Petition for Writ of Certiorari — Albrecht; Linnenbringer; Pitman; Oliver; Reality & Investment Co. v. United States

JUN. 7 1048.

| CHARLIS fl WORE onoPLEy

LEK

" ‘3 IN THE . eae

| SUPREME cover OF THE UnTeD STATES.

| OCTOBER TERM, ......

DENNIS B, PITWAN and MAY DELL

PITMAN,

» Petitioners,

v. ~* & No.

“UNITED STATES OF AMERICA,

# Respondent.

- PETITION FOR WRIT OF CERTIORARI

To the United States Circuit Court of Appeals for a

5 the Eighth Circuit

and

BRIEF IN SUPPORT THEREOF.

~? WILLIAM H, ALLEN,

Counsel for Petitioners.

St. Louis Law Paintine Co,, 415 North Eighth Street. CE ntral 4477.

3 } Page

Petition for writ of certiorari.......2......060005..1418

Opinions below -......,.04 ews Bf capae Wars mee ae

_ Summary statement of the matter involved. cain sea 3-

- Jurisdiction of this Court.......... pases uss F

Questions BUMME iiS F ons oer ide Seine AB. rae

Reasons relied on for the allowance of the writ.... | 9

PRRROE ia Gs oosens vaca ules gicnikce:' ind dieting ans én ees 12.

Brief in wappert of patition for certiorari. eipe eaal he 15-30

Opinions below ...... bass Beane’ bie vias dawies : ‘a SB,

Statement of the WES tee eeeeeeeereevecesee” 15 |

Specifications of error to be nga sixes SHS ia Oe 15

Summary of the. gument......2.. eos Cece. AT

Argument _ Caesemeng eewkv ents badd vin Sin as ‘Feit 21

Since there was a taking prior to payment in

full of the amoynt AMunally awarded as the

agreed value of the land at the time of the tak-

ing, respondent is liable for_interest: on that

part of the award that was not, paid into court

at jthe time of the taking by the filing of the

aration of taking st hie a [ote te teens rete

(1) Wh never private property has been taken by

vermment for a raiee the right to.

interest Lor a fait equivalent, on so much of a

subsequent award of damages. as was not paid.

or made available to the owner at the time of _

the taking attaches iteelf automatically to such ~

nin ch SETA TEETER SS Niele Wd REET Sues ee

21

ii

(2) The owner is not limited to the value of; the :

» property at the time of the taking, but is en-

titled, as a part of: just compensation, to such —

additional sum as will produce the full equiva- .

lent of that value paid contemporaneously. with

the taking ......, waits Kev eases vee vesOe tae 24-25 .

(3) And by the terms-of the statute ‘under which -

this suit was brought, ‘petitioners are entitled

to the interest allowed by the District Court. .- 25

5 See

The ruling of the Court of “Appeals denying in-

eae a terest, on the theory that the purchase price °

7 named in the contract constituted the agreed

equivalent of just compensation, is unsound and

in conflict with the decision of the Court of .

Appeals for the Fifth Cirenit in United States’

v. Baugh, 149 Fed. (2)..190 1 25

lls Roh a le ee a Wee

a (1) In this suit the option contract performed the

function only of fixing the condemnation award, f

as for the value of the property at the time

oe of the taking, at the agreed valuation......., 26°

I. - ae

The ruling ‘of the Court of Appeals, that the

landowners, by successfully insisting upon the

validity of the contract, converted this case

into one controlled 4s to, the amount recover-

aio the /terms of the contract, and that

~henee to allow the \nterest claimed would be

-

.

eae ee ;

ee

/ ‘tantaniount to allowing interest on a contract

. obligation of the United States not providing

) for interest, is unsound See Oe Wea vow axe of ates ‘2B: :

*

iii

(1) The suit - remained A conventional, statutory

condemnation suit; one wherein the condemna-

tion award had been fixed by ee of the

parties ERE LT ERCE ETS (UL Y POLO reer aeoee B

_ (2) ‘The rule that intereet does not run upon a claim

against the United States. i in the absence of a

contract or statute providing therefor was not -

violated by the judgment of the District Court. }

Interest was claimed and allowed, not on the

contract, but under the terms of a statute and

as a part of the just compensation guaranteed

by the Fifth Amendment to the Constitution +

of the ee States... eo dene ais hse, ris re

ee / |

* ° Wi, : P

Petitioners’ claim to interest; though not based

on the contract, is not inconsistent therewith, —

since the law of the land applicable to. con- -

demmnation proceedings must be read into the

contract ...... 89 wap aes «hehe tip 5's aaess ‘cee @

? Cases Cited. Le :

Brooks-Seanilon: og. Unt States, 265 U. 8, 106,

BO Gh hns OANA Fi Gules BER hee ee ski, ok 10, 17, 18, 23

Danforth vy. United States, 308 U. 8,271. ...7, 11, 19, 26, 28

Farmers and Wiatoss eat of’ Monroe v: Federal

Reserve, Bank, 262 U. S. 9. suas 20, 29

Jacobs v. Unitéd States, 290 U. S. 13, 16. 10, 17, 18; 23, 24

_ Liggett & Myers Mo. v. United Blatesi 274 U.S.

+ MON gba ciers ra / oa terior pape | ieee

.,-

ae

: iv |

Ogden v. aR ne 25 u. S. (Wheat $12) 213......20,29.

Phelps v. United States, 274 U. S, epee £10, 18, 23

Seaboard Air Line Railway Co. v. United States, 261

ere Me Rpt eR Way. UR ERIN Lingala 10, 17, 28

Shoshone Tribe of Indians v: United States, 299 U. 8.

WM sicgnseinbracncecipsaviaue ines Biesba aes 10, 17, 28

y, United States-vs Baugh, 149 Fed., (2)

190 Prt Dai CERO ea 6 hike ee gee) 18, 20, 26, 27, 29, 30

United States v. Rogers, 255 NU. te | re 10, 175.23

3 Textbooks Cited. |

{2 Amer: Jur. 769, sec, 240...... Risers 1 alec ae a

WC. di Ss: Po ae tee oe ee ee ee ee 20, 29

ate aie ‘Statutes Cited. cine RN

Act of February 26, 1931, 46 Stat. 1421 (40 U.S.C. A.,

TR FID aes sveksaccess 4, 8, 9,12 16, 18, 21, 22, 24, 25

Juicial Code, Sec. 240, 36 Stat. 1157, as amended by

Act of Feb, 13,. 1925, ¢. 229, sec. 1, 43 Stat. 938;

Title 28, U. S-C. A., See. BAT. oe ae Tee etine- @

P|

4

>

IN THE esis

UPRENE coun OF THE UNITED STATES.

