United States v. Shingle

91 F.2d 85, 1937 U.S. App. LEXIS 4156

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 7, 1937
• Docket: 7975
• Status: Published

Opinions

MATHEWS, Circuit Judge.

The United States, hereinafter called appellant, brought this condemnation proceeding under and pursuant to the Act of April 14, 1930, c. 149, 46 Stat. 165, which provides:

“That the Secretary of the Navy is hereby authorized to examine and appraise the value of all privately owned rights of fishery in Pearl Harbor, island of Oahu, Territory of Hawaii, lying between extreme high-water mark and the sea and in and about the entrance channel to said harbor, within [a specified area], and . ... to make contracts for the purchase of same subject to future ratification and appropriation by Congress; or, in the event of the inability of the Secretary of the Navy to make a satisfactory contract for the voluntary purchase of the said rights of fishery, he is hereby authorized and directed, through the Attorney General, to institute and carry to completion proceedings for condemnation of said rights of fishery, the acceptance of the award in said proceedings to be subject to the future ratification and appropriation by Congress. Such condemnation proceedings shall be instituted and conducted in, and jurisdiction of said proceedings is hereby given to, the District Court of the United States for the District of Hawaii, substantially as provided in ‘An Act to authorize condemnation of land for sites for public buildings, and for other purposes, approved August 1, 1888 [c. 728, 25 Stat. 357, 40 U.S.C.A. §§ 257, 258], . . . The Secretary of the Navy is further authorized and directed to report the proceedings hereunder to Congress.”

The rights sought to be condemned in this proceeding are the privately owned rights of fishery within a designated area of approximately 2,340 acres in Pearl Harbor, this being' a part of the larger area specified in the Act.

Appellees and numerous other persons who, it was alleged, had or claimed to have some interest in the rights sought to be condemned were named as respondents and were served with process. Answers were filed by appellees Robert W. Shingle, Albert N. Campbell, and John IC Clarke as trustees of the estate of Janies Campbell, deceased, and by appellee Oahu Railway & Land Company, hereinafter called the Railway Company.¹ The other appellees appeared and participated in the trial, but filed no answer. Default was entered against all respondents failing to appear.

At the trial below, the Railway Company was permitted, over appellant’s objection, to file an amended answer in which it set up a claim for damages alleged to have been sustained by it prior to the commencement of this proceeding. These damages were alleged to have been caused, by the enforcement of naval regulations which prohibited fishing in certain parts of Pearl Harbor, thereby preventing the Railway Company from exercising, within a part of the above-mentioned area of 2,340 acres, rights claimed by it as a lessee of the Campbell estate, which, the amended answer alleged, was the owner of the rights here sought to be condemned. The regulations referred to were alleged to have been issued by the Secretary of the Navy under and pursuant to the Act of August 22, 1912, c. 335, 37 Stat. 341 (33 U.S.C.A. § 475), which provides: “For the proper control, protection, and defense of the naval station, harbor, and entrance channel at Pearl Plarbor, Territory of Hawaii, the Secretary of the Navy is authorized, empowered, and directed to adopt and prescribe suitable rules and regulations governing the navigation, movement, and anchorage of vessels of whatsoever character in the waters of Pearl Harbor, island of Oahu, Hawaiian Islands, and in the entrance channel to said harbor, and to take all necessary measures for the proper enforcement of such rules and regulations.”

The case was tried by the District Court, sitting without a jury, trial by jury having been expressly waived. The court thereafter entered a judgment which condemns, for public use, all privately owned rights of fishery within the above-mentioned area of 2,340 acres, adjudges the value of said rights to be the sum of $79,000, awards said sum of $79,000 to the trustees of the Campbell estate and three other respondents, namely, Adelaide K. Akina, H. N. Kaikainahaole, and the Dowsett Company, Limited, and directs that distribution thereof be made by paying to each of the three last mentioned respondents the sum of $1 and to the trustees of the Campbell estate the sum ol $78,997. The judgment also awards to the Railway Company, as damages 2 found to have been sustained by it prior to the commencement of this proceeding, the sum of $27,100.05. This appeal followed.

There are 37 assignments of error. Eleven of the assigned errors (assignments 5, 7, 10, 11, 12, 13, 21, 26, 30, 34 and 35) are not specified in appellant’s brief as required by our rule 24, and are therefore disregarded.

