124 C. Cls.

COURT OF CLAIMS, RULES OF-Continued

XXV. On a motion to quash a subpoena calling for the
production of documents, the materiality of the
material sought must be determined in each in-
dividual case, not only on the arguments of counsel
but on the pleadings and the pertinent evidence
so far produced. Id.

Witnesses 16.

XXVI. It is held that the circumstances of the instant case
justify issuance of subpoenas duces tecum.

Courts 464 (4).

Id.

XXVII. In the instant case, defendant's motions to quash
are granted with respect to certain items in the
subpoenas under consideration and denied as to
certain other items. Id.

XXVIII. Where it is apparent that the personal appearance
of certain Government officials to whom subpoenas
are directed in the instant case is not essential,
it is directed by the court that, following a reference
to the list of documents, the following statement
be inserted in the several subpoenas: "Provided
that, in lieu of your appearance, you may designate
any other officer or employee under your super-
vision to appear and produce such documents at
the time and place stated." Id.

Courts 464 (4).

XXIX. Rule 5 (a) of the Court of Claims, now in effect,
which supersedes the previous Rule 98 (b), does
not purport to, nor was it ever intended to, extend
the period of the statute of limitations. It is
applicable only to the computation of periods of
time "prescribed or allowed by these rules, by
order of the court, or by order of a commissioner."
The rule has no application to petitions not filed
within the period allowed by law. Harmon, 751.
Courts 461.

DAMAGES, AWARD VACATED.

See Unjust Conviction I, II.

DELAYS.

See Contracts XXVI, XXVII, XXVIII, XXIX, XXX, XXXI,
XXXII.

DELIVERY, PREMIUM FOR.

See Contracts LX, LXI, LXII.

124 C. Cls.

DEPENDENT MOTHER.

See Pay and Allowances XXI, XXII, XXIII.

DISABILITY.

See Pay and Allowances VIII, IX, X, XI, XII, XIII, XIV XV,
XX.

DRAFTEES, TRANSPORTATION OF.

See Contracts LXIII, LXIV, LXV, LXVI, LXVII, LXVIII,
LXIX, LXX, LXXI.

ECONOMIC DURESS.

See Contracts XLI.

EMINENT DOMAIN.

I. In a suit for just compensation for the temporary
taking by the Government of a part of plaintiff's
leasehold of certain properties on the Cooper
River, near Charleston, South Carolina, where
the Government, which formerly owned the
property, asserts that by the terms of the statute
authorizing the conveyance of the land to the
plaintiff's lessor, and the deed made pursuant to
the statute, it had the right, in the circumstances,
to take back the property without the payment
of compensation; it is held that the plaintiff is
entitled to recover. West Virginia Pulp and
Paper Co., 292.

II. The property in suit was in 1936 conveyed by the
United States to the City of Charleston pursuant
to and in accordance with the provisions of the
Act of May 27, 1936 (49 Stat. 1387), and was
thereafter leased by the City to the plaintiff
corporation for 50 years, with right of renewal for
an additional 50 years, and was to be used for
industrial development on terms advantageous to
the City. The legislative history of the 1936 Act
shows that it was the intention of Congress that
the City should not transfer the title to the prop-
erty but Congress, in the adoption of the conference
report, specifically omitted from the Act a provi-
sion permitting the United States to take back the
property "without cost to the United States," in
the event of a national emergency. It is held that
the intent of Congress, as shown by the legislative
history, was either that Congress intended that
the Government should pay compensation if it
retook the property or that the question whether

124 C. Cls.

EMINENT DOMAIN-Continued

or not the Government should pay compensation
should be decided, presumably by a court, without
being foreclosed by an express statutory provision.
In either event the Government is liable. Id.

United States → 70 (1).

III. Under the lease made by the City of Charleston,
under the Act, the plaintiff became the private
owner of an interest in the property, and the
Constitution gives plaintiff the right to be com-
pensated for the taking of that interest by the
United States. Id.

Eminent Domain 82.

IV. Congress can make its own policy with respect to
restraints on alienation. In the instant case, a
construction of the statute which would have
forbidden leasing would have frustrated the
objective of the legislation. Id.

