Opinion of the Court 107 C. Cls. Plaintiff's line was being placed on the market in sections, not as a whole. Its value as a whole had apparently disappeared before the time of requisition. In fact the plaintiff had taken the legal preliminary steps necessary to its abandonment. This fact must be and is taken into consideration. The remainder of the road, 43 miles (excluding the two segments referred to immediately above and those returned by wash sales), had no fair market value as track in place, in which condition the taking was effected, beyond that of a salvage value of $180,155.81 (Finding 25). There were certain outstanding taxes for the years 1932 to 1937, inclusive, imposed by the Counties of Harvey, Reno and Sedgwick, that constituted a lien on plaintiff's railroad. These three counties had by contract with the plaintiff agreed to remit these taxes provided the plaintiff would continue to operate its line, except for yearly payments of $100 to each of the counties during the years of operation. By this agreement it is obvious that plaintiff was given a substantial inducement to continue operation and it had planned to do so to the end of October 1942, three and a half months after the date of requisition July 16, 1942. When the defendant stepped in and took the railroad the plaintiff was thereby prevented from realizing on this inducement, the counties demanded their taxes, and the defendant paid them in the aggregate amount of $54,817.02. It appears by the facts found that if plaintiff had continued to operate to the end of October 1942, instead of paying county taxes for the year 1934 in the sum of $17,071.40, it would have had to pay $300 only, a difference of $16,771.40. That is to say, if the requisition had been made November 1, 1942, the defendant for the year 1934 would have had to pay $300 only, not $17,071.40 and that payment having been included in the award to the counties and decreased the payment to plaintiff by that much, the plaintiff lost the difference of $16,771.40. In determining the amount of just compensation that should have been paid in the first instance we use as a basis fair market values. The recovery is the excess of this over the payments made by the defendant, with an appropriate 240 Opinion of the Court percentage of increase at an interest rate for the period that just compensation was withheld. In its briefs the plaintiff seeks still further to increase this by $16,771.40. The possible loss of $16,771.40 is not claimed specifically in the petition. The plaintiff sues only for just compensation, and if this item is recoverable it must be because it is a part of just compensation. Just compensation for a taking is to be determined as of the date of taking. The taking here was July 16, 1942. Only if the taking had been the first of November following, or later, would the counties have remitted the sum of $16,771.40. But in assessing values we are confined to the date of taking, United States v. Miller, 317 U. S. 369. Both condemnor and condemnee are subject to the advantages and disadvantages that the particular date of taking may bring. If the earlier date had been of advantage to the plaintiff and of disadvantage to the defendant, the defendant could not complain. We think here the plaintiff has no case in respect to a possible loss of $16,771.40, which was founded upon the possibility of a future event which in fact never took place. The loss was of a contingent nature, McGovern v. New York, 229 U. S. 363, at best amounted to a frustration and was consequential, U. S. ex rel. T. V. A. v. Powelson, 319 U. S. 266. There is a doubt also whether by continuance of operation plaintiff would have fully realized $16,771.40. If it was operating at a loss, as appears to be the case, it would have cost the plaintiff something to earn the saving of $16,771.40. To make recovery sufficient to comply with the concept of just compensation the plaintiff claims an interest rate of six percent per annum, as the legal rate of interest in the State of Kansas. But there is no statute or rule fixing any particular rate to be allowed. Since the determination of just compensation under the Fifth Amendment is exclusively a judicial function, it is for the Court to fix upon the rate that it will allow. For some time this Court has, in view of low prevailing rates of interest, limited this rate to four percent. A uniform rate does in fact avoid discrimination among litigants. Add 4% per annum on $222,527.99 July 16, 1942, to July 26, 1943- Total due plaintiff July 26, 1943----. 1 Finding 25. 277, 345. 01 54, 817.02 222, 527.99 54, 784. 76 167, 743.23 9, 140. 40 176, 883. 