Petition for Writ of Certiorari — Kimball Laundry Co. v. United States

Supreme Court brief1949

Ask Donna

What actually matters in this document.

Text

of Ameriea.”’ The: appraisers. also creported that the'y

recognized that at the time of the return of the property to

the Comp any there wonld be damage for loss of patrons. ,

bnt that a iajerity of the Board had found that the dani.

Sage could not be appraised at the time their report Wits

made, The Cove rhinext and the Company hoth took ap

peals” trou thie wwardot the up praise gs." :

* \

4 _

The trial tor Ahe ascertainiie nt of the ‘* just baat Wen

ton” due the © ‘ompany lie ‘wan On Mare ‘h.4, 1946, before a

jury, and ended Mareh 19, 1946. The Company contended

that ‘the Government, while ostensibly taking only the. right

to nsesand oceupy’ “the tamhdry, Mad ine legal “Utrect taken all

of flie | maspet "s physical assets and its business as well,

sine hidlingAts trade rentes and custome Psy. and was obligated g

to pay the full market value of what was taken, estimated

ty hie approximates $1,000,000, The. ¢ ‘ompany also con-—

/Aended tha? if the rental Wr wee v alue of its taundry Was to

he tised eas ure conipe nsition, evidence: of ‘the value of

ibe 7 Hea SHE eustoner was adutissiple as an ele-

Yoent ot aly ge A ht ee ae

J. \/* ; af ~

Fhe Qovermment assertatl that ust. compensation ‘Was

“to he ihe’ asured bythe 1 iarket rental ov. use_yalue of the

laundry during the period in suit, plus, the cost of restor-

ing the pint. and mae hingry to the condition in which they

were Gu N6vermber 22, 1942. Q

The District Courtatas in aecord with the Government’ s

‘otheory.as to thre geere + basis Tor determining just ¢empen-

sation. The court's rilinge amd its instructions to the jury

were i substantial conformity: with that theory.

2 oe Pn

The jury hy tk ve ‘relict, filed March 1), 14a, ‘determined

that thie compe neation die the Cormpany for the use and. .

OCCU PANES of its, laundry for O06 years “(November pa 1942,

‘to June 30, LH) Wis $207,776.08, consisting ot use or.

gx 2

rental value of $ 79,000 per anni, 2 ON) for the term,

and #45 1603 ade litional compe sain att failure torre.

turn the property inthe’ same condition ‘as it Was on Now,

vember 22, 1420. Indement was entered on the verdict:

“The court added interest at 6% (1) from November 22,

1942, untib paid,-on the amount acjudged dneé for the use of

the laundry from, Novermber 22, 1942, to June 30, 143, and

(2) upon the amount due © ach vear there after from the he.

cinwing of that rear until paid, ewing credit to the Gov-

ernment for’ {lie stims deposited as estim ated com pe nsation.

Interest w as also added fiom March 20) 1946, until paid,

on the sum of $45,776.08 awarded for failure to return the

property in the same condition as wher taken, :

On Mari I 3: » 1946. the Gov ernment re tur ne “d the k tundr y

* to: the Company; and on June 1, 1946, the Governme nt

paid-inté court FS, 124.27, the aneunt required to satisfy

the judgme mt. The Company Was permitted by the. conrt

ty withdraw $7. 9,000- 0% this’ sum without prejudice to the |

eC vompany ‘s right of appeal.’ bse Ce ee oe

ini ‘

Yor ‘the purposes of this case, We-shall assume, without

deciding, that under §-258a of “Title 40 U.S. C.A., the Com-,

pany could, accept $75,000. of the amount Which the Govern-

ment had de ‘posited in court to satisfy the judgment, with-.

out Waiving the x ‘ight to tad its validity. :

: the Cofapany’ s brief, “Points Relied * upon for Re-

cea are ninnbered from I to XXNIL. Thev. relate to

the inst rie tioys of the court and to rulings. with respect to

x pe adings and evide Hee, Most of them are not argued in the

Drie? and Virtually wll -of them reflect the sdivergence of

views of counsel for the Compan¥ and those. of the’ trial

coutt relative to the proper standards for asce raining Just

compensation.” An unaretied assertion. of error is no more

helpful to an appellate court than is an unsupported allega’

tien af Tact to a trial court, The burden of demonstrating:

. rae. ry : wae 7

. .

\ .

io»

. oe. . .

error is npon an appe cant JNand. errors assigned, but not,

argued id his bnief, ‘are, waived.* . |

In igs brief, under the hes ding’ Statement of the Case,"?

the C ompauy aves eae Renewie:

_ “At the outset, appeilant believes, this. statement of the

Case wonld: bé lacking if counsel neglected to now state that

errors are assigned principally for the failure of the court

to permit the introduction of competer it-evidenee as to the

fair market valueaaf the corporat im assets as a going ¢con-

cern with its existing established trade routes at the time

of taking on November 22, 1942, and to instruct the jury

. accordingly. Tristead, the trial court took-the position dur-- |

ing the trial- that just. compe sation should be measured

only as-interest at some per cent-on the intrinsic valué of

the land,.on the intrinsic value of the building, and en the

intrinsic value’ of .the- mac ‘hinveryv, and so instructed the

_ jury, and excluded other evidence offered as* to fair, rea-

sonable market. value. Evidence of estimated,cost’ of re-

pairing. damaged property was pernuttéd, by government

‘agents unfamiliar with the actual damages. The govern-

“quent did not repair or restore the. damages to appellant’ s"

- property. Its agents merely estimated what it would cost to

place machinery, ete., again ,as- “it Was on November «ae

1942.) ~*

Zit thus appears that the ( ompany? -complains mainly~6t_-

(J) the standards adopted for measuring * just comppnsa-

~ tion, and (2) the eyidence of the Government relating to

the probable cost of repairing or restoring the damage to.

the. plant and machinery-attributable to the Government's

-use and eccupan¢y: — ihe SSE") Deke Gaal Braet le ea oe

— 3

The Company, iv its brief, argues four ‘*Propositians of |

Law.’’ We shall-discuss them in their order, 0+.

eae a py ne 8 ee ee ey nt nen cee en rm en oe a 0 em nee what, poentnmnenaes een neat yom es

, ¢

OM, “og vil ideas 8. Car. 13 F.2d 921, gor. f la re Sch 13 te ei nited, Inz., bed Cie.

as F 2d 55%, 359; Metropoktan Life dns. Co. ¥ Armstrong, 8 Cis, 85 F2d |

"195 =. | 7 ete

‘sp enter: ae" ¢. Stick Commission Co -v. Lee, & Cir., - F ad il, 13. 14 atid :

cases erted; Shevenell-y. Beg py & C ir, 35 F 2d 421, 422, American ings ee

Cea..v Se eu fler, Ss Cir, 129 F.2d 143,145

§ . ere ee te

The thirst proposition, is stated ds follows a

OW hen all the: physiéal assets of a goilg imsiness, ‘such

‘as.a laundry and dry cleaning: corporation, are condemued

for the purpose of governiaie nial operation of the same |

business for the exchisive use of the atny, thus’ putting the

condemnee corporation. out of. basiness-e ntirely, the: fair,

reasonable market-value to the corporation, us a woing con:

cern on the daté of the taking forms the proper legal basis

upon which to measure such just compensation: The estab-

lished laundry trade routesy when se preven to hase’ a

readily ascertainable value on the market, form a part of

the composite fair, market value an’ the-daté of taking:

These. routes are distinguished from the noncompe usable

items ef good will, loss of profit, and Joss of further bus:

ness. If it-is proven: that these routes would be destroyed:

as-a “natural consequence, known tothe condemnér .as a

‘rect and proximate result of the’ taking of the physica |

plant owned -by the condemnee, their value forms a hart

of the total value of the compensable property taken, The

‘refusal of. the trial court ‘to receive: cofupetent ev idene e

offered to prove suc +h value is-veversible error,’

We cannot accept this. proposition , as the bina: The Gov--

ernmejit took: exactly what. it purported to take, -hamel¥,

@ temporary use and a@upaney of the: Company's Jaun-

“dry. The Gov ernment did not ‘take or intend to take, and

obviousiy could not use, the: Company’ = husiness, trade

“routes or eastomers, No doubt the Government ‘s wens a

tion of. the plant disrupted and “damaged the € ompany’s

- business, although ‘it. could hardly have destroved the de

‘mand for laundry service. in the city -of Omaha or disabled

‘the Company frem ever ‘re-establishing its” business. if

the taking of the tenporary occtipaney of the Company’ .

laundry were to be- vive the effect of the taking of fee

title to the laundry, it is ce ‘rtain that the damage done te.

"the. Company’ s business: would nat he compensablé under

the Fifth Amendment oe est saa Te

38u nited States v, Pe hy ; Mote Co, 327 U-S. 372,

v. General - Motors Cors., 323 U.S: 373, 379-3805. 383. United States ca vel

Tennessee Valley Authority y Powelson, 319 US. 266, 28] 982- Mir chell v.

United States, 267 US .341,-345; Joslin ManufgSuring Cov. City of Prez

dence, 262 U.S. 868, 675; Botliwell v. Cnitéd States, 254 US |

. ‘

o. Z . .

ao” . - Aa s g a 5 . ‘)

° s

‘Tt éannot stigcessfully he: drewedt that wae ovinion of: the

pion gebivagh ourt in Cwited* ‘Stat ay. ir weral MotarstC OV ps,

25 ELS. 673, contains jmplieativus tint all Conseque nitial

-duuinges a caused ly the taking of feamporary

also said in that op inion: (page: mt Bit):

items of damage but to aid Mt. thie de ‘termiifation at what

~geked atid paid foy sych te mporary oceupaney of the build

would-be the a the market: ‘price which would be

by a

ing then in lise

- s

AE ead Proof of iinet costs free essary costs to comiemnec

for reinotal of personal property, its storage and ity re.

turn} as affecting markét value-is to be distingufs hed trom

proot of-value peculiar to. the-respondent [| condeninee |, or

‘the value of good-will,or of injury to the hus siness of, the

respondent which, in this case: as in the case of the con-

demnation of a fee, must be exeluded from the ree koning.”

In the ‘ase of L nited States vy. Petty Motor Co., 327 U S.

872, which involved the taking of the leaseholds of tenants

in addition to taking the gemporary use of a fee, ahe Court,

ih distinguishing that case from the General Motors ease,

‘said (p. 27 9-380) : e

ae, > There isa ‘fundamental didtarcnce hctunteis the

‘taking of a part of a-ledase and the-taking of theewhole

lease, That difference is that the lessée must return to the

leasehold’ at the eud of the Governneit’s use or at least

the responsibility for, the period of the vase: whieh is’ not

taken rests upon the lessee. * 6 * Because‘of that continu.

ing obligation.in all takings of teniporary occ npancy of

leaseholds, the vaige of the rights of the lessees which are

faken may he: affected by ered nee of the cost of te mporars

remocate [ Ttalies suppliet. | be '

dn the. instant east, had The Governinent taken the one

porney, use. of the building alone, and hfid the: Company \

beeen required tore move its “mitchine vy and equipivent, and

to store.them and then. return them to the building al the

end of the Gover nment’ s term, the necessary cost of so do.

¢ ° °

vecupaney of w building ine” Ite prove d‘tnot as indepetident

(Page “i83). This, hecause-the Court *

1@- oe o : ” : i *

eek: eee, ary oe ; ce a i

ing, as Hearing,on the question of the-market value of the.”

aise anil-oc c apane take uy oud, ne donbt, di: ive been proved;

anh vonsidered, es

"Whe re the rig ight to te mporar d dec apy ‘property:

“is the inte rest taken, Tust. coniypengation is the \ vadue- on the.

market of the use ‘and. gcenpaney (U° nited States % Pe tty”

Motos Ci O., SUpIa, page 37. 77), but ev idéene ‘eof bax of profits,

damage to good: will, an@other such. consequeritial losses

“must. be excluded in dete ‘rinining market value, Td, pages |

‘377-378. > 2 ; Sees Coa mine car a: ae .

cert eee 2 Be ‘ : 3 eke ‘

The compensation contentplated bP ihe F ith ‘Amendinen:

‘is the market rental valu nf the temporary | use and occu

pancy taken. United States ©. Ge me ral Motors OF Pry SU pra,

pages 382-383 af 323 ELS. Ti. effect, “the Governmewt takes

“a lease and jis obligated to pay as, rent the full market.

re ‘utal value of the property oceapie d. Tn: addition, thie own:

er, as. the constructive. lessor, Is ‘entitled to additional com.

pe sation for ny destruction, dam ige and depre ciation

in Value of the property oceasioned hy its temporary use,

Ida pages 383-384. The Government, as. the. epustructive

lessee, obligates itself to retin the property in as good.

condition as when “received, “ordinary wear and teavand |

damage-hy the elements alone. hereeg dca

to the \ calue of the C ompany ‘s ‘trade routes: anc customers,

—

or going business. ws cece Pan

‘ * F _ mae |

| . 3

Ip he Ccngene's second ** Propasition of Law’? is’as fol-_

— |

Pelvis. ; here the trial’ count rejects or rec e1Ves evidence fe ‘which

adversely affects a substantial and inatetial right of a par tv

litigant, the « cause should be rev ersed.and remanded.’’

mf nder ‘this’ pripos ition, the Company states that wit-

_- esses were yermitte “d -to testify w fo did not see r know

the property as if was-in 1942, and knew nething of

_ fe

value atvany thme; that ihe Permiuda used by the Govern-

ment’s witness’ Weber formed he. wionie ite basis for de-

termining just “coun pe lsation: that there was colipetent

evidence of fair rental value, int ‘that it was niallified hy

the court's instructions. eh Poa ey

The Piatti Court’s ¢harge. is nét a model of concise-

° : : vm) oes os, . nx ms a . . a °

ness or accuracy. It contains statements which “standing

- alone are subject to critic ists, such ass. ‘*With, these con-

siderations. in miid, how are Wwe goine toe find the fair

rental value for thie, use of ttiis propel ry? There does not:

seem 16 hie’: anyone qnalified to hiekp ussrei wh that figure.

We must 3 sabe it; however, from such, evidence aS - we,

\l-

can obtain.’ Taking the clarge as a whole, however, we |

think it ade quately: apprised the jury of the; applicable law

aid the conside ‘rations pon whieh a verdict could lawfully

' be based, and did’ hot nullify: the pertinent ¢ evidence ad-

“mitted. Moreover, “after listyning for two weeks to coni-

Hiting estimates and opinions as to fair rental value and

chikery attributable to -the Government’s use, the jury

could. hardiy have had any illusions as to the’ issues of faet |

which were presented by the evidence, So far as the rect”.

ord shows, no attempt Was made by the, Government, dur.

_- M¢the trial, to minimize the usefulpess or capacity of the,

laundry or to show that it was not complete ‘ly equipped ‘and

1 profitable oper ration when: taken over by the Govern-

ment. “Tt insisted, however, that the Conipany “was not en-

ve to hi ave Joss of trade routes and custowners, expenses

f litigation, and other consequential di mages, considered

in ade fe rminine just rinse citi ition for the nse t ant OCCUDANCY

of the |i aundry.- °«).

