Prologue — Kimball Laundry Co. v. United States

Supreme Court brief1949

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EXPLANATION OF RECORDS —

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an aa . a. .- or ae yore

A Condemnation Case from | eo: BE.

of Nebraska —

Omaha Division” ~©& ae

: a : Gras bee

Es - o 2 : ? ‘ ‘ ‘ :

The printed record on the appeal to Uo. C. Cl A, eon-

sists of three separate, bound volumes as follows:

er 7 : . : ¢_. : << pd cae:

~ +.Volume-£. ©? The- filings and entries In the of-

Pages 1 to, 180 fice. of the Clerk of the b. 8. D.C.

Pee Ce enter es . at Omaha; court’s instructions 5,”

Pe eee a “Appeal papers to'U. S, C CAs St

rs Sees ra Wi eee: ‘certificates of both Clerks. — 4

>. Volume IL". The testimony introduged-and pro-*—

Pages 180 to 460 ° ceedings’ at the trial by the -Te- 3

Sere -. spondent, . Kimball. Laundry -Cox,

. we appellant_in U.S. CLC, races

Volume IIT. | " The testimony introduced and pro- :

. Pages 461 to 868 ‘ceeding at the trial” by the peti. —

ae - ' -tioner, United States of America, *

Coon * appellee in U.S. GG. AL §

The original ‘typewritten - record made’#y the official =~

2 court reporter in ‘the United States District Court com —

sisted of four separate volumes of the .proceedings at

- the trial, The origival typewritten Volumes I ( pp. 1-396) -

_ ang Li (pp. 1050-1097) contained the oral testimony and ©

exhibits of the respondent}. Kimball Laundry Company, . 5

the. exhibits heing separately-hound by the court reporter. —

in said Volume: EIT. The. original typewritten V olume IT. |

(pp. 397-913, 916-1009, 1010-1049D) and-Volume IV (pp. . °

‘1098-1122) consisted of .the oral testimony, and exhibits .—

of tgp/ petitioner, the United States of America, the ex-

hibif® being “bound separately. in said) Volume IV. A

sepayate typewritten index’ was- compiled. by. the court =.

repérter “for these. four typewritten volumes. ~- 4

The transcript_of the-Clerk. ofthe United States -Dis- —

, trict, Court cofsisted of 174° pages. Se ret a

| These tour original ‘typewritten volumes plus the tran-,

volumes 4or the UL §. ¢. ¢: A.

script of the Clerk of the U.S... C, constitute the orig-

inal records from the: U.S. D.C. These originals have

all been edmpiled inito thé aforementioned - three printed

. . as “ i wal? = 4

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e: eee heal E :

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. INDEX TO PRINTE Db VOL UME L Peane. 1 to 150 —

a TCompited: from Clerk's ce tified transcript on file) —

, reper noe greet “Origin al " Pristed”

€ aie a a permed ere Transcript | Vol. F

lh Alle stele as = tee Seeger &

2. ‘tntroguction: near 3 ree SNE TEES Ree Pa 4 eee

S. Petition in Conde ‘mation, ‘filed | by United gt ates r : —

. America, Nov, mber _ SAITO Sans 4... -- we

4 Order for. Immddiate Posse ‘sion (Donohoe, D: RD: filed =

4 November.’ oh e. . Sones Ea wer ah GEA OE sees See ‘1 5:

Ba Letter 11) ‘21/42 Secy. of War to “Atty. Con, requesting } peel ta

“institution of proceedings. to acquire premises involved, “sn,

ee Ailed: Noverfber 25,1942 och eeeniennecintcn. IS OP! B. Fe

6 “Order, withA ardital’s. return, filed 11 /25/42. ipststencoapsioe’ a Mo ot

7, Motion t Extend Term Condemned, filed May 11, 1943.\. 21, 12

8) Ex parte. \ er on. -Motion to Extend Term’ (Donohoe, --

D. j.), filel May 11; sale, Kemiesias.ldntiuleg houmeisaniekibeene neat - 24 14 -

9 Notice to Respondent that ‘Terai had’ bei E xtended, filed

. May Lt, 1943.4....... ialeitiespiabectaantveuhe ncbdobcabapleosteaas deine ac nisooislt’ 2B..- 15:

10 ‘True Cony of Lethe: ‘from Secy. of War to pay General, .

‘Med June 10; 19465 ee es ua sidetacb coca >. ee 15

- 1) -Deélaration of Taking by U. 8: fled. in v. 5. D. C. Tene 19; “ee :

: Bo ea ee i NAOT ES CIO RE ARORY 29 16 ,

12 Ex parte: Jodegnicnt 6n ‘Declaration of — No. J, filed e

2) rp nd a= SOT OR UU o eto Re 33 is—.

438 Answer of Kimball Laundry Co. to Petition in Conglemna- 2 ass

tion, filed - August 23, 1943200000... Si tatiecg leicht bipeiaackan laaideint 37 . 7.

13a Motion of U.S. to Appoint Appraisers, filed Sentember 16, °°. - oe

Be, BAS ig i he oY 46a. . 31

13b Order of v. S. DC. - Apphinting Appraiser rs, Bled Septem- = pate

* ber 16, 1943... eieindae igeeantsaciie . 46b =e

13¢ Notice to ‘Appiaise rs to heer filed hei 17, 1943 46d °° a

13d Pied of Mailing Notice of. Appointment. of Appraisers, pela

JE ¥

ce “Sandan. Pre encin! ccaynens’ braid “Company, ;

-attached fe RD We ert se eI SEO a spat . 46f.. 34

Ie Nutie {cory fs Notice to Appice "8 filed septeeaber 3. ae

gt NRE RCI Ch REED MEI AEs AEE ao 34

13f Gath of hentia, filed October. 21, “1943... ae en —— of.

14 “Ss of avenge, filed - in U‘S.D.C. Novems r 19, ae:

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[fol 4) IN THE DISTRICT. couRT OF THE

eUNITED STATES = =.

' .° FOR THE DISTRICT OF NEBRASKA.

OMAHA DIVISION - a

No, 404 Civil »

S43

. "UNITED STATES OF AMERICA, 7

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KIMBALL oars GOMPANY, A. Corporation, t

and

EASURER ‘OF DOUGLAS COUNTY,

INTRODUCTION *

Be Ir REMEMBERED, That on the dates herein shown, ; Ree

certain papers were filed, orders atid records made and

-entered in the abowe entitled on. in the words “and

figures following, to’ wit: ;

[fol.5) PETITION IN’ CONDEMNATION

_ Filed Noy..21, 1942 - .* ‘:

- ‘The petition of the’ United States, a. sovereign, brough# |

by Joseph ‘T, Votava, United States Attorney for the

District.of Nebraska, acting under the instructions of* the”

“Attorney General of the United States; -and at the re+

- quest of the Secretary of War, 2 ariescenipe to the Court—. |

as follows:

1. This i is a suit-of a civil: nature. necuahd hy the above- ie

_ Named: Petitioner under the authority of ant pursuant to

Responds. Ssaats

—

the provisions contained in the Act of Congress approved °

August 13, 1890 (26 Stat. 316), ‘as amended by the Acts

of Congress approved July 2, 1917 (40 Stat. 241), April

11, 1918 (40 Stat. §18, 50 U. 'S: C, See. $71), and March

27, 1942 (Public Law 507—77th Congress}, which Act -

7 - authorizes the acquisition of property for military pur-

poses, and the Act of Congress approved July °2, 1942 —

(Public Law 649—77th. Congress), which Act Spproprigted

. fands. for such perpepee.:

“9

2. Th t the “Sieaibaed of Ww ar is. anthohized: to gequire

by purchase,. condemnation or otherwise sach tracts ar:

‘parcels of réalestate and personal proper ty in .Douglas.~

County; Nebraska, as may: he necessary in his discretion.

‘tor war purposes ; that the property heréinafter. describgd. .

fs necessary . for war. purposes, to-wit: to maintain ahd:

=_— a laundry for the se of the Armed Forees of .

the, United ‘States. © - €...

3. That-the Secretary of’ Was: seawaitiin i the author-

‘ity in him vested by said Acts of Congress, has-found-and.

det®rmined .thate it ‘is necessary and- advantdgeous, and to

’ the-interest of the United States to.acquire by condemna- _

- tion, jundey judicial process, for. public. use for military —

“Efol. 6] “and. defense purposes, the Teen described

property, to-wit: |

’ The right to use and occupy the proper -knowr as

_ the Kimball Laundry, owned and: operated ¥¥ the Kim--

ball Laundry Company, a a corporation, located. at*1504- ,

Jones Street, Omaha, Nebraska,” consisting of. :the real -

estate known asthe Fast 22 Feet of Lot 7, and all of

: + -Liot 8, Block 171, Original City 6f Omaha, and a_strip

one foot wile’ “adjoining the aforesaid real estate on

the North, all of said real estate being i inthe City- of

Omaha, Douglas County, Nebraska,’ together With the

improvements situate thereon, and? also all the personal 4

‘property located thereon and therein, and used‘in eo

~ nection with. said laundry, excepting ms fe the dchvest

equipment. ; 4%

4. That the ‘estate ‘sought to be. taken for said public

use of the pforesaid rights to use and ocoupy said prop- -

erty is'‘a terminable estate ending: dune 30, 1943; and at’ ~

Alanéian nf ¢ha a, a

the CaeCuGn va uc Secretary of W War for additional yearly ‘3

periods thereafter for the. duration of the present emer- .~

_gency as determined by the President of the United

States, subject, however, to existing ‘efsements. for public

‘roads and highways, for public utilities, for’ railroads and

-for.pipe lines. - | SS ae v

5. That purs int to the provisions of an Act dated March :

27, 1942 _ Law, 300— 77th er gitest) the United | ~

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—Tith Congress).

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one States of America in time.of war has the right upon the.

' filing ‘of this, Retition to ke. immediate possession of

' the afgresaid property; that the immediate and full pos-

__Session’-of said property is indispensable to this Peti-

“toner” so. .that the Government, muy suecessfully carry»

on the war in’ which the Nation is’ now engaged, and

to that end it is necessary that possession ‘be given on

the morning of November 22, 1942: that by a:letter

dated November 21, 1942, the Secretary of War request- *

ed the: Attoriéy General of the United States to in--

situte’thege proceedings, and in pursudnce of said. re-

quest the Attorney General has instructed the undep’

signed, the United States Attorney for the District. of ©

Nebraska, to institute these proceedings fr the condem- aut

nation of said property; that a’plat of the above-described

real estate, shewiug the lands involved-in this proceeding,

is attached hereto, marked Exhibit “A’’; and by reference

[fol.7] .made a‘part of this, Petition; that. duly prepared -

and certified abstracts of title to-the lands involved will

be deposited with the Clerk of this Court for the use of

the Appraisers to be selected, and of this Gourt during

. ‘the pendency of these proceedings, but to be withdrawn |

’ upon the conclusion thereof; that satisfactory and ade-—

quate appropriation and proyision for just compensation

_ for the property sought to be taken herein for the pur- —

pose aforesaid, -has been made by an appropriation under

an Act of Congress of July 2, 1942 (Public Law No, 649

6... The Petitioner is informed and believes,aand there-_

fore alleges that the following named Respondents have

or claim to have some title or intergst in-the lands iff”

a See eee

* yurveu,. :

Kimball Laundry Company,.a corporation, which ap-

" pears to be*the owner of all of the aforesaid property.

7. That the County Treasurer of Douglas County, Ne-

braska claims and appears to ha¥@ some: interest in the

property involved ‘by reason of taxes and .assessments

which may be dué-and owing, or which may be levied

against’ the aforesaid ‘property, and. said County Treas-

“urer is made a. party Respondent herein as- the proper

official for the collection of .all taxes and assessments

that may be due ayd ow ing, or that my inure to the.bene- -

fit of the State of Nebraska, the County f Douglas, Ne-:

’ braska; or. any. subdivision of the ‘State of "Nebraska, or:

any mutni¢ipal < orporation which: may have tax. claims

. either general © or special against. the property saireoien

herein. | :

Waegerore, the: premises considered and to ‘the oar that

the property described i in this Petition and hereby sought’

to be taken, that is, the right to uge and occupy: the afore-

said Kimball Laundry property, may be acquired by the

United States America by condemnation 7 in accordance

With -the several statutes dnd’ Acts of Congress in such

cases made and provided, subject, however, to existing

easements for ‘public roads and. highways, for. public

‘Utilities, for railroads and for pipe lines, the Petitjoner

prays this Honorable Court: |

{fol.8] 1. To appoint six qualified, competent and dis-

interested freeholders as Appraisers to appraise the value

with the law and statutes in such cases made’ and pro-

vided, requiring said Appraisers before entering upon

their duties to take and ‘subscribe an oath to fairly and—

impartially appraise the value of the interest of: the sev-

eral owners of said propérty;.to direct the Clerk of this

Court immediately by - ‘registered’ mail to call said Ap-

praisers to meet at the. premises involved herein not less”

than thirty” days nor more than forty days after their

appointment; to direct the Clerk of this Court to- cite

said Respondents hereigy by serving upon. each of said

Respondents a notice of such-meeting of said Appraisers

_ eller by registered letter not less than fifteen days prior

to said, meeting of Appraisers, or ‘by petsonal service: -

of such notice at least ten days S prior to said meeting.

2. To direct that such Appraise rs so appointed -shall

inspect and view the #toperty pvolved herein in this

condemnation - proceeding on the Geax, appointed in such

bs scan or on any ere day, to hich they may Seed

and after such hearing’to direct them fo assess thé value’

. of the property, for damages or compensation which the ~

' . owners thereof may sustain hy the appropriation, of said

: ‘s ¥ . Py i i ’ .

property, ang to make an itenjized report of such assess- |

’ of.the Appraisers be prescribed, and that this Court take -

such'further action and‘ enter such other ,orders, decrees _

Ohta >

~* dnd judgments. as ‘may be necessary or proper to fully

effect the objects. for which the aforesaid Acts of Con-

- gress, insofar .as they relate to the acquisition- of the

aforesaid property, were passed, and cause the: property.

- described in this Petition, and being the right to use and

occupy the aforesaid Kimball Laundry, to, vest in the.

United States by an appropriate title, subject, however,

_ Utilities, for railroads and’ for pipe lines. :

_ 4. The Petitioner prays for immediate possession of

the property dnyolved herein, and i# prays for such other

[fol.9]* and fiirther relief as the nature of the-ease may

- to easements for public roads ‘and highways, for public» -

‘require, and as shall seem proper to the«Court. |

Ba | Unitep States or America,

ce hala 5 Petitioner, —

ioe . .By Joszpn T. Votava, «7

uae _ United States Attorney for’ the

ne ewe District, of Nebraska, Attorney

te °° for Petitioner. |

Reese ,. <.And A. Z, Donato, -

Special Attorney, Department of

Eee ~~. Justice, Attorney for Petitioner,

_ (Duly verified before Clerk U. 8S. D. C. on Nov. 21; 1942.)

**[fol. 11}. es a ORDER

- Filed. Nov. oi, 1982... : Soe: eae

_ _ This cause coming on’ to be heard wpon the motion of-

__ Joseph T. Votava, United States Attorney in’and for the,

“District of Nebraska, Attorney for the Petitioner herein, —

2 for an Order of immediate possession, and of the right | —

e t# use and qecupy forthwith the property known as Kim-

_- ball Laundry, ‘said property being more fully described

f<° r eae

-LIBRARY:.20. es “a

(SUPREME er us

| “TRANSCRIPT OF RECORD

= (Pages L; jo 190),

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¢ 4 % eee hc ®

_ Supreme Court of the United States

: OCTOBER TERM, 1948

Se a

reg Set i

KIMBALL LAUNDRY COMPANY, PETITIONER,

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On w kit Or CERTIORARL TO. THE UNITED STATES court o OF APPEALS

Pee ena FOR THE EIGHTH CIRCUIT:

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* ‘panersen FOR CERTIONARI-FILED MAY 28, 1948.

CERTIORARY GRANTED OCTOBER ut, 1948.

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THE UNITED:STATES OF ‘AMERICA +. *

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in. the Petition filed herein, sed upon ceaiiiaiintben cof

sail ‘motion and of the Petition in Condemnation pre-

sented to the Court, and in cons#deration-of the statutes

in such cases made aiid’ provided, and parti¢ularly Seetian

171, Title 50 of the United States Code, as amended, and

. it appear ing to the satisfaction of the Cour “4

First: .That.the United. States of: ‘Ametica is entitled

to acquire property by eminent domain, including the right

to use and occupy real and personal property, f6r the

purposés set out in said Petition in Condemnation; “8

Second: That a Petition was filed at the request of the,”

Secretary of War. and that it was filed also under the ;

authority of the AttofHey. General of. the United States.

Third: That said Petition. states the authority under

which the public use for which said property is taken;

that. the Secretary of War is the persot duly authorized.

and empowered by law to acquire the property ‘and. the

right to usé and occupy the property, such as is described

_in the petition, for military and defense purposes, and the

-[fol. 12] Attorney General of the U nited States is the -.

person, authorized by law, to direct the institution of such

Condemnation - Proceedings upon being requested by the

retary of War to do so. 7 |

dtition -in this proceeding was filed, it also a, to

the satisfaction of the Court. that, by a letter dated No-_

vember 21, 1942, the Seeretary of: War. requested the At-.

torney General of the United States to acquire by Con-

demnation the rights to use and occupy the Kimball Laun- °

dry property located on the real estate described in the :

Petition, together with all the personal property: thereon

-and ther rein, and used in connection therewith, exception

untly delivery equipment, and fur iher requested ihe inuime-

diate rizht of possession to so use and occupy said. enol

ball Laundry. *

Now therefore,. in consideration ‘of the. focegelua’ and

whereas this Country is now ‘at War, and the possession

of said property and the right to use and oceupy the same

is needed in order that the-Goveriment may suc cessfully

‘Prosemite the War 4n which the Nation is now engaged,

ee io , °

‘ourth: And it*further appearing thatton the day the ..

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APPEA!

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KIMBALL {

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No. 13494

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AUNDRY ACOMPANY.

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UNITED STATES 0t AMERICA!

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and proper-showing having been made to the Court of

the necessity of such ‘immediate possession and of dhe

" necessity of the immediate right to use and occupy said. —

property, jit is Lyi lees Sty ec?

Therefore ordered, adjudged and deéreed ‘that. the

United States of America, ‘Petitioner herein have imme-..

diate possession, and ye, le ;

(Same description as petition). Begs

[fol 13] The possession ‘of the Petitioner, however, shall .

' be subject to existing easements for public roads and high- ©“

: ‘ways,.for public utilities, for railroads and for pipe lines.

The possession and the right to occupy and use said.

