
    STELLA EADDY v. THE UNITED STATES
    [No. 563-52.
    Decided March 6, 1956]
    
      
      Mr. Harry Brókaw for the plaintiff.
    
      Mr. Victor A. Altman, with whom was Mr. Assistant Attorney General Perry W. Morton, for the defendant.
   Jones, Chief Judge,

delivered the opinion of the court:

Plaintiff sues to recover damages for injuries done to her property and for other losses suffered by her in connection with a lease of some of her land to the Government.

Early in 1943 the Army’s Corps of Engineers selected a site in Sumter County, Florida, for an airfield. Lands were leased from several owners, including plaintiff, and the airfield was constructed during the summer of 1943.

The officer who negotiated with plaintiff obtained from her a signed entry permit in April 1943, covering 105 of her 250 acres. The formal lease was executed six months later, in October, and was for a term beginning April 8,1943.

The Army took possession on or about May 1, 1943, and retained the property until November 12, 1946, when the lease was terminated and the 105 acres were returned to plaintiff. The petition in this case was filed on November 10, 1952, just two days short of six years after the termination of the lease. As a consequence of the late filing, those of plaintiff’s claims not cognizable under the lease are barred by the statute of limitations.

The lease provided for an annual rental payment for the 105 acres, and for additional payments for removing from the leased land and relocating fences, sheds, and some overhead irrigation pipe, and for the destruction of a well. It specified that “in consideration of the agreed payment * * * the Lessor hereby releases the Government from liability for all damages to * * * [the well, sheds, fences, and irrigation system] * * * and in addition, releases the Government from liability for reasonable damage to the land.” There was also this provision: “No damages for destruction of timber is waived herein.” - - - • • ■ -

- The specified payments were duly made by defendant and accepted by plaintiff.

The Government reserved the right, in the lease, “to make alterations, attach fixtures, and erect additions, structures, or signs, in or upon the premises * * *, which fixtures, additions, or structures * * * shall be and remain the property of the Government and may be removed or otherwise disposed of by the Government.” The lease contained no provision relating to restoration of the premises by the lessee.

It seems clear, at the outset, that three of plaintiff’s claims must be eliminated. They cannot be said to be predicated upon the terms of the lease, express or implied; and none of the three arose within six years of the filing of the action.

The fence on which brush was piled while workmen were clearing a lane for telephone lines was on that portion of plaintiff’s land not included in the lease. The damage was done in 1943. The irrigation pipe which an officer and his men.carried away was taken from unleased lands. The pipe was taken in 1943. The hogs which found their way to barbecue pits in the airfield escaped from fenced areas in the unleased land. The last of them disappeared .in 1944. Whatever validity or lack of it these claims may have had in this court if asserted in time, they were not timely filed, and they therefore are barred by the statute of limitations.

Shortly after the Army took possession of the .premises! leased from plaintiff work was begun on clearing the land for runways and appurtenant taxiways and parking spurs. Among the trees felled were several pines, some large enough for sawtimber and some of pulp size.. Use was made of the felled trees accordingly. Some were sawed into lumber and some into pulp logs.

Plaintiff claims the value of the timber in its processed form, on the ground that defendant was a wrongdoer or trespasser when it cut the trees. The lease stated that the premises were “to be used for the following purpose: Requirements of the War Department.” It also contained a reservation, heretofore noted, that “no damages for destrucr tion of timber is waived herein.” Plaintiff does not contend that she did not know, from the start, that the Army wanted the land for an airfield and that in making the area usable for that purpose some woodland would have to be cleared. The evidence as a whole invited the inference that the reservation pertaining to timber was inserted for the express purpose of postponing until a later date evaluation of the timber to be cut. We do not think the faets of this case justify the application of plaintiff’s theory of damages.

In every lease, however, there is an implied obligation on the part of the lessee to “ * * treat the premises demised in such manner that no injury be done to the inheritance * * *’ ”. United States v. Bostwick, 94 U. S. 53, 66. Defendant concedes liability for diminution in the value of plaintiff’s land resulting from the cutting of the timber and V?e think that is the proper measure of damages.

Our finding places the stumpage value of the timber at $300. Plaintiff excepts to the use of stumpage value as the criterion, and further contends that, if stumpage value is to be used, our determination of the quantity cut is inadequate. We adhere to the stumpage value determination as being reasonable, in view of the evidence as a whole.

