Petition for a Writ of Certiorari — Southern Counties Gas Co. v. United States

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—. LIBRARY

S| JPREM

: see COURT, cae . JOHN T_FEY, Clerk

Supreme Court of the United States: :

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SOUTHERN Cot NTIES GAs. CoMPANY oF CALIFORNIA, a

corporation, .

a

Petitioner,

US. |

THE UNITED STATES OF AMERICA, :

: | a Respondent.

Petition for a Writ of Certiorari to the United States

Court of Claims.

BaTEs -BooTH.

Suite 405,

458 South Spring Street,

. Los Angeles. 13, California,

. Counsel for Petitioner.

Ter Davre Rerrr

8.

a : said

Citation to opinion below......... ae cae Lotannie ae reo 1

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- Jurisdiction ssspbendgeesencenntenenee a aleele ? stale Laiiosaeel haiti sikh coupes -

—— presented Sesceecetethenennan susshigeetecensennnee oes Bourke 2

j Constitutional provisions and statutes CE Ga Be ei tiaannesian 4

_ Statement pate: aaa een nen. eonesconees ne ce peo OnanW iad 3

Reasons tr granting. the a anc ay

Otnctasion os iene pine niet eh ade pane NK Hoare So saben iets ese

Appendices : . , .

. Appendix “A.” Excerpt of relevant portiéns of Act of August.

18, 1941, “36 Stat. 638 et seq. (H. R. AS, _ Chapter 377)

india aiiiasiedeicsicaiiaing a lipaibdilepipialipkinicinlaatasank eptainiiotans amnesic A ‘PP. p. | *,

th. SUB ECT INDEX. RA cies en gs Use se

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.

TABLE OF .

NIHORITIES CITED

‘Com: <<. : ” PAGE

A. W. Duckett.& Co, vy. United States, 206 U. S. 149, 45 S. Ct.

” 38, 69 L.. Id. 216 Te PPAL ONE SPRY NPT ORES TTT ete ee, eee

—— County of Los Angeles v. © So. Cal. ee wt Cal. ed 378, 191 i

- PP. M 773.. 48s YS Ss aap an ASP Ip IE GieE RT ae een

" Dore v, United ‘States, 119 Ct. Cls. 560, 97 Fed. ey nae 8

Hix v. City of Tacoma, 171 Wash. 196, 17 P. 2d 599... eS

_ International Paper Company vy. United Stites, 282 ‘Uz S. 399, 7

ee ee ee re a ee, eiitticipcedh a

___Joslin-Co:-v> Providence, 262, U S. 668, 43 S. Ct. 684, 67 si

Fd. 1167

‘Kelletville Gas Co. v. United States, 56 Fed. Supp. 919..0000000....... 12

. Kimball Laundry Co. y: United States, 338 U.. S. 4, 69 S. Che

We ek, BE A. sahonieia: idasueisnant 13

Los Angeles v. Los Angeles Cis &: Electric vein 251 U. S.

- 32, 40 S. Ct. 76, 64 NN Mo cedtcocccidiciacsinadaenmokac FF

Los Angeles Cointy v. Wright, 107 Cal.’ App. 2d 238, 236 P.

Mitchell v: United States, 267 U.-S. 341.45 S. Ce. 203, @

L. Ed. 644, 157 Fed. Supp. 935......... AT ee a Seo Se earn ay.

: Wensts ¥- Kanes, 9 Cal, Ano: 28 734, 203 F-20547.

Olson v. United States, 292 U. S. 246, 54S. Ct. 704, 78 L! Td

eS ec EEO Mah Mis SIR LR eae OS ROE ROO 1

Omnia Co. v. United States, 261.U).. S. 502, 43 S. Ct. 437, 67

L. Ed. 773, 137 Fed. Supp. Rech idencnan eteens tose asapnca 8

Pennsylvania Coal Co. v. Mahon, 260 WU. S: 393, 43 S. Ct. 158,

Pumpelty. v. Green Bay, ete. Canal Ca.. 80: U.'S. ava | .

“SR ea eet ec ce 7

Portsmouth ete. Hotel v. United States, 266 U. S. 327: 743 Ss Ct... |

Re eh ae

Russell vo Sebastian, 233 UL. S. 195, 34 S. Ce 517, 58 - a aging 3,

United States v. Welch, 217 U.-S. 333, 30'S. Ct. 527, §4 L.

United States Constitution, Fifth Amendientt.coeccccceceeei22, 8, 12

TEXJBOOK

64 bs

) ee PAGE

~ South Pac. R. R. ¥: - San Francisco Savings Union, 146 Cal. 290, |

ae | RR ee Raden oer eee el fasnebctceatese ae 10

United States v. 2979. 72 Acres of Land. etc, 235 If. 2d 327.

