#### OLD COLONY RAILROAD COMPANY AND THE NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY, LESSEE, v. THE UNITED STATES.

[No. 34081.

Decided May 31, 1921.]

*On the Proofs.*

*Agreed findings of fact.*— Where findings of fact have been agreed upon by the Department of Justice and the plaintiff, signed by the parties, and submitted to the court, the court will enter judgment for the amount stipulated, if Upon examination of the record it is found that the testimony justifies such judgment.

*The Reporter's*statement of the case:

*Mr. John L. Hall*for the plaintiffs.

*Mr. J. Robert Anderson,*with whom was *Mr. Assistant Attorney General Robert H. Lovett,*for the defendant.

The following are the facts of the case as found by the court:

I. The Old Colony Railroad Company is a railroad corporation duly organized and existing under the laws of the Commonwealth of Massachusetts, and the New York, New Haven & Hartford Railroad Company is a corporation duly organized and existing under the laws of the States of Connecticut, Rhode Island, and Massachusetts.

II. The act of Congress approved October 6, 1917, 40 Stat. 845, 371, authorized the President to take over for the *327United States, for immediate use, the title and possession of certain lands, appurtenances, and improvements for the purpose of acquiring or providing facilities for the expeditious construction of torpedo-boat destroyers, their hulls, machinery, and appurtenances, and further authorized the President to determine the amount of the compensation to be paid for said lands, appurtenances, and improvements, and provided that if the amount determined by him should be unsatisfactory to the person entitled to receive the same, such person should be paid 75 per centmn of the President’s award and be entitled to sue the United States in the Court of Claims for such amount as, added to said 75 per centum, would be just compensation for the property taken.

III. Pursuant to the said act of October 6, 1917, the President, on October 6,1917, took over for the United States the possession and title to all that certain tract of land situate in the city of Quincy, county of E orfoik, and State of Massachusetts, known as Squantum and described in paragraph 4 of the plaintiffs’ petition and in Finding IY hereafter, and also delineated in detail in Claimant’s Exhibit No. 21, whereby title to the said property immediately vested in the United States.

IV. At the time of said taking the Old Colony Eailroad Company was the owner and the New York, New Haven & Hartford Eailroad Company was the lessee for a ninety-nine year term beginning March 1, 1893, and expiring February 29, 1992, of all the premises for the taking of which additional compensation is sought in this action, said premises being described in paragraph 4 of the plaintiffs’ petition and in the receipt mentioned in Finding VI hereafter and delineated in detail in the survey of Whitman & Howard, civil engineers, dated September, 1920, and mentioned in Finding III as Exhibit 21.

V. After the taking the President of the United States determined that the value of the plaintiffs’ property so taken by the Government as aforesaid was $400,000. The plaintiffs were dissatisfied with this amount and elected to receive the sum of $300,000, being 75 per centum of the same, and to bring suit in the Court of Claims for such further amount as would be found to be just compensation for its said property that was taken.

*328VI. After the determination by the President of the value of the plaintiffs’ property so taken by the Government the Government paid to the plaintiffs the sum of $300,000 and received a receipt therefor in the following form:

“ Whereas the Old Colony Railroad Company, a corporation duly created under the laws of the State of Massachusetts, was on October 6, 1917, the owner in fee simple of the following described property in the city of Quincy, in the county of Norfolk, Commonwealth of Massachusetts, to wit:

