Decisions of State courts governing allowance of costs against State in condemnation proceeding are not controlling upon Federal court in condemnation proceeding by Government. Id. Costs are not recoverable against United States in condemnation proceedings. C. M. Patten & Co. v. U.S. (C.C.A. 1932), 61 F. (2d) 970. In condemnation of flowage rights by United States affecting township roads, township was entitled to compensation for its right to maintain road at natural levels of lake, notwithstanding levels had theretofore long been unlawfully maintained at higher levels. U.S. v. Wheeler TP (C.C.A. 1933), 66 F. (2d) 977, 978. Where ordinary measure of loss or decrease in market value cannot be applied, whatever is necessary to be considered to determine equivalent for appropriation of private property is germane to question of compensation. Id. Interest. Just compensation for property taken for war purposes included interest for period between time of taking and full payment. Act of July 1, 1918 (40 Stat. 704, 724), U.S. v. McIntosh et al. (D.C. 1932), 2 F. Supp. 244. In a suit under the Tucker Act to recover just compensation for property taken by the Government, there may be claimed and allowed, in the form of interest, such addition to the value of the property at the time of the taking as will produce the full equivalent of that value paid contemporaneously with the taking. Jacobs et al. v. U.S. (1933), 291 U.S. 13. Persons entitled to compensation.-State statute authorizing award for damages to property of person other than condemnee creates substantive right, but it is inapplicable to Federal Government's condemnation proceeding. U.S. v. Crary et al. (D.C. 1932), 2 F. Supp. 870. Distribution of compensation.-City held entitled to payment of street improvement assessments on properties condemned by United States from compensation fund in Federal court clerk's hands. U.S. v. Certain Lands in City of St. Paul, Minn., et al. (D.C. 1932), 3 F. Supp. 574. Fund paid into court in expropriation to be awarded sole proceeding should claimant without even prima facie proof of title. U.S. v. Certain Lands in Washington and Dakota Counties et al. (D.C. 1932), 2 F. Supp. 324. Claims to fund paid into court in proceeding to expropriate forest lands should be liberally construed. Id. In effect, rival claims to fund paid into court in expropriation proceeding traverse each other, and each claimant is both plaintiff and defendant. Id. Aside from showing claim of title to land in expropriation proceeding, color of title merely gives bounds to partial actual possession. Id. To gain possessory title to land involved in expropriation proceeding, actual possession must have been under claim of title, and open, hostile, peaceable, and unbroken for fifteen years. Id. Where only one of rival claimants to fund paid into court in expropriation proceeding appeared for trial, he should be required to introduce at least prime facie evidence of possessory title. Id. Claimant of fund paid into court in expropriation proceeding could not, without rival's consent, rely on Government abstract of title, in view of best evidence rule. Id. Nature and form of proceeding. Where State statutory method of ascertaining damages conflicted with purpose of Federal Condemnation Act, Federal court should follow rulings of Supreme Court of the United States. U.S. v. Crary et al. (D.C. 1932), 2 F.Supp. 870. In Government's condemnation proceeding, no constitutional right exists to jury trial of conflicting claims to land or to award. Id. In Government's condemnation proceeding, prior to commissioner's award and exceptions thereto, condemnee has no right to jury trial of just compensation. Id. Un Landowners acquiesced in taking of their lands and either accepted amounts determined by President as just compensation in full satisfaction as provided by act of July 1, 1918 (40 Stat. 704, 724), or accepted 75 percent, and thereafter accepted balance of judgment of Court of Claims determined to be just compensation. der the circumstances the title was validiy acquired by Government, as against contention that the statute does not specifi cally authorize acquiring property by President's proclamation, and that there was failure of due process, in that procedure for condemnation under general condemnation statute was not followed. U.S. v. McIntosh et al. (D.C. 1932), F.Supp. 244. take Statute authorizing President to lands for Marine Corps post gave him power as Chief Executive, not personally, and could properly be delegated. (Act of July 1, 1918, 40 Stat. 704, 724.) Id. Property owners, accepting amounts found to constitute just compensation by President for lands taken for Marine Corps post, or accepting amount of judgment of Court of Claims, were estopped from asserting invalidity or irregularity of procedure, not only because they accepted the money, but because of their continued acquiescence in laches over a period of twelve years, during which time Government expended approximately $4,500,000 in the improvement of the whole property. Id. Permitting amendment of complaint, in condemnation proceedings, to make description of use of property condemned conform to proof, held not abuse of discretion. C. M. Patten & Co. v. U.S. (C.C.A. 1932), 61 F. (2d) 970. Voluntary dismissal of proceedings.