Petition for a Writ of Certiorari — Puerto Rico v. Cementerio Buxeda, Inc.

4

|

\ ‘ SEP 23

SUPREME COURT OF THE UNITED STATES

su YU

OCTOBER TERM, 1952

puE-ROL

i

No. 350

THE PEOPLE OF PUERTO RICO, Now tHe Common-

WEALTH oF Puerto Rico,

Petitioner

vs.

CEMENTERIO BUXEDA, INC.,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT AND BRIEF IN SUPPCRT THEREOF

Vicror GutierRez-FRANQUI,

Attorney General of The

Commonwealth of Puerto Rico;

J. B. Fernanvez-Babi.1o,

Sub-Attorney General;

Jaime J. SaupaNa,

Assistant Attorney General

Counsel for Petitioner.

Sy ee aS gc eg ee tikes

| INDEX

Sussect InpEx

Page

Petition for Writ of Certiorari................. My 1

Bee Pe era eee 1

PS oem can ply yin irae aca Seite 2

Questions Presented ................. e 4

Statement of the Case.................. 5

Specifications of Errors to Be Urged __. a 8

Reasons for Granting the Writ............... 9

fp INT reer es re ice 11

UI ticid' s4 voy uc usa tak wacex wi en aes 17

CITATIONS

Calderon v. Reyes, 31 P.R.R. 260............... i 16

City of Los Angeles v. Hughes, 202 Cal. 731......... 12

Cortijo v. Rosario, 33 P.R.R. 415.................. 16

Cote v. Mapas, 16 Pde GBS. «ow. oii ced tet 16

De Castro v. Board of Commissioners, 322 U.S. 451

“i, | RPA gen Greely nary We nearer Serna in Doe a 2, 10,11

pa ee) XS rear Pre 12

Felicie v. Porto Rico Racing Corp., 38 P.R.R. 423... . 16

Figueroa v. Figueroa, et als., 23 P.R.R.405......... 16

Flores v. Silva, 60 P.R.R. 363................. A be 16

Garcia v. Diaz, 33 P.R.R.98................ 16

Heisser Valley Land & Water Co. v. Ryan, 190 F.

ee RN ee aE fry ira ea ay . 13

In re Furman Street, 17 Wend. 649 (N.Y. 1836) _ 13

Latorre v. Cruz, 67 P.R.R. 696............. 16

Laureldale Cemetery Co. v. Reading Co., 154 Atl. 372

ee SE ce oa ees ac tira ain ice Sates 5, 7, 9, 14

Madera & Hno. v. Solares & Co., 43 P.R.R.131...... 16

Maldonado v. Quetell, 68 P.R.R. '390 naan ie 11

Mitchell v. United States, 267 U.S. 341 (1925) i. =e

Monongahela Nevigation Co. v. U. S., 148 U. S. 312

BOD ra ater eatery STW OIE 12

Morton Butler Timber Co. v. U. S.,91 F. 2d 884...... 12

Olson v. United States, 292 U.S. 246................ 9

: Omnia Co. v. United States, 261 U.S. 502........... 13

a People of Puerto Rico v. Huyke, 70 P.R.R.720...... 3,15

—3965

ce

= 2 Ub 3 wu

-

|

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> eebielt Wnawais. d9ic

ii INDEX

akties Page

_ Porto Rico Benevolent Society v. Murcipality of

| Ponce, 28P.RR.773.............----- 16

Puerto Rico Housing Authority v. Eckgaray, No.

10,160, Supreme Court of Puerto Reo, decided

June 29, 1961 ..... oT Seas 54 RMOREN "Se 3, 15

. Rivera v. Casiano, ee ee. . 2.5... 11

- Sancho Bonet v. Texas Co. (P.R.) Inc., 98 U.S. 463

5 | CORO i Sela aiaed se aa 2, 10

' San Juan Light & Transit Co. v. Reque@, 224 U.S.

Yt Navi alias One AC ae ee eee 16

_ Seaboard Air Line Ry. v.U. S.,261 U.S.99........ 12

_ Serra Garabis € Co. v. Municipio, 42 PRY. 452... 16

' St. Joe Paper Co. v. U.S., 155 F.2d. 93...---------. 14

_ Sucesion Orcasitas & Sucesion Orcasita: 21 P.R.R.

