#### ROBERT F. MITCHELL, GEORGE H. MITCHELL, COPARTNERS, TRADING AS R. F. AND G. II. MITCHELL v. THE UNITED STATES.1

[No. 246-A.

Decided June 4, 1923.]

*On iha Proofs.*

*Eminent domain; award; jurisdiction.*— Where an act of Congress provides for the acquisition of land by the United States by purchase or requisition, giving to the President authority to determine just compensation to the owners thereof, who, if dissatisfied with his award, might receive 75 per cent thereof and sue in the Court of Claims for such amount as added to said 75 per cent would make just compensation, if the owners shall receive the full amount of said award of the President without protest, objection or reservation, the court has no jurisdiction to consider a claim for any further amount.

*The Reporter's*statement of the case:

*Messrs. Horace S. Whitman*and *William L. Marbury*for the plaintiffs. *Messrs. Robert Archer*and *Robert H. Archer, jr.,*were on the briefs.

*Mr. M. L. Blake,*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 plaintiffs are brothers, and are' residents and citizens of the State of Maryland.

On October 16, 1917, and for many years prior thereto, plaintiffs were the owners and operators of a farm of about 440 acres in Harford County, Maryland, some 5 miles from *444the town of Aberdeen, Maryland, and of a canning plant on said farm, for canning corn.

Plaintiffs’ growing and canning operations were practically confined to the growing and canning of a choice variety of corn, for the production of which corn the land and climate in that vicinity were especially adapted and much better suited than other lands in that section of the country. The usual acreage of corn used by plaintiffs in their canning-operations was about 500 acres, of which about 200 acres were usually grown by them on their said farm, the remainder being grown under contract with plaintiffs by neighboring farmers.

II. By act of October 6, 1917, 40 Stat. 345, 352, Congress made an appropriation for the establishment of an ordnance proving ground, and provided for the acquisition of and payment for the land necessary for such purpose. Pursuant to the provisions of said act, the President, on October 16, 1917, issued a proclamation, 40 Stat., 1707, declaring certain lands in Harford County, Maryland, comprising about 35,000 acres, and including the plaintiffs’ said farm, to be necessary for the purpose in question. And on December 14, 1917, in consequence of the Government’s inability to secure by negotiation the purchase of the lands designated in said proclamation of October 16, 1917, the President issued a proclamation specifically taking over said lands by the Government, for the purpose stated.

III. In September, 1917, just prior to the passage of the said appropriation act authorizing the establishment of said proving ground, an officer of the War Department visited Harford County, Maryland, and at one or more public meetings held in the locality where the proving ground was to be located, stated that the Ordnance Department had recommended to Congress that in the establishment of the proposed proving ground the people where it might be established should be compensated not only for the land taken by the Government for the purpose, but also for all injuries and losses sustained by them as a result of its establishment there, and that this principle of compensation would govern in the event that the proving ground should be established there.

*445IV. Both, before, and shortly after the passage of the act of October 6, 1917, providing for the establishment of the proving ground, a number of citizens whose property and business would be affected by its being located there near Aberdeen, called on the Secretary of War in the matter and were assured by him that compensation for property taken and for losses sustained by reason of the establishment of the proving ground would be made on the most liberal basis that the law would allow and justice to the Government permit.

V. Following the taking of said lands by the Government, a commission was appointed by the President for the determination of the proper compensation to be paid to those to whom compensation was due for and on account of the taking of said lands.

Said commission found the amount of compensation which plaintiffs were entitled to receive on account of the taking of their said farm and canning plant to be $76,000; and pursuant to this finding by the commission, plaintiffs were paid by the Government the said sum of $76,000, plaintiffs accepting same without protest or objection.

In the determination of the amount of the compensation to be paid to the plaintiffs on account of the taking of their said property, said commission did not make any allowance for damage for plaintiff’s loss of the business in which they were engaged prior to and at the time of the taking of said property.

