(271 F.) wanted the sale to go through, even if it had to pay the commissions originally offered, and it also wanted in that event to reduce the measure of its liability. In short, we regard this letter to plaintiffs as nothing more than a request that they forego their claim to half the excess above $10 an acre, because of the considerable period of time over which Woodbury's payments were extended. It was not put forward as a condition, and cannot be held to annul or modify the December agree ment. Moreover, taking the whole correspondence into account, we think that defendant should be deemed to have acquiesced in plaintiffs' refusal to accept 5 per cent. commissions. They immediately answered the letter to them, stating the opinion that they should be satisfied with the compensation, with a firm insistence that the December contract should be carried out, and saying at the close of their letter: "We would thank you to advise us on receipt of this letter if you will still agree on your terms of commission as set out in your December letter, which terms have never been countermanded, and, in doing so, help us to encourage, rather than discourage, this Woodbury sale and any other sales we might make for you." To this defendant made no reply until some time after Woodbury had agreed in writing to take the property and defendant had been so advised, which was about the 8th of September. In our judgment it was then too late for it to claim that the contract with plaintiffs was not binding. Its continued silence, while doubt remained as to what Woodbury would do, should charge it with acquiescence in plaintiffs' contention. It follows, from the views thus briefly stated, that no defense to the suit was established, and the trial court was therefore right in directing a verdict for plaintiffs. Affirmed. UNITED STATES v. BOSTON, C. C. & N. Y. CANAL CO. et al. No. 1485. 1. Eminent domain 202 (1)-In suit for condemnation of canal, evidence of cost of reproduction admissible. In a suit by the United States for condemnation of a canal, evidence of the value of the land included on the right of way at the time of commencement of the suit, assuming that the canal had not been built, held admissible as bearing on the cost of reproduction. 2. Eminent domain 202 (1) -Evidence as to earning capacity of canal not competent. In a suit for condemnation of a canal, evidence of a proposed contract with a steamship company respecting tolls, as bearing on the potential value of the property, held not competent, where the contract was not executed. 3. Evidence evidence. 486-Future earnings of canal not proper subject of opinion In a suit by the United States for condemnation of a canal used for interstate traffic, the probable future towage of the canal and the addiFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes tional revenue to be derived, in view of such increased tonnage, held not a proper subject of opinion evidence. 4. Eminent domain ~202 (1)—Evidence of cost of reproduction under abnormal conditions not admissible. In a suit by the United States for condemnation of a canal, evidence of the cost of reproduction at the time of commencement of the suit, when, owing to war conditions, such cost was abnormally increased, held not admissible as an element of value to be considered, unless reproduction at such enhanced cost would be a reasonable commercial investment, a fact to be either determined by the court as a preliminary or submitted to and found by the jury. 5. Eminent domain 134-Peculiar value of property to party asking condemnation not element of market value. In ascertaining the market value of property taken in a condemnation proceeding, the utility or availability of the property for the special purpose of the taker cannot be shown, if the taker is the only party who can use it for that purpose. 6. Eminent domain 262 (5)—Error in admission of evidence not cured by instruction. In a suit by the United States for condemnation of a canal, the admission, on the issue as to the value of the property, of the testimony of high officers of the army and navy that the property was of great value, andeven necessary for military and naval purposes and for national defense, held error, and where the testimony was not withdrawn, and such facts were argued at length to the jury as enhancing the value of the property, the error held not cured by a brief instruction that its peculiar value to ne government for such purposes should not be considered. 7. Eminent domain 126 (1)—Elements entering into valuation of public utility; "going value." In ascertaining the fair value of a public utility in a proceeding for its condemnation, apart from its franchise, consideration is to be given to the value of its physical property, including preliminary and overhead costs necessary to prepare the plant for service, and also to the sums actually and fairly expended in creating the business and revenue of the enterprise, or what is generally known as the "going value" of the concern, provided the business has been profitable or there is a reasonable probability of its becoming so. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Going Value.] 