DENNIS B, PITMAN and MAY DELL).

PITMAN, peers

3 Me | tee eres

UNITED STATES OF AMERICA, .

) Respondent.

ee

4

5 “ . (-. 5

PETITION FOR WRIT OF CERTIORARI

To the United States Gircuit a 6

for the Eighth Circuit. -

To the Honorable Chief Justice and Associate Justices of

The Supreme Court of the United States:

Come now Dennis B. Pitman and May Dell Pitman, his

wife,-and respectfully: petition this Honorable Court. to

vrrant-a writ of certiorari to review the opinion and judg-

, ment of. the United. States Cirenit Court of Appeals for

eel

the Eighth Cireuit rendered-and entered on the 9th day

of April, 1946, in this case, lately pending’ in said\ Court-

of Appeals entitled United States of America, Appellant,

_v. Dennis B. Pitman and “May Dell Pitman, Appellees, No..

13228 on the docket of said Court of Appeals, reversing

_ a judgment of the United States District Court for the

’ Eastérn Division of the Eastern District of Missouri (Di-

vision 1, presided over ‘by Hon. George H. Moore, District

’ Judge) in said cause in favor of your petitioners and —

against respondent, United States of America, with direc-

tions; said opinion of the Court of Appeals being a mem-.

orandum opinion (R. 295) wherein that Court. referred to

its opinion in the companion case of Oliver et al., Appel-

lants, v. United States of America, Appellee,’No. 13174 i in

said Court of Appeals, as stating the reasons for the entry,

on the same day, of its said judgment in this. cause

(R. 306).

OPINIONS OF THE COURT BELOW.

The said memorandum opinion of the United States

Cirenit Court of Appeals for the Eighth Circuit. in this —

cause, entitled United States of America, Appellant, v.

Dennis B. Pitman and May Dell Pitman, Appellees, ap:

pears on pages 295 and 296 of the printed transcript of |

the record filed herewith; and. the opinion of said Court.

-of Appeals in said cause of ‘Oliver et al., Appellants, v.

United States of America, Appellee, referred to by the |

Court in its said memorandum opinion in this cause, ap- . -

pears at. pages 296 to 303, inclusive, of said printed tran-—

script of the record. Said opinions have not as yet been’

published. oti has

_ SUMMARY STATEMENT OF THE MATTER

| INVOLVED.

On Nav ember: 7 | 1940, these petitioners being the owners

of certain lands in St. Charles County, Missouri, aoe

and delivered to respondent a written option (R.\237) .

whereby they agreed to sell and convey said Jands to re--

spondent, referred to therein as the Government, free and

- elear of liens and encumbrances, for the price and ‘consid- -

eration of $35,000.00, Said written option . forther ean

vided. as follows: — |

“Tf for any. reason the title to the ‘land isnot’ ap-

proved by the Attorney General, the Government will

proceed to acquire the land by condemnation proceed-

ings instituted in. the District Court of the United

States in which said property is located, under a con-

sent verdict fixing\the award at the agreed valuation

. and in accordance \with all the terms and provisions

of this option and x upon filing its. petition in such

proceedings deposit kaid agreed purchase price. with

_ the clerk of said court, same to be-disbursed by said

- officer pursuant to the decree entered in such condem-

_ nation proceedings.” : he

‘Thereafter, on the 14th. day of Wscimihen, 1940, said op-

tion was duly -accepted by respondent, United States of

America, and became a binding contract between the par-

ties (R. 242), and is hereinafter referred to as the ‘‘option

contract.’ Thereafter, on the 19th day of June, 194], no

part of said price or consideration provided by said con- .-

--tract to be paid to these petitioners having been paid by:

respondent, respondent instituted this’ proceeding, a eon-—

demnation suit, in the United States District Court for

the Eastern Division of the Kastern District of Missouri,

making petitioners parties defendant, for the condemna- —

__.tion of said lands, by the filing by respondent of a petition

in condemnation (Re 204-216, inclusive), describing said

Le oh -

lands ena praying, among ‘other things, that the defend-

ants therein and each of them be divested of all right, title

and intere t in and to said lands and that the title, thereto

in fee simple be vested in the plaintiff (this respondent)..

and that the court immediately make an order to that ef-

fect pursuant to the Act of Congress approved February _

26, 1931, 46 Stat. 1421, 40 U. S. C.A., Sec. 258a (R. 215).

On the same day respondent, as plaintiff in this condemna- -

tion suit, filed in said District Court a Declaration of Tak-

ing, declaring that the lands were taken under and. in ac-

- cordance with\said Act of February 26, 1931, 46 Stat. 1421,

40 -U. S.C. A., See. 2588, and other Acts of Congress

therein ticatidnad (R. 217);. said Declaration of Taking

reciting that the estimated compensation for the taking

of said lands was $14,600.00. And on the ‘same. day said

District Court, at the instance of respondent, entered its

Order and oe on Declaration of Taking (R.. 221-

227, inclusive), describing said lands, ordering. and ad- :

judging that ‘‘said Jand is deemed to be condemned and

taken for the ‘use pt the United. States of America, and

the right to -just compensation for the property so taketi

is vested in the persons entitled thereto, and the amount,

of just compensation for said land involved in this condem;

nation proceeding shall be ascertained and awarded in

Said proceeding and established by judgment herein pur-

suant to law.’’ And on the same day respondent caused

to be deposited in the registry of said District Court the

~ said sumt of $14,600.00 as the estimated aa, amescag for

-the taking of said lands (R. 227). Be

Thereafter, ‘on the 3rd day of’ September, 1941, within

the time allowed therefor by said District Court, these

petitioners, Dennis B. Pitman and May Dell Pitman, filed

their answer to said petition in condemnation (R. 228-242,

inclusive), wherein petitioners pleaded said option contract:

’ and alleged that they were entitled, thereunder to have the

‘award in the condemnation proceeding -fixed at the sum

AP hs

“of $35,000, the valuation agreed upon in said contract, ~ s

‘prayed that the court, by its judgment, order and decree,

so fix\ said award, require respondent pay the balance

-thereot into the registry of the court, and for interest.

No further proceedings were had in this case (except

orders and matters relating to the distribution of the said

sum of $14,600.00 deposited” inthe registry of the court):

until after the decision of this Honorable Court in Mus-

ehany v. United States and Andrews v. United States, 324.

_U. S. 49, 65 S. Ct. 442, being companion cases to this case,

‘jnvaleten the same option contract, which cases were ap-

-pealed to the United States Circuit Court of Appeals for

- the Eighth Cireuit and reached this Court on certiorari

and were decided by this Court on February 5, 1945, and

wherein this Court held the option ‘contracts to be valid

and that each operated to fix the amount of: the award in-

each proceeding at the amount agreed upon in | option

“contract.

