
    410 F. 2d 773
    JOSEPH A. WHITE, JR., ET AL. v. THE UNITED STATES
    [No. 32-66.
    Decided May 16, 1969]
    
      
      Alfred A. Affmito, attorney of record for plaintiffs.
    
      Howard 0. Sigmond, with whom was Acting Assistant Attorney Generad Glen E. Taylor, foi defendant.
    Before CoweN, Chief Judge, Laramore, Durpke, Davis, ConniNS, SkeltoN, and Nichols, Judges.
    
   Nichols, Judge,

delivered the opinion of the court:

This case involves an alleged breach by the defendant of a contract in which the defendant agreed to sell certain surplus realty to the plaintiffs.

It is our opinion that the plaintiffs are entitled to recover, since the evidence in the record clearly shows that the defendant breached the contract between the parties. The court has a difficult problem, however, in connection with the determination of the amount due the plaintiffs because of the defendant’s wrongful action.

The realty involved in the present case consists of two parcels of land which formerly were part of the Camp Stone-man Military Reservation in Pittsburg, California. Camp Stoneman was declared surplus to the needs of the United States sometime xirior to 1960, and procedures to provide for the disposal of the surplus property were initiated by the defendant’s General Services Administration (GSA). Under the disposal plan prepared by the GSA, certain lands within the main cantonment portion of Camp Stoneman were set aside for conveyance to local governmental bodies as sites for schools, parks, and arterial streets; and the remainder of the Camp Stoneman area was divided into parcels for the purpose of sale. The municipal zoning contemplated that parts of the area would be used for heavy industry, controlled manufacture, and business. Part would be residential.

Two of the Camp Stoneman surplus parcels were designated as M-l and M-2. They are contiguous and together form an area that resembles a modified right-angle triangle, with a south side extending approximately 3,200 feet from west to east, an east side extending approximately 1,200 feet from south to north, and a hypotenuse which extends approximately 3,000 feet from northeast to southwest but fails to meet the south side of the “triangle,” so that there is actually a small, curved west side of the area. The area is bounded on the south side by a limited-access freeway maintained by the State of California, on the east side by private property, and on the north side (i.e., the hypotenuse) by a public street that is known as California Boulevard. See the plans attached to this opinion and made a part thereof.

Parcel M-l contains 11 acres and is located in the western portion of the triangular area previously mentioned. Parcel M-2 contains 40.9 acres and occupies the eastern portion of the triangular area.

Parcels M-l and M-2 are located outside the main cantonment portion of Camp Stoneman, and they are separated from the main cantonment portion by the limited-access freeway previously mentioned. The freeway bounds parcels M-l and M-2 on the south and bounds the main cantonment on the north. Parcels M-l and M-2 do not have access to the freeway.

Parcels M-l and M-2 are zoned for heavy industry by the City of Pittsburg. They are the only parcels with such a zoning among the many parcels into which Camp Stoneman was divided.

Two sets of railroad tracks are located on parcels M-l and M-2. They connect with the main line of the Southern Pacific, north of the parcels. The tracks run along most of the north boundary of the two parcels and are near California Boulevard. The tracks are located approximately 40 feet apart at the western end of parcel M-l, and they run parallel to a point near the eastern boundary of parcel M-2, where they converge into one track. The two sets of tracks and the area between them cover a strip of land approximately 79 feet wide on the north side of parcels M-l and M-2. The tracks were used by the Southern Pacific Company to provide transportation services for Camp Stoneman when it was an active military installation, and they connect with various spurs and sidings spreading out in the cantonment area south of the freeway, which they cross by a bridge.

At the time when parcels M-l and M-2 were offered for sale by the GSA, no crossing of the railroad tracks on the parcels had been established, and the tracks effectively separated the remainder of the two parcels from California Boulevard.

A contract was entered into between the defendant (represented by the GSA) and the plaintiffs on June 8,1962, under which the defendant agreed to sell and the plaintiffs agreed to buy parcels M-l and M-2 for a price of $140,000. A third parcel, designated as M-4, was also included in the contract. Parcel M-4 is a relatively small and irregularly shaped parcel lying to the east of the northeast corner of parcel M-2. The parties have treated parcel M-4 as being without significance in connection with the present litigation. With respect to the two sets of railroad tracks on parcels M-l and M-2, the contract provided in pertinent part as follows:

Bail/road Easement: There is reserved and excepted from this sale the existing trackage identified as “A”, “I” * * * on the plat attached to the Bid Invitation together with easements therefore [sic] 20 feet wide for railroad and transportation purposes upon, along, over and across parcels M-l, M-2 * * *.

It will be noted that the defendant contracted on June 8, 1962 to sell parcels M-l and M-2 to the plaintiffs subject to two 20-foot railroad easements for the two sets of existing railroad tracks on the parcels. However, three months earlier, on March 8, 1962, the defendant had entered into a contract with the Southern Pacific Company whereby the defendant agreed to sell and the SP agreed to buy the existing trackage on parcels M-l and M-2, together with a railroad easement 79 feet wide covering the two sets of tracks and also the area between the two sets of tracks. Thus, the “Railroad Easement” provisions of the contract between the defendant and the plaintiffs, on the one hand, and the contract between the defendant and the Southern Pacific Company, on the other hand, were inconsistent in so far as parcels M-l and M-2 were concerned. The evidence in the record warrants the inference that this mix-up was due to faulty coordination among the personnel of the GrSA, rather than to intentional wrongdoing by anyone. The defendant was faced with the necessity of breaching one of the contracts, and elected to breach the contract with the plaintiffs. The railroad contract was the earlier and defendant claims that the conflict between it and the plaintiffs was an inadvertence the plaintiffs should have discovered. We do not agree with this. Pikesville Home Builders Inc. v. United States, 160 Ct. Cl. 541 (1963).

A quitclaim deed conveying parcels M-l and M-2 to the plaintiffs was prepared by the GSA on June 22, 1962. The quitclaim deed stated with respect to parcels M-l and M-2 that there was reserved to the defendant, its successors and assigns, an easement for railroad and transportation purposes over a strip of land 79 feet wide running along the north side of the parcels and containing the two sets of existing railroad tracks, together with the area between the two sets of tracks.

The quitclaim deed mentioned in the preceding paragraph was delivered by the GSA to the plaintiffs’ escrow agent, Western Title Guaranty Company, on August 8, 1962, with closing instructions. The title transaction was closed and the purchase price was paid to the GSA on September 2, 1962. The deed was recorded by the Western Title Guaranty Company on September 21, 1962. It was forwarded to the plaintiffs by the escrow agent approximately one month later.