ORS OOS ae

Sunland Biscuit Company v. Junta de S!ario Min-

be 8 Sere ee ee 11

Torres v. Buscaglia, 68 P.R.R. 318. ....------- >>: 11

_ Torres v. Gonzalez, 68 P.R.R. 43.......--- +--+: 11

_ Torres v. Porto Rico Racing Corporatio: 40 P.R.R.

NN iia wn ya ween ca’ “She sexs 16

United States ex rel. T.V.A. v. Powelse 319 U.S.

So | Oe - 3,9, 10, 12, 13

United States v. Honolulu Plantation %» 122 F.

hae tee bee acini So's ae eee ee .. 8,9, 18

U. S. v. Meyer, 113 F. 24 387........... ----- --- 8,9, 10

U.S. v. Miller, 63 S. Ct. 27............. Stee eens 12

STATUTES

Fifth Amendment to the Constitution ofte United

ieee SSE UANG Riana ii 2 ere 10, 12

98 U.S.C. Section 1254 (1) ............. 0 2

Article 2, Section 9 of the Constitution ” Com-

. 2,4, 5, 11, 12

Eminent Domain Act of Puerto Rico, Sec?” ° (@)-.

AvuTuorities CITED

Schmutz, ‘Condemnation Appraisal }24book”’,

page 12, paragraph 2, 1949 ed........ °°": 14

———

—— gue

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

No. 350

THE PEOPLE OF PUERTO RICO, Now ture Common-

WEALTH OF PvErto Rico,

Petitioner

Us.

CEMENTERIO BUXEDA, INC.,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT AND BRIEF IN SUPPORT THEREOF

May IT PLEASE THE Court:

The petitioner, The People of Puerto Rico, now The

Commonwealth of Puerto Rico, respectfully prays this Hon-

orable Court for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the First

Cireuit, entered in the above-entitled case on April 28, 1952.

Opinions Below

The statement of the ease and opinion of the Court of

Eminent Domain of Puerto Rico (R. 27) is unreported.

The opinion of the Supreme Court of Puerto Rico (R. 111)

to

is unreported. The opinion of the United States Court of

Appeals for the First Cireuit (R. 127) is reported in 196 F.

2d 177.

Jurisdiction

The judgment of the Cireuit Court of Appeals was en-

tered on April 28, 1952. (R. 134). By orders of this Court

dated July 28, 1952 and August 27, 1952, the time within

which to file a petition for a writ of certiorari was extended

to and including September 25, 1952. (R. 135). The juris-

diction of this Court is invoked under 28 U.S.C. Section

1254 (1).

In this case is involved the admissibility, in Puerto

Rican jurisdiction, of evidence as bearing on the just com-

pensation to be awarded a condemnee for his property when

taken for a publie use, as provided by Article 2, Section 9

of the Constitution of The Commonwealth of Puerto Rico

which corresponds to Section 2 of the former Organie Act

of Puerto Rico (48 U.S.C. Section 737), now repealed; also

the construction of local rules of evidence, set forth by

opinions of the Supreme Court of Puerto Rico in cases of

this nature, which bring this case within the purview

of the doctrine of ‘‘ineseapable wrong and patent error’’

laid down by this Court in De Castro v. Board of Commis-

stoners, 322, U. S. 451 (1944) and Sancho Bonet v. Texas

Co. (P. R.) Inc., 808 U.S. 463 (1940) which makes the

judgment entered by the Supreme Court of Puerto Rico of

a nature that the Court of Appeals should have not upset.

It deals also with a change of the doctrine and theory of

the case by respondent, on appeal, which change was taken

in consideration by the Court of Appeals in rendering its

opinion and judgement.

Respondent’s theory of the case at the trial was as fol-

lows; (a) the amount of just compensation it was entitled

to receive should have been measured by the prices it (and

RE ee ee

other cemeteries of the vicinity) was charging for burial

facilities (which included the land, the conerete graves

built-in, labor and charges for management) less expenses,

multiplied by the number of grave sites that could be ob-

tained from the condemned parcel of land (R. 40, 41, 42,

47-48, 63-64); and (b) the award of just compensation

should have been determined by the value the land had to its

owner including the benefits or profits it had been deprived

by the taking. (R. 42, 48, 54, 56, 57, 61, 62).

