#### OTHO N. JOHNSON AND WILLIAM W. JOHNSON, COPARTNERS, TRADING AS JOHNSON BROS., v. THE UNITED STATES

[No. A-251.

Decided May 17, 1926]

*On the Proofs*

*Eminent domain; aot of October 6, 1917; failwe to remove personal property.*— Tlie act of October 6, 1917, wbicb provided for tbe taking over of land to be used as an ordnance proving ground, did not confer authority to take personal property thereon, and plaintiffs, having had ample time and opportunity to remove the said property and having failed to do so, and the same not having been taken or used by or for the benefit of the United States, can not recover its value. See *Mitchell et al.*v. *United States, 58*C. OIs. *448.*

*The Reporter's*statement of the case:

*Mr. Horace 8. Whitman*for the plaintiffs. *Mr. Stevenson A. Williams*was on the brief.

*Mr. Charles F. Kineheloe,*with whom was *Mr. Assistant Attorney General Herman J. Galloway,*for the defendant. *Mr. Edwin 8. McCrary*was on the brief.

The court made special findings of fact, as follows:

I. Plaintiffs during the year 1911 and for several years prior thereto were associated as copartners and doing busi*235ness tinder the firm name and style of Johnson Bros., at Perryman, Md., where they were engaged in dealing in grain, coal, lumber, fertilizer, hay, and farm products generally. They were also the owners of two farms in that vicinity, one comprising 314 acres known as the “ Meadow Farm,” the other containing 96 acres and known as “ Tay-lors Hall Farm.”

II. This action apparently embraces claims aggregating $128,585.00, of which $113,159.75 is for damages resulting to plaintiff’s business at Perryman, Md., by the location and establishment of an ordnance proving ground in that vicinity by defendant. The questions involved in this feature of the case have been fully considered and determined by this co.urt in the recent case of *Mitchell et al.*v. *United*States, 58 C. Cls. 443, adversely to plaintiffs. Therefore the findings of fact herein will be confined to the remainder of the claim, amounting to $13,805.25, for certain personal property.

III. On October 6, 1917, Congress passed an act (40 Stat. 345, 352) providing for the establishment of an ordnance proving ground, and appropriated funds for the acquisition of any payment for the lands necessary for such purpose. Pursuant to said act the President, on October 16, 1917, issued a proclamation (40 Stat. 1707) declaring certain lands in Harford County, Md., to be necessary for said purpose. These lands comprised about 35,000 acres and included plaintiffs’ two farms. On December 14, 1917, in consequence of the inability of the Government to obtain by negotiations the lands embraced in said proclamation the President issued a further proclamation specifically taking over said lands for the purposes stated in the act of Congress and the proclamation issued in pursuance thereof, thereby vesting the title to said lands in the United States Government.

The commission so appointed denied that it had any jurisdiction to determine any question between the parties except as to the values of the lands and improvements.

IY. Following the issuance of the proclamations referred to in the preceding finding the Secretary of War appointed a commission of four members for the purpose of ascertaining and determining the value of the several tracts and *236parcels of land embraced within the boundaries of the proving ground, and of fixing and awarding proper and just compensation to each and all to whom compensation was due on account of the taking of said lands. The members of the commission were selected with a view to their special fitness for the duties they were called upon to perform. Two members thereof were residents of Harford County, Md., and personally known by many of the owners of the lands within the proving ground.

Y. The commission investigated each and every tract of land comprising the proving ground, and in fixing the value thereof and the amount to be paid to each owner, took into account all the improvements on the land and such fixtures and crops that had not been severed from the land as would pass to the purchaser in an ordinary sale and conveyance of real estate. And in all cases where the lands were occupied by tenants compensation was awarded the tenants for any crops which they had planted and which could not be harvested and removed on or before January 1, 1918, when all persons were required to vacate.

