
    McLENNAN COUNTY, STATE OF TEXAS, v. THE UNITED STATES
    [No. C-523.
    Decided April 6, 1925]
    
      On the Proofs
    
    
      Eminent domain; lease; implied promise. — Where the United States leases land for aviation purposes, and the lease provides that the lessor shall close all roads on said land and put the premises into good condition for aviation purposes, there is no taking of property for public use with respect to roads which have been destroyed in accordance with the terms of the lease, nor is there an implied promise to pay for such destruction.
    
      The Reporter’s statement of the case:
    
      Messrs. Hugh Obear and ET/wood H. Seal for the plaintiff.
    
      Mr. Percy M. Gox, with whom was Mr. Assistant Attorney General William J. Donovan, for the defendant.
    The following are the facts as found by the court:
    I. The plaintiff is a county in the State of Texas, United States of America.
    II. On August 24,1911, a contract in writing for the lease of 690 acres of land located in McLennan County, State of Texas, was entered into between C. G. Edgar, captain, Signal Corps of the United States Army, in behalf of the United States of America, and the Waco Chamber of Commerce, a corporation existing under the laws of the State of Texas, of Waco, McLennan County, Tex.
    Under said lease the United States agreed to pay to the said Waco Chamber of Commerce a rental of $4,884.16 per month for said land.
    III. The said lease provided that the lessor “ shall close all roads on the property hereby leased, taking such legal proceedings as may be necessary to effectuate the same, by September 10, 1917.” The said lessor anticipating what it would be required to do, did on August 7, 1917, appear before the County Commissioners’ Court of McLennan County, Tex., and petition the said court that the certain portion of the McLennan Crossing lioad which ran through the land to be leased by the Waco Chamber of Commerce to the United States be closed to public travel during the location of a military aviation camp if one should be located on the land proposed to be leased to the United States; whereupon the court entered an order closing’ said road and providing that the entire usage and control of such portion of said road be and exist entirely in the United States Government for use and benefit of said military aviation camp during the location of said‘camp upon the premises.
    IY. The said tract of land so leased by the United States from the Waco Chamber of Commerce was taken possession of by the United States under said lease, and the 1 mile of public road belonging to the county of McLennan which ran through said tract of land was closed and used by the United States as provided for in said lease and as provided for by the county commissioners’ court of said county. During the occupation of said tract of land by the United States it was necessary to level said road so that it, together with other portions of said land, could be used for aeronautical purposes, and in the use thereof for said purposes a part of said road was plowed up and leveled over, consisting of about 400 feet of said road, which when it was rebuilt after the occupation of said tract of land by the United States ceased cost the county of McLennan $906.60. The whole cost of building the said 1-mile road to McLennan County was the sum of $12,008.
    There was also a bridge at a point in said road which was within the boundary of the land leased as aforesaid to the United States. In order to use the land for aeronautical purposes it was necessary to remove said bridge, which was done. The cost to McLennan County of replacing the said bridge was the sum of $1,338.75.
    V. The lease further provided that the lessor “shall do all grading, filling, and leveling necessary to put the property hereby leased in good condition to be used for aeronautical purposes.” The said lessor of the United States, after the United States took possession of said tract of land under the lease, leveled off the drainage ditches on the sides of said road and the intersecting dirt road in using the said tract for aeronautical purposes, and thereby made them useless for road purposes. It cost the said county to regrade the said two roads the sum of $2,900. In using said tract of land and road for aeronautical purposes it was necessary to build hangars with concrete floors, which wer.e built partly on the site of said road, which rendered it unfit for use as a road; and upon return of said road to said county it cost said county the sum of $1,979.95 to rebuild that portion of said road. »
    VI. The closing of said road made it necessary for the •county of McLennan to build a detour road, which it did at the cost to it of the sum of $10,918.30. The said detour road was used by the public and was authorized to be built by the commissioners’ court of McLennan County by its order of August 7, 1917 the said order providing, “that such road be, and is hereby, ordered changed during the pendency of said camp.” This change was ordered in the same order which turned over to the lessor of the aforesaid tract of land the use and control of the original road for the military aviation camp.
    VII. There was leveled off drainage ditches on either side of both county roads lying within the boundaries of the land so leased as aforesaid, which was done in order to make it suitable for aeronautical purposes. The rebuilding and retreating of said roads with asphalt cost the said county the sum of $2,549.20.
    The court decided' that plaintiff was not entitled to recover.
   MEMORANDUM BY THE COURT

The plaintiff in this case claims that the United States took its property and destroyed it, and it therefore insists that it must be paid, not only the cost of the property alleged to have been destroyed but in addition thereto the incidental damages which it was put to by the use of the property alleged to have been taken.

The facts, which are fully set out in the findings, do not disclose a taking of the property of the plaintiff by the United States. The United States leased a certain tract of land for purposes of aviation. The road of the plaintiff ran through the land.; the plaintiff before the lease was executed turned over the use and control of the road to the lessor of the United States with the distinct avowal in the order of its court that the road was to be used for the purposes of an aviation field. In the use of the land for aeronautical purposes it was necessary to level up the road, remove a bridge, and do other things to make the whole field level, and this was done partly by the lessor and partly for the said lessor by the United States. There was no taking of property for which recovery can be had in this court. If the plaintiff can recover, it must be upon an implied contract. The facts in this case preclude the implication of a promise to pay, and the plaintiff’s petition must be dismissed.

See Horstmann Co. v. United States, 257 U. S. 138, 145. 146. where reference is made to United States v. Lynah, 188 U. S. 445, and where it is pointed out by the court that in subsequent cases the “ generality ’’ in the reasoning of that case has had exception in subsequent cases.  