To sustain its theory, respondent tried to introduce

evidence of sales of burial facilities it (and other ceme-

teries) had made. The trial Judge did not admit. this

evidence on the ground that it was speculative and con-

jectural and that value to the owner was not the measure of

just compensation. (R. 40, 42, 54-58, 60-61, 64, 68.) The

rules of evidence relied by the trial Judge have been laid

down by the Supreme Court of Puerto Rico in People of

Puerto Rico v. Huyke, 70 P.R.R. 720; Puerto Rico Housing

Authority v. Echegaray, No. 10, 160, Supreme Court of

Puerto Rico, decided June 29, 1951, and by Federal Courts

and this Court in United States ex rel. TVA. v. Powelson,

319 U. S. 266, 285 (1943); Mitchell v. United States, 267

U. S. 341, 345 (1925); U.S. v. Meyer, 113 F. 2d 387, Cer-

tiorari denied, Meyer v. U. S., 61S. Ct. 174; United States

v. Honolulu Plantation Co., 122 F. 581, 584-585. These

rules of evidence set forth by the Supreme Court of

Puerto Rico constitute the local law for the admissibility of

evidence in cases of this nature.

The Court of Appeals took in consideration, to render

its opinion and judgment, the change of the doctrine and

theory of the case on appeal, made by respondent in its

brief. The following excerpt is quoted from the opinion

of the court below:

“* ) . We have no doubt that the court would have

been correct had it rejected the evidence as to the

Saray i

value of the individual burial sites if it had been in-

troduced solely to indicate loss of business profits.

For that purpose the evidence is irrelevant, Mitchell v.

United States, 267 U. S. 341 (1925). But the defend-

ant states in its brief: ‘The evidence was offered not for

the purpose of claiming profits as such, but to show

the productiveness and capabilities for yielding profits

and income as bearing on the value—the present value

—of the land’ ’’ (R. 132, opinion of the court below).

In his coneurring opinion, Honorable Chief Judge

Magruder, of the Court of Appeals, states that ordinarily

questions of the rules of evidence to be applied in the

insular courts are questions of local Puerto Rican law, as

to which said Court may not upset a judgment of the

Supreme Court of Puerto Rico unless it is ‘‘inesecapably

wrong’’. But as the Bill of Rights in the former Organic

Act of Puerto Rico (48 U.S.C. Section 737) contained the

prohibition; ‘*Private property shall not be taken or dam-

aged for public use except upon payment of just compen-

sation ascertained in the manner provided by law’’, it

seemed to him that a federal question was presented, as

to which that court was entitled to take its independent

view, when ‘the relevance, and henee admissibility, of

evidence is determined by the factors which a condemnee is

entitled to establish as bearing on the amount of ‘‘just

compensation’? guaranteed to him by the Organie Act.*

(R. 134, opinion of the court below).

Questions Presented

Whether the decision and judgment of the Supreme Court

of Puerto Rico is patently erroneous.

Whether the Supreme Court of Puerto Rico was ines-

*The Bill of Rights of the Organie Act were repealed. Now are in

force the Bill of Rights contained in the Constitution of the Common-

wealth of Puerto Rico wherein an identical prohibition is found in Ar-

ticle 2 Section 9.

5

capably wrong in affirming the trial court’s rulings ex-

cluding and rejecting evidence tending to show value to

its owner, prices paid for developed cemetery land and

burial facilities including profits, as a measure of compen-

sation for condemned property.

Whether the Supreme Court of Puerto Rico was ines-

capably wrong in applying to the instant case the doctrine

laid out in Laureldale Cemetery Co. v. Reading Co., 104

Atl. 372 (Pa. 1931).

Whether the Court of Appeals for the First Cireuit is

entitled to take an independent view from that taken by

the Supreme Court of Puerto Rico, when the relevance,

and hence admissibility, of evidence is determined by the

factors which a condemnee is entitled to establish as bear-

ing on the amount of ‘‘just compensation’? guaranteed to

him by Article 2 Section 9 of the Constitution of the Com-

monwealth of Puerto Rico, formerly Section 2 of the

Organic Act. (48 U.S.C. Section 737).

