# Prologue — Kimball Laundry Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0179%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Prologue - **Published:** January 1, 1949 - **Citation:** 338 U.S. 1 ## Text ao . rs ot . - a Wea Ake 4 as . : : PT idee ‘ ; “ ‘ . EXPLANATION OF RECORDS — Re ae 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 : . : ¢_. : . 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 ” - = 4 e: eee heal E : ; : : \ aA ¢ ; ; § . ? : 4 ri . 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. 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' 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 ~* 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 ,. enemy . . = ‘ . e . . * z 2 : re] ene . ae % " 1 : * ‘panersen FOR CERTIONARI-FILED MAY 28, 1948. CERTIORARY GRANTED OCTOBER ut, 1948. | ee ee a ae pees Piece eee, oe % THE UNITED:STATES OF ‘AMERICA +. * ME ae z= — = ‘ ' pie = cs : - i a a 2 ; i: ye in “SATS Lad e 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 .. “ER ANSC Rary * - . . ° s° . Vv ont ME £ “OF 2 we, APPEA! ; POR . » KIMBALL { fe. Hay Cie . ICT ae cee ves. No. 13494 ~% at inited St thes C irchit Couire “of AUNDRY ACOMPANY. RE ( ORD, ieee cen teats snemnten = qpecnmerene a r . . Ty i mY hb Fi ‘ UNITED STATES 0t AMERICA! j ; Aj pie PROM: THI rilk. PIS TT Seah ae DISTR L a) . \* od ~~ 6LS) a te i} NEDIOAS I A Pie. ANETE) 1\ ISILON COMATEA oor ree P Appeals, 3 4 ys — a s ’ > j ; 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 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 s . ZR aun . b \ 2 ¢ & ~~ 7 ‘e : Cd , ’ x * aie it Fi .. . e % « - er! . : g ‘a i ; ‘ vo ° v ¥ ? ‘ o e . ee My 5 a F ‘ : * ; Seg ° : , * ¢ : i ° i aia on . $ 5 . ~ ° . . 2 Me ‘ © é . . dee : J i al F 4 a A - . ‘e . ‘ e% ; Py : ; , + ee “ qs e ’ . “ x whe . . - .. ra é te ‘ e ° . . . 2 . ~ " : . x ' a ° . ‘ tf , “ . =i co a pete » laren: te it / - Ad ‘ ase shail mata - Ss ie - . F . . i . A . pile ed : ps : “> : s . - . é ‘ m gees : > a we : : t ‘ bd . * . - 7 i ae Bs . . . : : . : brig . a4 , . o ss ° ne ‘ ° ; 3 ‘ é oF ° 2 a . . . . . q \ 3 : Ps ’ . ° ; . , es 3 4 a } ; \ *, . . ic V : ; * . ) i se 2 ‘ = tk ‘ . a . *. ‘ 6 | . % Pi } . ; * ‘ . ee ‘ a “ ‘ “0 : . . sane ‘ i ty Me ae EN ste a : , e ’ ° e “ eo . . . : rts 3 +e ’ me : « : . . : nent " ; ‘ i ~ iy ' o : ®. . :° > i . - : ; s ° . . J > . ° a - ‘ “fs : Pee mat s ¢ aj ® « . e ’ o ; : : i ¢ “ . . « . e e : . a . at 5 « Sees . wi . : . s e . > . . " ee ee , * Ow ‘ ? fs ; es. | : ey ; 2 . P : : ; . \ . 3 ‘ . VS e te : : : é é : ; a f od * te * - ° . = . * . 0 e : aun . A be « @ * -. “+ 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- : a 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 , 10. ‘ ae ee 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, © - oe = § 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 eo go 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 LY [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: ~ - 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 | ad 7 i oO i . : . o . - Or “ * ‘ at) ‘ 2 v 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 ~ ag ln olla 1 Oia nn > ° G A ty 7 eight- hour day‘ throughout ta ie plati as when operated by defendant. : | 9. 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 s > 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. e ~*~ Sia we ¢ ° yo 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’ a 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 31 ’ 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 4 [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 ad ‘ ne 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 . ae 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: e 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. &.- © » f . : 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: ye 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 . 2 33 ‘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- — ~~ 36 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 © ‘ q 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 3 sy [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 ee >. 