Prior to the receipt of the quitclaim deed from their escrow agent, the plaintiffs themselves did not see the deed or receive any actual notice regarding the variance between the description in the deed of the railroad easement on parcels M-l and M-2, on the one hand, and the “Railroad Easement” provision contained in the contract between the plaintiffs and the defendant, on the other hand.

As a result of the defendant’s breach of contract, the narrow strip of land between the two sets of railroad tracks on parcels M-l and M-2, comprising a total area of 2.6 acres, was conveyed to the plaintiffs subject to a railroad easement, whereas the defendant had agreed in the contract between the parties to convey this narrow strip of land to the plaintiffs free of any railroad easement. Neither side introduced any evidence at the trial with respect to the difference as of September 1962 between the fair market value of the 2.6 acres subject to the railroad easement and the fair market value that the 2.6 acres would have had free of any railroad easement. The lack of such evidence is not surprising, however, since the narrow strip of land between the two sets of railroad tracks probably did not constitute salable acreage as of September 1962, separate and apart from other portions of parcels M-l and M-2.

It has been said that, owing to the good faith blunders of its agents, defendant was in a position where its contracts with the plaintiffs and with the Southern Pacific Railroad were inconsistent and it had to breach one or the other. It elected to breach the contract with plaintiffs. It has not yet performed the contract with the Railroad owing to a title difficulty involving other land. It appears, however, that the Eailroad is the equitable owner of a 79 foot easement over the plaintiffs’ land and doubtless it has a right to receive a deed confirming its title on demand. The Eailroad asked to be sold the 79 foot easement to fulfill a plan it had to construct two additional tracks along the strip between the two that were already there, making four in all. Defendant has treated the Eailroad as owner of its easement in dealings with plaintiffs, as in referring them to the Eailroad to discuss crossings over the tracks, and this seems proper. As to plaintiffs, the breach is irrevocable and the only serious issue is the measure of damagesi

The plaintiffs attempted to show that the GS A representative, Mr. Prendergast, promised the plaintiff, Joseph A. White, Jr., before the award, that the plaintiffs would have access to parcels M-l and M-2 from any point along California Boulevard. Our Finding is (Finding 16-d) that the representative did state that the purchaser of the parcels would have access to California Boulevard and that there would be no problem in obtaining access. The plaintiffs have not taken exception to this Finding. We do not read it as meaning that Mr. Prendergast said the access would be anywhere along California Boulevard or at an unlimited number of points. The evidence does not indicate that the plaintiffs have been denied anything Mr. Prendergast is found to have promised. Accordingly, it is unnecessary to consider whether an oral promise by him could possibly bind the defendant.

This underbrush eliminated, there stands clearly before us the great controverted fact issue in the case. Plaintiffs were promised a fee title subject to an easement for 2 tracks. The defendant gave them such a title subject to an easement for 4 tracks. The fact question that remains is what difference, if any, exists between the fair market value of the property subject to these two different easements. In light of the amount of the plaintiff’s claim the award recommended by our commissioner, which we confirm, $7,300, reflects a finding that the difference in the two values is relatively slight because the difference in the burdens on the servient tenement as between, the two easements is likewise slight. The plaintiffs say the differences are great, but we do not agree.

The 2 existing tracks running over plaintiffs’ land to the area South of the freeway constitute what the Southern Pacific Railroad calls a “drill track.” One plan in evidence calls one a “drill track,” the other a “storage track.” On the other side of the freeway the lines branch out as stated above into various spurs which served Camp Stoneman when it was a military cantonment, and are intended in the future to serve the manufacturing and other business the GSA has located, and expects in future to locate, in the area, under the City’s zoning. A drill track is in general a sort of main road to provide rail service from the main line to an area where customers of the railroad are located. At the time of trial, only 3 industries were actually operational across the freeway, so the use of the drill track did not reach its potential. The track on plaintiffs’ premises was also largely used for car storage.

The Railroad had no immediate plans for utilizing the easement for 2 additional tracks it had contracted to purchase from the Government. This would be done when the need arose. Meanwhile, it is clear that the use of the 2 tracks was, volume aside, substantially the same as the use of the 4 tracks would be when the additional 2 were put in place.

The plaintiffs intended, and we have found, that they would divide parcels M-l and M-2 into lots of approximately 5 acres each, except for 1 which was larger but less usable. All 10 would extend from north to south with frontage both on California Boulevard and on the freeway. They would be sold for industrial uses. Plaintiffs said they intended to provide each pair of lots with an access road running across the tracks and then along the boundary between the two members of the pair. They meant that these crossings would be “private,” that is, not dedicated as streets to public use, and therefore that no expensive safety devices such as automatic lights and gates would or could be required. There would thus be 5 crossings, all without safety devices and at approximately even distances. Plaintiffs seemed to think that there was nothing about this that was incompatible with the Railroad’s use. Plaintiffs except to our Finding 16-e, which is to the contrary. Plaintiffs stated at times a lower aggregate number of crossings was all they required, but the record does not show just where they would be.

We will note at the outset that according to uncontradicted testimony the private crossings of the kind contemplated are normally revocable by the Railroad at will on 30 days notice. Plaintiffs hardly could have expected that 10 maj or industrial firms would make large investments in plant facilities with no access to them provided not revocable on 30 days notice. The Railroad recognized that any crossing rights it granted could not be revocable. Presumably, however, an attempt by the Railroad to revoke a private crossing right it had previously approved would be a matter for the Commission under the statute to be quoted below.

Plaintiffs believe that under the California Public Utilities Code, Section 7537, they would somehow have had a legal right to these 5 or 4 or 3 private crossings, in case of a 2 track easement, but somehow lose that right by reason of the creation of a 4 track easement. The Statute in question reads as follows (West’s Ann. Pub. Util. Code § 7537) :

FARM AND PRIVATE CROSSINGS; CONSTRUCTION AND MAINTENANCE; AUTHORITY OF COMMISSION. The owner of any lands along or through which any railroad is constructed or maintained, may have such farm or private crossings over the railroad and railroad right of way as are reasonably necessary or convenient for ingress to or egress from such lands, or in order to connect such lands with other adjacent lands of the owner. The owner or operator of the railroad shall construct and at all times maintain such farm or private crossing in a good, safe, and passable condition. The commission shall have the authority to determine the necessity for any crossing and the place, manner, and conditions under which the crossing shall be constructed and maintained, and shall fix and assess the cost and expense thereof. (Stats. 1951, c. 764, p. 2181, § 7537.)

