#### ALICE C. POPE AND CATHERINE C. POPE v. THE UNITED STATES

[No. C-1262.

Decided March 29, 1926]

*On the Proofs*

*Eminent domain; interest on three-fourths of award.*— Where the Government, under the act of October 6, 1917, requisitioned and took gravel located on plaintiffs’ land, and the plaintiffs did not accept the statutory three-fourths of the amount awarded them by the Government as just compensation, they are not entitled to recover in the Court of Claims interest on the three-fourths which they might have accepted.

*The Beporters*statement of the case:

*Mr. Nelson B. Vanderhoof*for the plaintiffs. Clark, *Vanderhoof & Little*were on the briefs.

*Mr. Heber H. Bice,*with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

*975The court made special findings of fact, as follows:

I. On the 11th day of December, 1917, the defendant served the following notice of requisition upon plaintiffs:

Navy DEPARTMENT,

*Washington, December 10, 1917.*

Be it known by all whom it may concern that by virtue of authority granted by law the President hereby requisitions and takes over for use by the Government seventy-five thousand (75,000) cubic yards of gravel, more or less, now owned by Miss Alice C. Pope and Miss Catherine C. Pope, located on the property of said persons at Squantum Point, in or near the city of Quincy, State of Massachusetts, for which just compensation will be paid in accordance with law.

Thomas C. Atwood is hereby authorized and directed tó take possession of said gravel for and in behalf of the United States; to deliver the same to the Aberthaw Construction Company, which company is hereby authorized to use the same for the Government under the direction of the Chief of the Bureau of Yards and Docks, Navy Department, and to make return hereof to the Solicitor, Navy Department.

Done at the Navy Department this tenth day of December, nineteen hundred and seventeen.

FranKLin D. Roosevelt, *Acting Secretary of the Navy.*

The above requisition order was issued in pursuance of the act of Congress of October 6, 1917, 40 Stat. 371, which provided in terms as follows:

“ Facilities for construction of torpedo-boat destroyers

*“*The President is hereby authorized and empowered, within the amount hereinbefore authorized, to acquire or provide facilities additional to those now in existence for the construction of torpedo-boat destroyers, their hulls, machinery, and appurtenances, including the immediate taking over for the United States of the possession of and title to land, its appurtenances and improvements, which he may find necessary in this connection.

“ That if said lands 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 person entitled to receive the same, such person shall be paid seventy-five per centum *976of the amount so determined by the President and shall be entitled to sue the United States to recover such further sum as added to 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, 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 property so taken over shall immediately vest in the United States.”

II. During the months of December, 1917, and January and February, 1918, there was excavated and earned away from a parcel of land containing 862,000 square feet, about eight acres belonging to plaintiffs, by the defendant 19,322 cubic yards of material and the same was delivered to and used by the Aberthaw Construction Co. in connection with the construction of the torpedo boat destroyer plant at Squantum, Mass.

III. The material taken was reasonably good, clean, commercial gravel and clay mixed and was taken and used by the Government. The value of the material taken was 25 cents per cubic yard.

The defendant removed the tracks and steam shovel from the plaintiffs’ property in February, 1918, and on April 13, 1919, and formally notified them by letter that it did not expect to take any more gravel from the land.

IY. The tract of land from which the gravel was taken abuts upon the north side of a concrete highway, or boulevard, known as the “ Quincy Shore Reservation,” which extends in a northeasterly direction to Squantum and the shore of Quincy Bay. The frontage of this tract of land along the boulevard is about eleven hundred feet and at the widest point it extends back from the boulevard about five or six hundred feet. The greater part of the tract is above the level of the boulevard and rises on a gradual slope from an elevation of 16 or 17 feet at the street line to about 27 feet at the highest point along the northern boundary and in the vicinity from which the gravel was taken. A view of the harbor and Quincy Bay to the east may be had from this tract, the greater part of which was suitable for building-lots and streets. Parts of the tract, the westerly one-third and about 200 feet of the easterly part, each near and *977along the boulevard, are marshland and below the boulevard level.

V. The tracts of land containing 331,000 feet and 186,300 feet and owned by plaintiffs do not adjoin the tract from which the gravel was taken, but are separated therefrom by the boulevard referred to in Finding IY, which is 100 feet wide. The tract of 83,800 square feet lies west of the tract from which the gravel was taken and is separated therefrom by a ditch or neutral boundary and at the nearest point is 700 feet or more from the place where the gravel was taken.