Assignments 1, 2, 3, 4, 6, 8, 9, 14, 15, 16, 17, 18 and 19, which are printed in the margin,³ attempt to raise questions which, for several reasons, cannot be considered. In the first place, the rulings complained of are not in the record. These assignments are based, not on the record, but on a so-called “decision,” which is printed in the transcript and occupies 37 pages thereof. Preceding it and forming part of it is a S-page syllabus, stating, under appropriate heads, the several points of law therein decided. In this “decision” the trial judge indicates the nature of the proceeding, states the issues, reviews the evidence, discusses and decides the questions involved, cites numerous authorities in support of his conclusions, and states that judgment in conformity therewith will be signed upon presentation. Though labeled “decision,” this obviously is merely the trial judge’s opinion. Compare China Press v. Webb (C.C.A.9) 7 F.(2d) 581, 582; Rasmusson v. Eddy’s Steam Bakery (C.C.A.9) 57 F.(2d) 27, 28; Alexander Pickering & Co. v. Chinese American Cold Storage Ass’n (C.C.A. 9) 71 F.(2d) 895, 896. Since the opinion is no part of the record, error cannot be predicated thereon. Mutual Reserve Fund Life Ass’n v. Du Bois (C.C.A.9) 85 F. 586, 589; Kelly v. United States (C.C.A.9) 84 F.(2d) 541, 542.

The trial court made no finding of facts other than the general finding embodied in its judgment. No special finding was requested, and none was made. The trial judge’s opinion — called by him a “decision” — was not a special finding of facts within the meaning of the statute.⁴ Louisiana Mutual Ins. Co. v. Tweed, 7 Wall. 44, 51, 19 L.Ed. 65; Dickinson v. Planters’ Bank, 16 Wall. 250, 21 L.Ed. 278; Raimond v. Terrebonne Parish, 132 U.S. 192, 194, 10 S.Ct. 57, 33 L.Ed. 309; British Queen Mining Co. v. Baker Silver Mining Co., 139 U.S. 222, 11 S.Ct. 523, 35 L.Ed. 147; Fleischmann Construction Co. v. United States, 270 U.S. 349, 355, 46 S.Ct. 284, 287, 70 L.Ed. 624; Eastman Kodak Co. v. Gray, 292 U.S. 332, 336, 54 S.Ct. 722, 724, 78 L.Ed. 1291; Alexander Pickering & Co. v. Chinese American Cold Storage Ass’n, supra; Rasmusson v. Eddy’s Steam Bakery, supra; Morrison Mill Co. v. Hartford Fire Ins. Co. (C.C.A.9) 35 F.(2d) 862, 863; Isaacs v. De Hon (C.C.A.9) 11 F.(2d) 943, 944; China Press v. Webb, supra; Java Cocoanut Oil Co. v. Pajaro Valley National Bank (C.C.A.9) 300 F. 305, 306; Northern Idaho & Montana Power Co. v. A. L. Jordan Lumber Co. (C.C.A.9) 262 F. 765, 766.

' This is so, notwithstanding the trial judge, here and there in his opinion, states that he “finds” such and such facts to be true,⁵ and, in concluding his opinion, refers to it as “the above findings and decision.” As observed by Judge Rudkin in Java Cocoanut Oil Co. v. Pajaro Valley National Bank, supra, such expressions “cannot make of the opinion something which it manifestly is not.” See, also, Eastman Kodak Co. v. Gray, supra, where, although the trial judge’s opinion declared that the statements of fact therein contained might be taken as findings of fact, the Supreme Court held there was no special finding. Such, also, was the holding of this court in Rasmusson v. Eddy’s Steam Bakery, supra, where, pending appeal, the trial court made a nunc pro tunc order adopting its “decision” as special findings of fact. Judge Wilbur, speaking for this court, said: “Waiving the jurisdictional question involved, the fact remains that the decision or opinion of the court cannot be treated as special findings in a case at law tried by the court without a jury. It has been frequently so decided.”

