Page images


Opinion of Commissioner surmise that in the intervening months the Sonodas (assuming they were not evacuated) would have been able to reach a compromise with the Ralphs to restrict the forfeiture to the south half of the property so as to give them an opportunity to work their way out of the debt. To say that the Ralphs would have ultimately attached the unencumbered north half of the property to satisfy prospective deficiencies at foreclosure sale on the south half is also to speculate without warrant, to presuppose that Tom Sonoda's considerable resourcefulness would not have been available and have eventually prevailed, or that the charity and longstanding friendship of the Ralphs would not reassert itself. The plaintiff claims that Charles B. Ralphs was dutybound to apply against the note fiduciary funds in his hands derived from sales of the plaintiff's crops, but the record shows these funds to have been properly expended by the fiduciary in payment of other bills incident to the farm management. Of course the record does not show any proceeds from the one-year rental of the farm commencing July 1, 1942, but nothing was asked the witnesses at trial about this and no point made of it since, so a claim cannot be either supplied or measured. It seems shocking that property which Mary bought in 1924 for $48,000 should have brought no bidders at $18,000 in January 1943, but the record does not explain this drastic decline and no inference can or should be drawn from it. The parties agreed that the fair market value of the property in May 1942 was $24,500.

As a denouement to the story, it should be mentioned that, after taking the property in for $18,000 at the bidderless foreclosure sale, the Ralphs sold it for $18,000 in September 1943 to a purchaser who has successfully operated the farm ever since after spending a considerable sum in its improvement. In retrospect, the Ralphs in a real sense were fortunate to have received over $59,000 for property which eventually proved to be salable for only $18,000. In all, they received a total of over $78,000, not a bad sum even though much of it was in interest. Under the facts related it must be concluded that the plaintiff has established the loss of the north half of the Imperial farm, but not the south half, to have been, at least in part, the reasonable and natural consequence of her


154 Ct. Cl. Opinion of Commissioner evacuation and threat of evacuation, leaving for solution the valuation of the recoverable loss. The jurisdictional act is silent as to the controlling date for valuation of the property lost. The defendant would contend for a valuation date of May 1942, or January 1943, when the north half of the

property had a fair market value of $13,050, while the plaintiff would contend for a date no earlier than July 1948, when the figure had risen to $18,600, an increase of $5,550.

The defendant rests its case for the earlier date almost entirely on the 1950 adjudication of the Attorney General under the original parent act in the claim of Kawaguchi, No. 146–35–2523, contained in the bound volume of precedent decisions under the Japanese-Evacuation Claims Act. It is not necessary to pass judgment on the correctness of the Attorney General's analysis in that case, for the Act which it sought to interpret did not contain the significant language added by the 1956 amendment directing this court to "hear and determine said claim in the same manner and under the same rules as any other cause properly before it and applying rules of equity and justice.” (50 U.S.C. 1984(b).)

In adopting this particular phraseology it is believed that the Congress intended the court to function in a manner not unlike its performance under 28 U.S.C. 2509 in claims referred to it by either House of Congress, for this is a familiar pattern in the long history of the relations between the Congress and the court. In Lamborn and Company v. United States, 106 Ct. Cl. 703, 723, the court said as to another special jurisdictional act containing the same phrase that the Congress used the term "equity and justice in its broad meaning rather than in the strict sense in which such term is understood and applied in equity jurisprudence." In the present case the term should be construed to give latitude rather than license, but a measure of freedom nevertheless to depart from the legalistic strictures of the normal rule in damages that judgments shall be based on valuation at the time of loss and unaccompanied by interest, or by the judge-made rule in eminent domain cases which ties the recovery to valuation at the time of taking augmented by reasonable interest to the time of judgment to be considered as part of just compensation. The present claim eludes


Opinion of Commissioner classification into the normal formulae of precedents; it is neither a tort nor a taking, but considerably more severe than the latter since here the people were taken away from the land, thus permitting the land to be taken away from the people. Equity and justice in the instant case would decreo a valuation date of July 1948, when the Congress first provided the injured with a forum, for this would reflect in Mary's case the normal developments in the period when redress was not available and would theoretically enable the plaintiff, if she so chose in 1948, to fully replace her loss of the north half of the Imperial farm by property of comparable size, quality and location. This is not to say that this result should have common application to all cases now pending here under the same jurisdictional act. Rather, it implies the application of equity and justice under the circumstances of the individual case, an approach consistent with the conceived intention of the Congress.

In this case the fair market value of the north half of the Imperial farm is the sum indicated. In view of all the circumstances—the debts that plaintiff owed, the likelihood that this and other properties might have been subject to attachment and perhaps to judicial sale—it cannot be determined definitely that the property could have been fully saved. On the other hand, it certainly cannot be said that it would have been totally lost. No doubt, if plaintiff had not been taken away, at least a portion of its value would have been saved through negotiation, adjustment, part payment, or extension of indebtedness.