Thereafter, on Apri 17, 1945, respondent, as plaintiff i in *

this condemnation suit, filed in said District Court a mp-

tion for judgment for the plaintiff. therein in:condemnation,

-and for the defendants (these petitioners). fixing the

total compensation to be paid by respondent for the taking

of said lands at said sum of $35,000.00, without interest (R._

243, 244); and thereafter, on May 4, 1945, petitioners filed

- their answer to respondent’s said motion, together with

their counter-motion praying that the Court by its, judg-

ment fix the compensation to be paid by respondent for the

taking of said lands at said sum of $35,000.00 plus interest

on said deficiency of $20,400.00 which had not: been paid

into the registry of the court, at six per cent. per annum

from and after June 19, 1941, the date of the filing of said

Declaration of Taking, and praying that the court require

respondent to pay into the registry, of the court said sum

of $20,400 with interest as aforesaid.

Thereafter, during the pendency of said motion, to wit, —

on May 17, 1945, respondent paid said deficiency of —

$20,400 into the registry of said court in this cause, No.

997 in said District Court (R. 247, 248).

- And thereafter, on June 8, 1945, said District Court ren-

dered and filed its opinion in this cause and other com-

panion condenination proceedings pending in said Divi- |

sion No. 1 of said District Court, involving the same op-:

tion eontract and the same’ questions (R. 249-267, inely- ;

sive); and, pursuant to said opinion said Distrief Court,

on June 30, 1945, made and entered its ‘«Findings and

Judgment’’ in this cause (R. 267-276, inclusive), awarding _

respondent judgment in edndemnation against the lands —

and adjudging that’ the title thereto in fee simple absolute

be vested in respondent (R. 275), and awarding these peti-

tioners said sum of $35,000.00 as and for the agreed value

: of said lands as of the date of the filing of said Declaration —

of Takiig, with interest on said deficiency of $20,400.00

at six’per cent. per annum from said June 19, 1941, until

May 17, 1945, amounting to $4787.20, adjudging that said

sum of $35,000.00 and said interest should constitute the

full just compensation for said lands, and ordering that.

. respondent forthwith pay said sum of $4787.20 into the

registry of the court (R. 276).

Thereafter, respondent, on July 7, 1945, filed in said Dis-

trict Court its motion fora new trial (R. 277), which was. -

.

- overruled on November 21, 1945 (R. 282), and thereafter, -

in due conrse, appealed this cause to the United States .

Cireuit Court of Appeals for tlie Eighth Circuit, where

said appeal was perfected and the cause was, on the 8th

day of March, 1946, argued by counsel and submitted upon

said argument and briefs of counsel and was taken under |

advisement by the court (R. 292, 293). Thereafter, on

oApril 9, 1946, said Court of Appeals filed its said memo- ,

randum opinion in this cause (R. 295) and entered its

judgment herein reversing the judgment of said District:

Court therein and remanding said cause ( ». 306), and on

- the same day filed its opinion in nid cause of Oliver et al.

v. United States, No. 13174 in said Court of Appeals (R.

297-303), to which opinion said Court of Appeals referred

in its said memorandum opinion in this cause .as stating

the reasons for its said ruling and judgment in this cause.

Thereafter, on the 22d day of April, 1946, and within

the time allowed therefor by the rules of the Court of Ap-

peals, petitioners duly filed in this canse in said Court of

Appeals, their petition for a rehearing of this. cause (R.

343-347), which petition for a rehearing was, on the 30th

day of April, 1946, denied by said Court of Appeals (R.

349), on-which day said judgment of said Court of Ap-

peal in this cause became final.

The duly certified record, including all of the ane:

ings in this cause in said District Court and in said Court

of ‘Appeals is filed herewith under separate’ cover, to-—

gether with Fhe mane number of Les copies thereof.

J URISDICTION OF THIS COURT. .

The jurisdiction of this Court i is. based upon Section 240

of the Judicial Code, 36 Stat. 1157, as amended by tlie Act

of February 13, 1925, c. 229, See. 1, 43 Stat. 938; Title 28,

U.S. C. A., See. 347,: providing for review by this Court,

’ by certiorari, of decisions of the Circuit Courts of Appeals.

The judgment of the “United States Circuit Court/of Ap--

peals for the Eighth Cirenit here sought to be reviewed was _.

entered on April 9, 1946 (R. 306). A petition for a rehear-

ing was duly filed by these petitioners, appellees. in ‘said

Cireuit Court of Appeals, on April 22, 1946, within the time

provided by the rules of said Cireuit Court. of Appeals

(R. 343-347), and said petition foi: a rehearing was deiried

| by said Cirenit Court of Appeals on April 30, 1946 (R. 349).

Among the cases thought to sustain the jurisdietion-are ;

_-' Muschaney v. United States, 324 U. S. 49;

Danforth v. United States, 308 U.S. 271.

—8--—

QUESTIONS PRESENTED. =

a8 ;

The questions presented by petitioners petition . herein |

for a writ of certiorari are: 3

(1) Whether, in this condemnation suit instituted by

: respondent against petitioners as landowners under the

Declaration of Taking Statute (Act of February 26, 1931,

46 Stat. 1421, 40 U. S. C. A., See. 258a) for the eondem- -

nation of the lands described i in the petition (R. 204), these

petitioners are entitled: to interest on: that ‘portion of the

-amount finally awarded as the value of the property as of

the date of takirig’ Which was not paid into. court at the —

time of the taking by the filing of the declaration, where

prior to the institution of the suit petitioners and respond-

ent had entered into a written contract for the sale of said -

lands to respondent for the price of $35,000.00 (R. 237),-

wherein it was agreed that if respondent should institute

proceedings to acquire title to the lands by condemnation |

, _ the award therein ‘should be fixed at the agreed valuation’ “

3 named in said contract and forthwith: paid into court, but

respondent, . in attempted repudiation of the contract, de-

‘posited in court only $14,600.00 upon the institution of this

- suit; prayed for the appointment of commissioners to fix

_ the award, and litigated the question of the validity of the

contract until this Court, in companion cases, had held —

that the contract was valid and operated to fix the proper _

- condemnation award, and did not pay the: balance of said

agreed.award into court until nearly four years after the.

3 taking.

