#### BOOTH & COMPANY v. THE UNITED STATES

[No. C-1326.

Decided March 8, 1926]

*On the Proofs*

*Eminent domain; implied contract; award of interest.*— In awarding just compensation for the taking of property under the act of August 29, 1916, the Court of Claims takes jurisdiction upon the implied contract arising out of the taking, and is governed as to the inclusion of interest by sec. 177, Judicial Code.

*The Reporter’s*statement of the case:

*Mr. L. Russell Alden*for the plaintiff. Haight, *Smith, Griffin c& Deming*were on the brief.

*Mr. Howard W. Ameli,*with whom was *Mr. Assistant Attornexj General Herman J. Gallotoay,*for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff was at the time of the filing of the petition herein and at all times therein mentioned and now is a corporation duly organized and existing under and by virtue of the laws of the State of Delaware, with its principal office for the transaction of business at No. *17*Battery Place, Borough of Manhattan, city, county, and State of New York.

II. The plaintiff was at all the times hereinafter mentioned the sole owner of an estate for years in a portion known as section D of that certain private dock or pier in New York Harbor, in the County of Kings, State of New York, known and described as “ Pier No. 4, Bush Terminal,” together with the adjacent berths on the north and south sides thereof.

III. The said estate for years was conveyed to and acquired by the plaintiff by lease dated April 5, 1916, wherein and whereby the Prince Line (Ltd.), a British corporation, the owner of an estate for years in all of the said pier, did lease for a period of three years, from October 15, 1916, at a reserved rental of $40,000 per year, payable in equal monthly installments in advance, the said section D thereof and adjacent berths to the said plaintiff.

*806IV. The said estate for years of the Prince Line (Ltd.) was conveyed to and acquired by it by lease dated April 1, 1913, wherein and whereby the Bush Terminal Company, a New York corporation, the owner in fee of the said pier, did lease for a period of ten years, from August 1, 1913, at a reserved rental of $70,000 per year, the said pier and adjacent berths to the said Prince Line (Ltd.).

V. The said Pier 4 was and is 1,329 and a fraction feet long and 149 feet 6 inches wide. The shed covering the pier extends to 26 feet from the offshore end of the pier and is 143 feet wide, there being an uncovered bulkhead at the offshore end and a string piece on each side of the pier.

VI. The said section D was and is 468 feet long and 149 feet 6 inches wide, 442 feet of length and 143 feet of width being under shed, and the ■ total area under shed being 63,206 square feet. The slips on either side of the said pier and said section D were and are 270 feet 6 inches wide.

VII. The said section D had and has two berths, one on each side, and could and did accommodate simultaneously two vessels of the usual type and size, including their cargo, while loading and discharging.

VIII. From the inception of the said leasehold to the time that the same was requisitioned, as hereinafter stated, the plaintiff complied with all the terms of the said lease and was in peaceful possession thereunder of the said section D of Pier 4; by arrangement with the Government, it continued to pay to the lessor the rent reserved under the said lease until midnight of May 18, 1918.

IX. On December 31, 1917, the Secretary of War, by direction of the President of the United States, duly issued the following general order:

War Department,

*Washington, December SI, 1917.*

*To whom it may concern:*

Pursuant to the authority vested in the President by the act of Congress approved August 29, 1916, 39 Stat. 645, providing for possession and control of systems of transportation, and by section 10 of the act of Congress approved August 10, 1917 (Pub. No. 41, 65th Cong.), authorizing the requisitioning of storage facilities for supplies connected with the common defense, possession and control is hereby taken. *807•by direction of the President, of the following described .parts of a system of transportation, including storage facilities ; that is to say, of those portions of the Bush Terminal docks and warehouse property described in Schedule “A” .and shown on the map of Schedule “B,” hereto annexed, in New York Harbor, to the end that they may be utilized 'to the exclusion of all other traffic, so far as may be necessary, and for such time as may be required, for the transportation of troops, war material, and equipment, for the .storage of military supplies, and for such other purposes ■connected with the emergency as may be needful or desirable. Steps will be. promptly taken to ascertain the fair compensation to be paid for the temporary use by the Government of the premises, and also the fair compensation to be paid for the property in the event that the Government shall determine prior to July 1, 1918, to acquire absolute "title thereto.