Statement of the Case

On March 3, 1949, petitioner, The People of Puerto Rico,

now The Commonwealth of Puerto Rico, filed a petition

for condemnation in the Court of Eminent Domain of

Puerto Rico to acquire several parcels of land located at

Isla Verde, Puerto Rico, for the purpose of constructing

a public road to deviate the existing one connecting the

cities of Santuree and Carolina. This deviation was neces-

sary because the former road was an obstacle to the In-

ternational Airport now under construction at that place

(R1). Among the condemned parcels of land is Parcel

No. 14 which belonged to respondent corporation, with an

area of 1,642.42 square meters (R. 18).

Under section 5 (a) of the Eminent Domain Act of Puerto

Rico, petitioner filed a Declaration of Taking and deposited

Faigle

6

in court the sum of $3,284.82 as the estimated just compen-

sation for said parcel of land. (R. 7).

The condemned land was severed from a larger tract and

bounds by its North with Insular Road No. 57 (R. 18).

Both constituted the estate of ‘‘Cementerio Buxeda.”’

On June 10, 1949, respondent filed its answer to the peti-

tion for condemnation (R. 25) wherein alleged that the

condemned property had a value of $49,846.50. It further

alleged that as a result of the condemnation suffered

damages amounting to $3,000 which was the cost of the re-

construction of the frontal wall of the cemetery. These

damages were stipulated and paid apart thus limiting the

issue of the case solely to the value of the land itself (R. 32,

39).

The respondent corporation is dedicated to the cemetery

business. In 1945 bought the tract of land, from which

the condemned parcel was severed, with an area of 18,469.96

sq. m. for the sum of $10,000 (R.108-109). After obtaining

a permit from the government to dedicate this land to

cemetery purposes, it built a wall around its perimeter and

a chapel and a morgue for autopsies in its center. It also

constructed a road from Insular Road No. 57 to the interior

of the cemetery, with parking facilities at the back (R. 51)

and built conerete graves at the rear part of the lot begin-

ning from its center. No tombs or graves were built. in

the condemned property and no burial facilities were ex-

tended to it. (R. 28, 51, 60). The corporation did not ex-

tend the burial facilities to the condemned land because

it had knowledge that the same was going to be taken by

the government. (R. 60).

At the trial of the case respondent tried to prove that

although the burial facilities of the cemetery were not ex-

tended to the land taken, and no interments had yet been

done there, it should be understood that it was aciually

dedicated to and in use for cemetery purposes because it

ee a ea a

7

formed part of the larger tract. Its theory of the case

was that as the condemned land formed part of the entire

tract, it was therefore actually dedicated to the cemetery

business and purposes of the corporation, and hence, the

amount of just compensation it was entitled to receive

should be measured by the prices it (and other cemeteries

of the vicinity) was charging for burial facilities (which

included the land, the conerete graves built-in, labor and

charges for management) less expenses, multiplied by

the number of grave sites that could be obtained from the

land taken. Also that the award of just compensation

should be determined by the value the land had to its owner

including the benefits or profits it had been deprived by

the taking (R. 42, 48, 54, 56, 57, 61, 62). To this effect it

tried to introduce evidence of sales of burial facilities and

the value to the corporation of the condemned land. The

trial judge rejected this evidence for being speculative

and conjectural and also because the value to the owner

was not the test to ascertain the just compensation. (R. 40,

42, 54-58, 60-61, 64, 68). The judge concluded that, not-

withstanding the faet that the condemned parcel formed

part of the entire tract comprised by the Buxeda Cemetery,

it was undeveloped land, with no burial facilities extended

to it and therefore not dedicated to the cemetery business

of respondent though ready to be so, (R. 28) and applied

the doctrine laid out in Laureldale Cemetery Co. v. Read-

ing Co., 308 Pa, 315, 154 Atl 3872.) The Supreme Court of

Puerto Rico, on appeal, sustained and affirmed the lower

court’s conclusions and rulings. (R. 111).