Since there is in this case no special finding of facts, our review is limited to rulings on the pleadings and to those rulings in the progress of the trial which were excepted to at the time and are duly presented by the bill of exceptions, as required by statute.⁶ Fleischmann Construction Co. v. United States, supra. See, also, Norris v. Jackson, 9 Wall. 125, 128, 19 L.Ed. 608; Miller v. Brooklyn Life Ins. Co., 12 Wall. 285, 300, 20 L.Ed. 398; Dickinson v. Planters’ Bank, supra; Mercantile Mutual Ins. Co. v. Folsom, 18 Wall. 237, 248, 21 L.Ed. 827; Cooper v. Omohundro, 19 Wall. 65, 69, 22 L.Ed. 47; Springfield Fire & Marine Ins. Co. v. Sea, 21 Wall. 158, 161, 22 L.Ed. 511; Martinton v. Fairbanks, 112 U.S. 670, 673, 5 S.Ct. 321, 28 L.Ed. 862; Boardman v. Toffey, 117 U.S. 271, 272, 6 S.Ct. 734, 29 L.Ed. 898; British Queen Mining Co. v. Baker Silver Mining Co., supra; Lehnen v. Dickson, 148 U.S. 71, 73, 13 S.Ct. 481, 37 L.Ed. 373; St. Louis v. Western Union Tel. Co., 166 U.S. 388, 390, 17 S.Ct. 608, 41 L.Ed. 1044; Vicksburg, Shreveport & Pac. Ry. Co. v. Anderson-Tully Co., 256 U.S. 408, 415, 41 S.Ct. 524, 527, 65 L.Ed. 1020; Law v. United States, 266 U.S. 494, 496, 45 S.Ct. 175, 176, 69 L.Ed. 401; Arthur C. Harvey Co. v. Malley, 288 U.S. 415, 418, 53 S.Ct. 426, 427, 77 L.Ed. 866; Eastman Kodak Co. v. Gray, supra; McCaughn v. Real Estate Land Title & Trust Co., 297 U.S. 606, 608, 56 S.Ct. 604, 605, 80 L.Ed. 879; and decisions of this court cited above.

The rulings complained of in assignments 1, 2, 3, 4, 6, 8, 9, 14, 15, 16, 17, 18, and 19 were not rulings on the pleadings, they were not rulings in the progress of the trial, they were not excepted to, they are not presented by the bill of exceptions, and are, therefore, not subject to review.

Assignments 20 and 25 relate to the trial court’s action in permitting the Railway Company to amend its answer by setting up the above-mentioned claim for damages. These assignments are well taken. The Railway Company had its remedy under section 24 (20) of the Judicial Code [28 U.S.C.A. § 41 (20)]; or under section 145 (1) of the Judicial Code ⁷ [28 U.S.C.A. § 250 (1)] but the statute under which this condemnation proceeding was brought (Act of April 14, 1930, supra) did not authorize the Railway Company to pursue that remedy in this proceeding.

Assignments 22, 23, 24, 32, and 33 are that the trial court erred in excluding testimony to the effect that, if appellant had the power to take without compensation the rights it was seeking to condemn, the market value of those rights would, in the opinion of the witness, be adversely affected by the existence of that power and the possibility of its exercise. Some of the excluded testimony purported to show, in dollars and cents, how much, in the opinion of the witness, the market value of the rights in question would be reduced by the possibility just mentioned. The rights in question were “privately owned rights of fishery,” which, of course, were private property. Since, under the Constitution, appellant has no power to take such property without compensation, testimony regarding the supposed effect of such nonexistent power was properly excluded.

Assignment 27 is to the admission of testimony regarding the annual rental value of the Honouliuli Fishery, of which the 2,-340 acres above referred" to formed a major part. Appellant’s objections were (1) that the value to be established was fair market value, not rental value, and (2) that the witness was not qualified to testify on this subject. There was no merit in these objections. Rental value is proper evidence of market value, especially where, as in this case, there is no evidence of sales. Northern Pacific Ry. Co. v. North American Tel. Co. (C.C.A.8) 230 F. 347, 352, L.R.A.1916E, 572. The qualifications of the witness were properly established.

Assignments 28, 29, and 31 also .are to the admission of testimony. These assignments are insufficient under our rule 11, in that they do not set out separately and particularly the errors asserted and intended to be urged, and do not quote the full substance of the evidence the admission of which is complained of. Instead, each assignment sets out what appears to be a part of the court reporter’s transcript. Each contains a long series of questions and answers, some objected to, some not, interspersed with argument and colloquies between court and counsel, the result being that no one can tell from reading the assignment which or what evidence appellant claims was erroneously admitted. These assignments are therefore disregarded.

Assignment 36 is that the trial court erred in denying appellant’s motion for a new trial. This ruling was not assignable as error. Fairmont Glass Works v. Club Fork Coal Co., 287 U.S. 474, 481, 53 S.Ct. 252, 254, 77 L.Ed. 439.