Done at the City of Washington this 81st day of December, 1917.

NewtoN D. Baker,

*Secretary of War.*

X. On the same date, under authority of the above order, Maj. Gen. George W. Goethals, Acting Quartermaster General of the United States Army, addressed to Maj. Gen. David C. Shanks, General Superintendent of Army Transport Service, the following telegram which was duly received by the latter:

[Telegram]

December 31,1917.

Major GeNeral David C. ShaNKS,

*General Superintendent Army Transport*Service,

*Neva York, N. Y.:*

An order has been issued by the President this date for taking possession and assuming control of those portions of the Bush Terminal docks and warehouse property known to you and described in Schedule “A” and shown on the map on Schedule “ B ” attached hereto. In conformity with .said order you will take possession and assume control of the premises from this date.

Goethals,

*Acting Quartermaster General.*

,(825, 1-T Bush Terminal. — L.)

*808XI. Thereafter there was duly served upon the plaintiff, on behalf and by the authority of the said General Superintendent of Army Transport Service, the following notice:

WAR DEPARTMENT,

Oeeice oe the General Superintendent,

U. S. Army Transport Service,

*New*York, *January 1, 1918.*

From: Supervisor Docks, Wharves & Terminals.

To: Booth Line, *17*Battery Place, New York City. Subject: Notice to vacate.

1. By authority of the President of the United States, the Bush Terminal has this day been requisitioned for the use of the Embarkation Service of the United States Army, and possession thereof has passed to the United States.

2. It is necessary that the Government have full benefit of these premises at the earliest possible date. It is desired, however, not to inconvenience the present occupants to the extent that may bring upon them any extensive financial losses. You will therefore immediately communicate with 1st Lieutenant H. S. Cole, U. S. A. Retired, Officer in Charge of the Division of Docks, Wharves *&*Terminals of this office, and make arrangements for the vacation of the premises now occupied by you.

3. Until further notice all payments or any moneys due in respect of any period commencing on or after January 1, 1918, will be made to the Bush Terminal Company for account of the United States.

By authority of the General Superintendent.

Haydn S. Cole,

*1st Lieut., U.*Á. *A.*

*Officer in Gharge of Din. of*Docks, *Wharves <& Terminals.*

XII. Under and pursuant to the said order set forth in Finding IX, the United States took actual physical possession from the plaintiff and the plaintiff surrendered actual physical possession to the United States of the said section D of Pier 4 at midnight of May 18, 1918.

XIII. The United States continued in full possession and control of the said pier until midnight of April 30, 1919, on which date possession and control of the said section D was restored to the plaintiff by the United States.

XIY. Coincidentally with the surrender by the plaintiff to the United States of said section D of Pier 4, the United States licensed plaintiff to use said premises until further *809notice in consideration of the payment of $250 per berth occupied per day. The plaintiff thereafter used the said premises from time to time under said license between May 19, 1918, and May 1, 1919, and for such use paid to the United States the sum of $95,066.31.

'XV. On January 9, 1918, the following order was duly issued by order of the Secretary of War:

A. G. 334.7, Inspection and Appraisement

January 9,1918.

From: The Adjutant General of the Army.

To: Mr. J. Spencer Smith, care of the Acting Quartermaster General.

Subject: Appointment of board.

1. A board to consist of:

Mr. J. Spencer Smith;

Mr. Edward M. Bassett,

Mr. John H. Gray,

Mr. John H. Roemer,

Major John S. Dean, Judge Advocate General’s Reserve Corps, is hereby appointed to meet at such time and place as may be indicated by the Acting Quartermaster General of the Army, for the purpose of determining the rental value of the Bush Terminal, commandeered on January 1, 1917.