The inarket rental value of the a and the damage.

aud deteriovatiy i res suiting trom its ise v the: Gov ernment

. . °

. : bs a

° . .

4+. 2 iy . ° . .

A % ° 1]

. . .

‘as tocdaniages to and detérioration of the. plant and ma- *

m f

‘ployed by the Goveriment te ‘estimate rental value and.

Their credibility, the. weight of ther testituony,’ and ‘the

5 i : : ‘ “ * ”

had to be estimated. There was no actual market for the

tempowmiry tse and-oceupatiey of lanndries.. The men em-

— daniage’ toe machinery and equipment were competent and

qualified to do that work, Their testimony was adtnissible,

sotmdness of their options were for the jury to ey valuate,

/Seenson ye Mutual Life Tus, Co, of New York, 8-Cir., 87

fied that he kiows the property and its Viglue, lie may be

called upon to state such value, The means “and extant of

his information, and the refore the worth of his opinion,

| may be developed at length On LV Oss-€ sdmination, °? Mon-

tana Railway 'o. v. Warren, UF US. B48, 354. Whether an-

eEXperk witnes Mepeaifid to testi’ is priharily a “question

for the trial judee, whose determinaffa-can be upset only

for-an abuse of discretion, Lore vid’ ited State ye. Se

141 Pid 9st, O83, ‘uid cases cited. The fact ‘that mi ny of

iPGsecmine Mts experts on valtic or on damage to equip-

ment and machinery had not seen the Jaundry in 1942 did

not disqualify them Lo testify to their vstimites, of its value

at that time. They had heard -the condition of the plant

and machinery fully deserjbed, aud assumed that it was. in

either gbod or first-class conitic hon dat the time the € overn

mett took over,

The ate oe of Law No, TD? ts: |

The conduct of a ase bhi conde mination under the fed-

eral statute shiall be eoverned hy tlie law's of the ‘state: in

Whiiv h the condemned prope rty is ‘loeated.’ “ey

The contention one is that loss toa Inisiness occasioned

by a taking of property under the power of eminent domain

is compensable i Nebraska. What pustitites property

and what ts Just-compensation i wher the de th Ame neinent

is liota cplbe st Lert of Neliru- kit. law, a cok Leake ral law, Niate-

‘of Nebraska yf witegd Stal ¢a, & cf 1 F ey HG, SGT SGS.

‘ é 7

a5 2d 441, 445, and cases cited, ‘After a Withess has testi- .

- “~e

—

716.03

The Cc ampany rete ys alse to the refusal. of. the court to

permit ‘the introduc fion,-in ret buttak of evidence proffered *

to show that the estimates BT Government Withesses as to

the amounts. reqnived ig restore ‘the faundry to. its former

condition were too low. Thre testimony re jected: was a pay {

cof the € ‘omnpaliy ’s (iain. (ase. The order of proof on atrial

iss large Iv within the dfeeretion of the trial court. Phila.

dT phia & Prenton Railroad Coe v. Stem py son, 14 Peters

(39 -ULS.) 448, 462-463; Wills v. Rusxell, 100 U.S? 621, 626;

3. Ane dai, Wrial $115, 116) pages 101-104. Phere “was

no such abuse of discretion ify rejecting, the: Company’ s

si red evide nce as: W ould weirrant a reve Psi il.

; é

“The Cc guIpans tee coaecsiten of Law No. LV ’* is as fol-

lows :- are She: | fe -

**Wien ‘payments for just compinsation be e delayed,

‘additional * compensation measured” by 6% wot. the. total

amount ultimately found dae from the date af the, taking

aust he as a matter of law added ti the Judgment, with

eredit for the amionnits pid with 6% ‘added to date of ulti-.

tite judgment.”

. .

Section 2 oka of Tithe “40 U.S.CLA, provides: xe ix and

the said jlidgment shall ine ae ‘is part of the’ dust compen-

sation. awarded, interest “at ‘the rate of 6 per centum per

qin onthe turount tinally awarded as the v ailne of the

property as of the date of ts tking, from sid date o. the.

date of payinent: but interest shal net be allowed on se

cnuel: Hhereef as shall have been paid into the court’? The

Company contends that, sinee the niltitns ate award was $297,

, Interest Should run at 6 of, the entire amount”

from November 2%, eer the date of payment of the

dudtruent, Without ine! tditig, emcee: interest on “sdntis

“gi ‘posited as ¢ stint ited colipe nsation,

The questyin presented is net free fram doubt. From 4

yeah, stir viewport what the frovertnme ut took, on Novem.

B28 te > is

. *&)

pellant, Kimball Laundex Conipany, wilh be submitted tor

PORTO hy the Supretie & nwt of the Waited Strtes: Xp

pelhint will petition the Suprenie Court of the United

States to ‘writ a writ %T ce Miorari, as the appellant in

eeod faith heheves thet 3 its. LiPo) oy ty has: heer faker Hy the

condémnor without Just conyrensation isaprovided i the.

Rifth Amendment to the Co nstitution of the U nigyd States

and: the federal statutes ‘enacted j parsuance of ithe sand

constititional provision, meee

we? This applic: ation fox: ‘stav Is ‘based 4 | Cnt See Trot oR :

fa) (bd (ad), 43 Se ane, Deitys Section 3517 of the Jadicial

‘Code found af 28 UL SC. AL 1947 Ciimulative Pocket Part,

page 138. a ; av ee .

3. Surety compariy ‘pond is on tile ‘te guarante e all Costs

on appeal,. ancl in addition thereto there ts on dey vosit with

the Registry of Court in the office of the Clerk of the United

States District Court at Omaha, Nebraskay in thigg cause

[fell 19] ample eash as the property of the appelkant, im

ball Laundry Compan, #6 rote neainst all costs and ekx-

penses that might ultimately. be taxed: to the “aid appe ‘II.

Ui tye Kimball Laundry Company, in this cause,

4 Said Kimball L anndry Company, 2 corporation, the:

sppeitaut Will be the petitioner for said writ! of certior: ari,

and this stay is réquested in accordance with Rule l6{e) of

* the United, States Cirenit Court of Appeils for the Biehth

Cirenit and is requested for a period‘ot thirty days. Dur--

ing said period of time there will be filed with the Clerk of

the United States Circnit Court of Appeals for the Biehth

Cirenit a certificate from the Clerk of the Supreme our

of the United States that the petition for writ of certborart,

record, and brief have. been filed. ‘Phe petitioner Tetein -

will coryespond. with the Clerk’ of the United States Ch

cut (“ort sored vilae e with him etoh chery sett as. may bg ey gs -

quired i in pursuance. of Rule Frrej and Ce) in dite time and,

“within satd thirty. ‘day period, in order that the Clerk ina

hee. fully Compousatedt for. costs as in-such easesanade and:

prov ided. oe : at mn $

| “8

“o, his atid gsoninde in eood faith amd not for

the plxpose of delay. and is for the purpose of obtaining a

reversal of thie opiidon and jad: ote ut of the Unite d-Sta'tes

i] °

— -_

: . F J WG

7 od > ° - % :

Coypenit Cort of \uopeals for the Mrehth Crreuit ‘al em

ferred te, : < rf

se i as ; x

e © , ? ° : 4 e . , _ cc?

Dited at Qriatur Nel aeKa, fh th dav of, March, 14s,

VENDRY COMP.

Adtiny fics

Hotz & _ =O oe ye: i ™ alld ;

W itiam J. Hotz, . tg eae A p Sea se J .

.Wilfetn F, sees eee ees. ‘ ae eed

‘ we ¢ ; 7 ‘ Q 7 :

(Endorsed) :° Filedsin (. S..Ciréiit Court of Vpreals

: ~ ren es < “. : her

Mains 24, 1948, :

~ fel, 26, (Order Staving Tzsuance of Matdate.)

. : é a . esc : , ¢ ies '

% eas Marcle Teri, JO4s8

ill aos Pi At or, Ba cP Thivsd ay, March Jo, Tad, +

“On Cousideration of the ni oblan of Apps ‘init for a stax

of the tiaeaiees in this canse pinding a petition to Vi Su

preme Court of the U ite 7 ‘el & ite fOr awe it of Certiorn ari,

Tt iS now here ordered he this Cou ty that the igsudnee®ot

the thandate herein be Pe the same is hereby, sta'ved Jor ite

a periad of thirty day<- from and after this date. and if

Within said. period’ of thirty daysythere is eased with tits 9

Clerk of this Court a co rtifieate of the Clerk of the Su.’

rene ( ‘onttiot he linited States that a petition He Writer,

cefiorari reeord and drief diave heen filed, the stay dere”

hy ‘pee Shall coutinue nti the final disposition of the. ,

case ] Ww: the Supreme Court. i oa es dks :

- me ih Marely 25, 148).

silane 2 a | :

AY pheation toi AG ditiond! Stay of [ssvat ve of Mandate.) *

ai a eM :

VW foray t riteen, : a

aera ae ; > April 16, 4s,

H.-F. Koch, rh ° hee : 5

Clerk, U.S. Cirenit-Court.af Appeals, > 7° ;

Lous, Mo.

: Please. consider this wire application foroan additiupal

78 v7 * 4 : pe iy “o8 ; . ,

fiftecy, days front Aprif-Tieenty. Fourth for ‘staying of.

; : i? sigs

9 * * } Z | *-

“Appetit Kant '

‘

’ . a fo hecere ns . *s0

teen alass herein appled tor rhe vise ely oss

a petition ier wren ot.

the further stay liereby. granted shall continue

~ Mandate iw Number Thirteen Four Ninety Pour, Kimball

lfol; 21] vé. United States. Wo dave eseotlent canse “Lor

request ‘if suah showing HOCESSAP ve. -Feder: il Nt: tate: vrants.

é .

us Three Months fot Mare " Ie les venth ty fili~ ‘Petition for

Writ. Therefore we assinie vour Rule Sixtech Codecs het

prechide @ireuit Court from -crantinge the addiptigal fit

‘ : Wire,

re WILLIAM . HOTZ,

(Endorsed): Filed in U.S. 4 row! ‘Court of: “Agapeat

Aes Re io bieoraates

: ‘ oi oo ‘ : * $ ; .

“(Order Further Staying Pssuanee of Mandatess :

an ae baeapeae — Mareh Terug, THe. ©

1 : ; ricreoer '

; Saturday - cance TMs.

Ow Consideration sof thie ‘ap phy: ation of “ay ped icinnt tee a

farther stay of issuance of the runfidate in this eanse pend

ine Ape litie Hitte the Supreme Court of the Lonited St: ite a.

‘It snow here ordered hy this

fora writ ef certiorari,

died re ith ie . and the

. aurt, tlist- the issumnece of the meetiitate

SAIN YS here by, further staved Fora pe rrodeol fifteen di ates

Prony and after Aprifi v4. 1Od8 cand if within said period

there, is filed with’ the Clerk of this’ Court a-gertiicate of

the Clérk of the Supre ine Court of ihe United States: that?

certiorari, record and brief have

heen filed,

until the final disy josition of the ense hy the Supeme Cours,

ey. Aprita7, 1946:

fo Zot. (Clerk’s Certiiceaté.e —. :

lanted- States Cir@iit Court of Appents

- Eighth Cirewit | -. oe

zs.

‘he forevormg tr: AnSeript: Tonsts tines of four volumes con

-intus printed srecorel filed ‘on July 2,

three volumes; Votume DP consistingeof pages a to ISO, -in

. Fees ae : c/~

I EOE. Koch, Clerk of the Uuited States. Ciresit Court:

Appeals’ for the Kighth Cyenit, ‘do hereby certify that:

) 1947, composed ot

fe. ; S oo 19. .

_clusive, Volume Ll -consisting of pages IST to 460, inelus’

ive, wnid- Volume TLb consisting of, pages 461 to, S682 in

Chisive, on wWhich-theappdal from the Distriet Court yt the

amt 7 ited States for the Distritt of Neliraska was heard in

hd Cirerts ft Court of Appeals, afd full, true and complete ©”

a “pies af the pl sadlinies. record entrigs and proceedings, ie

chiding thé openion, th ad and tiledin-the 1 nited Stites .& in

euit Court of Appe “abs, oXece yt the full captions, | titles: ‘and’

ender Sine nts omitted ati pursuance of the rules of ‘the Su.

yreme Court of the: United Mates, composed of one vol

tine, Volume IV! consisting of page s 1 to 22. -in-a certain

base in satd Cireiiit Caurt oi Appeals whertin Kianhall

Lasvcanedars Company, a C arpors apoh, Wax appre tnd thie,

United States of Ame ‘yiea Was Aq pe Hew; N ASA. or be

Tu Testimony’ Whereot, I hereunta subscribe WY hae and

atlix the: seal of the U nited: States Cireuit C ourt o

> Apperds for the Eighth Cirenit;-at office in the’ © ae eee

OPeSt. Louis, Missouri. this Zoth dav of nent, 2

1 G48: |

=f Slee es \\

SAP ee oe E KOC 1H. eee

(Senhi , er t Clerk ot the United-States tir: :

oe - enit Court of. Appeals lor vee

‘ Biehth Cir chit. 4 Sa —

rnd nonentl “.

(fel 23, Strreme Courter or vie Userin Starrs

Orvis AnLowine Caiterionat rr eid October Vi, ibs }

. ;

The petition he reU te awrit at edrtior ar fo the t rite -

States Court-of Appenis for the Mighth Ciretit is eranted. -

And it is Turther ordered that the duty certified copy: ot

the transe ript of the proceedings, below whieh accoupinied |

the petition shall he treater ‘is, themeh Hed In Festetise te

sue ch avril, eas |

ee ea} ama arte ae

- > re - -

(MAYS

3 : . 4 a - | ; i ta een is t

5 WAGE apres ee oe. ve Sot ire he Cis bi. Bee

—. ¢, Stipreme Court ef the Oniteds States

i Fs oa t os \. ade . ‘

ud = — ; i ris

M.. 147"

OCTOBER .TERT

: Spa ~

* vg

e — / \

. / . \

’ ° .

. 4 2s ‘,

e :

a i

. ‘ ,

4 .

; &

3 - %

° . ———

° —

. a 4 ° %

iV i \ H \ . -\

os x

. ‘ 4

‘1 ‘a \

. . \

. ,

° ..

z_ 7 e %

er / . or : . = 77

j \ ’ ;

‘ ' \ 3 oh ‘>

: e

, /

. '

e .

x ‘

. e

. s ‘ ad

wot .

ss 7

’

a .

¢ .

. —

La oa

. . *

> .

: a :

> .

P 2

2 9 “

. . ’

i 1

fe “

; .

te e . .

{ %

/ 4’

. Z

s .

a»

iN WRX

te : Pages

: ; Sas

etm Ng Le Request for Writ of Certiorari: im

_ Opinion Below, G6 Fe 24-856, Vol. IV. Reeord nae

7 Jurisdiction (28 UlLS.C. 6 47a) - tra

~~ Statutes Involved—Eminent Domain ae

Summary ‘and Short Statement -of. the Matters. Ine.