-At any time before taking land, Government may abandon condemnation proceeding. U.S. v. Crary et al. (D.C. 1932), 2 F.Supp. 870. If it deems awards excessive, Government may dismiss condemnation proceeding. Id. Adoption of State procedure.-Procedure in Government's condemnation proceeding should follow State statutes directing that trial of title be subsequent to payment of award into court and be by commissioner or court without jury. U.S. v. Crary et al. (D.C. 1932), 2 F. Supp. 870. In Government's condemnation proceeding, State statute requiring commissioners to report value and damages separately should be followed and value of each tract should be ascertained separately, regardless of ownership. Id. In condemnation suit by United States, law of State in which suit was instituted determines right acquired by landowner through judgment awarding damages. U.S. v. Bouchard (C.C.A. 1933), 64 F. (2d) 482. Legislative expressions establish law of State analogous to common law, which may properly be carried over to situation not falling within precise terms of any statute. Id. In condemnation proceedings by United States instituted in State of Vermont, no title vests in Government before payment of judgment awarding damages, and therefore landowner's judgment against Government for damages for taking is not absolute obligation if Government elects to abandon property taken. Id. Decisions under local or temporary acts.Statute authorizing advance taking of private property for public use in District of Columbia, and providing for judgment against United States, with interest, held not violative of Fifth Amendment. et al. v. U.S. (App.D.C. 1932), 58 F. (2d) 879. Lee In case of advance taking, Secretary of the Treasury's certification that amount deposited was adequate for just compensation held not reviewable in the absence of an assertion that exercise of discretion was wanton. Id. 944. Same; opinion of Attorney General on validity of title.-No public money shall be expended upon any site or land purchased by the United States for the purpose of erecting thereon any armory, arsenal, fort, fortification, navy yard, customhouse, lighthouse, or other public building of any kind whatever, until the written opinion of the Attorney General shall be had in favor of the validity of the title, nor until the consent of the legislature of the State in which the land or site may be, to such purchase, has been given. The district attorneys of the United States, upon the application of the Attorney General, shall furnish any assistance or information in their power in relation to the titles of the public property lying within their respective districts. And the secretaries of the departments, upon the application of the Attorney General, shall procure any additional evidence of title which he may deem necessary, and which may not be in the possession of the officers of the Government, and the expense of procuring it shall be paid out of the appropriations made for the contingencies of the departments, respectively: Provided, however, That in all cases of the acquisition of land or any interest therein by the United States for the purpose herein specified or for other purposes, wherein the written opinion of the Attorney General in favor of the validity of the title of such land is or may be required or authorized by law, the Attorney General may, in his discretion, base such opinion upon a certificate of title of a title company. R.S. 355, as amended by act of June 28, 1930 (46 Stat. 828); U.S.C. 34: 520; 40: 255; 50: 175. The first paragraph of this section has been amended to read as above. 87466-35--8 for In any case in which the United States has taken or may take possession of any real property during the course of condemnation proceedings and in advance of final judgment therein and the United States has become irrevocably committed to pay the amount ultimately to be awarded as compensation, it shall be lawful to expend moneys duly appropriated for that purpose in demolishing existing structures on said land and in erecting public buildings or public works thereon, notwithstanding the provisions of section 355 of the Revised Statutes of the United States: Provided, That in the opinion of the Attorney General the title has been vested in the United States or all persons having an interest therein have been made parties to such proceeding and will be bound by the final judgment therein. Sec. 5, act of Feb. 26, 1931 (46 Stat. 1422); U.S.C. 40: 258e. The above provision is added as a new paragraph of this section. NOTES OF DECISIONS Necessity and requisites of consent to purchase.