When defendant returned to plaintiff the 105 acres involved in this lease, the market value of the tract was $500 less than it would have been if defendant had not cut timber to make room for runways and had not constructed the runways. This amount also includes $68 diminution for the action of defendant in leaving the treetops on the ground, as is indicated by the trial commissioner’s findings which we have adopted. As we have said, $300 of the $500 represents the stumpage value of the felled timber.

Defendant does not question the $300 valuation, but objects to the inclusion of $68 additional in the overall estimate of diminution. Defendant contends that the premises suffered no damage from the Army’s action in leaving the .treetops on the ground, and cites plaintiff’s subsequent action, after the property was returned to her, in selling the standing timber that remained without requiring the contractor to remove the brush. The argument is unconvincing. If portions of the land had not been previously cluttered with brush from felled trees, plaintiff might not have made the later contract at all, or might have required different terms.

We think defendant’s failure to remove the brush contributed to the diminution of the value of the land, and the $68 would not be an unreasonable allowance for that damage.

Plaintiff asks for the cost of removing the asphalt, gravel, and sand used in hard-surfacing the runways and spurs. The Army abandoned these installations, and plaintiff did not remove them. The cost of removing the pavement from the 8.3 acres of land covered by it would have greatly exceeded the value in fee of that portion of the land. Plaintiff seeks damages based on the cost of removing the pavement.

Defendant concedes liability for diminution in the value of plaintiff’s land resulting from the presence of the pavements, on the same ground as for the timber claim. Here again wé agree that the basis of liability and the measure of damages are correctly stated by defendant, and we have found the diminution from this cause amounts to $132, being the total value of 3.3 acres at $40 per acre.

All items together amount to a diminution of value in the sum of $500. Plaintiff is entitled to recover this amount.

Defendant vigorously contests plaintiff’s right to recover the value of the unharvested peppers, challenging the claim on the facts as well as the law. We have sustained the trial commissioner’s findings of the facts. The peppers were growing in land within the area the Army wanted when the officer negotiated with plaintiff for the entry permit. The officer assured plaintiff that she would be permitted to complete the harvest, which would have been done during the month of May if plaintiff had not been denied permission to enter the premises after the Army took possession.

As for the condition survey which plaintiff signed in October and which recited that the peppers had been harvested, we do not recognize a problem of the magnitude defendant suggests in the conflict of testimony. In our view the occurrence was not such as necesarily to imply that one or the other, plaintiff or the representative of defendant, failed to tell the truth when on the witness stand and under oath.

There was essentially no disagreement between plaintiff and defendant’s administrative employee about the crops. Their discussion took place in October. The crops had been planted in April or earlier, before the Army took possession. By October plaintiff had long ago reconciled herself to the abandonment of the corn, beans, cucumbers, squash and tomatoes she had planted in the spring. Whether harvested or abandoned, those crops were no longer in issue when the condition survey was discussed. Apparently neither plaintiff nor defendant’s employee singled out the pepper crop for particular discussion. The employee of defendant understood that there was no issue concerning plaintiff’s crops. He typed up the document as showing they had all been harvested, the peppers included. Plaintiff intending acquiescence in the conclusion that there was no issue, but without realizing that she was prejudicing her claim for the peppers, signed the condition survey as it was presented to her.

But even if we thus explain plaintiff’s acquiescence in the condition survey, we cannot legally allow a recovery on the claim which plaintiff thought she had retained. If the Army’s promise to allow plaintiff to harvest her peppers is regarded as an independent contract between the parties, separate and apart from the lease, it was breached when the Government refused to allow her to enter. The statute of limitations bars any recovery on such a cause of action.

On the other hand, if we consider the promise to allow plaintiff to harvest the peppers as part of the lease agreement we cannot consider it because it was not included in the written memorial purporting to state the terms of the lease. To import such a promise into the lease would implicitly contradict the condition survey which was a part of the lease. It would give rise to an additional claim under the lease, the document (as set forth in paragraph 4 thereof) which settles several claims, exempts one other, but does not exempt the pepper claim. It would reform an instrument for what, at most, was a unilateral mistake as to its meaning. We do not think plaintiff is entitled to recover on the pepper claim.

For the diminution in value of the leased premises resulting from the cutting of timber and the paving installations, plaintiff is entitled to recover $500. Judgment will be entered accordingly.

It is so ordered.

