145 C. Cls.

COUNTERCLAIMS-Continued

TORT-Continued

granted permission to sue it, including the Government's counter-
claim based upon a plaintiff's tortious conduct. Cherry Cotton
Mills v. United States, 327 U.S. 536; Erie Basin Metal Products,
Inc., et al. v. United States, 123 C. Cls. 433. Tennessee Mechanical
Institute, 344.

Courts 470

COURT OF CLAIMS. See also Civilian Pay; Military Pay; Veterans'
Training.

JURISDICTION.

Civil Service Commission decision.

Review of.

The court will not review the merits of a decision of the Civil
Service Commission to determine whether it was based on "full
and substantial cause." Collins, 382.

Officers 72(2)

Courts-martial.

Review of.

Generally a civilian court cannot review the question of whether
or not a court-martial properly exercised its discretion, the cor-
rection of such errors being entrusted to the appropriate military
authorities. Griffiths, 669.

A sentence of court-martial can be reviewed by a civil court only
where it is determined that the court-martial was void, either for
lack of jurisdiction or because the court-martial exceeded its lawful
powers. Griffiths, 669.

Armed Services 47.1(2)

Tort claims.

Counterclaim-asserted in.

Under the provisions of 28 U.S.C. § 1503, giving the Court of Claims
jurisdiction to render judgment upon any set-off or demand by the
United States against any plaintiff in court, the court may adjudicate
in one suit all controversies between the Government and those
granted permission to sue it, including the Government's counter-
claim based upon a plaintiff's tortious conduct. Cherry Cotton Mills
V. United States, 327 U.S. 536; Erie Basin Metal Products, Inc.,
et al. v. United States, 123 C. Cls. 433. Tennessee Mechanical Insti-
tute, 344.

Courts 470

145 C. Cls.

COURT OF CLAIMS-Continued

JURISDICTION-Continued

Veterans' Education Appeals Board decisions.

Review of.

Where the "customary cost of tuition" (section 2, Public Law 610,
64 Stat. 336, 338), determined by the Administrator of Veterans
Affairs, is based on prior contract rates which had been found by
the Veterans Administration to be fair and reasonable, and the rea-
sonableness of the rate determination had never been attacked by
plaintiff at the agency level, and the evidence before the court
indicates that the holding of the Veterans' Education Appeals
Board as to what was plaintiff's customary rate was neither arbi-
trary, carpricious nor lacking in substantial evidence, there is no
basis for the court to overturn the holding of the Board. B. & S.
Lenox Trade School, 723.

Armed Services 105

COURTS-MARTIAL. See Court of Claims-Jurisdiction; Military Pay.
DAMAGES. See Contracts.

DISPUTES. See Contracts.

DUAL COMPENSATION. See Military Pay.

DURESS.

TAX COMPROMISE AGREEMENT.

Financial difficulties of one of parties.

The pressure of financial difficulties of one of the parties to a tax
compromise agreement will not void the agreement where there
is no showing that the other party took advantage of its opponent's
financial distress to assert unreasonable demands. Maher, 701.
Internal Revenue 1321

ECONOMY ACT OF 1932. See Military Pay.

EMINENT DOMAIN.

RELEASE OF CLAIMS.

Effect of release on claim for just compensation.

Where the companies which owned the requisitioned shipbuilding
contracts executed a release discharging the United States Shipping
Board and other involved agencies from all claims relative to the
contracts, supported by consideration and reserving no power of
revocation, and where the evidence contains no basis for rescission,
the companies have no claim for just compensation for the taking
of their contracts. In re Government of Norway, 470.
War and National Defense → 14

145 C. Cls.

EMINENT DOMAIN-Continued

TAKING.

Authority of Government agent.

In order to establish a right to just compensation it must appear
that the Government official or office alleged to have taken the
property had authority to do so. Societe Cotonniere Du Tonkin, 426.
Eminent Domain 200

Date of taking.

The taking of an avigation easement occurs on the date when
regular and frequent flights by low flying military jet aircraft
begin over the lands. Matson, 225.

In defining "navigable airspace" in the Federal Aviation Act of
1958, 72 Stat. 739, to include airspace needed to insure safety in
takeoff and landing of aircraft, it was not intended to affect a
landowner's claim for compensation for the use of the superadjacent
airspace by airplane operators at heights below the regulated
minimum altitudes of flights. Matson, 225.
Eminent Domain

85

What constitutes.

Aircraft flights.