In reversing the judgment of the Supreme Court of

Puerto Rico, as patently erroneous, the Court of Appeals

coneluded that the condenmed land was dedicated to the

cemetery business and purposes of respondent and there-

fore the rejected evidence should have been admitted (R. 155,

opinion below). In arriving at its conclusions, the Court

of Appeais, took in consideration, a change of the doctrine

SMOLIN BARE NIRA

8

of the case on appeal, made by respondent in its brief. We

quote from the opinion of the court below;

“ . . We have no doubt that the court would have

been correct had it rejected the evidence as to the value

of the individual burial sites if it had been introduced

solely to indicate loss of business profits. For that

purpose the evidence is irrelevant, Mitchell v. United

States, 267 U.S. 341 (1925). But the defendant states

in its brief:*The evidence was offered not for the pur-

pose of claiming profits as such, but to show the pro-

ductiveness and capabilities for yielding profits and

income as bearing on the value—the present value—of

the land’ ’’ (R. 132, opinion of the court below, italics

supplied).

The Court of Appeals held (in the concurring opinion

written by Chief Judge Magruder) that they could take an

independent view from that of the Supreme Court of Puerto

Rico, when the relevance, and hence admissibility, of evi-

dence is determined by the factors which a condemnee is

entitled to establish as bearing on the amount of just com-

pensation guaranteed to him by the Organie Act, (Now

the Constitution of the Commonwealth of Puerto Rico) be-

cause, it is intimated, is a federal question although ques-

tions of rules of evidence are questions of local law. (R. 134,

opinion of the court below).

Specifications of Errors to be Urged

The Cireuit Court of Appeals erred;

1. In holding that the judgment of the Supreme

Court of Puerto Rico is patently erroneous.

». In holding that evidence tending to show value

to its owner, prices paid for developed cemetery land

and burial facilities including profits, as a measure of

compensation for condemned property, was admis-

sible.

3. In holding that the Superme Court of Puerto Rico

was inesecapably wrong in applying to the instant case

9

the doctrine laid out in Laureldale Cemetery Co. Vv.

Reading Co., 303, Pa. 315, 154 Atl. 372.

4. In setting aside the findings of fact made by the

trial judge and sustained by the Supreme Court of

Puerto Rico.

>. In taking in consideration, to enter its judgment,

a change of the theory and doctrine of the case on ap-

peal made by respondent in its brief.

6. In failing to hold that the instant case presented

solely questions of local Puerto Rican Law.

7. In failing to affirm the judgment entered by the

Supreme Court of Puerto Rico.

Reasons for Granting the Writ

The decision of the court below is in direct conflict with

the decision entered by the Ninth Circuit in United States

y. Honolulu Plantation Co., 122 F. 581, 584-580 and other

Cireuit Decisions; U.S. ve Meyer, 118 PF. 2d. 387, We be-

lieve also that said decision is in conflict with decisions

of this Court, United States ex rel TVA. vy. Powelson, 319

U.S. 266, 285, Olson v. United States, 292 U.S. 246, 255.

The Honolulu Plantation case presented a_ situation

similar in all respects to the instant case. There, as in this

case, Was at issue whether the value of condemned property

to the owner, was the measure to award just compensation

toa condemnee. In disposing with this matter, said court

stated;

“Compensation to be made for property taken by

the exercise of the power of eminent domain is not its

value to any particular company or individual, whether

plaintiff, defendant, or anybody else, but the market

value of such property at the time of the exercise of

the power...

“That the compensation to be made for land taken

by the exercise of the power of eminent domain must

he measured, not by its value to any particular per-

son, but by the market value of the land at the time

of the taking, is established by many authorities’...

tie eal i

10

and in U. S. v. Meyer, 113 F. 2d 387, was decided that the

past profits and the probable future profits are too conjec-

tural to furnish any basis for determination of value. In

United States ex rel T.V.A. v. Powelson, 319 U.S. 281, this

Court stated;

‘“‘There are numerous business losses which result

from condemnation of properties but which are not

compensable under the Fifth Amendment.”’

The Puerto Rican government is actually developing an

ample, far reaching and important program of public works

necessary for the solution of the serious and complicated

problems with which Puerto Rico is actually confronted,

and for which is restoring to eminent domain proceedings.

If evidence of this nature, speculative and conjectural, is

permitted to be considered in awarding the just compensa-

tion to be paid a condemnee for his property, will result

in a very serious burden to the public interest and, per-

haps, an illegal enrichment on the part of the condemnee

at the expense of the publie funds.

We believe that this is the first ease in which the Court

of Appeals for the First Cireuit applies the doctrine of

‘‘natent error and inescapable wrong’’, set forth by this

Court in De Castro v. Board of Commissioners, 322 U.S.