‘property shall begin on tle morning of November 22,

‘1942, on condition ‘that a copy of this Order. shall “be

served upon ‘the’ respondent, Kimball Laundry ‘Company

prior to the takimg over of business of ‘said property.

It is further ordered that for a reasonable length of

time, the respondent, Kimball Laundry Company, through

_ its officers and representatives, shall have ‘the right to.”

enter upgn said premises within reasonable hours and in

the presence ‘of ‘the representatives of the Petitioner, to *

‘make an inventory of the various items of personal prop-

erty being taken over, with the right to use and occupy.

_the same by the Petitioner, so that an orderly transfer

and a record of such transfer may be made by the re-.

spondent, Kimball Laundry Company to the Petitioner. -

RS ee er fhe ier hi A

_ It is further ordered that inasmuch as the. Petitioner,

by Acts of Congress, has made certain and adequate pro-

visions for the payment of just compensation to the party

or parties entitled thereto, as hereinbefore more fully set ey

forth, it shall not be necessary that the United States,of--

America deposit, or cause to .be deposited, any. sum or

. sams of ‘money, or other form of sécurity of any amount

or nature, for the purpose of securing the payment of just |

‘compensation to the party or parties entitled thereto..-

It is further ordered and directed that a certified copy

‘sof the original letter from the Secretary of War to the Beh

Attorney General of the United States, hereinbefore. re- = -

ferred to, requesting, the Condemnation Proceedings, shall , .¢

7 :

‘ °

w See eae Seisa hey od ee Ee

ca id 8 |

> ; s : i : pete “9

- 3 ek ea NE re “Priktpad

, . ne : Transcript, Vel. ——-

at; Notice of Appe ‘al of. U. S. to t }.S. SDL. Som ‘award re =

+ Board of Appraisers, filed Dece aber z, 1943... sense SD» SQ -

2 16 Notice of Appeal of Kimball Laundry Go. to. U's WD.C, from ‘ i

| » award of Board of Appraisers, filed Decembe rH; 1943 51 - 39

17 Motion to- Tax Costs Incurred Before® Appraisers, filed by : ce

‘ ‘Kimball Laundry Co. December 11, 1943...0..00.00000005....4 52 4() = 4

" .-.19 *Petition: in Error to U.S.D.C. from award ok Aipacisncs by . ses

‘ Kimball ‘Laundry Co., filed Decembét 18, 1943..*,, sep G5> |" eg 44

“Ig: ‘Appeal Undertaking, filed ‘by Kimball Laundry Co: De- Ney

<—Wentber 18, 1948. wiajomnnnyeiecnmncaritnenennc GAY BY

* 20, Application’ -of “Respondent, Kimball Laundry Gai { 3S

“Withdraw Funds Deposited in Court. without ‘Prejudice, i ii as 2

‘ on Account, filed February 1,’ Rds sadnaidempiiocnbeatepabine 65. 52

La ah peas ; x

"0 2) Order Permit ting Withdrawal of Funds: without Prejudice : ce

; (Donohoe, D:: }:), filed February Rigs BD icsiecistoasccaclastes £§ 53.

eo Stipulation, filed March 25, 1944, Agreeing Motion to Tex... :; pat

ee Costs’ (17) to be Ruled.on at f Case......:.oni 67 | 54 ——

23 Order (Donohoe, DeJ.), filed Magch 25; 1944, Overtuling a :

“*. .Motion to Tax Costs, without Prejudice to Renew‘at “i {

ara. Sy SRE ee Neier ne eS &8 54 * 4

24° Request by Respondent fee Pretrial Hearing in U.S.D. C., we oi

_ filed’ April 35 BI oa ceisassneishcbsanen Pivensivie ae 69 55

of ABS = Supplemental Bodlacilien of ‘Taking, filed in U. S. D.C. by: — ———— ss

oe Petitioner of April 6, YONG antec cpectnstasentetenerne ees TO. 55 a

Me Ex parte- Judgment on Supplemental Declaration of Tak-

. ing, filed: April 6, 194 WG i intinianiies apbiiabptinibicdinnS charkéoeanise 71 56

27 Application of Respondent to Withdraw Funds Deposited i cast =;

hea wrk in Court, without Prejudice, filed April 13, 1944 aE 74 58 E

28 ° Order Permitting Withdrawal of: Funds without Preudie ay :

(Donohoe, D. J.), filed April ARETE aay 75 59 :

29. Respondent's’ Motion to Advance Cause in Us. ws C; for - je “4

Final Disposition, filed May 3 V9M4 nn eeeeeeeeeserceresse FB ~ 60 i

30 Notice to Kimball a. that Possession of U. S. had: i Maes 4

: xtended,: fled May 31. S| SHEE e re a 65

+ 31. Motion of U. S. to secre Te Condenmed; filed May 9 31, : | i: ‘ |

> c ae 1944 ieee a Westen ease gee te ree enw ereernene en Rs wae ie - 8 65 Zs

$2 Ex parte Order on Motion to » Extend tem Durie NN = ae

é J); filed May 31, 1944... angel, ig 84 (66

iar . . : ’

$3 ° Affidavit of Mailing of Notice that Bose had heen Ex- a >

e tended, filed June Ae ERIE HEC SD + 87 -— Se

34 Supplemental Dechiration of Taking, filed in US. De. by” ace

‘ Petitioner on August. 10, —1044..., vinsinmeenRibeistsbiiipet isis casa - 67 3

| e.

43. Motion of U.S. 'to Extend the Term Conitemned, fied +7

PIE IE cighicdsnchtsccesiunssatatineeeanitelet nace tt.

we Ex oe Order on Motion to Extend ern (Donohoe, D..

——t J filed -May 28, 1945.00.00... isg vosenetavesciensaseninesesesting

45. AMidavit of Mailing, Advising’ Kimball Laundry Co. that

Term had been Extended, filed

46 ‘Supplemental Declaration of Taking’ by = S., . filed in

_ -US.D.C.-on Adigust 8; 4945........ seraanntecsvoakandyeetibadtanaiwal tans

47 | Ex parte: Judgment on Supplemental Deidaration of Take

- ing, fled Augtist S| ae :

48 Application of Respondent to Withdraw. Funds Depositesl

in Court, without Prejudice, filed August 11,. 1945.........

49° Order io. Withdraw. Funds without Prejudice {Donohoe,

D. }.), filed August nas 1945 bncpinsenncuitesionadebcbaiayaaiioshedseacesions

| 50. Third Written Motion ot the Re ahinte' Kimball Ries

Co.,, to advance case for Tra in U.S.D.C.; filed

-— . - Jaiuary "18: RNS PTS RS aE

Si“ Respondent's New Petition: | ‘on ae to: USDC. from

. Appraisers’ Report, filed Match 18, 1946; during tral...

82 Motion to Strike Respondent's: New Petition (50) on Ap-.

peal to .U.S.DC. from Appraisers’ Report, filed March ©.

18, 1946. (Petition st cken teint trial, March 20, 19486,

Print We As Oe Me iesechscamtescadtiecnteithcdakcninne. ital

fed June'l, 1945.43 _

435) _—

118% ;

121

110 \.

é \ * a 5 . : v.

: ili et ‘

, 1 aes Sark > ae Original Printed

ante wie’ - Transeript - Vol. ¥

35 Ex pa e Judgme nt ton Sapien ‘mental Dec cation of Tak- a

—ae filed August 12, 1944." Poon efierenn. BY 68

36 Applicati n of Kespondent to W Vithdraw Funds: Deposited

‘in Court, without Prejudice, filed August 18, 1944... 92 71

87 “Order (Dbpohoe, D. J.), filed August 18, 1944: Permitting

| Withdrawal of Funds Déposited without Prejudice......... 93 em

38 Second Motion: o Respondent to Adv vanée Case for Trial, :

. filed October RCS sarees aperaDtosicecioanhes O04 73 ..

39, Motion to Strike Reepbodeat s Answer 3) dated’ y PoE

ee 23, 1943, filed: Mav: 12, 1945 (Answer, stricken during Rew

trial) SS ee ee en ee oe ag es EE 97 76

40 Notice. of Hearing on Motion to Stiike Answer, filed May

12, 1945 (Answer stricken during trial, 9238 4, 1946,

- Print Vol. Il, p. MD) yponinccscsanescasenssdiesoessoeiodgaveonsesiisestemnesesz 103 - 82 |

- 41 Motion to Strike Petition in Error and Trimictiot of Evi- .

ees . dence, filed May 17, 1945. (Order entered. st king Peti-

tion in Error during = March 4, 1946, Print Vol. II, © ae erer

Soe eaten Sie a ree 104 ' ~ §2

_ 42 Notice that Term had been Extended, filed May 28, 1945. 105: z

. 2 2 \ a? =

ae . ae ay ;

as 2 os . Aa “ > 8 i ‘ :

-@' “ Wig ia a Griginal* . Printed ~~

s > : rey : : Transcript’ ‘Vol. F

‘$3. Ve ict of Jury, filed. March 20; 1946... ~... sep tes. 126 95

“i 54 ies te Kimball Laundry Co. of Surre wiles of Pane ssion re

: ' *. by Government, filed Math 22, 1946 (Verdict, March

s \ : 2p, 19-46) seen Kegel EROS ew gp nseese oats As : oe

F 55 Motion in ArrySt ol of fotpmaas file d ‘sip 3 97, 1946 . wien 129 ~. 97

“Tadzm of US. DE. on sve dict of Tory, filed — 9, os je

a AMG Ly convene 2.132 101

ae *- f. Malini ot Heeponde ‘at, Kimball’ Laundry Co., for. New" reese is

ta aed ‘Trial, filed April 19, 1946................ pennqeninconeyeea sca 307

Rp Stipulation, Regarding Purchase of Certain Senses Equip: a

~ "ment by*Kimball Laundry Go. from*U.S. without preju- ere &

dict to cause of appeal, filed May 8, 1946...00.000000.000. 157 134

os 59 - ‘Judgment eon ae (58), without Pre judice, filed | : .

Deny Os iareccacrtencnncinceeannsosse goccresgpteeneeeae settee

60 Applcatie for Order to Withdraw Fands- lthout ieee

ice, from the Registév- gf -the Court, deppsited after

- Jud dgment- by-U'S., filed Ajiguist 8, 1946.00.02...

-€0 ‘Order Allowing Partial “Withdrawal, “After Jud pent:

: without Prejudice to Appeal on. Merits, of. Funds De-~*

posited in the Registry of+the Court by US., filed Au- ~

gett TB, OB neti. nsgessedpqeesne sthesPeascet eames ef

62 Notice of, Appeal to Circuit Court of Appeals "'Z the?

Eth Circuit Under Rule 73b ‘(by Kimball Latinc

eee Co.; dent), filed November 14, 1946... 4, ..164 140

63 Bond on: sdl, fled November #4, 1946..:-0:09 185...

. 64- Clerk’s Proof ot, Mailing Copy of ‘Notice of WA on OF fA

- . . November 14, aie IRS ES Se LI SE te Se) verse

ates. ‘Gole of US.D.C. extending oe he foe F; cS Record on > at

\=3

4)... Appeal, filed Decelabes’ 21, 1946... Af eo netencene 167 it.

= 66. Stipulation re Pofnts Re ied on for Rev {to be placed aay we. 5

ghee Sey: - inb brief rather than-in record) ‘February 3, jo47.. : 142 -

67. . Designation of Record on Appéal as ‘stipulated by Kim- ‘4

vies rae | Laundry Co. und Petitions’, filed February 3, 1947.169 © 143

vA 68 Certificate. of Clerk... Siakalceete hig RIS Se

: } rea of court ) rtez is for all -volunies of type-

written RY AES Ppeeeteinnabebinsalinpnonsintsn se <aisheifussaheeatibhiaen -Vol I, 181

‘ : . Instructions of t Couit after OUND 5 BOR pin seccieet fechas Vol. I, 4010 150

* o . Re ‘spondent’s ceptions to Court's ‘Jnstructions........ BRS Vol. HI, 1036 165

’ Additional Instructions Given’ the Ju y by the Court to.

: —_ Certain Evidence of V _ ee pietabecdochen *Vol., I, “1040 ‘167.

s sit

* . is peat

as 7; Poe Oe \ sos ‘

Voll, 1942- A “169 ae

ty Kimb. ll L aundry Cc omspi uy s Regueé ‘Stod. Instructions Vol. Mt, A042- F 2. ne

Gove ‘miment’s Re que ste d. instruchons aK

Further lustructions of the Goart.* a 4 aed --Wol.. IL, 1043 178 ee

Verdict -of the Ruy. ae ode = as Ha _ Transcript. 126 93-4-~ .

Specist Findings of Jury. sat et ‘Mel 6 in, 1046 96, and Vol-ttl, p. 864 “s

* 4: ey APISEK —~ mon ee Bue ne os orhd

: Special index to- court 's ratings rs during trial on. evi-. aoe

dence and exhibits on-motions. and ‘applications appears | e

separately. in-appelly nt’ Ss brigf. cere en a Oe a

; Respective idexa to. y ol, it. and Vols HI of pritited

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“+ Attest:

| (Beal),

Pleas and: proceedings in the United States Cireuit Court 0 Soy

—~

_.of Appeals for the- Eighth, Circuit at ‘the March

Perm, -1948, of said Céurt, before the Honorable’

'* John’ B. Sanborn, the Honorable Joseph W. Wood: +. |

rough and the Honorable Harvey M: Johnsen, Cir- ete

cuit Judges... 9~° -. | ee

a. y ‘ i : ; > : - i eX : : :

| re . E. E. KOCH,.

cuit Court. of Appeals. for the-

Eighth Circuit. Me

"Be it- Remembered. that heretofore, to-wit: on the: 11th’ oe

. day of February, A. D., 1947, 4 transcript of record: pursu- :

ant to an appeal: taken from the District Court-of the ~~"

United States for the District of Nebraska, was filed in the -

Office of the Clerk of the United States Circuit Court of A

Appeals for the. Eighth. Circuit, in a cert&in cause wherein |

. Ktmball Laundry Company, a Corporation, ‘was, Appellant, o . /

. and the United States of America was Appellee.

-. . Printed record filed on July 2, 1947, composed of threé _

a - Clerk of: the United States Cir-

. Volumes, Volume I éonsisting-of pages a to 180, inclusive, « °

Volume II: consisting of pages 181 to 460, inclusive, and.) -

. .Volume TET consisting of pages 461 to 868, inclusive, on © -

* which the appeal was heard in. said Circuit Court of Ap- _

-peals, ‘and, proceedings in said Circuit Court of Appeals, -, ~

composed of one volume, Volume IV, consisting of pages

1 to 22, are in the words and figures following, to-wit: —

’

-»

we <

‘es «

6 ‘ te | | : ° f : :

Pursuant to the provisions of, the Act of Congress ap-.

7 proved ‘February 26, 1931, and the ‘Acts of Congress re- .

cited in the petition filed i in the above-entitled proceeding,

it. is requested that vou cause the inelosed declaration of:

-’ taking to be fiied in’ “the pending action. The estate to be

acquired, the description of the land, and the name of

the purported-owner of said land are set forth in the

deciavation of. taking, which includes all. of the land in-

-.volved in the proceeding. . ‘The sui estimated" to be: just

compensation for the taking of said land, and for the con-

demnation*of the personal property described in the peti- /

tion for the t commencing ‘November 23, 1942 and

‘ending June 40, 1943, inclusive of all rights set,forth in ©

the declaration of taking, is $30,140.00, check for which

'. amount, payable to, the order of the Clerk of the United .

States District Court for the District of Nebraska, is in-

“closed for deposit in the registry of the court.

* Appraisals and title evidence will-be procured by this

Department and furnished your field representative.

Three copies of the declaration of taking are inclosed.

ae Pincers yours, Henry L. Stimson, ‘Secretary of War.

Inclosures: 1-—Cheek 7. T. [s. qa).

ae (fol, 99}- DECLARATION OF TAKING

Filed June 19, °43.°

be To the aa the United States District Court:

I, Henry L. Stimson, Secretary of War of the U nited

- $tates, do hereby declare that:

- 1. (a) The real. property hersinafter described if taken

under and in, accordance with the Act of Congress ap-

. proved February 26, 1931 (46 Stat. 1421; 40 U. S.°C. see.

258a), andeacts sipplementary thereto ‘and amendatory

__thereof, and under the .further authority of the Act of

Congress-.approved August ‘18, .1890,{26 Stat, 316), as

~- amendéd by the Acts of ‘Congress approved: July 2; 1917.

(40 Stat. 241), April 11, 1918 (40 Stat. 518; 50 U.S. C. see.

171), and March 27, 1942 (Public Law 507 - 77th Congress),

which acts authorize the acquisition of reil and personal

' property for military or other war purposes, and the Act --

of S :

_ of Congress approved July) 2, 1942 (Pi ublic ‘Law G49 - 77th

Congress), Ww hich act app] opriagea funds for suc fi, pur-

poses. ; . ?

(b) The publie | uses. for which’ ‘said real property is

taken are as foffows : The said reai property is nece SNUry

adequately to ‘provide for a military laundry, and for

other military purposes incident thereto. The ‘said real

-property thas been selected by me for acquisition by the

United States for use in, connevtion.-~with the *establish-

ment of a military laundry lscated in the C ity of Omaha,

Nebraska, and for such other uses as may he authorized

{fol. 30] by Congress or by: Executive Order, and is re-

quired for immediate use.”

-- 2. A general description of. the real’ property taken is

Set forth i in Schedule “100 attached hereto and made

part hereof, and is a: deseription of .the’ same _real sot

erty: described in the petition-in the above entitled cause.

_ 3. The’estate taken, for said public uses isa term for

"oe

years ending June 30, 1943, in the real property above .-

referred to, subject, however, to. éxisting easements: for

~ publie roads and Highways, for public utilities; for rail-.

roads and for. pipe lines, together with the,right to ex

_ tend ‘Said térm for additional yearly periods thereafter

during the existing national emergency, at the election *”

of. the Secretary of War, which election shall be signified

by, the giving of notice at any time prior to the expiration

of the term hereby taken or - subsequent extensions thereof.

4.- A plan showi ing the real. property taken is annexed,

hereto as Schedule “‘B”’ and made ‘a part hereof.

3. The sum estimated by mie as just compensation for ~

said real property, with all buildings and improvements

thereon and all appurtenances thereto, including any and

all interests hereby taken in. said real property, together.

24h ant Meee

With Gi personal pr oper ty loc ated oii said Téai property ee

and, used. in connection with tie operation of -the dauentey

located ‘thereon for the. term commencing November .2 oo

(1942, and ending June 30, 1943, is set forth in ‘Schedule :

““ A’ herein, which sum 1 cause to be deposited herewith

in the Registry of said Court for the use and benefit of

_ the persons entitled thereto, I. am of the me that the |

. x 8 .

