
    SIMON R. CURTIS v. THE UNITED STATES
    [No. E-369.
    Decided April 2, 1928]
    
      On the Proofs
    
    
      Eminent domain; aot of July 1, 1918; just compensation; refusal to accept 75% of aioard; interest. — See Famvie G. Curtis et al. v. United States, ante, p. 139.
    
      The Reporter's statement of the case:
    
      Mr. Allan D. Jones for the plaintiff. Mr. George Nelms Wise was on the brief.
    
      Mr. Dan M. Jaehson, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. The plaintiff is a citizen of the United States, residing in Warwick County, Virginia, and has at all times borne true and loyal allegance to the Government of the United States.
    II. On September 7, 1918, the plaintiff was the sole owner of the following described real estate, with all rights, privileges, and appurtenances thereunto belonging or appertaining :
    “A. All that certain tract of land situate, lying, and being in Nelson District in York County, State of Virginia, located on. York River, and being that part of the Bellfield Tract known as ‘ Sandy Point ’ (including the old Mansion House and yard) and containing two hundred, and eighty-seven (287) acres, be the same more or less, and described and bounded as follows, to wit:
    
      “ Starting at a point on the lane at the corner of the lands of Howard S. McCandlish and E. W. Harwood (formerly the land of Daniel Morris) and running thence northerly on the ditch bank that divides the land herein described from the lands of E. W. Harwood; thence westerly in a straight line to a point on the line of the said E. W. Harwood opposite the line dividing the land of the said E. W. Harwood and the land herein described; thence from the point so established across the said road and along the said line running northerly to low-water mark on York River; thence along low-water mark to the extreme point of Sandy Point; thence to the center of the creek and thence along center of creek known as ‘ Indian Field Creek ’ to the line dividing the land of Howard S. McCandlish from the lands of Nannie E. McCandlish herein described, said line being marked by a wire fence; thence along said line to the point of beginning.”
    III. On September 7, 1918, the plaintiff had an undivided seven-eighths interest in the following-described real estate:
    “All that certain piece or parcel of land situate in Stanley District, Warwick County, Virginia, being a part of what was commonly called ‘ Seaborn Tract,’ bounded on north by Bryan and Robinson; on the east by the boundary of the right of way of the Government railway into the York Navy Mine Depot and part of Seaborn Tract, and on the west by the old county road, containing forty-five (45) acres, together with 2.17 acres additional in the right of way aforesaid.”
    The aforesaid tracts of land are located within the area of the Navy Mine Depot, Yorktown, Virginia, and were taken by the President of the United States for the United States, under act of Congress approved July 1, 1918 (Public, No. 182, 65th Congress), and passed into the possession and control of the United States September 8, 1918.
    IV. The tract called “Sandy Point,” together with the improvements thereon, the timber and riparian rights, on the 8th day of September, 1918, had a market value of $35,000.
    V. Seven-eighths of the tract called “ Seaborn’s ” and the right of way on the 8th day of September, 1918, had a market value of $4,000.
    VI. On or about June 3, 1920, the Board of Valuation of Commandeered Property of the Navy Department made an award of compensation for the aforesaid taking.
    
      Plaintiff refused to accept the award of the Board of Valuation at the time of its award and until November 5, 1925, refused to accept a 75 per centum of the award. On December 31, 1926, plaintiff was paid the sum of $14,726.25, 75 per centum of the award for' the Sandy Point tract. On 'April 11, 1927, plaintiff was paid $1,955.63, 75 per centum of seven-eighths of the award for the Seaborn Tract.
    The court decided that plaintiff was entitled to recover.
   Moss, Judge,

delivered the opinion of the court:

Under the authority of an act of Congress of July 1, 1918, 40 Stat. 704, the President of the United States, by proclamation, took over a tract of land in York County, Virginia, consisting of 11,433 acres, for the purpose of establishing a Navy mine depot. Included within the metes and bounds of the area taken was a tract of land belonging to plaintiff known as “ Sandy Point,” containing 267.85 acres. Plaintiff was also the owner of a seven-eighths undivided interest in a 45-acre tract of land known as the “ Seaborn Tract,” situated three miles from the first-named tract, which was likewise taken. The Government also took a right of way over an adjoining tract belonging to plaintiff, consisting of 2.17 acres for use in' the construction of a railroad to the naval mine base. All said property was taken under the authority of said proclamation on the 8th day of September, 1918. Plaintiff presented to the proper Navy board a claim for compensation for the property taken, and was awarded $19,635 for the Sandy Point Tract and $3,200 for plaintiff’s interest in the Seaborn Tract and the 2.17 acres taken for the right of way. Plaintiff declined to accept either the full award or 75 per centum thereof.

In this action, which is brought for the recovery of just compensation, plaintiff is claiming $90,000 for the Sandy Point Tract, and $8,700 for the undivided interest in the Seaborn Tract and the 2.17 acres taken for the right of way.

The evidence as to value as applied to the Sandy Point land is based on problematical future development under a plan formulated by plaintiff for the building of bridges and roads, and a subsequent subdivision of portions of the land, and the sale of same in building lots for residential purposes, and small parcels for truck gardening. Plaintiff was interested in securing the enactment by the General Assembly of Virginia of a measure authorizing plaintiff and others to build bridges over certain streams in the. neighborhood of plaintiff’s land. No steps, however, had been taken to develop the plan mentioned, although plaintiff had owned the property since 1906, and the act providing for the building of bridges and roads had been approved in March, 1916, more than two years prior to the taking. Without questioning the integrity of plaintiff’s intention with reference to the development of this land, the court can not accept the values shown in the evidence as representing the fair market value at the time of the taking. It is also contended in plaintiff’s brief that this property has a historic value, which should be considered in arriving at just compensation. The court is unable to agree with this theory. The Sandy Point farm, as well as the other land involved, is a short distance from Yorktown, to which certain historical associations undoubtedly attach, but the farm itself is endowed with no special feature of interest, historical or otherwise. The land is poor and unproductive, and the farming operations since plaintiff has owned same have been of inconsiderable importance and covered only a short period of time. The residence, known in the neighborhood as the “ Digges Mansion,” at the time of the taking, and for many years prior thereto, was in a dilapidated state and was occupied by a negro tenant who cultivated some of the land. Mere antiquity is not sufficient to entitle this farm to the distinction claimed by plaintiff. Plaintiff is entitled to the fair market value at the time of the taking, under conditions then existing.

The court has reached the conclusion that $35,000 for the Sandy Point Tract, and $4,000 for the seven-eighths interest in the Seaborn Tract, and the 2.11 acres taken for the right of way, represent the fair and reasonable market value of plaintiff’s land on September 8, 1918. Plaintiff is entitled to recover that amount, less $16,681.88 paid; and it is so ordered.

Under the rule announced in the case of Pope v. United States, 61 C. Cls. 974, plaintiff can not recover interest for the period between the date of the award and November 5, 1925. See Finding VI.

Judgment for plaintiff. It is so ordered.

Gkaham, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  