451 (1944) and Sancho Bonet v. Texas Co. (P.R.) Ine., 308

U. S. 463 (1940). We submit that the intimation that in

this case is presented a federal question on account of the

prohibition contained in the Bill of Rights of the Organic

Act (48 U.S.C. Section 737), now repealed, is not sufficient

to reverse the judgment of the Supreme Court of Puerto

Rico, when, as in the instant case, the fundamental ques-

tion is one of local Puerto Rican law, in which event the

Court of Appeals should have not upset the judgment of

the Supreme Court of Puerto Rico as has been ruled by

this Court in the above cited cases. Furthermore, even

11

ught forth a federal ques-

1, at the actual state of the

would be Article 2 Section

if the rejection of evidence brou;

tion under the Organic Act cited,

proceedings, the law applicable w

9 of the Constitution of the Commonwealth of Puerto Rico,

which makes the interpretation | and construction of the

just compensation prohibition, as question solely of local

Puerto Rican nw, and hence, in th. shat event, the ruling found

in De Castro v. Board of C ommin stoners, 322 U.S. (1944)

governs the issues of the instant « —

Argument"

r" Rico was not inescapa-

court’s conclusion that

and not dedicated to the

1. The Supreme Court of Puer

bly wrong in upholding the trial”!

the land taken was undereloped «

cemetery business of respondent.

This error deals with the apprreciation the trial Judge

gave to the evidence introduced.

It is a well settled rule in our jJUisdiction that the find-

ings of fact made by a lower cour" when sustained by the

evidence adduced before said cout, Will not be disturbed

or altered unless it is shown and )Proven that the same are

the result of bias, partiality or prejudice in the apprecia-

tion of the evidence."

2, The Supreme Court of Pue eptto Rico was not inescapa-

bly wrong in holding that eride pice tending to show value

to its owner, prices paid for developed cemetery land and

burial facilities including profits, d@& @ measure of compensa-

tion for condemned property, was inadmissible.

The just compensation guaran'teed by the Constitution

to the owner of property which is taken for public use by

1 Sere y. Buseaglia, 68, P.R.R. 318; Torres V. Gonzalez, 68 PLR.R. 43;

Rirera v. Casiano, 68 P.R.R. 177; ‘Sunland Bisenit Company Vv. Junta de

Salario Minimo, 68 P.R.R. 345; Maldonadlo V. Quetell, 68, P.R.R. 390,

PA aed rf

12

by condemnation proceedings is due as of the date of the

taking,? not at an earlier or future date;* and must be de-

termined considering the property in the state it is at the

moment of its condemnation. Hence, it ean not include

any expected income the owner might obtain from its fu-

ture subdivision and sale.5

Article 2 Section 9 of the Constitution of the Common-

wealth of Puerto Rico, formerly contained in the Bill of

Rights of the Organie Act, (48 U. S. @ Section 737), re-

quires the payment of just compensation for private prop-

erty taken for public use. The fair cash market value of

the property actually taken have been generally determined

by the federal courts to be the amount the owner is en-

titled to receive as just compensation.* While the state-

ment has sometimes been made that the owner is entitled

to be put in as good a position pecuniarily as if his property

had not been taken,’ this does not mean that all losses

suffered by the owner are compensable under the Fifth

Amendment.* In Monongahela Navigation Co. v. U. S., 148

U. S. 312, 326 (1893), the U. S. Supreme Court said:

‘er. . Just compensation ... is for the property, and

not to the owner. Every other clause in the Fifth Amend-

ment is personal. ‘No person shall be held to answer for

a capital, or otherwise infamous crime’, ete. Instead of

continuing that form of statement, and saying that no per-

son shall be deprived of his property without just compensa-

tion, the personal element is left out, and the ‘just compen-

sation’ is to be a full equivalent for the property taken.’’

The government is required to ‘pay only for what it

takes, not for the opportunities which the owner may

“U.S. v. Miller, 63 S. Ct. 27.

* Empie v. U. S., 131 F. 2d 481.

4 Morton Butler Timber Co. v. U. S., 91 F. 2d 884.

* City of Los Angeles v. Hughes, 202 Cal. 731.

® United States v. Miller, 317 U.S, 369, 374.