= .

th ,

: he.filed with the Clerk of this Conrt und be made a part

of the records in these proceedings.

“be

“Wt is further ordered that a certified copy of this order

ved. upon each respondent herein. a

Jt,is further ordered, adjudged and decreed that this

caike is held open for such other and further® Order'®

Judgments and Decrees as may be necessary if: the prem- _

_[fol. 14] ises, » including ° modification of this. Order ‘for

_ immediate possession, if good cause be shown that this °

Order for immediate possession should be modified.

Entered. this 21st day of November, 1942.

J yee J. A. Doxouor, <8

| United ‘States District Judge.

‘[fol. 15] The Hinde: The ‘Attorney General,

_ Washington, D. C.-

Dear Mr. Attorney General: |

It is necessary and advantageous to the interest of the

United States that certain property known as the Kimball

_daundry, located: at 1504 Jones _ Street, in the City of

Omaha, County of Douglas, ‘State of Nebraska, be ac-

_” purposes. - Ji tee

be. __ Therefore, pursuant to-the provisions cint contained in the

Ct 0

we. Seen

quired by. the United States of America for military

ongress approved August 18; 1890 (26 Stat. 316),

- as amended by the Acts of Corigress approved July 2,

1917 (40 Stat. 241), April,11, 1918 (40 Stat. 518, 50. U

S. C.. see. 171), and March 27, 1942 (Public Law 307—"

77th: Congress), which Acts authorize the acquisition of

real and personal property for military or other war

purposes, and the Act -of Congress approved July 2,

. 1342 (Pubiie Law. 649—TTih Congress), which Act appro:

priated funds for such purposes, it is requested that vou

cause the. necessary proceedings to be. instituted for the

condemnation of a term for years ending | June 30, 1943,

in the land. above referred to, together with the .right

in the United States, at the election of the Secretary of

War, to- use the property for additional yearly periods.

_thereafter during the existing emergency, as determined,

hy the ns and for the condemnation for the same

ue | Be eo ae

‘ ace e- . : oun ee \ rate o.

term of all personal. property located on said land and.

-.,used in connection .with the operation of the laundry o-

cated thereon, excepting, however, all delivery equipment

used in connection .withe the: operation of said lanndry.

‘The map, deseription and names of the purported owners’

of the aforementioried real and “personal property have

been furnished Mr, Joseph T? Votava, United. States At-—

torney, Federal Building, Omalia, Nebraska, by Mr. Clyde

Worrall ofthe Office of the Division Engineer, Missouri

‘River Division. reer oak taal ite Lis ees

The’ Act of Congress approved July 2,°1942, supra,“ap- —

_ propriated ‘funds to. acqtire the’ real and .personal prop-

erty under consideration. es ytd et te

The aforementioned real and personal, property. are to -

be utilized to provide laundering facilities for eertain std#-.

tions in the Seventh Service Cornmand, and the utmost

haste in expediting this project is vital to the successfyL. -

_ prosecution. of the war. It is reauested,: therefore, ‘that

+ pursuant tp the provisions of the Act of Congress ap--

‘proved March 27, 1942, supra, you procure from the Court

an order granting immediate possession of the aforesaid

real and personal property, °°): ete

* [fol. 16] An: appraisal Teport is being obtained under ‘-

the. supervision of Major Gordon Britton, the - Division ©

Real Estate Officer, Missouri River Division, Farm Credit —

Building, Room 539-208 S. 19th Street, Omaha, Nebraska,

- and the probable date ‘of availability ‘of the‘ appraisal re-

port can be obtained by your field representatives from

the Division Rea) “state. Officer. No arrangements. have’ .

been made by this Department for’ the procurement of

title evidence. It is also requested that you instruct vour _

. ’ apes A . ns ae

local representative to furnish a copy—of: the petition di-

rect to Major GiordonBritton. Bee Paes ore 7 3

' Sineerely yours, ra nry. L, Stimson, Secretary of War —_-

1 Wile Now. 64g FO sn ogy =

[fol. 17}» =~. RRR

at ss, _ Filed Nov. 25, °42 ae

This cause coming on. to, be heard upon the motion .of

“Joseph T. .Votava, United States Attorney in and for.

10. ‘ ae

the District of Nebraska, Aitionses we the Petitioner

herein, for-an Order of immediate possession, and of

the right to use and oceupy: ‘forthwith the property known,

as Kimball Laundry, said property being: more fully de-

scribed in the Petition filed herein, and upoti cotisidera-

tion of said motion and of the Petition in Conde TnAtiOn :

presented to the Court, and in consideration, of the ‘stat:

utes in such cases made and. provided, and ‘particularly: /

- Section 171, Title 50 of the United States € ‘ode, as amend-

ed, and it appearing to the satisfaction of the Court:

First: That the “United States of America is entitled

to acquire property: by’ eminent domain, including | the

.. righteto use and occupy real. and personal property, for

the purposes set out ‘in said ‘Petition’ in _Cendemnation ;

Second: That a Pétition was filed at the request of the

Secretary of. War; and that it was filed also under the.

authority of the Attorney General. of the United States.

Third: That said Petition states the authority - under

which and the public use for which said property is taken;

_that the’ Secretary of War is the person duly. authorized

and empowered by ‘law to acquire the property and the

right to use and’ocecupy the property, such as is described

_ In the petition -for military and defense purposes, and the

[fol. 18} Attorney "General of the. United. States is the

person authorized by law to direct the institution of sueh °

_ Condemnation Proceedings upon being requested by the

' Secretary of War to.do so. ,

Fourth: And it further appearing that on the ¢ het tn +

Petition in this proceeding was filed, it also appeared to

the satisfaction of. the Court that, bya letter dated No-

vember. 21, 1942, the Seeretary of War requested the At:

torney Aeneval: of the 17 nited Ntates to acmire he. Cm.

denination. the: rights. to use ‘and: oceupy. the. Kimball

Laundry. property located on the real estate described

in the’ Petition, together with all the personal’ propéerty

thereon and therein, and: used in connection therewith,

exception ouly delivery. equipment, and further requested

the immediat@ right of possession to so use-and occupy

said Kimbal} Laundry.

_ . : Ss .

a é : oe “ — ;

AEROS be as oak Ne eee a

Now, therefore, in ‘considérafion of the foregoing Sand |

whereas this Country is now at War, and the possession

of said: property and the right te nse and aéeupy the same

. is needed in order that the CGiovernment anay suecéssfally

prosecute the War-in whieh the Nation: is now engaged, ©

and proper showing having heen made to the Court’ of

‘the necessity of such immediate ‘possession and of the

necessity of the immediate ‘right to use: ‘and oceupy said

Wigs ots it is :

. Therefore, ‘ordered, _adjuiged ‘and “decreed that the

ii njted’ States _of- America, Petitioner herein have jmme-

diate_posséssion and _ : i

—~ »

‘(Same description as in Petition.)

(fol. 19] The possession of the. Pedtioner however, shall.

-he subject to: existing easements for public roads agd

highways, for public utilities, for railroads and for pipe

lines. The possession and the right to occupy and use said

property ‘shall begin’ on the morning of November 22,

1942, on condition that a copy of this Order shall be

served upon the respondent, ‘Kimball. Laundry Company

prior to the taking over of business of said property.

It is further ordered. that fer a reasonable: length of

time, the respondent, Kimball Laundry Company, through

its officers and representatives, shall have the. right. to

enter upon said premises within. reasonable hours and-

in the presence of the representatives of the Petitioner,

tov make an inventory of. the~various items of personal

- ~ property being taken over, with the right to use and -0c-

cupy the same bythe Petitioner, so that an orderly trans-

fer and a record of such transfer may be made by the’

respondent, Kimball Laundry ‘Company to the; Petitioner

. herein: ie

by’ Acts of Congress; has made cert4in and. adequate

It is further pon eae that mgt the Petitioner,

provisions for the payment of just compensation to the

party or parties entitled thereto, as hereinbefore fiofe.

fully set forth, it shall not be necessary that ‘the United

‘States of America deposit, or cause to be-deposited, any

. sum or sums of money, or other form of security of any

ee eee ee S,

ig : : »

mom

12 : . ' a

. . “ ' :

amount ‘or. naturk.for the purpose of securing the pay. .

ment of just? compensation to the party or parties en-

titled thereto. tatoe Sat: Be yhie eee

it is further ordered and directed that a certified-eopy

of the original-letter from the Secretary of-War to the

Attorney Géneral of the United States, hereinbefore re-

- ferred to, requesting the Condemnation Proceedings, shall _

be filed with the Clerk of this Court and be made a part »

of the records in these proceédings. , i ep ,

‘Tt is further ordéred that a certified eopy of this order.

‘be served upon each respondent herein. eee

It is: further ordered, adjudged and decreed that. this’

cause is. held, epen for such other and further Orders, .

- Judgments and Decrees as may be necessary in the pr&m-

[fol. 20] ises, ineluding modification of .this Order for .

_ immediate’ possession, if good cause be shown that. this

Order for immediate possession should be modified.

‘- Entered this 21st day.of November, 1942.

Served Nov. 25, '42/ -Signed U. 8. D. Judge.

: 4 fh : : ‘

-{fol.21] . MOTION TO EXTEND TERM —.

a ' CONDEMNED nce

: r 0h Wied Mas 11, "85. se se

Whereas, on November 21, 1942, there was filed herein

a petition for the condemnation .of an.estate for years,

ending June 30, 1943.0n the real estate described: in, Hx —

hibit. ‘‘A’’, attached hereto, and made.a-part hereof; and —

_ Whereas, an order for immediate possession was en-

‘tered in said cause on November 21, 1942 giving the. peti-

tioner immediate possession of said real estate; and ~

Whereas, ‘the petitioner,is tow, and has Been since “the

entry of said order, in possession of the: real-estate in-

volved herein; and i ca SIU ees oe

Whereas, the Secretary of War deems it necessary and —

advantageous to the interests of the United States to ex- -

tend the term condemned for an. additional year, ending -

- June 30, 1944, and, has elected so to doy and

Whereas, by letter dated April 20, 1943, a copy of which —

is attached hereto and marked Exhibit ‘‘B’’, the Secre-

. tary of War notified the Aitdérney General of such elec-

tion and requested that proper notice of such election be:

‘ : ka ce te

filed herein and copy thereof be transmitted to each ink

terested party; and -.- -. : ite epee Sy ge

Whereas, . the Attorney (ieneral, has instructed the

United States Attorney for the District of Nebraska. to

warfy out the request of the Secretary of War; and: « .

. Whereas, a notice, such as is referred to in Exhibit

_“*B"*, attached hereto, has been filed herein. - Se ESR SOE

Now, therefore, the petitioner moves the Court for 7 os

order extending the térm which was condemned in‘ said”

real estate and confirming. and extending the’ possession

thereof in. the United States for an additional year, en4-

ing June 30, 1944. .,¢@ ; : : y

‘ | "(Signed U.S. D. J if) iz

[fol.22].- :° EXHIBET «av. ay

_ The East Twenty-Two, Feet (EF. 22’) of Lot Seven (7),

and all of Lot Eight (8), in Block One Hundred Seventy-

One (171), Original City of Omaha, and a strip gne foot

-(1’) wide adjoining the aforesaid real estate on the North,

all of said real estate being in the Cit¥ of Omaha, Doug- -’

las County, Nebraska; .together with the improvements .

Situate thereon, and also all the-personal property located |

thereon. and «therein, and used in. connection with said

laundry, excepting only the delivery equipnient.

[fol. 23} EXHIBIT “B’” War Department Washington ° -

The ‘Honorable .. . os at ea pee

~, _ The Attorney Generai,

- - -~. Washington, D. C. e eee ©

Dear Mr. Attorney Gieneral: ~ -< °° Apr 20 1943.

Reference is made to the several condemnation pro-

eeedings which have been. instituted’ at the request of this’

Department to acquire ‘terms for years in vargpus prop.

‘erties for military purposes.’ i= : Eg

_ It is deemed necessary and advantageous to the inter- \_

ests of the United States to. extend the term condeinned. \

t June 30, ‘1944, since the use and possession of such ~ ‘

Properties will\be required for. military’ purposes for an

additional year. \ . ee See hs eae

- You are, therefore, notified. that I have elected to ex- %

tend the. term which was condemned. for an additional

i As | Ser

“s

~ . = a - .

; ey ae - : Pag? = ;

< 14 ae rg ° E . . = s

- y: pp , = ‘ ae .

a, F “/ ae <

year, ending June 30, 1944, in each of the condemnation

” proceedings listed in-the inclosed Exhibit “fA’’. It is re-

-. quested that you file a proper notice of this election with

the.court and cause’ copies of such notice toa be transmitted. -

to all intérested parties.

—— yours, Henry: L. Stimson, ‘Secretary of Ww ar.

[fol. 24) _ ORDER ON MOTION TO.EXTEND TERM .

Filed May 11, 743.

‘ Now on. tifis 11th day of May, 1943, this cause’ came ori.

_ to be heard on‘ the motion of the petitioner herein. foran-

~ order extendingy the — term condemned in. said vause, and

‘ the evidence, and was submitted :to the Court, and the

Court being advised i in the premises, finds:: __ on

That on November 91, 1942, there was filed herein A

petition for the condemnation ofan estate for years,

ending June 30,1948, on the. real estate hereinafter de-

scribed:and ° that on said day an order for immediate pos-

session of said real éstate was entered herein:

That by virtue of said order, the ‘petitione® has. heen

sincé said time and is now in ‘Possession of the real estate —

involved herein. ~~

That the Secretary of War. deems it necessary ated ‘ad:

-vantageous to the interests of the United States to ex-

tend the term condemned for an additional year, ending

: June. 30, 1944, and has elected so to do.

That the Secretary: of War. has requested the Attorney |

General, who has ‘instructed the United States. Attorney

. for the District of Nebraska, to file notice of such elee-

tion and to transmit a copy Thereof to each interested ~~’

_ party, and that Auch notice has been filed in. this pro-

” ceeding.

Wherefore, it is considered, aidevsd and adiudged that

’ ‘the terni in the real estate, described in’ ‘Exhibit et 4h

hereto attached and made'a part. hereof, which was con- -

demned, and possession thereof given petitioner in the. —

order entered~ on November 21,1942, be, and the same -

hereby is extended for an ailditional year, ending June’ |.

. 30, 1944, and the possession of the seascircee! of said real =

ge ? ee e e ie - ra

ORR OREN Sessile Se i RNS 8 8 hk teh os

SOBRE at Se

eres

a Ratt S

; ia. dees Weed Seen ate

[fol.25]° 7 9 RXHYBIT «ao |

22.).

SS BEEP BES 9 OT i

k ane .

(fo. 26), Nomen”.

; - Filed May 11,..’43.

- To: Kimball Laundry Company, a Corporation, and ‘Coun-

_ ty Treasurer of Douglas County, Nebraska.

You and each of you are hereby notified that the Sec- |

: retary of War deems it necessary and advantageous to

/ the interests of the' United. States to-extend the term con-

_ *. demned: in the real estate described in Exhibit “A” at-

_ tached hereto and made a part hereof, to June 30, 1944,

since the use and possession of such properties will be~« .

.. required for military purposes for an additional -year.

_ You are further notified that the Secretary of War has’:

- elected to extend the term which was ‘condemned in said

- real estate for an additional year, ending June 30, 1944. j

Dated this'11th day of May, 1943. a ennai

, at Dieu _ (Signed U. S- D. Atty.)

(fol. 27} EXHIBIT «an

- (Same description as in Motion and Order to Extend. 5 ae

Term, Folio 22.) de e

- . [fol28]- "Dated 68-45. Filed 6-19-43, -

. The Honorable, The Attorney General,’ = *

Washington, D.C... — es

* Dear Mr. Attorney General: .

3 Reference is made to the -condemnation proceeding en-..

", titled United States: of America vs. the Kimball Laundry’

Company, a corporation, et al, Civil No. 404, in the United ~

‘States District Court for the District of Nebraska, which:

t . 4;

"Was instituted to acquire a-term. for years in certain prop-" |

erty known as ‘the Kimball Laundry, Omaha, Nebraska.

‘ \

; estate is hereby confirmed and extended for a like periad, |

- ending. June 30; 1944, ; r a beets i a ae

{- tage <? ss (Signed U. S.D.-Judge.)

(Same description as in Motion to Extend Terni, Folio

wr ) rap

‘ultimate awoefd for said real and persenal property in-

eluded in this proceeding will probably be within any |

limits prese ribed by law as the price to -be paid ‘therefor.

In wittiess whereof, the petitioner, by its Secretary of

' War, thereunto authorized, has caused, this. declaration to

be signed in its name by said Henry E. Stimson, Secre-

tary of “War, this: the Sth day of June, A. D. 19438, in the.

City of Washington, District of Columbia. es

: Henry” L. Stimson, Secretary of War of the United States.

(fol. $13. SCHEDULE ‘A’? zi

_. The real property which is the subject miitter of this./

Declaration of: Taking aggregates”. 26 of afi acre, more.

. or less, situate and héing 3 in the County of Douglas, State.

of. Nebraska. A glescription .of the real property taken,

together with the name of the urported owner thereof,

and-a-statement of the sum estimated to be just compen-

sation fer the period Commencing November 23, 1942, and

ending June 30, 1943, is as follows:

: Description: | ; s.

The-East 22 feet of. Lot 7 , all of Lot 8, and. a ris Ce

land one foot peers adjojning the North side of said rea

estate, all in Block 171, @riginal City of: Omaha, Douglas ~

County, Nebraska, containing .26 ofan acre, more or less.

Name .of Purported Owner: Kimball Laundry Com-

pany, a Corporation .

Address of Purported Owner: Omaha, Nebraska 7

Kstimated Compensation from November 23, 1942, to

June 30, 1943: $30,140.00. prt’

The gross sum estimated to be just compensation for

the real property hereby taken, and for the condeinnation

of -the personal property, excepting all delivery. equip-

ment, used in connection with the operation of the laundry

jocaied on Said-real property, for the peripd commencing’

| November: 23, 1942, and mee June 30, 1943, is $30, 140.00.

10.