(2) Whether the Court of Appeals, by its opinion and .

jndgment in this cause (R. 295, 306), rendered and entered

for the-reasons stated hy that Court in its opinion in the |

companion case of Oliver et al. v. United States of America

(R. 296), denied petitioners a right to which they are law-

ee) oe

we -| |

fully entitled under the Declaration of Taking Statute (Act

of Congress approved February 26, 1931, 46. Stat: 1421,

40 U.S.C. A., see. 258a); the right, apetifeal “Set up and

claimed by them, to have the judgmer lerein include, as

‘ a part of just compensation, interest on that portion .of

| the amount finally awarded as the value ‘of the property as —

‘of the date of taking which was not paid into court by

respondent until nearly four years after the taking by the :

- filing of the eee of taking.

(3) Whether the validas ana duleeand of the Court of

Appeals in this cause (R. 295; 306), made and entered for

the reasons stated by that court in its opinion in the com-

panion case of Oliver et al. v. United: ‘Stateg of America _

(R. 296), denying these petitioners any interest on that

part’ of the amount finally awarded as the value of the

property at the time of the taking that was not paid into

court by respondent until nearly four years after the tak-

ing by the filing of the declaration of taking, operates to ~

allow ; Fespondent to take the private property of peti-

tiongrs for a public use without just compensation in vio-

lation of the Fifth Amendment to the Constitution of the

United States. in : Fam

\

\

PRASONS RELIED ON. FOR THE ALLOWANCE *

OF THE WRIT.

t 4

(1) Since in this condémnation suit, brought under the

Declaration of Taking Statute (Act of February 26, 19 :

46 Stat. 1421, 40 U. S.C. A., see: 258a), there was a t

of the title to the. property on June 19, 1941, by the/ fling

by respondent of a declaration of taking, and the amount —

- finally awarded petitioners as for the value of the prop-

erty at the time of the taking was $35,000.00, but réspond-

ent, on said June 19, 1941, paid into court only $14,600.00

ahd did not make the deficiency of $20,400.00 available to

\ /

»

t

= eins

petitioners until May 17, 1945, petitioners are entitled to

interest on said deficiency from June 19, 1941, to May 17,

1945, at six per cent. per annum; and the decision of, the

Court of ‘Appeals to the contrary ji is erroneous, violative of

‘said statute, and in conflict with applicable decisions of

this Court holding that ‘where there has been a taking or.

appropriation of the private property of a citizen for a

public use without the payment in-full of the amount of

‘a subsequent award of damages as for the value of the

property at the time of the taking; the right of the owner

to interest, or a fair equivalent, automatically attaches

spall to such award, among which are:

“. - Shoshone Tribe of — v. United States,

Bite U. S. 476; .

Jacobs v. United States, 90 U. s. 13, 16;

Seaboard Air Line Railway Co. v. United States,

_ 261 U. S..299; ‘

United States v. Rogers, 255 WU. S. 163.

(2) The decision of. the Court of Appeals holding that

petitioners are not entitled to interest, though the major

‘portion of the final award, as for the value of the property

at the time of the taking, fixed pursuant to the prior

‘agreement of the parties, was not paid into Court until

jong after the taking, is erroneous and in conflict with the -

applicable decisions of this Court holding that wherever

private property of a citizen is taken by the Government

_ for public use the owner is not limited to the value of

the property at the time of the taking, but is entitled, as .

a part of just compensation, to such additional sum as will

produce the full equivalent of that value paid cotem-

poraneously with the taking, among which are:

Jacobs v. United States, 290 U. S. 13, 16;

Phelps -v. United States, 274 U. S. 341;

Liggett & Myers Co. v. United States, 274 U. S7315;"

aoe S a v. United =e 265 U. g—

- 106. - :

—l—

(3) The decision of the Court of Appeals that, petition-

ers are not entitled to interest, though the major portion

of the amount finégly awarded them as the value of the

property at fhe time of the taking ‘was withheld by re-

spondent from the registry of the court for’ ‘nearly ‘four:

years, on the theory that the purchase price named in the -

option contract entered.into by the parties ‘prior-to the |

- institution of this suit, which became the amount, of such —

award, constituted the agreed equivalent of. just compen-

sation, is erroneous and in direct conflict with the decision

of the United. States Circuit Court of Appeals for the Fifth

- Cirenit in a case wherein that court sustained the land-

owners’ right to interest upon the amoutit agreed upon as

compensation, for the period that same was ° ’ thereafter

withheld from the registry of the court, namely: /

United States v. Baugh, 149 Fed. (2)'190.

(4) The decision of the Court of Appeals that petition-

-ers are not entitled to‘interest, though the major portion.

of the amount finally awarded them as the value of the

property at the time of the taking. was withheld by re-

spondent from the registry of the ‘court for nearly four

\* years, on the theory that petitioners, by successfully Eee

sisting upon the validity of the option contract as fixing

the proper condemnation award, converted this case from

a condemnation suit into one controlled, as, to the amount

recoverable, -by the terms of the contract and hence the

allowance of' interest would be tantamount \to allowing

interest on a contract obligation of the United States not

providing for interest, is erroneous and in conflict with

the decisions of this Court in.

Muschany aad aioe v. United States, 324 U.

ee to -

: Danforth vy. United States, 308 U. s. 271. Y

(5) The Court of Appeals, by its declalon in “this cause,

-

—g.---",

‘holding and deciding that petitioners are not entitled to |

interest on that portion of the amount finally awarded.

; them as the value of the property at the time of the .

: * taking which was not:paid' into court for nearly four:

years after the taking, has denied petitioners a right, spe-

_.. ° eifieally set up and claimed by them, to Which they are

cee lawfully entitled under the Declaration of Taking Statute

| (Act of February 26, 1931, 46 Stat. 142t, 40 U..S. C. A,

sec. 258a) and the right, as well, to just compensation for

the taking of their property vouchsafed to them by the

- Fifth Amendment to the Constitution of the United States.

_It is respectfully submitted that the denial to petitioners

of such rights. plainly calls for’ the issuance by this Court .

of its” writ. of certiorari. sai

~ (6) The question of\ the right of landowners’ to interest '

undér- like circumstances is involved in numerous other |

_ cases growing ont of the\ acquisition’ by the United States

of a large tract of land near Weldon Spring in St. Charles ..

,. County, Missouri, for use as a location for a Government

im ordnance plant. It is a matter of public and far reaching .

importance. * It is-a-question. that has not-been determined

by this Court, and should be settled by this Court. And the—

_-decision of the Court of Appeals herein, being in rege

with a decision of another Court. of Appeals, would,

\-,--' permitted to stand, serve only to bring about conflict it

ee decision and confusion in the law. - .It is therefore respect-

oa ., fully submitted. that this Court’ s writ of certiorari should

issue herein. ; ni Wy ae

sas 4 : ! SA

J A Peay, tte

- Wheretorp, petitioner prays nt a writ of certiorari be

/ issued by this Honorable Court, directéd tothe United

/ States Cireuit Court of: ‘Appeals for the EF ighth Circuit, to

f - the end thafsaid opinion and. judgment’ \of said Court of

; > ° x ; a | a |

‘ a

—

43\ oe oF Z “e

5 a

i Me Ne —13— See eee Nero teres?