7 Seaboard Air Line Ry. Vv. U.S., 261 US. 299, 304 (1923).

SUnited States ex rel T.V.A. v. Powelson, 319 U.S. 266, 285 (1943),

13

lose.’”” ‘‘There are numerous business losses which re-

sult from condemnation of properties but which are not

compensable under the Fifth Amendment.’ Thus, in

Mitchell vy. United States, 267 U.S. 341, 345 (1925), the

owner was denied compensation for the destruction of his

business which resulted in the taking of his land for a pub-

lic project even though the business could not be reestab-

lished elsewhere. Similarly, while the Fifth Amendment

allows the owner the fair market value of his property,

‘‘it does not guarantee him a return of his investment.’

Likewise, a mere interference with private contract rights

involving property taken are not compensable although re-

sulting in a pecuniary loss to the owner. ‘‘Frustration

and appropriation are essentially different things’’? And

it will be recalled that the owner in the Miller case was

not left in as good a position pecuniarily as if his property

had not been taken since he was not permitted to recover

the increment in value caused by the government project,

an increment enjoyed by his neighbors whose lands were

not taken.

The compensation which the government must pay for

property which it condemns is the fair market value as be-

tween a willing buyer and a willing seller.’ Special value

to a particular user is not the test."

The court of first instance in the case at bar did not

violate the rules laid down in the foregoing decisions.

Respondent was endeavoring to show the special value

to it of the property condemned. This was not the issue.

* United States ex rel T.V.A. ¥. Powelson, 319 U.S. 266, 282 (1943).

19 United States ex rel T.V.A. Vv. Powelson, 319 U.S. 281.

11 United States ex rel TVA. Vv. Poyelson, 319 U.S. 266, 285; Olson v.

United States, 292 U.S, 246, 255.

12 Omnia Co, vy. United States, 261 U.S. 502, 508-513 (1923).

3 United States Vv. Miller, 317 U.S. 369, 374 (1943).

United States v. Honolulu Plantation Co., 122 F. 581, 584-585 Heisser

Valley Land & Water Co. v. Ruan, 190 F. 417 In re Furman Street, 17

Wend, 649, 670-671 (N.Y. 1836) United States y. Miller, 317 U.S. 369,

379 (1943).

ey SE’. eee |

PODS Lae IIE

14

The question to be determined was tl ee esiet value

of the property as between a hypotl; 4) willing buyer

and willing seller. The fact that the ot. “may not want

to part with his land because of its spc) adaptability for

his ownuse .. . must be disregardc by the fact-finding

body in arriving at ‘fair’ market valu, tryited States v.

Miller, 317 U.S. 369, 375 (1943).

As we have seen, it is a settled rule) at the just com-

pensation the Government has to pay »y property taken

is what the property itself, as it is i. weit af the

condemnation, may be worth in an Opel arket,

ing the peculiar ‘‘value in use’’ to the 4. ‘This is an

accepted rule for many authorities on e subject, thus in

Schmutz, ‘‘Condemnation Appraisal Hs abook”’, page 12,

paragraph 2, 1949, ed., we find;

disregard-

‘‘The courts have held that the val; of the property

to its owner or to the party seeking it demn it is im-

material. The necessities of the publi ypat it is worth

to the condemning party, and the peeull. «value in use’

to the owner can not be considered. T, jyarket value of

the property is the yardstick for measBne yalue or dam-

ages—in other words, its value in exchinee, its ability to

command a price in the open market.”’

The material question to be determing jy condemnation

cases is the fair market value of the PYperty taken. The

purposes for which defendants had boug¢ their lands, and

for which they held them are irrelevant 4 question of just

compensation.” The past profits and t, probable future

profits are too conjectural to furnish ay jasis for deter-

mination of value."* The contemplated ‘yture subdivision

and development of land taken have beer}eld, in our juris-

1 St. Joe Paper Co. v. UL S., 155 F. 2d 93.

6U. S. ¥. Meyer, 133 F. 2d 387, Certiorari demg, yfeyer vy. U. S., 61

S. Ct. 174, Laureldale Cemetery Co. v. Reading) 154 Atl. 372 (Pa.

1931).

oA es ANT YS

LPN SEE Ah AMEN Y Bere tt See

NETS ETL ES ONL IE KOs. BONA

15

diction, not to be the test for measuring compensation on

account of its conjectural and speculative nature.’