8. Eminent domain 202 (1)-Elements entering into valuation of property. In ascertaining the value of a canal in a proceeding for its condemnation, evidence of the amount of stock and bonds of the canal company paid for rights, franchises, and services, largely by the construction company, to which they were issued under its contract, and including a payment made for organizing a syndicate for floating the bonds, held improperly received, especially where there was no evidence of the actual market value of the stock and bonds so used, or to show what items of the total expenditure were proper items of construction costs. 9. Eminent domain ~241-Suit for condemnation of Cape Cod Canal; form of judgment. In a suit by the United States for condemnation of the Cape Cod Canal under Act Aug. 8, 1917, the court held, under the pleadings and verdict, without authority to enter any judgment, except the conditional judgment provided for by the statute. In Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Judge. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (271 F.) Petition for condemnation by the United States against the Boston, Cape Cod & New York Canal Company and others. From the judgment, the United States brings error. Judgment vacated, and cause remanded. Nathan Matthews, of Boston, Mass. (Francis G. Goodale and Daniel J. Gallagher, both of Boston, Mass., and A. Mitchell Palmer, of Washington, D. C., on the brief), for the United States. Sherman L. Whipple, of Boston, Mass. (Frederic B. Greenhalge, of Boston, Mass., Garrard Glen, of New York City, and Currier & Young, of Boston, Mass., on the brief), for defendants in error. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. BINGHAM, Circuit Judge. This proceeding was begun April 1, 1919, in the District Court for Massachusetts under the Act of August 1, 1888 (25 Stat. at Large, 357 [Comp. St. §§ 6909, 6910]), and the River and Harbor Act of August 8, 1917 (40 Stat. at Large, 250), for the condemnation of certain land and appurtenances constituting the Cape Cod Canal. In the petition the terms of the Act of August 8, 1917, are set forth, the government's compliance with the same, a description of the premises sought to be condemned, and an assertion, on information, that the only parties interested in the property are the Boston, Cape Cod & New York Canal Company and the Old Colony Trust Company, and, after requesting a determination of the value of the property by a jury, it prays that upon proof to the court that the amount of the verdict has been paid or tendered by the United States to the persons entitled, or upon the payment of the same into court, a decree be entered that the fee of the land and appurtenances shall thereupon be vested in the United States. May 14, 1919, the Canal Company filed its answer, alleging that it was the sole owner of the property described in the petition and requested full compensation therefor. May 22, 1919, the Old Colony Trust Company filed its answer setting up a mortgage on the property dated January 1, 1910, for the sum of $6,000,000 and asking that its rights be protected and compensation paid to it on the amount of its interest in the property to be taken. In October and November, 1919, trial was had before a jury. On the question being raised as to the title of the Canal Company it was stipulated, on the 18th of November, 1919, that the only issues to be submitted to the jury should be (1) the value of the property and franchise sought to be condemned, and (2) the amount fairly and reasonably chargeable to the Canal Company on account of dredging and other work done by the United States while the canal was in the control of the United States Railroad Administration, so far as it did not relate to current maintenance. November 18, 1919, a verdict was returned as follows: "The jury find that on April 1, 1919, the date of the filing of the petition for condemnation, the Boston, Cape Cod & New York Canal Company was the owner in fee simple of the property and franchise sought to be condemned, and that on said date the value of the property and franchise, estimating the same as an entire estate and as if it were the sole property of one owner in Iee simple, was the sum of sixteen million eight hundred and one thousand two hundred and one and eleven-hundredths ($16,801,201.11) dollars." At the same time the jury rendered a special verdict, in which they found that the amount reasonably chargeable to the Canal Company on account of the dredging above referred to was $150,000, which, under the stipulation, was to go in reduction of the general verdict. On the 31st of August, 1920, a judgment of condemnation was entered as of August 3, 1920. The judgment recites the giving of notice, describes the property sought to be condemned, and refers to the appearances of the Canal Company and the Old Colony Trust Company, and to the assertions of title in their respective answers; also to the appearances of certain other parties, to the agreement as to the issues to be tried by the jury, and to the verdicts of the jury, general and special. It then adjudged that on the 1st of April, 1919, the Canal Company was, "except for the rights which the United States_may have acquired therein and the rights of the claimant, Old Colony Trust Company, as trustee, sole owner in fee simple of the land, interest, appurtenances and other property hereinbefore described; that the value of the same on that date was $16,801,201.11; that the amount