VI. The tract from which the gravel was taken had no improvements upon it and was used for farming purposes at 'that time. There was no gravel pit on the land at that time. There was a pit on the land adjoining on the north from which some material had been taken to repair the road. This land was owned by the Government at the time and some material had been taken therefrom. It proved unsuitable for the particular purpose at the time in question, and the steam-shovel and facilities then being used by the Government thereon were moved onto the plaintiff’s land and the 19,322 cubic yards of material referred to in Finding II were then removed therefrom. The material was taken from the northeast corner of the tract, which was bounded on the north by land owned by the Government and on the east by a road extending south to the boulevard •referred to in Finding IV. The pit was excavated to a depth of 12 feet at and along the north side of the tract and adjoining the land owned by the Government, and on a level toward the south for about 200 feet, at which point it was about on a level with the surface of the land between such point and the boulevard and with the boulevard. The area excavated did not exceed 55,000 square feet.

VII. It is about 12 minutes walk from the land in question to the station of the New York, New Haven *&*Hartford Railroad and about 2 minutes walk from the land to the street car line running from Squantum to Atlantic Station, and which connects with the railroad and the electric car line running from Quincy to Boston. The running time *978of the railroad from Atlantic Station to South Station in Boston is 11 minutes. It is within the city limits of Quincy, about *3y2*miles from center of the town.

VIII. The evidence establishes that the entire tract was suitable for platting and subdivision into streets and residence lots, though some filling in and grading would have been required to raise certain parts of it up to the grade of the boulevard running along the southerly side of the tract for a distance of eleven hundred feet. Its proximity to the thriving and growing communities of Quincy and Squantum, the transportation facilities to such towns and to the city of Boston in connection with its location on the boulevard, and its view of the bay would make the tract desirable for homes and high-class and valuable residences. The presence of the pit on the northeast part of the tract would have deterred the more desirable and better class of people from purchasing lots and erecting a good class of dwellings and residences thereon, and have affected and depreciated the value of the entire tract, the damage thereby being greater in the immediate vicinity of the depression and diminishing as the distance therefrom increased.

The evidence produced bearing on the various features of the damage to the particular tract by the digging of the pit establishes and shows that the difference in value of the 362,000 square feet of land immediately before the excavation was made and immediately thereafter was and is the sum of $9,500 in addition to the value of the gravel taken.

IX. The evidence fails to establish that any damage resulted to or was sustained by the plaintiffs on account of the effect of the excavation on any of the other tracts o.f land owned by them, and it also fails to establish that any damages resulted to the plaintiffs or their property by the neglect or failure of the defendant to give formal and positive notice that it would not require or take any more gravel from their land than had been taken when the steam shovel and tracks had been removed therefrom in February, 1918. •

X. Plaintiffs filed their claim for damages resulting from said taking with the United States Government, which *979awarded them the sum of $3,800, but said amount was refused by plaintiffs as being inadequate and unsatisfactory.

The court decided that plaintiffs were entitled to recover $4,830.50 (Findings II and III) and $9,500 (Finding VIII) with interest on $11,480.50 from December 11, 1917, to date of judgment.

Booth, Judge,

delivered the opinion of the court:

This case involves the fixing of values. The Government requisitioned the gravel, and an attempt to fix just compensation therefor by the parties failed. The quantity of gravel taken is definitely established; the Government conceded it in the offer of settlement. The record concerning the market value of gravel at the time is conflicting. The Government seeks a ridiculously low figure and the plaintiff’s evidence is more reliable. We think the record clearly sustains a price of 25 cents per cubic yard. The most difficult fact to reconcile is the damage resulting to the tract by reason of the taking. The Government’s officers left on the premises an excavation of considerable depth and width, a pit which beyond doubt seriously impaired the tract for residential or any other purposes. The tract was suitable for residential purposes and readily susceptible of being platted into town lots. The location of the land and its proximity to the towns of Quincy and Squantum and its commanding view of the bay made it available for first-class homes. The boulevard beside which at least eleven hundred feet of the tract abutted was improved, and transportation facilities were at hand and convenient. Considering what had to be done to render the tract marketable for residential purposes, and allowing for its availability for the purpose *(United States*v. *Grizzard,*219 U. S. 180; *Archer*v. *United*States, 47 C. Cls. 248) we think a judgment of $9,500 would cover the loss. Judgment will be awarded the plaintiffs for $14,330.50, with interest on $11,480.50 at the statutory rate prevailing in Massachusetts from date of taking, December 11, 1917, to date of judgment. The plaintiffs were awarded $3,800 as just compensation. Three-fourths of this amount, $2,850, could have *980been accepted without prejudice to a right to sue for the amount demanded in this suit. Having failed to avail themselves of this privilege and accepted the amount, interest on the said $2,850 will not be allowed. *Sanford & Brooks Co.,*267 U. S. 455; *Liggett & Myers Tobacco Co.,*ante, p. 693.

It is so ordered.

Graham, *Judge;*Hay, *Judge;*Downey, *Judge;*and Campbell, *Chief*Justice, concur.