Zook Palm Nurseries, Inc. v. United States

Fifth Circuit

Zook Palm Nurseries, Inc. v. United States

128 F.2d 668, 1942 U.S. App. LEXIS 3667

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 3, 1942

DocketNo. 9978

StatusPublished

This text of 128 F.2d 668 (Zook Palm Nurseries, Inc. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Zook Palm Nurseries, Inc. v. United States, 128 F.2d 668, 1942 U.S. App. LEXIS 3667 (5th Cir. 1942).

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HOLMES, Circuit Judge.

This action was filed by appellant against the United States to recover damages, in the sum of $188,296.23, done to its nursery gardens and property located along the east bank of the Intracoastal Waterway in Palm Beach County, Florida. It is alleged in the complaint, as the cause of the injury, that said property was overflowed by salt water from said Intracoastal Waterway; and that this was due to its widening and deepening in the vicinity thereof, and the removal of the dike along the side thereof, by the War Department. •

This appeal is taken from an order of the court below dismissing the complaint, in accordance with findings of fact and conclusions of law filed on the same day, after a preliminary hearing was had as required by the Act under which the suit was ■brought.¹ On this hearing, the district judge found that appellant had signed a complete release of the claim against the United States, and that the release agreement did not contemplate the construction of a dike by the Government.

Since the right of appeal, as well as the jurisdiction of the district court, is limited by the provisions of said Private Act, the appellee contends that, after the findings were made by the judge in the court below, no further proceedings were permissible either in the court below or on [669]*669appeal to this court. We do not so construe the provision for appeals in suits under the Act. It provides that such appeals “shall be had in the same manner as in the case of claims over which said court has jurisdiction under the provisions of the Judicial Code.” Therefore, we hold that the appeal in this case was proper; and we turn to a consideration of the same on the merits of the issues submitted to the district judge at a separate hearing under the first proviso of said Act.

After conferring jurisdiction upon the court below to “hear, determine, and render judgment, upon” the above claim, said Act contained the following proviso: “Provided, That the district judge shall, at a separate hearing, first determine whether or not any release signed by claimant, Zook Palm Nurseries, Incorporated, and particularly a release dated May 3, 1935, is a complete release of the claim against the Government which the claimant alleges ; and whether or not the release agreement contemplated the construction of a dike by the United States Government. Should the judge find that the release was a full and complete one as to the claims herein alleged, or if the judge finds that the release agreement did not contemplate the construction of a dike by the Federal Government, no further proceedings shall be had.”

After a full hearing as required in said proviso, the district judge found both that said instrument was a complete release for past, present, and future damages suffered by appellants, and that the release agreement did not contemplate the construction of a dike by the United States. There was ample substantial evidence to support these findings, and we concur therein. The judge having so found, it became the duty of the court below to dismiss the suit, since the Act provided that no further proceedings should be had therein.

The judgment appealed from is affirmed.

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HOLMES, Circuit Judge.

This action was filed by appellant against the United States to recover damages, in the sum of $188,296.23, done to its nursery gardens and property located along the east bank of the Intracoastal Waterway in Palm Beach County, Florida. It is alleged in the complaint, as the cause of the injury, that said property was overflowed by salt water from said Intracoastal Waterway; and that this was due to its widening and deepening in the vicinity thereof, and the removal of the dike along the side thereof, by the War Department. •

This appeal is taken from an order of the court below dismissing the complaint, in accordance with findings of fact and conclusions of law filed on the same day, after a preliminary hearing was had as required by the Act under which the suit was ■brought.¹ On this hearing, the district judge found that appellant had signed a complete release of the claim against the United States, and that the release agreement did not contemplate the construction of a dike by the Government.

Since the right of appeal, as well as the jurisdiction of the district court, is limited by the provisions of said Private Act, the appellee contends that, after the findings were made by the judge in the court below, no further proceedings were permissible either in the court below or on [669]*669appeal to this court. We do not so construe the provision for appeals in suits under the Act. It provides that such appeals “shall be had in the same manner as in the case of claims over which said court has jurisdiction under the provisions of the Judicial Code.” Therefore, we hold that the appeal in this case was proper; and we turn to a consideration of the same on the merits of the issues submitted to the district judge at a separate hearing under the first proviso of said Act.

After conferring jurisdiction upon the court below to “hear, determine, and render judgment, upon” the above claim, said Act contained the following proviso: “Provided, That the district judge shall, at a separate hearing, first determine whether or not any release signed by claimant, Zook Palm Nurseries, Incorporated, and particularly a release dated May 3, 1935, is a complete release of the claim against the Government which the claimant alleges ; and whether or not the release agreement contemplated the construction of a dike by the United States Government. Should the judge find that the release was a full and complete one as to the claims herein alleged, or if the judge finds that the release agreement did not contemplate the construction of a dike by the Federal Government, no further proceedings shall be had.”

After a full hearing as required in said proviso, the district judge found both that said instrument was a complete release for past, present, and future damages suffered by appellants, and that the release agreement did not contemplate the construction of a dike by the United States. There was ample substantial evidence to support these findings, and we concur therein. The judge having so found, it became the duty of the court below to dismiss the suit, since the Act provided that no further proceedings should be had therein.

The judgment appealed from is affirmed.

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128 F.2d 668, 1942 U.S. App. LEXIS 3667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zook-palm-nurseries-inc-v-united-states-ca5-1942.

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