~— t ais Rane ene

Questions Presented 0-0 7. Saheene

1.° Trial otal. reversible: errors under 28. U.

S. C. § 5 891, Jud. Code, § 269

2. Errors by Circuit Court

Go ee aa of right to prove route values+for any

: fe Ne cat SINT ernie ae alae ces eect

4. .Proot that petitioner foreed to cease all ‘op-

erations denied :

a inancial statements denied as immaterial

, 6. Expert ‘proof of cost to re-establish destroyed

routes denied for any purpose.

2.*

Government Witness ‘Crowder’s incompetency |

AO COMER OE WE, as

8, Government witnesses Weber-Sholes’ formula

: ae for ‘rent’? er, aia apg ST EE ane

9. ‘Officers and owners denied their estimate of

EE ceca ee eee

’ .

3 10. Composite instructions of court erroneous for

: any measure of damage. i in Mininent Domain

. 1. Error in refusing rebuttal without culise after

trial court created confusion on. measure of

fa gh ASL EONS Wel ne Sa

é Conclasion PED SEE Sede nn RODS CDE oe Pat LP RN,

a Botielt rs UL 83 on 0. S931,

6 . . ee

4 °° it

IN DEN -Cotiaed

Paves:

ip. % rror in Court's. instruetion. that case not ene ">

aS P 1 damages Baa Be ES LAE oad a

2 oN - “cle

“+ 13. Error in'eourt’sinstruetion to disregard testi-

5 ; be =

#4. Denial’ ‘of inter¢ st ae 6% allowable: under 40

A A As 9 aoe recy PaMy. Eom

AS. Effeet of decision in UL SS y. General aguehy tee

16, ro} rror. of Gireuit Court rejecting ° total p peti

tioner’ s Prop. of Law | es am

~*~

47, C ‘ondemmation statutes disregarde : vl Uy:

Reasons Re live on for the Aulow ance at the W tit.

pa. qiestion: of first impression in cor denina-,

iy. ston of: public concern

bee 0, & irewit Court -in- conthict with decisions of. Sa

“pr eme-Court "3 A We Seer ceair in i atese yieOnaS | SEARO

Be Cc ireant G ‘ourt in * edniiiot w ith. decisions ‘of ‘oth-

rT circuits i iain aa ebieabe ace .

_ Radiés al: “departure froin: proper judioid, pro-

ae Sorts se ae ‘ r - : ae \

‘Ses ar :

eS Ec TABL Dy OF. ae

‘00 Adres i in Srinath C County, Teias | v. U. 8. (cc

104 . 12 I. 2d SBe seo i 7 a ee he

\ i,

\ e

» ft n °

2% 2

w2 8 ae :

pt Sh.

, PS NS ~ .

at oN :

a eee eee Pe o ale: -

. i ae

: ; :

” be t a: \

- -

- » ae r he ¢

Pd ¥ al vr

g". Z

. ~ A .

Py : \ ‘ .

v, s

” .

. ——— ad -——

_——~.— se oo a

+P nner eeeerennade

ae — 2 Seca: , Court? s eofiduet of trial. Denial of .

ra interest fron. date. of. faking. RRROER IEEE IN LED

: 40

41 S. — LO

“Ee a TABLE OF ae |

’ Soslii Mia. Co... Ch of Providi ne e, 2, 262 r. a 668,

‘ 43 S.Ct. 684°.

‘Teadics U oe River P. &. Dist, aM), 144 No “—

| 32, 13 N, .W. dl 168

Ligge tt bi: Myers Tobacco Co. v. U. bie (1097), 274 U.

> 8.215, 47 8. Ce 58r ee.

Mitchell v. U. 8., 267.U.. Ss, 3H, DS. Ct. 2038!

_ Monongahela Nav: Bete ee. (1898), 148 U. S. 312,

Pee ta mee are SRG ceri nr I eR RRO, cee hart

’ ay

Pace.

National Brick Co. 3 _ . 8. ¢C. ae , Dist. tas vies aa

1942), 131 Mh. : at icisane ge ceeuen nes cae 39, Fao

Phelps vel, S, (1927), 204 L , §. 314, 47 S.Ct. 611

‘Scaboard ae se “igh Co: v. U.S. (1923 ), 61T.S8

299, 43 a J Sephasinsaa ca iarntAen :

Brie . p eaeaae (Ore. ), 6 B. Supp. 109».

Is s. ve Land in New York (194; 5), 147 F 2a B51.

U.S:'v. Land in Oakland (Cal.), 53 F. ‘Supp. 167.

Me La tand a St. Louis (1941), 41 FY Supp. S009. ca "4

U. S. v. Land ir Saunde rs otitis ae ys 57 F.

“OM, MRE Cece | es seals ;

U.S... General M otors Co. (1985), 3 U;8. ri i

B. Ot Ber un inchhace tie Atoka

U.S. v. Northern Pace. Ry Co. Bees 1943), ol F.

: ee 749°

GSE v: Petty Motor Co, (946), 337 U. S. 379, 66S.

ones

’

a OG. I ERS, ESE WEE ES BIE Ae = Ee i Se

> 74 Dang & Dede «

U8. v. Powelson 194%), 313.0, S266, 63 s. Ct.

1047 Ee Re RD st tapuemetssnnenasmeenehsteseneenssssumesansonssstecuiensennynsceiutteaiens ob,

Gs . Rogers (1921), 255 U, 163, i S. Ct. ISL

41.

oe)

STATE TES AX CONSTITE TIONA

“

38. in s 301 (shud AC ode) 269)

c- ¢25 é3”.23 . os —

uv U. me 257, 258 58, JoSas Med. Rales Sia 7)

WLU C. $174, Tha. Bet, 622, G36 fine ene

Hoba further ay nendimne ‘fits, 721, ree

Fy 6 fie

2 : . . Fe a

I if thi Amendment to. Wedoral ( ‘onatitutinn

Constitution ef Nebraska, Art.-1,.$ 2 ....

3 Ss

. x ; ’

3 “

« :

al \-

: . 4F x

‘ . &

> e ~ .

P .

Py 4

. 7 -

> >

+ s

= :

° ‘ \

ae Oe ;

oe .

- °

i .

« .

: ,

”

“4

; .

. . .

c .

Ss)

tip “¢

a .

. .

- J

5 e

: .

- - = -

J PROVISLONS

nye’ 7

lah,

é #9! « *

, Tih a | eee

: _-

2 ot

‘a

Pag

~ ration? of Otnaha, N

Supreme Court of the United States

. .

— = ; Je4y . "=

OCTOBER TERM, 1947

——O-4—— , ,

NO. 830 _

@ 4 ; .

nn Qh = ‘

KIMBALL LAUNDRY COMPANY, A Corperation,

tat i : Oe , : /’, Sidney,

4 &. oa VS,

+ UNITED STATES OF AMERICA, —

« | Respondent,

ee a, :

euunentaitealanmenee oo | sieelaiinailae

PETITION FOR WHIT OF CERTIORART TO THE UNITED STATES.

CURCUTE COURT OF APPEALS Por THE FRGIETH CheriT

: eT ra oe

To: Tur Hoxorante Tur Scpreme Covrr o: roe Unire:

STATES 2 ~ a

The petition ef Kimball Laundry Company, a corpe

ebraska, tespectfully prays for wa writ

of certiorari to the United States Ciréuit Court of Ap-

peals, Mighth Cireuit, to review the decision of said equrt

~ readered March 11, 1948, affirming a judgme nt af the nit

ed States District Court for the: [pis triet of Nebraska’ wiv

em in a conde ‘unation proceedings wherein the pe titioner’s

“hiundry and dry cleaning plant was totally taker for:

Army militars purposes on November 2,.1942. The ease

was tried -to a jury 6n Mareh 4,20, 146. On March 22,

146, the Army declared the praperty surphe and aban-

doned it to the petitioner. ” Tre governne nt prevailed

limiting its liability for 3.6 years me ‘asared by interest

on its appraised value of land, building: -and, machinery,

plus its estimate of, the costs to replace certain broken

parts ofthe building and in: chinery. The petitioner as

owner and operator was denigd all of the me asures for -

compens sable damage which it offered to prove, as here.

inafter set forth.

‘THE OPINION Gye

Thr ~bpinion dated Mareh 11, 1948, sdught “7 be re-

- versed is Kimball Lanndry Company, Ss Corporation, ap-—

pellant, ver sus ‘United States of Ame ‘rica, appellee, Civil

No, L494, found in Vol. IV of ‘the certified record (166 -

F.2d 856, Mag 10, 1948).

| ie JURISDICTION - 3 *,

4 The Court has jurisdiction to: review Said decision

ander Section 240), Judicial Code (28 U.S S. {. 347a)..

ne %

THE STATUTES INVOLVED | .

“The statutes iuvelved are copied in the appendix

(Apr) to the appellant's brief (Apit's. br.) ‘fled an: the “g

Cireuit Court and certified with the reeord (Vols. 1, 4.

Pl, IV) now hevore this Court (Apk's. br. pp. i-L).

They are: .

a U, &. ©. 5.897 (Judicial ¢ Code, 5 269).

40 UL S.C. § 257, 258, D58a. Fed. Rules Sta (7).

50 U.S. C. T71; 17la; 621; 632; 636, amending

721; 636a, further ameudsents : 721. 22 (pro- »

_ viding methods to pay government upon re-

turn of property. to Owner; 1133 710.

Kitth Amendment to Federal Constitution “a..*

‘just compensation." : :

Constitution of Nebraska, Art. I, §-21 “(Wold

Rev, Stat. "Neb. 1943, on- ‘sjust compensation’

, uss S. br., App. 14). ra? cs

oa | 2 a aay

‘ See >

SUMMARY AND. eet STATEMENT OF |

THE MATTER INVOLVED sis

EXPLANATION: The. feotnotes where. Jitidicated direct attention ty the

points-relied upon for reversal, and where the point is -dixcussed and . argued

zs error in appellant's brief im the eiregit court. Iby.stipulation of counse! when

“he record on appeal was prepared, the points relied upon-.for réversal were

placed. in the appeliant’s brief rather than in the record 4Vol. I, 142): Thas

the brief becomes-a part of the r. eord for review to that extent and the limited

pages for brief and argument were thus curtailed.

However, contraty to the statement in’ the opinron of the cireuit OT es

(Vol IV, G6), each point relied upon for reversal was disstissedi ‘and argued in

appellant's brief ¢Apit's. br. pp. T4488), followed by “The supporting Propisi

v tions of law ¢ Apit's. br.opp. SH Teer, 'Phus the neeefrrty of pategpe eto ap,

pelignt’ s brief. fal tnaaest ante

‘1. The petitione r, Kimbalf Laundry Company, is Q

Nebraska cortoration. It owned: the fee ‘title, free from

liens, to all The real estate. Its ‘personal property was

free from Hens or elaims. Tf wae using all dfs freilitios,

as a going conecrn, to operate an exveptionally large

laundry and dry cleaning establishment iy Onnaha, Ne

hraska. ‘Ti was neither the lessee nor lessor of any of the

property involved, it had the “temporary: use” . Nevtics

of its real or personal property fer ang purpose.) This

Was the edndition on Saturday, November. 2h, 142, the

lain on Which the once i “conde mination. Was tiled, in

the United States Court. The Army (Quartermaster ( ‘orps

took angen possession the follgwing day af all pet

tioner’ s plant with all its facilities, machinery, and equip:

nent. The petitioner: wes, bw force of the taking, put out.

of business.’ The’ Army continued without interruption

the ope ration of the plant: with petitione rs 1s0) employ-

ees and mani werial staff. Soon Pee of war (100)

replaced the - skilled employe es.4° The Army serviced

for pay the daimdiry, and dry cle: anit requirements ol+

the soldiers, oifice rs, and all the. Army hospitals, training

conte ms, and forts in the Seventh Service Comnuind fro: ul

this prope rty (Vol. ‘Tl, pp. 447.8). Lid See oe

2. The Ariy was admittedly. in the pa ae un-

interrupted possession and ‘operation. of the property to

the: exelusion of the petitioner herein from the time of

-the t taking up to the day that it was declared surplus and

abandoned to the petitioner two days after tho jury's

\ : : Py

(9t0~ pemece-enaeeyeremeanesine,

4. rg tng word picture of plant, Vol. I, O73 285. Previous 5 yenr andit

o show values Vol, 1, 282. ° Rejected by fhe Court. . - “rs ;

2. Pa. Vol, IL, pp. 273+ O85. Condemns “right te use and oé¢eupy” p. 2. Alse

right ta use and oecopye< “all personal property-—userl in ¢onnection with

. Said langdry.” Order of jaking cecited—- “prior te. Jaking over tmnkiness -of

said property.” Vol. I. 11: and taken for-— “the establishme nt ef a military

laundry leeated in the city. of Omaha." Vol. B17; ;

“The Court rejected’ the Evidence atthe President of the ©c ournpany that it”

. Was completely driven ont of business Ts. immaterial. Vol. 1f. 487-9. Frrer

fisenssed=A pit's. sor, XIX. p. 61. °. Nese

4. Vol 1, 266-270. Seaianon a awar (100) 0 tr Honhelien skiliva. saitiones

; added tr the dest ructio n of the machinery and equipment. 2

“—

“eome sine

‘verdict ov Marcel 20, 1946 CVol T, OF). when said prop

erty was: ‘found and declared 16 he surplus as of Marek

235, 1946."" Be

‘ %

° ~ *

When taken, the company was doing ain admatl

gross business at approximately S400,000.00, fenaneial

oii, aes continual ¢ ro mvth i n volute and

“expetisively equipped lauhdrios, west of- Chicage.! [ts

building taken was inaiit of steel and conerete, five stories,

-(32 feet square. ‘Its business was. oby iously that of a serv.

‘ee -

Seing. corpor ation for those who required! such SETVICES,

It - sold no merchandise ; it manufactured none. its value

dlepe nded- upon the services perforfied, Its gross income |

sine e it Was. BOTS 44.647 The audits showed what

_ part of this Went into the plant, to- dnuild and. develop the

assets and traile routes.’ The cost of the machine ry and .

— at the time of ‘tlie t laking i in 19A2 Wits FAO. dad

Its ‘Ap praised Value. at that time Was $273, S5LS2,

ee? the same jen in 14a ee itsat $120,600 0.75.

a, ORT IE .