Without inquiring into plaintiffs’ legal proposition in detail, it sufficies to point out the f ollowing:

a. The statute does not distinguish between 2 and 4 track lines.
b. By its own terms the crossing right is limited to what is reasonably necessary and convenient. The California decisions indicate that unreasonable demands cannot be made on railroads under this section. The rights of a private crossing owner are always subordinate to the reasonable operating necessities of the railroad. M aboza v. Southern Pacific Go., 59 Cal. App. 636,211 Pac. 252 (1922).
c. Contrary to plaintiffs’ belief, according to the record, a crossing being private does not of itself eliminate the necessity for safety devices. This depends on the character of the traffic, both rail and highway. There is evidence that the Eailroad, with commission support expected, would have considered installation of safety devices necessary on any crossings over its tracks to plaintiffs’ land, whether such crossings were private or public.
d. Apparently a private crossing can be established by agreement without action of the commission, and the role of the commission is somewhat that of an umpire. In case of a disagreement, before the commission, the views of the railroad as to its operating needs would be of great importance. Defendant’s witness Lippow testified that railroads have “tremendous rights” in ■this area and are “pretty powerful”, meaning, we suppose, that they are not easily forced, through these statutory proceedings or otherwise, to open up crossings, private or otherwise, if incompatible with their operating needs.
e. There were various estimates of the cost of private crossings with safety devices. Our commissioner, in Finding 3Nc, determined that the cost of 5 crossings with safety devices would have been $99,000, a figure not taken into account 'by plaintiffs.
f. The Eailroad refused to agree to even a single private crossing, where plaintiffs want it, and the plaintiffs did not invoke the statutory procedure by appealing to the commission, their reason apparently being that they thought they had to reduce the easement to 2 tracks before an appeal would have a chance, and for the further reason that the Eailroad did not yet own the tracks. What the commission would have done is, therefore, naturally in the realm of speculation, at least so far as concerns the record in this case. There is no adequate showing as to why the extra 2 tracks made all that much difference in plaintiffs’ statutory rights.
g. Mr. Dado, the only representative of the Southern Pacific to testify, said that the Railroad’s Operating Department had decided “regardless of whether the other 2 tracks go in it is not feasible to put a private crossing there over those 2 tracks.” The reason was the complexity of switching cars into the area for storage, if the private crossings had to be left unobstructed, and the prolonged blocking of the crossings that would probably occur. Moreover, there would be “a very dangerous crossing condition for use of a crossing” the reason being that “it is blinded by the parking of cars adjacent * * * Railroad cars.” The cars parked for storage would make it difficult for a person coming from parcels M-l and M-2 “to see what was coming down the track.” Our commissioner’s conclusion in Finding 16-e that the plaintiffs expectation was unreasonable with respect to the 2 track operation and incompatible with that operation appears to us to be supported by substantial evidence. It is indeed difficult to believe that responsible industrial concerns would be willing to require their employees to travel to and from work over such dangerous crossings.

Plaintiffs, however, insisted and still insist that except for the 2 extra tracks planned for, and provided for in the easement, there would have been no problem about obtaining the private crossings they needed. The basis for this belief is that the representatives of the Railroad, when refusing the first of the proposed crossings, the one requested for Stanley Steel Strapping Co. (Finding 23-e), reportedly stated that the reason for refusing the crossing was that it would interfere with the plans to construct 2 additional sets of tracks and to use the area of the easement as a storage yard. This was, however, as to the 2 track easement, a negative inference of a somewhat tenuous kind, which would have been dissipated by an inquiry of Mr. Dado, if he was telling the truth at the trial. The 4 track easement was the legal reality so far as the Railroad was concerned and any talk about the 2 track easement would have been a subjunctive contrary to fact. It is, therefore, natural that they framed their statements in terms of the 4 track situation. It may be that someone was not being overzealous for the plaintiffs’ enlightenment inasmuch as plaintiffs were trying in court to limit the easement to 2 tracks, through the Court of Appeals, (White v. Administrator of GSA 343 F. 2d 444 (9th Cir. 1965)), apparently without anyone ever bothering to tell them that such reformation of the deed would be futile for their purposes. However, this was before our commissioner and he still elected to believe that the proposed private crossings would have been unacceptable with a 2 track easement. His determination is not so plainly erroneous as to be subject to overturning under Kule 66. Mr. Dado was before the trial commissioner who had every opportunity to evaluate his credibility and evidently rated it high. Simply from the common sense of the thing it would appear that for a given volume of Bail-road business on the tracks, the 2 track set-up might often have been more dangerous than the 4 track set-up.

Plaintiff s compute that the profits they would have derived from these speculations in real estate will be practically wiped out by the costly arrangement which is the only one the Bailroad will agree to for access to industrial plants on parcels M-l and M-2. This is to have crossings, with the proposed safety devices, near the 2 east and west extremities of plaintiffs’ land, whether public or private crossings, the Bail-road does not care. From these 2 crossings and connecting them to the proposed industrial plants, plaintiffs would have to construct a road along the boundaries to the west, south and east. The court has prepared from the exhibits and testimony plans which will illustrate the differences between plaintiffs’ and the Bailroad’s development projects. Begret-table as it is, we cannot see any. proof in the record that plaintiffs could have achieved access in any cheaper manner in the event they had received title burdened only with the 2 track easement according to their contract. They did' not offer any evidence of the probable cost of any development scheme that met the Bailroad views part way, nor was there any evidence that any compromise between their wish and the Bailroad’s was a practical possibility. It follows that the only thing the plaintiffs have proved they lost by the breach of contract is the narrow strip between the existing tracks which will be occupied by the new tracks if they are built as planned, the record being silent as to any use the plaintiffs could liave put this strip to. Tested by this standard the proposed award of $7,300 does not seem unreasonably small.

The normal measure of damages for partial breach of a contract to convey real estate is the difference between the value of what was conveyed and what should have been. Reynolds v. United States, 141 Ct. Cl. 211, 158 F. Supp. 719 (1958). Since the parties have discussed PUcesville Home Builders v. United States, supra, we close by stating we have considered this case and it is not in point, except on the proposition for which it is cited above. Plaintiff there, bid on an offer of surplus Government land represented to front on a named thoroughfare. Unknown to it, the thoroughfare was of the then unfamiliar limited access type and the normal right of access had been deeded away. The General Conditions allowed the buyer to withdraw and recover his deposit if the title was found not marketable. We held it was not marketable for the uses for which plaintiff intended it because of the lack of access. Here the defendant offered the property “as is,” “where is,” with no guaranty or warranty of marketability whatever. It follows that lack of access was not a breach of itself and plaintiffs’ damages are limited to those directly related to the difference between the interest the defendant contracted to convey, and what it did convey.

Accordingly, judgment is entered for the plaintiffs in the sum of $7,300.

FINDINGS on Fact

l.(a) Prior to 1960, the defendant’s Camp Stoneman Military Eeservation, which consisted of more than a thousand acres of land and was located within the present city limits of Pittsburg, California, was declared surplus to the needs of the defendant, and procedures to provide for the disposal of the area were initiated.

