United States v. Dow

PETITIONER:United States
RESPONDENT:Dow
LOCATION:Shotwell Manufacturing Co.

DOCKET NO.: 102
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 357 US 17 (1958)
ARGUED: Mar 05, 1958
DECIDED: Jun 09, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – March 05, 1958 in United States v. Dow

Earl Warren:

Number 102, United States of America (Inaudible) C.M.Dow.

Mr. Morton, you may precede.

Perry W. Morton:

Mr. Chief Justice and may it please the Court.

This is a condemnation case.

The central and we think the determinative issue is, “When did the taking occur?

Did it occur as the Government insists?

When the United States took actual physical possession shortly after the filing of the case under an order of possession entered by the Court, or did it occur as the respondent contends?

When a declaration of taking was filed with the payment they deposit, approximately three years later.

The controversy which presents this basic issue here for a review arises because the respondent is an intermediate purchaser of the land through which ran the perpetual pipe-line easement taken by the Government and the case thus, involves an application of the familiar Anti-Assignment Act.

The facts which are not materially in dispute maybe briefly summarized as follows, the case started in March of 1943 when the United States filed its petition to require a perpetual right-of-way or a pipe line or petroleum products over certain lands in Harris County, Texas.

The property interest involved in the case is this perpetual easement confined to a strip, 33 feet wide, containing about 2.7 acres across a part of a 617-acre farm which then belonged to the respondent’s predecessors entitled.

An order of possession was made by the Court the same day, and within 10 days thereafter, the Government’s contractor, exercising the easement, went into actual possession and started the construction of the pipe line which was completed and which has been in use ever since sometime in 1943.

Now, somewhat over two years thereafter, by — by now it is November 1945, the 617-acre farm was sold to the respondent, Dow, for a consideration of over $200,000.

I must ask your indulgence because of the condition of my throat.

The deed to Dow accepted certain other easements and then it recited, “And also except us to the right-of-way easements and the condemnation proceedings here and after mentioned.”

The deed later states that it is expressly agreed that it is “subject to the existence of the following easement and proceedings.”

And item D of the list which follows is a specific identification of the condemnation case according to its caption in the District Court stage by reference to the list pendance record.

In May of 1946, and I think this is now about seven months after the transfer, the Government filed a declaration of taking under the Act of 1931.

An estimated compensation was deposited therewith and a judgment was entered confirming those actions.

Five months after that and now it is October 1946, an amendment to the petition was made to name additional parties defendant for the first time including Dow.

When?

Perry W. Morton:

In November of 1948.

The parties, who were the parties in the original?

Perry W. Morton:

They were designated as, I think, a party by the name of Bute and some other party, both of them had died and their interest were dropped in later.

The original owners of the land?

Perry W. Morton:

They were the predecessors entitled of the respondent.

In November of 1948, the commissioners appointed under the old Texas practice before the federal rules to determine the compensation, made an award of $4450 for the easement involved in this case after a hearing at which Dow appeared, presented evidence of value.

No notice had been served at that time upon Dow’s grantors and they did not appeal.

In October of 1949, the Government moved to set aside the award upon the ground that Dow had no interest in the land at the time the Government took possession in 1943.

And therefore, Dow was not entitled to receive the compensation.

Perry W. Morton:

This motion was dropped from the motion calendar without prejudice to the Government’s right to bring it on for hearing at a later date.

It was not, I may say, withdrawn as to certify the respondent.

In 1955, this is now quite sometime later, this motion was renewed in connection with the Government’s motion for a summary judgment, dismissing Dow as a defendant.

And this later motion was granted by the District Court in March of 1956.

What was the reason for all that delay?

Perry W. Morton:

Mr. Justice Harlan, I cannot answer for matters which I am not personally acquainted with, the — I think the record will show it has moved reasonably promptly since it has come to my attention.

I don’t know what took place before.

I can say many reasons for a delay or a time emergency and things of that sort.

Delay itself however is not a factor in the issue involved here and I believe that it has the argument developed so you will see that both the Government has what its set out to take and the parties are amply protected by the accrual of interest upon the compensation which will contemplate the award.

Well, have I answered your question, sir?

The Court shortly after this ordered granting the summary judgment against Dow and dismissing him, made another order setting aside the Commissioner’s award and permitting Dow’s grantors to withdraw a disclaimer which they had previously filed, and permitted Dow’s grantors to pursue further proceedings which the Court directed be had under Rule 71A.

Any progress in that direction has however been precluded by Dow’s appeal to the Court of Appeals, the decision of which Court favorable to Dow.

You have brought here for a review upon the Government’s petition.

Well now, I should like to summarize very briefly and by headline only at this point the points which I shall hope to reach as the argument develops.

First, this taking was accomplished within the meaning of the Fifth Amendment when the United States physically took possession and built the pipe line in 1943.

And it was at that moment that the claim to compensation for this easement arose and vested in those who were the grantors of the — who were the owners of the property at that time.

The basic principles of eminent domain are absolutely the same whether the federal power is exercised by means of physical seizure or condemnation proceedings or a combination of both or otherwise.

Physical seizure gives rise to the claim for compensation whether the amount is determined in condemnation proceedings initiated by the Government as here or in proceedings brought by the owner under the Tucker Act.

The second point will be that the filing of the declaration of taking three years after the possession had been taken.

Did not destroy the existing claim, it did not divest that which had already vested.

It did not change the nature of the situation at all, so far as this controversy is concerned.

Thirdly, the rules here advocated by the Government have consequences far beyond with the boundaries of this particular case.

And our only — the rules which can produce fair results to the United States and to the landowners with whom it has to deal in the administration of its very considerable land acquisition programs.

Now, I wish to return and develop my first point.

It seems to me that much of the confusion of the Court of Appeals was due to the failure to distinguish between a taking and a passage of title.

And this confusion has all wrapped up inside of it, a failure to distinguish between the Fifth Amendment to the Constitution of the United States on the one hand and corresponding but different provisions of the constitutions of many of the States including Texas.

The power of eminent domain does not rest upon any expressed constitutional grant but rather as a basic attribute of sovereignty.

The Fifth Amendment merely limits the exercise of that problem to the extent that it requires the payment of just compensation.

However, it does not require as many state constitutions require that the compensation be paid in advance or contemporaneously with the taking.

And so, when the Federal Government physically occupies property in connection with unauthorized project or program, its action is a taking and it is not a tort or a trespass.

Perry W. Morton:

If the Government has not initiated its own condemnation proceedings as it did here in which the compensation may ultimately be determined, the sooner the better it will suit me.

The landowner nevertheless has his adequate remedy to obtain compensation for the taking by bringing his own case against the Government under the Tucker Act.

And consequently, unauthorized taking cannot be prevented by injunction nor can trespass damages be recovered against the Government, its officers or its agents.

Now, differing very much from this are the constitutions of the so-called first-pay states such as Texas —

Earl Warren:

So-called what?

So —

Perry W. Morton:

First pay.

Earl Warren:

Oh yes.

Yes.

Perry W. Morton:

Those First Pay constitutions mean in effect that the state power of eminent domain or in the case of its subdivisions or utilities, the state-given power of eminent domain can be exercised only through the medium of condemnation proceedings.

Indeed, under such constitutions, there could be no such thing as the Tucker Act and any physical seizure of or damage to property prior to the payment of compensation or in some States, prior to the giving of the security for payment, constitutes a trespass, a tort and not a taking.

Charles E. Whittaker:

No such statute is involved here?

Perry W. Morton:

No, absolutely not.

Now, I interrupt myself —

Felix Frankfurter:

(Voice Overlap) —

Perry W. Morton:

Pardon me, Mr. Justice.

Felix Frankfurter:

I’m not familiar with the constitutional provisions to which you refer.

Perry W. Morton:

Well —

Felix Frankfurter:

But did I — did I hear you indicate or state that whether the constitutional provision such as you’ve indicated that it is that provision which gives the power of eminent domain and without it —

Perry W. Morton:

No.

Felix Frankfurter:

— the State wouldn’t have it?

Perry W. Morton:

No, the state has it.

I — I hope I had made that clear, Mr. Justice, that it is an inherent power sovereignty.

Felix Frankfurter:

What is it?

Perry W. Morton:

It is a matter of political necessity.

It has existed from time immemorial.

The question is —

Felix Frankfurter:

You say that —

Perry W. Morton:

— how does the Constitution limit upon the State that exercises that power by requiring the payment of compensation in advance of a taking or contemporaneously.