“ All that certain tract of land commencing in the southeasterly side of the Neponset River at the intersection of the extreme low-water line of the river and a line parallel to and distant northeasterly two hundred (200) feet more or less from the base line of the location of the Old Colony Railroad, the New York, New Haven & Hartford Railroad Company, lessee; thence bounded southwesterly on land of the Old Colony Railroad Company by a line that is two hundred (200) feet more or less northeasterly from and parallel with the said base line of the location of the said Old Colony Railroad, a distance of one thousand (1,000) feet more or less to a stone monument set where this line reaches the land of the Commonwealth of Massachusetts; thence bounded southeasterly on land of the Commonwealth of Massachusetts by an irregular line 157.6 feet more or less to a stone monument; thence bounded southeasterly by land of the Commonwealth of Massachusetts by a straight line, being the northwesterly side line of the Quincy Shore Reservation, six hundred twenty-five and seventy-four one-hundredths (625.74) feet more or less to a stone monument; thence bounded northeasterly, easterly, and southeasterly by land of Catherine C. and Alice C. Pope by a series of lines, being the dividing line between the upland and the salt marsh, said series of lines measuring, respectively, eighty-three and seven-tenths (83.7) feet more or less, twenty-two and four-tenths (22.4) feet more or less, fifteen and one-tenth (15.1) feet more or less, twelve and five-tenths (12.5) feet more or less, six and six-tenths (6.6) feet more or less, seventy-two and eight-tenths (72.8) feet more or less, sixty-six (66) feet more or less, forty-two and thirty-five one hundredths (42.35) feet more or less, and seventy-two and nine-tenths (72.9) feet more or less, to a stone monument; thence bounded southeasterly by the end of a private way known as North Street and by land of said Popes by the dividing line between the upland and the salt marsh, by a series of lines measuring, respectively, one hundred thirty-eight and eighty-eight one hundredths (138.88) feet more or less, sixty-one and forty-six hundredths (61.46) feet more *329or less, fifty-five (55) feet more or less, and seventy (70) feet more or less to a stone monument; thence bounded southeasterly by the northwesterly side of a dike by land of said Popes three hundred eighty-four and eighty-eight one-hundredths (384.88) feet more or less to a stone monument; thence bounded easterly by a straight line, being the dividing line between the upland and the salt marsh and still bounding on land of said Popes one hundred sixty-five (165) feet more or less to a stone monument; thence bounded southeasterly, still by land of said Popes, eight hundred thirty-one (831), feet more or less to a stone monument, a portion of said last-mentioned line being defined by the remains of an old fence; thence bounded southwesterly and southerly by the center line of a cart road, and still bounding on land of said Popes about six hundred twenty-four (624) feet more or less; thence bounded southeasterly by land of the Commonwealth of Massachusetts by the northerly side line of the Quincy Shore Eeservation, thirty-eight (38) feet more or less to a stone monument; thence bounded easterly by land of said Popes by an irregular line, being in most part by the middle line of a small creek, seven hundred and ten (710) feet more or less; thence bounded southerly and southeasterly still by land of said Popes and land of Charles E. Stratton, Frank A. Day, and James S. Eussell by the middle line of Billings Creek, nine hundred twenty (920) feet more or less; thence bounded southerly, southeasterly, easterly, and northeasterly by land of said Stratton, Day, and Eussell, and land of Grace D. Eedmond, by an irregular line, by the middle line of a small creek, three hundred forty (340) feet more or less to a stone monument; thence bounded southeasterly, southwesterly, southerly, southeasterly again and southwesterly again, by land of said Eedmond, by a series of straight lines, being the remains of old ditches, measuring thereon, respectively, one hundred eighty-eight and nine-tenths (188.9) feet more or less, one hundred six and seventy-tAvo one-hundredths (106.72) feet more or less, eighty-five and eight-tenths (85.8) feet more or less, two hundred seventy-seven and ninety-six one-hundredths (277.96) feet more or less, one hundred eight and twenty-four one-hundredths (108.24) feet more or less, two hundred and four-tenths (200.4) feet more or less, and one hundred twenty-one and ninety-five one-hundredths (121.95) feet more or less to a stone monument; thence bounded easterly on Squantum Street, sometimes called East Squantum Street, twelve hundred sixty-five (1,265) feet more or less to a stone monument ; thence bounded generally northerly by the waters of Dorchester Bay about seventy-one hundred (7,100) feet; thence bounded generally westerly by the waters of the *330Neponset River about sixty-five hundred (6,500) feet to point or place of beginning, and containing in all six hundred thirty-one (631) acres more or less of fast land, marsh land, and flats, together with and including all creeks, beaches, easements, rights of way, riparian and other rights and privileges appurtenant or appertaining thereto, including such right of way as runs with the land above described, being a cart road or right of way extending from said Squantum Street northwesterly to said Quincy Shore Reservation and shown on plan hereinafter mentioned; together with the railroad tracks and all other improvements and physical property located thereon on said 6th day of October, 1917; the metes and bounds of said tract of land being shown on a certain plant entitled “Plan showing easterly boundary line of Squantum lands of the United States of America in the city, of Quincy, Mass. Scale fifty (50) feet to an inch, December, 1917, Monks & Johnson, engineers, 78 Devonshire Street, Boston, Mass. Surveys and plan by Whitman & Howard, civil engineers, 220 Devonshire Street, Boston, Mass.,” on which plan and constituting a part thereof is shown a plan marked “ General map of Squantum lands of the United States of America, scale five hundred (500) feet to an inch, about three hundred sixty-six (366) acres, not including creeks or flats,” which said plan is attached hereto; being all of that certain property acquired by the said Old Colony Railroad Company under a certain deed dated October 17, 1895, and recorded with Norfolk deeds, book 747, p. 25, excepting therefrom a certain strip of land granted by said Old Colony Railroad Company to the Metropolitan Park Commission by a certain instrument dated February 7, 1900, recorded with Norfolk deeds, book 846, p. 465, and further excepting certain rights granted ' by the said Old Colony Railroad Company to the Commonwealth of Massachusetts by a certain deed dated November 1, 1911, recorded with Norfolk deeds, book 1216, page 269.