United States v. . Causby, S28 U. &. 256, 66 S. Cts 1062, 90

L. Ed. 1206 matianigaiiginiaid Pi nansdenncntariracenintearsnnaiiiepmniesienagiiiaal fo =

' United States v. General Motors, 323 U. S: 373, 65° S. Ct. 357,

i cca capnca aia aca pasaeeeeisaomaaiaas 9’

United States v. Kansas City Life. Ins. Co., 339 U-. s 799, 70. -..

. §. Ct. 885, 94 L. Ed. RAR TASS RNS pad in Ings er —-* 9

United States v. Lynah, 188 U. S. 445, S04 S. ct 349, 47 L. me

=. oppo scien tscsdutda males aiindaed eiodicienin ental atau edie coanitagtaielaa sass 9»

United States v.' Powelson,. 319: U. S. 266, 63 s. Ct. 1074, 87

Me agenesis fnnnnn sannesnenl Ra Fre ak take SN Ab eS ie

United States v. Twin City Power Co., 248 F. 2d ye

“V7 California Jurisprudetice 2d, Esqements: par. 30, Bs .

SMM OI hh sae sieht nda cedar ni Be aedaniiacaitan

Ward v. Monrovia, 16 Cal. 2d 815, 108 P24 428. le 11

wae Union v. Hopkins, 160 Cal. 106, 116 Pac. 557, aasadalabaied 7

_ . RULES ; a

Rules of the Court of Clits, Rule 38(¢).ciceulnunennenee 2

“~\ ct -* _Srageres | |

California Civil Code, Oe Oe a ices : seiades 7

, Cilifornis’ Civil Code, Sec. 802........... Rant tart Die eed Ls speech 7

55 Statutes at Large, p. apace Susie ak eae (Sia 2.

United States’ Code, Title 28, Sec, 1255 (1) ..cccccsssse-ssesseeene ee

‘United States Code, Title 28, See, M91 (1) 0. conesen oe

‘United States Code, Title 28, Sec. 1491( 4; GRAPE TS Boe ree eee BIE Sup

|

N ; oe,

IN THE

- Supreme Guat of the United States a

———

| | at INO. scccssiees . rete ee

Corte) i een October Term, "1987

G o , Yt sare bef

« “LN. a UR . |

_ Sourtery Counties Gas Company OF . *. CALIFORNIA, iP

cofperation, speet ih aa aoe |

| i? aaa eC - Petitioner,

ese ee sp ; US.

Tue Unitep Srates oF AMERICA,

/

: ee Respondent.

Petition for a Writ of Certiorari to the United States s

Court of Claims. oa |

Southern Counties. Gas Company of California prays.

that a writ of certiorari issue to. review the judgment: of ~-

the United States Court of Claims. entered in the above- _

. . entitled case’ on January. 15, 1958. |

Citation to Opinion Below.

The opinion of the Court of Claims [R. 35] en

in Appendix’ B- hereto, infra, page 3, is reported in

| 157 Fed. Supp. 954, _ and 138 Ce Oe as

_ Jurisdiction.

The judgmer.t of the Court of Claims’ was entered on’

January 5,.1958 [R. 35]. Rehearing was denied March ;

"5, 1958 [R. 45]. The jurisdiction of this Court is in-

. voked under 28 U. S. C., Section -1255(1). Federal

in a

‘jurisdiction of the Court of Claims. was jnvoked under 28

~ U.S. C,, Section 1491(1) and (4), and the Fifth Amend-

_ ment to the Federal’ Constitution. 2

~ Questions Presented.

: :

Ts there a taking of private property within the Fifth -

Amendment where the Government requires disconnection

_or removal ‘of pipelines ‘and fittings installed under

Aranchises and, because’ the cost of such removal: would

-exceed the. ian value, there results a total destruction

of the value of such property?

Vy.

Where the judgment below is based’ on the misconcep-_

tion that. petitioner only Jost. its customers, whereas in

- fact the claim is for the physical value of pipes -and |

fittings which the parties have stipulated aid the lower

court has\found were totally destroyed in ‘value, will this _

Court corréct the error?

-—

ae

Constitutional ‘Provisions and Sinrutes’ Involved.

This cause ‘involves an application of‘ that portion of

the Fifth Atnendment reading * “x * * nor shall private

- property bé taken for. public use without just: compensa-

- tion.’” The statutory provision involved: is the Act of _

August 18, 1941, 55 Statute 638, relevant portions thereof . a

are printed in Appendix A, infra, pages 1-2. By stipula-

. tion ‘[R. 31} and court order [R. 32] the trial below was

limited to the issué of liability~tinder Rule 38(c) of the -

lower court. Such rule is printed in Appendix -A. infra,

pages La |

>

es

» » ° °

a Oma

5)

athe

. . Statement.