-N.Y. Laws 1896, c. 391, and N.Y. Laws 1929, c. 242, as they have been respectively amended, express the consent of the legislature of the State of New York to the acquisition of land by the United States within their respective limitations. Act of 1899 should be complied with in the matter of sites, not exceeding 2 acres in extent, for "post offices and other governmental offices" in cities or villages, as has been done in the past; and Act of 1896, supra, should be complied with in the matter of other acquisitions of land embraced within the scope of its language. (1929) 36 Op. Atty. Gen. 86. Acceptance of cession of State may be implied from use, and use for military purposes does not restrict the Government's title to that use. Columbia River Packers' Ass'n, Inc., v. U.S. (C.C.A. 1928) 29 F. (2d) 91. Title by adverse possession.-No title can be acquired by adverse possession against the United States. Stull v. U.S. (C.C.A. 1932), 61 F. (2d) 826. Defendant has burden to prove alleged title by adverse possession based on possession before Government acquired title. Id. Conveyance of easement.-Conveyance to United States of easement and right-of-way in gross gave United States mere personal interest in grantor's land for governmental purposes and did not create right-of-way for general public. U.S. v. Johnson et al. (D.C. 1933), 4 F. Supp. 77. Rights of United States as grantee of easement in gross were governed by principles applicable to individuals. Id. Grant of easement is limited to purpose of its creation, and enjoyment thereof may not be extended by implication. Id. Where act of State legislature authorized conveyance of lands by a municipality to the United States " for office and storage purposes in connection with the work of river and harbor improvement", a deed of conveyance thereunder, so far as its real nature and effect are concerned, is a grant of an easement-a grant only to occupy and use for a specific purpose. The issuance of a revocable permit to the Coast Guard to construct a garage and housing equipment on the lands in question would violate the condition of the grant and jeopardize the title of the United States. MSS. Op. Atty. Gen. Nov. 21, 1933. Jurisdiction, concurrent or exclusive.Service of process on lands ceded to Federal Government by State, with reservation of right to serve process therein, does not interfere with supremacy of United States over such lands (14 Stat. 396). Manlove v. McDermott (Pa. 1932), 162 Atl. 278. Service of summons on navy lieutenant in navy yard, without commanding officer's leave held not invalid so as to deprive court of jurisdiction of person served. Id. Service of summons on navy lieutenant in navy yard by sheriff entering with commandant's permission held not invalid because made while lieutenant was standing beside his ship and engaged in work thereof. Id. Finality of Attorney General's opinion.- 945a. Public buildings; cost limits.-Authorizations heretofore granted by law for the construction of public buildings and public improvements, whether an appropriation therefor has or has not been made, are hereby amended to provide for a reduction of 10 per centum of the limit of cost as fixed in such authorization, as to projects where no contract for the construction has been made. As to such projects where a contract has been made at a cost less than that upon which the authorization was based, such cost shall not, unless authorized by the President, be increased by any changes or additions not essential for the completion of the project as originally planned. Sec. 320, Title III, Part II, act of June 30, 1932 (47 Stat. 412). 948. Buildings at military posts; construction and repair to be by contract. As funds are no longer appropriated for the construction of quarters for "hospital stewards", the second paragraph of this section, based on act of. February 27, 1893 (27 Stat. 484), making appropriations for the support of Army, U.S.C. 10: 1340, should be omitted as obsolete. 950. Same; cost limit, permanent barracks and quarters. * Provided further, That no part of the funds herein appropriated shall be available for construction of a permanent nature of an additional building or an extension or addition to an existing building, the cost of which in any case exceeds $20,000: Title I, act of Feb. 23, 1931 (46 Stat. * * * 1287), making appropriations for the support of the War Department. It The above provision, added as a new paragraph of this section, appeared in the act cited, under the heading "Barracks and quarters and other buildings and utilities.” has been repeated in subsequent appropriation acts. NOTES OF DECISIONS Breach of contract.