2. Such journeys as may be required of Major Dean under this order are necessary in the military service.

By order of the Secretary of War:

(Signed) A. G. Lott,

*Adjutant General.*

XVI. On February 2, 1918, the following order was duly issued by order of the Secretary of War:

A. G. 334-7, Bush Terminal (Off.' #58 ejb/bdh)

WAR DEPARTMENT,

The Adjutant General’s Office,

Washington, *February 1918.*

From: The Adjutant General of the Army.

To: The Senior Member of Board appointed to determine the rental value of the Bush Terminal, through the Acting Quartermaster General, Washington, D. C.

Subject: Appraisement of the Bush Terminal, requisitioned January 1, 1918.

1. In addition to determining the rental value of the Bush Terminal, the Board appointed January 9, 1918, by the Secretary of War for the purpose of determining the rental *810value of the Bush Terminal, requisitioned January 1, 1918,. is hereby authorized and directed to ascertain and report what would constitute a fair compensation to be paid for the-property, in the event the Government shall determine prior to July 1, 1918, to acquire absolute title to the property.

2. The said board is further authorized and directed to-determine the value of the leasehold interest of each tenant of the said Terminal Company, and arrange, if practicable,, subject to approval, settlements with such tenants.

3. Said board is further authorized and instructed to investigate and to make recommendations as to which of the 26 manufacturing tenants, if any, now occupying space in. the warehouses of the said Terminal Company, should be: permitted to retain such space until the end of their leases; such recommendation to be submitted to the proper authority at the earliest possible time.

By order of the Secretary of War:

(Signed) Geo. C. Hicks, Jr.,

Adjutant- *General.*

XVII. On or about February 6, 1919, the said board of appraisers, appointed by the said orders, made the following award to the plaintiff:

Award to Booth & Company, Inc. (Sub-Tenant Pier 4)

We the undersigned, a board of appraisers, appointed pursuant to the authority vested in the President of the United-States by act of Congress approved August 29, 1916 (39-Stat. 645), providing for the possession and control of systems of transportation and by section 10 of act of Congress,, approved August 10,1917 (Pub. No. 41, 65 Cong.) authorizing the requisitioning of storage facilities for supplies connected with the common defense, for the purpose of ascertaining the just compensation to be paid by the United-States for the temporary use and occupancy, injury, destruction, or purchase of that portion of the property belonging-to Bush Terminal (lessor), Booth *&*Company, Inc. (subtenant) (lessee), situated in the city of Brooklyn, County of Queens, State of New York, more particularly described as Pier No. 4, as shown by the map and plat of the Bush Terminal filed with the Report of the Board of Appraisers,, marked “ Schedule B,” having heard the proofs and allegations of the parties and examined the matters submitted by them, do report and award as follows, namely:

1. That the United States did requisition the temporary use and occupancy of the premises known as Pier #4, as shown by the map and plat of the Bush Terminal, filed with the Report of the Board of Appraisers, marked *811“ Schedule B,” from the third day of January, 1918, and still occupies the same; that the just compensation for the use and occupancy of the premises so taken and occupied as aforesaid is the sum of $10,000 per month, of which said monthly sum the aforesaid Lessee Booth & Company, Inc. (Sub-Tenant) is entitled to receive $1,388.89 per month from May 18, 1918, the date possession was surrendered, aggregating, including principal and interest to February 1, 1919, the sum of $11,883.34; that just compensation for such use and occupancy by the United States so long as the same shall continue after the first day of February, 1919, is the sum of $10,000 per month, payable on the first day of each succeeding calendar month, of which said monthly payment the said Lessee Booth & Company, Inc. (Sub-Tenant), is entitled to receive $1,388.89 per month to, and including the payment to be made on the first day of August, 1923, and no longer. Award is .accordingly made to said Lessee.

2. During such period as the United States shall continue to use or occupy said premise after February 1, 1919, and before August 1, 1923, just compensation to the Sub-Tenant is as follows, namely: For Pier No. 4, $1,388.89 per month, so long as the said sub-tenancy shall continue.

3. Total of just compensation hereby awarded and to be paid to the Sub-Tenant February 1, 1919, is $11,883.34.

In witness whereof we have hereunto set our hands and seals this 6th day of February, 1919.

