
    UNITED STATES v. PACIFIC MARKET CO.
    No. 416.
    Circuit Court of Appeals, Tenth Circuit.
    May 27, 1931.
    
      Albert D. Walton, U. S. Atty., for tbe District of Wyoming, and Ewing T. Kerr, Asst. U. S. Atty., for the District of Wyoming, both of Cheyenne, Wyo., for tbe United States.
    N. E. Corthell, A. W, McCollough, and M. E. Corthell, all of Laramie, Wyo., for appellee.
    Before LEWIS and COTTERAL, Circuit Judges, and POLLOCK, District Judge.
   POLLOCK, District Judge.

This is an action at law brought to recover one installment of rent accruing under tbe terms of a lease of about 56,000 acres of pasture land known as Ft. D. A. Russell (Pole Mountain) Target and Maneuver Reservation in tbe state of Wyoming. Tbe lease was made May 21,1917, by tbe Honorable Secretary of War under authority of, an Act of Congress approved July 28, 1892 (27 Stat. 321 [40 USCA § 303]), which provides, as follows:

“Chap. 316. — An act authorizing tbe Secretary of War to lease public property in certain cases.
“Be it enacted by tbe Senate and House of Representatives of tbe United States of America in Congress assembled, That authority be, and is hereby, given to the Secretary of War, when in bis’discretion it will be for the public good, to lease, for a period not exceeding five years and revocable at any time, such property of the United States under his control as may not for tbe time be required for public use and for the leasing of which there is no authority under existing law, and such leases shall be reported annually to Congress: Provided, That nothing in this act contained shall be held to apply to mineral or phosphate lands.”

The parties will be referred to as on tbe record in tbe court below. 51 F.(2d) 348.

All rentals accruing prior to July 1,1921, were paid to tbe government. This action was brought to recover tbe installment of rentals alleged to have accrued from July 1, 1921, to June 30, 1922.

During tbe time tbe original lease was in force and in November, 1920, tbe government notified defendant it wished to use a portion of tbe leased premises for tbe purpose of storing explosives thereon, and on December 8, 1920, as provided by tbe terms of tbe lease, defendant was notified the government bad canceled tbe same, and a new lease for the remainder of tbe five-year term from tbe date of tbe original lease was made between the parties. This new lease reserves the right of the United States to store explosives at such places and in such quantities as is desired on tbe leased premises. This lease provides that “this lease shall be revocable at tbe will of tbe Secretary of War.” After tbe making of this new lease the defendant did not occupy tbe premises, and in tbe spring of 1921 defendant served notice on tbe commanding officer of Ft. D. A. Russell, Wyo., it did not desire the use of tbe premises for tbe ensuing year, and it did not use them.

Tbe government having admitted in its petition defendant market company was entitled to an income tax refund of $834.55, this amount was deducted from tbe amount of rent sought to be recovered. Hence, judgment was prayed by tbe plaintiff in only tbe sum of $5,175.45*.

Issues having been joined by an answer to tbe petition, and also a cross-petition having been filed by tbe defendant against tbe government, a jury was waived, and tbe case was submitted to and tried by tbe court. There was no evidence sufficient to support tbe cross-petition. It was therefore dismissed. Tbe court found generally for tbe defendant and against the government. There were no special findings of fact either requested or made, and no request of tbe trial court for declarations of law in favor of the plaintiff. This being tbe state of the record, the errors assigned by the plaintiff, as found in tbe record, are, as follows:

“Assignment of Errors.
“That tbe judgment entered in tbe above entitled cause on tbe 29th day of August, A. D. 1930, dismissing plaintiff’s petition is erroneous and unjust to tbe plaintiff for tbe following reasons:
“1. That said judgment is not supported by tbe evidence.
“2. That said judgment is against tbe weight of evidence.
“3. That said judgment is contrary to law.
“4. That tbe court erred in rendering said judgment.
“5. That tbe court erred in not rendering judgment in favor of tbe plaintiff and against the defendant.
“6. That tbe court erred in bolding as a matter of law that tbe lease sued upon and set out in plaintiff’s petition was, and is^ a lease terminable and revocable at the option of tbe lessee, and that tbe same bad been terminated and revoked prior to the first day of July, 1921.”