Laramóre, Judge; MaddeN, Judge; Whitaker, Judge; and LittletoN, Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner W. Ney Evans, and the briefs and argument of counsel, makes findings of fact as follows:

1. At all times material to this action plaintiff was the owner of a tract of land containing 250 acres near the town of Bushnell, in Sumter County, Florida. In April 1943, after negotiations between plaintiff and representatives of the Army’s Corps of Engineers, plaintiff signed an entry permit which authorized the Corps of Engineers to occupy a part (105 acres ) of her land. The Corps of Engineers took possession on or about May 1,1943, and continued negotiations with plaintiff for a formal lease. The negotiations were completed and the lease was signed in October 1943. The Corps of Engineers remained in possession of the property until November 12, 1946, when the lease was terminated and the land was returned to plaintiff.

2. In connection with the lease the parties signed a joint survey and inspection report which contained the following comment on and description of the land :

* * * At one time most of the land in this community was being cultivated to field and general crops, however, at this time there is only patch farming being carried on. Most of the land is being used as range for cattle grazing.
Tract No. 18 [comprising 85 acres, more or less]: Most of this tract is wood land with quite a few pines in some spots. The land which is being cultivated is being operated with other land and most of the cultivated land on this tract is under overhead irrigation. Part of the land has not been under cultivation for a great many years and is still good truck land. Most of the open, but idle land, has been used too long until yields were found unsatisfactory. The topography is level to undulating * * *. The land is suited for the growing of field and truck crops.
Tract No. 20 [comprising 20 acres, more or less] : A little over % of this tract is in open farm land, but the most of this has not been cultivated for a number of years, as it appears yields have become unsatisfactory. There is a little over 2 acres under overhead irrigation for growing of truck crops. This is the home tract and is being operated with other lands, however, the home site is south of the part being taken. The topography is level to undulating and there are a few pine trees in part of the woods. * * *

3. During the years immediately preceding the use of her land by the Army, plaintiff had engaged in some truck farming (using irrigated land for such crops as tomatoes, cucumbers, and peppers) and had raised some live stock (hogs and cattle).

In the growing of peppers, plants started in seed beds in November were transplanted to open land in February, cultivated during the growing season, and harvested in April and May. The harvest sometimes involved more than one picking.

In April 1943, when plaintiff signed the permit for the entry by the Corps of Engineers, she had 1% acres of peppers growing on the land taken over by the Army. [Representatives of the Corps of Engineers who were negotiating with plaintiff assured her that she would be permitted to harvest the peppers. One picking was made over the 1% acres before the Army took possession around May 1. The remainder of the crop on this tract was never harvested, because the Army officers in charge of the post would not permit plaintiff to go on the land.

4. In April 1943, before the Army’s entry, plaintiff had 280 feet of 3-inch irrigation pipe on one of her fields. This field was near but not in the area taken over by the Army. A few days after the Army’s entry, an officer with the rank of colonel supervised a group of men in the moving of the pipe from the field where plaintiff had placed it into the area held by the Army. No request was made of plaintiff for the taking or use of the pipe. When plaintiff saw the men moving it, she remonstrated, and the colonel told her that the pipe was needed for an emergency and would be returned as soon as they were through with it. The pipe was never returned. When plaintiff later made inquiry about it, she was told the colonel had been transferred and no one else knew about it. Some time later some smaller pipe that had been taken at the same time was returned to plaintiff. There is no further evidence relating to the purpose for which or the authority by which the pipe was taken.

5. Shortly after the Army took possession of plaintiff’s land, the cutting of timber was begun and continued over a period of several weeks. A quantity of pine was cut, including some saw timber, some pulp, and some saplings large enough only for fence posts. The tops of the trees were permitted to lie where they fell as they were trimmed from the logs. They were still there when the land was returned to plaintiff.

6. While the timber was being cut, the Army cleared a lane across land owned by plaintiff and not included in the area leased, in order to run a telephone line into the leased area. The tops of some of the trees cut in the clearing of the lane fell on a fence on plaintiff’s unleased land, and were allowed to remain there. Plaintiff had the brush removed at a cost to her of $75.

7. Some time in October 1943, plaintiff and an Army major of the Corps of Engineers signed a lease (dated October 12, 1943) whereby plaintiff leased to defendant the tracts 18 and 20 (described in finding 2) for a term beginning April 8, 1943, subject to renewal from year to year, with provision for termination by defendant upon 30 days’ notice. In addition to legal descriptions of the land, the “premises” also included the following:

The improvements consisting of one (1) pump shed with approximately 580 square feet; one (1) well; % mile of fence; and 11.3 acres of overhead irrigation system, all more fully described in the Joint Survey and Inspection Eeport attached hereto and made a part hereof.