Assignment 37 is that the trial court erred in rendering judgment' against appellant. This is not a valid assignment of error. United States v. Ferguson (C.C.A.2) 78 F. 103, 105; United States Shipping Board Emergency Fleet Corp. v. Drew (C.C.A.3) 288 F. 374; Hart v. Bowen (C.C.A.5) 86 F. 877, 882; Philadelphia Casualty Co. v. Fechheimer (C.C.A.6) 220 F. 401, 409, Ann.Cas.1917D, 64; Smith v. Hopkins (C.C.A.7) 120 F. 921, 923; United States v. Atchison T. & S. F. Ry. Co. (C.C.A.8) 270 F. 1, 4.

In so far as it awards damages or compensation to appellee Oahu Railway & Land Company, the judgment is reversed. In all other respects, it is affirmed.

1 These answers raised no issue save as to the amount of compensation to he paid and the distribution thereof. Appellant’s right to take by condemnation the rights sought to be condemned was not and is not questioned.

2 These damages are referred to in the judgment as “compensation” for a “partial taking” of the Railway Company’s leasehold interest in the condemned rights of fishery prior to the commencement of this proceeding.

3 Assignment 1: “The court erred in denying the Government a paramount sovereign power to take without compensation in navigable waters.”

Assignment 2: “The court erred in awarding a fair market value for the right to take the fish nehu without considering the effect upon such value of the exercise of a paramount, sovereign power to take without compensation, which entirely prevented the enjoyment of such right.”

Assignment 3: “The court erred in awarding a fair market value for the fishery without considering the effect upon such value of the exercise, or possible exercise, of a paramount, sovereign power to take without compensation.”

Assignment 4: “The court erred in holding that the proper promulgation and lawful enforcement of a paramount, sovereign power which deprived the owners of the enjoyment of fishing rights constituted a taking of such rights.”

Assignment 6: “The court erred in holding that the validation or adjudication of the Hawaiian right of fishery by the konohiki [the Campbell estate] under sections 95 and 96 of the Hawaiian Organic Act [Act of April 30, 1900, c. 339', §§ 95, 96, 31 Stat. 160 (48 U.S.C.A. §§ 506, 507)] was an adjudication in trust for the hoaainas.”

Assignment 8: “The court erred in holding that the hoaainas [Adelaide K. Akina, II. N. Kaikainahaole and the Dowsett Company, Ltd.] were not required to adjudicate their claims to Hawaiian rights of fishery by Sections 95 and 96 of the Hawaiian Organic Act.”

Assignment 9: “The court erred in holding that sections 95 and 96 of the Hawaiian Organic Act did not pi>event one from acquiring an exclusive hoaaina right to take fish after the effective date of said act.”

Assignment 14: “The court erred in holding that the adjudication under sections 95 and 96 of the Hawaiian Organic Act of the konohiki right of fishery was not an adjudication of a claim of a right to take only the fish mullet but was an adjudication of a right to take any species and all variety of fish within the fishery.”

Assignment 15: “The court erred in holding that the voluntary adjudication under Sections 95 and 96 of the Hawaiian Organic Act of a claim of a right to take only one species or variety of fish did not estop the konohiki from seeking compensation for any species and all varieties of fish within the fishery.”

Assignment 16: “The court erred in awarding the konohiki compensation for the right to take any species or variety of fish except the mullet.”

Assignment 17: “The court erred in awarding compensation for consequential damage and injury to the fishery.”

Assignment 18: ' “The court erred in awarding compensation for the deprivation of the use of the fishery for years barred by the statute of limitations.”

Assignment 19: “The court erred in awarding compensation for the deprivation of use in these proceedings.”

4 Section 649 of the Revised Statutes, as amended (28 U.S.C.A. § 773), provides : “Issues of fact in civil cases in any district court may be tried and determined by the court, without the intervention of a jury, whenever the parties, or their attorneys of record, agree to waive a jury by a stipulation in writing filed with the clerk or by an oral stipulation made in open court and entered in the record. The finding of the court upon the facts,, which may be either general or special, shall have the same effect as the verdict of a jury.”

Section 700 of the Revised Statutes, as amended (28 U.S.C.A. § 875), provides: “When an issue of fact in any civil cause in a district court is tried and determined by the court without the intervention of a jury, according to section 649 [28 U.S.C. A. § 773], the rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed ... upon a writ of error or upon appeal; and when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment.”

5 Compare China Press v. Webb, supra.

6 See footnote 4, supra.

7 Sections 24(20) and 145(1) of the Judicial Code were derived from §§ 1 and 2 of the Act of March 3, 1887, c. 359, 24 Stat. 505, commonly known as the Tucker Act.