Felix Frankfurter:

And you think that makes a difference as to the —

Perry W. Morton:

It makes a —

Felix Frankfurter:

— consequences of the exercise to that power?

Perry W. Morton:

It makes a — decide a difference in — in the question of when the claim arises because of a taking which is the material with which his case deals.

Charles E. Whittaker:

(Inaudible)

Perry W. Morton:

Pardon me, Mr. Justice?

Charles E. Whittaker:

(Inaudible)

Perry W. Morton:

Well, I hope that we can arrive at that point very soon, Mr. Justice.

We’re interested in it because if the claim existed in the respondent’s grantors, it couldn’t — it couldn’t be transplanted somehow to somebody else later on without some operation of an assignment which would constitute a violation of the Anti-Assignment Act.

That is our point.

Felix Frankfurter:

But does a provision either in a contract or a statute which fixes the time of payment necessarily mean that an — that an obligation doesn’t arise before that?

I don’t see why logically that follows.

By what principles of policy do that follows?

Perry W. Morton:

Well, there is a considerable body of law under the first-pay constitutions of the States, Mr. Justice, which call everything that takes place before payment.

Felix Frankfurter:

They trespass do they?

Perry W. Morton:

They trespass, yes, and not a taking.

Felix Frankfurter:

What — why — what — what kind of question is involved in —

Perry W. Morton:

Because the taking is —

Felix Frankfurter:

— if ever you stated.

I — it doesn’t seem to me self-evident proposition that that should be so.

I wonder if it is in relation to some questions that are not relevant to this case.

Why should it be a trespass?

Because the statutes says you must pay when you take and you don’t pay — suppose you don’t pay and suppose the — the grantor — well, the state of New York or wherever it is, Wyoming or whatnot, is a good — good debtor and not — doesn’t bother about it until you actually pay as trespass?

Is that what you (Voice Overlap) —

Perry W. Morton:

Until you actually pay.

It is a trespass or some of the constitutions as I think I remembered to mention, provide for the giving of security for payment to be deposited in Court.

Felix Frankfurter:

I just think that’s a fiscal arrangement, this doesn’t necessarily determine what the rights that you speak of.

Perry W. Morton:

Mr. Justice, if you start with the premise that I think your first question involved that the power exists as an inherent power.

And imagine that as existing to all of its full consequences subject to such provisions as the people by their constitutions have provided it shall be limited by.

Then those words of limitation become extremely important in determining whether there has been a taking or what the legal consequence of some physical act of a governmental body or subdivisions is.

Felix Frankfurter:

Well, we can understand that.

Felix Frankfurter:

That’s a limitation upon those who exercises sovereign power.

Perry W. Morton:

That’s right.

Felix Frankfurter:

Remember that time they’re acting out of irony throughout.

Perry W. Morton:

Yes, Sir.

Felix Frankfurter:

Now, in the case of United States, what is the usual procedure about putting up the money or getting the money into court?

Perry W. Morton:

Well —

Felix Frankfurter:

What determines when you do it?

Perry W. Morton:

I can answer that as Assistant Attorney General outside this record.

Felix Frankfurter:

Yes.

Well, under general procedure.

Perry W. Morton:

I would say that’s in probably 80% of our 28,000 such matters.

We eventually file a declaration of taking which involves the deposit of the money as a condition of compliance with the Act of 1931 which gives rise to this procedure.

That procedure however as I will come to at the later section is not an independent procedure, it is an ancillary procedure, they’re must already be pending or filed at that same moment, a condemnation case.

The declaration of taking is not a case, it is a proceeding within a case.

And under — until that provision of law, 1931, say for various earlier piecemeal provisions about authority to take possession and things of that sort by — such as the First and Second War Powers Acts, Labor Act and Flood Control provisions.

The — the real monuments of our condemnation settlement are the Act of 1888 as amended in something like that, and this 1931 Act, the Declaration of Taking Act.

I’d like to deal with that a little later on somewhat more elaborately.

Hugo L. Black:

May I ask you one question?

Perry W. Morton:

Certainly.

Hugo L. Black:

Your provisions was that — when does interest begin to run in connection with the Government, (Inaudible) the Government?

Perry W. Morton:

The Seaboard case of course is the landmark on that taking, starts to carry interest from the moment of the taking.

Hugo L. Black:

You mean from the moment —

Perry W. Morton:

That will be one of my points, Your Honor.

Hugo L. Black:

The moment they take possession?

Perry W. Morton:

From the moment that there has been such a taking as possession represents whatever, there’s sometimes a fuzzy feel as to whether there has been a taking.

Hugo L. Black:

If a suit is filed under the Tucker Act —

Perry W. Morton:

Yes, sir.

Hugo L. Black:

— after it’s found that the Government would have possession at a certain time but when does interest begin?

Perry W. Morton:

I should — should qualify my categorical answer about using the word “Interest”.

I think the rule is that the best major we’ve been able to figure out sort — so far is interest.

Perry W. Morton:

But actually, it is a part of just compensation —

Hugo L. Black:

Or whatever it is.

Perry W. Morton:

— for which interest is the major —

Hugo L. Black:

When does it begin?

Perry W. Morton:

— generally accepted.

Hugo L. Black:

When does it began and it took place —

Perry W. Morton:

At the time of the taking whenever the taking is complete.

Hugo L. Black:

At the time it took possession.

Perry W. Morton:

The time — under the Tucker Act, it is the accomplished possession which is the taking.

Earl Warren:

And in this case, I understand the — the condemnation action was filed one day and approximately the next day, the contact into possession —

Perry W. Morton:

Within 10 days, the record shows.

Earl Warren:

Yes, and the interest would start to run from that time.

Perry W. Morton:

That is our contention.

Earl Warren:

Yes.

Perry W. Morton:

I think that will show you some very peculiar consequences of this case —

Earl Warren:

Yes.

Perry W. Morton:

— before we finish right in that connection.

Felix Frankfurter:

One of them is I think indicated by a remark, sometime this fuzzy feel whether there was a taking.

Perry W. Morton:

That reminds you of Dickinson.

Felix Frankfurter:

Yes, I — I thought in mind because there’s not any problem.

Perry W. Morton:

Well, I think I was indicating what I conceive to be and what I believe you will find to be, a very substantial difference between the Fifth Amendment and the constitutions of these first-pay States.

Now, right at that point, I wanted to interrupt myself long enough to say in that connection that it is this very basic point which completely distinguishes all of the state court cases referred to on page 8 of the respondent ‘s brief just —

Charles E. Whittaker:

What is the point whether or not the States concede (Inaudible)

Perry W. Morton:

That is one of them.

It is one of them, although the point is much more substantive than that, yes.

All of those cases came from first-pay states.

In the two Texas cases for example, the railroad companies which had gone into possession were considered as trespassers, it plainly says so.

And in all of the other six cases cited by the respondent under that subdivision of its brief — of his brief, contrary to the indication of the sentence which precedes the citations which indicates that possession had been taken.

An examination of the facts as stated in the opinions will show that the possession had not been taken, so there are two reasons.

First, they were first-pay States and secondly, possession hadn’t been taken anyway so what of it?

Perry W. Morton:

Now, it is true of course that there are many cases in which there is the threshold question whether in fact a taking has occurred, and also many cases even some condemnation cases as well as Tucker Act cases in which the Court as a matter of fact, may have to determine whether that has been not only a taking but the duration or the extent of it.

I hasten to say that this case is not plagued with those questions because the United States unquestionably as a physical fact did take the perpetual easement involved in the case.

But I mentioned these fuzzy cases only for the purpose of making the distinction and focusing attention upon the definiteness of what has taken place here.

Felix Frankfurter:

Why — why was the declaration — why is — is the declaration of taking postponed, not merely — not in this particular case, but generally, why — what is the point of it?

What —

Perry W. Morton:

There are —

Felix Frankfurter:

— maneuvering has left to the United States —

Perry W. Morton:

There —

Felix Frankfurter:

— between physical taking and a declaration of taking.

Perry W. Morton:

It is — I — I hope I have not taken the wrong implication of your word “maneuver”.

Felix Frankfurter:

Well, I — I have to — I didn’t mean it to have any.

What was —

Perry W. Morton:

Yes.

Well, we —

Felix Frankfurter:

Certainly not —

Perry W. Morton:

— have a great many reasons, Mr. Justice.