- The-case below was limited by stipulation [R. 31]: and

court order [R.. 32] to a determination of the issue of,

&

liability and ‘the entire evidence consisted .of the Agreed

Statement of Facts [R. .23- 31}, written exhibits [A, C,

_D, E and F] and one photograph | Ex. B}:

Petitioner is a public utility [R. 23, 39] and, at all

times relevant here, was the owner of and maintained and -

operated a network of are transmission lines,

service pipes and distribution faciliti@§to supply gas under

_ pressure to residential, industrial, commercial and agri-

cultural consumers [R. 26. 41]. Such facilities were

installed and: maintained on private property within deeded _

right of way easements and under public streets, roads and °

alleys under written vigor way easements granted: in,

franchises’ from the County of Los Angeles and the: City

of Montebello [R. 26-27, 41 and Ex. “C’”’].

Purguant to the. Whittier Narrows Flood Control Basin

Act [R: 23, 39, Appx. A] the United States: has erected

a large dam to control the figod waters of two conv io

rivers [R. 23, 39] by intercepting and temporarily i

pounding: such flow in a reservoir upstream of such’ rat

and —— it below in controlled and regulated flows

-[R. 24, 39]. :

To comply w ith ‘the Congressional mandate, the United

States elected to acquire flowage easements or. the fee.

simple title to all lands, and -the improvements thérdon,”

lying above the dam to and within contour dlevation 239

.mean-sea ° ‘level [R. 23-26, 39-40], together with title in

fee simple to the area required for the dam and spillways

{R. 25, 40], all of which are referred to in the record as.

the “taking area” [R.-:26, 41] and will be so ——

herein. : .

A

such. flowage_r rights and fee fropa

| * ° e |

Petitioner's facilities were installed throughout this

. “taking area” [R.-26, 41]. Neither the Agreed State-

ment nor the lower court, 's findings recite that the facilities }

| within the * ‘taking area” were only a portion of petitioner's

" system, nor’ do either of them negative such -fact. How-

ever, the franchises [Ex. “C’], the maps [Ex. a ad and,

particularly Schedule I] tothe Petition [R. 13] affirma-

tively disclose that such system extends outside of such .

“taking area,” and the pipes taken serviced consumers

Gutside such taking area and had’ to ‘be replaced as a re-

sult of Kespondent’s actions. The United States did not

expre ssly take such facilities, by condemnation or pur-~

chase, excepting: those’ which were’ located in. and under.

the damsite. ‘and “its appurtenant ° embankments, diversion ©

channels, spillways.- and- outlet. works” within » ‘what was

called Segment “G" [R. 27-28, 42].

Instead, through condemnation and inca it ‘aeatacedl

nd paid the fee owners

and purported toexcépt existing!

and pipelines® ° [R.-27-28, 42]. It paid or refused to pay

“petitioner for: its loss of its facilities according to w hether

the Army, Corps of Engineers decided such’ facilities

would: interfere with or were needed to serve the flood

control preject [R. 27-29, 42- 43}. But it tstructed peti-

~ toner: to.-disconnect or remove: “the facilities which “the

Ge -vernment purported «&o except from its taking and re-

fused.to. pay\ for [R. 30, 44] and it was stipulated [R: 30] | |

ard foiind by’ the’ lower court /JR. 44] that

“after disconnecting: and bleckifig off its facilities _

.,and” taking such © safety precautionary measures - as

were necessary for “public protection: (petitioner) 7.

abande ned in sacuit its -f4cilities so disconnected. and

public utilities * * *

ri

aa

Pe

‘blocked off. The cost of removal of said facilities:

would exceed their salvage. value, and their valtie

‘represents a total loss to (petitioner). |

It is _petitioner’s contention’ that such "governmental .

actions constituted a taking. of such facilities and its.

claim is for- the ‘depreciated market value thereof. While

- petitioner originally. made claim for the easement and

franchise rights taken by the Government’s actions: and

for its loss as a going concern resulting therefrom [R..28- .

29, 43), it ‘disavowed such claims in the lower court-and:

restricted ‘its claim to, the value of. the physical assets —

repeats such disavowal here. :

Bhe lower court found. for the eee States upon the ?

FO inds that the injury. to pefitioner’s property was con- a

A sequential and. consisted A non-compensable ‘business

loss “due to, the — of (p&adoner’ s) customers”

| within the. “‘t taking area” [R. 37-39]. In so’ doing the

| lower court completely overlooked the ‘facts: that (1) peti-

_ tioner was makjng no claim for loss of business. through.

“loss, of customers or. otherwise; (2) the “facilities” withiti

the “taking area” were: an: integral part of petitioner's

— system aid: served areas outside of “taking

_ area”; and (3) petitioner’s s loss of. the value of the physical

facilities in place was. caused directly by the Government’s

‘instruction that they - be discdyiccted and their being. , «.

blocked. off i in compliance with’ such instruction. ©

As a result the lower. court ‘has decided an important >

constitutional issue in direct conflict with | one decision of |

this Court and probably not in accord with other ap-

plicable decisions ot this Court. pee Jl :

-

li

Reasons. for Granting the Writ.