(b) Sam Staakecker, a realty officer employed by the defendant’s General Services Administration (GSA) and assigned to the Property Management and Disposal Division, Kegion 9, San Francisco, inspected Camp Stoneman and prepared a disposal plan respecting the surplus property. Until his resignation in 1960, Mr. Staakecker was responsible for carrying out the disposal plan.

(c) The disposal plan mentioned in paragraph (b) of this finding provided for the employment by the defendant of appraisers to assess the value of the surplus property, the preparation of advertisements to notify the public of the proposed sale, the preparation and distribution of bid invitations, the opening of bids, the making of awards, and the preparation of deeds and deeds of trust.

2. In November 1960, Kobert M. Prendergast joined the personnel of the San Francisco regional office of the GSA as a realty officer, and succeeded to Sam Staakecker’s responsibilities with respect to the disposal of Camp Stoneman.

3. (a) Under the disposal plan referred to in finding 1, certain lands within the main cantonment portion of Camp Stoneman were set aside to be deeded to local governmental bodies as sites for schools, parks, and arterial streets.

(b) The remainder of Camp Stoneman was parcellized for the purpose of sale. Such parcels were zoned by the City of Pittsburg for varying uses, including “Industrial,” “Controlled Manufacturing,” “Administrative & Professional,” “Multi-Family Dwellings & Limited Commercial,” “Neighborhood Commercial,” “Multi-Family Dwellings & Fraternal Organizations,” “Duplex Family Residences,” and “Single Family Residences.”

4. (a) Two of the parcels referred to in finding 3(b) were designated as M-l and M-2. Parcels M-l and M-2 are involved in the present litigation.

(b) Parcels M-l and M-2 are contiguous and together form an area that resembles a modified right-angle triangle, with a south side extending approximately 3,200 feet from east to west, an east side extending approximately 1,200 feet from south to north, and a hypotenuse which extends approximately 3,000 feet from northeast to southwest but fails to meet the south side of the “triangle,” so that there is actually a small, curved west side of the area. The area is bounded along the south side by a limited-access freeway maintained by the State of California, on the east by private property, and along the hypotenuse (which, for the sake of convenience, will be referred to hereafter in the findings as the “north” side or boundary) by a public street that was formerly known as Antioch Road and is now referred to as California Boulevard.

(c) Parcel M-l, consisting of approximately 11 acres, is located in the western portion of the triangular area mentioned in paragraph (b) of this finding. The southern boundary of parcel M-l constitutes about one-third of the southern boundary of the triangular area.

(d) Parcel M-2, consisting of approximately 40.9 acres, is a modified trapezoid that occupies the eastern portion of the triangular area mentioned in paragraph (b) of this finding. The southern boundary of parcel M-2 constitutes about two-thirds of the southern boundary of the triangular area.

(e) Parcels M-l and M-2 are located outside the main cantonment portion of Camp Stoneman, and they are separated from the main cantonment portion by the limited-access freeway previously mentioned, which runs from the eastern end of Contra Costa County to the San Francisco Bay area. Parcels M-l and M-2 are located north of the freeway, while the main cantonment portion is located south of the freeway. Parcels M-l and M-2 do not have access to the freeway, which forms the south boundary of the two parcels.

(f) California Boulevard, which forms the north boundary of parcels M-l and M-2, is a public street that is dedicated to public use and is maintained by the County of Contra Costa. Parcels M-l and M-2 together have approximately 3,000 feet of frontage on California Boulevard, which is the only public street that borders on these parcels.

(g) Parcels M-l and M-2 are zoned “Industrial” by the City of Pittsburg. They are the only parcels among those into which the former Camp Stoneman was divided with such a zoning. Plaintiffs construed it as meaning unrestricted use by heavy industry. Extensive areas across the freeway were zoned “controlled manufacturing.”

5= (a) Two sets of railroad tracks, referred to as “drill” tracks, are located on parcels M-l and M-2. Drill tracks link the main line of the railroad with the spurs and sidings of its industrial customers. These tracks, connecting with the main line of the Southern Pacific north of parcels M-l and M-2, run along most of the north boundary of the' parcels, dividing into two near the eastern boundary of M-2, and rejoining into one near the western end of M-l. There they traverse the freeway by a bridge, dividing into numerous spurs south of the freeway. The two sets of tracks 'and the area between them cover a strip of land approximately 79 feet wide on the north side of parcels M-l and M-2.

(b) There is room to install two more sets of tracks between the existing tracks.

(c) The tracks had been used by the Southern Pacific Company to provide transportation services for Camp Stone-man when it was an active military installation. At the time of trial the railroad used the tracks as drill tracks for rail access to manufacturing areas south of the freeway, and extensively for storage of cars.

(d) There is no crossing of the railroad tracks on parcels M-l and M-2, and the tracks effectively separate the remainder of the parcels from California Boulevard.

(e) The plaintiffs are local real estate agents in Pittsburg, California; and at all times material to this litigation, they were familiar with the location of the railroad tracks on parcels M-l and M-2, and with the use that was being made of such tracks.

6.(a) In 1960, after the completion of the appraisals on those parcels within the Camp Stoneman area that were to be sold, the defendant began the process of offering such parcels for sale.

(b) Some of the parcels to be sold were actually offered for sale on three separate occasions. If no acceptable bid, in the light of the appraised value, was received for a particular parcel on the first offering, that parcel was offered for sale at a subsequent time; and if no acceptable bid was received on the second offering, the particular parcel was later offered for sale on a third occasion.

(c) Some of the parcels were sold while Sam Staakecker was in charge of the disposal of the Camp Stoneman properties. However, most of the parcels remained unsold when Robert M. Prendergast succeeded to Mr. Staakecker’s responsibilities in November 1960.

(d) Parcels M-l and M-2 were included among the first offeidng of parcels within the Camp Stoneman area for sale by tbe defendant. However, no acceptable offer for M-l or M-2 was received at that time.

7.(a) Prior to the first offering of parcel M-l for sale, personnel of the defendant prepared a description of this parcel which referred to it as being subject to “An easement 20 feet in width granted to the Southern Pacific Company and lying equally on either side of two parallel existing railroad tracks located in the most northerly 80 feet of the * * * parcel.”

(b) Prior to the first offering of parcel M-2 for sale, personnel of the defendant prepared a description of this parcel which referred to it as being subject to “An easement 20 feet in width granted to the Southern Pacific Company for railroad purposes and lying equally on either side of two existing railroad tracks located in the most northerly 50 feet of the * * * parcel.”