-Allegation that constructing quartermaster lacked authority to make binding settlement under cost-plus contract for construction of Army cantonment held mere conclusion. U.S. v. A. Bentley & Sons Co. (C.C.A. 1927), 16 F. (2d) 895. Allegations of fraudulent breach of costplus Army cantonment construction contract held mere conclusions. Id. Allegations of Government's petition that constructing quartermaster was not suc cessor of contracting officer as to work under cost-plus contract held negatives pregnant. Id. Petition of United States for breach of cost-plus contract for construction of cantonment, by allegations of failure to exercise due care and skill in organizing, planning, and superintending work without statement of standard, held to state mere conclusions. U.S. v. George A. Fuller Co. (C.C.A. 1926), 14 F. (2d) 813. 951. Same; cost limit, barracks and quarters for Coast Artillery. This section, based on section 1, act of June 6, 1900 (31 Stat. 624), U.S.C. 10: 1338, should be omitted as executed. 957a. Private buildings; lease to the United States, consideration.-Hereafter no appropriation shall be obligated or expended for the rent of any building or part of a building to be occupied for Government purposes at a rental in excess of the per annum rate of 15 per centum of the fair market value of the rented premises at date of the lease under which the premises are to be occupied by the Government nor for alterations, improvements, and repairs of the rented premises in excess of 25 per centum of the amount of the rent for the first year of the rental term, or for the rental term if less than one year: Provided, That the provisions of this section shall not apply to leases heretofore made, except when renewals thereof are made hereafter, nor to leases of premises in foreign countries for the foreign services of the United States: Provided further, That the provisions of this section as applicable to rentals, shall apply only where the rental to be paid shall exceed $2,000 per annum. Sec. 322, Title III, Part II, act of June 30, 1932 (47 Stat. 412), as amended by sec. 15, Title II, act of Mar. 3, 1933 (47 Stat. 1517); U.S.C. 40: 40a. E 669 Dep fun Eur 961. Same; in the District of Columbia, unauthorized rental by Government prohibited. * * rental of buildings, including not to exceed $900 in the District of Columbia, provided space is not available in Government-owned buildings, Title I, act of Feb. 23, 1931 (46 Stat. 1287), making appropriations for the support of the War Department. * * The second paragraph of this section based on act of Feb. 28, 1929 (45 Stat. 1359), was superseded by the above, which has been repeated in subsequent appropriation acts. 963. Same; zoning. See note to 1635, post. 964. Cemeteries; erection of headstones and preservation of records. * for headstones for unmarked graves of soldiers, sailors, and marines under the acts approved March 3, 1873 (U.S.C., title 24, sec. 279), February 3, 1879 (U.S.C., title 24, sec. 280), March 9, 1906 (34 Stat. p. 56), March 14, 1914 (38 Stat. p. 768), and February 26, 1929 (U.S.C., Supp. III, title 24, sec. 280a), and civilians interred in post cemeteries; * * *. Title II, act of Feb. 23, 1931 (46 Stat. 1302), making appropriations for the support of the War Department. The second paragraph of the original text of this section, based on act of March 9, 1906 (34 Stat. 56), should be omitted as superseded by the third paragraph thereof. The last paragraph of this section, based on act of February 28, 1929 (45 Stat. 1375), making appropriations for the support of the War Department, was superseded by the above provision. By act of February 3, 1931 (46 Stat. 1060), the Secretary of War was authorized to acquire the Confederate Stockade Cemetery, situated on Johnstons Island, Sandusky Bay, Ohio. By act of Apr. 16, 1932 (47 Stat. 87), the Secretary of War was authorized to erect one single-marker marker in the La Fayette, Ga., cemetery, in which are buried fifteen unknown Confederate soldiers, at a cost not exceeding that of fifteen separate markers as now authorized by law. 965. National cemeteries; acquisition of title. Control and administration of most of the national cemeteries in the United States were transferred to the Office of National Parks, Buildings, and Reservations in the Department of the Interior (designated the "National Park Service" by section 1, act of March 2, 1934, 48 Stat. 389, making appropriations for the Interior Department) by Executive Oder No. 6166 of June 10, 1933, as interpreted by Executive Order No. 6228 of July 28, 1933, issued under authority of 888c, ante. 966. Same; appraisal. See note to 965, ante. 967. Same; payment. See note to 965, ante. 969. Same; care and maintenance. See note to 965, ante. 972. Same; porter's lodge. See note to 965, ante. 973. Same; inclosures, headstones, and registers. See note to 965, ante. 979. Foreign cemeteries; American Battle Monuments Commission. “U.S.C. 36: 138” should be added to the citation to the eleventh paragraph of this section. |