Where flights of miltary jet aircraft above privately owned lands
were at such low altitudes and at such frequent intervals as to
constitute a direct and immediate interference with the owners' use
and enjoyment of their lands, there was a taking by the United
States of avigation easements over the lands. Matson, 225.
Eminent Domain 85

Control and supervision by Government.

Where the Government requisitions the output of a shipyard and,
after advancing money to help finance the shipyard's operations,
the Government exercises sufficient supervision over the activities
of the yard and its operations to protect its substantial investment
and interest in the vessels it has requisitioned, such controls and
supervision do not amount to a taking of the yard itself. Kreher
v. United States, 115 C. Cls. 355, 393-5, cert. denied 340 U.S. 816;
Gorham v. United States, 127 C. Cls. 750. See Virginia Ship-
building Corp. v. United States Shipping Board, 292 F. 440. In re
Government of Norway, 470.

War and National Defense 14

What constitutes-Continued

Interference with use by Government.

It is not necessary to prove a physical taking of property but only
such substantial interference with the owner's use as to amount to
a taking. Societe Cotonniere Du Tonkin, 426.

Repossession under recapture clause of lease.

Where the various instruments relating to buildings leased by
the plaintiff from the County of Suffolk, New York, indicate that
everyone understood that those buildings were "airport facilities"
subject to possible recapture by the Government during a national
emergency under the surrender of leasehold agreement between the
Government and the county, and the Government upon repossession
of the buildings paid rent to the county, and the plaintiff had a
clause in its lease from the county and in its lease of the buildings
to another party providing for extensions of the lease terms in the
event of Government requisitioning of the leased buildings, there
has been no taking of the buildings by the Government from the
plaintiff. National Aircraft Maintenance Corp., 505.

Although the purchaser of a vessel from the United States Mari-
time Commission agreed to and did pay for certain "desirable fea-
tures," which payment was not required of it and was illegal under
the provisions of the Merchant Ship Sales Act of 1946, 60 Stat. 41,
50 U.S.C. App. §§ 1735-1746, the purchaser was not barred by ac-
quiescence and estopped from recovering the amount of the over-
payment where the defendant cannot show that it was prejudiced
by the purchaser's payment of the illegal charge or by the pur-
chaser's delay of 5 years in filing suit to recover such payment.
Sprague Steamship Co., 642.

United States 74(6)

ESTOPPEL BY JUDGMENT.

See Judgments.

FEDERAL AVIATION ACT OF 1958. See Eminent Domain.

FEDERAL-STATE RELATIONS. See Constitutional Law.

FOREIGN SERVICE ACT OF 1946. See Civilian Pay.

FOREIGN SERVICE RETIREMENT ANNUITY. See Civilian Pay.

145 C. Cls.

FORFEITURE. See Fraud.

FRAUD.

CLAIM AGAINST THE UNITED STATES.

Gross inflation of claim.

Forfeiture-grounds for.

A gross inflation of a claim against the United States both as to
the amount of property alleged to have been taken and as to the
nature of that property, which inflation could not have resulted
from mistake, amounts to a fraud against the United States in
the proof or establishment of the claim requiring forfeiture under
28 U.S.C. § 2514. Lapus, 660.

INTEREST. See Contracts; Taxes-Income Tax.

JOINT TRAVEL REGULATIONS. See Military Pay.

JUDGMENTS.

EQUITABLE ESTOPPEL.

Compromise judgment.

Tax Court.

Where a taxpayer who has filed suit in the Tax Court of the United
States elects not to risk litigation but agrees to settle the con-
troversy for less than the amount demanded by the Government,
the taxpayer is thereafter estopped from asserting a demand for
the return of the money paid under the compromise judgment ren-
dered by the Tax Court. Maher, 701.

Internal Revenue 2044

ESTOPPEL BY JUDGMENT.

Courts of limited jurisdiction.

Where a court of limited jurisdiction determines an issue which is
within its jurisdiction, its decision on that issue operates as an
estoppel in a different suit involving the same issue, even where the
second court has exclusive jurisdiction to grant the relief therein
requested. Section 71, Restatement of the Law on Judgments. The
District Court in a suit for reinstatement of a civilian Government
employee has jurisdiction to determine whether or not the em-
ployee has exhausted his administrative remedies. Edgar, 9.
Judgment 639

District Court judgment for reinstatement of civilian Government
employee.

A judgment of the District Court in a suit for reinstatement of
a civilian Government employee operates as an estoppel with respect
to any issues therein decided which are also issues in a suit for pay
in the Court of Claims by the same plaintiff with respect to the same
dismissal action, despite the fact that the relief sought in the two
courts may be different. Edgar, 9; Larsen, 178; Green, 628.
Judgment 715 (2)