(c) The references in the descriptions of parcels M-l and M-2, mentioned in paragraphs (a) and (b) of this finding, to railroad easements having been “granted” to the Southern Pacific Company were erroneous, although negotiations were in progress between the defendant and the Southern Pacific Company at the time with respect to the granting to the latter of railroad easements on parcels M-l and M-2, and also on other parcels within the Camp Stoneman area. (See find-ing8.)

(d) The description of the existing railroad tracks on parcel M-2 as being located in the most northerly 50 feet of the parcel (see paragraph (b) of this finding) was erroneous, since the two sets of tracks on parcel M-2, together with the area between them, covered a strip of land approximately 79 feet wide.

8. (a) Beginning as early as 1960, at least, negotiations were undertaken between the defendant and the Southern Pacific Company with respect to the existing railroad tracks, and railroad easements for them, on lands within the Camp Stoneman area, including parcels M-l and M-2. With regard to the trackage on parcels M-l and M-2, the defendant desired to sell both of the existing sets of tracks, and a 20-foot easement for each of them, to the Southern Pacific Company in order to assure railroad service to parcels in the main cantonment portion of Camp Stoneman lying west of parcels M-l and M-2.

(b) During the course of the negotiations referred to in paragraph (a) of this finding, the Southern Pacific Company prepared and furnished to the defendant a plat dated July 27, 1960 (and later revised), depicting (among other things) the two existing sets of tracks on parcels M-l and M-2, and a proposed railroad easement across parcels M-l and M-2 for such tracks, the proposed easement being 79 feet wide and covering not only the two existing sets of tracks but also the area between the two sets of tracks.

(c) By means of a letter dated November 14, 1961 and addressed to the GSA regional office in San Francisco, the Southern Pacific Company submitted an offer for the purchase of the two existing sets of tracks, and a railroad easement for them, on parcels M-l and M-2, together with other trackage and easements on parcels located within the main cantonment area of Camp Stoneman. The railroad easement which the Southern Pacific Company proposed to acquire across parcels M-l and M-2 was 79 feet wide and covered the two existing sets of tracks, together with the area between the two sets of tracks.

(d) On February 26,1962, the Southern Pacific Company amended its offer by agreeing “to maintain the existing trackage in its present location for a period of five years from the date of sale to the railroad, unless purchasers of land served by such trackage request relocation or abandonment.”

(e) The Southern Pacific Company’s offer included two alternative propositions with respect to the payment that would be made for the trackage and easements. Under alternative No. 2, the company offered to make a lump-sum cash payment of $53,518.

(f) Under the date of March 8, 1962, the GSA regional office in San Francisco wrote a letter to the Southern Pacific Company, stating in part as follows:

General Services Administration hereby accepts your offer presented as Alternative No. 2 in your letter of November 14, 1961, as amended, and supplemented by your letter of February 26, 1962, wliiob includes tbe purchase of certain trackage and easements at Camp Stoneman, Main Cantonment Area, Pittsburg, California.

9.(a) Pursuant to tbe agreement made witb tbe Southern Pacific Company (see finding 8), tbe GSA prepared a document entitled “Easement and Bill of Sale,” conveying to tbe Southern Pacific Company tbe trackage and easements involved in tbe agreement. Upon receipt of this document, tbe Southern Pacific Company caused a title search to be made respecting tbe easements purportedly conveyed in the document. This search revealed that tbe defendant bad neglected to reserve railroad easements in connection witb tbe prior conveyance of certain lands within tbe main cantonment area of Camp Stoneman, as to which tbe document entitled “Easement and Bill of Sale” purported to convey railroad easements and trackage to tbe Southern Pacific Company. Because of this, tbe Southern Pacific Company refused to accept title under the “Easement and Bill of Sale,” or to make any payment to the defendant, until tbe title defects were corrected.

(b) Efforts by tbe defendant to obtain railroad easements on tbe parcels within the main cantonment area which tbe defendant had conveyed without reserving such easements have been unsuccessful.

(c) The document entitled “Easement and Bill of Sale” has never been recorded.

(d) Notwithstanding tbe failure of tbe defendant and tbe Southern Pacific Company to consummate the agreement, tbe Southern Pacific Company has continued to use tbe two sets of railroad tracks running along tbe north side of parcels M-l and M-2 in order to provide transportation services for the owners of lands situated west of parcels M-l and M-2, in what was formerly the main cantonment portion of Camp Stoneman. Tbe present railroad traffic into the Camp Stone-man area amounts to approximately 7 or 8 cars a month, which is minimal in relation to the potential of the area.

(e) The tracks on parcels M-l and M-2 have also been used by the Southern Pacific Company during recent years for the storage of freight cars.

10.(a) Sometime in tlie spring of 1962, the defendant again invited bids for the purchase of parcels M-l and M-2, as well as 46 other parcels within the Camp Stoneman area. This offering included a total of approximately 555.7 acres.

(b) The invitation for bids contained, inter alia, a paragraph stating in part as follows:

Railroad Easement: There is reserved and excepted from this sale the existing trackage identified as “A”, “I” * * * on the plat attached to the Bid Invitation together with easements therefore [sic] 20 feet wide for railroad and transportation purposes upon, along, over and across parcels M-l, M-2 * * *.

(c) The railroad tracks designated as “A” and “I” in the “Railroad Easement” paragraph of the invitation for bids, partially quoted in paragraph (b) of this finding, were the same two sets of tracks previously mentioned in finding 5 as being located on, and as running along the north side of, parcels M-l and M-2, near California Boulevard, and mentioned in finding 8 as being involved in a contract of sale between the defendant and the Southern Pacific Company. Track “A” was the track nearest to California Boulevard.

(d) The invitation for bids contained “Instructions to Bidders,” stating in part as follows:

2. All bids submitted shall be deemed to have been made with full knowledge of all terms, conditions, and requirements herein contained.
3. Inspection of Property. The premises are now subject to inspection by prospective bidders. * * * The failure of any bidder to inspect or to be fully informed as to the condition of all or any portion of the premises or property offered, will not constitute grounds for any claim or demand for adjustment or withdrawal of a bid after opening.

(e) The invitation contained “General Terms and Conditions,” stating in part as follows:

2. Sold “AS IS” and “WHERE /A” The descriptions and locations of the premises, facilities, and property named in the foregoing Invitation are believed to be sufficiently specific for purposes of identification. Any
error or omission in such, description shall not constitute any ground or reason for non-performance of the contract or claim by the successful bidder for any allowance, refund, or deduction from the amounts offered. A complete description of the property with all exertions, reservations, and restrictions is available at the General Services Administration office where this bid is to be submitted and all bids submitted will be on the basis of such complete description. The Government does not make any guaranty or warranty, express or implied, as to the quantity, quality, character or condition, size or kind, thereof; or that same are in condition or fit to be used for the purpose for which intended.
5. Agreement of Sale. The foregoing Invitation, with all the instructions, terms and conditions set forth herein, and the Bid, when accepted by the Government shall constitute an agreement of sale between the successful bidder and the Government. Such agreement together with terms contained in the security instruments shall constitute the whole contract, to be succeeded only by the formal instruments of transfer * * *.
$ ‡ ‡ $
18. Oon'oeyrmoe of the Property. If a bid for the purchase of the real property is accepted, conveyance of the Government’s interest therein will be made by Quitclaim Deed being without warranty, express or implied.