"te AUD these € ‘e¥tiivd Pulte Cae re evidence and exhibits were rejected

Save sour colin: n ‘showing ve olay that Was of me vainb without the com

“plete; wudit. Ji a Serviehig © ompayay 1 the basyiees resuits se" heeessary to.”

iy ft ge gg the “hrifand inertar”” Vol. IL, Bx. py, Ym), Ex.

on x: 3% p. 20u; Ex. 4. p. 204; Ex. So. p. 206; Ex’ ‘ aa 214-18:

Ses. e TI. 2h ‘ ey re

Error in. rejections, "AP it's. be. VOLE, PP. ‘2888, where earh exhibit is

discussed ‘fulty, with © ourtes. ruling hy pag » preference to record, iY net cre

a eopied. In the Propositions. of — these © hibits and testimony ore ‘hretted—

and further Hiseussed, Aplt s, bro p. 1%, LI as te Sieoog intsines: Voi :

Tl, ppl PME. a

Wok Wp 404; Os. Wi 2 ie, - ~ ri

7. CLP AH blilmer’s testimony of Fexhitnts, Mol UL, pp. 180-221 (réjeete. i:

‘cf, foetnote 5 above,

: * c e° ; «

x. Tok TI, pr. 245-262, Fix. 21- .- 20 Shows: vilue of machinery ant,

eqripment in aa eam by same witnesses in 1945 before the trial. ifitey

ence in value. S181. M4. This ev idence was.taken from jury by Court's

Ent fuet ings. frm di<eussed Aplt’s. br. p. 38. UX, arzued under Premesi.-

tiens of Taw, p. 145. ° 1! will he seen by the pms that such measure

of damages aie deriied . consideration val the jtrry. V ‘eh BL pp. Ve =

. . . i¢

eae te ys : ’

MOBS Tt was one of the most @iTieient and

‘The cost of the building at the Time of the taking was

£205,035, 1 ‘The rey rroduction. value of the hui Mding with

par story Ww as, on November 21, 1942, S280, 348.

#4)” “The: power, eq lipme nt was valued when daken cat

$62,092 S10 YS he land upon whie h the tnilding and equip:

nent steod was valued at $30,000,600, Its loéation Was in

downtovin Omaha. :

suilding: , « 74g 348,00.

| Machinery find equipment PTA S31.39

oP ower equipment and

incidental installations . = §2,928,08

Vand <i bier aay aes 30,000.00)

Customers roufes- © ~~ S40 SIGS

Total... ¢ >. $987,024.32"

: » ee a f. (Rejected)

4. T 0 pernianently establish itself by ths expense of

acquiring trade routes, men. had been employed to ¢on-

tract with various families anil commercial houses

throughout the City of Omatha for laundry ‘and dry clean

ing services: These men duiing the previous tive years

-built up for: petitioner-15,0928 rerular trade - route ¢cus-

‘tomers, all of which werebeing servicedson November 21.’

® Vol. UL, Ex. 19, p: 264...

ment was denjed consideration by the jary ir the Court's Instructions

ef. Aplt's. be. pp. V-2l. instructions requested but note given, -pp. 21-2.

Interest on “brick and mortar’ values. -alone were permitted for the jury's

consideration. Argued unier Prop. Law 1 and IL, Apit's. br. Sd and Joo

- Ht. Apl's, tir, NUL, Aig 44-48, Vol. (1. pp. 273-0: Court ruling Vol. 1. wvZin- .

AML reje by Court excent land, building and machinery for interest on

invest-negt a< only measure of Gamages us shown bs ath the Court's le

- structions, Vol. T.. pp. 150-185 Exceptions IGh, AGT: Petitioner's In

structions requested but not given. 172-78. Assigned nnd discussed,

Aplt's. br. pp. 15-26. Argued. Prap. Law T and 11-80, 10,

]). Voto TH, Ex. 23, pp 272-3. This before and after valuation of power equip .

1942. Under the

“laaudry-and dry fleaning was picked up Without further

‘att. made by. the petitioner, the —

consent, and whifi-servieed was re ‘turned without furthes

- contract or agyoment hetween such persons. and the corr.

pany. Ther/ were 1500 desk customers who were thus:

‘ é

personal:

7 dired special —<rt¥i lees gt’ ties throughout. the

year,

seryiced. The ‘re were 4048 speetal custome rs!

‘here were: 20,802 customers who froin time ta time

gent in table linen, spreads, rugs, ‘comforts, blanke he, and

“Yace- curtains. These persons hegregated 42,043 , called

hy the trade ‘“tradé route ciistomers.”’ There Were To

-duplieations in the figures The petitioner paid to these

“route mento build anid keep these routes during the, said -

five 4 years previous ‘to the taking, $937, 65 4.83 3, in “wuaran--

- teed salaries and com inissions.! This was the principal

but not th: Sonly. item.of expe nse fo keep and maintain the

routes against the competition from other laundries who .

like aise “Had . route en at work on. guar ‘inteed salaries

and commissions. These routes (similar to A ne wspaper’ gs

. cireulation) had a market value in the. trade of $340,516. 85.

Che hese were worth by trade praetices as follows:: $20 for

cach of [1,093 trade route customers ; ole for each of

4648 “pillow customers; We, for ¢ ach of -6810° table line n

customers ; Te fer eae di of S814 rug and blanket: Cis.

tomers; Te for each, of 8178 lace curtain customers ; #10

for each of 1500 call customers; ‘and for 44 commercial -.

custailers which produced $54,253. 13 revenue for 47 wee ‘ks

during 1942, such as hotels; railroads, clubs, ete., evalu-

ated in the trade at $728 fh per week al 15 times the 7 -

12. Vol. UL. p. od: p. 234 shows itemisatios: of gross income past five yeare.

$4005000 for LHL. MeDongal, Vol. I, p. 244 Ex. 13 refused. Error VIII,

pp. 33-38, Aplt’s. bro arzued. Prop. Law Li. ». 1a.

By eat er

= ene OOTP

soy Ones eermelee =

> Laat .

} % ' : . j x : 4

weekly) amount, thus providing the sail total ef S40 516

Sas thes value of the trade routes at thy time ot the tuk

‘ing! --"Phese were ‘totally destreved by the takifig and.

Seven months, and eight days,

“retention of the’ preperty by the Army for three vears,

va. The Certified Pubtie Accountant's reports proved ,,

that no sums were carricd*for good will, trade mame, “nade

tising, or anticipated profits, future Dusiness oF est

mates of the value OF the business, Only. thre real sinicl

personalty. valued as ti angih le ass ts were shown of record,

Obviowsty “these dt: ¥ contained no evaluation ‘of the

trade routes! ais good will. , ee cn aa

6. By expert testimony based upon experionces

‘and: fuily itemize d was given in exhibit form the cost to

build up again in the Cy of Omaha. these tradé routes,

givin credit that during the jirst ye he. RTOSS ineome .

would be- 100,000, while the total expense for that period

would be $251,680.00, which, after figurjug inc ome, would

‘show ae net Ope rating loss at the end of the first year of

#1. a1 GS80.00, Kerthe se ond vear the gross ine ome would be

S10, 090.08) With an expe use of 3 FAW, 80, or an operat:

“ingtloss the second. year of $b 30,366.80. For the ‘third

year there would be a grdss haa of $200), O00. 00 with an

rr nse. itera of $590, AS3.20,* anc an operating loss of

The witness Judd qualified ae itr expert to give these trade reute v: lies

ts a metter of trade-practio® The-conrt denied ali consideration of them

either as separdte items’ or as a-part of the value in 1942, .or for any

" purpose ‘whatsoever. Vol. Th, P. OOT: Ex.. 14: “pp. 570-1,

Vol. TE. pp. 427-9. — predic atedygn rejection argued p. So > Apl's. br.

Gi, XIX; Voi. 11, p. 237. paca, of Ex: 11. ; =

Z:-Vol.-¥E, p. 200 ©. P. A. —Hillmer *stuting, “These items whie h. were a

factor in get ting the increased business liave been charged to ‘expense and

have not heen capitatized as good will:

2 a : . ‘) _

. oe

S1SOAS2.20. In the fourth year the company should ne.

able, then, to operate. without further Josses and build

4 . %

up is net PiCanie,: Bait for Ve hrve vears the. net Cort

ta re-establish its Janndry cand dry ‘cleaning routes with

‘the plant and faeilities te he Wiatintained and operated

while sO doiug would be $411, 4. 10.00,! vora loss of that sum.

‘

| . The building pisviously valued at $280 48.00 and

the ve at $80,000.00) were declared surplus after 3.6

‘ars.and abandoned to the » petitioner. The power equip-

meee and Jnecide ntal” installations were rendered useless

fo such an extent that: by orders of the Army

or des

commanding offieers the plant was “de dlared:a danger, to

hunian life because of the unsafe condition of the boilers

except for limited use at the time of surrender.” This

power ey was valued. at #62,928.08 at the time of

the taking. and #: 260,53 at “the time of trial, ora loss:

\ -

of $27,667.55 on ih items.!® Waee

iicaidieisicaishdaaiiaaimdeabasd é . a

“16. -Vok. TI, pp. 872, 376, 880. All this, wien wus rejected, ‘with the trade

route values, as not within the iss ues, Nevertheless in the opinion’ of the

Circuit Court the statement .is, made w holly gras foundation and egn-

trar: to the gpeve offered proof at Vol. IV, 8S. “Na doubt the govern:

ment’s occupition of the plant disrupted and y we aged the Gompany’s busi-

ness, although it could ‘hardly have destroyed the deinand for laundry serv:

. lee in the City rig Omaha or disabled the company from ever re-establishing

its a " Mhis important part’ oc the opinion erroneously ‘infers that +

the eyjdenced cost to rebuild the rautes. and the time it would take, and

their value, when destroyed by the taking, were absent from the recorded

‘testimony. If the topics ‘were important enough for the Cirenit ‘Court to

coniment upon, it, would seem the, District Court should have permitted:

the jury to receive the evidence for consideration in Arriving at its, verdict,

: Furthermore, if the Cirenit Court wished ta pass npon the subjects it should

- have dene so hased upon the competent evidence offered in the record 9s

above indexed. Aplt’s. br., Pe aaron XVI and diseassion, Foy

———

ya vr tons SHEN Fx. 22-A. Ww arming” ‘y command Maior General © tric.

/? If. pn. 297 S. This offer ta prove the laundry eanid not be eperated

at. ye in its condition invaked this grinl Conrt’s remark, “L ean ga dows.

ar” yperete one by myself, and I dont know anything shout a daundry.”

Tits remark gras obyionsly highly preiuliéial

dence, Errov Viseusst] Apirs s br.. XTFp. 43.

18. Vol. I p27

Prep. of Law TIT... -

trary to alt the évi-

= een amg

ae . 10 ~eedjan

8. The building had struetutil damage thereto from:

the ove loading of boilers, “using shaking and from rough

" usage necessary-iu the rtish to cet out the vist amount of

work. The very finest of expertetestimony of petitioner's

Witnesses ‘gave de tailed cost of the re pairs fo the building

to place it in the condition that it was at the time of the

taking at £53,¢ 70.00," thas reducing the value of the build-

ing from £980,248.00 to $2: 26,378 0, exclusive of painting

. or repairs to’ plumbing, heating, boilers, power plant,

ete. The painting necessary after the 3.6 years Was es-

a timated at $17,281.00? by the best of expert painting con-

tractors, thus reducing again the valuation of the build-

ing by. such Amount. ei this plan for determining the

damage. | \

£17,281.00, or $209.097.00: the machinery, and equipment

at $129, 699.7 97°) the power equipment and incidental, in-

stallations; $35,260.53; the land remaining at the same Val-

-ue of $30,000.00 ;. the customers routes, fotally déstroyed liv

the taking. These items. aggregate, $395,057. 28, or a dif-

- ferene “e. In Ye viluation of the sproperty of $987,624.52

‘when. taken, and '$395,057.28 when. returned, or a loss to

‘ petitioner. of $592,967.04, -based. upon the undisputed evi-

dence on the before and after values. The following ta-

bles illustrate the differenee: + . |

eh , sas? ‘ a. ‘ ae

19. .Peter-Kiewit. Vol. TEI, p. S31: ex. 53, p. 835,

20. Vol. lil, p. S23, Ex: D2, p. 829 (Steinheimer}.

20.1 Vol IT, pp. 245, 262: Ex. 21-3. p. 200. tates by Instructions, Vol. 1.

pp. 157-162. Assigned as error and discussed Aplt’s. br., pp. S82. 83, &7;

also p. 32; Prop, of Law 1 and IT. pp. 88, 109.

9. Thys it\ might hive bic argued to the jury from’

#he evidence, had. it been reeel ed, ‘that the building: was"

valued, when returued, at & $280,: 48. 00 less, $5 3,970.00 and

Date of t: kin Nov, 21,1942. Mar. 2, 1946 Date of return.

land £30,000,00 ¢ 30,900.00

Building... 28034800 - 205,097.00.

* Power equipment 62,928,08° . 35,260.53.

Mach., equip. 273,831.39 ~ 420,699.75

Route values BAO,516:85 : none -

3 a ee

a le 987 624.3 ye

395,057.28

Petitioner’s Loss on before

* and’ after value ood SIZ O07 04 -

Fandiet. under ithe court's), > -

indtrtetang | np thnepdiippacs eng ee

Ad litional em ‘

j nied \. e079 or

10. The kate Wiis Pre by Harry A. Jacoh-

herger, his brother 2

i rederic} s

iad their ‘higniifon

the ieee

business, Ik redetick became

United States Army: in charge of the gov fapuy A

at mp Carson,- Colorado, and qualified: as &n

oda ds acobbergers rand ; a-son of Harry,

each had? she nt his life ‘in

a major in the

aundry

expert

with: unusual experience, A. L. Jaeobberger--offered. to- -

: . . ° : | + 2 ; ;

—_prove that the laundry had a fair,-rcasonable, market val

ne as going concern on November 21, 1942. of $987 ,624.-

j Fite _ > i7 » e o- @e

32. This was denied Iiim?? For the purpose of verification

and explanation of the composite. value, exclusive of any

-yalue for 09d - will or trade name, he offered io prove

ani corrohorate the evidence of, othe i witnesses as shown

in the table SUpTys page.6. ,

1. The’ jary ~ werdic! ' for the use was $2 52,000.00,

whichis exclusive or the $45,776.03 returned under the PSS

o2. ¥ “oh 1 3 312-3

$1. Vol. Toone 2

P " : Pe

% 0

se eet, a Fe aa : ‘ ; ;

pe gees 2 . "9 St j % *

Ha insthuctions of egeoimrt on ‘the damage i physical prog:

por tae rte, suffered by the: petitioner. eS a 4:2

“ aoe e Pa ons . _@

Kagent 12. 3 Assuming: that ‘all othe fe losses’ were included, in-

ae ES thie diference - ‘in the. values? of, the property. in. 1942 and

To that shold litive heen submitted to the jury, moder proper,

re “inStructiqns, that ‘the verdict. might’ readily have resulted

~ the . sum of: $592 1567, 04 rather. ‘thal the verdiat: of

| 4g ae 776. 3 whicit Was based an the: ev idence - as fimited

a by ‘the trial court, (Val. I, pr: Li 1-162K. AN

in a a The court, igh raling’ fo

“a a . titioner ‘su ystantial rights.

a “i x 14. If the government’ 's Ww

“testify that. the proper measu ¢ of damages was: the Ysolat-

eLvieee ed value of thé building, the isolated} alue of. the- lnachin-

“ery. and the land, and to figure a ercentage of intbrest

Miata : 16 - as $492,567.04, it. iy ‘apparent from the: ev idence 3

tnesses | were permitted to

Rahn ; » thereon. as the government’ Ss ‘theory, and Aeceipted. by the “i

"court, then niost cértainly ‘the court should have" permitted

thie petitioner’ s off setting evidence. of what it: considered

Nthejfair, reasonable *‘rental*? value of the ‘property when.