Appeals i in said cause of United States of sian, Appel-

lant, v. Dennis B. Pitman and May Dell Pitman, Appellees,

No, 13228 in said Court of Appeals, be reviewed by this |

Court, as provided by Jaw, and that, upon such review, + x

said‘ judgment of said Court of Appeals be reversed, and \

that petitioners have such. other relief as this Court 1 may

deem appropriate. ;

Respectfully submitted,

WILLTAM H. ALLEN

‘Counsel. for Petitioners,

« S

>!

Bs “S

_—®. -

de

te "s

ey r

,»

ss . * oe %

minal en lac Se

re ee Coon .

ec

: Fees en ‘

£ oct ‘S05 Weegee

& \

_

Wee

; §

.”) Patel oe > sé ‘

or

“. ‘

1 ry

a :

ev

° ,

° ; me * >

. id

§ — fy \

“N \

— 15 — ie

Me els (aeaare

. BRIEF aaa ae: OF PETITION FOR

wad F CERTIORARI

OPINIONS OF THE COURT BELOW.

‘The opinion of ‘the United States Circuit Court. of

Appeals for the Eighth Cirenit in said cause of United

States’ of America, Appellant, ‘vy, Dennis B. Pitman and

May Dell Pitman, Appellees, which petitioners here seek

to have reviewed, appears on page 306 of the printed —

fi transcript of the record filed herewith; and the opinion of

that court ‘in ‘Oliver et al. v. United States of America,

referred-_to | by the court-in its: opinion in this cause. as’

stating the’ reasons for its opinion and judgment herein

appears on pages 296 to 303, inelusive, of said printed -

transeript. 3

Ni

ve | STATEMENT OF THE CASE.

The essential facts -of the case are fully stated | in peti.

tioners’ petition for a writ of certiorari herein, and .in the

interest of brevity are not fepeated here. Reference’ will

- ° he made to ‘such facts, on the points. involved, in the course

of the eer which follows.

¢

SPECIFICATIONS OF ERROR. TO BE URGED.

Mi *

The United tates. C incuit Court of Appeals for the .

Fighth Cirenit in its opinion in this cause (R. 306) and ini

its opinion in Oliver et al. v. United States (R. 296-303)

to which the court referred in its opinion herein as stating

the reasons for its decision in this case, erred:

(1) In holding and deciding that -petitioners are not

entitled -to interest .on that portion of the amount finally

awarded them in this condemnation suit as for the agreed

Ry»

-

Ton.

re

value of their property at the time of the taking which —

was not paid into court by respondent at the time of the

filing of the declaration of taking, but which was withheld

by respondent from the eery of the court for nearly

_ four years,

(2) “4 holding and deciding that the purchase price

fixed by: the option contract entered into between the

parties prior to the institution. of this condemnation suit

95 constituted the agreed equivalent of just compensation for

the taking of the lands by condemnation, though the major .

portion thereof was withheld from the registry of. the

court for nearly four years.

(3) In holding and deciding“that the landowners, _ by

their successful defense of ‘the validity. of the option con- \

tract, converted the conderhnation suit into one controlled

as to the amount of their recovery by the terms of the

option contract. . °

©

(4) In holding and deciding that the allowance of inter-

est would be tantamount to awarding interest against the

United States on a contract obligation not providing for

interest. : t.

(5) The decision of the Court of Appeals deprives peti-

tioners of their right to interest under the terms of: the

very statute (Act of February 26, 1931, 46 Stat. 1421, .

40 U.S. C. A., sec. 258a) under which respondent brought

this suit and filed its declaration of taking, and their right

; to just compensation under the Fifth Amendment to the [>

_~ Constitution of the United States. ot

per ag

_ SUMMARY OF THE ARGUMENT. |

' Since. there was a taking of petitioners’ property prior

to the payment ‘in full of the amount finally awarded them

in the condemnation proceeding as- the agreed value of

the land at the time of the taking, respondent is liable for

interest on so much of that. award as was not paid by it

into the registry of the court at the time of the taking by

- the filing of the declaration of taking, from that time and

until thé same was made available to petitioners. .

Shoshone Tribe of Indians v. United _ 299 U.

S. 476; -

Jacobs v. United States, 290 Uv. Ss. 13, 16; :

Peaboard : Air ase Railway Co. * United States,

* Brooks-Scanloh Corp. -v. United States, 265 Mu: S.

> 106}.1935 A - ;

United States v. , Rogers, 255 U.S. 163.

(1)

Wherever there has been a taking or appropriation by

the Government of private property for a public use, the

right to interest, or a fair equivalent, on so much of a

- subsequent award of damages as was not paid or made

available to the owner at the time of the taking attaches

’ itself automatically to such award.

_ Shoshone Tribe of Indians v. United States, 299 U. |

<t S. 476, 497; - so

Jacobs v. United States, 290 U.S. 13, 16;

Seaboard Air Line Railway Co. v. United States,

ae v. S. 299.

oe 18 ou

(2)

The owner ‘is not limited to the value of the property

pt the time of the taking, but is entitled, as a, part of just

compensation, to such additional. sum as will produce the

. full equivalent of that value Lave CARTE with

the taking. i.

Jacobs v. United States, 290 v. 8.13, 16;

Phelps v. United States, 274 U. S; 3413 _

Liggett.& Myers Co. v. United States, 274 U. S. 215;

Brooks-Scanlon Corp. v. United States, a U. S.

106.

(3)

: And by the express terms of the statute under which this

condemnation suit was brought, petitioners are entitled) to

interest, at six per cent. per annum, on that: part of the

amount finally awarded as the value of the land as éf the -

time of the taking by the filing of the declaration of taking

that was not paid into court at the time of such ed

Act of February 26, 1931, 46 Stat. 1421 (40. U.S

“Ai, Sec. el

~

~

watt, ee Il.

The ruling of the Court of Appeals that petitioners are

‘not entitled to ititerest on that portion-of the amrount

finally awarded as the value of the property at the time —

of the taking that was withheld from the registry of the

court for nearly four years, on the theory that the purchase’

price named in the prior option contract, which became —

the amount of such. final award, .¢onstituted the agreed © ;

equivalent of just compensation, is manifestly unseund

and in direct conflict with the decision of the Court of

Appeals for the Fifth Cireuit in:

_ United States vy. Bangh, 149 Fed. (2) 190.

aa

wae 19) come

(1), |

“The contract. previously entered into between the par-

ties performed, in this suit, the function merely of fixing

the condemnation award, as for the value of the property |

at the time of the taking, at the agreed valuation ‘named

“ee the contract.