8. Defendant agreed, by the terms of the lease, to pay to plaintiff rent at the rate of $165 per year. This paragraph (numbered 4) of the lease also contained the following:

The Government shall pay the Lessor rent * * * and in addition thereto * * * $150 * * * for the destruction of one * * * well; * * * $60 * * * for taking down and relocating % mile of wire-fence; * * * $16 * * * for taking down and relocating two * * * sheds; and * * * $1,074 * * * for taking down and relocating 11.3 acres of overhead irrigation system, a total additional sum of * * * $1,300 to be paid June 30, 1943, and in consideration of the agreed payment of rental * * * the Lessor hereby releases the Government from liability for all damages to one * * * well; % mile of wire fence; two * * * Sheds; and 11.3 acres of overhead irrigation system and in addition, releases the Government from liability for reasonable damages to the land. No damages for destruction of timber is waived herein. * * *

The payments so specified were made by defendant and received by plaintiff.

9. The lease stated that the premises were “to be used for the following purpose: Requirements of the War Department.” It also contained the following provision:

The Government shall have the right, during the existence of this lease, to make alterations, attach fixtures, and erect additions, structures, or signs, in or upon the premises * * *, which fixtures, additions, or structures * * * shall be and remain the property of the Government and may be removed or otherwise disposed of by the Government.

The lease contained no provision relating to restoration of the premises by the lessee.

10. The lease also provided that:

As of the commencement date of this lease, a joint inventory and condition report of all personal property of the Lessor included in this lease, and also a joint physical survey and inspection report of the demised premises shall be made, said reports to reflect the then present condition, and to be signed on behalf of the parties hereto.

11. Some time in October 1943, after the lease had been signed, plaintiff and an administrative employee of the War Department signed a joint survey and inspection report, the last sentence of which stated that “this * * * Report is to be attached to and made a part of the lease * * * dated October 12, 1943.” The report contained the following:

It is hereby * * * agreed that the statements in Paragraphs 2 and 3 below contain a correct description of the condition of the * * * lands and improvements * * * and this report shall constitute evidence of the condition of the premises existing at the time of entry thereon by the Government.

The material portions of paragraph 2 of the report are set forth in finding 2.

Paragraph 3 of the report follows:

On the entire tract there are no improvements except as indicated below:
Tract No. 18:
(1) 9.1 acres of overhead irrigation system, which the Lessor is permitted to remove.
(2) 1 pump shed with 582 square feet of usable space, which the Lessor is permitted to remove.
(3) 14 mile of wire fencing which the Lessor is permitted to remove.
(4) One 4" bored well, which has been completely destroyed.
(5) 3 acres of corn and beans which has been harvested by the Lessor.
(6) 1.5 acres of peppers, which has been harvested by the Lessor.
(7) 1.8 acres of cucumbers which has been harvested by the Lessor.
(8) 1.9 acres of squash and tomatoes, which has been harvested by the Lessor.
Tract No. 20:
(1) % mile of wire fencing, which the Lessor has been permitted to remove.
(2) 2.2 acres of overhead irrigation system, which the Lessor is permitted to remove.
(3) 1 pump shed with 582 square feet, which the Lessor is permitted to remove.
Note: Item 2 on Tract No. 18, and Item 3 on Tract No. 20, are located on [sic] half of each tract.

12. The report described in the preceding finding was drafted and typed in offices of defendant in Orlando in the form quoted above except as to the words “which has been harvested by the Lessor” appearing in items (5), (6), (7), and (8) under Tract 18. These words, italicized above, were typed into the report by defendant’s administrative employee who called on plaintiff to obtain her signature. He got the information on which he based the insertions from plaintiff, and made the insertions before plaintiff signed the report.

In actual fact, none of the crops specified had been harvested by plaintiff. The Army’s possession of the land made it impossible for her to continue irrigation and cultivation. The crops were therefore abandoned. None was ready to harvest, except the peppers, and plaintiff intended to abandon claims for all except the peppers. When she signed the report, she was unaware of the statement in it that the peppers had been harvested.