The two farms owned by plaintiffs and lying within the proving ground area were occupied by tenants. The 314-acre farm was occupied by Benjamin B. Cadel, who had sown in the fall of 1917 21 *y2*acres thereof in wheat, for his share of and interest in which he was awarded and paid the sum of $215. He was also awarded and paid the further sum of $250 to cover expense of moving. The 96-acre farm was occupied by Solomon Giles, tenant, who was awarded and paid the sum of $250 to cover the expense of moving.

The value placed by the commission upon the two farms owned by plaintiffs was $45,000, which sum was awarded, paid to, and accepted by plaintiffs as full compensation for their two properties.

VI. There was at the time the President’s proclamation was issued 30 acres of wheat sown on the Meadow Farm, 30 acres of corn planted on said farm, and a rick of straw standing on said farm, the quantity of which does not appear; there were on said farm 3,710 chestnut fence rails, 9 cords of wood, 35 tons of timothy hay, 1,680 chestnut fence posts, 2,145 locust fence posts, one oxcart, and 4,000 feet of *2371X12' pine boards which had been in a building on the place which had been torn down. The plaintiffs also owned at the time stated one portable sawmill and equipment, which was located on the Eed House farm within the proving ground, and which was a part of the land taken, whose owner was one James T. Ford. The value of the aforesaid personal property was the sum of $3,731.50. The plaintiffs had time and opportunity to remove this property from the land.

VII. The President’s proclamation taking over the lands embraced in the proving grounds was published in the local newspapers and required all persons residing thereon to vacate the same on or before January 1, 1918. It was a matter of general knowledge and information throughout the part of the country that the proving ground had been established and that it must be vacated by the time stated. The ordnance officer in charge, Maj. E. H. Somers, caused to be circulated in the community and, in some instances, served upon persons still remaining upon the ground, the following notice:

DECEMBER 24, 1917.-

To whom it may concern: Attention is invited to the proclamation issued by the President of the United States and published in the local papers. This proclamation requires all persons now residing on the Aberdeen proving ground reservation to vacate the same by January 1, 1918. No further notice in addition to the publication of this proclamation need be expected. This circular is issued simply as a matter of convenience and the fact that it may not be received by all concerned does not offset the requirement that all inhabitants must vacate by January 1, 1918. Firing on the proving ground will begin January 2, 1918, and there is no point on the reservation on which anyone not connected with the proving ground has any authority to be at that time or afterwards.

E. H. Somers,

*Major, Ordnance Department.*

VIII. It does not appear that any officer of the United States authorized to do so took possession of the personal property, for the value of which the plaintiff is bringing this suit.

*238The court decided that plaintiffs were not entitled to recover.

Hat, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiffs against the United States to recover the value of certain personal property which the plaintiffs claim was taken by the United States.

The facts are that the plaintiffs were the owners of two farms in Harford County, Md.; that those two farms were a part of a large tract of land which was taken over by the United States by virtue of the act of October 6, 1917, 40 Stat. 345, 352, to be used as an ordnance proving ground; that on October 16, 1917, the President issued a proclamation declaring that the lands of the plaintiffs, among others, were necessary for that purpose; and that on December 14, 1917, the President issued another proclamation taking over the said lands of the plaintiffs, and that a commission was appointed by the Secretary of War to fix and award just compensation on account of the taking of said land. The plaintiffs were paid the sum of $45,000 for their two farms, which sum was accepted by them in full payment without protest. At the time of the taking of said farms the plaintiffs had on said farms certain personal property which they had ample time and opportunity to remove therefrom, and if they did not remove it it was their own fault and not the fault of the Government.

There was no authority conferred by the statute to take personal property, and no officer of the United States had any authority to take over the personal property of any person, and it has not been shown that the personal property of the plaintiffs left by them on said farms has been taken or used by any officer of the United States for the'benefit of the United States. Such being the case, the plaintiffs have no claim which can be successfully asserted here, and their petition must be dismissed. It is so ordered.

Gkaham:, *Judge;*Downet, *Judge;*Booth, *Judge;*and Campbell, *Ghief*Justice, concur.