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United States v. Burmeister

February 2, 1949

UNITED STATES
v.
BURMEISTER ET AL.



Phillips

Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.

PHILLIPS, Chief Judge.

This is an appeal from a supplemental award in a condemnation proceeding.

On May 4, 1943, the United States filed a petition in condemnation to acquire, for a term ending June 30, 1944, with the right to extend the term for additional yearly periods "during the existing national emergency," 218,880 acres of land in Kansas, for use as a aerial gunnery range and for such other purposes as might be authorized by Congress or Executive Order.

On May 4, 1943, the court entered an order that the United States, from and after June 1, 1943, was entitled to occupy and use the land for the purposes and for the term stated in the petition.

The court appointed appraisers and on July 9, 1943, gave them written instructions in which it stated that in determining just compensation for the temporary use and occupancy of such land, they should datermine the fair value of the temporary occupancy, "with proper regard being paid to the nature of the occupancy."

On December 4, 1943, the Secretary of War filed a declaration of taking. Such declaration described the lands to be taken, including a tract of land, designated as tract No. 972, belonging to Ferdinand F. Burmeister. It stated the estimated compensation for that tract for the term ending June 30, 1944, was $321.

On December 4, 1943, a judgment was entered on the declaration of taking, which described the lands, including tract No. 972, and adjudged that there was vested in the United States "a term for years ending June 30, 1944," in such lands, together with right to extend such term for yearly periods during the existence of the national emergency. It expressly retained jurisdiction in the court to enter such further orders and judgments as might be necessary.

On May 30, 1944, the trial court entered an order extending the term for years from July 1, 1944, to June 30, 1945.

The appraisers awarded as just compensation for tract No. 972, $360 for the term ending June 30, 1944, and $393 for each yearly extension thereof. On March 30, 1945, the trial court entered a preliminary judgment confirming the awards of the appraisers. It again reserved jurisdiction as in the previous judgment of December 4, 1943.

On May 29, 1945, the trial court entered an order extending the term for years from July 1, 1945, to June 30, 1946.

Title to tract No. 972 passed to Magdalene D. Burmeister and Katherine W. Burmeister on January 1, 1945, and, in accordance with orders entered by the trial court, an aggregate of $786 was paid to them for the two extensions of the original term.

The United States, acting by the contract officer of the Corps of Engineers of the Army, entered into so-called negotiated concurrent leases with certain of the landowners. Each of such leases provided that the United States was given the right to use the land described therein as an "aerial gunnery range and for military purposes," and that the owner might use the land for other purposes.

In the spring of 1944, C.E. West contacted the contract officer and inquired if he could farm tract No. 972. The contract officer directed West to take the matter up with Ferdinand F. Burmeister. The contract officer told West he might go ahead and summer fallow the tract and if West worked out a deal with Burmeister it would be all right for him to go ahead and farm it. West arranged to rent the tract from Burmeister for one-fourth of the crop. West summer fallowed the land drilled it to wheat in the fall of 1944. The next year, shortly before time to harvest the wheat, the contract officer advised West that he had no right to work the land since Burmeister had not signed a concurrent lease, and unless West paid him immediately $3,000 for one-fourth of the ...


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