Brief for the United States in Opposition — Jacobs v. United States

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: CITATIONS

Cases: : : ; .

* Angarica v. Bayard, 127 U.S. 251

Boston Sand & Gravel Co. v. United States, 278 U.S..41_-_-

Jacobs v. United States, 45 F. (2d) 34

National Volunteer Home v. Parrish, 229 U.S. 494

Phelps v. United States, 274 U.S. 341____

Seaboard Air Line Ry. v. United States, 261 U.S. 209... __

United States v. Commonwealth & Dominion — Lid.,. 287 .

US. 427

Statutes: ’

Sec. 177, Judicial Code, U.8.C., title 28, sec. 284 ‘

Act of July 27, 1916 (c. 260, 39 Stat. 391, 399)_________.

_ Act of March 2, 1919 (c. 95, 40 Stat. 1275, —

170446—33 ee. (x)

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"OcTOBER TERM, 1932 a]

No. 806 eer

* E. P. Jacoss anp Avdustus GunTER, Executor oF |

the Last Will of Mrs. s. B. Gunter, Deceased,

petitioners — | ) |

Vv. . K -

' Untrep States oF AMERIOA |:

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF a FOR THE shantoaied

CIROUIT

| sre ae AT ere |

OPINION BELOW eS |

The opinion of the Circuit ‘Court of i Seite |

(R. 163) is reported in OF. (2d) 326.

JURISDICTION

The "judgment sought, to be reviewed was entered

February 13, 1933 (R. 163). Petition for certiorari

was filed March 27, 1933. The jurisdiction of this

’ Court is invoked under Sec. 240 (a) of the Judicial |

Code as amended Dicks the Act “ February 13, 1925.

(1)

ted, >

| Se *K.

QUESTION PRESENTED

Whether in a suit against the United States |

under the Tucker: Act for the taking of a right of

| flowage over petitjpners’ lands resulting fom the

onstruction of a dam authorized by Act of Con-

- gress, petitioners: may recover interest on the ©

- amount of damage to their lands from the time of -

the completion of the dam.

STATUTES INV OLVED

| mac 177 of the Judicial Code (U.S. C, Title 28, |

Sec. 284) provides:

Src. 177. No interest, shall be allowed on ou

any claim up to'the time of the rendition of -—

judgment thereon by the Court of Claims,

unless upon a contract expressly a

‘for the payment: of interest * * *,

| The construction of Widow’ s Bar Dam was au-.

thorized by the .tivers and Harbors Act of July

27, 1916, by the as provision (39 Stat. 391,

399):

Chattanooga, Tennessee, and Browns Island,

- Alabama, in aécordance with the report ‘sub-

_ mnitted in House Doeument Numbered Three

hundred and sixty, Sixty-second Congress,

second session, as modified by the report of

the Board of Engineers for Rivers.and Har-

bors printed in Rivers and Harbors Com-

mittee’ Document Numbered One, Sixty-

' fourth Congress, first session, $500,000:

.

ie vee o ere fen A 19. Nepean eet ns em

“+ * for onaitinang improvement by

the construction of locks‘and dams between

3

7. Provided, That no contract shall be entered

_- into for the. construction thereof until the —

local ‘interests shall assume and pay all .

claims for flowage damage or arrange to. do

_ so in manner satisfactory to the Secretary .

of War: Provided, further, That one high

dam ot two low dams may be constracted

aecording as the local interests may contri- |

_ bute the cost of all claims for flowage dam-

a

age arising from either type of. ome re- ..

| . spectively: ; ;

The ‘Act of March 2, 1919 (40 Stat. 1215, 1282)

contained the following provision:

Tennessee Rivcr, Tennessee, Alabama, and

Kentucky :\ The Secretary of ‘War is hereby

‘authorized to prosecute the work of im-

provement on the existing project for ‘the

section between Chattanooga and Browns

Island in accordance with the recommenda-

tion in report submitted in Rivers and Har-

‘ . bors Committee Document Numbered 8,

Sixty-fifth Congress, third session, that the

condition precedent requiring local interests

"to assume and pay all claims for flowage —

damages be waived. :

STATEMENT .