Muschany v. United States and Andrews v. United

States, 324 U. S. 49;

Danforth v. United — 308 U. S. cise

"TI.

The ruling of the Court of Appeals that the landowners,

by successfully insisting upon the validity of the contract,

converted this case from a condemnation suit into one con-

trolled as to the amount recoverable by the terms of the

contract, and that thence to allow interest would be tanta-

mount to allowing interest on a contract obligation of the

United States not providing for interest, is also plainly

unsound. vas |

; — Q)

The suit. could not thus be converted into something

other than that which the record throughout shows it-to be.

It remained a conventional, statutory, condemnation suit;

one in which the condemnation award, as for the value of

the property at the time of, the es had been fixed by

agreement of the parties.

Muschany y. United States and Andrews v. . United

. States, 324 U.S. 49; |

Danforth v. United States, 308 U. S. 271.

vies |

And the rule that interest does not run upon a ‘claim

against the United States in thé absenee“of a contract or

statute evidencing a contrary intention was not violated

by the District Court in allowing the interest claimed by

petitioners. Interest was claimed.and allowed, not on the

~ contract, but under the terms of the statute under which

the condemnation suit was brought, and as constituting a

part of the just compensation guaranteed petitioners by

the Fifth Amendment to the €onstitution of the United

States. The right to interest is neither found in nor lost

by the contract. i ‘4

U hited States v. Bagh, 149 Fed. (2) 1990.

ee IV. ; j o

And petitioners’ claim to interest, though not based on

the contract, is in no wisé inconsistent therewith, since the

_contract implied, as a matter of law, that if respondent

should resort to condemnation and should not ‘pay the full

agreed valuation into court upon the institution of thie

suit, petitioners would be entitled to interest in accordance

with the law of the land applicable to condemnation -pro-

ceedings. " w of the land: is read into évery contract

and beconies an| \integral part thereof.

Farmers dnd Merchants Bank of Monroe v. Federal

- - Reserve Bank, 262 U.S. 649;

McCullough v. Virginia, 172 U. S: 102, 124;

Ogden v. Saunders, 25 U. 8. (Wheat. 12) 213;

United States v. Baugh, 149 Fed. (2) 190;

‘17 C. J. 8, 782; :

12 Amer. Jur. 769, see. 240.

\

ath cn

- ARGUMENT. . i

Since wilh ss taking of petitioners’ property prior

to the payment in full of the amount finally awarded them

in the condemnation ae hae as, the agreed value of the.

land at the time of the taking, respondent “is liable for

interest on so much of that award as was not paid by it |

into the registry of the court at the time of the taking by

the filing of the declaration of taking, from that time and :

until the same was made available to petitioners, . cae

Though respondent, by the option contract entered into ~

hetween the parties.in November, 1940 (R. 237), agreed to—

pay petitioners the’ purchase price named therein, to-wit,

$35,000.00, and immediately took possession of the lands’

(BR. 269), respondent paid petitioners no part of said con-

tract priee, but attempted to repudiate the contract, and

on June 19, 1941, instituted, in the’ District Court, this

condemnation suit under the Declaration\of Taking Statute

(Act of February 26, 1931, 46 Stat. 1421, 40 U. 5. C. A. see.

28a), by. the filing of its petition and declaration of taking.

And though the contract expressly provided that if re-

<pondent should proceed to acquire title to the lands by

condemnation, the condemnation award should. be fixed

at the agreed valuation named in the contract (R. 242),

respondent, upon filing the suit, paid -into court only

~ $14,600.00, and prayed for the appointment of Commis-

sioners to fix the award. It was not until after the de-

cision of this Court in the companion cases of Muschany Vv.

United States and Andrews v. United States, 324 U. 8. 49,

sustaining the v ity OF such option contracts and hold-

ing that each serv. red to fix the condemnation award at the |

agreed valuation, that respendent, on May 17, 1945, paid

into court the deficiency of $20,400.00, And then respond-

ent, having utilized the statute aforesaid for its purposes,

and having reaped the: benefits flowing to it. therefrom,

) .

o~

cay en

sought to avoid the payment of interest as required by its

_ texms. But the District Court, in: conformity with its

a Oa (R. 249), which, we submit, is thoroughly sounil

and unassailable, entered judgment awarding petitioners

$35, 000.00 ay for the agreed value of the land .as of. the

date of the declaration of ‘taking, together with interest

on said $20,400.00, at six per cent, for the period of nearly

four yeays that the same had been withheld from the re-

ristry of ‘the court (R, 267). It is respectfully submitted

that, upon this record, that judgment is entirely proper,

and that the Court of Appeals’ grieviously erred in re-

versing it.

The pertinent provisions of the Declaration of Taking

Statute (Act of February 26, 1941, 46, Stat. 1421, 40 U.S.

C. A. see. 258a) are as follows: ‘

“Upon the filing said declaration of taking and of.

‘the deposit in the court, to the use of the persons

entitled thereto, of the amount of the estimated com-

pensation stated in said declaration, title to the said

lands in fee simple absolute * * * shall vest in the

United States .of America, and:said lands shall be

deemed to be condemned: and taken for the usé of the

United States, and the right to just compensation for |

the same shall vest in the persons entitled thereto;

and said compensation shall be ascertained - and

awarded in said-proceeding and established by judg-

ment therein, and .the said judgment shall include,

as part of the just compensation ‘awarded, interest at.

the rate of 6 per centum per annum on the amount |

finally awarded ‘as the value of the property as of the

date of taking, from said date to the date of payment;

but. interest shall not be allowed on so. much thereof

as shall have been paid into the court.’’

That mee was a taking of. the lands, within the con-

templation of the statute, by the filing of said ‘declaration

of taking and the entry of judgment of taking thereon,

wy ,

. ¢

. ~

a ee : iran

cannot be denied. The absolute, fee simple title to the

lands became thereby vested in respondent, and the claims

of all persons whomsoever thereto were transferred from |

the land to the funds paid or to be paid into court. But

since respondent, at the institution of the suit, paid into

court only appreximately forty per cent. of the amount

of the final award as for the value of the property at the

time of the:taking, by the express terms of the statute

petitioners are entitled to the interest awarded them by

the District Court. oo ih

The statute is declaratory of the sonasitattonsd “Haht of

an owner. not to have his property taken for a public —

use without just compensation. It is fundamental that

wherever private property is taken by the United States

. for a public use, the owner’s right to interest, or a fair

equivalent, on so much’ of: the subsequent award of dam-

ages as was hot paid or made‘ayailable to him at the time.

ef the taking, automatically ‘ittaches itself to such award.

