
    FANNIE C. CURTIS, ELIZABETH R. CURTIS, AND MARY E. SMITH v. THE UNITED STATES
    [No. E-368.
    Decided April 2, 1928]
    
      On the Proofs
    
    
      Eminent domain; act of July 1, 191S; just compensation; consequential damages; refusal to accept 75% of award; interest.— Where a portion of plaintiffs’ land was taken under the act of July 1, 1918, just compensation is to be measured by the value of the portion taken together with consequential damages to the remainder, but does not include interest on the percentage which they could have accepted, viz, 75 per cent of the award by the President.
    
      The Reporter’s statement of the case:
    
      Mr. Allan D. Jones for the plaintiffs. Mr. George Nebns Wise was on the brief.
    
      Mr. Dan M. Jackson, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. The plaintiffs are citizens of the United States, residing in Warwick County, State of Virginia, and have at all times borne true and loyal allegiance to the Government of the United States.
    II. On September 7, 1918, the mother of plaintiffs was sole owner of the following described real estate, with all rights, privileges, and appurtenances thereunto belonging or appertaining:
    
      All that certain tract of land situate on the old County-Road leading to Halstead’s Point, near Lebanon Church, and containing 170 acres, more or less. The said tract of land is crossed by the right of way for the railroad track running into the Navy Mine Depot at Yorktown, Virginia, the fee simple of which right of way was commandeered by the Government, the said right of way being numbered 299 and containing 3.28 acres, as shown on map of the Navy Mine Depot, Yorktown, Virginia, dated March 22,1920. The said right of way falls within the boundaries of the property formerly owned by Maria E. Curtis, mother of plaintiffs, and by her will devised to plaintiffs. No division of the property has been made among the plaintiffs.
    Under the will of their mother plaintiffs became entitled to the whole tract of land and the compensation provided for in the act of Congress hereinafter mentioned.
    III. Of the aforesaid tract there was taken by the President of the United States for the United States, under proclamation of August 7, 1918, pursuant to act of Congress approved July 1, 1918 (Public, No. 182, 65th Congress), said 3.28 acres, and the same passed into the possession and control of the United States September 7, 1918. By reason of said taking 4.1 acres of the remainder of plaintiffs’ land were damaged, being a triangular area on the County Road separated by the right of way from the main tract.
    IV. The reasonable market value of plaintiffs’ 3.28 acres of land so taken by the Government was, on the 7th day of September, 1918, $330.. The damage by reason of said taking to the said 4.1 acres of the remainder of plaintiffs’ land was $150.
    V. The President of the United States determined that’ the just compensation for the land taken as aforesaid was $330, and approved the findings of the Board of Valuation of Commandeered Property of the Navy Department, before whom plaintiffs had presented their claim for just compensation, awarding them that amount. The amount so awarded and determined was unsatisfactory to plaintiffs, and plaintiffs declined to accept the same or any part thereof.
    
      The court decided that plaintiffs were entitled to recover $480, with interest on $232.50 from September 7, 1918, until judgment is paid.
   Moss, Judge,

delivered the opinion of the court:

Under the provisions of an act of Congress of July 1, 1918, 40 Stat. 704, 722, the President of the United States, by proclamation dated August 7, 1918, took title to and authorized the Secretary of the Navy to take possession of a certain tract of land in York County, Virginia, containing 11,433 acres, with all riparian rights, privileges, easements, and other rights for the purpose of establishing a naval mine depot. As a part of and in connection with the use of said naval mine depot a railroad was constructed from the main line of the Chesapeake & Ohio Kailroad into the naval mine depot over the lands of plaintiffs’ 170-acre tract, consisting of 3.28 acres of land. The railroad and right of way separated from the larger body of land a small triangular area containing 4.1 acres situated on the County Eoad.

Under the provisions of said proclamation plaintiffs presented to the Board of Valuation of Commandeered Property of the Navy Department a claim for just compensation, and was awarded the sum of $330, which plaintiffs declined to accept. Plaintiffs also elected not to avail themselves of the right to receive 75 per centum thereof. This suit is for the recovery of $3,500, $1,000 of which plaintiffs claim as just compensation for the land actually taken, and $2,500 is for consequential damages to the remainder of the tract. While defendant directs the attention of the court to the case of Transportation Company v. Chicago, 99 U. S. 640, as authority for the denial of plaintiffs’ right to recover consequential damages to the remainder of the tract resulting from the actual taking of a portion thereof, the court is of the opinion that such damage constitutes a proper element in determining just compensation in this case. United States v. Grizzard, 219 U. S. 180, 183; United States v. Welch, 217 U. S. 333, 339; Campbell v. United States, 266 U. S. 368, 369; see also Sharp v. United States, 191 U. S. 341.

The court has found the value of the 3.28 acres of land taken for the right of way to be $330 as of the date of September 7, 1918. Incident to the taking of the strip for the railroad right of way plaintiffs are entitled to recover for the damage to the triangular area of 4.1 acres. The court has found.such damage to be $150. The evidence is not sufficient to justify a recovery for damage to the main body of the land. Having declined to accept the award, plaintiffs are not entitled to recover interest on $247.50 of the judgment herein. Pope v. United States, 61 C. Cls. 974.

Geai-iam, Judge/ Booth, Judge; and Campbell, OMef Justice, concur.  