1; The court below has misconceiyed the true nature of

petitioner’ s claim and the facts, as disclosed by the record

“In support thereof. In its opinion, the lower court ‘states:

_ “We do not reach value unless the pipes have been

taken, which we think is not the case: For the _

loss here too is due to the taking of thé property of

others, that is, of plaintiff's customers. A milk dis-

@ibutor; to use a rough, analogy, might suffer loss by

the turning of the area ofa milk rotite into a public

..park. But this would not constitute a taking of the

route or of the instrumentalities by which it was

servQl.* The value of land and improvements might

include an element due to their location on the route—

a question we do not decide—but the loss to the milk

‘distributor 1 is a business loss.” o 7 et

To the contrary, the only claim which the petitioner made _

_ when the cause was submitted and the only claim which it

makes here is for the complete destruction of the value.

of its pipes and fittings, which it was stipulated [R: 29,

par. 18] and the lower court found |R..44] were required

to be disconnected and removed and which in compliance

with such’ governmental. mandate were disconnected and —

blocked off with the agreed and found result that peti-

tioners have lost the entire value thereof. ie ake |

2. The decision of. the Court below is in direct conflict

with this Court’s decision in [ute rnational Paper Company

v. United States (1931), 282 U.S. 399, 408, 51 S. Ct. 176,

75 Li Ed. 410. For the,purpoSe of this numbered reason

we will assume (though the record refutes it) that —

tioner’s facilities served no area except the ° ‘taking area.”

Tt was. supulated and the lower court has found:

(a) Petitioner's f facilities were, in part. installed and

maintained within deeded . ‘rights-of-way easements in

oy.

© 4

—

privately owried land within the taking area [R. 26,- par.

“11: 26-27, par. 12; 28-29, par."16; 41, par- 11; and 43,

par. 15]. Under California law such an easement was a

private property right and an, interest. in such. privately | :

‘owned land (Cal. Civ. Code, -Secs. 801 -802; Moots v.—

Kasten (1949), 90 Cal. App. 2d 234, 736, 203: P. 2d 537;

Los Angeles County v. Wright (1951); 107-Cal. App. 24°

235, 241, 236 P. 2d 892). State law controls as to what .

is. property. (United States v. Powelson ‘(1943), 319

U. S. 266, 279, 63 S. Ct: °1074, 8&7 L. Ed. 1390; United

States v. Causby | (1946), 328 U. S. 256, 266, 66 “ cx.

1062, 90 L. Ed. 1206.) » a

~(b) Such facilities were, in i part, installed and main-

area under rights’ of way granted to petitioner by fran-

chises from local public bodies [R. 26-27, par 12: R.- 41,

par. 11; see Ex. C].. These, too, under California law

Sebastian (1914), 233 U. S. 195, 204, 34 S. Ct. 517, 58

L.Ed. 912; Los Angeles v. Los Angeles. Gas & Electric

Corp. (1919), 251 U. S. 32, 39,.40 S. Ct. 76, 64° L. Ed.

121; Western Union v. Hopkins (1911), 160 Cal. 106,

120, 116 Pac. 557, 563; County of Los Angeles v. So. Cal.

Tel. Co. (1948), 32 Cal. 2d 378, 385, 191 P. 4/73, —_,

(c)- Fhe Government instructed petitioner to disconnebt"

aaa remove its facilities from such,area [R. 30, par. 18;

ae 44, par. 17].

(d) Petitioner écuntied by disconnecting and . blocking ~

off such facilities and has lost their total value [R. 30, par.

: 29; 43-44, par. 17]. : 2.

(e) The Gov ernment has refused to pay: such | wie [R.

30, par. 19; 44, par. 18].

/

‘oe

1

———

“i

— )

tained in-public streets, roads and alleys of the taking .

* were private property rights in ‘such land. © {Russell v. :

a

agen

_ The lower court purported to. follow Omnia Co. v.

United States (1923), 261 U. S. 502, 510, 43 S. Ct. 437,

. 67 L.Ed. 773 (Cf, 157 Fed. Supp. 936), but as pointed

‘out by this Court in International Paper Co., supra, 408,

no part of Omnia’s property was taken or deseigall In-

stead, the .taking of another's property prevented that

,other private property owner from fulfilling a contract

previously made with Omnia. This Court further “held

in International Paper Co. supra, 408, that where, as here,

the Government has interfered with and destroyed a law-

_ fully protected property right such as an easement (in

International Paper to take water—here to conduct gas

through pipes etc. then installed and maintained), a taking

occurs and compensation is required under the Fifth -

Amendment.

As the Court of Claims, itself; has said

“The Constitutional right to just compensation is a

matter. of substance and is not eontingent upon the

form by. which the Government chooses to — the

property”. .