; a differed by the-petitioner. This was dehjed directly, or nial:

tA pike lif ay t the court’ 8 inistructions, ‘he court for all. intents.

ite

poses: instructed: t] fies. to disregard everything

Seis that. the: owpers hi ud stated ate values for lomapaeaey use.

°. ae. Rigs . >.

i ee : ™~ 2 e s

. 5 CY

A. io a ol. H. pp. AA! 56 ; eli Apt’ &:: om og pp. 44-6. Ament under Prop.

[ a’: Ea “Aplt's. de, pp. RAIL 108 :

ies sek * ‘i kayo “i “

Ne 44 ae > :

- . : . ss > i

2 ° \ / S$ Ses

‘ os : ¥ o.

,_2 & a hy an

> ww

“<

« .

. ¢. -_* = . 2 . e - et

> tr : :- tae ” then Au 23°. re o+* i he

g ~ < 2 a ae ’ 13 e % ee eo. bales ;

‘~ e ; a e . a” wo 2 . . > we ° i = : . oe ‘

= ©

e Boing e .

. and lett for,the jury. only the testimony thie xovernme nie

+ inexpericneed witnesses (Vol. i: pp. 157- 162).

’

se: Mt the very outset of tie: trial 1 thie court ce

Lanewer ‘of the pee Her (¥ol. Il,. 183 3): The court refused: »

the applications | p eviously niade’ for ‘a pretrial hearing

(error assigned” and argued Spits, br. VW 56), and.

failed to enter any order or direction 2$+to the. method or

manner. ‘of proof _for the” measure of damages, but th.

.dourt stated, ‘ine a seiise We? are plowing new. ground roe

Bee

‘ trying to ay rite at a reasonable basis to ‘afford the ee

~ owners just: compensation under .the .C onstitution.” > (Vol.

oy 262. 3.) _Consequeiitly, the petitioner, opening the trial, 3

took the position that: the fair, reasonable: marke ot valub

“of ihe property ‘at the tinie of taking would be proper

‘for. all purposes in the trial. This the. court denied and’,

ee, either refused to hear, or imled out? on instructions to the

‘: fe

a 165. Apit'’s. br, Eaapr XIV, 48° discussed. Instructions,- Aplt’s. ‘br., pp.»

F 2 . owner) wander advisement:”. Further at the close of the testimogy, Vol. IT,

jury evidence Of, the’ lite Ww ‘hen’ taken, for al! purposes,

“ag hereinabove clearly set. forth and indexed in. the, a.

“hates, supra, ca re rare aoe

2 . Pee |

F ; eS eae ot

16, Then the petitioner. sought. to, show thie fair, - *

reasonable compensation for the use of the premis 5 lure |

ing the period, because the éourt mee a aoe

-These ‘ugé”’ sums given. by Harry A, _ Jacobberger,A. ee

Jacobberger, . and F red Jacobberger were 600,000, $57O0,-

- 0005, and $570, (00 - Teqpdstively. ? none ore induded “es

oe ae -

23. A. L. J., Vol. UL, MS-367 : Aftes 50 pages of exam sation to substantiate «

OT0000 ax just compensation: for the USP, | including all damages, except

to trade routes aid fuviness, the court stid. it would» withhold ruling.

‘Vok LI, 831—"“We will takes your. motion (to strike the testimony of the

o07—"T will instruct the jury with re®renc® to- these items wien the. time —

comes.” Later the cofirt’s instructions muiiiified the evidence, Vol. I, 175-

15-26. -Argued, Prop. Law Th. p. 111, Apit’s, br. Vol. 1,’ pp. 172-8.

- 5 . ’ a ; : a ~ . te ‘

+ _ SPE = eth eresas tee

~ a » ’ ‘ke > se es _ . . ©

“eRn items of cipensattion except damage te trade. routes,

. ° busitiess, and good will. Neverthe ‘lesSthe evidenc Ms was eX

cluded under ae of tite: court rv ol, I, 3 ap. LT

62) Sa re ee ee es ee

. *

ore 7 “17! In ‘each instance,’ as shown in Santante’s 23" the

“erence h, of®the uree owner-Witnesseés . renonneéd

ee their seotenny= So-- completely that,. the SRY. were left

with no praéti@l solution’ but to’: find as ‘adiired by- a .

oon) " governmefit | witnesses.’ « a er

. - ae. ee

the witness’s estifnate of $600,000 for the term included damages fof trade

route destructign, good will, and loss of busitiess. So under stich erroroys ,

impression the testimony*was nullified.” Vol. II, 421-443. Error wonton, ;

x2 ' @Apit’s. br. XVII, p: 54; arguéd under Prop. Law Il,

—~eot either ruled out the. testimony or by specific ref

; ’ "18. “There were three principal government witnesses ;

~ ag R Crowder, who never tiseg, bought, or sold:

See Inandry aehinery and, equipiient, nor was he: familiar

’ Harry J., Vol. “LB "421 -3; 44153. The court perm ial: ‘cause _-

- J.—inusual qualifications as Army Major in charge of Army.

Rape a, laundty at Camp Carson, Colorado,2and ‘Jefferson Barracks, Mo., Vol. LI,

feos ‘443-58. His testimony re use compensation, cg ae for.3.6, years, Vol.-

oy. TL, 454-5, exciuded “loss of custéiners, routes, TUss. of. business, or good

Poy .* will” Volk. II, 458-9.- Ruling of@court on objection was, Vol. II, 460, “I

: : will intruct the jnry on these Bric when the proper times come. : Inst,

peineale Vol. I, pp. 1572162 and Inst. denied, Vol.I, pp. 172-8. . .

Be ths Aplt’s’ br., Error Xx p. 63. Instruction: ‘of court specifically rénoune-

ing “the witness Fred J., Vol. 1, 157; renotincing A. L. J.* testimony, Vol:

; I, 156; renouncing Harry J. testimony, Vol. I, 1569 Errors, Afit's. bp.,

£ XV Ill. p. 56: XIV, p. 48. ‘Briefed and argue? Prop. Law ed IT, 11.

If the itemization of what the. owners had in mind to ba their “use”

+ . compensation tained items. pot~ comperisable as the trial court viewed .

them, the specifi items should have bedn ruled out rather than the de-

Bee nunc¢intion of the cust finally = after the above cémments: (Vol. I, -

157),."“With these ‘considerations in mited, how ere we going to find. the

fair rental value for the use of this property? There does not seem to be

5 ere anyone qualified to help us reach that figure. * * * * Next the court said

* .in his instructions, Vol. I,. 159, “Having once arrived at the value. you.

.. then can’ ltegin figuring and use a8 -a yardstick an interest rate.” Apilt's.

_ oe Errors 1-H, ‘p. 18, and 1-3, F-~19. -Alse | errors oi ‘refusal of instrue-

Bhi tions: Aplt’s. br., Error’ TIT, p. 21-5. - 3

4 : B ‘The court, by giving the. instructions IV -b requested by the gavern-

ee nt: committed reversible error in a condemnation suit, because the jury

~ Sac ie o en

ope G Sate ~

t ‘ : ins

” ? ®

with, sueh property. or the. plart in 1942 (Vol. IY, yD.

696), was © uecof the } aessistant’s ‘in the offiee 6t the jenn:

; "Engineers. He went about the city to iek up information

he ‘re. and there: abgut cost of repairs and replacements.

of- such “machiner’y and equipment. He was nd¥.a con-

trae tor or builder’ s architect.. He was permitted ever ob.

jectioris to testify, and compiled chis own” hearsay’ exhibits,

594 of them (Ex: 17—objection, Vol. IVE, 63 “5), which

were. 1 ecived as ‘‘official government documents,”’ and

80 voluntecred by the trial court to the jury (Vol. Mi, D.

648). Mr.. Crowder Rtated - that the cost .to restore: the °

futire. building, painting, and all ely would” be $37, S23

(Ext 17; 111 °692) ; that it w ould, cost $20,471.27 to restore

* the waka where it Was In 1942 » less: ordinary depre-

* ciation, inelnding exeessive use (Ex: 18; ITT, 641) ; and —

$17 750.40. «Volv ITT, 654) for ‘other items of replacenient:

His” estimates total $59,748 OL. No ‘other figures were of-

atte fered by either. side that, were less than this amount for ...

- the restoration. of the: building: and the equipment, power

plant, ete. Neverthe less, without evidence from : any Sour.

the jurt found that’ this ‘total damage was “$45,776.03.

- (“Rental’? 5 2,000 ; all damages, S45, 776.03: total judg-

ment based ¢ on jury rs verdict, manent. (Vol. I, 95-6.)

()) W itness Weber (Vol. TE, D-7) who? never rant

a laundr ‘y, who never. bought or: sa laundry, machinery

or equipment, and was: not a laundryman, stated as a.

“

ay were told 90 iariassh aviilece that did not appear Rare as evidence

es dvring the’ trial, Error, Aplt’s. br.,. pp. 25-6; Vol. I, 164. These were:

; : “interferenct. with the businéas, frustration of the’ business enterprise. in-

convenience tothe ow ner, the unwillingness of the owner to part with his. ~

property tempofitrily * * * \° Apsued and briefed, Prag. Law IIL Aplt’s.

oe br.. p. 124, stating: “The conduct of: the trial must. be @roper, or revers-

"ible error re@ults.. Citing 44 Neb. 825, 320-383, 13.N. W. 24168. Circuit

af. Cotrt rule limiting pages to 85 r stopped fiirther Gocntten, bot the error is

obvions and elementary. er er, ; ‘ a

fare | Sf oe :

t . : : : ie 7 ‘ ~~

. 1

ey ie ie a ee

: |

professional appraiser?*! Vox the government “(HH 736)

that: the total rental for’ the 3.6 yéars ‘should be $70,000

ic per year, or a total. ‘of gio 2,000. “That -was exaetly. the»

sum the. jury. found. .Under the foran of the Exhibit 22 ©

* 43 s

(Vol. Til, #3) gpd the court’s instruction (Vol. I, 159)

that. interest ‘on arate items would: produce ’ a proper

result, no other: conclusion Was ett for the jury.

estate man who nev er bought or sold any laundry ma-

chinery or equipment, never operated ‘a laundry, was per-

-ynitted to testify: that the annua rental, including exces-

sive use, ‘should be $65,663.00 per year, plus additional

sts of rgstoration above. normal depreciation of $16, 680.-

Mr. holes’ tots! of all compensation was, for the pe-

riod #253,066,90 (Vol. IT, pp. 115-8 | Ex. 24, 776; 779; 7803,

= Rreacae: +) gi aoe: :

' 2 &

19s Tn the. épitiion of the cireuit ‘court (Vol: TV, 14) the

court said, ‘‘The jury 3 verdict was well within the evi-

_.dence. W hile the. total ‘award was much less than the

amount claimed by the company, ifgis exceeded: by about

$40, 000.06, the highest estimate made by any goverhment

expert, witness.”” “+

oF It will gaan by a ‘careful analys sis of “the exhib.

its above referred to and-which were received i in evidence

. over objection, that the jury’s - verdict was less than the

. 8.1 Vol. III, pp. 723 ; 705: “‘F28-9 ; 738-7: TH: TAT: 749: Ex. 23,°T50; Ex.

estimate for restoration made Dy Mr. der 043.-

01). by apprviximdtely $15,000.00. The verdict for the ME

ie Ce if Rt:

ae: » i

2. on ene ict ee fl aa

“venta}"* avas that fixed by the witnéss Ww ber ($252,000.-

00). and almost identical with the total sum ‘for all pur .

* poses fixed by the witness Sholes for the.gov ernment.

| 621. Under the instructions ‘of the court for all prac-

tical purposes the* jury was denied the right to vonsider

.: any’ evidence of the petitioner's Witne ssses_ generally,?*.

22. Mirror haa thus bets <ciimitioa, ‘and. sustantial

justice has heen denied as. hereinabove shown by proper ©

reference tp. ‘the record. (Aplt? s. br., 14- OO): o

we = ‘All the, foregoing Were a up ag points relied 3

* ‘upon for revetsal and each : “was. specifically argued. and -

discussed thefein (Aplt? s. br., 89-128). By stipulation of:

f counsel the points relied upon for reversal-were set up

_. in dhe brief instead of .in the record (Vol. ‘I, 142). Each |

- Was’ distussed and argued under the propositions ° ‘of law. |

“Apit’s. br. 89. 128).

94 thie ‘references made. in the footnBies ‘should

"suffices as proof of the assertions: that the cireuit court

_ shad before ‘it sufficiently the. points, their discussion and *_

_ the’legal arguments ‘upon them. Hor wever, under Pyop- *

osition of Law No, II] pettaining to the conduct of a

trial under Nebraska state law in Teference to pleadings’

and ‘trial procedure for lack of space (otief limited by .

Circuit Court rule to 85 pages was extended to 125); —_

“buttal testimony, if. substantial and material; shall he re-” :

ceived (56 Neb. 600, 605, 77 N. W. 120), although properly ©

_ in the. main case.’’ The Point was-diseussed_under points

XXX, XXXI, XXXII, Aplt’s. br., pp. 82-8 (Ex. 52, TI,

23.3 Vol. 1, pp. 157-162.

S *] ‘ x * : g ‘

18 :

: . fe

829; Ex. 58, TU; 835; Eix. 55, 11847), All the vidios

-in_ rebuttal (save Dahiquist’ s_on repairs to mac thinery8a

af was rejected by abuse of discretion. It\ was offered to |

* meet the testimony of Mr. Crowder for the government. Sx

Té was proper rebuttal under the plan, of procedure adopt-

-ed by al¥ courts. The unfair result to petitioner may be

, concluded from. the foPlowing, t table taken from Fecord |

a heretofore: given. (Supra, 5 9- 10): ae Sei, 3

° “& Reke nee Oe :

Govt. witness Crowder’ 8 es- Petitioner's s witnesses rejected.

timate’. for restoration of except Dahlquist.

damages to structures.. y. a meee

5 Bldg. & pepe: $37,521. 34 Bldg. (Kiewit) $53, 970. 00 Rejeete:

Painting (Steinheimer )

; 17,281.00 Rejected,

= noe agar, o7 Boilers (Hanighen) . e

ore ees 24 678.00: Rejected |

. cea ores eRe oilers Pah AT 6.183. 00 Rejected .

Replacements 1,750.40 Mach..& Equip. repairs

. Seaway oe — (Dahlquist) - 34, 309. 42 Receivba

_ (Received) . $59, 743. o1 | tes "$133, Pe 42 ea eng:

25. The J nay’ S verdiet for ccbaaiiaa daniages was

$45,776. 03. The: petitioner, of course, could not argue to *

the jary—any—item—to—contradict-Crawder except Dahl- ©

_ quist’s *$34,309.42 by: virtue’ of the rejecting of these ex-_

_, hibits and aay by ‘the court as above shown.