VI. Plaintiffs whole training and experience had been in the growing and canning of “whole-grain Shoe Peg corn.” By the establishment of said proving ground on the lands so taken by the Government a very large part of the lands in that section of country available for and especially adapted to the growing of Shoe Peg corn was withdrawn from use for that purpose, and plaintiffs were thereafter unable to reestablish themselves in their former business of growing and canning this kind of corn.

VII. During the five years next preceding the taking of plaintiffs’ said property by the Government the average annual net income of plaintiffs from the said property and business was approximately $6,000.

*446On the basis of a 6 per cent income on the $76,000 received by plaintiffs from the Government for their said property, plaintiffs would have received an annual income of $4,560 from the compensation received from the Government for said property. Plaintiffs have been engaged in other occupations since the said taking of their property, but it does not appear what have been their net earnings or incomes during this time.

VIII. It does not satisfactorily appear whether or,not • plaintiffs have, upon the whole, sustained any reduction or loss in net income or any other loss by reason of the Government’s taking their said property and the discontinuance of their said business of the growing and canning of corn.

1

 Appealed.

Booth, *Judge,*

delivered the opinion of the court:

The plaintiff firm was the owner of 440 acres of land upon which a canning plant was located in Harford County, Maryland. The business of the firm consisted in raising whole-grain Shoe Peg corn on about 200 acres of its own land, and then canning said product, as well as such quantities of corn as it procured from outside parties, for the market. The capacity of the plant was sufficient to absorb as a general proposition the yield of corn from about 500 acres of land. This locality was especially suited for the production of Shoe Peg corn, the soil and climate seemingly favorable to its cultivation and growth, and the members of the copartnership had spent years in developing the industry, expanding the market for the corn, thus giving it a well-established public favor and market value.

On October 6, 1917, 40 Stat. 352, Congress passed the following act:

> “ Proving ground: For increasing facilities for the proof and test of ordnance material, including necessary buildings, construction, equipment, land, and damages and losses to persons, firms, and corporations, resulting from the procurement of the land for this purpose, and also the salaries and expenses of any agents appointed to assist in the procurement of said land or damages resulting from its taking, $7,000,000: Provided, That if the land and appurtenances and improvements attached thereto, as contemplated under the foregoing appropriation, can not be procured by pur*447chase, then the President is hereby authorized and empowered to take over for the United States the immediate possession and title, including all easements, rights of way, riparian and other rights appurtenant thereto, or any land selected by him to be used for the carrying out of the purpose named in the aforesaid appropriation. That if said land and appurtenances and improvements shall be taken over as aforesaid, the United States shall make just compensation therefor, to be determined by the President, and if the amount thereof, so determined by the President, is unsatisfactory to the persons entitled to receive the same, such persons shall be paid seventy-five per centum of the amount so determined by the President and shall be entitled to sue the United States to recover such further sum, as, added to the said seventy-five per centum, will make up such amount as will be just compensation therefor, in the manner provided for by section twenty-four, paragraph twenty, and section one hundred and forty-five of the Judicial Code. Upon the taking over of said property by the President as aforesaid the title to all such property so taken over shall immediately vest in the United States: *Provided*further, That section three hundred and fifty-five of the Revised Stateutes of the United States shall not apply to the expenditures authorized hereunder.”

On October 16, 1917, the President issued a proclamation, 40 Stat. 1707, by the terms of which certain lands in Har-ford County, Maryland, comprising about 35,000 acres, were taken over for the establishment of what is known as the Aberdeen Proving Grounds. Plaintiff’s land and canning plant were within this area and were taken over. The taking over of such a vast area of land was a matter of grave local concern, especially to the owners thereof. The President, in order to ari’ive at just compensation to all the persons whose property had been thus taken, appointed a commission to go upon the land, hear testimony, and otherwise acquaint themselves with what would, in their estimation, amount to just compensation in each individual’s case.