3. The Supreme Court of Puerto Rico was not inescapably

wrong or patently erroneous in applying to the instant case

the doctrine laid out in Laureldale Cemetery Co. v. Reading

Co., 303 Pa. 315, 154 Atl. 372.

The Court below distinguished the instant case from the

Laureldale case stating that in this case the land was al-

ready and actually dedicated to cemetery and burial pur-

poses while in the Laureldale case that was not the proper

situation. (R. 130, opinion below). From a study of the

facts pertaining to both cases there appear the following

similarities :

In both cases the corporation was formed to dedicate

itself to the cemetery business. In the case at bar respond-

ent acquired, before the time of the condemnation, 18,469.96

sq. m. of land which were to be dedicated to cemetery pur-

poses. Since 1946 this cemetery was in operation. In the

Laureldale case the land was bought in 1923, to wit, four

years prior to the date when the condemnation in said case

took place.

In both cases the owners had made investments necessary

to operate the business and had already sold grave sites

and interments were made. No interments had yet been

made in either condemned parcel of land at the time the

same were taken, neither burial facilities were built-in.

To make this case even more similiar to the Laureldale

case we have the fact that in the instant case respondent

paid $10,000 in 1945, for the 18,469.96 sq. m. that comprised

Cementerio Buxeda and asked $52,846.50 for the 1,642.41

sq. m. taken, that is, ten times more or less, its original cost.

17 People of Puerto Rico v. Huyke, 70 P.R.R. 720, Puerto Rico Housing

Authority v. Echegaray, No. 10,160, Supreme Court of Puerto Rico,

decided June 29, 1951.

16

In the Laureldale case defendants paid $500 per acre, and

asked around $26,000 per acre. This fantastie figure in-

duced the Supreme Court of Pennsylvania to call it ‘‘real

estate alchemy’? (p. 373).

The following excerpt is taken from the opinion rendered

in the Laureldale case:

... The only thing exceptional about this land is,

first, that it has been selected as part of a cemetery site;

and, second, it is claimed for it that as a cemetery site it

possesses exceptional advantages. If those or similar

features make any land appropriated under eminent domain

an exception to the established rule for measuring damages,

the quantity of appropriated land which will hereafter be

equally entitled to exceptional value measuring will soon

make the application of the old rule the exeeption’’.

4. The Court of Appeals erred in considering, to render

its opinion and judgment, a change of the theory and doc-

trine of the case, on appeal, made by respondent in its brief.

It is a settled rule in Puerto Riean jurisdiction and in

this jurisdiction, that, on appeal, the appellate courts will

not consider a change in the theory of the case. The ap-

pellate courts will only consider the cases on appeal as

presented before the court of first instance.”

18 Latorre v. Cruz, 67 P.R.R. 696; Serra Garabis & Co, Vv. Municipio,

42 P.R.R. 452; Madera & Hno. Ine vy. Solares & Co, 43° PLRLR. 131;

Felicie v. Porto Rico Racing Corp., 38 PRR. 423; Porto Rico Benevolent

Society V. Municipality of Ponce, 28 PRR. 773; Calderon v. Reyes, 31

P.R.R. 260; Cortijo v. Rosario, 33 P.R.R. 415; Garcia vy. Diaz, 33: PLRLR.

98; Sucesion Orcasitas Vv. Sucesion Oreasitas, 21) PLRLR. 105; Coto v.

Rafas, 18 P.R.R. 493; Figueroa v. Figueroa, et als, 23 PRR. 405; Torres

v. Porto Rico Racing Corp., 40 P.LRLR. 423; Flores v. Silva, 60 PLRLR.

363; San Juan Light & Transit Co. vy. Requena, 224 U.S. 89.

eh va we RRR Tas He PLO Sa AIOE

17

Conclusion

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

San Juan, Puerto Rico, September 23, 1952.

Respectfully submitted,

Victor GuTIERREZ FRANQUI,

Attorney General of the

Commonwealth of Puerto Rico.

J. B. Fernanvez Babi110,

Sub-Attorney General.

JaImE J. SALDANA,

Assistant Attorney General

Counsel for Petitioner.

(3965)