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., : rt 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 : © = _ ‘cheek issued. December 3, 1943... 240.00 : 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, - ) ; aa 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. — - -) ~f ° 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 -—* a 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) 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. ~~ 4 - \ : 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, ~ “ | (10)—Respondent as a mattar of law is entitled to © | ‘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 - ‘taking. © ha | ig Uetree aS hee . -. (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. & ; H é 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 (c) There exists no judicial power nor statutory au: ° _-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 -. - 48 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°: D] 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- Xa cially afte1 ‘the takipg. as before. © ~ 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 “oo further awards tor damages that mary, be, appraised only © 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 further finding correcting the error of record shown by © ‘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 9 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 H - 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 53 - 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 M5s- oe ane £ et Pee Reh. ASE : . f ites Be ae ae i stay = PREY — neh ° a “a r a Pye eA SE RET SARS se ast as Poe) Ai wasnt a so ahi Faas hd a i ne: Baek va * 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. : 56 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. - 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- termined by the Court. - © ° 2° Bee + 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-° taining of © final award in the above-entitled case by en- _ 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, __ ......-- + > e a és OP ah aad , oh ee . : ; es . ‘ : _ ot be. ~ ad * iret ha aan Wd eG pepo op ese wake ek > este Be Mee Re REED ERT DRL a SERS ae Ue Sialic a ¢ ar - 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 3) iy »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. - » — - . 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.’’ _ ports*and findings stated that the ,Respondent’s business © 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 © Pd 3 se 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 Cd a A “@ : [fol. 79] *e NOPICR oe jo ; D : [fol. 84]° ORDER GN MOTION TO EXTEND TERM Filed May 81, 1944. : No on 1 this 31st day of May, 1944, this cause came ‘on eS pet ieard on the motion of the petitioner, lierein for an a order. extending the term condemned in said cause, and =the evidence, ‘and was submitted, to the court, and the "> court being advised in the premises finds: ©. | That on November 21, 1942 there was filed herein-a— petition for the condemnation of an estate.for years end- . . ing June 30, 1943 on. the rea? estate and personal, prop- ° | erty hereinafter described, and that « on, said day an order erefore, wailiianae ‘moves the cout for § an ordet -[fol. 82] extending the term which was condemned in’ _said real and personal property, and confirming and ex- “tending the: possession théfeof in the Unitéd. States for’ - \ [eae ee se PT ee LT ne . ee ee ee ee a) Wa ’ ee > : for: immediate ‘possession of ‘said property was “entered _ Iterein, and- that. by a notice. duly filed in this pyoc eeding . the term.condemned was extended for an additional, year .. - ending: ‘June 30, 1944. That by virtue of said order: the petitioner has’ wre “since said time and is now in.the possession of the prop- erty J involved ‘herein and described in Exhibit. lak “s That. the” Seerdtary of War deems #t necessary sind ad- vantageous to the interests of theyUnited States to extend; : the teri ‘condemned for an additigna] year ‘ending June ai. ‘30, 1945, and has: elected so to do. That the Secretary of War-has requested the a hebuey General, who ‘has instructed. the United States Attorney for the District of Nebraska to file notice of such eagection ,and to transmit a copy’ hereof to each interésted party, and that, such nopice hgts been filed.in, this. proceeding. * WwW herefore, it is considered, ordered and adjudged that the term in the teal estate and. personal property de- Seribed in Exhibit ‘‘A’’, attached hereto, and made a part, hereof, which was condemned and possession | thereof given {fok85] petitioner in the order entered on November | -. 