_ Dore.v. United States (1951),°119 Ct. Cls. 560,

580, 97 Fed. Supp. aes

In footnote 3. of the ‘ae below, the Court also.

justifies its decision by this Court's holdings in Joslin Ca.

v. Prot vidence (1922), 262 U. S. 668, 675, 43 S. Ct. 684,

67 L. Ed. 1167 and Mitchell v. United States (1925),

267 U.S. 341, 345, 45.5. Ct. 293, 69 L.Ed. 644 (Cf.,

* 157 Fed. Supp. 935), but neither is applicable here. In -

both liability: to campensate for physical property taken

was admitted and paid.: Compensation was denied only

for business Josses.or frustration. | ee

‘aillien.

nS The decision “ef the Court below, though it ‘dis-

avows the same, is probably not in accord with these uy

applicable decisions of this Court:

(a) A destruction of physical private property for

public purposes” is a taking (United States v. Welch

(1910); 217 U. S. 333, 339, 30 S..Ct. 527, 54. L. Ed...

787; A. W. Duckett & Co. v. United States (1924), 266

"U.S. 149, 151, 45 S. Ct. 38, 69 L. Ed. 216; United States’.

v. Gerieral Motors (1945), 323 U. S. 373, 378, 65 S. Ct.

357, °89.L. Ed. 311; ‘United States v Causby (1946), 328

U.S. 256, 261, 66.S. Ct. 1062, 90 L. Ed. 1206, ‘and —

‘United States v. Kansas City. Life “Ins. Co. (1950), 339°

U. S. 799, 809- 810, 70 S. Ct. 885, 94 L. Ed. 1277). |

(b) While private property. may be regulated to a

degree, if.such regulation thereof goes so far as to totally —

destroy its value, it becomg@a taking. ( Pennsylvania

Coal Co. v. Mahon (1922), 260 U. S . 395, 415, 43 S. Ct.

158, 160, 67 L. Ed. 322.)

(c) The disavowal of intent to take such portion of /

petitioner's physical property is irrelevant if, in fact (as

has been .found and stipulated to) its value -has ‘been

destroyed. (United States v. Lynah (1903), 188 U.S.

445, 464-465, 23 S: Ct. 349, 47 L. Ed. 539; Portsntouth

etc. Hotel v. United States (1922), 260 U. S. — 329,

“43 S. Tt. 135, G72. Ed. 287.)

(d) An exception from a taking which is incompatible

with the use for which private “property. is taken and .

which leaves no value in the property. purported to -be’_

excepted will be disregarded and er a will be

required for the — thereof: pa Se ate

a _ —10—

“It would be a very curious and unsatisfactory

result, if in construing a provision of constitutional

law, : y ae a: that ts the ————

“erty to “ uses of the oublic it_can desttey i its. vai

entirely, can inflict irreparable and permanent injury

to any extent: can, in effect, subject it to total de-

struction. without making any compensation, because,

‘in the narrowest sense of that word, it is not taken

for public use. Such a construction would pervert

the constitutional provision into a restriction upon

the rights of the citizen, as those rights stood at the.

common law,-instead of the government, and making ©

it an authority for invasion of private right under

the pretext. of the public: good, - =

Pumpelly v. Green Bay, ete. Canal Co., 80 ws.

(13 Wall.) 166, 177-178, 20 L. Ed. 557...

To the’ same effect: .—

— Cf,

_Uyion (1905), 146 Cal, 290, 293-294,-79 Pac.

961, 962. ,

This Court will take | judicial notice that gas, partic.

ularly wherin pipelines under’ pressure, is highly. volatile,

explosive and dangerous and it has been, stipulated [R. 30.

par. 18] and found, by, the lower court [R. 44. par. 17].

that these facilities were disconnected and. blocked off as

‘safety precautionary measures for. public protection.”

We believe that Goyerpment counsel will not deny that

subsequent to the ie Gin of, tle Agreed Statement of

~ Facts. a large porttort of the facilities which are here

involved became and will continue td be imbedded under ©

a permanent: artificial lake. known as Legg Lake. which

lies above the reservoir dam and has been created and is

So. Pac. R.R. v. San Francisco. Savings —

tos

maintained by the County of Los Angeles under sade

__= press €ontract. with the United States.’ Thus the Gov-

ernment’s instructions and actions, as a part of Mime flood

control. project, have ‘completely destroyed petitioner's

secondary easements” for entry, maintenance and repair .

of such facilities. 7 7

Again the Court below: Snr the facts. It

states, “if there were ‘land and improvements not taken

which could be served by the aid of these easements and.

right of way, sic sin for the project, we would have a dif-_

an — question.”

The. entire | Schedule: 11 of ‘petitioner’s claim is for

relocation from the taking area of pipes to points out-

side the taking” area to service consumers outside such

area. Thus, both the pipes and the easements were in

fact taken.

4. The Court below has: decided an: important ques-

tion of ‘federal law ‘which has. not. been. but should be

settled by this Court. It is this:

When a public utility has valid existing franchises

and private easements, which by local law are direct.

interests in the land, and it has installed pipelines |

and other operfting facilities therein and is serving

customers within the taken area through such fa-

cilities, may the United States acquire the: fee or

‘

-.. This is a matter of such general notoriety in Los Angeles County,

California. as not to Tc proof.” (Cf.. Olson v. United States,

292 U.S. 246, 257,54. S. Ct. 704, 78 L. Ed. 1236.)

*Under Californie law, right of way easements carry with them.

of necessity, secondary easements for entry, mainténanc® and, re-

pairs. (17 Cal. Jur. 2d., Easements, par. 30, p. 136; Ward v.