(fol. 33], JUDGMENT ON. DECLARATION

"tn “2. s. OF TAKING NO. 1 a

Filed June 21, *43, th rie

Now on this 21st day of J une, 1943, this canse eoming

on $9 be heard upon’ the motion, of Joseph T: Votava,

leche States Attorney in arid for the -Distriet ‘of! Ne

" raska, and Charles D. Hitch, Special Attorney, United

// States Department of Justice, attorneys for the petitioner:

*. herein, to eter judgment on the deelaration .of taking

filed in the above entitled cause on the 19th day of June,

_/ 1943} and for.an order fixing the date. when Possession

_, Of ‘the property herein described is.to he surrendered to

the: United States of Ameri¢a, and upon consideration

thereof; and of the condemnation petition filed herein, and

statutes in such-cases made and provided, and it appear-

ing te the satisfaction of the Court:

First: That the United States of America is entitled-to

acquire property by eminent domain for the -purposés as

~ Selous ‘and prayed in said = peer: |

Second: That a petition in condemnation was filed at

the request of. the Secretary of War, -the authority em- -

* powered by law to acquire the lands deseribed in said

petition, and also under authority of. the Attorney Gen-

eral-of the United States. ,

‘Third: That said: petition and’ declaration of taking

state the authority under which, and the publie use for

which said lands were taken, that the Secretary .of War

is the person duly authorized and empowered by law to

acquire property such’ as is des¢ribed in the petition for

use. in connection with the establishmeftt: of a military

laundry located in the ‘City of Omaha, Nebraska, and for -

such other uses as may be authorized. by Congress, or by

_ “Executive Order, and is required for immediate use, and

that the Attorney: General af. the United States is the

{fol. 34]¢ person authorized by law. to direct the institu:

tion of such condemnation proceedings.

Fourth: -That..a proper. description of the préperty |

sought to be taken, sufficient for identification thereof, is

set out in said declaration of taking. ee

Fifth: That said declaration of taking écntains a 5 state-

ment of the estate or interest in the said property ‘take n

for said public use,

Sixth: That .a plat showing the property taken is in-

. corporated in said declaration of taking.

Seventh: That a statement ‘is contained in eoia dec-

laration of taking ‘of a sum of money estimated by said

acquiring authority to be just compensation for said prop-

erty in the amount of $30,140.00 for thé period ending

June 30, .1943, ‘and that said sum was deposited .in the.

Registry of this Court for the use of the persons entitled

thereto, upon and at the time of: the filing of said decla-

ration of taking.

Eighth: That’ a statement” is : combina in said dec-

' laration' of taking that the amount of the ultimate award

of compensation for the taking of said property in‘ the

‘opinion of the Secretary of War will be within any limits

prescribed by Congress as to the price to be paid therefor.

Now, therefore, it is ordered, adjudged and decreed

that the title to: an estate for a term for years ending © -

June 30, 1948 in the property above referred to, subject,

; however, to existing easements for public roads and’ high- —

ways, for public’ utilities, for railroads and for pipe lines,

. together ‘with the right to-extend said term-for additional /

yearly periods thereafter during: the existing national

emergency at.the election of the Secretary of War, which

election shall bé signified by. the giving of notice at any

time. prior to the expiration of the term hereby taken, or.

subsequent extensions thereof, vested. in the United States .

of America upon the filing of said declaration of taking,

and the depositing in the Registry of this Court of the

amount of the estimated | Pt compensation, whith said -

property situated in- Douglas County, Nebraska is more ,

2» 8

particularly described in Scheduie **A’’, attached hereto |

and made a part hereof; and.

That said property is deemed to have ae aioe

and taken for the use of the United States.of America —

and the ‘right to just compensation for the property taken, ©

ffol, 85] - upon the filing of the declaration of taking, and .

making cf the deposit, vested in the persons‘entitted there- 4

» will

~~!

he eee ‘s Pe

to, and the amount ‘of dompensation shall be ascertained

and awarded in this proéeeding and established by judg- *

ment herein pursuant fo lay;and o-. ey

it is ‘further orderéd, adjudged and deeréed that pos- L

‘session of the/aboye described: property and of che buiid- «

ings and appurtenances thereto annexed, together with all

personal property located on said real: property and used

in conhection with the operation of. thé Jaundry located

in the City of Omaha, Nebraska, excepting all délivery

equipment, ‘shall be surrendered to the United Stites of

Aaneriea and its duly /authdrized agents forthwith.

It is further ordered * that this cause is held open for |

su further‘ orders, judgments and decrees as may be

necessary in the premises, ae :

Ds ase | (Signed U.S. D. Judge.)

{fol. 36]

Description: =

_-The East 22 feet of Lot.7, all of Lot 8,and a strip of

land one foot wide adjoining’ the North side of said real. -

estate, ail'in-Btock 171, Original City of Omaha, Doug-

” Jas County, Nebraska, containing .26 of ati’ acre, more

or less, tenet . rae ec 7 tts

The gross sum estimated ‘to be just compensation-for |

the real property hereby taken, and for the condemna-

tion of the personal property, excepting -all delivery

equipment, used in corinection with the operation of the |

laundry located on said real property, for the period.

commencing November 23, 1942, and ending June 30, *

1943, is $30,140.00. Cae

SCHEDULE “A”

[fol. 37]. - .-- ANSWER.OF .

| KIMBALL LAUNDRY COMPANY

; Filed Aug. 23, 1943.

= «Comes now the defendant and in answer to’ the petition

_ of the plaintiff alleges that: se

- 2 ; x ; ° ; : .

_. The defendant, Kimball Laundry Company, was incor-

| porated to own and operate a laundry and dry cleaning ~° —4.

‘ S.7.* ES |

business in-Omaha. It was so dofng.on November 21,

‘1942, and was the sole owner thereof.-On that date all,

its - property essential for its continuation in business was

condemned and taken from it. by the plaintiff. Its Jand,

and the-building and niachinery thereon, are referred to

in the petition. The going busin¢ ss of the defendant was

condemned and taken over hy plaintiff. when the land --

and building and machinery were taken. The entire busi-

ness.isenow operated by plaintiff. Said’ going business,

though taken by plaintiff and continuously operated by

it, is neither described nor referred to in the. petition.

The defendant had no other assets necessary for the

operation of its business, except those taken hy the plain-

tiff. The ptsintiff provided dtfendant’' with no money as-. |

compensation fer the taking of its property and made no

partial deposit: in @ourt en the purchase | price thereof.

On June 21, 1943, plaintiff tendered in court for defend-

ant $30,140 as rent to June 30, 1943. This’ defendant re-

jected because designated, as rent for temporary use.

“Cee | | 3

Defendant’s ‘property’ on: ‘November 91, 1942, was free

from all encumbrances, liens, easements, leaseholds, or

‘right td use any part thereof: by yany: other. person. All *

{fol 38] taxe8 were paid. The business was ina sound .

' financial conditions. Defendant owed no bills except the —

then eurrent accounts which it has since ‘paid. Thus, no |

_ other person has any interest in defendant’s property and — ,

defendant’ 8 s Tights in this case regarding the same.

oe Bee ere Leet

The defendant’s business at the time of the catia =

thereof consisted of a five-story brick, tile, and reinforced ~

steel, firenroof, modern building; fnlly eauipped with, all

- necessary machinery and supplies to carry on a first- class

" ‘general laundry and dry. cleaning business. ‘The bisinessS |

of defendant gwas ibeated upon a tract of land owned in: -

fee by defendant in the principal business district of the

‘City of Omaha frofiting 88 feet on Jones Street and 133

on South Fifteenth Street, with a net land area of 11,645

square. feet. The present premises. were especially “de-

signed and built in 1924 by defendant for its laandryean}

dry cleaning business. The business was heing conducted

_by defendant for such purposes on its premises When on

_ November 21, 1942, as above ‘stated, it was all condemned

‘ “and completely taken by plaintiff. © :

Upon that date defendant .was sérving the people. of the «

City of Omaha and surrounding community through these

facilities, and had-been continuously doing so.for many —

years’ last past. Its trade and consequent income were

“growing steadily. It had established ata laige expense -

customer’s routes throtighout the City of Omaha and sub-

urbs, which territory has a population of about 250,000. It

had built up at said time its trade and business with more |

_ ‘than 5,000 families, business establishments, and_ indi-_

_, Vidual customers. All these customers were denied fur- ~

ther service by. plaintiff¢when it took the business ox

said date. Fach and every customer of thé defendant

. enrolled, on its hooks on November 21, 1942, was ¢com-

_peled to seek laundry and dry cleaning sérvices else-

-where with competitive firms because of -plaintiff’s tak-

ing of defendant’s. business with all ffs facilities. De-

fendant. owned and had efficiently installed all the ma-.

[fol.39] chinery and equipment, necessary to profitably

/ earry. on .this’ business. This was all condemned. and

» taken by plaintiff. Defendant had established the priv-. ae

* ilege to go upon its customers’ premises and collect’ all.

' types of-laundry from them and bring the same to its

building, and there ‘service- the same and return . the

serviced goods ts~its owners. In addition thereto, many

hundreds of its” customers, aggregating about ]2-per cent

of its total volume, came to its building. anf’ delivered -

their property to defendant and called for the same when

the work thereon was completed. 3

eee eee , cae oS

Defendant's gross annual income from all its eus-

‘tomers was approximately $400,000. For the portion of ©

date te of ae

94°

the year 1949 prior ‘tothe taking the defendant's s “gTOSs

income was divided as follows: i

. Dry cleaning | . $ 78,130.70;

Household goods, consisting of blankets, ete. } 26,626.75;

Family washing:

Rough dry, 3 Creag ares 37 065.63:

+ Damp wash, 5 ae ae - «40,913.48 ;.

- Flatwork (aleonte and pillow cases) 28,727.13;

Finished fainily work (shirts, collars, ete. ) 45,635.34 ;

- Bundle work for individuals 109,736.92.

ae $360,835.60 ese

All of ‘this a ofitable to defendant on the

Pa dP ee VT: :

Plaintiff has replaced ‘its own Jaundry and dry’ clean-

“ing :customers for all those who formerly “patronized the

plaintiff. Plaintiff charges and receives pay for all of

-the laundry: and dry cleaning services that it, renders .

for. soldiers and all. other enlisted men in every branch

of the armed forces who may ‘desire such service: All.

these soldier customers personally pay plaintiff for their

laundry and dry cleaning. Said laundry i is likewise oper-

ated by plaintiff to clean blankets, sheets, ; illow cases,

_. towels, bedding, cloth coverings of all kinds and descrip-

tions, for army camps, army depots, and army -training -

centers in this community. Charges are. likewise made by. E

plaintiff and ‘collected from such army units for such-

{fol. 40] - services: rendered. Defendant -is informed: and.

believes that the gross income to the plaintiff from its”

continuous operation cf said busirrss is approximately ae

$30,000 p> ner month, Tt is growing im: -volome and -eaneé.

. quent profit to the plaintiff. The gross cash invome from

the going business as operated by the plaintiff is approxi-

mately the same as when operated by defendant.

VUI-[Vil} ~

These farts are recited to show that plaintiff desired |

- - defendant’s assets condeifred, and acquired the same as |

oO i

. : . o . - Or

“ * ‘ at) ‘

a going business’ Defendant Alleges’ that plaintiff is now

attempting {o, pay rent. therefor as Just compensation

and offers, by separately estimating the value of ‘laidy

-o - building, and machinery, to pay defendant rent therefot.

based upon an estimate®, percentage: of the separate

(

- valuations. -This plan -defén®ent -alleges is without stat-

utory authority and is in ‘violation of defendai.t's rights

under the Fifth Amendment: to tte Federal Constitutimn,

which insures defendant fuli payment for the fair, reason-

. able market value of all-its--propert?’ On the day of its

| ; *

ois. eens e - VIII. oe ete

Over a-period of many years under the skilled direction

of Harry A. Jacobberger, its President, his. brothers and

, . Sons, and other employees whom they- had_ trained, its

trade hadgbeen favorably built. The edst of so doing

was great; the beneficial results reflected in its increasing

volume of business each-year.- These skilled and trained

employees. numbered 185; about 30 addition[al] persons,

whose “duties required less “skill, worked for defendant.

- at times as.needed, The plaintiff took over and employed '

at the outset almost-all of the skilled employees, including

managers ‘and foremen' who were in charge for defendant

at the time of the taking. This was done: by piaintiff to

insure the continuous operation of: the defendant's busi-

hess by the plaintiff. As time went on after the taking,

many .of the most. skilled. employees joined competitive

” . firms. ‘These skilled and long trained employees have been

= vee eee tnd be plalnpit with less skilled employees.

. ]

who are capable of handling the large volume of rough

laugdry and dry cleaning required by plaintiff in its

operations. — « sowie r Sr OOe peice ame

“ Serene Bee

Defendant’s trade name, ‘Kimball Laundry Company, *’

established by advertisements in Omaha for many -years,

became valueless to defendant upon the taking. The ma-

0 ree ates

chinery and equipment is suffering hard and unusual use -

_ by the plaintiff because it operates in two shifts of eight.

hours in each day in parts of the plant, instexd of one

ln olla 1 Oia nn

A ty 7

eight- hour day‘ throughout ta ie plati

as when operated by

defendant. : |

The long-established’ telephone iipmber used and adver-:

_ tised. extensively with the nague, ‘Kimball Laundry,” has

” heen discontinued’ by plaintiff and. its gwn telephone num.

bed substituted. The taking rendered same valueless

to defendant. | Bas Fo ae ice See

: ree ee

tie of the taking by plaintiff at sajd timé ‘er all of

defendant's hiisfiivss—assets, defendant. waS damaged on

November 21, 1942, in at least ‘the amount of*$949,979.40.

This sum allows a credit to plaintiff of the sum of $34):

875.50 which-the plaintiff has: paid to the defendant ‘upon

plaintiff’ s statement of the market value of all its laundry

‘and ‘dry cleaning supplies, stich as ‘soap, chemicals, but-

tons, thread, cartons, paper, wrappers, grease, oil, re-

placeable parts of machinery, andssimilar items on hand

on November 21, 1942. These - supplies were necessary,

for the continaous running. and operation of the business -

by plaintiff and were taken by plaintiff to insure that

result. The amount paid therefor is not in dispute, but

the. defendant allegés it is entitled to 6 per cent inte rest:

on said $34,875.50 from November 21, 1942, when taken,

to the Sthaglay of ‘July, 1943, when the payment was made,

heeause by law ‘provided. : As aia LE oe a

: | e

‘Said sum of $949,979.40 results also-after a er redit of

$15,000 is given, which sum defendant estimates to be the

{fol.42] fair, reasonable’ market vagie ' of twenty-five.

‘Kimball Laundry’? trucks which were in use by the de-

fendant ir its business: and which were rendered of no

avail to the defendant when it was deprived of. its busi-

ness. Said trucks were left with defendant and excepted

in the petition as ‘‘delivery equipment’’cat the time of

taking by plaintiff, because plaintiff used the U.S. Army

trucks for its deliveries. Fifty-four extra tires from the *

“Kimball Laundry”’ trucks were require “a, because of the

bd ya

*- taking, to be surrendered. to the “Defense Supply Cor. ’

poration,’* which paid defendant $145.10 therefor, Credit

has likewise been. given for this sum./Said three items

offset from the total valuation on November "21, 1942,

aggregate $0,020.60, and te that @xtent reduce the sum

dué defendant as the fair, reasonable: market, value of

defendant's property wher condemned and taken by the,

- + plaintiff on Nevember 21; 1942. to the sum of $949, 979.40.

Cece ay be

;

The defendant alleges it is entitled to be paid this sum

as the ‘balance ‘of the just. compensation for the taking,

with 6er cent interest thereon from said. date to the date

af payment, because by law so provided.

“XU

" ‘Deferdant alleges that. any other plan than full pay-

ment in money. to. defendant as just compensation for ihe

fair, redsonable market value of defendant’s basiness on‘.

the “date of taking, would result in depriving defendant

of its property without due process of law in violation

of the applicable cluuse of the Fifth Amendment to the

Federal | Constitution. me

XIV ;

Defendant further alleges that plaintéf sought - toca.

prive defendant of its property without due process, of |

law contrary to said Fifth Amendment, when it, tendered

to the Clerk of the U nited States District Court for. de;

fendant’s tse and as full and adequate conipensation, on

the 2ist day of June, 1943, the sum of $30,140.00, which

plaintiff, alleged in its tender was rent. for the , “tempo:

rary use of land, building, and. machinery,’™-beginning on

(fol. 43] the 22nd day of November, 1942, and, ending

‘on June 30, 1943. At the time efits tender the plaintiff

. extended. ‘its right to. possession and_ operation of said, .

business to June 30, 1944, with authority in law iv eoi-

tinue thereafter. Said sum deposited for rental defendant

alleges was based upon no statatory authority; nor was

sdid sum as tendered based upon any agreement or ¢on- -

sent of. the defendant to: permit plaintiff to temporarily

use its property and pay rent therefor. Consequently,

; the tender, of “rent.” i is rejected nana The plain. ;

ee Sa Bene

ee ie eae ote oe eat eee ea

tiff has been and now is in full possession and ownership’

of all the business assets of defendant, and is operating

by virtue the reot the laundry and. _dry cleaning establish-

meént formerly owned and operated hy defendant. There-

fore, defendant alleges it was and is entitled,to be paid

the full value thereof as a going concern on the day of

—— .

a ox vere % J

_. Defendant further alleges that under the provisions of :

Bee, 171, Title 50 U.S. C. 2 p. 121, the Seeretary-of > ~

War was authorized. to patios Th tiny ‘land or ‘‘tempo- — ,

rary use thereof or other. interest therein or Tight per- |

taining fhereto, needed for the site, loeation, construc-. 4

tion, -proseéatior of works for. fortifications, coast, de-

™fenge, inilitary training camps, ete.’’ Nowhere in said —

ofiginal Act was the Secretary of War- empowered to a... @

quire a going business and pay rent for the same in the. |

absence of a voluntary agreeme:t with the owner. The —.

words, “temporary use,’’ referred to in said Statute en- * ?

. abled the Secretary of War to aequire a lease or a ‘‘tem-

porary use’! that the condemnee may have had in prop-—

erty or some part thereof that was needed by the con-

aaa - " api eA Sh sacar 3

XVI 4

A Defendant further alleges that in the ‘amendment. to-

said Sec.\171, Title 50 U, S. Cv AL, Poeket Pait for use 3

during 1943, p. i81, passed’ on March 27, 1942, as Nec. :

632 under the title of ‘*Real Property for Ww ar Purposes,”’

. the term, ‘‘‘resil property and all interests therein,’? was

amended. to read, “together with any personal property

located thereon or used therewith.’’ Defendant alleges that.

(fol. 44] in said ainendment there is no ‘authority: ‘giver

piaintii io pay rent {or real estaiv mind personal prop- :

erty located ‘thereon or used therewith without the own- —

er’s consent. This amendment, upon which plaintiff rélies

“in its petition, required, upen condeynnation, full pay.

for any end all property acquired at.the fair, reasonable

market sdlue. thereof, with provisions enacted ‘in- other

sections that. after its ownership 7 the government was

| = 29

‘no longer required, the plaintiff in- the condemnation |

‘proceedings or the Presigent of the United States was —

authorized to sell the property back to the former owner:

at its fair, reasonable market value at thé*time of- its

- return. (Sec. 722, Title. 50 US. C..A., Pocket Part for

use during 1943p, 199, Ch. 445, 55 Stat. 749. Amended-

as to limitations ‘to December 31, 1944, and. thereafter.

until the duration of- the war, See. 645, Title 50 U.S.

