United States v. Wurtsbaugh

• Decision Date: 07 February 1944
• Docket Number: No. 10676.,10676.
• Citation: 140 F.2d 534
• Parties: UNITED STATES v. WURTSBAUGH et al.
• Court: U.S. Court of Appeals — Fifth Circuit

140 F.2d 534 (1944)

UNITED STATES v. WURTSBAUGH et al.

No. 10676.

Circuit Court of Appeals, Fifth Circuit.

February 7, 1944.

Norman M. Littell, Asst. Atty. Gen., Fred W. Smith and Vernon L. Wilkinson, Attys., Department of Justice, both of Washington, D. C., and Malcolm E. Lafargue, U. S. Atty., and Jared Y. Fontenot, Asst. U. S. Atty., both of Shreveport, La., for appellant.

Sidney M. Cook, of Shreveport, La., H. F. Madison, Jr., of Monroe, La., and W. Dan Files, of Bastrop, La., for appellees.

Before SIBLEY, HUTCHESON, and WALLER, Circuit Judges.

HUTCHESON, Circuit Judge.

In a proceeding to condemn lands and the timber thereon which had been severed by sale, the United States moved for and obtained a directed verdict and judgment fixing, in accordance with its proof, the value of the lands and timber condemned.¹ It is here complaining of the judgment thus obtained and seeking its reversal.

Appellees insist that having obtained a verdict establishing, in accordance with the evidence it offered, the value of the land and timber condemned and having without objection thereto procured or permitted the entry of judgment thereon, the United States may not now seek its reversal. Pointing out that it moved for the verdict only after the offer made by it, of option contracts² with the landowners as conclusive of the value, had been rejected by the court³ and an exception had been reserved, the United States urges upon us that its motion for verdict and judgment must be considered as made subject to its reserved objection with the consequent right to have the judgment set aside and hearing rendered upon the basis of the values the option contracts fixed.

We cannot agree. Wachovia Bank & Trust Co. v. United States, 4 Cir., 98 F.2d 609, 612⁴ and Danforth v. United States, 308 U.S. 271, 60 S.Ct. 231, 235, 84 L.Ed. 240,⁵ on which it relies are not at all in point. In neither of them had the party complaining of the award requested that that exact award be made. In both of them the condemnee was the sole owner of the property sought to be condemned. In both of them the condemnation proceedings were resorted to by agreement of the parties to the option as the best method for clearing and passing the title of the optionor, and with the full and complete understanding that the condemnation award should be the same as the option price.

In the Wachovia case, the United States, and in the Danforth case, the optionor, throughout took a consistent position that the option price and the award must be the same. Neither at any time, procedurally or in substance, took an inconsistent position. Here, in attitude and action, the United States pursued an entirely different course. It did originally offer the options in support of the contention it then made, and now seeks to renew, that the awards as to the land and timber must conform to the option price. When, however, the objection was made and sustained that those prices were for the land only and did not include the timber, the United States did not stand to this position. Instead, completely abandoning it, it offered evidence valuing the land at less, and the land and timber at more, than those prices, and the evidence all in, requested and obtained a verdict not for the sums fixed in the options but in accordance with the evidence it had offered, and a judgment on, and in accordance with the verdict, a position wholly inconsistent and irreconcilable with the position it now takes. Under the plainest principles, it may not, having invited the direction of the verdict and the entry of the judgment, and thus relieved appellees of the necessity to offer evidence in support of their pleaded defenses and denials, which the action of the United States in requesting a verdict satisfactory to appellees made unnecessary, put the judge in error for doing what it invited him to do.⁶ Here the values of the properties condemned have been fixed by verdicts in accordance with the government's evidence and directed at its request at sums in excess of the option prices. The judgment complained of was entirely in accordance with those verdicts. Nothing in the record impeaches it, indeed, the record shows it to be fair and just. It is

Affirmed.

SIBLEY, Circuit Judge (concurring).

If the United States be considered as in position to complain touching the "options", there was no allegation or prayer in the pleading of the United States with reference to them and no effort to enforce them as sales contracts. There was only the usual condemnation case. The "options" each provide that in the event of condemnation, "this option shall, without more, constitute a stipulation which may be filed in such proceedings and shall be final and conclusive evidence of the true value of the whole property and of the proper award to be made in such proceedings". But the timber owners were parties to the condemnation proceedings, and had not signed or bound themselves by these stipulations, so the stipulations could not operate as to the timber. If they refer only to the land without the timber as the landowners contend, the United States gained by disregarding the values they set up. There was no error as against the United States in ignoring them.

HUTCHESON, Circuit Judge.

While concurring fully in all the majority opinion says, I am of the further opinion that if the United States had put itself procedurally in a position to complain of the verdict and judgment, it would not have been entitled to the relief it seeks, in effect the specific performance of an option agreement, which, because the United States had not accepted but had rejected the title, had not become a contract of sale. Under the settled law of Louisiana, such an agreement may not be specifically enforced.¹ The authorities cited by the United States to the effect that the instrument must be construed as promising to convey not merely the land but the timber, which, though constructively severed, was still growing on it, are without application here. They are merely to the effect that, though the sale of timber in Louisiana has the effect of creating two separate and distinct estates, one in the land and one in the timber,² and a sale by the land owner without reservation after having previously sold the timber will not carry title to the timber,³ an owner of the land, who had previously conveyed the timber but had committed himself by contract to convey land and timber, may not demand specific performance of the contract,⁴ and one who has conveyed land and timber by general warranty deed, will be held liable on his warranty.⁵ No deed with warranty has been executed here. Here is no perfected contract of sale, clear and certain as to its intent and meaning and fair and reasonable on its face. Here is merely an option to convey, which, because the optionor did not have title to both land and timber, the government, electing to proceed instead by condemnation, declined to convert into a binding contract followed by a deed. I think, therefore, that for this additional reason the judgment must be

Affirmed.

WALLER, Circuit Judge (specially concurring).

If the Government is correct in its contention that option, or contract, bound the landowners to convey the timber on the land, which the landowners did not own, then the contract was unenforcible and the only recourse of the contracting purchaser was for damages for the breach of the contract of sale, or for a rescission of that contract. Eminent domain is not the remedy for the rescission of a contract nor for recovery of damages for its breach.

1 This is what the record shows as to the pleadings: On July 3, 1941, the United States filed its petition in condemnation against 2581.72 acres of land, naming Wurtsbaugh and others as apparent owners, and was awarded an order for immediate possession. On Feb. 16, 1942, it filed in that proceeding its declaration of taking No. 7 as to the three tracts here involved, deposited as estimated compensation therefor for Tract E-15, $2800.00, for Tract E-17, $800.00, and Tract E-29, $3147.00, a total of $6747.00, and on the same day obtained a judgment confirming the possession previously awarded. On Sept. 9, 1942, it filed a supplemental petition bringing in as parties, Southern Kraft Corporation and others as claiming interests in the land in addition to the interest claimed by Wurtsbaugh and the others, originally named as owners. On Sept. 29, 1942, Wurtsbaugh and the co-owners of the land, answered; that on Jan. 21, 1942, they had sold the timber to Southern Kraft Corporation and others with record of the conveyance; that the estimated compensation deposited by the United States was the amount agreed upon between them, as sellers, and the United States, as purchaser, in options of date July 31, 1941, for the purchase of the lands exclusive of the timber, and that said amounts so deposited, while adequate for the lands alone, were less than the value of lands and timber. There was a further plea that if as written the options included the timber, this was through mistake and they should be reformed to express and carry out the intention of the parties to include the land alone, the only interest sellers owned. On the same day the timber claimants, Southern...