# Petition for Writ of Certiorari — Albrecht; Linnenbringer; Pitman; Oliver; Reality & Investment Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0168%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1946 - **Citation:** 329 U.S. 599 ## Text 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. | - € % : 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0168%3A08. Public record. Not legal advice.