- ©. A, Pocket Part for use during, 1943, p. 195, March .

\ 27, 1942, and as amended on June 5,\1942, See. 775, Title:

. 50 U.S.C. AL, Pocket Part for use during 1943, p. 205.)

_ + These statutory provisions provided the exclusive remedy

_ . for the measurement. gf the net and final results to the

plaintiff for the condemnation. (See. 632, Title 50 U.S. ore

- C. Ay 1943, p..181.) © 7 :

‘ Defertdant further alleges that. Sees.’ 257, 258, and

+ 208(a), 40 U.S. C.A., and the Nebraska Statute in refer-

ence to condemnation, Ch, 83, Art. 16, C. S. N. 1929, pro-

vided the procedure. Nowhere therein is provision made.

for measuring the. basis for rental of property owned

in fee by a defendant without mena owner’s consent.

\ ‘

; Tn the absence of consent, condemnation and outright ~

_, purchase and payment of the fait, reasonable market ~

value at the time of taking is -the procedure provided.

ee ee _ XVII. ais a

Defendant further: alleges, as hereinabove: stated, that

the defendant held no ‘‘temporary use’’ to any part of

any of the property taken by plaintiff. Defendant owned -

its property outright and was’ operating it in- unison as

a going concern in a. specialized business. The plaintiff’s

condemnation was -not-of. a ‘‘temporary use of real es-

ifei:45] taie or personal property iocated thereon or:

_aMsed_ therewith,’’ because the defendant’s ownership

therein was absolute, not temporary. The property was -

all parts of.a going business concern then owned out-

right by defendant. Defendant, therefore, had fo “‘tem-. -

porary use’’ of the property acquired by plaintiff. The

condemnation that took place upon the filing of the peti.

~*~

Sia we

tion veselted in the acquiring’ oft defendant’ s title to all

its business assets by plaintiff, for which de fendant shalt

be. paid the just compensation therefor. as prov ided in

the said Fifth Amendment.

' Wherefore, the defendant, Kimball See Company, :

a corporation, grays that it be. awarded judgment in con- -

' demnation against plaintiff for the fairs reagdnable. mar-

ket value of ali cf. its property as a going’ concern ac- ~

quired, - - appropriated, destroyed, rendered — valueless, or

damaged by the plaintitf as of November 21, 1942; that

said sum be. fixed ahd deterniined - to be not less. than

$949,979.40; that plaintiff be allowed eredit for $34,875.50

for supplies. paid: for by plaintiff to defendant, and be

allowed $15,000..as the fair, reasonable value of th

Z plaintiff at the time of. the’ taking, and be allowed $145 .10

for extra tires for said. trucks, taken and paid for by -

twenty-five motor vehicies left w ith the defendant by hie

the ‘“‘Defense Supply Corporation” — -all-of which offsets

aggregate $50,020.60; that judgment be°rendered for at

| _ least the balance of $949,979.40; that the defendant be

_ awerded 6 per: cent interest on at least $949,979. 40 from P

- November 21, 1942, until paid, an

‘terest on $34, 875.50 from Nove

____1943;'and for such other a

tso judgment, for in-

‘further relief to which the

defendant may be: entitl

expenses incidental to these proceedings, for whie h dJudg-

ment is prayed accordingly.

The'defendant further prays that in the event the ap-

praisers fail to find at least said net sum of $949,979.40°—

with interest as just compensation to be paid defendant

[fol. 46] for-its property, thén upon appeal to this Court:

judgment may be granted for at least said sum, together .

with interest. and the accruing costs and the expenses of.

—_ proceeding:

KIMBALL Lavwoar Comeere: act orporation,

(Seal). : By H. A. Jacobberger, President

~ William J. ‘Hotz, Hotz & Hotz, by Wm: JJ. Hotz, Attorney: 3

~»

for Defendant, 153625 City National Bank Bldg., Omaha,

, Nebraska.

er 21, 1942, to July. 8, -

, together with all costs and’

Bi ar areeln’. * vt $F, i i

Dei ES RAO ee BES wc kitagt eo Se IG a

Sekai gh Sie

wh Peeks Bia ale GPO N ERR AS.

el eee re) Ser oe aon ge ee nee

odie:

Be sve

’ In the event an unacceptable award is made by the ap- -

_ praisers and said -canse is appealed to thé Court, jury

-- trial is demanded. -- ... eas

Psy sera Weed. Bors! Attorney for Defendant

: Service acknowledged‘ and 2 eépiés hereof received on

Aug, 23d, 1943, fo Vea eer See em ee

Joseph.T. Votava, By Emmet L. ‘Murphy, |

yo. Asst. U.S. Atty., Att’y for. Petitioner

[fol 4a} MOTION.

ey - Filed Sept. 16, °43.

_.. Comes now“the

Attorney, United States. Depe ent of Justice, one of its

attornevs, and Moves the Court for an order appointing.” °.”

. SIX ‘appraisers as prayed/for in the petition led heréin. |

. on November 21, 1942.

Signed U.S. D. Atty.)

_— [fol, 46b]” ORDER APPOINTING APPRAISERS

Filed Sept. 16, 1943. :

Now on this 16th day of September, 1943, this matter *

coming on'for hearing on the motion of the petitioner for.

_ the appointment ‘of appraisers in. said cause, and the

/ Court being fully ~advised in: the prentises finds -that the

rf necessary parties respondent. have’ been ascertained and

_ that this proceeding may now go forward by the appoint-

Thent. of appraisers, the giving of notice,‘and the assess!

. ment of the compensation due to the interested parties.

> In. cousideration of the premises, it is considered, :or-_

dered and adjudged that the following persons who are | -

_ disinterested freeholders and Yesidents of the State: of

Nebraska, and not more than two of whom are residents

of Douglas County, Nebraska, be and they hereby are ap-

. q ” > at 7 : = 2-x! e. * .

pemfted- appretsers—of-the talae ofthe estaie iaken, as .

described in the petition in this cause, and as appraisers

of the just compensation due to-the. owner of the

property ey ge

I. J. Dunn, Omaha; Douglas County, Nebraska. ;

E. KE. Gilmore, Omaha, Douglas County, Nebraska.

‘Wiliam H. Snith, Seward, Séward County, Nebraska,

_ Jean R. Kinder, Liticoln,, Lancaster County, Nebraska.

petitioner, by “harles D. Hitech, Special

‘

Pad : : - ower r

5) ‘ . tate Sa rae

82 , ea'y tr?

. a “ a y*

mR Ff Steinauiye, Beatie e, Gage tic: Nebraska. :

_ William Robertson, Plattsmiouth,- Cass ‘County, _ Ne-

' braska.

“Itis further ordered that each of said appraisers niimed

‘shall -be allowed as compensation as such appraiser the

-sum of $50.00 for each day, or+part ens for services

. rendered,eplus mileage, and that such s

‘ include the personal expenses of said. appraisers.

1 allowed, shall

--It is further ordered that the-Clerk of this Court be’ and

she hereby is directed immediately to notify by registered

[fol. 46ce} letter the said i ppraisers appointed herein, di-

recting them:to meet ‘at the premises’ involved on the 21st

day of October, 1943,-at 10 o’clock A. M., said date being

not less. than thirty (30) days ‘nor more than forty (40)

‘days after this date..

It is further ordered. that the Clerk of this Court: give

"notice by registered letter, not less than fifteen (15) days ~

- prior to the date of-the meeting of the appraipers to the

respondents hereim. -

It és further ‘ordered ‘that, if a copy of stich notice is.

properly served on the respondents herein at least. ten

_ , days before the meeting of said appraisers,. the same shall

be sufficient in arty event as to said respondents.

It is further ordered that the- ‘appraisers shall inspect

and view the. property involved on the day appointed in

the notice for thefr. first meeting, or on. any’ subsequent

after hearing all i

terested parties, the appraisers shall ~

day to which they fee adjourn their first meeting; and |

just compensation due fo. the respondent herein, as the

ownet of said property, and shall make a-report of such

‘. assessment-and compensation.in writing, and file the sanie”

- with the Clerk of this Court:at Omaha, Nebraska, setting

forth therein the number of days on whith they were

- actually engaged in the appraisal of said property, which

shall include the hearings conducted. with reference to said:

appraisal and said report -shall be filed within thirty (30),

days after the'date of their meeting at the premises in-

tren ee

7 volved: herein. ka a (Signed U, S. D. Judge.)

“assess the value of*thé estate taken therein, and also the:

a en a re eee ee

. 7 “

aMbate area ouhonite Vda ee

BOSD, Die

/ mamma e/a,

:: i Filed Sept. 17, 1943. Paks ey

_ To: Kimball Laundry Company, a @orporation, and Coun-

spondents., . ’ | ;

" Yon, and each of you, are hereby notified. that thé

United States of -Ameriéa, as petitioner, has instituted.

an action in the United States District Court: for the

District of Nebraska, Omaha Division, against yoy,

_ and:each of you, the object and prayer of which action

is the condemnation’ of ‘the right to> use and oceupy all

of fhe real estate, and appurtenances, and personal. prop-

erty of the Kimball Laundry Company, located at 1504°_

Jones Street, Omaha, Douglas County, Nebraska, more

_ particularly described ‘as’ follows: ‘

~ (Same description as at Folio 22.) ~

-. “ty Treasurer of Douglas County, Nebraska, Rey

You are further notified that the Court: has appointed ;

a Board of Appraisers to meet at the premises. herein-

ing said’ property; and for determining the edmpensatigi

to. be due and owing to each of the persons who are oyfrers

. of, 6r who have an interest in said property, or any part

thereof. That said Board of Appraisers will meet at said

premises at 10 o’elock A. M., on the 21st day of October,

1943, to inspect the property involved;‘to appraise the

same, and © SY gh am very an

[fol. 46e] The undersigned further take oath that they

€re‘not intefested in the outcome of this proceeding, or ;.

in a like question, and that théy will, to the best of their.

_ ability, faithfully and impartially assess the value of said

property, and also the just compensation to which the

respondent is entitled as the owner of said’property. by. -

reason of the appropriation thereof, and that they will

. make a report°in writing of such assessment and ‘¢om-

pensation, stating the number of days on which . they

actually engaged in the appraisement of said property,

and fixing said compensation; together with their mileage,

and that they will do and perform any and al] other acts :

required of them, as such appraisers, accordin g to law and.

the order of the Court.

&.-

. : Y

above described for the purpose of viewing and apprais- ae

34 1:

bibs e pie cried and acknowledged by et each appraiser.)

lrol. 468} } ‘Cnited States of America, District of Nebranke

E. Mons A. Mullen, Clerk of the United -States District

C ourt- for the, ‘District. of Nebraska, do hereby certify that

_a trne copy of Order Appointiig Appraisers. and Notice

of> Meeting. of Appraisers was mailed by. me:-to the fol-

lowing (To each appraiser and each party.) -

Filed Sept. 18: °43, and Signed by €lerk U. > D.-C.

°” Efol. 46h) pts NOTICE

i Filed Sept. 22, 1943

To Kimball Laundry. Comp ane -a, Corporation, ‘ana.

County Treasurer ot Douglas County, Nebraska, Re-

spondents. : :

You, and each of you, “are! “hereby * notified that the -

“United States of America, ° as petitioner, has. instituted -

an action in'the United States District Court for the Dis-*.

trict of Nebraska, Omaha Division; against you, and eaeh

of you, the object. and prayer of which action is-the con-. —

demnation of the right to use and oceupy ‘all of the real

estate, and appurtenances, and personal property _ of the.

_Kimbal Laundry Company, located at. 1504 Jones Street,

Omaha, Douglas County, Nebraska, more parti icularly de- ii

scerihed as follows:

yg Sones ard

The Kast Tirenty-Two Peet (F222) of Lot Seven (7), 4:

and all. of Lot Eight (8), Block One Hundred Sevejity-

One. (171), Original City of Omaha, and_a—strip one

foot wide -adjoining’ the aforesaid real estate on’ the |

North, all. of. said real estate being in. the. City of

Omaha, Douglas County,: Nebraska, together with the

impeyvements situate. thereon, and also all the .personal

* property located thereon and tlierein, and used.in epn-, |

nection “with said laundry, excepting ee: the delivery

equipment. oe , "e

You are further stifled that the Cénit has appointed

a Board of Appraisers to meet at the premises herein-.

above described for the purpose of viewing and apprais-, |

ing said property, and for determining the compensation

to be due anid owing to.each of the persons who are own-

ers of, or who have-an interest. in said property, or any .

‘part thereof, That said Board of Appraisers; will meet

-at said premises at. 10° ‘o’elock A; M., on the 21st day

of October, 1943, to inspect the property involved, to

appraise the Kame, and to asSess the compensation due .

* {fol. 46i]:. to the owners thereof by reason -of the t taking,

and condemnatisir of said property by the petitioner.

Thereafter, the Board of. Appraisers may adjourn to an

appropriate place for. hearing of aly evidence to be sub-

mitted.

‘You, and each’ of 3 you, may appear at the time and place

designated, or at the time and place tow hich said Board

of Appraisers may adjourn, and present evidence as to

your interest in, the property involved, and the value of .

such interest therein. This proceeding is by way of con-

demnation, as provided for by law, and a petition for

_ such condemmation i is on file in the ‘office of the Clerk of

‘the United States District Court at Omaha; Nebraska, and

the details of said condemnation are set forth in said

' petition, which, by reference, is made.a part of this notice.

_, Dated this Ist day of September, 1943.

: (Signed U.S, D..¢. Clerk.)

- (Receipt of copy: sgl gems biranses Sept. ‘21, 1040. rs

ri Filed Oct. 21, 1943.

—

“Tfol: 46j] OATH OF APPRAISERS a : ney .

ue Coun-°

The ‘indaslishod. I. J. Dunn, of: ‘Omaha, Doug]

_ty, Nebraska, E.. E: Gilmore, of Omaha, Douglas’ Couuity,

_ Nebraska, William H. Sinith, of Seward, Seward County, -

“Nebraska, Jean R. Kinder, of Lineoln, Lancastér County,.

Nebraska, G. W. Steinmeyer,. of Beatrice, Gage’ County,

Nebraska, and William Robertson, of. Plattsmouth, ‘Cass’

County, Nebraska, appointed ander an-order of the Court”

heretofore entered’ in said cause to- assess the just ecom-

pensation. to. the - -persons entitied thereto, for ihe. taking

by. the petitioner of the real estate and appurtenances, to-

gether - with” personal property, ‘located at 1504 Jones —

"Street, Omaha, Douglas County Nebraska, more capa

‘ularly described as: - 3

The. Kast Twenty-Two Feet { 29") of Lot: Seven (7);

and all of Lot Eight, (8), Block One Hundred -Seventy-

—

One (171), Original City of Omaha, ‘and a strip one.

foot wide adjoining the aforesaid real estate on the

North, ail of said real estate being in the City of

Omaha, Douglas’ County, Nebraska, together with the

improvemerits: situate thereon, and also all ‘the personal

property located thereon and therein, and used in con-

nection. with said: laundry, excepting only the delivery

» equipment,

The estate sought to be taken. for said public use heather

“a terminable -estate ending June 30, 1943; and at-the eleg

x “oe of the Secretary of War for additional yearly periods

‘ter for the duration of the present. emergency,

being first duly sworn,: take oath*that they are resident

freeholders in the District of Nebraska; that their re-.—

speetive residences are as ‘set forth herein, and that only

two of-.said appraisers are -residents of ‘the county in.”

which. the property involved is located.

[fol. 46k] ‘to assess the compensation due to the owners

thereof by reason of the taking, and: condemnation of said

property by the peitioner. Thereafter, the Board of Ap-

praisers may adjourn to an appropriate place for hearing

.of any evidence to be submitted.:

You; and each-of you, may appear at the time and

place designated, or at the time and place to which said °

Board :of Appraisers may adjourn, and- present évidence

~ as ‘to your interest in the property involved, aiid the value

of such interest therein:~ This proceeding is by way of

condemnation, -as provided for by. law, and a petition for

such condemnation is on file -in the office, of the Clerk of

the United States Distriet Court at’ Omaha, Nebraska,

and the details of said coudemnation are set forth in said

petition, which, by reference, is made a part of this notice.

‘Dated this 17th day of September, 1943. )

eat (Signed: Clerk U.S. .D. C.)

[fol. a RE PORT OF APP R AISE RS

cts “Filed Nov. 19, 1948, |

W e, the undersigned Appraisers, make our report as

foiiows;

That heretofore by. an or der of this Court the: under-

signed. were appointed as ‘six appraisers to view the. prem-

. . ; : : - . ad ¥

ines hereinafte 4 deseribed, amd to hear the evidence of

the. value thereof, and to ascertain the full compensation

due the® owners therecf hv FeASON, int the taking and, ap-

_. propriation by the- United States of America of the use

and oceupaney of the following described property, to-wit:

The Kast Twenty-Two Feet (Ee 22’). of Lot Seven (7),

and all of Lot Eo ight (8), Block One Hundred Seventy:

One (171), Original City of Omaha, and a strip- one

oot wide ‘adjoining the aforesaid real ‘estate on thes °

_ North, all of .said real-estate being in the ‘City of

Omaha, Douglas County, Nebraska, together with the

improvements situate thereon, and: also all the personal

_ property located thereon and therein, and used in con--

nection with said laundry, excepting only the delivery:

equipment. ss a

Said property to be taken for a “public use for the period

Sind by the order aml supplemental order of the Court

heretofore entered herein. » | ae a “s

We, ‘the undersigned appraisers, being disinterested

tesident: -freeholdet ‘s-of the District of Nebraska, and only °

two of us being residents of Douglas County, Nebraska,

in which said County said real estate and personal prop-

erty is situated, and none of: us being interested in the

-same, or like questions, as are presented in. this-eiuse

of action, and we, the undersigned jivestigating Board of

Appraisers, to assess just compensation ‘for ‘the taking.

of the use.of the froperty above described for the term

fixed in said order and “supplemental order, and to view

the property hereinbefore described, have heretofore made .

and executed our written oath as appraisers that we will,

to,.the best of: our ability, faithfully’ and impartially as-

sess just @compensation- for the: property appropriated,

Which oath was duly taken and subse riled to and sworn

_ to, as more fully appears in the files of this cause.”