Al Rules of Civil Prossdure. rat (a)

* (7)) exclude provedure in condemnation trials; and. 40

. “UL S.C. § 257-8 ( ) (appendix to. Aplt’ 8.. br. pp. 4-6) spe- .

cifically provides that in questions of procedure the state .

ptactiée shall be followed-No-substantial.’ right would -

have been denied the government by. the . Sdmission of

~ / <i BO a

the testimony of the witnesnde iewit, Steinhei ‘imer, and .

“‘Hanighen’ in rebuttal. to Mr. Urowder’s.- These | were

reputable. men in theif. respective: lines of busine: ‘ss. They 1

wholly ‘distredited Ww itness ‘. ‘rowder’ s statements.

.. ‘ @°

Written “ple adings are required, unde the Nebraska ,

practice, The court struck all of petitioner’s “answe r (Vol.

I, 183). (Vol. J, pp. 823; 828-9; 831-8; Bir

hy -— trial ‘court rev

_ rebuttal ‘would be’ allowed - petitioner because as the trial-

proceeded, petitioner offered, Avidence of before and after

‘values, offered ev videgce of otal values at time of taking’ 7

- for purposes of use valu ; then to meet. the court’s theory

‘offered, evidence of use alue all as above related, This

| evidence was all either denied at the ne of offer or bubs: |

3 stantially ruled, out’ by the court’s instructions. Conse-

en quently, when. the restoration costs of $133,421, 42 were '

offered in rebuttal to mect the Crowder testimony: of

‘$59, 743.01, and rejected, ‘a grave error of indisefetion oe-

curred: It was not ‘merely procedural irrégularity (56

Neb 600, 7 N.AW.120), Ender 28 U BS: C. § 391; Fud—~

Code § 269, as. interpreted, the ruling ° ‘out of any cormi-.

petent testimony affecting substaritial rights of one party

- Bives grounds for examining the entire record saa grant

- ing certiorari: to see that justice ‘is done if the: facts -war-

‘ rant. (Vol. il, pp. 812; 815; 826-831 ; ; 831; 833-835; S47; Sos

: 857-9; 863.) ee e : BUY Sot

s : =e season —

“2

This table may be used to illustrate: the b basis to figure

75 :, the loss in “interest” hereindfter sh shown. ee Co

ese ae tee,

eg horenee - , : ‘

. mes ee Ag hs .

" .

. os Ea get ne Stee ope a :

sf - DATE OF OrnDF 3 ae - DATES OF. [ DATE |

; ns OF TAKING To, WHAT DATE Lerrosir AMOUNT “WrripRawn

: r Ronee CURT ae = saat}

; Nov: 21, 1942 June 30, 19843 June 21, “43 $30,440 — Feb. 1, 1044.

> 5 ‘ = . : (T,2 2) - q : e rs ; ’ ‘ : £1,553)

: | ay 21, 8 Jrine 90, 144 - Apr. 6, “44 50,000 Apr. 13, 1944

. rae a atic 41, 59)

a © : r Samar ; eras sue wate eas

op Aug. 12, 1944 Prune 30, 1945. ° Aug. 10; 44° 50,000 *' Ang. 18, 1944

‘ eter ere ‘ a (1,68) ~ 3 . (Ip 72).

| a May 28,1945 “June 30, 1946 Ang. 8,45 65,000 Aug. 11, 1985

4 peer - ; : : 5 ae \ . : . e (I, 89)

Judgment, i sol de a fae a?

$297,776.08. a = he Loepeeee - ;

April 9, 1946 °° June 11, °48. 98,124.27 Aug. 16, 1946

: Boe $875,000.00 ° -

Lees ee ' Shan te gl eae eens Ra asin pod

Par Pq, by purchase . : TM: ; aoe

- os . » of govt, mach, ‘ _ _. Mar. 23, “460 18,089. HS = ail

as ee 28. The» ‘petitioner. herein’ claimed interest ‘at 6% .

on the $297,776.03 judgment as additional morn for the’

taking, beginning with the date of the. ¢ ng to the’ time

a hae elected by the government : to PSY h taking, June

80, 1946. “Lhe property was ‘Geclared Surplus arid aban-.

- doned to the ‘petitioner ‘on March 23, 1946 (I, 97). Ad-_.

apd mittedly from the date’ the funds shown on the fore-—

4 +e. going table were paid into the Registry of ° Court, the

: * 6% would abate. There re remains in the Registry-of Court |

“approximately $25,000, pending appeal (I, 139).

29.- The court granted no interest whatever ¢ on .$45,-

; 776; 03 of the-judgment. It should. have granted interest

at 6% thereon from the date of taking: on November 21,

1942. ‘Instead of zr anting interest on $252 ,000. at 6% from

~ November 21, 1942 (less ‘the paymerits_n osit—

_in‘the Registry-of Court w with interest hee the court

after trial treated’ each year as a new ‘taking without

referetice to. the original tirne of taking, and. hy. so

doing _ the apa cnuid in the seg eent rendered yas de-,

—

. %,

@ ; oes

> : “ « .

. agua ~ ‘Shape ’ amd,

z : 5 r re 2 ar” ae

nied $21, 314.7 (2, at time of judgment, for interest compen-

sation bali the: Statute, (40 U. S.C. § 258 a). This de-

nial of. interest was asgigned - error, ‘jseussed, and ~

argued ander: point XX, page 66,. appellant? s brief, and

Proposition. of: Law. IV with the discussion. thereof on

‘pages 125- @¢ of appellant’s brief referring to petitianer’s

motion ‘in “arrest of. judgment (I, 97) and motion Tor new

‘ trial Al 107). The trial court failed to: correct this point:

\ relied” upon and: ar gued as above shown. Also the court

‘refused to: grant interest on. $34,875.50 in’ supplies that.

: were condemned _and taken _by the government on No-

vember 21, 1942, and not paid for until July 8, 1943. This

interest up to the time of the judgment on ‘April 9, 1945,

amounted to $1, 307. 11. Both tliese items. of interest wer’

_ properly before the: trial court” and the United States

Circuit Court of Appeals. The federal Statute cited clear--

dy covers the situation of granting interest as contended

by petitioner. Both items now aggregate in excess: of

_+ $2 25,000. “The ‘ cases to susfain Prop. of Law IV, Aplt’s.

tr, pp. 125-6, seem to. announce the only applicable law.

The statute refers to interest. for all purposes and makes

no such permissive exception dis erroneously made. (Apit’ 8.

br, app. Pe 6. 40-2 U. 8. a C.. See. 258a. Infra, p. 40.)

Smee

> ot. Axsigned as Error Aplt’s 8. ‘br? p. 66, argued, on p..126. Contained in, Answer

stricken, Vol. I, p. 30. Pet. in error, p. 51(2). Discussed by Court, Vol,

TI, p. 183; Motion in arrest of judgment denied, Vol. I, p. 98, ITI. Motjon

for new trial denied, Vol..1. p. 108(4). There was no disagreement regard-

ing this item and when paid. The facts aye not in dispute. ‘Fhe government .

Claims because’ it vohintarily paid the item and the check was accepted,

that concluded she matter. , However, the supplies wer@ taken aleng with -

all else. Paynients may be received without — to fagther rights

ater Sek, See Us HO. 04. Boe UTM H ‘

‘

irate

s: “2 eae |

_ (QUESTIONS. PRESENTED

yy, |

Did the trial - ‘court commit “veversible Ox, harmless.

‘error under 28°U. 3. C.. 9891, Jud.: Code’ § 269, 1):

refusing to admit evidence, (2) bg. refusing to reee

“certain evidence offered, ° (3). by receiving certain’ evi-

dence over ‘objection, (4) by giving the -court’s instruc-.’

tions considered all together, (9) by refusing to give €er-”

tain instructions requested by ‘petitioner, and | (6) “by

overruling the *motion in arrest. of judgment and over- .

Fuling the motion for new trial? havens oF

Is not the opinion of ‘the United States Cirenit Court

of Appeals in “error by. stating that the judgment res

flected all the elements of value which iawfully might -be |

considered in determining the issue of just compensation

, ng

. to. which the petitioner | was ee and that no errors of |

.' law were. committed by the’ trial court ‘that would war-

. br, pp., 89-124.) These references’, sufficiently -

x rant a reversal? The record shows’ thirty-two points re- -

_ lied. upon 4 ‘for reversal, each of which was discussed with ,

~ “reeard "page references given. (Apit’ 8. Dr.; pp. 14-88; dis#

eussed and’.argued’ Prop. ‘L. 1, II, JIT, ‘aid IV, Api,

fute

the opinion of the ciréeuit court that most of th points

" relied upon for reversal ‘‘dre. not argued in the/brief md

- virtually all of them: reflect* the divergence Af views of

counsel for the. Company . and those of -fhe trial court -

relative to the proper standards for. penning just

compensation.” a on TV, pr: 6-7. ) VO: “ee

* .

? im os

OARS ae

. ° ~ >.

: ° A ? ss ?

eee” = a AN

é - .

5 ‘ ° w .

In*attompting to arrive at just. compensation; was it

result of the taking, with ‘knowledge’ of the resulting dam--

age, all the’ existing routes -eonstituting the most valuable

: of the- -eomponent parts of the composite property? (Aplt’s.

br. . Error XIII, pp. on Soca PP. 6- 7, u Ww ith 1 foot,

notes.)-

‘Did not thy trial’ ‘court err -in ruling out the evi-

. dence of the fetitioner that it was completely, and en-

tirely: drive . from business by virtue, of the taking and «—

- eould | n ‘re-establish itself bgquuse of the obvigus -re-

‘sult of the taking, and the tie ‘“niecemeal”?’ pay ©

( ,

plans adopted by ‘the government? aple, supra, p. 19;

Epfor XIX, Aplt’s. br.. p. 61; Prép. I Il, Pe AW; Vol.

2, 437-9; supra p. Ay. .

\ eS sy doce e

Did not the trial tourt. err, Sa ~aiestiae: audits of the :

company, “competently prepared, from which might be ar-

gued the facts that any: dealer for the property for any

. purpose would desire to know? (Vol. H, Ex. 1-7;-pp: 188-. -

221; Error Vil,. _Aplt’s.. br:, PP. 28- 33 3. argue Prop. L.

1, pp. 95- 8; supra, p. 5.) te a

Vi.

| ‘Did not the trial court err in vébictiad the evidence i

of the competent witness Judd, who — to prove. for 7

Ap eo

; - nét error for the trial-court to deny the petitioner the .”

=< right to prove the. fair, reasonable market value of its

ie plant. hs it was at thé date of taking, when the.evidence _

shows,that the condemnor fook and destroy ed, as a direct -

——_—

as . ra * . a . ; .

> —— . 3 56 st & . “2”

—_ . @ *: : se

. a Iv eS =

: = ; $ ‘ , . ae Pia ae" .

—. . . > » ‘ ;

oes

»~

s 6

the consideration -of jhe jury in a: sessing’, petitioner's s

“sorvicing company, and “who. offered: to-: “prove whit - it

-that company in the City of Omaka to re- -establish those

: routes: ‘over. the succeéding three years after the plant’

| was abandoned to the: petitioner. {Supra pp. 6-9; ‘Vol. |

| _H, 367; Ex. 14, pp. 370-1, 372, 376, 380. Error XY, Aplt’s: .

may ’. 91, and XVI, p. 53. Discussed, Aplt’s. br., , Prop: a i

LT, p. 89.)

a ; * : aK e.

| VII. =

Did’ not the court err, after: ‘the Detitionsr’s S case was

closed; by permitting a government’ witness, (Crowder),

who: failed to qualify properly as a competent authority

on costs, to give his estimates of the probable cost to

" regtore the property, including the building and mac hin-

ery, which estimates consisted of. 594 bearsay items; ‘and «

the jury that such 594 documents were ‘‘government docu-

ments’’. and’ ‘official - reports’ and with such prestige

: “were admitted? (Aplt’s. br., ‘Error XXVI,. pz 70; argued .

Prop. L: Tt, p-. 1093_cross- exam.,* Vol. IIT, Pe 641; ‘648°

BERS 656-669. Supias pp. 14; 16; 17; 19.) ee :

[a oe

: Did not the court err in receiving the evidence, over

‘objection, of the ‘govefnment witnesses (Weber . and

: damages. the ead Value-of the trade routes in the course’

of: businessé and as an inherent: part of the business af ae,

7 would cost the. -company- based upon the experience of §%

Sholes), neither of whom -was quuilified to state that. the ;

\ fair, reasonable compensation for “temporary. use’? was a

‘sum of. money based upon interest on, the value of thes. :

fae

bidding ‘eapacatalye the aching. and equipmérit sep-

arately, and the land separately, as appraised ‘by thie wit-

‘nesses. themselv es, wher the witnesses themselves could -

give .no ‘precedent in the laundry, business. for such a

method for just compensation ahd when the court had

before it a more. fair. and just; method of - arriving at

just. compensation. by ‘the difference ‘in. the values of the

property before and @fter. taking, or by fixing compen-

‘sation. based upon the fair, reasonable Value of the prop-

erty at the time of taking? (Weber, Vol. I, 721-757; Br- .

ror XXVIi, Aplt’s br. pp. 72-5; argtied Prop. .L, H;

p. 111, Sholes;-¥ol, IIT, 760-80t; Error ‘XXVIII, Apit’s,

‘br., pp. 75-8; argued Prop. L. IL, p. pte Bubre, pp. 6,

‘U1, 18) |

_ IX. ?

Did ‘nk the trial court err. in nullifying the evidence of —

ihe three officers and owners of. thie company when they”

offered their estimates of the fair, reasonable. rental .

value-of the physical assets, exclusive of good. will, trade -

routes, and: trade name, when. sich, witnesses were the .

only qualified witnesses to give sia testimony? And ~

further, did.not the trial court err in withholding its rul-

ing. on the goverriment’s s objection to such testimony and

‘then’ renounce it by instructions thus-leaving no other ‘tes-

timony | before the jury on such° subject, as stated in: the

instructions | of the: court except. the ‘‘expert wiiuess-

es’? who. gave. as a ‘proper measure of damage, interest

on land, building,,and machinery?. (H. A. J., Vol. Il,

-421- 443; Error XVIII, Aplt’s. - br.,” pp...56- -61. F. oS, Vol.