In the first place, many times a project area will be announced and one of the important things is to settle the project limits to avoid trafficking in land.

So we will file on rather incomplete title evidence a case which at least describes the area to fix the limits of the project.

It take sometimes a great time than in some places longer than others to assemble the accurate title evidence which is absolutely essential to the preparation of a correct declaration of taking.

The Declaration of Taking Act, as I’ll also point out a little later, provides that there shall be a deposit of estimated compensation and you cannot make a good faith estimate of compensation without an appraisal.

And in many of these cases, we have no appraisals until much later.

There are these necessary gaps between the commencement of a case, sometimes — especially in war time for — to which our proceedings have to be geared as a matter of law.

It is of tremendous importance to move in and take possession of a place right away, it has to be done fast.

And these other things come along as soon as they can possibly be ironed out.

Well, I think I was pointing out the definiteness of what we have here, there are some of these fuzzy cases.

Cosby, do you remember the flight of aircraft?

But even there, you remanded the case to the Court of Claims to determine the duration and the extent of what the Government had taken.

Dickinson, another example.

I mentioned it a moment ago, the flooding of Dickinson’s property.

When was it completed?

Perry W. Morton:

It took two years to backup the water behind the dam.

The statute of limitations would apply in one case but not in the other.

Well, you held that the statute didn’t begin to run until the situation was stabilized as to the physical facts.

But I repeat that those problems are not present here.

The Government’s taking was completed as an indisputable physical fact in 1943.

Well, over two years before Dow acquired any interest whatever in the property.

What he bought and what he paid for in 1945 was the pretty simple title to 617 acres of land already burdened with various easements including this one.

Felix Frankfurter:

Could — could the owner in this case have — by any means come into Court and said, “The Government has commenced condemnation proceedings and I’m hard up and I need the money?”

Perry W. Morton:

Certainly, after the declaration of taking, that’s one of the purposes of it.

Felix Frankfurter:

No — not — not after but before.

Perry W. Morton:

Not before.

There was no provision for that.

Now, under well-established principles, pardon me.

Under well-established principles of federal eminent domain and under that clear command of the Fifth Amendment, the claim to compensation vested in those who were the owners of the property at the time of the taking.

They are the ones that I think are entitled to have it and I considered my job to get it to them.

Ideally, as Chief Justice Shaw, the grand old Chief Justice of Massachusetts in 1834 said, “If a pie-powder court could be called on the instant and on the spot, the true rule of justice for the public would be to pay the compensation with one hand, whilst they apply the axe with the other.”

But obviously, that is impossible in practice as the great Chief Justice recognized.

The taking itself gives rise to the claim for compensation, though that claim still has to be determined at some later date in a proper form.

The naked legal title to whatever property or interest in property is taken may remain until the claim for the taking is satisfied but the incident of the passing of the title has nothing to do with the vesting of the claim which takes place when the taking does.

Now —

Felix Frankfurter:

Is — is Dickinson now — I asked because I don’t know.

That was as — you and I know a special case, but is — is — what was decided in Dickinson now applied as far as the statute is concerned to a situation like this so that the statute doesn’t run until the declaration?

Perry W. Morton:

We don’t think so.

The Court of Appeals or — or the whole bottom of our argument is that that, it is the physical fact being stabilized to which Dickinson was addressed.

Felix Frankfurter:

And here, it was stabilized?

Perry W. Morton:

Certainly.

Felix Frankfurter:

You just said a minute ago that you couldn’t tell what — what the — what the boundaries and dimensions.

Perry W. Morton:

Well, we have filed this — if that — I say there are sometimes fuzzy cases.

But this — this case was filed on a certain date and order of possession was entered that date, and within 10 days, we started to build this pipe line and we finished at that same year within a few days.

Felix Frankfurter:

And you say in this case, the statute would run as of 1943?

Perry W. Morton:

We have no statute involved in this case.

Felix Frankfurter:

No, I know.

But I’m — I’m just — I’d like to see what the nature of the problem is and what’s involved.

Perry W. Morton:

The judge with a Cf kind of a citation as I remembered, who wrote the opinion of the Court of Appeals in U.S.-Dickinson in reference to what he conceived to be the ambulatory character of the claim until the declaration of taking was filed.

Now, what I am trying to establish is plainly this that there was nothing ambulatory about the claim.

The claim was vested at the time we completed the physical acts of possession.

Charles E. Whittaker:

Claims for what?

Perry W. Morton:

The claim to compensation, just compensation under the Fifth Amendment.

Charles E. Whittaker:

(Inaudible)

Perry W. Morton:

Yes, but it could not have dismissed it’s obligation to pay just compensation.

Charles E. Whittaker:

Oh, I understood to file —

Perry W. Morton:

For whatever we had, Mr. Justice.

For whatever we had by that time taken.

Of course, that problem is present in any Tucker Act case.

That problem is present in any case where a declaration taken is not employed.

Charles E. Whittaker:

I understood now that in the same (Inaudible) taking possession, but absolutely (Inaudible)

Perry W. Morton:

No.

Charles E. Whittaker:

Does it not?

Perry W. Morton:

No, no.

That would be the trespass theory —

Charles E. Whittaker:

Why?

Perry W. Morton:

— not the taking here.

Charles E. Whittaker:

No, no, no.

But you took something, took possession of —

Perry W. Morton:

We took possession.

Charles E. Whittaker:

And —

Perry W. Morton:

— and —

Charles E. Whittaker:

— to decide (Inaudible)

Perry W. Morton:

The — the way in which I would conceive that which I don’t think is very close to this but I’ll theorize with you for a minute.

I would think that under (Inaudible), is it?

Perry W. Morton:

That — it says, “The Government takes whatever it eventually is determined to have been in need of.”

Charles E. Whittaker:

(Inaudible)

Perry W. Morton:

And by moving out later — may I?

Charles E. Whittaker:

Yes.

Perry W. Morton:

By moving out later, that presumably establishes what it was in need of.

Felix Frankfurter:

Well, it —

Perry W. Morton:

But that taking occurred back here at the beginning and created a claim which was then vested and it was not different in kind.

It was still a taking, it was only different in extent the same way that you might dismiss a fee title after three months, but I mean — where you start to take a fee title.

But —

Felix Frankfurter:

Well, I suggest, Justice Whittaker’s question of what the claim is, is pertinent because if you’ve taken 1943 and then dismissed four months later, I don’t think that that which was a taking in the beginning has become a trespass while you couldn’t sue for tresspass anyhow.

Perry W. Morton:

No.

Felix Frankfurter:

So that, it still was a lawful, an exercise of the power of eminent domain, but by choice of the Government, it was curtailed into a — use — use of four months or whatever used, isn’t that right, Mr. Morton?

Wouldn’t that be right?

Perry W. Morton:

It — it was reduced to whatever it was determined the Government in fact needed.

But as I should point out, that problem was present in Cosby, that problem is present in any case.

Charles E. Whittaker:

(Inaudible)

Perry W. Morton:

And you can’t try taking cases on some theory that you’re going to have to try a new one each day for every progression of — of the future.

Felix Frankfurter:

I merely suggest, just as the Dickinson raised a statute of limitations problem that we didn’t have before.

You now present us with eminent domain problem that so far as I know, we haven’t had before.

Is that right?

Perry W. Morton:

Well, I don’t believe that there is a definitive decision of this Court on this point.

I am trying to reason from all of the principles that I think I have collected in my head that I hope will be helpful to as to what our original intention was.

I would point out on page 6 of the record that the estate which we described and which we in fact today had.

This is the bottom of page 6.

That the interest sought to be acquired by the petitioner in the foregoing Tracts of Land, is a perpetual right-of-way for the construction, operation, maintenance, patrol, repair and replacement of a pipe line or pipe lines or the transportation of petroleum products or any other material or substance and so forth, a perpetual easement for a right-of-way for a pipe line.

That is what we started out to take.

That is what we have.

That is what we have to pay.

Now, under well-established groups of —

Charles E. Whittaker:

(Inaudible)

Charles E. Whittaker:

But —

Perry W. Morton:

No.

Charles E. Whittaker:

— no one as you claimed against the Government (Inaudible)

Perry W. Morton:

If we had —

Charles E. Whittaker:

You either file the declarations or (Inaudible)

Perry W. Morton:

Oh, no.

Charles E. Whittaker:

Isn’t that right?

Perry W. Morton:

No, no, Mr. Justice Whittaker, I could not agree to that because I say they had a claim the moment of taking.