21°19422he and the same hereby is exterded for an addi- —__ tiorial year ending June 30, 1945, and. the possession of the petiti Nor a of said property is hereby ee and | extended or a like. period ending June 30, 2 : : (Signed U. S. D. ‘Sudge.) [fol. 864— vas _ EXHIBIT oe ee ss "(Same deoctipiinn: as at.Folio 22) ~ ' : = 2 . - . x ° g67 , 4s ° “[fol. 87} “AFFIDAVIT OF MAILING. ORDER R: AND ~ MOTION TO #XTEND TERM’ Filed Jane 5, 1944, by USS. D. Atty. [fol. 88] © SUPPLEMENTAL DECLARATION : ' -OF TAKING. Pree ~ Filed Aug. 10,1944. . 2 © 2 To the Honorable The United’ States District Court: “Whereas, I have elected to extend the term for vears | whith was condemned i in this proceeding for-an additional — term of one year is cor ten a 1, 1944 and ending» June 30, 1945; and 7 a 2 ay “e : » : ¢- Whereas: the sum estimated to ‘be ja compensation - for the taking of said. extension term of one year is not inéluded. in the monies heretofore deposited with @his ‘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 gn file in this: proceeding, do estimate the just. compensation for thegtaking of the property deseribed .commencin, July 1,° 1944, and ending June 30, 1945, to gy’ in this proceeding for the @xtension term of one year, bé “$50,000.6 , whic sum I. cause to be’ deposited : were: } with in -the registry of this Roncrable Court. for the use | find benefit af the persons entitled ‘thereto. T am of the . opinion that the’ ultimate award for said eXtension term. will probably be within any limits prescribed _ by jaw, as: the price to. be paid. therefor. In witness’ whereof, the petitioner by. its: Secretary’ of. War thereunte authorized has caused: ‘this Supplemental Declaration. of Taking to. be signed in its name and on its. behalf by said: Secretary of War this 26th day of Julya | A. D, 1944, in the City, of Washington, District of Ce “lumbia. | 3” _ Henry t L. Stimson, Secretary of War of the Duited § States. Bie 89] . sv DGQENT ON’ SUPPLEMENTAL Lo ae DECLABATION OF TAKING ° ae ae |. * Filed Aug, 12, 1944, : Now, .on this 12th. day, of , August, 1944; this atten coming *on for ‘hearing xipon: the motion of Joseph - T. —_— , Votava,,.United States Attorney -in and for the District. -of Nebraska ‘an _ United States Dapartment of Justice, attorneys for the - Petitioner hereintto enter judgment on. the ‘supplemental ' - declaration of t “*e _ & ing filed in the above entitled-cause on harles D.' Hitch, Special’ Attorney; — the 10th day of August, 1944, and upor: consideration” thereof and of the condemnation. ‘petition filed herein and — the statutes in’ such cases thade and Brovided. and it ap. ‘Bearing to the satisfaction of the Court: 7 a ° : a ee! "6 | i 69 to acquires .property, by evninent demain for the purposes - asset out aitd prayed in said Petition; - Second: That. a. petition, in ¢ondemnation was ‘filed at eral of the United States; ° election .of the Secretary ‘ {fol. 90] posited jn ‘the, ry | & ira 3 8 Court, Clerk of ‘the United Statés District Court, at _ Omaha, Nebraska, without prejudice to the position. taken ee by the respondent as’ shown by the pleadings and files herein and not as an admission fipr an acceptance bythe - “ “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: — hs 2 — Nebraska, this 7th dex of August, ‘1944. ee Pgs Attys. for, K.L. Co.) | “Service ‘ack. by U.S ap \. Cl e— . | : 2 weet 7 el _ Lol. 93], - » ORDER . os Filed Aug. 18, 4944. 