[fol 48)" We, the undersigned appraisers, further report.

that due and legal notice, as prescribed by law, was given

to all. partios having or claiming to have any right, title

or interest in and to the property hereinbefore described.

ati} of which fuiiv appears by ‘the liles in this action.

am ©

‘

38 E

We, the said appraisers, further report tliat as required

by the order of. this Court, and as shown in the. notice

. to all parties herein, met on sakl premises at 10 o'clock

A. M. on the 2ist day of October, 1943, and proceeded to

view the property: heres involved, as hereinbefore de-

scribed, und aftér having examined: said: premises, we

preceeded to hear the testimony of all parties, and after

-having given all-parties the right and opportunity to in-

_ troduce evidence and to be heard.on the law and the facts

with reference to the claims involved’ in this case, and -

' particularly as to the value of the use of the property .

sought to be condemned, de hereby duly make and-enter -

this award on the-date hereinafter: set forth. |

We, the undersigned appraisers, find that we have

rurisdictjon of all the parties and ‘the subject matter of.

this action; that We have camptied with all provisions

_ of the law and the’ orders of the @ourt entered herein |

_appeinting us as such appraisers. We, the said apprais--

ers, find that the just compensation for the value of the.

use wf the premises taken by the United States of America

is the sum of $74,940.00 per annum, or the sum of $6,245.00 |

. per month; and ‘we find that said monthly rental-was pay-

able on the 21st day of each and every month, commencing

on the 2ist day of November, 1942, and.that all delin- —

quent monthly rentals shall béar interest at the’ rate of

five per cent per annum until paid, to be paid said re-.

spondent, Kimball Laundry Company, by the United

States of America. . - °«- Sim matte se

We, the said appraisers, hereby further report that the.

-mndérsigned appraisers recognize that at the time of the

return of said property to the respondent there will be -

a damage fer the ¢oss of patrons, but ‘a majority of said

Roard find that the same eanhot at thie‘time he appraised,

.and‘that this Board ha& no jurisdiction to anticipate such

damage. : | 3

We, the said appraisers, further report to the Court

that we have spent the time and traveled the number of

iniles in making the appraisal of the above deseribed

property in the amount and number of days and mileage:

set forth opposite our names herein: Aes se

@ . 2

nN toy ae lec sit Ue Seat eens

[fol.49} “Omit time schedule. 8 days each.) -

_> (Signed by each appraiser.) SRT ee. Teer

®F fol. 00] ae NOT 1e I OF APPEAL

Miled Dee. t, 1943.

To: Kimball Laundry: Company, : a. Corporation, and

County, Treasurer of Douglas County, Nebraska.

You are hereby -notified that the’ petitioner, the United

States of America, hereby appeals from the award of

the Board of Appraisers, the original of ‘which award

was heretofore filed in this cause on the 19th day of 'No-'

vember, 1943, being. the Report of Appraisers. Said re-—

. port was’ filed in. the office of the Clerk of the. United

States District Court in and for the District. of Nebraska, pes

Omaha Division, and awarded Kimball Laundry ompany |

the sum of $74,940.00 per annum or the sum of $6,245.00

per month, with interest on all delinquent monthly rentals

at the rate of 5% per annum until, paid, as rental.

You are further notified that petitioner appeals ‘from

each item of said award. ~ ;

You are further notified ‘that ‘this appeal will. be set for

hearing ai the next term of the United States- District :

Court. in and for the District ‘of Nebraska, Omaha. Divi-

sion, trial will be had and’ such proceedings taken as by

law provided. : * ©

(Signed U. S. D. Atty.)

ete ack, Dee. I, °43, by Attys. for Respondents.)

“ Tob 1] - NOTICE OF APPEAL

° Filed. Dee. -11, 1943.

‘Te: The U nited States of America and its Attorneys of

Record, Jose ph ii? Votava, United States. District At.

torney for the Disiricit of Nebraska, and Charies Dp.

Hitch, Special. Attorney, U" nited a Department of

Justice, . 3

You and each of you are hereby notified that the above

designated respondent, Kimball Laundry Company, a cor-

poPation, files.this its appeal from the award of the Board

on Appraisers appointed by the United States District

Court, as shown in the report of the’ appraisers in the

407

records and files inathis cause, which report and award

was filed herein on the 19¢h day of November, 1943, for

the reason that the‘said -respondent is aggrievel hy the

findings, conclusions, and. awards of said appraisers in

that ‘fhe samé are contrary to the facts and the law. in

sucil cases made and provided. Respondent. will seek |

hearing at the earliest time and -term available, or at

ie the next term of the United States District Court in and

for. the ‘District. of Nebraska, Omaha Division, wherein

trial and hearing will be had and the errors in said find.

_ Ings, proceedings; and award of said appraisers will be

corrected and proper judgment and ordeis entered, as”

in such cases made and prowded. Respondent -will also -

. seek the assessment of its costs, expenses, and interest

at 6° per cent against petitioner, as in such cases made

Court may deem just in the premises. 2

(Signed Atty. for. Respondent. Service ack. Dec. 7, 743,

‘by U. S. D. Atty.) :

_and provided, and. such other ‘and further relief as the -

[fol. 52] MOTION TO-TAX COSTS

es Wied Dee: 1, 108.

Comes now Kimball Laundry Company, respondent |

above named, and moves the Court: to enter an order

‘taxing as~costs. against the petitioner in this case the.

following items which were necessarily incurred by the

_ respondent because of the filing of the petition of taking :

by the petitioner herein. Each’ of the items hereinafter -

' mentioned was solely and only required ‘because the re-

spondent. was placed upon -the defensive and was required

as a matter of procedire to maké known to the petitioner

and. to the board of appraisers the items that made up

the property condemned, taken, and damaged by the peti-

tioner. The nature of the -business, which was a roing

and operating laundry and dry cleaning establishment,

was necessarily on a different basis for the purpose of |

acquisition and appraisal than land, ‘for exfimple, be-

cause here was condemned ‘and ‘taken by the-Government .

‘a going and operating. business, which taking involved |

the destruction and~the resulting damages to the re-

S., :

Y. . 7

3. Z 4]

z spondent. The ‘Goyernment’s witnesses: anid appraisers,

a the corps of engineers, and others had no information

* -.or-data in their possession or. contro) except that which .

— was demanded and .furiished them by the respondent,

p Accorditgly, the Jtoliowang sums expended , by ‘the gre

- spondent Solely and ouly because of the petition of taking

* of the. petitioner should be taxed as an element at costs

» cand damages with interest at 6 per cent from the date

> of the respective payments, and the same ordered paid’

2 by the United States’ District Court herein: |

A [fol 53). 1. Tie Lloyd-Thomas Company, for ap- ae

~ praisal check issued February 8, 1943 _. RL G14T9

: 2. Mrs, Edna McFarland, Court Reporter, . °

es ~ . check issued Noveiber Jee =. 21.50

: 3° Mr. C.J. CampbeH 2 2 1°. at

‘ check issued November 15, 1943... is cpiet ee

4 Mre AL F.Goodwin | ® : 5

*- 2+ check issued November 23, 1943. Seca MOBS

ee 4. John Latenser & Sons : ae

- . Check issuéd- December 2,.1943 .-s —._.*. 447.98

‘ 6. C. L. Hillmer Company pee :

chéck issued Deceniber 2,.1943 00°. 7. 430.00

> (7. T: H.. Maenner Company :

: 8. Harry Judd. sae Hi eb _ eat

: "check issued December 9, 1943.00.00... 174.00

| eee de Total .. : “$3,153.97

: — Lerpltimation of the Foreqoing Items of Expense

: 1. The Lloyd-Thomas “Company:. Complete itemization,

- and appraisal of the real and: persenal property, giv-

‘ing costs and replacement values of all of the items. |

Copies of the report were furnished te’and used by

: the netitioner and the Government Witnesses: |

22. Mrs. Edna’ MeFarland: Court ‘reporter fees for the re-

i porting of testimony before the board ef: appraisers.

5 This amount constitutes the one-half that. was paid by.

the respondent, the petitioner: alregsly having paid the

remaining one-half, - ) ;

3... Mr: C.J Camphell : Formerly chief counsel for ‘the

Public Works Administration. Mr, Camplell- is expe

-rienced’ in imany condemnation proceedings and ex-

plained the application and workabilitye of the Ne-

braska decisions.. This was made necessary because of

the absence of instructions and other legal aeperprete-

tions’ hefsre-the board. : ;

4. Mr. ‘H.-F. Goodwin: An: expert on the Valuation of -

“laundry ‘and dry cleaning machinery and equipment.

Heretofore he worked and compiled data with the Gov:

- ernment’s : Witnesses, with the-result that the exaet mar-

ket valué of the machinery and ‘equipment ‘condemned

and teken thy the Government was definitely arrivied at

as Of the date of the’ taking.

duced’ the original records of ‘gost, produced the cost

of the construction of said building as of November

21, 1942: and furnished the appraisers with sound evi- -

~ dence: ‘of the value of the building. The firm’s records

and information were used also. by the Witness for the

United States Government. |

{fol. 54] 6. C. L. Hillmer Company: The accounting

firm for the Kimball Laundry Company from the time

the. building was built up to date. The firm furnished

the appraisers with ‘summaries of annual audits. The ”

appraisers were offered the opportunity to obtain from

this witness any of the files, records, and accounts of

the Kimballe ‘Laundry Company for their. inspection,

and he offered to compile theny and’ submit them. This

ay s pecordingty on and the reports used befute the °

appraisers. — - -)

real estate appraisals, made an exhaustive ‘study and

report of the veluation of thé-real’ estate and buildings .

in-order to confirm the evidence on the fair, reason-

able market value on the land and building at the tirne

of the’taking. This was essential toa determination

of the facts. ; ae Ak eel ;

5. John Latenser & Sons: ~The original architects. when

the building of the Kimball Laundry Company was,

built and the additions madd thereto. ‘This. firm pro- -

T. H. Maenner Company : Mr. Massaes;. an expert in.

RIGS he eet POR

os Bee)

IN) ens ewer

> pany POR eae ~

eee OE Sh fy Aa Me

bi, tan on

wes

oar

ee donee iS

se,

othe ae

eae

{ee

‘

iar ee

8. Harry Judd: A certified publie’accountant who has

specialized in the appraisal -of laundry businesses for

other courts in Nehraskt. He made an analysis of the

-_ Value of the damages for the loss of the’ business asa

going concern figuring the number of patrons and the

_ amounts paid in and’ the different Classifications of

patrogs for the appraisers. ed ;

. In addition to the toregoing there was the testimony of

other laundrynien, superinténdents, auditérs;-and the of-

ficials of thes respondent cdmpany who have made no

charge tor their services @ testifying before the bi ard.

. All of. the foregoing accounts. paid, désignate] 1 to 8,

inclusive. In addition ‘te the personal appearance of the.

witnesses on the stand and the examination by the board

of these witnesses, copies VY the exhibits were made for

each of the appraisers and for the petitioner. . 7

In addition to the-foregeing theré will be the expense

‘of.the compilation and certifieation of the transcript of

the proceedings before the board of appraisers, the cost

-OF which will be certified and shown on the transcript of

the- record, and for which costs and expense of the record .

and transeript respondent likewise. moves. for the allow.

ance as having been: oceasioned solely by the involuntary .

taking: under the condemnation proceedings herein. This

record and transcript is being ‘prepared under Sees.

83-1604 and 74310-11, C. S.N, 1929, which sections the

Title. 40,-U. S.C. A. Sees, 257 and 258 as amended,

Wherefore, the. respondent moves that ‘the foregoing.

respondent, aileges are applicable and directory Whder

items be awarded as damages occasioned by the taking

-and judgment be entered therefor in favor of the re-

Ea against the petitioner, wih interest. thereon or

the respective items at 6 pr cent fron the respective dates

of payment. | nae |

(Signed Attys. for Respondent. Service accepted by.

UOS, De Atty, Dee. 1, 43.)-— ee

-—*

44 se Si) Se ! bs 7 a

; : mate /

{fol. 65). “PETITION IN v BRROR |

' _ > Filed Dee. 18, 1943. 2

Comes row tire Respo ardent, = Bay: L, aundry Company,

"a corporation, and states to the Court that:

just compensation guaranteed Respondent. >

(a) Notice of appeal\ has been filed herein within the —~

time provided by law from the award of the appraisers

filed herein on November 19, 1943, by eac h the Potitione Yr

and the Respondent. ° .

(b) The Respondent refers to and makes a pant he reof |

all of the pleadings and files and orders entered in the

- above. entithed cause, as all of them were submitted to the’

Board of Appraisers, #3 shown by-the reeord ‘herein.

(c). The evidence, both orai and ‘documentary, intro-

duced by both Petitioner and Respondent at. thé -hearing .

‘before the Board of Appraisers, was‘ recorded by an

official federal court reporter, and certified transcript

thereof has been or -will be filéd herein within the, sixty-

day period permitted by law (83-1604; 74-310-11; Comp.

St. Neb, 1929. See. 257, 258, T. 40 &. S. C. A.). .-

The Respondent- petitions the Court to grant as a mat-

ter of law the following judgments and orders-and cor-

rect the award of the Appraisess because of the following

errors and omissions appearing of record in. the proceed-

ings before the said. Board of Appraisers, to wit: o

(a) To enter judgment herein against Petitioner for

-it? costs and expenses incurred at the hearing before the |

Board of Appraisers, as an element of the damages sus-—

tained by Respondent because the law required the Re. .

“spondent to appear before the Board and make known the. -

resulting damages to it from the enclosed taking, ;.which-

necegsitated the expenditure ‘of: $3,153.97.

- [fol. 56] (a) <A separate motion: is on file in this case

ite nizing this: expense,

- 22a

To award 6 per cent interest on all judgments entered

herein from the time of the taking until paid, because 6 -

per cent is the statutory interest rate in Nebraska. where

all. the property, was located and is recoyerable as a mat-

ter of law on all awards and judgments as a part of the

o aers . “a= “e

7. ; . ‘ 6

2 . * ; e ; 3

3 . : = cee 45

ON .

g Spa Tl = |

| o To grant additional damages as a matter of iawoin. the -

: 4 Y ftorm-of interest at 6 ‘per cent an $34,875.50, the value of

= @6pe rsongl property in the nature of supplies forcibly taken -

from Respondent by the Petitioner on November 21,. 19425.

and paid for by the Government on July 8; 1943. Interest

on the sum so paid aggregated $1,395.02 from November

21, 1942, to July 8, 1943. Darilies interest until paid should: ~

be ordered: paid by this Court, as a matter of law.

> IV z Com

3 (a) To ‘enter judgment on the record as a matter of

law against the Petitioner for the fair, reasonable mar-

ket value of its entire property when and as taken, ifre-’

spective of how described or limited in the petition as to

temporary use in part, because Respondent was damaged

- by, the complete appropriation of all its assets. The re-

sulting damages, in -the amount of. at least $949,979.40

with 6 per cent interest thereon from said date until paid, eo

is the’ proper and undisputed valuation appearing of

record.

(b) | Explanation: - The Widnrd made hefate’ the Ap-

praisers and now properly before: this Court (83-1604;

74-310-11°Comp. St. Neb. 1929) discloses conclusively that:

(1) “Said suin was the fair, reasofhble market value -

.. of the property taken. Its patronage was completely dle- -

stroved at said time by the Petitioner. - :

(2) Petitioner sought to and did enter the laundry |

“and dry cleaning business by condemnation and the ap-—

-proepriation of Respondent’ s business as a going cone

{fol 57]. + Petitioner is now engaged therein with -

Respondents s' formerly owned assets. Pag

(3) Said going. business and assets Were fairly val- ,

ued before the Board of Appraisers at $949)! orstn oo |

allowing all eredite for ‘navients mada. -

(4) The record diseloses nb-evidence to the contrar y.

(5) The evidence to to Sustain the said sum n Was legally

sufficient, as shown by. the record. ,

(6) Fhe samewas-requested as -the wal by the

Respondent and was erroneous!y omitted by the Board

for the erroneous refison given in the: award. ~~

\ : ze

eh ie ate te err a es

(7) No other award was legal or sufficient under the | >

foe evidence and: law. Recreate ey engl a ie

“> (8). The award as made was erroneously granted for | ~

~ some other purpose, ict, for alleged ‘trent’? of the -

** building ao seainnts et Respondent. a ae

(9) There exists no law to sustain such an award - 4

for *‘rent’’ as returned on November:19, 1943, ~ “

‘just compensation, ea ae ee ee =

. (IT), Just compensation as ae ‘Measured’ only in

dollars and cents and must be in-ay amount equal to”. {

_ the fair and reasonable selling value at the time of. the -

-. (12) The record. made before the Appraisers and — f'

before this Court discloses that sum: to ‘be at least -. |

_° $949,979.40 as a matter of fact. Pe a

ore (13) Consequently, this Court may and should as a a

matter of law award judgment for said amount\on the

_ undisputed record. of at least that valuation, with. in- 4

terest at 6 per cent from November 21, 1942, until paid. — a

To correct the award of the Board of Appraisers as. eS

filed herein on Noyember 19, 1943, ‘and enter an award \*

_. [fol.58]- based. upon the just compensation of at least. . \

$949,979.40, conclusively appearing of ‘record, because the ——

Board in its award erroneously concluded without any. |

evidence of. proof or.law to sustain its-award, as follows: |

ae _ “We the said appraisers, find’ that the just compen- #

sation for the value of the use of, the premises taken by @

the United States of America is the sum of $74,940.00

_ per annum, or the sum of $6,245.00 per month, and we |

firid that said menthly’ rental was payable on the 21st: 4

. day of each and-every month, commencing en the 21st | a

= day of November, 1949 and that ait delinquent mounitity “3

rentals shall bear” interest at the rate of five percent 4

‘per annum until paid, to be paid said. respondent, Kim- ie.

ball Laundry Company, by the United States of

America.*? . , me v4

; os ; | % 2 : : ies ; . . a5 - X ; ; 47

fear VI

To correct the award and enter Judgment on the reeord

said ree ond |

(ay Ph

Appri isér's of any kik vaiue,

(b)) Rental of the amount thereof was not exalts in

-issue before the Board of. Appraisers under the Fifth

compensation for the-taking. |

thority of law under the Fifth Amendmént to the Gon-

x j

assets, taken and destroyed, as just compensation.

demnation procedure, statutes, nor the State Constituttion

which legally authorizés any award except in monéy for

the full fair, . reasonable market value of -the. property

of taking,

law.’

\ the said sum of at least $949,979.40 and 6

terest when said. sum appears ‘as the propel valuation,

ith order that said award may comply with the constitu-

| tional and statutory requirements and the decisit ns of the

€ ourty, interpr eting: the saine.

{ fol. 59). 5. et VII

(a) To correct the award by entering iadeumel herein.

as a matter of jaw for at least $949, 979.40 and interest,

‘bacaiise the\ cuinpeieut evidence OL ; Tec ord before the

Board of Appraisers disclosed that $400,000.00" thereof

was the fair valuation for: the damage resulting | from the

taking on Nevember 21, 1942. Upon that date. the’ damage

“to the Respondentts_trade,' patronage, - and busingss in-

. eome directly oecasioned by the taking on Nov ember 21,

es. & ;

ee a a ie ee a TER ee te pene mene mele aM Pekan en ar

. : .

requested : in parag! ‘raph IV above; yore jt appears by

_-xtitution of the United States that would empower, the.