And we could have tried the case the next day.

Charles E. Whittaker:

(Inaudible)

Perry W. Morton:

And we would have been bound for a perpetual easement according to our complaint.

Charles E. Whittaker:

(Inaudible) possession?

Perry W. Morton:

Most assuredly, they could under the Tucker Act.

William O. Douglas:

Would — would the case be mine as is yours?

Perry W. Morton:

We admit to the ambulatory character of the proceeding until —

William O. Douglas:

The taking.

Perry W. Morton:

— until the declaration of taking —

William O. Douglas:

(Inaudible)

Perry W. Morton:

— saved for the fact that rights were fixed by the taking itself, whatever they were.

Felix Frankfurter:

We’re surprised a little bit by your answer that they could mostly surely have filed a claim 10 days later as under the Tucker Act because if that’s so, then the difference between this power under the Tucker Act and the first-pay provisions of the States doesn’t seem to me to be a very big one.

Perry W. Morton:

Well, now let me figure that one out.

I don’t — not sure I follow that, Mr. Justice.

I answered that they could bring suit the next day under the Tucker Act if there had been physical facts completed which would have avail — accomplished to take it.

William O. Douglas:

As there was here?

Perry W. Morton:

As there was here.

I don’t see how that is the least inconsistent with my differentiation which I insist is important between the first pay proposition and the Fifth Amendment.

Felix Frankfurter:

I wasn’t trying to prove inconsistency on your part, I was trying to get some more or light into my documents because this has always been a troublesome theory, problems as to domain problems.

But if you tell me that under the constitutional provision of the State, what is determinative if it is that the Constitution of Texas, if you will, and as to — requires payment.

And you tell me that under the Tucker Act, although there’s nothing in the Constitution of the United States, just as soon as you take something, a man may move in and get the money from Uncle Sam.

I had supposed the contrary, I suppose the fact that you don’t have — you can take without paying, which I understand to be the law.

Perry W. Morton:

Well —

Felix Frankfurter:

That that makes the — that makes the practical difference between the rights of an owner of land under the first pay statute of constitutional provision and the right of a —

Perry W. Morton:

I think I see your point now.

I’m not altogether sure.

Felix Frankfurter:

Well, I’m not — I don’t — to answer —

Perry W. Morton:

The — the point is that under the first pay constitutions, the State itself except as it may be otherwise provided.

I think Texas draws a line between the State and its subdivisions and public utilities.

But under those state constitutions that I am talking about and generally labeling as first-pay States, they can’t even move into possession.

So there simply couldn’t be a physical act of possession.

They go in, it’s a wrongful act and not a rightful act.

Now, if this weren’t true, we’d have to make scrap of a whole draft of basic principles of federal eminent domain law.

It is for example because of this basic concept that the valuation of property always has reference to the date of taking, not earlier and not later.

It is also because of this that the just compensation includes not only the value of the property at the time of the taking, but an additional sum usually measured as interest as in the Seaboard case that I mentioned a while ago.

It is also because of this basic concept that the owner at the time of the taking.

And as Danforth said, “Not the owner at an earlier or later date, receives the payment.”

Now, these very specific results flow not out of some so-called equitable rule as supposed in the last paragraph of the opinion of the Court of Appeals.

They flow rather out of that great body of federal constitutional law bottomed upon the Fifth Amendment.

This great body of law revolves around two basic substantive rights.

One of these is the governmental right to seize and use property for any lawful for public purpose and the other is the property owner’s constitutional right guaranteed by the Fifth Amendment.

And that means the property owner at the time of the taking to receive just compensation.

These two substantive rights are the same whether the procedure employed for the determination of compensation happens to be a condemnation case brought by the Government as here or a Tucker Act case brought by the property owner.

Now, we can’t do business on a double standard and that’s one of our problems.

Now, I turn to a consideration hastily.

I should like to save some of my time for rebuttal.

Now, the Declaration of Taking Act of 1931, which the Court of Appeals misconceived to be the hinge upon which this controversy turns.

You will find the relevant portions of it in our brief beginning at the bottom of page 4 and over to the top of page 6.

In a nutshell, all I have time for, the Act provides that when the Government brings a condemnation case or at any later time before judgment, it may at its option file a declaration of taking and file a deposit therewith and make a deposit therewith of a sum estimated to be just compensation.

And that — at that time, the title passes to the United States of whatever interest it has described.

Thereafter, any deficiency as between the amount of the deposit and the amount later determined to be just compensation as of the time of the taking, draws interest at 6%.

On proper application, the Court may order the deposited funds distributed to the persons entitled and may make any necessary orders respecting possession.

Perry W. Morton:

Now, I invite and this time I do have to read, your particular attention to Section 4, beginning near the bottom of page 5 of the Government’s brief which I think the Court of Appeals overlooked.

I read, “The right to take possession and title in advance of final judgment in condemnation proceedings as provided in this Act shall be in addition to any right, power or authority conferred by the laws of the United States and shall not be construed as abrogating,” I skipped a little piece, “as abrogating limiting or modifying any such right, power or authority.”

Now, by these very terms then, the 1931 Act provides merely an ancillary remedy as I said to you, Mr. Justice Black.

At the option of the Government within the framework of a condemnation case which has to find its authority in some other Act, usually the old 1888 Act.

My point is that the declaration of taking does not stand on its own feet.

No condemnation case can be commenced under it alone for an authoritative treatment of the objectives and operation of this Act, I refer to the great opinion of this Court in Miller.

I summarized briefly from that case that the purposes were two-fold.

On the one hand, it relieves the Government of the burden of interest accruing on the sum which has been deposited from the date of the deposit to the date of the judgment, and on the other hand, it gives the former owner if his title is clear, immediate cash compensation to the extent of the Government’s declared estimate of the value of the property.

And so here, the filing of the declaration of taking simply made the deposit available to the former owners and reduced to that extent, the Government’s interest liability.

Well now, I want to combine hastily at this point my first and my second points.

The taking of all that the Government set out to take and all that it has ever taken in this case was completed in 1943 when it exercised its perpetual easement by physical appropriation.

The right to compensation then vested in those who owned the property at that time.

The declaration of taking did not change the nature of the taking which had already occurred.

And a necessarily corollary of this is that it did not and could not divest or transplant the right to compensation which had already become vested in those guarantors by the operation of the Fifth Amendment.

And by the very terms of the 1931 Act, it does not abrogate, limit or modify any other right and that is as true of the landowner as it is of the United States, it is been so held and kept.

Now, for a few words about the Anti-Assignment Act and I must rush on.

Hugo L. Black:

Are you going to tell us what will — what is the real point in controversy here?

Will the Government —

Perry W. Morton:

I hope so.

Hugo L. Black:

— have to pay it anymore under your contention (Voice Overlap) —

Perry W. Morton:

I will describe I hope some of the consequences.

I won’t have time for many of them, but there are many consequences of this.

Hugo L. Black:

I’m talking about that consequence.

Perry W. Morton:

There is a specific consequence of that direction.

Hugo L. Black:

With reference to Dow.

Perry W. Morton:

With reference to Dow, if I may come to that point now.

If Dow’s — if the summary judgment dismissing Dow from the case according to the District Court is reinstated by this Court, of course he gets nothing.

But we insist that his landowner, that his predecessors entitled are the ones entitled to this compensation.

Hugo L. Black:

Well, is there are dispute between them?

What is —

Perry W. Morton:

No.

Hugo L. Black:

— the point of litigation?

Perry W. Morton:

The — the point is that we feel under some obligation to pay the right people.

Hugo L. Black:

Well, if — if they are the people that conveyed it to him.

Perry W. Morton:

The Anti-Assignment Act stands in the way of that conveyance.

Hugo L. Black:

I understand that.

Perry W. Morton:

But that was — yes.

Hugo L. Black:

I understand that’s your contention.

But suppose they get the money, are they under any obligation to pay Dow or will Dow lose all?

Perry W. Morton:

Mr. Justice Black I can’t answer for the situation as between those two parties.

The consequence to the Government may actually be this.

Respondent’s counsel has suggested that we have some purpose here to defeat any claim for compensation.

I repudiate that as an unworthy and unwarranted suggestion.

The real truth is, and I stand here in the very unique position of saying this that if the Government wins this case, it will probably have to pay more than if it loses.