Shoshone Tribe of Indians v. United States, 299 U. S.

476; Jacobs v. United Statés, 290 U. S. 13; Seaboard Air

Line R. Co. v. United States, 261 U. S. 299; Brooks-

Scanlon Corp. v. United States, 265 U. S, 106; United

States v. Rogers, 255 U. S. 163. The owner is ‘not limited

to the’ value (of the property at the Aime of the taking,

“ but is entitled, as a part of the just compensation guar-

anteed to him by the Fifth Amendment to the Constitu-

- tion of the United States, to such additional sum as will

produce the full equivalent of that value paid cotempora-

neously with the taking. Jacobs v. United States, 290

U.S. 13; Phelps. v. United States, 274 U. S. 341; Liggett

& Myers Co: v. United States, 274 U. S. 215; Brooks-

Seanlon Corp. v. United Riaees, 265 U.S. 106.

In Shoshone Tribe of Indians v. United States, 299 U.S.

_°476, where, as a result of the breach of treaty stipulations,”

the Shoshone Tribe had been excluded by the Governmen: -

from the- possession and enjoyment of an undivided. one-

?

See

half interest in the tribal lands, constituting an appropri:

ation of property within the meaning of the Fifth Amend-

ment, this Court (299 U.S., Ll. e. 497) said: x

_ Given such a the, right to interest or a fair

equivalent attaches itself automatically to the right

to an award of damages. Jacobs. v. United States,

- supta; Phelps v. United States (274 U. 8. 341; Brooks.

-- Seanlon Corp. v. United States, 265 U. S. 106, 1298

Seaboard Air Line Co. v. United States, 261 U. S. 239;

306. These cases Qistinguish United States v. North

American Co, 253 U. 8.330, cited hy the Government,

which ‘rested upon its special facts.’, Jacobs v. Unjted

States,\supra.’’ ; Gimphasts ours.) 4} ae

In the leading case of. Jacobs v. United States, 290 U. 8.

9 13, there was a partial taking of the landowner® lands

_ for flowage purposes without condemnation, and they

\ brought uit to recover compensation, As to the right to

interest, iis Court (290 U. S., 1, e. 17), after. poiriting out

that the suits were based on the landowners’ right to the

* just Mer rege aa: guaranteed by the Fifth: Amendment,

We hc ae le 5 ;

“The a count recoverable . was just scaaradiatiion

- not inategiate compensation. The _goncept of just

compensation is comprehensive and - ‘includes all ele-

ments, ‘and no s specific command: to’include ,interest is.

necessary ° ‘when interest or its 3 equivalent is,a part of-

. ae “such compensation. ’ The owner is not limited to the-

: “value of the property at the time-of the taking; the is

entitled tq such addition as will produce the full |

equivalent of that value paid centemporaneously with

the taking.’ Interest at a proper rate ‘is a good meas-

, ure by which to ascertain the amount so to be added. z

ie ¥5 Seaboard Air Line R: Co: v. United _—* -” Vv. 8.

299, 306."’ Re: ours.)

. Such was.. the law of the pe Meg prior to’ ‘the’ enact--

ment of the Declaration of Taking Statute. (Act. of Febru. —

) > - €

% : Me ? |

; & ~ ; % i. % : h

bo

°

°

25 — :

ary 26, 1931, 46 Stat. yer, 40 U.S.C. A,, see. ‘258a). And

it is-the law applicable

at six per cent. It provides, in substance, that the judg-

ment shall include, as a part of just compensation, interest

at six-per cent per annum on that part, if any, of the

amount finally awarded as the value of the’ property as of

the date of taking that was not paid into court at the time

of the taking. It follows that petitigners,. in this suit under

the statute, are lawfally entitled to interest at six per cent .

per annum on that part of the amount finally awarded as

the value of’ the property at’ *the time of the said taking

that- was withheld from, thebregistry of the court for

: nearly four years.

Piss isSplain,’ we submit, that the decision of the Court of

_ Appiealse herein * denying petitioners’ right to interest is.

erroneous, violative ‘of ‘the statute aforesaid, operates to

“deprive these petitioners of their property without the

just’ cémpensation guaranteed by the Fifth Amendment

to the Constitution of the United States, and is: in direct

conflict with the decisions of this Court: to which we have

- referred above.

Certainly this is true unless’ petitioners have: in some

way waived or forfeited their Tight to such interest. It

is submitted, however, that, for the reasons to he herein-

- after shown, this record contains nothing. to warrant | aes

‘holding that there was any such waiver 6r forfeiture. -

ae AG ; oe \ : &

. y eee EOREE

The . of the Court of Appeals that” petitioners are

not entitled to interest on that part of the. amount finally

awarded’ ‘as ‘the value of ‘the property at the time of the

taking, that was withheld from the registry of the court

for nearly four years, proceeds, in part, on the theory that

the purchase price named in the- prior option contract,

\

\

to the igsue involy ed in this case.

The statute is declaratory theréof, fixing the interest pate

mee

. ° .

we . , Sih re oe

EEE Stn Sn a

©

- which became the amount of “the ‘final. award, donstituted

~~=the agreed equivalent’ ‘of just compensation for the tak- |

ing,’’ whether by condérnnation or purchase gy 302). Such

ryling i in support ,of which the eourt cites no authority i 18,

‘i submit, manifestly unsound. There i is : nothing whatso-

rin the contract’ ‘evidencing the intention that the con-

+s ct price shduld constitute full compensation for the

taking of the’ land jin sthe event: that respondent should

el¢ct to proceed by condemnation and should not promptly

pay into court the full amount: of: the contract price,

eed, the contract evidences precisely the contrary in-

intion. The contract says: nothing about compensation,

but does provide that, in the event of condemnation, the |

eed valuation shall constitute the amount of the ‘award

in the condemnation proceeding. Said ruling -ef the

Court’ of Appeals evidences, we submit, an entirely erro-

ndous conception by the court of -the. part played by the

option contract. after respondent--had instituted the .con-

demnation suit. After respondent had repudiated the con-

tract and had instituted its suit to eéndemn the property,

the contract performed merely the function of fixing the

award in that proceeding, as for the value of the property .

at the time of the taking, at the agréed valuation named

in ithe contract. It performed simply the function ordi.

y performed ina condemnation suit by commissioners

jury. This plainly appears from the opinion of this

pet rt in Muschany v. United States and Andrews vy.