TH, 454, 460; Error XX, Aplt's. br., pp. 63-4. A. L. J.,

Vol. II, 367; Error XIV,. Aplt’s. br., 48-51. The court’s _

* lege”

; ' instructions, Vol. I, 15%: 161. Error, I, “Apit’ s. bt, pp. 2

15-19, Argued, Prop. LL I, “Tt, pp. 8S, 109.) -Suprs, Pv 13-

ae) ye aN

a . 6 : ¥ xX, . ~~ od }

2 4 ‘ : - «! . \ oa ,

pa Were. not the composite instryctions | of the trial

“se e

court: SO at variance with both the fhets and the appli-

cable - ‘law as to sulistantially prejatlice the rights of the

z 6 petitioner by denying it just compensation, even: under

the: measure Of damage. -plan. adopted by the° court for

the conduct of the case? (C ‘ourt’s inst., Vol. I » PP. 197-165;

Error . Aplt’s.. br., “pp, 15-19; Prop. %.. IH,-p. 124. Inst.

requested by petitioner, refused, Vol.-I, PP 172-8. Supra

_ pp. 12-14.) :

. ; -

, —

“Did not the court commit reversible error, in refis- °

ing? “thé rebuttal testimony of, the petitioner’ s “witnesses

to rebut the government’ s withesses on the cost to repair

and replace the: ‘broken parfs . of. the building, machinery,

g equipment, boilers, and. power plant, especially under the |

‘ indefinite plan. for measuring damages finally adopted br .

the trial judge? (Aplt’ s. br., pp. 82, 83; 87; argued Prop.

LE: TH, p. 124. Petitioner submitted asa Pi

ai : ‘ ee # ae oe XIl. a , 2 s*e be x

Tn an action in condemnation for just eompe nsation,

24s terror for: the court to instruct the jury that the case

before them is not one for “damages”? but is an ‘‘in-

| op... that: -—

ae “Rebuttal testimony, if substantial and material, shall -

? be, received | (56 Neb. 600,605, 77 N. W. 120): although

-. properly in the main case”’; supra, pp. .18-19)..".

‘

quest’? (F rror i. Aplt's -br.,. p. 16: Di

LT, p. 88; Volt, p. 185:) | ‘

eqs f NIL

| Did fiot the court commit reversible error when it it in-

structed the jury to disregard. evidence which was entirely

absent from any testisnony of evidence offered or received

at the. trial? The court instructed ° the jury to-allow just .

compensation “without any sentimental valués, without

any good will, or the faét that it was a going concern,

_ or the fact that they were prt to a lot of consequential

a . damages. That is what they refer to. Consequential.

_damages are just their hard tuck tliat they happened to

) he selected, ‘the ‘sarhe as it would ibe the hard luck’ of:

_* your son if he were called into the firmy. ”* (Vol. I, 159;

. Error i -l, ‘Apt sd i, b 18; Prop, L. TI, P. 109.)

Did: not: the fm err in failing to dilbtgeet 40 v.

‘S.C. §258a°as amended. i It’s. br.; appehdix, p. ‘€) as

granting petitioner as a. mattet of, statutory Jaw. 6%

interest on the entire judgment ‘of ‘the jury ‘from the date

of the taking? Did “not the éourt err by deciding, without

judicial precedent 6% Je interest only frou the beginning

_of each fiscal year as if i in fact there had been a‘separate

taking. of the same property -at the beginning of each.

fiseal year? (Error XXII. Aplt's. ‘br.,. p. 66; argued»

> Aplt’s.. br., Prop. -L. IV, 'p. 125. To thé. same effect, did

snot the court err in failing to ‘grant interest on $34,875.-

- 50 of supplies condemned ° and. taken on November 22,

“1942, but not paid for until July 8, 1943? ’ Points raised

in answer, Vol, I, p. 30; stri¢kéer, Vol. Il, p: 183; raised

. in’ pet. in error, Vol. I, Pp. 52; raised again: in ‘niotion in

ussed Prop:

ee ae tek |

arrest pf judgment, Vo. I; p. 798, overruled ; aid in mo-

tion for new trial, Vol. nF p.. 108, overrileds. judgment

ae entered denying interest ‘as claimed, Vof. I, 103-7. Er-

por XS, | Aplt’s. br., p. 665, Prop. L. nV, P. 125 55 40.0,

; & C4 dae Sink pp: 19-21.) * = ear

: ° e Win a

“Did not the trial court commit rever sible pro wpen’

repeatedly throughout the trial and in its instructions to. .

the jury it stated that the law amnouneed by the Supreme - |

Court of “9 United States im the S.'v. General Miiore

Co., 323 U. 8. 873, decided« January 8, 194, and in U. S.

‘te sa Petty abit: Co., 327. U. S. B72, decided February 5,

; 1946, requiréd the odurt to instruet that no damages could

be considered : (Vol. I, p..155); jus compensation must

ian other competent,

measures of damages of gecord (supra, pp. *6- 8;-1f; 18),

figured as-interest on the Jand,. -the. building, and the ma- |

chinery, separately valued (Vol. xi p. 159) with an addi-

.t be limited: to “rent?? to the éxclusio

* tional sum, exclusive of general depreciatian, for the es-_

timated cost to repair. or replace" broken parts? (Trial -

court refiised to set case for trial unti¥® General Motors

“ease decided, Vol. I, pp. 14 and .60; motion for new trial,

_ Vol. 4d, ‘p. 124, pars. 25-6; Court’s inst., Vol. I, $2; Vol.

am! 5 pp. 230-32. Court made ‘ruling to limit petitiorier’ 8. i

case to “rules laid dawn jr.the Utah ease and in the Chi :

sago case, the Genera) Motors case.’ | Vol. Ul, p. 232.)

>. =

.-<

XVI. ae ef

_ Did net. the nited States Cireuit Court of Aopeals

commit error when, it held that the decisions * in U,

ae 29 = o

oy. Gdneedl Motork Co. aid U. . v, _ Petey Soto Co. were

its authority for Pate e earmot acce *pt this proposi-

tion of law’? The ga preposition of law ‘is: Prop. bh.

T set- forth%n ae

“the opinion below Vol. IV; p. 8, as follows: | ae

brief, p. 89 and is copied from

Wg “When: all the: physical assets of a going Busi: |

aess,. such as a laundry and dry cleaning corporation,

are eondemned for the purpose of governmental op-

eration of the:same bésiness for the exchisive use of

the army, thus putting the econdemnee corporation out.

of business’ entircly,.'the fair, reasonablé market val-

ué te the corporation as‘a going Concern-on ‘the date

of the taking forms the proper legal basts upon which _

to measure such just comperisation. The established

——- trade routes, when S0 prové® to have a read- |

ily ascertainable value on the ‘market, form a part of

the compe¢site fair market value on the date of tak-

ing. These routes are distinguished from the ‘non- -

| compensable items of good will, loss of profit, and

+ Joss of further business.: If it is proven that these |

-routes would be destroyed as a natural consequence

known to the condemnor as a direct and proximate

result of. the taking of the physical plant owned by

the conderinee, their value forms a part of the total’

‘value of the compensable property taken. The refusal

of the trial court. to*receive competent evidence af-

fered to prove such value is reversible error.”’

" (Byidence on factual matters embraced i in sis state--

ment of the law was rejected by the trial court. Cf. points

. relied upon for reversal, Appellant’s brieg: “Error VI

discussed, p. oe VII, 28: VII, pp. 37-8; XIII, pp. 44-

83; XV, pp. 51-2; XVI, pp. 53-4;@KVII, pp. 54-5; XIX,

ce 61; XII, p. = -[rrors. argued in the Propositions of

Law, ‘Aplt’s. -br., Prop. Law, pp. 89-109.) (Court’s inst.,

Vol. I, p. 154, stated: “Under the Constitution and under

. &§$

oad

BP}

the laWe, you cannot er any allowsinee ‘whatever, for

“property that. ‘Is not taken a bigs ch Pp. 6-11.) _

‘Did not the court. err by failing to properly initerpr et -

and apply the condenination statutes. (supra, p. 3; appen-

dix Aplt’ s. br., pp. 1- 16) relied upon by the gov érnment

“in ifs petition Vv ol. I, par. 1) filed November 21, 1942, oe

and the same statjites pleaded i in defense by the condem-

- hee it answer (stricken, Vol. ‘Ids p. 183) and in its re-

quested. instructions (refused, Vol. 1, p. 172), peepenly

in the following particulars :. . :

‘interpreted

1, These statuges | should properly be

in pari materia. ; me

2 W hen so interpreted, Bection 171, 50 U. §

amended, does’ not, clearly cover the case at bat, b

the .condemnee possessed land but, did not possess “the

temporary®use thereof or other interest thereiti.’ Instead,

-. the government created a “temporary use’’ of its. own

..by its petition and by. ‘SO doing took over an operating °

_caiipaaty ‘‘pro fem.’?—

P << “‘The- result of the taking ‘father than the form of

the petition determines the extent of condemnation for =

the purpose of paying just compensation, and this ] power

of determination -is loghyed exclusively. i in the judicial, |

‘bfanch of the governiRént. , a | i

4. Congréss has protected previous’ owners and the /

government as well by ena¢ting Section 723,.as an, amend-’ .

ment. to. the Actof OctoktT16, 1941, 50 U. S.C, ‘entifled,

“Return of Property % Original Owner.’? Se that value —

s . : 3 31 pide sit aia ieee 8,

* before and value after has beer recognized in this effee-

tive manner. Prep. Fg io Aplt’s. br., ‘pp. 112-123, brought

this point to the Cireuit Court’s attention. we Ss

nad

. This ditlereitie in the value at time of taking and

at time of return, while recognized by Congress and as’

propereby the courts, Ww as erroneously denied the latmdry

company: in this edse. ef, petitioner’ s instr. refused, Vol.’

I, Inst.-No. LI, p. 172; Noo X, p. 179; ; Not XIII, p. 177; No.

XIV, p. 177. ane Vol. 1, pleading the statutes, » Vol. -

same, -Vol. I, p. 183; Vol. Il, p. 863. Motion for new

trial, Vol.-I, p. .107, overruled. Special exhibits were at-

tached to the motion as these statutes, Vok I, pp. 126- "134.

Error in striking them from consideration set forth and.

_ discussed, Aplt’s. br., ‘p. 26;. Prop. L. argued -T and IT,

Aplt’s. ny pp. 89, 109, All condemnation statutes in

i ure capied in full in appendix to: Ap It’s. br.)

¢ O se /

REASONS RELIED ON ‘FOR. THE ALLOWANCE

sl OF HE WRIT -

eee ee |

Herein the Circuit’ Court has tiecided an important

question of federal law which has not ‘been but at ae

be settled by this Court.

. The issue’ “presents . an important phase of the

law i eniinent domain not passed upon under. the pres- |

- ent amendments to the condemnation: statutes ; and the

opinion is at variance’ with previous decisions of this

Court under the previous statutes.* U nder these new stat-

eae oa

. . ™

e .

-utes (supra y p. 3 and’ Appendix Aplt’s. be.) in foree w hen

the ease at bar was filed protection of condemnees against

lessening gt just compensation was ‘made. more certain,

2. There were three phases of the’ law in. which the

public had an interest because every citizen’s property, in-

cluding operating. businesses, might be taken for military.

purposes. The statutes prohibiting. taking by condemna-

tion, ‘of any machinery or. equipment Ww hich is in actual

use in connection with an operating factory or’ business,

and which is,necessary to the operation of such factory -

or bisiness,’’ was enacte&ZOctober. 16, 1941, by the First

War Powers Act (50 U.S.C. § 721, C..445, 55 Stat. 742)

and was repealed: bythe Second War Powers | Aet, 1942.

(50 0. S56. § 636, amending said previous law, § 721).

This: dater statute left in force Section 2 ‘of the Act of

“OctoBer 14, 1941, providing for the return to the owner

of the property condemned if the owner would ‘Pay the -

_goverument tor its then value, and by Section 722. of 50

U.S. ¢.,° the ‘time for offering to return to ‘the ‘owners’

if paid for at its then aalue‘Was: extended to Dgvember 31,

41946. The property in question herein owas taken Novem-

ber 21, 1942, and abandoned to the owner as surplus

property on March 23; 1946 (Vol. I, 97),in its then con

dition. These statutes should be: interpreted in pari ma-.

_terta and announced as thelaw applicable to the facis

in the case at bar. ° : | 3 eh prea

3. On January 8, 1945, this Court granted certiorari

and decided one of the three phases of eminent domain

-inU. S. v. General Motors Co., 323 U. S. 373, and granted :

certiorari because a question of first impression Was ‘in-

oe = e

pee

volved in the. interpretation of the measure of damages .

for ‘taking a part of. the term of condemnee’s lease or

SemDOTASY use. The property was a warehouse. The tak-

ing left the,condemnee- -tenant the. privilege of returning

and using the warehouse for the unexpired term of the.

lease. Damages were awarded - for. the destruction and

loss resulting from: the moving out and ostensibly back

again. 3 a

4. On February 29, 1946, this Court granted -cer-

tiorari and’ decided . the second Ee of the questions

involved in condemnation . in U.S. v. Petty Motor Co.,

327 U. S. 372, wherein the entire ues or temporary use

of the condemnee: tenant Was taken, and the resulting ‘dam-

ages wer e held nonexistent and denied. -

0. Now. herein arises the third phase of the law

of eminent, domain and for which certiorari should ‘be

granted. Nerein the condemnee ‘Was neither a lessor nor

a lessee, nor the occupier by temporary use of the prop-

erty ‘involved, but was: the absolute fee owner and opera- a

tor of a going laundry and dry cleaning business consist-

ing Of real and personal property (Supra, p pp., 3-6),

6. The government forthe first time menti oned in

any reported case,.took, according -to its petition of tak-

ing, only a ‘‘temperary ‘use’’ of building and machinery,

but for alJ practical common-sense purposes actually took

4 going .business institution which ‘it needed for its Army

and substituted its own pay customérs for the route ens- ;

- tomers: of condemnee.. Certiorari should therefore be

granted likewise. herein in, order to present the third.

_phase to determine the proper measure of ‘damages upon

“* ; 5 é 7a Saale eee

the’ abandonment of the property. ‘to\ the petitioner after:

3.6 years of government operation (Supra, pp. 6-9, Vol. .

i, P. 448). -

The only element of any appreciable ‘value to.

het “a bricks, ‘mortar, and machthery of value in, this” €

particular business, was its trade routes, which were ‘de: :

stroy ed. They ‘were the most: valuable of any part of the |

3 property. Condemnee was a servicing company. It could

not carry on business elsewhere. It could not. move, as

it was left nothing to move. It-could not serve. Its routes

were destroyed. Such, destruction was not. consequential

damages, or loss of future businessy. or. frustratibn of a

_ plan for develapment, nor was it a loss for: - good will. In

-the case at bar, those elements ‘were ‘specifically elimi-

nated from all evidence of value offered’ as proof as the

record shows (Supra, pp. 13-14; BMY:

8. If. certiorari ‘is granted, petitioner will so dem-

+ onstrate to this Court. z

se -

The decision of the Circuit Court of Appez als in this

Be decides a federal. question in a way probably i in con- :

ee Bet with the applicable decisions of this Court on the .

question of the condemnation of property of a going con-

cern.: Pa ; ;

wi. The’ Cirenit Court opinion. below recites:

“Where the right té temporarily use and occupy :

‘property is the interest taken, just compensation is

the value on the’ market of the use and occupancy

(United States v.-Petty Motor Co., supra), .but evi-

dence of loss of profits, damage to good .will,, and

ojher such consequential losses must be excluded in

determining market value. Id., pages 377-378.”