And the reason for that is that on the theory of the Court of — of the Court of Appeals, if a taking did not occur until 1946 that is the first state when interest begins.

The Government insists that interest begins as of 1943.

Now, that is one consequence.

I have several more that I should like to hasten through.

Felix Frankfurter:

The value of the property may vary in the intervening period and sometimes it goes up and sometimes it goes down —

Perry W. Morton:

Sometimes it goes down.

The Government, if it were so minded evilly could manipulate transactions to take advantage of whatever particular market suited it the best.

Charles E. Whittaker:

(Inaudible)

Perry W. Morton:

That’s one of the reasons for this stretch between when we file a complaint and when we file a declaration of taking.

Here are some others, I’ll hasten through them.

You’re acquainted with the severance damage cases.

Suppose if this situation in here was a three-year hiatus and someone having a nearly adjoining tract decided that it’d be an awful good time to buy this tract over here.

You can see how irreadily a severance damage claim could be created against the Government by the assembly of a plottage.

Another one.

Suppose that — well, first of all I have to say it’s a well known rule and I don’t think anyone would dispute as a rule of appraisal that a large plottages frequently are worth more than the sum of the — of the several parts of the plottage.

And so, owners of — of all of these several little fragments could very readily if there were this hiatus between the two — gather together their claims, assemble them into a fine plottage

Charles E. Whittaker:

(Inaudible)

Perry W. Morton:

The Miller Case has been pretty well knocked into a cocked hat but if the theory of the Court of Appeals in this case stands up, that’s one of my points.

The question is whether this is the law or the Miller Case is the law, in basic reasoning, Mr. Justice.

William O. Douglas:

There’s acceptance in the assignment (Inaudible)

Perry W. Morton:

There are several.

I — I think that the —

William O. Douglas:

Assignments by operation of law?

Perry W. Morton:

Yes.

William O. Douglas:

Would you think this would be within that exception?

Perry W. Morton:

Respondent makes some point of that but I think the point is merely that it is the law of Texas which gives force to his deed but of course that would be true of practically any assignment —

William O. Douglas:

I was wondering if —

Perry W. Morton:

— which would read away this Anti-Assignment Act completely.

William O. Douglas:

I was wondering if it’s a practical matter with the Government’s point of view to be any difficulty that the predecessor that’s entitled and Dow will both join.

Perry W. Morton:

Well, of course, that was precisely the situation you dealt with in Shannon.

William O. Douglas:

Well, the Shannon is a little different because there, there was — there was this — not a conveyance of real estate, not — not a change of title but an assignment of the claim separate to the parties who —

Perry W. Morton:

Well, I think that was a purely formal distinction.

There was a transfer of title to the real estate and it had been damaged by some army troops as I recall the case.

And sometime after the — after the event, the transfer of title took place and the — who was it — Shannon was the grantee as I recall it, brought suits in the — what was it, the Court of Claims?

In the District Court, that was within those limits.

And it came up here and some point was made in — in the several opinions filed of the fact that the — that all parties were there and the Government wouldn’t get hurt.

But the majority opinion said that that’s not — was not the basis upon which the Anti-Assignment Act was to be judged.

And that the Anti-Assignment Act made it completely void and it made no difference with the other people who were present.

Well now, let me take inventory.

Of course, we have here to deal with many other consequences, I wish I could state them all to you.

One of the most important things about the date of taking is that it establishes the condition of the property as to which it is to be valued and that means not only the title condition but the physical condition of the property.

I believe that the certainty which the Court of Appeals was reaching for, it did not find and that instead, it opened a “Pandora’s Box” of complete confusion.

Earl Warren:

Well, may I — may I advert to the case that we had before lunch just for a moment.

I — I see Mr. Morgan in the courtroom.

Mr. Morgan, I just want you to know that the — that the Court is grateful to you for having taken the assignment of this case, of this panelist man of having carried it through to the Supreme Court.

We — we’re always grateful to lawyers who do that and we feel comforted by the fact that — that lawyers will see to it that — that panelist people do have a defense even to — up to this Court.

Earl Warren:

So we appreciate it, I would have said it to you before the recess but slipped my mind, and of course, we appreciate the fervor of the defense of the State that was given by your opponents, I don’t see them in Court; I hope you’ll convey that news to them.

Thank you.

Earl Warren:

Now, Mr. Simmer, you may precede.

L. Keith Simmer:

Mr. Chief Justice, may it please the Court.

I was enlightened and entertained by the questions asked by the Court of my opponent in this case and I hope they’ll do me the honor of continuing then to answer a few of the points raised and dealt with in the opening argument.

I would say first of all about the date of valuation and the thought of the future of this case as contradicting the Miller case, the Court took care as all of the so-called “first-pay courts” do to provide that the date of valuation would for equitable reasons remain the date when physical possession was taken.

There is no — nothing in the decision below which would warrant the statement of counsel that there can be manipulations following the date of taking possession since there is no part of that decision which lends any comfort to any manipulation of valuation was.

The Court specifically avoided that and prevented it happening in its opinion.

And I might say that Nichols on Eminent Domain, Section 3 plus the Section 8.5 (2).

That’s 3 Nichols page 23, states clearly that the States adopting the first-pay rule also go to the date of possession as the date of valuation and they — that particular horror is one which is not really in the case topside or bottom.

The Court also asked why the delay — I also must plead ignorance of that.

I came into this case, and in fact, I started practicing law some years after this land was taken possession of by the Government.

But I am sure that the reasons were valid ones and I think the one that my opponent stated has been given voice in a number of instances and that is that the Government counsel in a wartime emergency is somewhat harassed and undecided on proper steps to take with reference to property, all of a sudden, needed for Government uses.

I would like to deal with the so called first pay and it’s comparison to the United States Constitution.

And I would say first that the distinction attempted to be drawn by my colleague for the Government that there is some miraculous difference between the constitutions of our several states and the Fifth Amendment provision that property taken for public use shall not be taken for public use without just compensation.

I think that actually, the Constitution of Texas and of a good many of our States, certainly, most of the western ones are patterned almost verbatim on the Federal Constitution and there is no substantial difference in language between the like provision of the Texas Constitution and of the Federal Constitution.

I might say also that the consequences of first pay before taking title is a matter that has been passed upon by this Court.

It is some years ago but Mr. Justice Harlan in Cherokee Nation versus the Southern Kansas Railroad which is cited in our brief, dealt with that exact point and there, the Court adverted to the constitution of a State and said that the Federal Constitution was exactly the same and that if provided that within the meaning of the Federal Constitution, there is no taking until payment is made.

Now, that was made in answer to an argument presented on behalf of the Cherokee Nation that — well what would happen here, you’re condemning line for a railroad across our lands.

What would happen here if there’s not enough money in the registry of the court to pay the amount that the jury feels we’re entitled to?

And the Court then answered that question by saying and announcing this — announcing this rule that title does not pass in condemnation proceedings under the Constitution of the United States until provision is made for payment.

Now, that, I submit to the Honorable Court, is precisely the argument and the ruling of the first-pay States which are cited in the brief and certainly Texas is one of them.

And on that point, there — I just beg to differ with counsel.

I think I understand that in the harassment of, other than Government counsel, occasionally acitation maybe made an error and if so, I certainly regret it.

However, the Court will — I’m sure, be able to read those cases and to see that they are cases where a possession was taken before the date of the transfer to the subsequent vendee.

And that in those cases, the title obtained by the vendee carried with it the title to the property then subject to condemnation and the right to the award.

That’s —

Felix Frankfurter:

Mr. Simmer, could you tell me whether the cases have arisen in which a State sought to tax the land that was taken between the physical — possession by the United States in what you just tell was the vesting of the title?

L. Keith Simmer:

Thank you, Your Honor.

And I should have had it in my brief, United States versus Alabama.

L. Keith Simmer:

Chief Justice Hughes decided a number of years ago and I will give you that citation.

313 United States, page 274.

In that case, the State of Alabama had a tax rule or provision of tax law.

I believe it was just under the statute or by liens for taxes would accrue as of a day certain.

I believe it was the 15th of October of each year.

However, the actual amount of taxes which would be paid by the owner of the land would not become known or in fact would not be fixed until a number of months later.

After the date of October 15th but before the date when the amount became ascertained and known, the Government acquired title to premises involving that suit.

The Government then urged that since their title had vested before the date when the amount became ascertained, no tax is paid, the exemption of federal land should apply.