fairly and reasonably chargeable to the Canal Company on account of dredging, etc., was the sum of $150,000; "and that, of said resultant sum of $16,651,201.11, if paid, the Boston, Cape Cod & New York Canal Company shall receive $10,076,701.11, and the Old Colony Trust Company, trustee, shall receive $6,574,500." It was further ordered that, upon payment into the registry of the court by the United States within a reasonable time after the date of the decree of the sum of $16,651,201.11, "the fee to said land hereinbefore described and to all rights, etc., * * therein, if not already so vested, shall vest in the United States of America, to have, hold, possess, and enjoy for its use forever; but, if within a reasonable time said sum is not paid into the registry of the court, such further order may be made in this proceeding for dismissal or otherwise as justice may require, and the Boston, Cape Cod & New York Canal Company and the Old Colony Trust Company, trustee, and each or either of them, may pursue in such form and in such court as they or it may be advised their or its remedy or remedies against the United States upon the claim of ownership by the United States of said canal and its appurtenances, as set forth in the Canal Company's said petition for judgment, without prejudice by this decree except so far as said claim shall, if at all, have become res judicata by this proceeding." It appeared in the case that, pursuant to the proclamation of the President of July 18, 1918, the control of the canal was taken over by the United States on July 25, 1918, as a war measure; that the gov ernment was in possession and control of the canal at the time the petition for condemnation was filed and the trial was had, and remained in such control down to March 1, 1920, when it was turned back to the Canal Company. March 1, 1920, the Canal Company filed in the District Court a document entitled "Petition for Entry of Judgment," in which it set out (271 F.) that on the 25th of July, 1918, the President, through the Secretary of War, took possession of the canal pursuant to the authority conferred by section 1 of the Act of Congress of August 29, 1916 (Comp. St. § 1974a). It alleged that neither the proclamation nor the act contained any provision for the return of the property or limited the power of the President to take and acquire less than the whole property or required the President to take only the use thereof for a limited time; that since July 25, 1918, the canal and its appurtenant property had remained continuously in the possession and under the control of the Director General of Railroads and had been completely and exclusively sequestered for public uses; that prior to the date of the taking by the President on July 25, 1918, to wit, on August 8, 1917, Congress enacted legislation which authorized the condemnation proceedings; and that, at the time when the canal was taken by the President, proceedings had already been instituted under the Act of August 8, 1917; that the engineers had made their report, the Secretaries named had considered the report and recommended that the canal be acquired by the government, and the Secretary of War had undertaken negotiations with its owner for the purchase of the canal, which negotiations had failed, and the Secretary of War had caused the Attorney General to file the condemnation proceedings. It was further alleged that the act of Congress under which the President had taken over the canal contained no provision for procedure for the recovery of the value by the owner; that therefore there arose on the part of the government an implied obligation to pay the fair value thereof; that the "petition for condemnation had and could have no other object except the single one of having determined by a jury at the bar of this honorable court the fair value of said canal and its appurtenant property and just compensation to be paid to the former owner thereof by the gov ernment. After setting out other matters unnecessary to relate, it prayed that judgment be entered "either that the United States shall pay to your petitioner as compensation for its canal and appurtenant property taken as heretofore set forth and applied to public uses, the amount of the verdict heretofore found by the jury and accepted by the court, or in such other form as upon hearing of the facts this honorable court shall deem proper and appropriate." In other words, the Canal Company by its petition, sought to obtain an absolute judgment for a fixed sum rather than a conditional one as called for by the act of 1917, and this is the petition which is referred to in the judgment that was entered. From the judgment of August 31, 1920, the government prosecuted this writ of error. In its assignments of error it complains that the court erred (1) in the admission of evidence; (2) in its charge to the jury; (3) in its refusal to grant certain requests for instructions; and (4) in the substance and form of the decree entered. The Canal Company was incorporated June 1, 1899 (Stat. Mass. 1899, c. 448). By the charter it was authorized to build and operate a canal across a strip of land on Cape Cod lying in Sandwich and Bourne and extending a distance of some 8 miles. The charter depth of the canal was to be 25 feet at mean low water, and its width at 271 F.-56 |