—

: 5

‘jon as authority. The opinion below rules ‘out the trad

accepted value of the routes a®an’ existing: asset, by classi-

fving them w ager the foregoing stateme at (V ol. IV » ip 8).

’

: BR The opinion also* attempts to justify ruling out

‘the evidence. of experts on the v alue of the routes sep-’

_ arated from the. plant as well as an lerbent of the .com- °

_ posite vi alue of the laundry and. dry ‘cleaning establish-

* ment as a going concern. ‘The Cireuit Court also approves

‘the denial. of the trial court’ of evidence of the cost to re- |

~ establish these routes. Furthermore, the. opinion ‘upholds a

the trial court’s denial of the right ta prove the diffex-

4 ence +n, the value of the property at the date taken and.

the date declared surplus and abandoned to the petition- ;

er. Such holdings are in conflict with other applicable de-

cisions of this Court.

+4. For example, Woiecnsahols: Nav. Co. v. U. 8.’

(1893), 148 U. S> 312, 13'S. Ct. 622, was rever rsed_ because

‘the evidence .¢ of the_ value “did- not take into account the

franchise — of. the company to. - collect tolls.’ ’. The .court:

said: ie ; eas

“<The result of the trial was a finding by the

- court that the value of the lock and dam. No. 7 Was

$209,000, ‘not considering or estimating: in ‘this de-

Pee a2

eree me franchise of this conipany to collect tous

The case Was rever'sed heeause, as stated

**So betore this property ean be taken.away from

its owners, the, whole yalue must be paid; and that

value depends ‘large upon’ fhe. pyoductiveness . of

“9

2. The Gene at Molovs Co, case is cit in tiie al

4s?

. the. prs operty, —the franchise, to-take toHse

aaa oe Furthermore, the ‘court’ stated ° that it was: “not

“bound ‘by the’ statetnts in the declaration. of : taking

. (petition in eoridemnation) as. to what ‘was taken: :

‘‘We are not, disretens: concluded by the ‘didle Ira.

tion in the’ act that the franchise to collect tolks: is

~not to be considered: in estimating the. sum to be

paid for the ‘property. |

“That int compensation requires payinent for

. the franchise to take toHs as well as for the vaine

al . of the.tangible propert . ibe

6, Furthermore, ma . Be ae ae

«* * * And with respect to constitutional, pro-.

.. -«- Visions of this nature, it was well said by Mr, Jitstice

a Bradley, speaking. for the ‘court, in ‘Boyd v. U. Ba

; 116 U.S. 616, 635, 6 Sup. Ct. Rep. 52 ‘Hlegitimate -

and uuconstitutional practiees get ‘fei irst footing

in that way, namely, by silent approaches and slight

deviations from legal modes of procedare, This. can

only be obviated by adhering. to the, tule that consti:

tutional provisions for the see onrity of person and.

property should be liberally. construed. --A.close and

literal construetion deprives: ‘them of half their ef-

ficacy,:and leads to gradual dépreejation of the right,

as if it consisted- more in. sound than in-sabstanee.

_ It is the duty of courts to be’ watchful for the consti-

- tutional rights of the citizen, and against any ste: uthy

‘ eneroachments thereon, “Their motto should she obsta

Pe principiis.’”” + ° |

a: 0 Tad. 8. v = Biadlcan (1943), 319 U. S. 266. 62,

S. Ct. (1047, certiorari was granted and the cause reversed

hecause the damages to the power sites therein involved

were evaluated inthe condemnation. proceedings though

vundev ‘eloped. They had vale, nd doubt, but, the opinion —

ia pro oiiotional scheme wholly in ‘futuro is. not

‘ier property.’’. T he majority opinion states:

: a a q °

£ ° . -

be . Wee ieee atin If these ‘numerous tracts hag, alrei uly

been united by Epeponde nt through the power of ey

inent’ domain info'a power project, distinet problems |

would be posed as Nears v. City of Akron, supra,

. indicates. Then“the. United States would he aequirs -

, « ing B business, not ssimply frustrating a promotional

geheme:* ° ®& -

aR: “@: We Hold ie tlrat mealit nttéibatable: to the

| enterprise which respondent hoped to launch, are in- *

admissible as evidence - of the value of the ands

3, which were taken. ered GIN ae : aa

BSE 8. The Poiwelson: c case cited ‘in the opinion in the~

; ease at. bar_te- Leister th tin) court, as ‘a raatter: oe law

a stilins the contention of the petitioner. If the Powel-

son case is authority for the Justification of the opinion

below; then there is most ‘certainly a conflict in the .de-

‘cisions of this Court on the subject of what shall be |

a taken into consideration when a going business is de-,

_ stroyed by the’ taking.

“@. ze | |

‘9. The eases which hold that loss of business and -

ae a good will are. not compensable: are usually found in -that .

3 class of cases,where the land or building. was taken by

the government, and the condemnee had the opportunity, =

‘ with both the money paid and the facilities not taken, to

yes on the business ‘elsewhere, such-as in. Bathwell v. U.

S.,° 254 U.S, 231 (e: attle: ranch condemned ; cited to sus. .

sats opinion below; Vol. TV, 8). i

10, Also, the decision in Joslin Mjfq..Co. v. City’ of’

Providence, 962° U.S. 668, involves. a rule founded upon—

a statute that, ‘Injury. to a business earried on upon

lands taken for public use, it is generally held, does not

‘

” r =

wk oo aie :

\ * . . . < ° 2 x * .

constitute “ati -clement of. just compensation,’’ but? the

case likewise states, ‘This statute: therefore does snot -

deny right; it grants oneSand limigs it to a business

already established, ** The pioor iota. ea who came ,

after the enactment. and established a business did so

with notice that, the extra constitutional compensation. pro-

vided for would not apply to him.” The classification

was held constitutional (cited to sustain opinion below,

Vo]. JY, pe 8, but obviously does not). . 3 ase,

+ Bhs Mitcheu a U. S., 267 U. S. 341, arose over ra

special ‘statute providing. for the condemnation of land

for military purposes in. Maryland néar W ashington.

The award was made for the damage to lands upon

which a special grade of ‘corn was raised, then later”

in the Court of Claims the condemnee was denied. the

right to damages -to the corn canning manufacturing bus-

iness. The elaim was based. ‘upon the fact Ahat because

the sweet corn fields were taken, therefore” ‘iin -manufag-

turing plant should. be compensated for ‘the loss because

wo more corn, could be obtained from the eondémned fields. |

-—- However, the court stated, ‘*Moreover, the act .did not.

conten, authority to. take a business, In the absence of

‘authotity, eyen an intentional taking. cannot support an.

action for compensation under the Tucker Act. os

i. These last’ three cases cited in the opinion. be-

low (Vol. IV, p. 8) in the case at bar fail: to sub$tanfiate

_. ~the decision. - Nor do these cases support the opinion

~—~—~en_the- factual situation that the damages done: to the

~ trade routes fall into the category of consequential , or.

other , honcompensable damages.

a 5s ¥

‘The decision of the Circuit Court. below is in ‘contig :

* with a of other Circuit Courts on the same matter.

“In National Brick, Co. (C6 % A, Dist.

kee 1942), heard ‘before ae a J., Mil! ler, anid

~Vinson,-131 F. 2d 30, both the conduct of the trial. and

’ the conclusions were reviewed, There the br ick company 6

owned and was using and selling from time to time yval-

uable deposits of sand Tying under the surface of the

lands which» the gov ‘ernment needed: The Cireuit Court: *

held that evaluating “the- Jand. with, the sand’ in place.

should not be. initerpreted that the -condemnee was. seek-

ing to prdve the profits to be-derived from the- sale of -,

sand. In thé case at bar the’ court bases” its. Opinion on

the fact that the trade routes were ev aluated as future.

- profits or good will and therefore held the destrnetion to

he noneompensable. gee tha ;

2. Thus; it wouid seen that ‘those two opinions are

directly in contliet.

3. The opinion is ‘also in « belilies with a number of

United States District Court decisions: that have never

been appealed heeayse settlements were made in those

eases. For example, in U. S.-v. Land in Oakland (Call. ),

53 F. Supp. 767 ‘andin U. % ®, Bauman” (Ore.), 56 F: ea

-Supp. 109, the courts held that a temporary use with °

- the tertn extended from year to year amounted to a tak. .”

ing of the fee for all intents and purposes. In such ease |

the beforé and after value was held-to be a just’ way to

estimate the compensation for fhe so- called temporary -

" use of such property. The trial court herein refused to. —

- denying similar compensable damages.

2 i ” eis ° : . .

bot eA

bet follogy . those eases, and the Cirenit Court appraved the

trial court’ s rulings,

4. ‘Also, the decision of the ie Court herein: is

in conflict with 1200 Acres in Smith County, Texas (C.C

_ A. 5, 1945), 152 F. 2d 566. ‘There the development of oil

lands was stopped. by the use of the surface by the Army.

The resulting damages in reference to the inability ‘to

carry on operations in the, oil beneath the lands, was ‘the

, . Subject matter of proper compensable. damages when

». proven.. The ‘reasons given in the ‘Texas case are dia-

metrically opposed to the reasons given by the Cireuit

Court in the case at bar in upholding the trial court in

‘ ?

ig er

‘

| IV. |

The opinion - of the Circuit Court has so far dessinaa :

oe ‘from the accepted and usual course of judicial proceed-.

Ings or .so far sanctioned such departure by the lower

court as to call for an exercise of this Court's powsr of

supervision... .

1 There are andes this heading. two main: Teasons.

for the allowance of the writ' of certiorari. The first ‘is

‘in reference to the error in figuring interest. The result

is diametrically opposite’ to the clear. unambiguous. word-

ing of the interest statute, See. 258a, 40-U..8..C. . Under

* that section a. large number of cases have been degided:

which. were submitted ‘and ar gued to the Circuit Court

(Aplt’s. br.jError XXII, p. 66. ‘Prop. L. V5 p. 125; Su-

‘pra, pp. 19. 21). Interest is a matt er, of additions! just

compensation (about. $2 5,000)" payable to petitioner be-

ease deprived of its aevs completely and entirely on .

~ and after ‘November 2 22, 1942. It w ould seenrthat. the fiction

of repeated ex parte continuances of the passdanion: under

the ‘power “of emirient domain should not ie permitted by

‘the Court to defeat the applic ation of the statute. The .~

decision, of’ the Cireuit .Gourt below is ‘supported by no “

eases which have ever~heen. reported anywherp to jus:

tify the opinion in that * Accordingly, ‘the seat

is in direct conflict with U.S, . Rogers (1921), 25 U;

163, 41 S.. Ct. 281; Seaboard Air Line Ry, Co. v. oe e

(1923), 261-U. S. 299, ABS. Ct. 354; Phelps v. U.S. (1927), °.

274 U, S. 341, 47 S. Ct O11; Liggett de Myers -Tobaceo

Co. v. U, 8. (1927), 274 U.S. 215, 47.8.0 581; U.S. 4

Northern Pac. Ry. Co. (Wash. 1943), ol F: Supp. 749;

U.S. v. fou am Saunders. County (Neb;,- 1944), 57 F:

351 ; U.S. v. ater im St. Louis (1941), 41 ¥F. Supys. 809.

“2. The second reason under this heading for the ak

lowance of the writ: of “certiorari. is based tipon the Cir- ,

_ * cuit. Court's sanction of the trial court’ s conduet of the

case. It may be seen by reading all the’ instructions of the

eourt (Vol. I, p.. 150; and the volunteered remarks of the

court: referred to supra. pp. 3 -21)° that the court. began

’ the trial: and concluded it by announcing: certain rules in

eminent domain proceedings, which destroyed all the tes-

timony and evidence .before the jury from a common ps

sense viewpoint that was introduced. by the witnesses

for the petitioner. “In effect the trial court instructed

the jury to. find ‘rent?! based upon a formula ¢oncoeted

as interest on the valne of the separate itéms. found: by

the government’s witnesses, and nothing else of Substance |

as they did (Supra, -pp. 18; 11; 6-9; Volk 1, pp. 152-165). |

ema Similar conduet ‘of a: trial court aided in causing

the: reversal of the case. of National Brick Cov. U. 8.

* 4 2)

BE, «. A. Bist. Columbia, 1942), 131 F. 2d 30; nd in the - /

Nébraska Case of Langdon v. Loup River. (1944), 144 Ne h/

325, ” N, W.. 2d 168, wherein. the court said:

-**Kach party.is entitled’ to have the” jury ‘pris

upon the » evidenée Without having its effect/or -im-

portance altered, either os to credibility er value, by

ithe indulgence. of. the, court in rema?ks~fo witnesses .

or comments upon. them .or- their testimony, which

‘may - ‘tend. either to ‘magnify or_ diminish ° it “in. the »

jury ’s estimation.’’~ Bibs ae : s

_ A. In the National Brick 6. ease the conrt s t spi: |

(nee We think, sufficient haires has,"been done

by the rejection of proper, evidence of value, coupled

with, the judge’s statement limiting the appraisal ‘to

the value as real estate, to leave the jury bewildered

—.*_as‘to the proper’ elements to be: taken into. considera-

tion in aséertaining the fair market value of the pr op:

“erty.?’ —— p. 93; 13373 143°) Vol: 1, pp. 155-162

Vol. II, pp. 348-9; Vol. ITL, pp, 632; 648...Motion New

. Trial, Vol? “art 5, ee: 115- rc ; .

-O

CONCLUSION .

‘For the foregoing: reasons, it -is respectfully sub-

mitted that this petition for writ, of certiorari should: be

granted. 3

Dated ay 24, 1948,

- Respectfully submitted,

Hotz & Hom, 2: ra

Ree ie. Wiirast J. Horz,

: ae ILLIAM. J. Horz, dn.p

§ Wriniam F. Datton, : ;

-1530-5-City Nat'l Bank Bldg., 7

* Omaha, Nepraska, pais

. Counsel for Petitioner.

™; MeN rege “

. y- ;

2 .

~ ‘ tis 4

3 2

. Wl ‘

? z ,

ef "

Ree

‘ es ‘

. ° .

_ .

‘ .

. .

‘ ; ’ . e

’

bd .

‘

‘5

e . . .

‘ ‘ ?

‘

ia »

fk .

. ‘ ; 4

- - 4 .

‘ ‘

- iatiay

. .

seg 4

.% _

. ’ °

. .

. + @e

. ‘ .

og oe . a

e , ° * we

e °

oa & . ‘>: 2? @e

. * .

nce om apn cong at Sarton meet oytaste ne Srmanate tenet:

. ‘ eS

an marcsremangep ey nok ee

a .

*. *

‘

® .

® ‘

@ te < ‘

- . .

. a

F :

. ani

‘

“

—_..°@ .

, ¢

2 . te *

* ¢ “a

‘ .

° '

* .

‘

° 7

é sr

- oF

. te

: 4

. *,

;

” .

;

. * * .

- Ad

‘ - : :

i oe bee Te Te Se eet yern, Tra

, > ee é RS 0: Sete Crs

, .

‘

by .

her

’

™» « ”

. .

P ad .

‘

eo? -

. ‘

’

‘

2 he e

“

. °

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.