(f) The invitation for bids stated that sealed bids would be received at the GSA Business Service Center in San Francisco or the G-SA Business Service Center in Los Angeles ■until 11 a.m. on May 3, 1962, at which time they would be publicly opened and read.

(g) The invitation for bids also stated that GSA “reserves the right to reject any or all proposals.”

11. Robert M. Prendergast (see finding 2) was responsible for the preparation and issuance of the invitation for bids referred to in finding 10.

12. (a) The plaintiff Joseph A. White, Jr., is a real estate broker and investor, operating -under the name of Los Medaños Realty Company. He began his realty career as a salesman in 1949, and he received his broker’s license in the early 1950’s. His office has generally been located in the Pitts-burg area of Contra Costa County, California. As broker for Los Medaños Realty Company, he has handled many real estate transactions, and has become familiar with local property, in the Pittsburg area.

(b) In 1962, the plaintiff Anthony J. DeMetro was a licensed real estate salesman employed by Los Medaños Realty Company.

(c) In 1962, the plaintiff Anthony Enea was in the employ of Los Medaños Realty Company, functioning as an associate broker.

(d) In 1962, the plaintiffs Joseph A. White, Jr., Anthony DeMetro, Anthony Enea, and Frank A. Siino, a business associate of Joseph A. White, Jr., formed a syndicate for the purpose of bidding on parcels M-l and M-2 in the Camp Stoneman area.

13.(a) Prior to the May 3,1962 deadline for the submission of bids in response to the invitation mentioned in finding 10, the plaintiff Anthony J. DeMetro visited the GSA project office at Camp Stoneman and obtained copies of the descriptions of parcels M-l and M-2 that had been prepared in connection with the first offering of these parcels for sale (see finding 7). The evidence indicates that the furnishing to Mr. DeMetro of descriptions prepared in connection with a prior offering of the parcels for sale was inadvertent on the part of the GSA project office personnel. The plaintiffs did not obtain from the GSA Business Service Center in San Francisco or the GSA Business Service Center in Los Angeles copies of the descriptions of parcels M-l and M-2 that had been prepared in connection with the then-current offering of these parcels for sale.

(b) Mr. DeMetro also obtained information concerning the procedure for the submission of sealed bids in response to the invitation referred to in finding 10.

(c) Mr. DeMetro asked how the purchaser of parcels M-l and M-2 would gain access to a public street or highway, and was informed that the purchaser of the parcels would have access to California Boulevard.

14(a) The plaintiffs arranged to have the Western Title Guaranty Company make a title report respecting parcels M-l and M-2. The title company submitted to the plaintiffs a preliminary title report dated April 6,1962.

(b) With respect to parcel M-l, the preliminary title report indicated that the title company had notice, from correspondence in its files, regarding an unrecorded railroad easement 20 feet in width granted to the Southern Pacific Company and lying equally on either side of two parallel railroad tracks located in the most northerly 80 feet of parcel M-l.

(c) With respect to parcel M-2, the preliminary title report indicated that the title company had notice of an unrecorded 20-foot easement granted to the Southern Pacific Company for railroad purposes and lying equally on either side of two existing railroad tracks in the most northerly 50 feet of parcel M-2.

15.(a) On May 3, 1962, the plaintiffs submitted to the GSA Business Service Center in San Francisco a bid in the amount of $86,979 on three of the parcels included in the invitation for bids referred to in finding 10. The three parcels on which the plaintiffs submitted a bid were designated as M-l and M-2, mentioned in previous findings, and M-4, a relatively small and irregularly shaped parcel lying to the east of the northeast corner of parcel M-2. Parcel M-4 is not involved in the present litigation.

('b) Sometime between May 3 and 17,1962, the GSA sent a telegram to the plaintiffs, stating (among other things) that “All bids are still under consideration”; that “Prior to making decision on any bid, high bidders are being afforded opportunity to increase their bids”; and that “If you wish to increase your lump sum bid on parcels M-l, M-2, M-4, such increased bid should be in letter addressed to this office postmarked not later than May 17 * * *.”

16. (a) After receiving from the GSA the telegram referred to in finding 15(b), the plaintiffs Joseph A. White, Jr., and Anthony J. DeMatro went to see Itobert M. Prender-gast and had a conference with him. Mr. White acted as the principal spokesman for the plaintiffs at the conference.

(b) Mr. White inquired of Mr. Prendergast regarding the amount by which it would be necessary for the plaintiffs to increase their bid in order to make the bid acceptable. Mr. Prendergast replied that he could not state any figure, and that the plaintiffs would have to use their own best judgment regarding the amount of the increase in the bid.

(c) Mr. White also asked whether the defendant’s appraisal report concerning parcel M-2 had given any value to a couple of incinerators that were located on parcel M-2. Mr. Prendergast was unable to answer this question at the moment, and told Mr. White that the desired information would be obtained. Later, Mr. Prendergast checked the appraisal report and then told Mr. White that such appraisal had given a value for the incinerators.

(d) In addition, Mr. White raised a question with Mr. Prendergast as to how the purchaser of parcels M-l and M-2 would gain access to and from such parcels, in view of the circumstance that they were bounded on the south by a limited-access freeway and on the east by private land, and ■the two existing sets of railroad tracks that ran along the north side of parcels M-l and M-2 effectively separated the remainder of the two parcels from ’California Boulevard. Mr. Prendergast stated, in effect, that the purchaser of parcels M-l and M-2 would not have any access to the freeway; that the purchaser of these parcels would have access to California Boulevard; and that there would be no problem in obtaining access to California Boulevard from parcels M-l and M-2.

(e) Messrs. White and DeMetro testified at the trial that they understood from Mr. Prendergast’s comments, as summarized in paragraph (d) of this finding, that the purchaser of parcels M-l and M-2 could have as many crossings of the railroad tracks as might be desired; that such crossings could be placed wherever the purchaser might desire them; and that the purchaser would have complete discretion to determine the nature of the warning devices that would be installed at the crossings for the protection of persons and vehicles using the crossings. Such an understanding was unreasonable, since the invitation for bids expressly stated that the two existing sets of railroad tracks on parcels M-l and M-2, together with 20-foot easements for railroad and transportation purposes, were reserved from the offering. This clearly implied that active railroad operations would continue on the existing railroad tracks. Crossings of the tracks without limitation or restriction as to number, location, or warning devices would have been incompatible with continued active railroad operations on the tracks. There is no substantial evidence that plaintiffs, if servient to a two-track easement only, could have arranged for necessary crossing rights, and access to industrial plants on parcels M-l and M-2, in any manner less burdensome to plaintiffs than the manner described in Findings 25 and 27.