Monrovia (1940), 16 Cal. 2d _ 815.-821-822,.108. P.. 24-425) ——----

ol : a

; flowage easements, on instruct and reqaere the util--

ae ity to sever and” either rentove or block off such

. facilities, without becoming liable for a taking there-

of under the Fifth Amendment

The lower court find, that such was a “consequential

‘logs or injury resulting? Tram. dawful governmental action

“(for which) the law affords no remedy” [R. 38-39] and-

cites in support ther€of a > district court decision. which

Was not reviewed and has never been cited or approved

pon such issue,, viz., Kelletville Gas Co. v. U nited States.

«(1054 ). 56 Fed. Supp. 919, 920... It also cites and relies

upon Fix v. City of Tacoma,"171 Wash. 196, 17 P. 2d

599, While we disagree with the lower court in that we

believe that both of the above cases are distinguishable

on the facts from-the case at bar, because in Kelletvlle

the court found that ; y

“all pipes. and other properties of the: plaintiff’ have

always been situated above tg (maximum water

o level)” (56 Fed. Supp. 919, Findings 5 and 8).

and in Fir, the court ‘said

“Now in considering (plaintiff's) loss, it must be

horne in mind that he still owns the w ater plant and

mains? and has complete dominion over them. The

City (defendant) has not invaded or encroached

upen his preperty in any way. Nor has. it in any -

manner disturbed or interfered with his right, title or

* possession * * tte

Nevertheless, if. we are wrong, this Court should decide

*such’ important issue because the Government has been

contending and, apparently, will continue to:contend, upon

Aelletville-and the lower cotirt decision here, that it may

‘utterly, destroy a utility's physical ii tan d it place, re-

ee

7 Me weeny —_——,

een, OR

@.

—

ie - |

“quire it to discontinue its services, and pay for all other -

portions of the fee which are adversely affected, but by -

é purported exception, be free -from all Jiability to the, |

utility.

We. respectfully ask this Court to accept jurisdiction

and to announce that such is not the law!

_ This Court has; said |

fe we can ‘see no itounds for attributing to

- the United ‘States the extraordinary intent to recog-

nize an pay for other interests, but to exclude -the —

claimant.”’

A. W. res & Co. v. United States, supra, *

151.

It has been said with reference to governmental actions

which had the “inevitable effect of depriving the owner

of. the going concern value of his business” (a laundry)

“the business is’ at the Government’s disposal whether or

not tt chooses to avail itself of it’. (emphasis supplied).

(Kimball Laundry Co. v. United States (1949), 338

U. S. 1. 13,69 S..Ct. 1434.93 L. Ed. 1765.)

More recently the 4th Circuit has spoken as follows

with reference to the taking of fee-or flowage easement

(as here) and paying: all but allegedly excepted easement

~ owners:

“The proposition that because the Government has

obtained (and paid for) a conveyance from the fee

owner, it may acquire by condemnation the ‘right to

flood the land. without paying anything to the owner:

S3While petitioner has waived going concern loss. surely if such —

must be paid for, as held in Aimball, it should be paid for phy sieal

portions of the real property which have been destroyed..

| ae fae | ican

. of the Howage easement, has nothing to commend it °

either in logic or in common sense’? ( insert supplied).

United States v. 2979.72 Acres of Land_ etc.

ogee 235 F. 2d 327, 329. :

roe OC: where an: easement has heen pain

-to another . the owner of the fee, the owner of the

fee is entitled to share in the award to the extent of

the value of the easement *° *: *: f the Govern- ..

ment may acquire thé right to floc the land ‘by

.taking a conveyance of the interest remaining in the

fee ‘simple owner: after conveyance of the easement,

no. amount of sophistry can obscure:the fact it is

nS for ‘nothing: the interest represented by the

eas nt” :;

United States -v. Twin City Power. on. (1857),

248 F. 2d 108, 115. ;

- ave Cancun

For the foregoing reasons, this petition for\ a writ of

\

-- certiorari should be granted. Nek 5

‘ Respectfully submitted,

Bates Boor, Seentcus os

Counsel for Petitioner.

Int. Davis BRETT, | | . \

Of Counsel.