And this Honorable Court held, speaking through Chief Justice Hughes that while there was an immunity from suits, so that Alabama possibly could not levy or could not take the lands away or sell them at a — at a tax sale against the Government, that’s still the — the difference between an immunity and a right existed, and that is very important right here in this case too.

The immunity is one thing, the right is another.

And I wish to say that it can be applied exactly in this case.

The governmental power under its War Powers Act is one facet, it is one fact.

But it is merely a fact from that exercise of a power, the Government accrues no rights.

And — and we submit, that the same line of reasoning would sustain the opinion and the decision of the court below in this case, if I have answered your question, Your Honor.

Felix Frankfurter:

I should have known that case, (Inaudible)

L. Keith Simmer:

I think the question was asked something about the — whether the Government would pay more or would pay less as a result of the decision below.

And that is certainly a fair question in condemnation suit because after all, we, although litigating with the Government here.

We are members of the body politic and we have an interest which goes to the other side.

Also, that the Government shall not pay too much for land as well that they shall pay what is eventually just compensation.

And my answer to the question which the court put to counsel is that the Court — that the Government will pay exactly the same, exactly the same under either view.

Now, it is merely an accident as pointed out by counsel and as we certainly point out in our brief.

It is merely an accident that an overzealous Government attorney has raised the question of limitations as against the vendors in lower courts.

That — that is something that I’m sure that counsel has disassociated himself from and I personally do not blame him.

And we think that it had — it should not — really, the case here should not turn on anything like that.

Hugo L. Black:

May I ask you, I don’t — you say that — of course the Government, no more and no less?

L. Keith Simmer:

Yes, sir Your Honor that is what we said.

Hugo L. Black:

Or the landowner gets no more and no less.

L. Keith Simmer:

Then landowner would get no more and no less than just compensation.

Hugo L. Black:

In this case — in this case?

L. Keith Simmer:

In this case.

Hugo L. Black:

Or elsewhere.

If the interest begins to run from the taking, then the question of when it’s taken isn’t important with reference to interest this time?

L. Keith Simmer:

I think — I think that is a fair statement but what do you mean in that context when you say taking?

Hugo L. Black:

Well that’s it.

Well, that — that’s the question here.

L. Keith Simmer:

Yes, well —

Hugo L. Black:

But what — what I’m asking you is, is it not true?

The landowner, if — if you hold that the landowner has no interest or nothing in lieu of it, until the Government chooses, may be some years later to file its claim, which it can after a certain provision.

Why couldn’t the Government in that way keep the landowner from getting that in lieu of interest, maybe for a few years?

If you’re going to say that taking is not at the time, you actually take possession.

L. Keith Simmer:

Your Honor, to answer your question, the magic in the word “taking” is one — something that is alluded to on the other side.

What we are concerned with here is when did the claim for the taking of title arise for which just compensation is due?

But the answer your question about interest, we cite cases in our brief which say that where there — where land is conveyed between the time of the commencement of condemnation proceedings and the completion of those same proceedings, that the two people; the vendor and the vendee are equal — are entitled to that amount which put together and added together, will in itself equal just compensation including the delay or the use and possession ahead of the taking, whichever it is.

As I understand these cases, Your Honor, your — the Court has never bound itself strictly to the idea that interest is the only possible compensation for delay in payment, that there — that that is one — merely one.

Hugo L. Black:

There’s no delay of payment, was there?

From the time possession was taken if it only counts from the time the Government comes in and files its later claim.

L. Keith Simmer:

Well, Your Honor, the — if — I think that the question put by Judge Whittaker during the opening argument is itself the answer.

And that is, supposing the Government had abandoned, then the original landowner and the later landowner would be entitled to restoration damages, rights for accruing under — for use and possession.

Now, it may be that interest from that date is a good measure.

If it is, then interest to the date of a declaration of taking from the time of taking possession until the time of filing a declaration of taking would be just compensation for the vendors of my client, respondent, C.M.Dow.

That —

Hugo L. Black:

How can you get a — how can — what — what bothers me then is, if the — you’ll figure this from the time of the possession or the other time, rather —

L. Keith Simmer:

Yes, sir.

Hugo L. Black:

Rather the possession at a later time, rather the possession.

Dow here did not own this property.

Suppose the Government concluded to have been (Inaudible) as you’ve said — you said you did in the brief?

And six months later, they — suppose Dow gets it, the — and the Government, there was no practice.

Could Dow then get a claim made to him — or — or could — the other man transfer that land to him so that he could get that part of Dow’s claim —

L. Keith Simmer:

Not under Texas law —

Hugo L. Black:

— from Dow, whether in man’s land without violating the Anti-Assignment law.

L. Keith Simmer:

Not under Texas law, regardless of the Anti-Assignment Act, the law of Texas provides that a claim for damages which is exactly what that would be if the Government did abandon ahead of the time when — that Dow took title to the land.

Hugo L. Black:

Why do you say that they claim for damages?

L. Keith Simmer:

For the use and possession where the —

Hugo L. Black:

Yes, but it’s a claim for taking values and possess — possession of their property during that time.

L. Keith Simmer:

Oh, agreed, I certainly agreed — certainly agree with that.

There is a right to restoration damages, and that again is held as — as far — as far back as Cherokee Nation versus Southern Kansas Railway.

Certainly, there’s a right to restoration damage, there’s a right to the — to damages for the use and possession that the Government makes if they never go on and take title to the land, if they never.

There was — there has always been a duty to pay just compensation for — where premises are taken for a short period or for a long period, there’s no change in that.

Hugo L. Black:

In this case — in this case, that would be in Dow’s predecessors of the title.

L. Keith Simmer:

Yes, sir, it would and it would be something —

Hugo L. Black:

If — if it begins from the date of possession.

L. Keith Simmer:

Right.

Yes, sir.

And it — and it would be something that under Texas law could not come under his deed.

And we cite cases in our brief for that proposition that a right —

Charles E. Whittaker:

(Inaudible)

L. Keith Simmer:

It would not be pass by a deed.

It would be against Texas law for such a right to pass under a deed.

And I might say in this connection, the question raised under the Shannon case by — I believed Judge — Justice Black, excuse me, was whether this was a different sort of a claim or a different sort of a situation than in Shannon because that was a case for injuries to buildings received by — during a possession or occupation by soldiers of the United States.

In that of course, there was a contract of sale, there was a separate assignment of that particular claim as such.

And there were still a divided court.

But I might say to — say this to you that here, under Texas law, the deed could not pass a mere claim for damages.

They — what it could pass was the title to the property, carrying with it what the — the fullness that the Texas law gives to the word “title”.

Included in that would be the right to this — when the title of to the property, the right to receive it, all clear of the Government’s claim that they should abandon or the right to receive the award, if they should then or thereafter go ahead and decide to take the property as they did.

And counsel has called this an ambivalent proceeding.

I think that he is quoting from Judge Wyzanski’s opinion in the case of 40,000 Square Feet of Land in — 40,379 Square Feet of Land in 58 F.Supp. which is in our brief.

And in that case, while it’s a trial court, there is rather full discussion of the ambivalent procedures adopted by the Government.

And I think that the point made by counsel is there alluded too also and that is that harassed Government counsel not quite knowing for sure which way to move, are responsible for the running off in two directions at one time that occurs when two or three or four condemnation statutes are attempted to be applied.

One will be started with and then another one will be found in the books and was decided that perhaps this other one would do better.

But while we have is — we have here a constitutionl question on what passes.

L. Keith Simmer:

And I say again that the taking referred to by the Government, it has no magic in those words.

It has a — the — there is a taking of possession, there is a physical seizure.

There — that is one facet.

But then as in Dickinson, when is the time complete?

Well, it’s when the Government no longer can back out.

It’s when their bargain is struck, it’s when is finally the die is cast between the permanent easement and an — and a temporary wartime use and occupation of land.

Hugo L. Black:

If — if I asked the Government counsel because I don’t quite understand the gist.

If taking — I assume you would agree here, the Government doesn’t have to pay for anything under the taking.

L. Keith Simmer:

Yes, sir.

That’s correct.

Hugo L. Black:

Well, if the taking here, that’s when the Government here in this case filed a declaration or whatever it was, put in the money, if that’s the time, how is Dow entitled to get anything for the use of the Government made to that property up to the time it was taken?

L. Keith Simmer:

He is not entitled and he doesn’t claim it.

Hugo L. Black:

All right.

Then if he is not, it might — I don’t understand why, it might be to Dow’s interest here, to win this lawsuit.