While the contentions of the defendant are set out in the brief of the plaintiff, yet an inspection of the reeord in this ease discloses no possible question for review by this court. It is conclusively established by the authorities controlling here when in an action at law in a national eourt a jury is waived and the case is tried to the court, while the eourt may from the evidence make special findings of fact, it is not required to do so. Modoc County Bank v. Ringling (C. C. A. 9) 7 F.(2d) 535, 536; Bank of Waterproof v. Fidelity & Deposit Co. (C. C. A. 5) 299 F. 478, 480; Compania Trans. de Petroleo v. Mexican Gulf Oil Co. (C. C. A. 2) 292 F. 846, 848; United States v. Smith (C. C. A. 1) 39 F.(2d) 851, 853; Denver L. S. Com. Co. v. Lee (C. C. A. 8) 20 F.(2d) 531; Merriam v. Huselton (C. C. A. 8) 45 F.(2d) 983.

Again, when a ease is tried by the court without the intervention of a.jury, as this case was tried, and there are no findings of fact made save the general finding for the one party or the other, there is no right of review by an appellate court, except as to the rulings of the eourt made during the progress of the trial excepted to at the time and presented by the bill of exceptions. Wilson v. Merchants’ Loan & Trust Co., 183 U. S. 121, 22 S. Ct. 55, 46 L. Ed. 113; Law v. United States, 266 U. S. 494, 45 S. Ct. 175, 69 L. Ed. 401; Lehnen v. Dickson, 148 U. S. 71, 13 S. Ct. 481, 37 L. Ed. 373; Vicksburg, etc., Ry. Co. v. Anderson-Tully Co., 256 U. S. 408, 41 S. Ct. 524, 65 L. Ed. 1020; Cooper v. Omohundro, 19 Wall. 65, 69, 22 L. Ed. 47.

In Cooper v. Omohundro, supra, Mr. Justice Clifford, delivering the opinion for the eourt, said:

“Where issues of fact are submitted to the Circuit Court and the finding is general, nothing is open to review * * * except the rulings of the Circuit Court in the progress of the trial, and that the phrase ‘rulings of the eourt in the progress of the trial’ does not include the general finding of the Circuit Court nor the conclusions of the Circuit Court embodied in such general finding.”-

In Wear v. Imperial Window Glass Co. (C. C. A.) 224 F. 60, 63, Judge Sanborn, delivering the opinion for the eourt, said:

“There is another reason why no reviewable question of law is presented to this eourt in this ease. A trial court is entitled to a clear specification by exception of any ruling or rulings which a party challenges and desires to review, to the end that the trial eourt itself may correct them if so advised, and, if it fails to do so, that there may be a clear record of the rulings and the challenges thereof. For this purpose a rule has been firmly established that an exception to any ruling which counsel desire to review, which sharply calls the attention of the trial court to the specific error alleged, is indispensable to the review of such a ruling.”

For a clear and explicit holding on what and how the reeord must be preserved to raise a question reviewable by this eourt in a case where a jury is waived and the finding of the trial eourt is general, as in this ease, see, Alexander T. White, appellant, v. United States of America, 48 F.(2d) 178, January Term, 1931, opinion by Judge Phillips.

There was no declaration of law requested by the government to find on the evidence, judgment in its favor, made, denied, or excepted to, and no other matter or thing ruled by the court and excepted to by the government on the trial of the case. From the opinion delivered by the able trial court, it may be seen the eourt was of the opinion as the lease or license under which the government claimed was not enforceable against defendant unless the defendant occupied the premises under it because it was as made unilateral, yet, as there was no question of law raised on this view of the law, the same, even if erroneous, which we do not hold, cannot be reviewed on this reeord.

As shown by this record, as there was no ruling of the eourt made and excepted to dur-' ing the trial in order to have the question reviewed, there is nothing whatever in this record which this court may re-examine for error.

Affirmed.  