Mae ee

APPENDIX “A.” .

oon of Relevant Portions of Act. of Augisst 18,

-1941, 55 Stat. 638 et bes (H.R. 4911, Chapter

aay

o tan . : ; a “i 2

AN Act

Authorizing the construction of certain ptiblic works on-

rivers and harbors for flood control, and for other pur-

-poses- Seni tg |

Be it enacted by the’ Senate and House of Representa-

tives of the United States of America ° in Congress

assembled °

Section 3. That the following works of improvement |

for the benefit of navigation and the control of destructive

floodwaters and other’ purposes are hereby adopted and

: authorizéd in the interest of national security and the

stabilization of employment, and shall be prosecuted as

speedily as may be’ consistent with budgetary require-

ments, ‘under the direction of the Secretary of War and

the supervision of the Chief of Engineers in accordance,

with the plans in the respective reports hereinafter desig-

nated and subject to — conditions set “forth therein

Los: ANGE LES-SAN GABRIEL RIVER Basins AND BALLONA-

CREEK

The general comprehensive plan, for flood control and

_ other purposes in the basins of the Los Angeles and San

Gabriel Rivers * * * as set forth in House Document .

Numbered 838, Seventy- -sixth Congress, third ségsion, is

anprov ed, and in addition to previous. authorizations there .

a

2

| sc canteen

is hereby mithoriaed $25, 000,000 for the partial ac-

complishment of that plan

Approved, August 18, 1941

- Excerpt of ae — of Rule 38(¢) of Court of

Claims .* :

Lite, o Separate’ Determination of Liability : Upon aa

lation of the parties, subject to approval by the, Commiis-" y

‘sioner, or upon order of the Court or the Commissioner,

trials may be limited to the issues of law and fact relating

| to the right of a party to recover, reserv ing the determi-.

| nation of the amount of recovefy and the amount. of

- offsets, if any, for further proceedings.”

ee NS iat ne as

APPENDIX “B.” es:

Opinion of the Court of Claims. :

‘to the United States Court of ‘Claims. No. 483- 54.

(Decided January 15, 1958.).

Southern Counties Gas Conipany of ‘California ¥v.

The United States.

“Mr. Bates | Boeth fot the plaintiff. Miss Gertrude

_ Greengard and Mr. Irl Davis Brett were on the briefs.

_Mr. Herbert Pittle, with whom was Mr. Assistant At-

* torney General “Perry W.: Morton, for the defendant. a

Fany, Civeuit Judge, sitting. by designation, delivered

the opinion. of the court: ee

, The case iS before us on an agreed statement sl facts.

aiies authority of the Act of August 18, 1941, 55 Stat.

* 638, a. flood control project. . including a dam, has been -

erected by the Corps of Engineers, United. States Army>.

- to control the flood waters of‘the Rio Hondo and San

Gabriel. Rivers at the Whittier Narrows, four miles

northwest of Whittier, ‘California. In this connection the

United States by’ condemnation. proceedings or negotia- |

tions acquired fee title or flowage easements affecting a

large area of land and improvements, situated above the

‘dam and’ below the highest elev ation to which the \ waters -

. to be impotinded could rise.

C

ing gas to domestic, industrial and commercial. consumers

in Southern California, It maintained ‘and operated

a e"™ “4

Plaintiff, is a. public service utility corporation supply-

Srey

transmission lines, distribution. lines, and service pipes

under the-surface of public streets and on private prop-

‘erty in the area: of the project, servicing 387 residential

and 7 industrial. commerical. “or agricultural customers.

Its facilities. were installed and maintained under: ease-

merits’ from private owners and rights of way granted by

the County of Los /Angeles sand the City of Montebello.

Plaintiff was also possessed of private riguts of way ‘and i

easements for service pipes ‘and connections granted by

owners of property serviced. as Lo Ng

The United ‘States did not expressly. acquire by con-

demnation or -othertwise any of plaintiff’s above described

properties or: rights. The declaratiéns of taking and the

_condemnation _ complaint . were stated ‘to be subject. to

existing easements -for public utilities and pipelines. The

T

the latter to -relocate or abandon in place certain ‘of: its

facilities and also to transfer to the United States ‘its

interest in some of its rights of way and easements."

2

‘The United States has prohibited hikes habitation in

the taking area and has caused to be razed or removed

all structures. therein except ‘cértain industrial structures

which will be raised or buttressed’ against the maximum

possible water elevation. .Readjustment and closing of:

streets and alleys have been brought about by the United

States. cd

Somie are: ak were aquired by. negotiation and purchase. — Plain-

tidt’s faciities, rights of way,.easements or franchise rights located

in’and under the. “dam stte- and (its appurtenant embarikments,, di-

V@rsion channels, _spillways and outlet’ works were paid for by the

United States at their reasonable value. |

«

e

L “nited States did, however, contract. with plaintiff for .

Aine

™~

- sumers in the area, four likewise have’ been

a

a. :

If die: owners did not deaive to retain the improv emeits

on ‘land acquired by the United ‘States, an -effort was

niade by the United States to séll the same. Sales were

public.on terms which required’ the purchaser to remove

the improvements at his expense. In other instances the

‘United States demolished and removed the improvements.

Before. being removed, sold. or demolished plaintiff was. .

notified and in some-instances was instructed or requested

_to-disconnect or remove its facilities from the premises.

This the plaintiff did, blocking off. the facilities’ and

taking safety precautions. Plaintiff then. abandoned in

place the facilities so blocked off and disconnected. The

. cost of removing them would exceed the amount that

. could be obtained for them ‘as salv age, so.that their value :

represents a total loss. to plaintiff.