In the circumstances we find that one-half of the loss of the value of the north half of the Imperial farm was a reasonable and natural consequence of the action taken by the Government in excluding plaintiff from the area of the property. This we find to be $9,300. The Act specifically authorized compromise and settlement of the claim. Since this court's jurisdiction in this matter is conferred by the same Act, we think this court likewise has considerable leeway in implementing the purposes of this legislation.

Mary owned and lost another farm as a result, she says, of her evacuation. This was a farm of 160 acres at Niland, in the Imperial Valley, which Tom had bought in her name 154 Ct. Cl. Opinion of Commissioner in 1935 for $2,000 in cash and $2,000 in two mortgages on separate parts of the property. By April 1942 Mary owed $764.64 on one of the mortgages and $488.37 on the other. She also owed $371 in tax arrears. One of the mortgage holders sued her in April 1942 to foreclose, and he probably did foreclose on 103 acres but the record does not provide the actual fact. The other mortgage holder was also pressing for payment at the same time and, in April 1942, Mary, acting on the advice of her attorney Hickcox, deeded the mortgagee 57 acres of the property worth $2,500 in satisfaction of a $764.64 note balance. This hardly seems to have been a conscionable exchange, but Mary was beleaguered from all sides, and besides her lawyer had advised this way out. The entire Niland farm was worth $8,250 at this time, against which the overdue mortgages totaled $1,253.01 and the tax arrears totaled $371. The taxes would have waited, for it was not uncommon at that time and place for farmers to be in tax arrears, and Mary had been in that position before and had cleared up her taxes. But the mortgagees apparently would not wait, there appearing at the time to be no effective advocacy on Mary's behalf and no pity wasted on persons of Japanese ancestry, even native-born United States citizens. It seemed popular to bait the Nisei.

The logical inquiries in the case of the Niland farm are whether Mary's actions were those that a reasonable person would have pursued under identical circumstances and, if not, whether her impending evacuation was the causative factor in her taking unreasonable action which led to the loss of the Niland farm. It was manifestly not reasonable to have surrendered 57 acres worth $2,500 for a mere $764.64 note, for she gained nothing in exchange for her voluntary cooperation and lost $1,735.36 to boot. Had she let this mortgagee foreclose, as she did the other, the procedural delays would have carried her beyond the time several weeks away when the proceeds of crop sales would provide her with the cash to pay both mortgages. She would thus have an $8,250 property subject only to $371 in tax arrears. Even if she had elected to pay off only one of the mortgages for $488.37 it would have saved her 103 acres of the farm worth $5,750. During her absence the property could have


Opinion of Commissioner

been rented for more than enough to meet recurring taxes and, at the end of the period of expulsion, she and her family would have had at least one farm as an asset either to work, sell or rent. Attorney Hickcox, who had virtually abdicated his duty to advise his client, can be charged as the architect of Mary's inaction or wrong action. Mary needed sound legal advice, and that she did not get. On July 20, 1942, Hickcox wrote to Mary at her place of confinement announcing that Ralphs had on hand over $4,000 belonging to her from the sale of crops, and requesting advice as to what bills she wished to pay. Clearly it was Hickcox's duty as her lawyer to give instead of seek advice, and to urge Mary to use part of the funds to save the Niland farm. At no time did Hickcox demonstrate that he was acting in Mary's interests. She herself was obviously suffering from a paralysis of will which prevented her taking the preservative steps that a reasonable, prudent person would have taken under the same state of facts. This eclipse of her volition was the direct consequence of the impending evacuation and all the forces it had set in motion. Presence of adequate counsel would normally offset the effect of Mary's own incapacity, but, more than a vacuum, Mary's legal advice was detrimental to her interests at every turn, intentionally or not. One cannot escape the impression throughout this case that, once the innocent victim showed no capacity for resistance, the vultures gathered from all directions to join the feast. It would seem elementary under the governing statute that where the prospect of evacuation compels an evacuee to entrust his property and affairs to representatives who, either through dishonesty or negligence cause a substantial diminishment in or loss of the property entrusted, and the evacuee is not himself at fault, such losses are recoverable if they meet other criteria of the statute.

The plaintiff is entitled to reimbursement for the loss of her Niland farm and, consistent with the formula applied to the Imperial farm loss, the measure of her recoverable loss will be the July 1948 fair market value of $15,300 diminished by $1,253.01 in mortgage indebtedness and a further $3,000 in tax arrears, for a net recovery of $11,046.99.


« PreviousContinue »