“An whereas the New York, New Haven & Hartford Railroad Company, a corporation duly created under the laws of the States of Massachusetts, Connecticut, and Rhode Island, was, on October 6, 1917, entitled to the possession and occupation of said above-described tract of land under a certain lease with the said Old Colony Railroad Company, dated February 15, 1893, which said lease expires on February 29, 1992; and

“Whereas the said above-described property was, in accordance with the provisions of the said act of October 6, 1917, taken over and title thereto in fee simple became vested in the United States of America on October 6,1917; and

*331“Whereas the President of the United States has determined the just compensation for said property, including all rights of the said New York, New Haven & Hartford Eail-road Company under said lease, so taken over to be four hundred thousand (400,000) dollars; and

“ Whereas said amount of four hundred thousand dollars ($400,000.00) so determined by the President to be the just compensation is unsatisfactory to the said owner and the said lessee aforesaid:

“ Now, therefore, know all men by these presents that we, the said Old Colony Eailroad Company and the said the New York, New Haven and Hartford Eailroad Company, do hereby acknowledge receipt in full from the United States of America of the sum of three hundred thousand dollars ($300,000.00), being seventy-five per centum (75%) of the amount determined by the President to be the just compensation for the property aforesaid, it being understood that the acceptance of said sum of three hundred thousand dollars ($300,000.00) will in no manner whatsoever affect our right to sue the United States of America in accordance with the provisions of the act of October 6,1917, aforesaid, to recover such further sum as added to said three hundred thousand dollars ($300,000.00)'will make up such amount as will be just compensation for said property taken over, nor will the payment thereof in any manner prejudice the rights of the United States of America in defending proceedings that may be instituted in accordance with the provisions of the said act.

“ In witness whereof the said Old Colony Eailroad Company and the said the New York, New Haven and Hartford Eailroad Company have hereunto subscribed their corporate names and set their corporate seals this twenty-second day of May, 1918.

“ Old ColoNy EailRoad CompaNY, “(Signed) By Fayette S. Curtis, *President,*[seal.]

“ The New Yornt, New HaveN and

HaRteoed Eailroad CompaNY, “(Signed) By E. J. PearsoN, *President.*[seal.]

“ E. G. B.”

May 29, 1918.

“ COMMON WEALTH OE MASSACHUSETTS,

Suffolh, *ss:*

“Personally appeared Fayette S. Curtis, the president of the Old Colony Eailroad Company, and acknowledged the foregoing to be his free act and deed, and the free act and deed of the Old Colony Eailroad Company, before me.