7 ; This matter - ‘coming on for hearing upon the ‘appliea- : tion ‘of the ‘respondent forsthe right to withdraw a. de. * posit of- $50,000,00 made with the R&zistry of Court,” _ Clerk of the United- States District Court, at Omaha, Ne- ‘braska, in. August, 1944, and the same havin beén so. deposited by the petitioner as rental for temporary use of the reéspondent’s property: and the respondent, as’ — , Shown by the pleadings and files herein, having joined issue with the petitioner by denying the right of the pe- ~ titioner. ‘to pay rent for the temporary, use ‘m liew of damages ‘as compensation at the time éf taking; and it appearing-that said issues jn said proceedings are hefore this Court for determination, together with other -issues— , involved in said’cause; and-it appearing that said funds might - -be withdrawn by the respondent without. prejudice ‘to its rights and: “without prejudice to. the oo of ‘the | " petitioner. Soc ‘It is therefore. ordered: that the reihgondicnt, Kimball. Laundry Company, may withdraw said suni of $50,000 : _ so deposited in August, 1944,-and in so doing ‘the same — ‘ shall not be construéd as admission by: the. respondent of the pesition taken in sald eause and in making said,” -itender by the petitioner herein, and the same may be gf withdrawn by the respondent without prejudice to Z Fights of either party, save and except that upon thg“final award of this Court the said _vitedegyt shall be ye gPedited _ thereon.: _~ Dated at: Omalis, ‘Nebeashe, this: 18th xe ert 1944.: ? (Signed. by. U. 8. D.Audge.) ass The within Order is; approved as to f m, and, Peti-*: tioner consents to the withdrawal of .thé funds in the - Registry: of the sca in as prayed in Sepa s appli- , cation. (Signed, Ss. D Serr: = P ° ae ; nd gh “{fol:94) SECOND, MOTION OF THE RESPONDENT © - a> TO ADVANCE CASE FOR TRIAL. | Filed Oct. 25, 1944. So eiarae,. Mieke ae Coma now. the Respondent, Kimball ‘Laundry Company, > yand moves the Court. that. the above entitled case be set - for trial at an early: ‘date during the present jury term, r ° . a The -Petitioner heretofore in open, court has: requested : ‘a‘jury trial. In view of the faet that at present a jury- "has been called and is now s serving, Respondent* files. this - Motion and.m kes special reference toa previous Motion . to Advance fér “Hearing filed by the Respondent on May . ~-2,°1944, which Motion was argued ‘and: sybmitted* to the Court on r about June 7: 1944, ‘at which-time the. Court | _ entered Aan order setting the case for-trial when a jury” ae cin 3 ps The jury has how been ealled and is’ serving. } h e Petition for tak was filed herein on November 91, 1942, at which time tl etitioner took possession of © oe the Respondent "Se. business, . and‘ is now 4nd has been -at - all times since. in possession and operatior. thereof. | Til So \ A searing before the Board of Appraisers was held approximately one year after the taking. Both Petitioner and Reg¢pqndent appealed from the findings and award ‘of - the —— within the time provided .by law. Tv. | in addition to the appeal the Board of . hiiaieaws: filed by the ae he in ‘Error. was filed by _ ‘Respondent and is pending before. this Court for review. Said Petition in Error is by referenc d part of ‘this: Motion. In said Petition in Error all-tite legal poin inxolved in this action have been. placedim: issue. ( Fhe ‘ Nese stands ready upon one day’s nofice from the: Court to argue orally the merits of said Petition in Error. Respondent has heretofdre filed with the Clerk and sub- “mitted to the Court a brief covering the legal, questions © - a ? -_* ae — ‘and i in. support thedeot. submits the followi ing oe: em : . _ 14 oes ON Se cia ea 3 facades and aid’ go Septsmber 27, 1943, eee ‘Serv ved sick | of the 1e_samié upon “counsel for Petitioner. ott i _V : sr + No: point has ‘been: raised in the vase which in any man- © Me ner challenges the.right of the Petitioner to condemn and ‘ take immediate possessioneof. Respondent’ s property. It was) peaceably surrendered in recognition of the .Peti- tioner’s legal. rights,. with reliance upon this Court’ for ‘prompt and immediate: adjudication by Judgment which * Eee « When paid would «place the Petitioner in the same finan-. - [ fol, 95] cial position’ as before the taking, and further would be the legally Fesoiniaed replacement faye _ anteed to Petitioner by Spee ee he United States District. Atiotnes has stated to eéun-- sé] for Respondent as his reason for the extended delays: ‘that issues. herein involved. are ‘now pending before the Supreme Court of the United | States; that ‘this “cause@ should