But what about the next landowner if the property was taken?

L. Keith Simmer:

I think that any landowner and I’m perhaps repeating but any landowner has the right to expect from his Government, just compensation.

And he has more — he has a right to know more and to know less.

And I would say that the next landowner along would be entitled just to that.

If he is the — if he is the landowner when possession is taken, he has a right to use in possession until he conveys.

If he conveys before —

Hugo L. Black:

The Government then — the Government then — the law that’s passed wouldn’t give them the right to hold possession.

If it gives them the right to hold possession, they certainly got to pay somebody.

L. Keith Simmer:

Well —

Hugo L. Black:

He’ll pay you under your contention — if anybody.

L. Keith Simmer:

It depends on what they’re taking.

And until they become committed, they are not taking title.

There’s a taking of possession but there’s a taking of title and that only occurs when the Government becomes committed to do it and can’t back away from it.

Charles E. Whittaker:

That is when?

L. Keith Simmer:

And that is when the declaration of taking is filed under the very terms of the statute as it’s stated.

Charles E. Whittaker:

(Inaudible)

L. Keith Simmer:

For purposes of the amount of the value of the property?

That, yes, under the decision of the court below.

Charles E. Whittaker:

Including in that also interest from that bargaining from that date?

L. Keith Simmer:

The decision of the court below does not cover interest.

Charles E. Whittaker:

Or if the new interest was (Inaudible)

L. Keith Simmer:

Nor does the opinion cover that.

There — there is clearly in this case a right to use in possession which follows under clear Texas principles of law, lies in the vendors, they’re in court, they can press this.

This case hadn’t been tried yet, Mr. Justice Whittaker.

The case — these people are in court.

The vendors are in court, they will have the right subject to possible limitation questions to press their claim for the use, occupation and — and possession of the land until they convey.

From the time they conveyed, Mr. Dow, the respondent in this case, will have a right to use possession and occupation until that point when the Government made up its mind when it was going to take in this property.

And in that point when it could no longer back away, when — when it was committed, was when the — when the taking of the title occurred and when the Government became committed to pay for the title.

William O. Douglas:

I gather that your — your position then is that he would not be entitled to interest prior to the date of it’s purchase?

L. Keith Simmer:

That is certainly correct.

Yes, sir.

Charles E. Whittaker:

(Inaudible)

L. Keith Simmer:

The respondent, Mr. Dow, is not entitled to interest before he acquire the property.

Felix Frankfurter:

As I understand you, Mr. Simmer, the more I hear of this case, the more interestingly confusing it becomes.

Did I understand you to say that although the vital date, what you call — when the Government is — could no longer change its position it’s committed.

You draw on Dickinson which has a little different problem, the statute of limitation.

But you say 46 is a fixed day but you relate back as to the value, although the taking in the constitutional sene is 1946, you go back to 1943 for the amount of compensation to be paid?

L. Keith Simmer:

Yes, sir, Your Honor.

Felix Frankfurter:

And why that?

L. Keith Simmer:

Let me just read from 3 Nichols at page 23.

That’s Section 8.5, Section 2.

Felix Frankfurter:

In what in all these should be bothered?

I don’t understand anything.

I thought it really had to do with what — at what date the amount which Uncle Sam has to pay to be fixed but apparently, it isn’t that at all.

L. Keith Simmer:

Oh, no.

The decision below clearly states that the date of valuation shall be the date that possession is taken.

L. Keith Simmer:

It’s in about the last paragraph of the opinion, Your Honor.

William O. Douglas:

Just a question.

Hugo L. Black:

At that time, Dow didn’t own it.

And he’s gotten assignment of it after that time which is — is valid.

L. Keith Simmer:

Your Honor, respondent was the owner at the date that declaration of taking was filed but not at the date of valuation.

Well, Your Honor maybe familiar with the laws of conversion.

There are many instances when damages are assessed at a different time than either the time of trial or perhaps the time of injury sometimes past intermediate value is — is assessed.

Hugo L. Black:

That wouldn’t be true when it is the effect of the deed, gives the benefit of the assignment (Inaudible)

L. Keith Simmer:

Well, Your Honor, the title to the property under our Constitution passes when payment is made.

If title doesn’t pass until then to the Government, then the landowner has a right to convey and that’s what all of these cases so hold and the — his vendor — vendee acquires with his title as an incident thereto, the right to the award.

Hugo L. Black:

Do you agree that when the Government takes possession of a property, a suit could be filed under the Tucker Act at once?

L. Keith Simmer:

Yes, sir.

I certainly do agree with that, but the question of the content of that taking does not become — determined until the time of final judgment in Tucker proceedings.

Felix Frankfurter:

Mr. Simmer —

L. Keith Simmer:

It doesn’t (Inaudible) —

Felix Frankfurter:

I’d like to revert to my question.

It’s one thing to say that it maybe an equitable rule.

That when you have — when you have to ascertain what the value is which the Government has taken, there is a matter of damages, you go back to the earlier date.

As I understand your position, it’s a constitutional provision, a proper construction of the Fifth Amendment about just compensation, is that right?

This is a construction of the constitutional provision and you say there’s no taking within the Fifth Amendment comparable to the first pay provisions of the state laws until the Government is irrevocably committed.

That’s right, isn’t it?

L. Keith Simmer:

Yes, sir, that is our position.

Felix Frankfurter:

I do not understand then why it shouldn’t be also — why it should be a constitutional rule but you jump back then to whatever the years are, six months, two years, three years or four years in order to ascertain the then value of the property —

L. Keith Simmer:

Okay.

Felix Frankfurter:

— ascertaining the money damages.

It’s complicated business as we all know and you may resort to all sorts of things.

But as a constitutional doctrine of just compensation, I shouldn’t think that would be the rule of the Fifth Amendment.

L. Keith Simmer:

Well, Your Honor, to answer your question, I’m sorry I interrupted your question.

Felix Frankfurter:

You didn’t interrupt me at all.

L. Keith Simmer:

But the jump from the date of taking of title back to the date of possession is one which the — which the highest courts of the first-pay States have been able to make on these equitable grounds that if there are variations in value, ups and downs, it’s one that — it sometime has to be fixed so the date when the petitioners filed or the date when physical possession is taken is as good as it was.

Felix Frankfurter:

They have taken the considerations of expediency and difficulties and they’re on — well, that’s the fix on that, I that it?

L. Keith Simmer:

Yes, sir, Your Honor, that is it.

It’s a — it’s a step —

Felix Frankfurter:

There’s no doubt about that.

You could tell me, that is settled, is it?

L. Keith Simmer:

Your —

Felix Frankfurter:

I’ll vow to it.

L. Keith Simmer:

There are great a many states which —

Felix Frankfurter:

It show — just shows how mere logic isn’t deciding this problem, is it?

William J. Brennan, Jr.:

Well, basically —

L. Keith Simmer:

I would think no.

Felix Frankfurter:

No.

L. Keith Simmer:

I would think no.

William J. Brennan, Jr.:

Mr. Simmer, may I test that this way?

Are you telling it’s something like this?

That the 1943, this property had a value of $50,000.

In the 1946 or 1947, whatever that year is, the title was finally perfected.

It had a value of $150,000.

Mr. Dow gets only $50,000 and whoever was the intervening owner gets what, something for the possession, the value of the possession and the intervening period.

Mr. Dow gets 50,000, I take it.

Does, he?

L. Keith Simmer:

That is correct, Your Honor.

William J. Brennan, Jr.:

And then there’s something plus for the value or the possession taken in the intervening period, is that it?

L. Keith Simmer:

Yes, sir.

That is correct.

William J. Brennan, Jr.:

And that satisfies the just compensation requirement even though the property in fact when Mr. Dow gets title is 150,000.

And when the Government takes the title that —

L. Keith Simmer:

I think that there is substantial ground for the equitable rule that —

William J. Brennan, Jr.:

But that — that is the result, is it?

L. Keith Simmer:

That is the result, there’s no question.

L. Keith Simmer:

That is the result, it’s the value of the date possession was taken under the holding of the court below and under the rule that — that we expressed here.

William J. Brennan, Jr.:

And your position is that fully satisfies the Fifth Amendment requirement —

L. Keith Simmer:

Yes, sir.

William J. Brennan, Jr.:

— as well as the first pay provisions of the state constitution.

L. Keith Simmer:

Yes, sir it does.