J. SpeNcer Smith [l. s.]

*Chairman.*

Edwaed M. Bassett [l. s.]

JOHN S. DeaN [l. s.]

*Lt. Col. J. A. U. 8. A.*

Stamp.

Asst. Secy’s Office Dec. 28, 1920 War Dept.

The above award approved and payment of 15% thereof directed this 28th day of December, 1920.

W. B.. Williams,

*Assistant Secretary of War.*

PRINCE Line, Limited,

&

Booth & Company, Inc. (Sub-Tenant)

Pier 4

Value of space per month_$10, 000.00

Kent reserved per month_ 5, 833.33

Amount due tenants per month_ 4,166. 67

Occupation began May 18, 1918.

Lease expires Aug. 1, 1923.

*812

Due Booth & Co., one-third of amount awarded_$11, 883. 34

Due Prince Line, Ltd., two-thirds of amt. awarded_ 23, 766. 68

35, 650. 02

We, the undersigned, hereby accept the above award in full payment and discharge of all debts, demands, and claims whatsoever against the United States, arising or to arise for or by reason of any use, occupancy, destruction, injury, or purchase of any or all of the property, rights, or interests more particularly described in the above award or the schedule attached thereto.

In witness whereof we have hereunto set our hands and seals this-day of-, 1919.

-[l. s.]

-[l. s.]

Address-

Witness:

We, the undersigned, are not satisfied with the above award and schedule attached thereto. We desire to be paid 75 per centum of the amount of the award, reserving to ourselves, our successors, heirs, executors, administrators, and assigns the right to sue the United States to recover such further sums as, added to the said 75 per centum, will make up such amount as ivill be just compensation for the use, occupancy, destruction, injury, or purchase of any or all the property, rights, or interests more particularly de-cribed in above award or the schedule attached thereto.

*813In witness whereof we have hereunto set our hands and seals this SI day of November, 1919.

Booth & Co., Ihc. [l. s.]

C. E. GarviN, [l. s.]

*Vice President.*

Wm. CuNNINGHAM,

Secretary, *17 Battery*Place, *New York.*

Witness:

JaN F. Janssen, *Mgr.*

XVIII. The plaintiff thereafter elected to and did reject the said award and refused to accept the said sum in settlement or discharge of its claims for just compensation.

XIX. The United States offered to pay and it did pay to the plaintiff on or about March 21, 1921, 15 per cent of the said award, plus *75*per cent of the amount necessary to bring the award up to May 1, 1919, as payment on account of its claim for just compensation, and the plaintiff has accepted and received the same accordingly, to wit, the sum of $12,031.50, all without prejudice to plaintiff’s rights to sue the United States to recover such further sum as added to said *75*per cent will make up such amount as will be just compensation.

XX. During the years 1918 and 1919, as a result of war conditions, the value of all available steamers was very high, and a steamer lying in the open harbor at New York in consequence of not being able to obtain a berth was losing thousands of dollars every day.

XXI. Two hundred and fifty to six hundred dollars per day were readily offered for a berth for a steamer in the said years.

XXII. The Bush Terminal piers were in 1918 and 1919 among the best and most valuable piers in the port of New York. They were well constructed and of ample width for the handling of any large amount of cargo, with the exception of Pier 8, leased to A. W. Duckett & Co. With the exception of Pier 8, steamers could be berthed on both sides simultaneously, thus facilitating the transshipment of freight from one steamer to another. The slips alongside *814of the piers were wide and were dredged sufficiently to accommodate or to float any of the large ocean-going steamers. At the head of the slips was a large open space, commonly known as the farm, which was used for the accumulation and storage of cargo. The piers were shedded for almost the entire floor area; the sheds were specially designed for the rapid handling of cargo in and out of steamers. There was an elaborate and well-run railroad system connected with all the piers except Pier 8. The rails ran almost the full length of the piers, were connected with the other piers, ran to large and commodious warehouses and manufacturing plants at the rear of the property, and connected with .all the main trunk-line railroads haying their terminals in the port of New York. Pier 8 did not have any railroad tracks on it or rail connections with it.