63 * Finding 5. The plaintiff is accordingly entitled to recover $176,883.63 and four percent per annum on $167,743.23 from July 26, 1943, down to the date of payment of judgment, all as just compensation. Judgment will be entered accordingly. It is so ordered. JONES, Judge; and LITTLETON, Judge, concur. WHITAKER, Judge, dissenting: I think plaintiff is entitled to no more than the value of the metals taken by the defendant. Its effort to support an "in-place" value for any part of its railroad leaves me unconvinced. It had filed with the Interstate Commerce Commission an application to abandon its entire line. That application was granted on the condition that any portion of its line should be sold to any person desiring to operate it "at a price not less than the fair net salvage value thereof." It was negotiating with the Hutchinson and Northern Railway Company for the sale of 13 miles of it, and with the Kansas Gas 240 Opinion of the Court & Electric Company for the sale of 5 miles of it, but the transactions never got beyond the negotiation stage. Whether either of these two prospective purchasers would have agreed to pay more than the "net salvage value" is doubtful. After the metals had been requisitioned by the Government, the Government released therefrom 14 miles of track over which the Hutchinson and Northern Railway had been operating under lease from plaintiff. So far as appears, neither the Hutchinson and Northern Railway Company nor plaintiff sought to have the other 13 miles released from the requisition. Had the Hutchinson and Northern Railway Company been really interested in these 13 miles it would seem that an effort would have been made to have had them released from the requisition at the same time the 14 miles were released. The testimony shows that the Kansas Gas & Electric Company was interested in the purchase of the other 5 miles and had discussed with plaintiff its purchase, but they had never gotten so far as to discuss prices. I do not think the evidence supports a value higher than the net salvage value. I agree that plaintiff is not justly compensated by payment of the Office of Price Administration ceiling price for the materials requisitioned. That price was below the market for the rails at the time the price was fixed. Plaintiff is entitled to no less than the market value at that time, since it appears that, except for the restrictions imposed, the plaintiff could have gotten for its rails much more than the ceiling price fixed by the Office of Price Administration. Even so, I think the judgment granted is substantially more than plaintiff is entitled to, and for this reason I dissent. MADDEN, Judge, dissenting: I agree with what Judge Whitaker has written with regard to the awarding of an "in place" value for two sections of the railroad. I do not agree with that part of the decision of the Court which awards compensation to the plaintiff computed at prices which could not have been lawfully asked or paid 736172-47-vol. 107- -19 Opinion of the Court 107 C. Cls. in a sale of the property at the time of the Government's requisition. This case does not involve any necessity on the part of the plaintiff to replace the property taken, which was the equitable basis on which this Court's decision in the case of John J. Felin and Co. Inc., v. United States, 107 C. Cls. 155, rested. Here the plaintiff had made applications to the Interstate Commerce Commission and to the Corporation Commission of Kansas for permission to abandon its railroad lines and operations and services. Its intention, according to the testimony of its vice president was "to scrap what parts we could not sell." The Government's requisition took the metal materials, thus destined for scrapping, for Government purposes. There is no question here of the classification of the materials except for a small number of turn-outs and crossings. As to the rest they were classified as re-usable second-hand rails and track appurtenances. If the plaintiff had, as it intended, offered them in the market for private purchase, it would have had to sell them at the legal price, i. e., the price fixed by the Office of Price Administration. The Government needed them for its proper activities, and requisitioned them, as it had the legal right to do. The Court holds that the Government, in order to satisfy its constitutional obligation to make just compensation, must pay more than its valid law would have permitted anyone else to pay. And the evidence on which the higher price is based is that, before the price was put under control, the higher price had prevailed, and that, in the opinion of an expert, when the price control should have been removed, the higher price would, again, prevail. This evidence does not seem to me to be helpful. Pecuniary values are the product of many factors, and, particularly in wartime, some of the most important factors are the actions of the Government. Embargoes, production quotas, priorities, and subsidies have their effects. And direct price controls have more direct effects. But all these factors are actual, and lawful, and, I think, should not be disregarded by resort to a hypothetical situation in which they do not exist. Besides, I think it is inequitable and |