Petitioner J acobs filed a suit nalts the United . ,*

States in the United States District Court fgr the

‘ Northern District of Alabama, alleging that’ he

| was the owner of a tract of land situated on Jones

_ Creek, a tributary of. the Tennessee River, that

= | part of this land was | destroyed and “taken” by

_&-. 2& <7

seitiinasuiiisin from the constritition 1 of Wid-

ow’s Bar Dam-actoss the Tennessee ‘River, and |

~ that damages. were sustained in ‘the amount of

ry 000.00.: (R. 3-10.)— |

* On the first trial of the case, Ge District. Court

rendered. judgment for the United States (45 e..

(2d) 34, 36). This judgment .was reversed by the;

Circuit Court of Appeals. for the Fifth Circuit

(45 F: (24) 34) and the case was remanded to the .

__ lower court (R. 23). The case was then consoli- AS

' dated by the District Court with Gunter, ‘etc. v.

United States, and the two cases were tried to-

gether (R. 32). ates

The Gunter ease involved a suit siasthir- to that

in the Jacobs case, and related to adjacent lands.

The petition alleged’ that petitioner’ s decedent was

_. the owner of a tract of jJand situated on the Ten-

nessee River, that part of this land had been taken ©

and destroyed by overflow, and that damages. were ..

sustained to the amount of $9,500, 00 (R. 12-19).

On the second trial of these cases, the Distriét a

Court made _ finglings of fact (R. 36-44), finding —

. that. petitioner Jacob’s farm suffered damage to-

_ the amount of $2,919.00, and that petitioner Gunt-

er’s farm was ‘damaged to the amount of $1,030. 00

—€R. 43-44). J udgment was entered in favor. of

te petitioner for these respective amounts, with’ in-

terest at six per cent from the date of completion -

_ of the dam to the time of payment, together with

the costs of the ciatiatead appeal, such costs “not:

— to exceed thiat allowed by law endae Section 152,

Judicial Code’’ (R. 33-36). 7

This judgment was reversed by the court below

in so far as it awarded interést and costs (R. 163).

- The present petition raises — the question of

petitioners’ ee to interest. .

ARGUMENT

- United States in the absence of an express agree-

ment or statutory authority for its payment. Sec- _

_ tion 177 of the. Judicial Code: Boston Sand, and

Gravel Co. v. United States, 278 U.S. .41; United

States v: Commonwealth and Dominion Line, Ltd.,

| 218 0.8. 427; National. Volunteer Homev. Parrish, <P

-- 229 U.S. 494; United States v. Verdier, 164 U.S.

- 218; Angarica v. Bayard, 127 U. S. 251. - There is

no statute allowing interest involved here, nor was 2s

there an express contract providing for interest.

The court below held that this action was based

‘ on an implied promise to pay the value of the land .

taken and that decision was controlled by United

States v. North American Co., 253.U.S. 330, and _

that recovery for interest must accordingly he.

denied. : That case has not been overruled, although _

it has been distinguished in Seaboard Air Line Ry.

-y. United States, 261 U.S. 299, and Phelps v. United

States, 274 U.S. 341, and the rule of that case has

~ not been applied in condemnation suits or where

land has been taken under statutes providing just_

bets may not be allowed ; in a suit against te...

po

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: compensatiqn for the taking. The taking involved

_here was not .pursuant to, statute providing for

a the payment of just compensation. As the N orth.

' American Co. case seems clearly i in point and since

it has not heen overruled, we believe it is unneces-

gary to diséuss the decisions upon which petitioners -

< rely, and we oppose the’ petition.

_ CONCLUSION

| dine the case seems to be controlled rs a deci- |

sion of this®Court; the petition should be denied: * -

Rapecealy submitted.

-. T'Homas D. THACHER, -

. Solicitor General:

| Wurrney Norra SEYMOUR, -

Special Assistant to the Attorney General.

Wintiam W. Scort,

W.S. . eae

: i Attorneys. é

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