“Appraigers to affix rental of Respondent’s business and’

(d) There exists no authority undtr Nebraska con-

Amendment: to the Federal Constitution ee jast

”

taken and that destroy ed = it by the taking on the date

(e) Said ‘attempt to, pa a monthly ental was er- :

- roneous as a matter o; law under Federal Nebraska

(f) This Court. is empowered to enter judgment. for -.

1942, was $400,000.00, and the recoril so discloses -with-

out dispute. .The appraisers erred whemsthey sought to.

meet and reeognize this $400,000.00 element of damage in -

their award by finding:.

“We, the said appraisers, eabie ‘dente report that’

the undersigned appraisers recognize that at the time.

of the return of said property to the respomlent there

of said Board find that the-same cannot at this time be

‘appraised, and that this Board has no jurisdiction to

_ anticipate such damage.”’

(b) There existed no proof to defeat the Respondent’ s

competent evidence that the element of damages referred

to last above was any other figure than $490,000.00. This

appears from the.record made before tht Appraisers and

* now before this Court.

(ce) The Appraisers hav ing: failed to make said award

or imclude- it in a total amount as a-matter of law, this -

Court may now’ enter judgment on the records and files

that were before.the Appraiscrs as by law provided and —

now before this Court for review an correction, as by

statute provided, and thus fulfill the requirements of the

- Federal Constitution ‘relating to just compensation.

Vil

‘To eorreet the ; award of the Appraisers and ehter judg-

‘ment in favor of-the Respondent against the Petitioner

in accordance with the undisputed evidence as shown by

the record before the Appraisers and now before this

Court, in which record conclusively Was shown ‘the sepa-

_ rate, values of the building, the: lands, the machinery and

equipment, and the business’ as a going concern, each sepa-

rately and competently evaluated, and to. enter judgment

on the record accordingly for the aggregate of at least .

osc piuae witi- interest froii the day of taking.

(fol. 60]. ax

To deny as a matter of law by proper order of this

Court the claim in the petition of the Petitioner and re-.

lied upon by the Appraisers as. shown in their award, -

that the Government may legally

Wherein it is assuy

will be a damage for the loss of patrons, but a majority :

SRC Saab Seis Ciat R tal ils

2S SA BS i Neat Sad Bs UE RANE ML TRE fs weasels hE pl we Soc Eig el

appropriate. the- going. business of the Respondent -and

carry on that same business for the Government*s own |

use and benefit and do so without Congressional Act; -but

instead rely’ for authority upon the congfessional statute.

referred’ to in the petition forthe appropriation of tand

and geno g property the ‘reon.

To correct the errors appearing upon the facts, records,

and files herein and award judgment forthwith wpon the

» *

, record or the complete appropriation’ of | Respondent's on

assets, unlawfully and ‘erroneously taken by theGovern-

ment on November 21, 1942, with interest at 6 per cent,

and Ito so adjudge the Matter irrespective of the crro-

~ neous allegations of the petition, because the undisputed

and competent record evidence now before this: Court.

officially proves without further proof.or hearing that a

complete, appropriation had taken ‘place’ which justifies.

- as a matter: of constitutional law an immediate judgment —

for the proven values so appropriated, converted, and de-

— of at least $949,979.40 on the said date of. ae

“XI

TD enter such orders and judgments: herein oa upon:

the record and files now before this -Court ‘that will com~

pel the Petitioner herein to follow the established law of. -

condemnation by paying for’ the property-taken with that -

destroyed by the taking and at the time of the ee

. ALL. / .

To grant Respondent the first, right to eiaaass said

= property in its then condition, at the time Petitioner de-

Sires to: give. ip the laundry: and dry cleaning business

now carried on by it (See. 1(b), Act. 7/2/40; 54. St. 712

Title. 50, -U. S. C. Av See. 722; 05 St. 742) because: (1)

Such procedure ‘alone is provided by Ssiatuté in conde Tih

‘{fol.61] nation cases as the measure of ultiniate pay-

ment and credit to the Petitioner when such property as

rerein described is condemne] and forcibly taken from

an absolute owner such.as the Respondent herein; (2) -_

such orders and judgments alone’ will- satisfy the Fifth |

49°:

ace 50 es : as eee wee

Amendment vrotectiag and imiting just compensation,

_ as interpreted and defined by the Judicial Branch of the.

“Government, for, both vondenmor and condemnee, a

’ :

XIII 2 ee ‘

(x) To correct the said award’ of ‘the Aebtellats s, be. &

cause provision has béen made in the Internal “ie g

Code, 1942 (See. 112(f),; 22 d) (6), for the treatment by ==

the Treasury of money. paid by the Government to con- ~

demmees; such as Respondent herein, . for damiages for in-

voluntary: conversion. of ‘its property. . Gs

(b). The fund derived as pay. under the just compen- a

sation clause of the Constitution” for, the property taken. 3

>and destroyed ‘by the taking, musi he reported to the C ol- ~.

2 0-2 leetér of Tater nal’ Revenue under Gover: iment Form 1114, é

‘“", “e7 ~and the funds shall then be construed as a Re eplacement .

~ Fund (statutory: language) to re-establish the. condemnee®

in the same business taken. forcibly by the condemnation.

“—(e)- No* ‘capital. gain -or, income. tax may be assessed |

. against Respondent’ liérein under’ the protection of said.

_ Revenue Statute, providing. the Court herein’ enters

-. proper orders and judgments: for-at least. $949,979.40 as’.

-the value-shown -by the’ record, because that sum is‘the .° +

-.. fair, reasonable market’ value. of. the praperty taken and.

ee _destraved or dainaged by the . taking, and represents. pe-

—cuniarily the same sum of money which the Internal’ Rev-

“enue: Code,’ as. well as-the general law, recognizes as neces-

ys. sary to place Respondent: in the same condition, finan-

se: a (dy “Respondent’ is entitled to the benefits of the’ \said

SS provisions. of said Revenue Act cited. Tlie appraigtre

“award denies this benefit by’ erronedasty awarding ‘‘re

‘and . erroneously” postponing to an tmdéfinite future date

ah be iline of duking aider the | iB Wei Rares 5

ae [fob 62]. ‘(e) As. the- award. of the “Appraisers ste,

oy “ously denies the Respondent a Replacement Fund free ,

“| =): "from federal. taxation, the Respondent ' is deprived of its:

” property without: ‘due process of law in: further violation -

“of the Bitth “Amendinent to. the: Federal ‘Constitation.

_ » ;

- : ie r : “ ve

a ;

; ° ae a‘

eat ti eee A eid | : weal Be

a r / 2 ; H ‘ ae . ——-

Ny “4 " e, “9 ; ¥ = 7 @ : * re

“YS : a NS a . Yreka +5

“x . / or 5 . Phase I exe e Sette

» oo Ne I a le il : ; x at af se ;

: . Z bp . & » re |

eo. ne ; yee “oF

; D1

| “Ww here fore,. Respondent, Kimball Laundry, Company;

prays. the Court to. enter the following judgments and

> orders*-as a-matter.of laa, based upon the pleadings and _

.. files herein and upon the certified record of the oral and |

documentary, evidence and proceedings: before the: Board:

zz of Appraisers, ‘to: wit:

P ° (1) A judgment for at least $949,979.40 with 6 per

“ent interest thereon ‘from November 21, 1942, until paid,

- discloses conclusively that said sum was the fair, reason- .

~ chinery, equipment, and the damayes for the destruction.

of the Respondent’s going business as a direct result of

the taking on said date.:

- (2): ~=A judgment tor 6 per vent interest. on $34, 875. 50,

'. which was the.valne of the supplies taken ‘by. the. Peti-

‘tioner on. November 21, 1942, and not paid for by ‘the.

.. Government until. July 8, 1943, ‘and. to enter said judg. .

i ot

BS i) es at ar RN eo

of this Court accordingly.

' (3) An order of this Court finditig as a ‘matter of law,

S beseds upon the record herein, that the damages, by de-

struction of’ the Respon dent’s business as a going con-

cern was $400,000.00 and that said. sum be. included in

the said. aforementioned, sum of $949,979. 40 damages,

and a finding upon the record as a matter of law that

. said elemerit of damage. occurred to the Respondent, on

‘the date of the taking, to wit, November 21, 1942, and a

‘the report of the Appraisers recognizing, such damage but

_ erroneously deferring the same. ; oe

(4y-An order of this Court finding’ that the Appraisers

erred in ‘their attempt to affix rental of. Respondent’ 4

RWI CELE

ay of on GS

- any ‘othef sum, and the éntering of a conclusion by this

fol. 63} Court that such finding of rental denies the’Re-

BE mags the just compensation guaranteed by the -Fifth |

~ Amendment to the’ Constitution of the —— a States and.

/ the Constitution of Nebraska. .

‘ { so ; “ : : pees

REESE, NERA 2H ERR MMe ein a LIS NY BARES Beye MERPINIER OREN IN. ABR, GAME BER TG tae SAG ORE LEY Rms

: : - s .

b-oud a finding in support of said judgment that the record’ —

able market value of the Respondent’s land, building, ma- .

. ment as'a matter of. law upon the-record. and a finding ~ -

land, building, ‘and machinery .at $75,940.00 per year or:

fs a

F * . oe : 2

(6) A judgment for césts as an element: of damages -

in. the amount of $3,153.97, plus the accruing costs and 72

the costs of the record of the proceedings before the |

Board of Appraisers andfor such other and further «r-

ders and' indgmertts as the Court may deem just in “the:

premises, and for the additional costs and expenses neces:

sarily incurred by" the Respondent:in the defense of its

constitutional rights herein. -

-« - Dated at. Omaha, Nebraska, this 18th: day: of Deee wber, a

1943. . - Z

{Signed Attys, for Respondent, Service , ack, by.U. S.. Ef

(fol. 64] - APP AT, U NDERTAKING | | 2

: Duly filed Dee. 18, 1943, and’ surety ‘approved by U. -f

D. Judge, and, copy received and acknowledged by o, %

a ‘Dd. Atty. on same date, lee i 4

{fol 65] “APPLIE ATION: OF RE SPONDE NT ° : a

TO WITHDRAW FUNDS | rs :

Filed Feb. 1, 1944. ° “

In the above entitléd condemnation proceedings the peti- &

_tion alleged that the taking on November 2f, 1942, was =

for temporary use, and the petitioner paid to the Registry ¢

of Court, Clerk of the United States District Court, at 2

ie Omaha, Nebraska, on June 19, 1943, the sum of $30,140.00 n

and designated the same: as rent for temporary use from, =

November. 23, 1942, to June 30, 1943, as more particuiarly .

set. forth-in its petition and the records and files herein. Zs

The respondent, Kimball Laundry. Company, in tater 4

- proceedings before the Board of, Appraisers. and by an- =:

—swer filed: and by petition in’error from said Board- vhas :

' joined issue in’ said matter with the petitioner and. has

denied. the, rile ar. authority of thea petitioner +4, 4 trhne : D>

late -just: compensation. into rental, and asserts that the 4

taking’ by the petitioner. of the .respondent’s propertyhas .=

constituted an appropriation to be fully, compensated in s

damafes as of the date ot taking, as more particularly. #

set forth i in tes answ er and petition in error on. file herein. 3

- The responde nt is desirous of olthiiatine said fynd

without prejudice and without refereree to said, Wi.

drawal as a matter of evidence against the respin stent

in the |spoagenags sarki the Court; nor as an accept-

anes ner as an admission by the respondent or auc dequi-

-eseence in the position take no by the petitioner ni refer.

“ence to said matter, as above alleged, save and except -

that sail funds so withdre rwh-stiall apply: as @ credit

against the award; whtever the same may be, finally de:

termined by the. Court, ;

Wherefore, the réspondent prays for an order of this

Court authorizing the wichdrawal by the respondent of

the sum 6f $30,140.00 on deposit with’. the Registry of.

“Court, Clerk, of the “United States Distriet. Court, ‘at

. Omaha, Nebraska, without vrejudice to the position

taken by the respondent as shown by the pleadings and...

files herein and. not as an admissi n nor an arceptance

by the respon lent of the position taken by the’ petitioner:

herein in making said tender, save and except that : said

‘sum may be. credited upon the final award of the’ Court

in this matter: Mira

_ Dated at-Omaha, Nebraska, ‘this Ist day of Fubewiiry,

1944. } | = ;

os (Signed (Attys. for Respondent.) -

{fol. 66] ORDER.

Filed Feb.’ 1, 1944.

This matter eoming on for hearing upon the application

f.the respondent for the right to withdraw a deposit of

$30, 149.00 made with the Registry of Court, Clerk of the

Unitad States District Court, at Omaka, Nebraska, on

the 19th day of June, 1943, and the same having ‘been

hs 80 deposited by the petitioner ak rental for temporary |

“nn th ge mre obs, Minus bi Pee ia ¢ ' Fo cE rend

Ae. ot, ipies Pus puoi iit s property P ani the TEAPORU Tit, -

as shown hy the. pleadings-and files herein, having joined

issue with the petitioner by denying the right of the peti-

tioner to pay rent for temporary use in liewt of damages

as compensation, at the time of taking; and it appearing

that said issues in said proceedings are before this Court

- for determination, together with other issues invelved in

| >

—

said cause; and -it t appearing that said funds might be

Withdrawn by the respondent without prejudice” to its

‘rights and without prejudice to the rights of the peti.

tioner, San :

‘It is therefore ordered that Afie respondent, Kimball

Latndyy Company, may withdraw said sum of $30,140.00

80 ‘d®posited” on June 19-1943, and in.so doing the same

shall not .be construed as an admission by the respondent

of the position taken in’ said eause and. in making said

tender by the petitioner herein, and the ame nay he so

withdrawn, by the respondent "without prejudice to> the

rights of either party, savé and except that upon the

finnl afard ‘of thjs Court, the said withdrawal shall be

‘credited*thereen.

Dated at Omaha, Saivaah: this: ist day of February,

1944.

(Signed U, S. D. Judge.)

‘The within order is approved-as to form and petitioner

_ consents to the withdrawal of the funds. in the re istry |

of the court as prayed in. respondent*s application.

Signed, U.S. D. Atty.)

‘[fol. 67] STIPU LATION °

— Filed Mar, 25, 1944.

It is hefeby stipulated by the parties herein that argu-

mont on respondents’ motion to tax costs, filed herein: on

the 1th day of December, 1943, he continued until the

conclusion of said cause in this eourt.

— by. Attys. for: both sbdés.)

: Filed March 25, 1944.

T le stipulation. of ‘the parties with reference to the con-. |

tinuation @f a Motion filed by the. defendant to tax: eosts’

coming on for consideration before the ( ourt, and: in eon-

sideration thereof, a

It is now and hereby ordered” that the said Motic ign =

>. and the same is hereby overruled without prejudice 4o the

defendant to renew said Motion upon the conelusion of -a/

‘trial 1 in this Court. | ae ses ea

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et Pee

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. f ites

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* Dated: This 26th day of March. A.D. 1944, é

rc .* aancannselieas S..D. Judge.)

fol. 69) REQUEST WOR PRETRI AL HEARING

; Filed April 3, 1944. . laa

To: The Honorable James A. Donohoe:

Counsel for respondent, Kimball Laundry Company,

ge the pretrial procedure permissiblé under FL R. C

No. 16. The case involves questions for the cis *

detizion in a Condemnation Proceedings. “The sas tl

waived jury: trial, —

The opposing counsel-is the United States District At-

terney. Service of this request has been made upon. him.

Dated April 3, 144. Signed by Attys. for Respondent.

Service ack. by U. S. D. Atty.

9’

(fol. OY SU PPLE MENTAL DECLARATION

- OF. TAKING ° |

Filed April 6, 1944,

W hereas, I have elected to extend the term for years

which was condemned in this proceeding for an additional

term of one year commencing July i, 1943 and emding

June 30, 1944; and. °

Whereas, the "sum estimated to be just compensation

for the taking. of said extension. term of one year is not

included in the monies heretofore. deposited with this

court in this proceeding.

Now therefore, I, Henry L. Stimson, Secretary of War .

of the United. States, acting pursuant to the powers and

authorities recited in the petition-.and- declaration: of /

taking on file in this proceeding, ° “do estimate. the just

compensation for the taking of the property described in

this proceeding for the extension term of one year, com-

menéing Tule 1° 1942 and ending Jnne 30, 1944, th be

$550,000.00, Ny hieh’ sum I cause to he deposited herewith’ in

. the registry of this. Honorable Court for the use and bene-

fit of the persons entitled tHereto. Iam of the opinion

that the ultimate award for said extension: term will’ prob- |

- ably be within: ariy liniits. prescribed by’ law as the price.

to he paid therefor. :

In witness: whereof, the ‘petitioner by its: Secretary of

War thereunto” authorized has caused this Suppleme ntal

Declaration ‘of: Taking: to be signed im its name and on

its behalf by said! Seeretary of War this the 28d° day of -

Mareh, A. D. 4144, in the C itv of W ashington, District of

Columbia... ,

Hexny LL. Stiniox;

Si sevetany of - W ar of the U nited States s.

<* *y

{fol 71} JUDGMENT ON SUPPL EMENTAL Beer

, DECLARATION OF TAKING |) 3

| April 6, 1944. - : :

Now, on this 6th day of April, 1944, this matter coming

-on for héaring upon the motion of Joseph®T. Votava,

United. States Attorney jin and for the District of Ne-

brriska; and Charles D. ‘Hitch, Special Atéortieyy Depart-

ment of Justice, attorneys for. the petitioner herein, to

enter judgment on the supplemental declaration of. taking :

filed ‘in the above entitled cause.on the 6th day of April,

1944, and upon consideration thereof, and of the con: jem-

nation ‘petition filed herein, and. the statutes in such cases °

made and provided, and ‘it appearing to the satisfaction

ef the Court:

‘First: That ‘the United ates of: iecilad is entitled

to acquire property by eminent domain, for the parpones

as set out and prayed in said petition? :

“Second: That. a. petition. in cpndemnation was filed at

the request of the Secretary of War, the authority em-

| - power.d by law to aequire the property described i in said

petition, and also under authority of the Attorney Gen,

eral of the United States:

Third: That on the 21st day of ‘See 1943, tere | was |

| filed herein . declaration of taking, under the terms of

which an estate for a ‘term for years. ending Ju: 30, 1943,

ifl ihe pioper iy: there iii de ‘seTiped, subjee i, however, iu

existing easements for” public. roads and ‘highways, Tor .

public utilities, for railroads and tor pipe lines, together.

with. the right: te extend said: term for’ additiona) year! y

periods theréafter during the existing national emergency

‘at the election of the Secretary of War, vested in- the

: re)

“2m?