V. The Government's contention is not sustained that
it took the property in question under a claim
that it had the right to take it without compensa-
tion and that it cannot therefore be judicially
required to compensate the plaintiff, where there
there was nothing in the President's letter, exercis-
ing his statutory authority to take the property
which indicates that the President had any
thought, one way or the other, about the necessity
for paying compensation for the property. Id.
United States

69.

VI. In United States v. Causby, 328 U. S. 256, and United
States v. Dickinson, 331 U. S. 745, the Court
regarded the consent of the United States to be
sued upon claims "founded upon the Constitu-
tion" as independent of circumstances giving rise
to a contract implied in fact. Id.

VII. Where the Government on March 6, 1943, under the
terms of the Act of October 16, 1941 (55 Stat.
742), as amended, requisitioned certain metal
materials belonging to the plaintiffs and then in
storage; it is held, following the opinion in United
States v. Commodities Trading Corp., 339 U. S.

124 C. Cls.

EMINENT DOMAIN-Continued

121, that the Office of Price Administration ceiling
prices are the maximum measure of just com-
pensation for the property requisitioned. In the
instant case, no proof was offered showing special
conditions and hardships which would take the
claim out of the rule laid down in the Commodities
Trading case. Alpirn, 670.

War and National Defense

14.

VIII. Upon the evidence adduced it is held that the clas-
sification of the requisitioned materials as made by
the representatives of the Government was
proper. Id.

War and National Defense 14.

IX. On January 16, 1946, an amended award in the
amount of $44,204 was issued, based on the OPA
maximum ceiling price, of which $21,871.86
remains unpaid, which plaintiffs are entitled to
recover, with interest. Id.

War and National Defense 14.

X. Where it is shown by the evidence that the plaintiffs
were largely responsible for the delay in a final
settlement from March 6, 1943, the date of taking,
until April 11, 1945, the date on which plaintiffs'
proof of claim was filed, it is held that plaintiffs
are entitled to recover interest at 4 percent per
annum only from April 11, 1945, through January
16, 1946. Id.

XI. Where plaintiffs allege that the Government in im-
proving the navigability of the Missouri River
built certain structures and made improvements,
the effect of which was to change the character,
course and rate of flow of the river in such a way
as to cause erosion of plaintiffs' farm land and to
deposit thereon a heavy layer of sand which re-
sulted in permanent destruction of the productivity
of the land; it is held that on the evidence adduced
the plaintiffs are not entitled to recover.
Coates,
806.

XII. From the evidence presented, the court concludes

that the damage to plaintiffs' land and crops as a
result of the height and duration of the destructive

124 C. Cls.

EMINENT DOMAIN-Continued

floods of 1945 and 1947, for which plaintiffs sue,
would have been substantially the same in the
absence of the dikes installed in the river by the
Government. Id.

XIII. To the extent that the floods would have destroyed
the land and crops of plaintiffs in the absence of
the dikes there has been no taking of plaintiffs'
property for which the United States is liable.

Id.

XIV. Plaintiffs' contention that the dikes directly caused
an increase in the velocity of flood waters over
the farm of plaintiffs and resulted in the increase
in the damage to the farm during flood stages,
through additional erosion and sanding, is not
supported by the evidence. Id.

XV. Any finding as to what portion of the damage suffered
from erosion and sanding was attributable solely
to the presence of the dikes in the river would, on
the evidence adduced in the instant case, be highly
speculative and conjectural, and would not support
a judgment for damages. Id.

Eminent Domain 205.

EQUITY INVESTED CAPITAL.

See Taxes XVII, XVIII, XIX, XX, XXI.

ESTOPPEL.

See Taxes XVII, XVIII, XIX, XX, XXI.

EVIDENCE.

See Contracts XLI; Eminent Domain XI, XII, XIII, XIV, XV;
Indian Claims Commission XVI, XVII, XVIII; Patents XV,
XVI, XVII, XVIII.

"EXISTING LAW", MEANING OF.

See Annual Leave, Cash Value of, VI.

FAIR MARKET VALUE.

See Taxes XIX, XX.

FEDERAL EMPLOYEES COMPENSATION ACT.

See Jurisdiction I, II.

FIRE FIGHTING TECHNIQUE.

See Patents IV, V, VI, VII, VIII, IX.