The commission so appointed made its report with reference to the property here involved, and the President fixed just compensation to the owners at $76,000. This amount the plaintiff accepted. Suit is now brought for the sum of $100,000 additional, based uppn the destruction and extinction of the firm’s business, aside from its loss of physical *448property. It is asserted that a cause of action exists because the acts of the defendant not only destroyed the business of the plaintiff by taking its farm and canning-plant, but by taking all the lands adjoining, peculiarly adapted to the production of Shoe Peg corn, and the only place so adapted, it has made it impossible for the plaintiff to acquire a similar business anywhere else. In other words, its entire business enterprise is wholly and completely' annihilated forever by the destruction of the plant and the source of its supply.

There are apparently two insurmountable obstacles to a recovery in this case. First, the President was authorized under the statute to fix just compensation, and if the amount so fixed was unsatisfactory to the party, he might accept 75 per cent of the award and sue for such further sum as added thereto would amount to just compensation. The plaintiff accepted the award. The statute having pointed out a definite way, and the party having observed the same without availing itself of the privileges of reserving the right to a further demand, may not accept its benefits and then seek to discredit the same. If the award did not meet the full measure of just compensation, the plaintiff should have taken advantage of the very liberal terms of partial settlement and asserted its claim for the alleged balance. It may not under the law do both.

Even without this defense the suit must fail. The question at issue has been determined by the Supreme Court in the case of *Bothwell*v. *United States,*254 U. S. 231. The plaintiff contends for a loss of $100,000. The sum so claimed is alleged to be the losses it sustained from being foreclosed from conducting its business enterprise, coupled with the complete extinction of its source of supply. An argument is advanced that because of the taking over of this large acreage of adjoining farm lands peculiarly adapted to raising Shoe Peg corn the plaintiff was unable to reestablish its canning industry anywhere in the United States.

The record shows that the average annual profit realized from the industry was $6,000. The defendant allowed and the plaintiff received $76,000 in cash. Allowing a return of 6 per cent of the sum so received, the plaintiff still has an *449income from the taking of its capital investment of $4,560 per annum, which amount, with addition of the individual earning capacity of the members of the firm, will not, in view of past history, fall much, if any, short of the annual dividends received from the industry as a going concern. So it would be difficult, even if the asserted contention were tenable, to predicate a judgment for the amount claimed upon any other than a mere speculative theory. Obviously, to do so would involve the assumption of a continuance of contemporaneous conditions, full crops, business stability, etc.

The petition is dismissed. It is so ordered.

Geaham, *Judge;*Hat, *Judge;*Downey, *Judge;*and Campbell, *Ghi&f Justice,*concur.

addendum.

On Monday, June 4, 1923, we handed down an opinion in this case dismissing the petition. The court without division was of the opinion that under the statute the plaintiff might not accept the full amount of the award of the President and thereafter sue for such further sum as added thereto will amount to just compensation. On the same day the Supreme Court decided the case of the *Houston Coal Co.*v. *United*States, 262 U. S. 361, and entertaining some doubt as to whether this feature of the instant case was not concluded by this decision, we decided to withhold our opinion in this case. If if were not for the decision in the *Houston Coal Co.*case we would adhere to our former views. The issue in the *Houston Coal Co.*case arose under a different statute, and while the wording is the same, the court seems to have given effect to protest, duress, and an express reservation of the plaintiff to demand more, a state of facts absent from this case. The question in the *Houston Coal Co.*case was one of jurisdiction. This case is here on the merits, and because of the apparent difference as to protest, notice of reservation, and intention to sue,' as well as duress, we arc somewhat doubtful as to the scope of the decision in the *Houston Coal Co.*case when applied to the present record. *450The vast number of cases involving large sums of money heretofore paid, as was done in this case, manifestly caused us to hesitate to apply the rule announced beyond the strict limitations appearing in the opinion. This will be added to the former opinion.