17.(a) After the conference mentioned in finding 16, and in response to the telegram referred to in finding 15(b), Joseph A. White, Jr., acting for himself and the other plaintiffs, sent a letter to the GSA on May 17,1962, stating in part as follows:

I desire to increase the amount of my bid [on parcels M-l, M-2, and M-4] from $86,979.00 to $140,000.00, which offer is made on the same terms as the original bid.

(b) On June 8,1962, the GSA sent a letter to the plaintiffs, stating in part as follows:

The General Services Administration hereby accepts your increased Bid * * * in the amount of $140,000.00 for Parcels M-l, M-2, and M-4, Camp Stoneman.

18. At the time when the plaintiffs purchased parcels M-l and M-2, these parcels (as well as the other portions of the Camp Stoneman area) were located within the city limits of Pittsburg, California. In a letter dated June 19,1962, the City Manager of Pittsburg advised the plaintiffs that access to parcels M-l and M-2 was to be from California Boulevard.

19.(a) A quitclaim deed conveying parcels M-l, M-2, and M-4 to the plaintiffs was prepared by the GSA on June 22, 1962 and was delivered to the plaintiffs’ escrow agent, Western Title Guaranty Company, on August 8,1962, with closing instructions.

(b) The title transaction was closed and the purchase price was paid to the GSA on September 2, 1962. The quitclaim deed was recorded by the Western Title Guaranty Company on September 21,1962, and was forwarded to the plaintiffs by tbe escrow agent approximately one month thereafter.

(c) The quitclaim deed stated with respect to parcels M-l and M-2 that there was reserved to the defendant, its successors and assigns, an easement for railroad and transportation purposes over a strip of land 79 feet wide running along the north side of parcels M-l and M-2 and containing the two sets of existing railroad tracks, together with the area between the two sets of tracks.

20. Prior to the receipt from their escrow agent of the quitclaim deed mentioned in finding 19, the plaintiffs themselves did not see the deed or receive any actual notice regarding the variance between the description in the deed of the railroad easement on parcels M-l and M-2 (see finding 19 (c)), on the one hand, and the “Railroad Easement” provision contained in the contract between the plaintiffs and the defendant (see finding 10 (b)), on the other hand.

2L According to the quitclaim deed referred to in finding 19, the plaintiffs Joseph A. White, Jr. (and Lois M. White, his wife), Anthony J. DeMetro (and Betty J. DeMetro, his wife), Anthony Enea (and Rose Enea, his wife), and Frank A. Siino (and Mary V. Siino, his wife) each owns an undivided one-quarter interest in parcels M-l and M-2.

22,(a) As indicated in finding 4(g), parcels M-l and M-2 are zoned “Industrial” by the City of Pittsburg, California. The plaintiffs acquired these parcels with the intention of dividing the triangular area which they comprise into industrial lots for the purpose of resale. Accordingly, after acquiring parcels M-l and M-2, the plaintiffs engaged a firm of consulting civil engineers and had them prepare in September 1962 a plat dividing the triangular area into 10 lots. These lots — which were each about 5 acres, except for one larger — were created by drawing lines from the north boundary of the triangular area (along California Boulevard) to the south boundary of the area (along the freeway).

(b) The plan of subdivision referred to in paragraph (a) of this finding contemplated that five crossings of the railroad tracks running along the north boundary of the triangular area would be established by the plaintiffs, each crossing being located at a place which would enable it to serve — and provide direct access from. California Boulevard to — two contiguous lots.

23.(a) Shortly after the plaintiffs acquired parcels M-l and M-2, Johnson S. Bogart, of the firm of Coldwell, Banker & Co., San Francisco industrial realtors, entered into negotiations with the plaintiffs for the purchase of a 5-acre lot in the industrial subdivision referred to in finding 22. Mr. Bogart was acting as purchasing agent for the Stanley Steel Strapping Company, which was interested in establishing a plant in or near Pittsburg, California.

(b) During the course of the negotiations mentioned in paragraph (a) of this finding, Mr. Bogart and the plaintiff Joseph A. White, Jr., conferred with Dudley C. Dado, of the Industrial Department of the Southern Pacific Company, about obtaining permission for the establishment and maintenance of a private crossing of the two sets of railroad tracks along the north boundary of the subdivision, such crossing to be located so that it would provide direct access from California Boulevard to the 5-acre lot tentatively selected on behalf of the Stanley Steel Strapping Company and to a contiguous lot. (A private railroad crossing is one that is maintained by a private person or persons — as distinguished from a governmental unit — and can be used only with the express or implied permission of such person or persons.) Mr. Dado informed Messrs. Bogart and White that the Industrial Department approved the proposal and would recommend to higher authority that the Southern Pacific Company grant permission for the establishment and maintenance of the requested private crossing.

(c) After the conversation referred to in paragraph (b) of this finding, a 90-day option was taken on behalf of the Stanley Steel Strapping Company for the acquisition of the 5-acre lot at a price of $50,000. During the 90-day period of the option, Coldwell, Banker & Co. engaged a soils engineer to make a soils report, and arranged to have the 5-acre lot surveyed.

(d) At the end of the 90-day option period, the option to buy was exercised on behalf of the Stanley Steel Strapping Company. Under the agreement, the transaction was to be closed within 30 days.

(e) Two days prior to the expiration of the 30-day period for the closing of the transaction between the plaintiffs and the Stanley Steel Strapping Company, Mr. Dado informed Messrs. Bogart and White that the Operations Department of the Southern Pacific Company had disapproved the request for a crossing of the railroad tracks at the desired place, on the ground that a crossing there would interfere with plans of the Southern Pacific Company to construct two additional sets of railroad tracks between the two existing sets of tracks on parcels M-l and M-2, and to use the area of the easement on those parcels as a yard in which to hold or store railroad cars; and, accordingly, that the pending request for a crossing had been denied by the general manager of the company.

(f) After learning that the Southern Pacific Company would not grant a crossing of the railroad tracks at the place desired by the plaintiffs and the Stanley Steel Strapping Company, the agreement for the acquisition by that company of a 5-acre lot from the plaintiffs was cancelled on behalf of Stanley. The Stanley Steel Strapping Company subsequently acquired another lot in the Pittsburg area as the site for its new plant.