‘ dé

a »

United States of. ‘America, and on. the. same: day there

was deposited ‘in the registry’ of. this -court the sum of

fol 7 2) $30,140.00 as the estimated juist: compe nation

. for the te rin from Novembe " 23, 1942 te Jane 30, 1943,

and on the same flay #2 judgment on said. dec laration of

‘taking was. cntered. in this proe eeding,

Fourth: ‘Phat en Muy 11, 1943, the petitioner filed In.

this proceeding a motion to-extend the tern) condemned

fer an additional Year ending June 30: 1944, and on the.

same day-f$he Court entered its order. extending said term

‘and there was filed herein a notice of such extension.

Fifth: That said petition and declaration of taking

stated. the authority under whick and. the publie use for’

.. which said - property: was taken; that the. Secretary of

War is the person duly autiorize dans] ‘empowered hy:

s law. to acquire property such as ds described in. the peti-

tion for use in connection with the. establishment of a

“thilitary laundry located in the City of, Omaha, Nebraska,

‘and, for sach other jises ak. may be authorized by Con-

gress or by Executive Order, and that the Attorney (ien--

eral of the United States is the person authorized by } law

to direet the institution of such condemnation proceedings,

: Sixth: That a proper déseription of the property, s songht,

- to be. taken, sufficient for identification thereof, is sel out. |

.in the declaration of taking.

Seventh s‘Fhat ’ said deelaratian of taking fontains a

statement of the estate or inte rest | in thie Property taken

for said publié use.

lighth: That a plat showing the propierty taken is in--

_corporated. in said declaration: of taking. :

Ninth: That a statement is-contained in said supple-

--mental declaration of taking of a sum of money extimuted

_ by said. acquiring authority'to be just compensation for

the usé and oceupancy of said property for. ae" term com-

; imencing Jjuiy .i,: 1944 and ending. dune 50, i944 in the.

amount of $50,000.00, aud that-said sum was deposited .

“in the registry of this court for the use of the persons

- Tenth: That said supplemental declaration of tak

eontains a statement that the amount of the ultin mind

HR.

award for sail extension term, in the opinion of the Sec. -

retary of War, -will probalily be «within any. limits pre-

setibed by law as the price to be paid therefor.” ba ite td

(fol. 73] Now, therefore, it is ordered, adjudged and de- /

. . Creed that said judgment on declaration of taking No. 1,/.

. filed herein on June 21, 1943, We, andthe same is, coyé -

' tinued in fall forge and effect as’ extended for ‘in ac

‘tional yearly period ending June 30, 1944, with the ddi-

tional deposit.of money as herein.set forth for the @xter -

sion terni of ové year commencing July {, 1948 indandie

June 30, 1944. : :

. . 7

(Signed U.S. '‘D. Judge.)

(fol. 74] APPLICATION OF RESPONDENT |.

oes TO WITHDRAW FUNDS -

Filed April 13,-1944.

- In the above entitled condenination proceedings the

petition alléged that the taking on ‘November: 21, 1942,

was’ for temporary use, ‘and the petitioner paid to the.

Registry of Court, Clerk -of the United States District | -

Court, at Omaha, Nebraska, the sum of $50,000.00-’and

designated the. same as rent for temporary use frénr July. °

1, 1943, to June 30, 1944, - gm |

/ The respondent is desirous of withdrawing said funds

‘without’ prejudjee and ‘without reference to. said with-

drawal as a matter of evidence against-the respondent

in the proceedings before the Court; nor as an accept.

ance nor as an admission by the respondent.or an acqui-.

e:cence in the position taken by the petitioner in refer-_

-.. enee to said matter, as’ above alleged, save and except

_ == tuat-seid- funds so’ withdrawn shall apply as a ‘eredit

-. * against the award, whatever the same may be, finally de-

+ Wherefore, the respondent prays for an order ‘of this

Cougi auihorizing The withdrawal.by the respondent. of

-. ‘the. sum of $50,000.00 on deposit with the Registry of

Court, Clerk. of the United States - District: Court, at

Orniaha, Nebraska, without. prejudice 4o the position taken _

by the respondent as shown by the pleadings and files

My aan 59°

“herein and not as an admission nor an aceeptanee by the.

respondent of the ‘position taken by the petitioner herein —

. in making said tender, save and except that said sum may -

. be credited -upon the final award of ‘the Court in this’

matter, — | co lala } ; eas : |

Dated at Omaha, Nebraska; this 11th day of April, 1944.-

(Signed by Attys. for K. L: Co. Service ack, by.

2 Hie gooey USS. D. Atty.) |

“a ; ee £

‘eS eee” Oe

a gat Filed April 13, 1944. ;

: This matter: coming on. for hearing upyn the-applica-

; tion of the respondent for the right to withdraw a deposit

5 of $50,000.00 made with the Registry of Court, Clerk ‘of

4 the United States: District Court, at ‘Omaha, Nebraska,

* ‘in April, 1944, and ‘the samé having been so deposited

+ ‘by the petitioner as rental for temporary use of the re-

: spondent’s property; and the- respondent, as: shown by

: the pleadings and files herein, having joined isshe with

§ the petitioner by denying the ‘right of’ -the petitioner to

‘=. ,pay rent for temporary use in lieu of damages as com-

. it ik therefore ordered that -the respondent Kinjball -

Laundry: Conipany, may withdraw said. sum of $50, 0.00. |

so deposited in April, 1944, and in-so deing the same *

shall not be construed as an admission by the respondent _

‘of the position taken, in said cause and in making said ~~

tender by the p«citioner herein, and the same may he so *

withdrawn by the respondént’ without prenidice to the

rights of either party, save and except that upon the final

_ award of this Court, the said en shall be eredites

~ thereon. ares 2 re ee ae

Dated at Omaha, Nebraskan; this. 13th day of April, 1944.

i ee Judge.) |

. \ :

o *|

-60 ae : ir ~* ts . . > ; r, ; a4

. The within Order is: approved as to form, and Peti-

? Sonat vonsents -to the’ withdrawei of the’ funds in. the

- Registry of the Court as’ prayed in oy tage s appli-

cation. {Signed U. - Atty. )

[tol 76) RESPONDE NT" Ss S MOTION TO ADVANCE

; fee UAUSK FOR EINAL, DISPOSITION -

/ /Bijed May 2, 1944. :

Comes now the Kimlsall Laundry Company and moves:

the Court be expedite the final disposition and’ the ob-°

_ tering all 1 necessary orders to accomplish said. purpose

oe _ forthwith, for the following reasons: ae

The Kimball Laundry Company: recognizes the right —

. and. the-e sity 1e._ Executive Branch to _

. take ‘its property for. the statutory purposes. ~The » ‘con- |

demnationggnd resulting immediate taking was accom- * _

«plished _, Seem ‘21, 1942, concerning which taking

no complaint is made. ;

nila EE fae :

The ‘Respondent, however, challenges the Court’ s atten-

tion. to facts arising after the taking and asserts that the

application, of tke: constituticnal provision for just com. .

pensatron has now become the sole and exclusive fune-

tion of the Judicial Branch. Further, Respendent “chal:

lenges the Court’s attention to the established law that

tlie Department of Justice. is not authorized to prescribe :

~ & forniula. or theory of valuation of property sought’ to

be condemned by the United States which the Court is

required to accept in fixing just compensation~ to the

owner.. The ‘Petitioner, now acting through the ‘Depart ~~

: » ment. of ‘ Justice, has. adopted’ a course which,. unless

_ promptly corrected, will deprive: Respondent ‘of its prop-~

saty without jtist compensation and which will place Re-

spondent in a-most disadvantageous position from which we

7 tit may never ‘be able to-extricate itedlf, __ ......-- + >

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ERT DRL a SERS ae

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- The facets upon which the Respondent bases this Motion’

for immediate final - disposition of this cause Tn order fo.

forestall injustice, are in the main as follows: | |

(a) . On Novetnber 21, 1942, the Respendent; Kimball

Laundry’ Company, owned outright Without encumbrance

or any other outside interest thepein, * the absolute fee title

to the building ‘and real estate. Thie -buiiding had at. stich

time, exelisive ef real, estate, a fair; reasonable market

. value, based upon the very best kind of competent -evi-

dence, of $280,348.00. The land was appraised addition-

ally at $25,000.00. The’ building was equipped. with re-

time of $273,831 39. Itthad supplies’ on hand necessary

for the continuous operation of said business as a going

—seoneantafepo4.5.00.. At-said_time.itwas doing a gr ss_

business of .approximately $400,000.00 - per - year with

15,000 eustotaers built up from 4925 to'the date of the

taking at a very large-expense. : ts customers consisted -

of the principal commercial accounts in the downtown

City of- Omaha, b sides family and individual account.

Tne Kimball Laundry Company had recéived in gross

[fol. 77] cash income fromm its Jaundry and-dry cleaning

business from. 1925 to November, 21, 1942, $5,958, 790.93. =

. The greatest annual gross revenue in its: history was in

; the year immediately preceding the taking. Such ‘estab-

movable laundry and dry cleaning machinery and équip- -

ment which had a fair, ‘reasonable market value at said

lislied business hada fair, reasonable market -value of,

not less than $400,000.00 under the standard, competent,

and ‘ace enptable rules governing valuations ere busi-.

nesses. Thus, the total fair;value of: ‘Responde nt’s assets

on November: 21, 1942, was $1,014,054.89.

~~ (b) The Petitioner by the taking acquired all parts

a at

ery and equipment, and totally destroyed immediately at

the taking all the: Respondent’ s business.and all: the in-

come. therefrom, and in its place substituted therefer the

Peétitioner’s own laundry and. dry eleaning business. To

accomplish this result Petitioner: nape and. mnaintained

.. of the land and the building and all parts of the machin- |

eee TEI IO

»said plantas a géing concern in-all of its departzuents,

largely with Respondent’s former gkilled’ employees. Pe- —, ;.

trtioner charged soldiers for such laundry and dry clean- . ~

ing services $513,4(8.86 and collected that sum ‘from gol- ; -

diers during the first.nine months of the Army Quarter-

+ mmaster Corps operations, and is continuing said business

as & going concern, | Cons.

‘(e) The Respondent, Kimball Laundry Company, hail

~no .other or different facilities for the operation, of its

Jaundry and dry cleaning business’ to service its trade

and consequently since November 21, 1942, has been com-- . *@

pletely out-of business, and its business has been ccm-

pictely destroy ed as a direct result of‘the taking. - <

(d) The Government has thus far. paid in cash $845 |

875.50 on Jaly 8, 1943 for the- supplies on “hand such as

“soap, cleansing chemicals, ete.,. $30, 140.00. on June 19,

. 19434 and $50,000.00 on April 13, 1944. .

“ (e)' Each of these sums so received on. ‘gcsocnt has

_ been reported to the Collector of Internal Revenue for

“the Omaha-District under Form 1114 in which, under Secs -

112f of the Internal Revenue Code, Respondent .claims

said. money ‘for ‘the: purpose ‘of establishing a replace- “sg

‘ment fund. ‘Instead, because of the Petitioner’s stand

- that itsis only, ‘‘renting’’ the laundry, the Internal Rev- |

enue Agent in Charge at Omaha has: on the first deposit 4

sof $34,875.55 demanded an income tax‘ of $9,786.72, “on 4

the grounds that the same was income and therefore tax- ?

able as such ratker than as an exempt replacement fund.

(f) - The question of federal income taxation becomes ~~

‘one of paramount importance to the Respondent in that =

_ the prompt determination of the issues in.the condemna- ..-

tion proceedings, if- decided as prayed by the Petitioner, ;

will place said funds under the tax exemptions prowiaee ;

of See. 112f of the Internal Revenue. Code. ;

(g)}. Furthermore, prompt decision herein is most és-

sential because the personal property is subject eXx- .

cessive destruction because of the unusual wear and"tear

_miade necessary by the style and the kind of laundrying

arid .dry, cleaning ‘done by the Petitioner for the United

States Army. There exisis no ‘standard or precedent for *

‘rental’? of such. machinery and equipriie nt. Payment

therefor at the fair, reasonable market value of said.

i ee ee

‘ machinery and equipment at the time ‘ot the taking with.

, the privilege of repurchase’ from the \replaceiment fund

liy the Respondent at the fair, reasonable market value,

is the “only method for just compensation provided by

law. The plan, obv iously, of Petitioner is to use said

machinery and equipment as long as desited by the Quar-

-termaster Corps and then to abandon said ‘entire “prem-

ises to Respondent, with the consequent irreparable dam-'

age to Respondent—alL of whieh plan of Petitioner ds

/. contrary to law.

*< (h) Furthermore, it bas recently" develijped that the .

huge boilers necessitated i in this, type of laundry ar’ there

stalled, have become unsafe from the overburdened use”

met of them by the Petitioner. The result is that the

boiler: reskave beceme dangerous to life and property. The

insurance <gmipany whieh has earried the boiler insur-

ance served written notice on the ** Kimball Laundry Com-

-pany’? on. April 20, 1944, that it would be no longer re-

tfol, 78] - sponsible-under the terms of its insurance pol-

icy because of such condition. This important matter calls

for prompt decision of the issues herein, as Respondent

- denies all responsibility therefor. This Motion is notice

thereof: | ae,

(i) Mueh of the ‘other machinery and equipment: has

_ become totally incapacitated 4 from the severe arid heavy

“uses necessitate. Petitioner. refuses to recognize or con-

‘ sider suchi important matter at this time, assorting that

‘‘rent’? covers ‘wear and tear, well- knowing the same to

be legally unsound. < ort:

(j) All the employees, aggregating some 180, skilled

in the operation of-said laundry and who were part of

the operating company of the- Kimball Laundry Company

‘on November : 21, 1942, have. for the “most part gone “else-

where and have. been substituted .by Government em-

ployees of the United States Army Quartermaster Corps,

—and-alt of Respondent ’s customers: and trade have gone

to competitive establishments. e

‘

>»

—

temporary, use.’’” The Petitioner well knew’ that:'s

-64 ne ai. . Pikes. “£ ry

‘Dre Petitioner): wall Feo as that: iene existed rio. meas-

ure*for pay for. sheniveniaciss use of such property as. this.

type of machinery\ and equipment ; welbknowing that said

equipment would be put ‘tg most unusual and exeessive~"

‘wear. and tear, due to the dress of, war. demaitds; and the

pire nio destruction of much of. said machinery and

ent; well-knowing ‘that Petitioner ‘desired a ‘going

: well-knowing that the taking would destroy di-.

. pany; well-knowing. tliat the only source of' income ‘was,

the customers which would all be driven.ayay by. the.

taking—nevertheless adopted an idlégal course by filing |

“a petitiqn whieh stated thet said property-was. taken for

- procedure could got pdssibly give. tothe: Respondent the -

just compensati

.. United States; and if delay is farther tolerated; the re-

‘sults to Resbndent -will:-bé the abandonment of the prop-

erty by the Quartermiaster Corps, the effort of Petitioner

to renounce all claims in’ this action for the very large.

resulting damages, and the attempt to relegate the redress

“for this grievance, to a Court of Claims for Damages. This.

stand hasbeen - repeatedly announce’. by . attorneys’ for }

tae Petitioner as its proposed course. |, Pee

° Vv tee »

the ecpondecs' moves that the matter- be set for de-

termination before this’ Court promptiy, because | Peti-

tioner delayed approximately one year befare calling the Me

Boaed of Appraisers and then obtained an order re-

ferring said ONeve to the Appraisers only on the basis 3

>” of -“rertal.’’

vertheless, the Appraisers in their te-

was destroyéd: by the taking, for which the Kimball Laun-

eae

_ dry Company was entitled to just compensation. The Peti-_

“-tioner refused’ to. permit the Appraisers to) determine the

amount, although the evidence was and is of record: of

gall valygs, and. the same has been certified and filed with —

‘the CI = this Court, for use in this. cause, °"j

“dates : ri ©

tir . busiagess ‘of the Kimball Laundry Come”

ee 4

‘

n provided by Ahe..Consgtitution of the. |

;

¢ » ieee

. aa ke ~ . od - “. % ‘5 4

7 & .? a : - > ati

: ‘ - = es “ , Pete

; e ‘ SE

; a ‘ : ae vias ‘ a Selly ye ; = :

% ; ‘ ee : f .

. * . s —— ‘ -¥ .

7 2

2 Winerefores Kimball ‘Laundry Company prays this ¢ ourt 7

for’ an order “that will ‘forthwith bring this cause for -

prompts trial, ‘cand for the immediate détermination of the

issues presented by‘a Petition ix.Error filed by Respond-

the witnesses for-beth Petitioner and Respondent.’ a

.Dated May 1; 1944. . (Signed Attys. piinared L. Co i:

Service ack, U.S. D. ty: | oe

“@

: [fol. 79] *e NOPICR oe

jo <1" Biyléd May 31, 1944. EOS 8 De

< To: ‘Kimball Laundry ¢Company, | a Corporation, and

Ne County Treasurer of Douglas County, Nebraska. -

You, and each of you, are hereby notified: that the Sec-,

retary of War deems it necessary. and. advantageous to:

- the interests of the United States to extend the term cen-—

demned' in the real and. personal property described in :

Exhibit ‘A’ attached hereto and made a part hereof, to .

June 80, 1945 », Since the. use and possegsicn of. such-prop-

erties ‘will be. required for military aici for an 1 addi--

Fional years

~ You are further notified ‘that, thie"Secretary ‘of War has

elected to exten’ the term which was. conderitned in sald

~ real estate for an additional year ending June 30, he

Dated this dist day: of May, 1944. .

: ue | Bhs, . (Signed: U. S. ‘2B. Atty.)

sol ates ae oS

- [fol. 80} - aN EXHIBIT a) ee pages

‘(Same ‘dneestuithon as at Folio 22.) :

-[fel. 81] . MOTION TO EXTEND TERM. CONDEMNED =

Filed May 31, 1944.

Wherdas, on November 21, "1942 there ‘was file Sttcdn

“a petitiog for tite ‘condemnation of an estate for years

ending June 30, 1943 on the’ real and | personal property -

| desertbed in Exhibit “ A’; attached hereto; and made a

part hereof, and

; Whereas, an adae for finmediate. possession was en-.

. tered in said cause on November 21, 1942 giving the peti: -

wear | 3% : . wr

i :

—*

elufing the amount of, . compensation for the taking, be-

cause the valuations. are praftically the same,as gawen by.

mie es Be

June 30, 1945, |

ne hereas,’ the Secretary, of Way. notified the Attorney.

General of his election to extend said term, and requested.

_ that proper:

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