United States, 324 U: S. 49, and accords with this Court's

opinion in Danforth v. United States, 308 &. S. 271. ;

And. the ruling of the Court of Appeals that the puir--—

chase price named in the contract constituted the agreed |

equivalent of just conipensation for the taking, though

the major portion thereof was not paid into court in this

proceeding until years after the taking, is in direct con-

flict. with the decision of tlre United States Cjreuit. Court

of Appeals for the Fifth Circuit ‘in United States v. Baugh,

149 Fed. (2) 190.

pendix) to acquire a tract of Seiad: hae: mili ary

poses, and an order for immediate possession wa

on the day the suit was filed. ‘Thereafter the ow’

with the United States whereby the landowners waived

a hearing befere conimissioners and consented to a decree —

_ vesting title in the plaintiff, and the parties agreed upon

“| Cer tain sums as just compensation to be awarded: for the

taking—of--their property. Thereafter a delay of about

eight months ensued before the plaintiff made deposit of

_ the-funds into court. In holding that the United States

was liable for interest, the. Court of —— (149 U. S..

[2], le. 192) said:

“The stipulati ion ae had the: effect of relieving

Lee ret from having t6 make proof as to.

what was just compensation and of, running the risk

of' having an amount fixed which might be unsatisfac-

-* tory. The stipulations eliminated controversies, but ,

- otherwise’ the condemnation suit proceeded to final |

jadament. There is no mention in the stipulations. .

that interest was, or was not, included. Just compen- |

‘sation ii condemnation cases. means just compensation °

at the time of taking of possession, and when the par-

ties reduced to writing a stipulation fixing just com- -

pensation there seems to be no reason to conclude that

the landowner impliedly waived any — right. ,

{Emphasis ours. )-

And later on in the. opinion (149 Fed. 21, 1 ¢, 193) the

' Court, referring to the landowners, : said:

| “Their right to have interest is found in the Con-

. stitution and is neither found nor lost in the contract.

(Emphasis ours.) '

‘* «The Constitution no more permits the depriva-

tion of money without-just compensation than it does

the. various parcels in the area entered into stipulations ae

—_8—

the ‘deprivation of the use. of land without just com-

pensation. moe, ,

The Banzh case cannot be'shere distinguished on the:

- ground that there the agréement was entered into during

the ‘pendency of a condemnation suit, as the Court. of

Appeals. doubtfully suggests (R. 303). The opinion therein

evidences: a full understanding and. appreciation of the

fundamental, law of the land announced and applied in

‘ the’ opinions of this Court Teferred to above. Hi

. . Merson _

‘The ruling. of the Court of Appeals that the lanidowners

by ‘successfully: insisting upon the validity of the option

-contract, as fixing the proper condemnation award, .con-

verted this case from a condemnation suit ‘‘into one.con-

trolled, as to. the amount of their recovery, by the terms

of the: ‘purchase contract,’ and that hetice to allow” the

interest claimed by the landowners would be tantamount

to allowing interest on a contract obligation of the United

States not providing for interest (R. 302, 303), is likewise

plainly unsound. The suit could not thus be converted

into something other than that which the record through-

out plainly shows it torbe. It remained a conventional

s

. condemnation suit; one in which the award as for the

value of the property at the time of the taking was re-

| quired to be fixed in accordance with the agreement of: the.

. parties, rather than by conimissioners or a‘ jury. Mus

chany v. United States and Andrews vy. we States, 324

U.S. 49; Danforth v. United States, 308 U, , 271.

And the judgment of the District Court atte peti-

-. tioners the interest sought by them in no way does vio:

lence to the rule that interest does not run apon a: claim

‘against the United States in the absenc ‘e of a contract ot

statute evidencing a contrary intention. In this ease in-

~~ —- ek : a rn

terest was neither claimed. nor allowed on a contract obli-

gation of. the United States. It was claimed and properly

-* allowed ina condemnation suit, on that part of the agrged

award that fas not paid into court at the time of Phe

taking, in conformity with the very statute under whieh

the suit was brought, and as constituting a part of the

just compensation. guaranteed by the Fifth Amendment

to the Constitution of the United States. In such a situa-

tion, the right to interest has its foundation in the consti-

Autional guaranty of just compensation and in the statute

declaratory thereaf. It is not found in nor lost by the

prior contract between the parties, United Stafes v.

.Bangh, 149 Fed. (2) 190, 193. -

.

IV.

And though petitioners’ claim to interest is not based

upon the option contract, it is in no wise inconsistent

therewith, for the contract implied, as a matter of law, -

that if respondent should resort to condemnation and

. should not, ‘upon the institution of the suit, pay: the fali *

agreed valuation into court as the amount of the agreed

award, petitioners would be entitled to interest in accord-

ance with the law of the land applicable to condemnation

proceedings. The law of the land is read into every

contract and becomes an integral part thereof. Farmers

‘ant Merchants Bank of Monroe v. Federal Reserve Bank,

262 UL S. 649; MeCullongh v. Virginia, 172 U. 8. 102, 124;

eden v. Saunders, 25 U. S.. (Wheat. 12) 213; United —

States v. Bangh, 149 Fed. (2) 190; 17 C. J. S, 782; 12 Amer.

Jur. 769, see, 240.

In Farmers and Merchants Bunk of Monroe v. Federal

Reserve Bank, 262 U. 8. 649, 1. c. 660, this Court said:

“Laws which subsist at the time and place of the

naking of the contravt? and where it k*to he per

* .

‘ : ~ ea

formed, enter into and form a part of it as s fully as if

they had been expressly referred _to_or_i (

therein.”" >)

In United States v. Baugh, supra, 149 Fed. (2) 190, the

court, in considering the effect of the stipulations there

entered into, on the question of the landowners’ right ‘to

interest under the law applicable to eminent domain cases,

said:

“The settled law of the land at the tine the con-

tract is made is a part of the contract and must be

read into. it.’ a

Petitioners respectfully submit that the situation pre-

sented by this record is one calling loudly for interference

by this. Court to the end that a decision of a Court of

Appeals out. of harmony with decisions of this Court and

with a decision of another Court of Appeals may not be

permitted to stand, and that the issue involved herein may

be finally resolved in keeping with the law of =~ land and.

in consonance with right and justice. . if

Petitioners therefore pray that this Court issue its writ

of certiorari herein, and that the judgment of the United

States prc ‘ourt of Appeals for the Eighth Cireuit

herein, rendered on April 9.1946, be reversed.

Respectfully submitted,

epee ee eseeeeeceeceoeveeeeeonese4g 00 6 FSre

WIkLIAM H. ALLEN,

Counsel for Petitioners, ‘Dennis B.

Pitman and May Dell Pitman.