Plaintiff's claim is for the. value of. those property

rights and facilities in the area which the United States

did not acquire by condemnation or otherwise and for a

which it has not contracted’ to pay. plaintiff, and for: its”

loss as a going concern in the taking ‘area. ( The=facilities

_ are those which the- Army Corps of. Engincers has dé-

‘termined do not interfere with the project and’ are not

required for continuance of service. Plaintiff’s transmis-

sion and distribution facilities servicing 3

customers have been disconnected. blocked ff,

doned. Of its facilities servicing seven it\duftrial con-

_- &

and abandoned.

As’ we have seen, the Reoteriids: for which compensa-

tion is sought under the Fifth Amendment were not in

‘terms taken by the United States. ‘They’ were excepted

, from the declarations of taking and from the condemna-

¢

isconnected |

és

. tion: complaint. Use of the properties was brought to an

\

end by the acquisition by the United States: of the land of

residential’ and industrial customers of plaintiff, followed

by demolition or removal: of improvements: which had .

been serviced by plaintiff. 2

We think this was not, w ithin thie compensation provi-

‘sions of.the Fifth Amendment, a taking of the properties °

for which compensation is, sought by- plaintiff. - Plaintiff’s

loss is due to the project, but in law is ‘a consequential

and non- -cerhpensable - loss! This does- not follow, how-

‘ever, merely from the fact that no- express taking

occurred. United States v.’ Causby, 328 U. S. 256.?-

In the circumstances of that case the Supreme Court held

that a “flight easement,” not taken in terms, was taken

in law by the use of the .air above claimant’s land by

aircraft flying low to and from an .adjoining military

airport. Unquestionably the - Whittier Narrows Dam

project ‘has also resulted. in the loss by plaintiff of the

use and value of some: of: its properties, and this may be

‘attributed | in a sense to ‘the use made by the United States

of adjoining lantl or ‘appurtenant land. But the. connec-

tion between the use referred to and the loss to plaintiff

“is indirect and falls within the principle which denies

compensation for loss of business.

— ee

2° in United States v. General Motors Corp... 323 .U.. S$: 373,

378, occurs this statement:

“a

“Governniental action short of acquisition. of: title or occupancy _

has been held, if its effects are so complete as to deprive the owner

-ofs all or most. of his interest in the subject matter, to amount to

_a-taking.”

8That business ‘loss is noncompensable, see Joslin Co. v. Provi-

dence, 262 U. S. 668; Mitchell v. United States, 267 U.S. 341.

ad to the franchise, it seems: clear that the falling off

of customers, though: caused by the project, was not a

taking: the franchise became less valuiable due to the

changed situation. in the area, but we cannot construe.

_.this as’a taking of the franchise. So, too, as to the

rights of way and easements. Loss of their use and

value is also due to the removal of plaintiff's customers,

“an unintended incident of the taking of land.” Mitchell

v. United States, 267 U. S. 341, 345: Kelletvilte Gas Co.

-. United States, 56 F. Supp. 919, 920.. ‘Tn so: holding as

to the easements and rights of way we read the agreed

“Statement of facts as not presenting the case of destruc-

tion of the ayailability of easements aid rights. of way

for, servicing of premises which remain in the area. If

there were land and improvements not taken which could

be served by the aid of these easements and rights of

_ Way, except | for the project, we would havea different

question.

As to the underground pipes we -*ote initially that we

are not concerned now with value, discussed in United

States ve General Motors Corp.. 323 U. S. 373; relied

upon by plaintiff. See, also, United States v.°Welch,.

217 U.S. 333. We'do not reach value unless the pipes

have been taken, w hich we think is not the case.. For the

loss here too is due to-the taking of the property of

others, that is, of plaintiff’s ‘customers. A milk dis-

tributer, to use a rough analogy, might suffer loss by the

turning of the area of a milk route into a public park.

But this would nét constitute a taking of the route or

of the instri snfcitalitied by which it was served. The

value of and and improvements might: include an element

os their location on the roue—a question we dd not

| decide—but. the loss. | to the milk distributor is a business

loss.

Though the: line between a compensable and a non-

_ compensable loss is. sometimes a thin one, see United

States v, Welch, supra, we think “this case falls on the-

side of such cases as Omnia Co. v. United States, 261

U.S. 502, 510, where it is said that “for consequential -

loss ONinjury resulting from lawful governmental action,

_ the law, affords no. remedy.”” There Monongahela. Navi-

gation Co. v. United States, 148 U. S. 312, is distin-

guished, as’ it must be in the present case. *See, also,

Fix. v.

It follows that: plaintiff's petition must be dismissed.

It is so ordered.

Mappen, Judge; WHITAKER, Judge; -LITTLETON,

Judge : and Jones, Chief Judge,.concur.

| City of Tacoma, 171 Wash. 196, 17 P: 24-599.

wen