[seal.] “(Signed) FraNK A. FarNHam,

*“Notary Public.”*

*332“ This is to certify that Fayette S. Curtis and Edward J. Pearson are respectively presidents of the Old Colony Railroad Company and the New York, New Haven and Hartford Railroad Company; that the receipt from the United States .Government, dated May 22, 1918, for $300,000 in partial payment of compensation for the taking from said companies on October 6th, 1917, of a tract of land at Squantum, in the city of Quincy, Massachusetts, containing 631 acres, more or less, was executed by them as such; and that as presidents of the respective railroad companies they are fully authorized to sign and execute said receipt.

“ Dated this 6th day of June, 1918.

[seal.] “(Signed) Bernard A. Powers,

*“Cleric, Old Colony Railroad Company,*

“ as to Favette S. Curtis.

[seal.] • “(Signed) Arthur E. Clark,

*“Secretary, the New York, New Haven and Hartford Railroad Company,*

“ as to Edward J. Pearson.

“ June 6,1918.

“ Commonwealth of Massachusetts,

“ *County of Suffolk, ss.*

“ Personally appeared the above-named Bernard A. Powers and acknowledged the above statement by him subscribed to be true to the best of his knowledge and belief, before me.

[seal.] “(Signed) Frank A. Farnham,

*Notary Public*

June 6, 1918.

“ State of Connecticut, 1 *gg*“ *Counin/ of New Haven,*J

“ June 8, 1918.

“ Personally appeared before me the above-named Arthur E. Clark and acknowledged the above statement by him subscribed to be true to the best of his knowledge and belief.

[seal.] “(Signed) Charles H. Hemstead,

*Notary*Public.”

The foregoing instrument was duly recorded on June 24, 1920, with the Norfolk County registry of deeds at Dedham, Norfolk County, Massachusetts, book 1459, page 381, the plan attached to said instrument being of record also in said registry of deeds at Dedham, Massachusetts, as plan No. 4602, plan book 95.

*333A recent and more accurate survey (Exhibit No. 21) of the premises described was made by Whitman & Howard, civil engineers, and dated September, 1920, which shows the actual area of the premises to be seven hundred thirty-one (731) acres, made up of eighty-three and four-tenths (83.4) acres of upland, two hundred sixty-four and six-tenths (264.6) acres of marsh, and three hundred eighty-three (383) acres of flats, and being the same property above described in said receipt.

VII. The plaintiffs have made no assignment or transfer of the claim or any part thereof or interest therein. They are citizens of the United States and have at all times borne true allegiance to the Government of the United States and have in no way voluntarily aided, abetted, or given encouragement to rebellion against said Government.

VIII. The reasonable value of all the property described in the plaintiffs’ petition belonging to them and taken and appropriated by the Government as aforesaid at the time of said taking on October 6, 1917, was $575,000. Deducting the sum of $300,000 heretofore paid to the plaintiffs leaves a balance of $275,000 still due said plaintiffs.

*Per Curiam:*

The plaintiff company, as the record discloses, was awarded by the President of the United States under the act of October 6, 1917, 40 Stat., 345, 371, $400,000 for the premises now in question. Being dissatisfied with the award it accepted 75 per cent thereof, or $300,000, and subsequently began suit in this court to recover the full amount of its claim. An extensive record was presented in its behalf, in which numerous witnesses familiar with the local situation fixed the valuation upon said premises varying in amounts from over a million dollars to $575,000. After the completion of all the testimony the case was presented to the proper department, and the plaintiff having voluntarily agreed to accept the lowest estimate as the true value of the premises, the department acquiesced in the justness of said amount. The Department of Justice and the plaintiff subsequently agreed upon findings of fact, which were submitted to this court by stipulation. The court having ex*334amined the record, believes that the testimony adequately supports the judgment, and in this view of the case accepts the stipulation entered and enters judgment accordingly.

Judgment for plaintiff in the sum of $275,000.00.