24. After learning from Mr. Dado that the Southern Pacific Company had denied the request for a crossing of the railroad tracks along the north boundary of the property in order to provide direct access from California Boulevard to the 5-acre lot selected on behalf of the Stanley Steel Strapping Company, the plaintiff Joseph A. White, Jr., sought the assistance of Bobert M. Prendergast in connection with a further effort to obtain permission for the desired crossing. Mr. Prendergast talked with D. T. Daggett, of the Industrial Department of the Southern Pacific Company, and was informed that such company was unwilling to grant a request for a railroad crossing at the place desired by the plaintiffs and the Stanley Steel Strapping Company because the Southern Pacific Company planned to construct, in the area of the requested crossing, a yard in which to hold or store railroad cars.

25. At the time of — or after — the refusal of the Southern Pacific Company to grant permission for the establishment and maintenance of a railroad crossing at the place desired by the plaintiffs and the Stanley Steel Strapping Company, the Southern Pacific Company informed the plaintiffs that it would be willing to grant permission for the establishment and maintenance of two railroad crossings in order to provide access from California Boulevard to parcels M-l and M-2. One crossing, according to the Southern Pacific Company, could be established and maintained near the extreme western boundary of parcel M-l, and the other could be established and maintained near the extreme eastern boundary of parcel M-2. This has been the position of the Southern Pacific Company at all times material to the present litigation.

26.(a) By means of a letter dated July 25, 1963 and addressed to the San Francisco office of the GSA, the plaintiffs complained “that the Deed delivered by your department was not in accordance with the advertised offer of sale,” and that “Instead of reserving an easement for railroad purposes twenty (20) feet in width, your Deed dated June 22, 1962, reserved an easement which is approximately seventy-nine (79) feet in width.” The letter included a demand “for a Deed in conformance with the terms and conditions of sale.”

(b) The defendant refused to comply with the plaintiffs’ demand of July 25,1963.

27. (a) The Southern Pacific Company has suggested to the plaintiffs a plan for the development of the M-l and M-2 triangular area as an industrial park. The plan contemplates the construction by the plaintiffs of an access road from California Boulevard that would touch all the lots in the area by crossing the railroad tracks near the northeast corner of the area, proceeding southward 'along the east side to the southeast comer of the area, running westward along the south side to the southwest comer of the area, and then crossing the railroad tracks to California Boulevard near the southwest comer of the area.

• (b) The plan mentioned in paragraph (a) of this finding was not adopted by the plaintiffs because they had reason to believe that the expense involved in constructing the proposed access road, and the acreage covered or made unusable by the road, would have made it impossible to develop and sell the lands within parcels M-l and M-2 at a profit.

28.(a) On October 14, 1963, the plaintiffs filed an action (No. 41832) in the United States District Court for the Northern District of California, Southern Division, seeking a reformation of the deed dated June 22, 1962, in so far as it related to parcels M-l and M-2.

(b) The action referred to in paragraph (a) of this finding was dismissed by the District Court without prejudice on jurisdictional grounds.

29.(a) On February 17, 1964, the plaintiffs instituted in the United States District Court for the Northern District of California, Southern Division, an action (No. 42116) in mandamus and for declaratory relief with respect to the failure of the GSA to issue a deed respecting parcels M-l and M-2 in conformity with the contract between the plaintiffs and the defendant for the purchase and sale of these parcels.

(b) The action referred to in paragraph (a) of this finding was dismissed by the District Court on jurisdictional grounds, and the dismissal was upheld by the United States Court of Appeals for the Ninth Circuit (343 F. 2d 444).

30.(a) In 1964, the Signode Steel Strapping Company, which desired to construct a new facility in or near Pittsburg, California, made an offer to the plaintiffs for the purchase of a block of lots totaling 20 acres within the industrial subdivision mentioned in finding 22, at a price of $12,500 per acre. Signode was aware of the difficulty previously encountered by the plaintiffs and the Stanley Steel Strapping Company in attempting to obtain permission for a crossing of the railroad tracks along the north boundary of the subdivision, but thought that the great volume of transportation business which Signode expected to generate would induce the Southern Pacific Company to grant permission for a railroad crossing which would provide direct access from California Boulevard to the 20-acre block. However, when the Southern Pacific Company was approached for permission to establish and maintain a crossing of the railroad tracks in order to provide direct access to the 20-acre block from California Boulevard, the Southern Pacific Company refused to grant such permission. Signode then withdrew its offer for the purchase of the 20-acre block from the plaintiffs.

(b) Subsequently, tbe Signode Steel Strapping Company purchased other land in the Pittsburg area for the construction of its new facility.

31. In 1966, the Triangle Conduit & Cable Company entered into an agreement with the plaintiffs for the purchase of a 6-acre lot within the industrial subdivision mentioned in finding 22, at a price of $65,000. However, after Triangle learned at a conference with the Southern Pacific Company that the latter would not grant permission for a crossing of the railroad tracks along the north boundary of the property in order to provide direct access from California Boulevard to the 6-acre parcel, the agreement between Triangle and the plaintiffs was cancelled by Triangle.

32. On January 21, 1966, the plaintiffs timely filed the present action in this court.

33.(a) Two 20-foot railroad easements for the two sets of existing railroad tracks on parcels M-l and M-2 would have covered a total of 2.95 acres.

(b) The 79-foot railroad easement on parcels M-l and M-2 which the defendant reserved in the deed dated June 22,1962 for the two sets of existing railroad tracks, together with the area between the two sets of tracks, covered a total of 5.55 acres.

34.(a) On the basis of the plaintiffs’ plan for the industrial development of the triangular area which parcels M-l and M-2 comprise (see finding 22), the plaintiffs would have had 46.35 acres of usable and salable land lying south of the two sets of railroad tracks running along the north boundary of the property.

(b) The proper development of the 46.35 acres in accordance with the plaintiffs’ basic plan, and the sale of such acreage, would have cost the plaintiffs a total of approximately $156,635, as follows:

Engineering and Map Filing_ $4, 000
Railroad Crossings- 99, 000
Interest on Investment_ 29,160
Selling Costs- 24,475
Total -$156, 635 
      
      We ara indebted to Trial Commissioner Mastín G. White for his memorandum opinion and findings of fact. We agree with the former and adopt the latter with minor revisions. We consider that preparation of an opinion of normal scope is necessary to explain fully the reasons for our decision and to prevent future misapplication of it as a precedent. We have borrowed extensively from the commissioner’s memorandum opinion,
     
      
       The record before thé court is not clear as to whether this was the second or the third offering of parcels M-l and M-2 for sale.
     
      
       Computed at the rate of 6 percent per year for 2 years on the purchase price of $140,000 and development costs totaling $103,000.
     