13. Plaintiff’s 105 acres were part of a much larger acreage leased by the Army and used by it as an airfield. The timber cut from plaintiff’s land, as described in finding 5, represented clearing to make room for strips of pavement which were used as taxiways and parking stands. In the construction of these strips, courses of sand and gravel were laid and topped with asphalt. "When completed in late 1943 the strips consisted of one runway approximately 1,800 feet long and several spurs. Together they extended over an area of 15 or 20 acres, with paved surfaces totaling 3.3 acres. These strips were left in place when the lease was terminated and the land returned to plaintiff. The cost of removing the pavement from the 3.3 acres of land covered by it would greatly have exceeded the value in fee of that portion of the land.

14. After defendant took possession of the leased property, and after plaintiff’s fencing had been relocated and defendant had built some fencing of its own around the leased land, 30 hogs belonging to plaintiff broke through the fence she had provided to confine them and made their way into the property leased to defendant. Plaintiff applied for and was denied permission to enter the leasehold and recover the hogs. None was ever returned.

Hogs belonging to other residents of the area also got over into defendant’s airfield, as did some cattle. None of the livestock was returned to the owners.

Frequent barbecues were held by members of the military personnel stationed at defendant’s airfield. On one occasion several hundred people were present. Commissioned officers stationed there knew of and participated in the picnics, knowing that the animals slaughtered for the pits had come from nearby farms. On one occasion at least two of plaintiff’s hogs were recognized from their markings by one of the men assisting in the preparations for barbecue.

DAMAGES

15. Plaintiff seeks recovery (1) for the value of (a) the unharvested peppers, (b) the unreturned irrigation pipe, (c) the lost hogs, and (d) the lumber cut from the trees taken from her land; and (2) for the cost of removing (a) the brush from her fence, (b) the brush from the timber cutting, and (c) the pavement, sand, and gravel used in building the runways.

16. Defendant concedes liability for diminution in the value of plaintiff’s land resulting from the cutting of the timber and the building of the runways.

Defendant denies liability for the peppers, the pipe, the hogs, and the removal of brush thrown on plaintiff’s fence.

17. (a) The fair and reasonable value of the 280 feet of irrigation pipe described in finding 4 was $91.

(b) The fair and reasonable cost of removing the brush from plaintiff’s fence as described in finding 6 was $75.

(c) The fair and reasonable value of the peppers described in finding 3 was $500.

(d) The fair and reasonable value of the hogs lost in defendant’s airfield was $720.

18. When defendant returned to plaintiff the 105 acres in-yolved in this lease, the market value of the tract was $500 less than it would have been if defendant had not cut the timber from 30 acres to make room for the runways and had not constructed the asphalt runways.

conclusion op law

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover, and it is therefore adjudged and ordered that she recover of and from the United States five hundred dollars ($500). 
      
       At the trial plaintiff made claim for defendant’s failure to remove the brush. No claim therefor was asserted in the petition. The action of defendant in leaving the tops on the ground has been included in making the ■ determination set forth in finding 18.
     
      
       The lease is in evidence as plaintiff’s exhibit 1-A, which is incorporated herein by reference.
     
      
       There is no evidence of any conscious purpose on the part of defendant’s employee to mislead or overreach plaintiff.. The occurrence was simply the outcome of a transaction between a meticulous, document-minded Government employee and a farm woman who was unfamiliar with and unaccustomed to legal transactions and legal papers.
     
      
      The main runways for takeoff and landing were on lands leased from owners other than plaintiff.
     
      
      Defendant’s concession Is limited to such recovery as may be predicated on an implied covenant by defendant to return the premises in good condition, subject to the express release “from liability for reasonable damages to the land.”
     
      
      Defendant contends that all items of plaintiff’s claims not cognizable under an implied covenant to return the premises in good condition are barred by tlie statute of limitations, since the evidence shows that all such claims accrued more than six years before the petition was filed.
     
      
      
         In addition to the statute of limitations, defendant cites plaintiff’s signature on the joint report, asserting that the peppers had been harvested, and challenges the probative value of the evidence relating to the value of the crop.
     
      
      At the trial of this action defendant’s objection to the reception of evidence relating to the pipe, the hogs, and the brush, on the ground that they are claims sounding in tort, was sustained. The evidence was received in lieu of an offer of proof.
     
      
       Defendant has requested findings relating to the valuation of all items of claim included in this finding except the lost hogs.
     
      
       The stumpage value of the timber cut by defendant, as of the termination of the lease, was $300. The market value of pasture land (which was the highest and best use of the cleared ground) in that area as of the termination of the lease was $40 per acre. Cf., finding 5, footnote 1.
     