2d) 895, 896. Since the opinion is no part of the record, error cannot be predicated thereon. Mutual Reserve Fund Life Ass'n v. Du Bois (C.C.A.9) 85 F. 586, 589; Kelly v. United States (C.C.A.9) 84 F. (2d) 541, 542.

The trial court made no finding of facts other than the general finding embodied in its judgment. No special finding was requested, and none was made. The trial judge's opinion — called by him a "decision" — was not a special finding of facts within the meaning of the statute.⁴ Louisiana Mutual Ins. Co. v. Tweed, 7 Wall. 44, 51, 19 L.Ed. 65; Dickinson v. Planters' Bank, 16 Wall. 250, 21 L.Ed. 278; Raimond v. Terrebonne Parish, 132 U.S. 192, 194, 10 S.Ct. 57, 33 L.Ed. 309; British Queen Mining Co. v. Baker Silver Mining Co., 139 U.S. 222, 11 S.Ct. 523, 35 L.Ed. 147; Fleischmann Construction Co. v. United States, 270 U.S. 349, 355, 46 S.Ct. 284, 287, 70 L.Ed. 624; Eastman Kodak Co. v. Gray, 292 U.S. 332, 336, 54 S.Ct. 722, 724, 78 L.Ed. 1291; Alexander Pickering & Co. v. Chinese American Cold Storage Ass'n, supra; Rasmusson v. Eddy's Steam Bakery, supra; Morrison Mill Co. v. Hartford Fire Ins. Co. (C.C.A.9) 35 F. (2d) 862, 863; Isaacs v. De Hon (C.C.A. 9) 11 F.(2d) 943, 944; China Press v. Webb, supra; Java Cocoanut Oil Co. v. Pajaro Valley National Bank (C.C.A.9) 300 F. 305, 306; Northern Idaho & Montana Power Co. v. A. L. Jordan Lumber Co. (C.C.A.9) 262 F. 765, 766.

This is so, notwithstanding the trial judge, here and there in his opinion, states that he "finds" such and such facts to be true,⁵ and, in concluding his opinion, refers to it as "the above findings and decision." As observed by Judge Rudkin in Java Cocoanut Oil Co. v. Pajaro Valley National Bank, supra, such expressions "cannot make of the opinion something which it manifestly is not." See, also, Eastman Kodak Co. v. Gray, supra, where, although the trial judge's opinion declared that the statements of fact therein contained might be taken as findings of fact, the Supreme Court held there was no special finding. Such, also, was the holding of this court in Rasmusson v. Eddy's Steam Bakery, supra, where, pending appeal, the trial court made a nunc pro tunc order adopting its "decision" as special findings of fact. Judge Wilbur, speaking for this court, said: "Waiving the jurisdictional question involved, the fact remains that the decision or opinion of the court cannot be treated as special findings in a case at law tried by the court without a jury. It has been frequently so decided."

Since there is in this case no special finding of facts, our review is limited to rulings on the pleadings and to those rulings in the progress of the trial which were excepted to at the time and are duly presented by the bill of exceptions, as required by statute.⁶ Fleischmann Construction Co. v. United States, supra. See, also, Norris v. Jackson, 9 Wall. 125, 128, 19 L.Ed. 608; Miller v. Brooklyn Life Ins. Co., 12 Wall. 285, 300, 20 L.Ed. 398; Dickinson v. Planters' Bank, supra; Mercantile Mutual Ins. Co. v. Folsom, 18 Wall. 237, 248, 21 L.Ed. 827; Cooper v. Omohundro, 19 Wall. 65, 69, 22 L.Ed. 47; Springfield Fire & Marine Ins. Co. v. Sea, 21 Wall. 158, 161, 22 L. Ed. 511; Martinton v. Fairbanks, 112 U.S. 670, 673, 5 S.Ct. 321, 28 L.Ed. 862; Boardman v. Toffey, 117 U.S. 271, 272, 6 S.Ct. 734, 29 L.Ed. 898; British Queen Mining Co. v. Baker Silver Mining Co., supra; Lehnen v. Dickson, 148...