
    No. 530-77.
    April 4, 1978
    Summit Timber Company
    J.P. Hunter, attorney of record, for plaintiff. Anderson, Hunter, Dewell, Baker & Collins, of counsel
    
      Gary B. Randall, with whom was Assistant Attorney General James W. Moorman, of counsel.
    Before Davis, Judge, Presiding, Nichols and Kashiwa, Judges.
    
   "The first count of plaintiffs petition alleges that, by a contract with the United States Department of Agriculture, the company purchased all the standing timber on certain lands owned by the Government; that those government lands adjoined plaintiffs own timber land; that defendant so marked its own area that a portion of plaintiffs adjoining land was inadvertently but negligently designated as belonging to defendant; and that consequently the Government in effect sold to plaintiff some of plaintiffs own timber valued at $225,087.85. The second count asserts that defendant’s action amounted to a taking by the Government of plaintiffs property without payment of just compensation. The third count characterizes the erroneous inclusion of plaintiffs land as a mutual mistake of both parties. Damages of $225,087.85 are sought, together with interest and attorney’s fees.

"The face of the petition also reveals that plaintiff had already filed suit against defendant, in the District Court for the Western District of Washington, under the Tort Claims Act 'upon the same facts hereinabove alleged.’ Defendant has moved, under 28 U.S.C. § 1500, to dismiss the petition in this court on the basis of this pending action in the District Court which arises from the very same facts as the present suit.

"So far as we are aware, there is no attack on the jurisdiction of the District Court to entertain the suit under the Tort Claims Act. That being so, 28 U.S.C. § 1500 mandates dismissal of the later suit here which essentially pursues the same claim. If the District Court happens to decide that it does not have jurisdiction under the Tort Claims Act, it can transfer that action to this court under 28 U.S.C. § 1406(c) as incorporating the contractual and constitutional grounds asserted here.

"it is therefore ordered and concluded that defendant’s motion to dismiss is granted and the petition is dismissed, without prejudice, under 28 U.S.C. § 1500.” 
      
       The Agriculture Department offered to pay only $46,899.45.
     
      
       Plaintiff has not responded to the Government’s motion to dismiss.
     