XXIII. The United States requisitioned from Phelps Bros. & Co. at the same time that it requisitioned section I) of Pier 4 the use and occupation of Pier 7, Bush Terminal. From November 1, 1917, until actuai physical possession of Pier 7 was taken over by the United States, Phelps Bros. & Co. received from the United States Shipping Board $500 per day for the use of the outer half of the pier, and from the Panama Railroad Steamship Company, owned by the United States, for the inner half $400 per day, or a total of $900 per day; the said Pier 7 was a four-berth pier.

XXIV. After the return of the said Pier 7 to Phelps Bros. *&*Co. in 1919, they received for the rental of berths at the pier during the remainder of that year an average of $1,103 per day during June and July, $1,179 per day during August, $1,020 per day during September, $1,074 per day during October, $1,170 per day during November, and $1,222 per day during December.

XXV. The reasonable value of the use of said section D of Pier 4 during the period from May 19, 1918, to April 30, 1919, both inclusive, a period of 347 days, was $400 per day, a total of $138,800. The rental which plaintiff was obligated to pay for said period under its lease was $38,027.40. which, deducted from $138,800, leaves $100,772.60. Plaintiff *815•was paid $12,037.50 on March 21, 1921. Just compensation do plaintiff is $100,772.60, of which it has been paid $12,037.50, leaving $88,735.10 unpaid.

The court decided that plaintiff was entitled to recover, iin part.

DowNey, Judge,

delivered the opinion of the court:

The right of the plaintiff to recover is determined by the *Duckett*case, 266 U. S. 149. The amount of the recovery .allowed is in accordance with the facts found in Finding XXY. The plaintiff asks interest, which we have not awarded, and the reason for this action should be stated. It is to be found in the distinction to be drawn between the *Seaboard*case, 261 U. S. 299, and the *Brooks-Scanlon case,*265 U. S. 106, on the one hand, and the *Duckett case, supra,*on the other.

In the *Seaboard*case, which was a Lever Act case, it is said “ the owner’s right does not depend on contract, express or implied,” and the suit is said to be “ a part of the authorized procedure initiated by the United States for the condemnation of the land.” The *North American Transportation & Trading Co.*case, 253 U. S. 330, is distinguished by .the statement that that case “ was a suit in the Court of Claims based on an implied promise of the United States to pay for property appropriated by it. It was not a condemnation case.” The *Brooks-Scanlon case*arose out of the exercise of a power under the act of June 15, 1917, 40 Stat. 182, which not only conferred the power but prescribed a •procedure of which the suit in this court was a part, as in the *Seaboard case,*except that the jurisdiction in that case was in the District Court.

In the *Duckett case*the procedure was under a provision ^contained in the Army appropriation act of August 29, 1916, 39 Stat. 619 at 645, which conferred a power but provided no procedure as to the ascertainment of compensation. 'That a board was appointed without authority of the act to .award compensation can not affect the legal status of the .claim, for the right to compensation is not derived from the *816act. The Supreme Court says thatThe claim is based, upon an implied contract alleged to have arisen from a taking for war purposes ”; in concluding it is said that “ Whatever the effect of the taking, there was a contract implied in fact by the President’s order and there is no doubt concerning the jurisdiction of the Court of Claims,” citing the *North American Transportation & Trading Co. case*which was distinguished in the *Seaboard case.*

What is said in the *Seaboard case*as to the measure of just compensation might justify the inclusion of interest as a part of the award in this case were it not for section 177 of the Judicial Code, which is applicable because jurisdiction in this case is upon the implied contract arising out of the taking, together with the provisions of the Fifth Amendment. The history of section 177 and its effect are reviewed in the opinion of the Chief Justice in case No. D-549, *Liggett & Myers Tobacco Co.*v. *United*States, decided by this court on February 15,1926, *ante,*p. 693, to which reference is made.

Gbai-iam, *Judge;*Hay, *Judge;*Booth, *Judge;*and Campbell, *Ohief Justice,*concur.