It does and as I say further a number of the first-pay States have adopted the same rule.

The date that a petition is filed or the date that physical possession is taken.

And there are many equitable grounds to support that, again, that just compensation is all that’s necessary.

And that unless —

William J. Brennan, Jr.:

That is my other question.

The intervening — the vendor, what his possession for whatever that period is that the Government’s absolute promise before the Government acquires title.

Now, how is that measured?

Also in — as a reflection of the $50,000-value at the time that possession was taken?

L. Keith Simmer:

Your Honor, I’m sure it is.

It’s either the value of the use which may be fixed by the jury upon valuations — offered in evidence (Voice Overlap) —

William J. Brennan, Jr.:

Well, again, no, I’m assuming —

L. Keith Simmer:

Yes.

William J. Brennan, Jr.:

— hypothetically that that value is $50,000.

L. Keith Simmer:

Then — then that’s what —

William J. Brennan, Jr.:

(Voice Overlap) —

L. Keith Simmer:

— that is what the result to the vendors would be also.

William J. Brennan, Jr.:

Now, if that’s measured an interest, what’s — what’s the rate?

L. Keith Simmer:

Well, in Texas there are statues governing interest after the Declaration of Taking Act becomes applicable.

Well of course, it would control on the amount of interest.

I would —

William J. Brennan, Jr.:

When you say amount, does that fix the rate?

L. Keith Simmer:

Yes.

William J. Brennan, Jr.:

I mean by the rates, 4% or something like that?

L. Keith Simmer:

6%, The Declaration of Taking act, I believe, provides also for 6%.

So that it —

Hugo L. Black:

May I ask you, I don’t see any cases cited by Judge Reed.

Is this the first case that tell to it?

L. Keith Simmer:

Your Honor, in the footnotes, there are a number of cases cited —

Hugo L. Black:

On — not — well, do any of them I’ve looked at.

L. Keith Simmer:

Some of my favorites.

Yes, sir.

Hugo L. Black:

So any of them hold that before this that the takings be measured as he said it was here rather the time the possession was taken?

Any — any federal cases under the Federal Government?

L. Keith Simmer:

I would have to say no, Your Honor —

Hugo L. Black:

He had —

L. Keith Simmer:

— other than —

Hugo L. Black:

He had raised that in a dissent previously.

L. Keith Simmer:

Yes, in the (Inaudible) case.

Hugo L. Black:

And —

L. Keith Simmer:

Now —

Hugo L. Black:

— he didn’t get the majority?

L. Keith Simmer:

No, sir.

That is correct.

Hugo L. Black:

And this time is the first time it’s been here?

L. Keith Simmer:

That is correct.

If you exclude Justice Harlan’s opinion in — Cherokee Nation case because that one does definitely says that the time for — time of taking within the meaning of the Constitution is a time when title passes and payment is due as of that time.

And that one has been on our law books since 135 United — U.S.

And this — this opinion is no new departure, it is no new departure.

It is — it is one which achieves just compensation to be paid by the United States and to be received by the landowners just as well as the previous cases — there had been no recent cases before this Court.

And the cases, as I admit on the very first page of my argument in my brief, such as Albrecht, such as Anderson versus United States, the 23 Tracts of Land, case is there, which without facing this question of constitutional and the declaration of taking statute which looked the other way, which their — their considerations looked the other way.

But the Constitution and this question of what a vendor takes under his Texas deed is one that is open to this Court and you’re not committed on any — any way, shape or form other than by the persuasiveness of principles which you have laid down such as in Dickinson that the completion of the taking is the — is the time when your cause of action accrues for limitation purposes or other things.

If there are no more questions, I’ll leave the time for the counsel.

Earl Warren:

Mr. Morton.

Perry W. Morton:

May I ask, Mr. Chief Justice, how much time I have?

Earl Warren:

(Inaudible) trifle at yourself.

Perry W. Morton:

Well, I think maybe about four minutes.

I think that the Court of Appeals and counsel, but I hope not this Court — were and are confused by the difference between the taking and the title —

William J. Brennan, Jr.:

I can’t hear you, Mr. Morton.

Perry W. Morton:

Pardon me, my throat just won’t let me talk.

I say I think the court below and opposing counsel still confound the distinction which I think is absolutely essential between the taking and the title.

That to me is the — is the real hand share even when a declaration of taking is filed.

The title remains defeasible if payment isn’t made.

Of course title never finally and conclusively and irrevocably passes until payment is made.

The title passes within the statutory terms when a declaration of taking is filed.

Well, this Cherokee Nation case that has been so much mentioned on this issue whether a taking occurred only when title passed.

I wish I had the book here but my memory of the case is this.

That the point the Court was making in context was plainly that until payment was made.

Title was reserved as a sort of a security transaction, a sort of — may I give you what I think maybe a rough analogy.

Suppose a contract of sale is made, a real estate and the seller allows the buyer to go into a possession on a certain date, maybe immediate possesson and retains the legal title as security for the payment of the balance of the purchased price.

It is roughly that concept in Cherokee Nation for reason of which, with I think language that was unfortunate.

I’d agree thoroughly with Cherokee Nation except for a few unfortunate words which I don’t think were at all the hinge of the decision.

This title that Cherokee talks about was a thing which was just sort of held back as a necessity until payment was finally put on the counter.

Now, I would go back to the great words of the Chief Justice if we could pay, if it were practical, if it were possible to pay.

The compensation with one hand and apply the acts with the other, we wouldn’t have these problems, but we can’t do that.

It is a decidedly different thing whether these principles which are so important to our administration of this land acquisition program are bottomed upon some “equitable rule” such as referred to by the Court of Appeals and which may mean one thing today and another thing tomorrow, and one thing here, and another thing that — or whether these rights, these correlative substantive rights, the right on the one hand of the Government to take and the right on the other hand of the landowner to receive that just compensation which the Constitution says he shall have.

That, we say is bottomed upon the Constitution and not upon some changeable concept of equitable considerations which are not even fully described in the Court of Appeals.

William J. Brennan, Jr.:

Well, tell me, Mr. Morton, what — what would happen in the fact situation I put to Mr. Simmer.

50,000 in 1943 and 150,000 at the time the title was acquired.

Perry W. Morton:

I suppose —

William J. Brennan, Jr.:

Under your theory.

Perry W. Morton:

I suppose that — well, $50,000 I think wasn’t even his answer.

William J. Brennan, Jr.:

His answer was —

Perry W. Morton:

I think it was — I think it was —

William J. Brennan, Jr.:

He may have given his, is that also your answer?

Perry W. Morton:

It would be my answer that if it is worth $50,000 in 1943 that is what the — that is when the taking occurred and that is when the valuation is fixed.

Perry W. Morton:

Everything should relate to the date of taking, interest, valuation, title condition, physical condition, everything that you can imagine.

But I think his answer was inconsistent with his theory.

Because on his theory that no taking was accomplished until 1946, the valuation should be $150,000, or if the market was going in the other direction, the answer would be opposite.

William O. Douglas:

Well, under our Miller case, the increment of value, the reason that the Government’s present area was not — went to the valuation (Inaudible).

Perry W. Morton:

I’m sorry, Mr. Justice, my throat condition has blocked up my ears as well.

Could I have the question again?

William O. Douglas:

I just say under our old Miller case, I think where the opinion —

Perry W. Morton:

Miller case is a landmark.

William O. Douglas:

— written by Justice Roberts.

Perry W. Morton:

Yes.

William O. Douglas:

An increment of value is a result of the Government’s activity here, would not enter into the valuation of the property.

I wrote Miller case —

Perry W. Morton:

Well, Miller, is — is authority for a great many things.

William O. Douglas:

Well, certainly —

Perry W. Morton:

And among them is —

William O. Douglas:

Certainly one of them is —

Perry W. Morton:

Among them is a description of the purposes of the Declaration of Taking Act as I have described them in my opening.

Another one is that evaluation does take place at the date of taking.

William O. Douglas:

That’s right.

Perry W. Morton:

That’s right.

William O. Douglas:

So on the — on this —

Perry W. Morton:

That (Inaudible) as the bottom of the Miller case.

William O. Douglas:

On the issue of valuation, you don’t need to worry here about the difference between 50,000 and 150.

Perry W. Morton:

No that is why I think that my answer earlier to, I think it was Mr. Justice Whittaker, was just plainly that an affirmance here will place you in a position wholly inconsistent with Miller.

Thank you.