therefore await trial, hearing, and decision until . such other case has been determined by the United States *® . Supreme Court. Counsel for Respondent has: made in-. _°” quiry and finds that there is. no case pending before-the - United. Statés - - Supreme: Court. in which the issues are | the same as. in the ease at bar. The case referred to: by the’ United States District Attorney: which is pending . before the United States Supreme Court is probably the. -eondémnation 1 proceedings: ‘by the. United: States against . . ° General ‘Motors Company cited in (146. F. (2) 873: (7th. Circuit; opinion February 11, 1944), in which taking by . the Petitioner was the ‘temporary use leasehold or .“ possessory right only which the General Motors. Company - had for warehouse space in Chicago, Illinois.. Such case | involves’ the questiens of what elements of damages may ~ be considered by the Court in the taking.of the pos- sessory 0 leasehold : ‘right which was the condemnee’s — \ temporary\use. Whether or not the expenses occasioned ‘\ > by-enforced rémoval and the: rendering valueless of bins _ ‘and fixtures left behind were compensable damagés, are issues in that’case. The United States Circuit Court of — Appeals: ‘held all such eres were eoinyenatibe in. cash, Vi | r s : ‘ o. . oe *; ° « oe pasunent. ~The Government through the Assistant Attér- ney General, Norman M. Littell, seeks to deny. these dam- ages by reversal of the .said- case in the United States _ Supreme Court. Certidrari was granted May 29, 1944. Thus, it will not bg .reached for decision for several” | months, When it is. detided, it will riot, according to the > & reported opinion from the Cireuit Court, cover the ques- - tions before-this Court in. the.case at bar. E so, the / - --pendency ‘would be no proper reason for. denyi ying Re- - -_° spondent herein the prompt. trial to which it is-entitled — | “. in the extraordinary proceedings of a condemnation case. Hay ce 9 | The ‘business of the Racbsndont ‘consisting of iand, 7 | building, appurtenarices,* machinery; and ‘equipment, ‘and - a.complete operating laundry and dry cleaning business, - bas ‘been taken by the Petitioner, for which business Re: _ spondent should have long since. been paid ‘its full fair market value as of Novemiber 21, 1942, as a complete re- ‘ placement fund. Bs z pas tee Re WER he i Ole : The fair, reasonable value. of such going business when _. taken on November 21,. 1942, is the only measure of just. \ ‘compensation for the - ‘Respondent and is guaranteed. to \ ‘all: condemnees who were in the absolute ownérship ‘and ° : ee ef their property. at the date of the. taking, - ~\rather. fhan-an enforced so- ealled ‘‘rent’? thereof for... so-calléd temporary use tendered’ by Petitioner .in “the case. at‘ bar. Petitioner well knows that’ at any time it lay abandon the premises and thus leave the. Respord- ert. in further position to suffer further losses with fur-- ther litigation, which the law. has designed to avoid by "providing a replacement fitind in money, rather than an _ imaginary ‘‘eredit’’ by the attempted return ofa de-~ -gtroyed 1 business plus tetidered ‘frent.”” The law makes fo provision for such’ procedure. The Petitioner seeks, , nevertheless, to place Respondent in such disadvantageousy, / position by continuing to delay a trial on the merits. ' [fol. 96] -Therefore, Respondent: requests the Court upon its own. Motion -without’a hearing hereon to-set’ this case for trial at an early eate at the convenience of the Court, om Aaielean the Court has heretofore ‘eae and ‘determined: that the Respondent was entitled to a hearing: at this — ' Aime. Likewise, it .has been previously stated by the Court $ tliat the. counsel for Petitioner must arrange their ap- ‘* pointments in - Epatieg ote to the -trial-of the ease ac- > eordingly, - . Respondent requests the Court to advise the Clerk. to. notify respective ‘counsel of the day set for hearing by _ Siving at least one week’s notice of such date. wit eo ‘Dated, at ‘Geant, Nebraska, this 25th day of October, el. 1 a’ Rese ea (Signed by K. L. Co. Service ack. by U.S. D. At [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0179%3A0. Public record. Not legal advice.