
    MAURICE JOO AND NORFOLK-HAMPTON ROADS CO. v. THE UNITED STATES
    [No. C-755.
    Decided June 1, 1925]
    
      On the Proofs
    
    
      'Compensation; estoppel. — AA7liere Uiere is a controverted question as to whether certain improvements on land belong to the plaintiff or to the owner of the land, and the owner of the land brings suit against the Government for taking said land and improvements, including the improvements claimed by plaintiff, and recovers judgment against the United States in the Court of Claims and the Supreme Court on appeal, which is paid by the •Government, Avliile plaintiff stands by and asserts no title to said improvements, he is estopped from recovering compensation from the Government for said improvements.
    
      The Re-porter’s statement of the case:
    
      Mr. Bruce Lowenberg for the plaintiff.
    
      Mr. Dan M. Jackson, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The folloAving are the facts as found by the court :
    L The plaintiff, Maurice Joo, is a citizen of the United .States, residing at Natchez, Mississippi; the plaintiff, Norfolk-Hampton Roads Company, is a corporation duly authorized and existing under the laws of the State of Virginia, having its principal office in the city of Norfolk. Virginia.
    II. On June 28, 1917, the plaintiff, Maurice Joo, was and had been since 1907 in possession, as tenant at will, of that certain tract of land known as the Pine Grove tract at SeAvalls Point, also known as Pine Beach, Virginia, which belonged to the plaintiff, Norfolk-Hampton Roads Company, and was included in the area described in the act of Congress approved June 15, 1917, and taken on said 28th day of June, 1917, by the President of the United States, together with all buildings thereon, for the United States, under and pursuant to the terms of said act of Congress; on said date the plaintiffs severally surrendered their respective interests in and control and possession of said buildings to the United States and vacated same on or before the 1st day of August, 1917; and thereafter the President of the United States, without separately valuing the several buildings, determined that the fair and reasonable value of all of said buildings was two thousand one hundred and seventy-five dollars ($2,175) on said June 28.
    III. There were on said tract of land two groups of buildings : (a) Three log cabins known as the Kentucky Building, and (5) a large barn, a greenhouse, two pigeon houses, and wire inclosures, built and constructed during the year 1908 by plaintiff Maurice Joo, pursuant to an oral agreement with the plaintiff, Norfolk-Hampton Roads Company, the owner of the land, that said buildings would be and remain the property of the plaintiff Maurice Joo, and that he would at any time have the right to remove same; on September 16, 1914, a written agreement was entered into by and between the plaintiffs, Maurice Joo and Norfolk-Hampton Roads Company, wherein it was provided:
    “ * * * Whereas said Norfolk-Hampton Roads Company is the owner of certain property at Sewalls Point
    “And whereas during the year 1907 it leased said property to Jamestown Exposition Company for use in connection with the exposition held in said year by said company, on which property during said exposition was located the State building of the State of Kentucky.
    “And whereas on December the 3d, 1907, the said Norfolk-Hampton Roads Company purchased from the State of Kentucky its said State building and on said date granted permission to said M. Joo to occupy said property as its tenant at will, and at the same time sold to him the said buildings at and for the sum of five hundred ($500.00) dollars, for which sum it received the negotiable notes of said Morris Joo, all of which notes have matured, but none of which have been paid, nor has any interest been paid thereon, and it is deemed desirable by both parties to cancel the sale of said building to said Joo.
    “Now, therefore, this agreement witnesseth that by mutual consent the sale of said building to said Morris Joo is hereby canceled and made null and void; and the negotiable notes of said Morris Joo, given for the purchase price thereof, are to be this day canceled and destroyed, leaving the ownership of said buildings in the hands of the said Norfolk-Hampton Eoads Company and leaving the said Morris Joo free of indebtedness therefor.
    “It is further agreed that the Norfolk-Hampton Eoads Company permits the said Morris Joo to continue in the occu-pany of said property and buildings for the time being as its tenant at will; and the said Morris Joo, in consideration of such permission, hereby agrees to keep the said property in good condition, clear and free at all times of underbrush and bushes, and to keep the said buildings in reasonably good repair.
    “The said Morris Joo further agrees that any and all additions, alterations, or improvements heretofore and hereafter made or placed upon said property or said buildings shall at once be and become the property of the said Norfolk-Hampton Eoads Company.
    “ It is further mutually agreed that the said Morris Joo shall and will vacate said property at any time upon sixty days’ notice from the said Norfolk-Hampton Eoads Company. The said Norfolk-Hampton Eoads Company reserves the right for itself, its officers, and representatives to enter into and upon the said property and buildings at any time to view and inspect the same.
    “ It is understood that no trees are to be cut or damaged, and that if anything is planted in the soil by the said Morris Joo he is to have no right of harvesting the same after the expiration of the sixty-day notice aforesaid except by consent of the Norfolk-Hampton Eoads Company.”
    IV. This court on June 26, 1922, rendered judgment in favor of the Norfolk-Hampton Eoads Company, therein, as in this cause, the plaintiff, in an action entitled Norfolk-Hampton Roads Oompany, plamtiff, a/nd Guaranty Title <& Trust Corporation, Intervenor, v. United States, 5T C. Cls. 620, for the sum of $68,500 as just compensation for the tract of land mentioned in Findings II and III above, belonging to said plaintiff, Norfolk-Hampton Eoads Company; and in the findings of fact as a part of said judgment, the court found—
    “ * * * Thereafter, the President of the United States, acting pursuant to said act of Congress, determined that just compensation for said parcel of land, including appurtenances and riparian rights belonging thereto, but exclusive of buildings thereon not belonging to the owners of the land, was the sum of * * *.” (Finding II.)
    “ That said 4.67 acres of land acquired by plaintiff, the Norfolk-Hampton Boads Company * * * and constituting a part of the parcel of 9.22 acres for which recovery is sought in this suit, was worth the sum of $35,500 when it was taken by the United States on June 28, 1917.” (Finding VIII.)
    “The portion of said 4.55 acres * * * was worth the sum of $33,000 when it was taken by the United States on June 28, 1917.” (Finding IX.)
    Payment of the amount of said judgment, $68,500, Avas duly made by defendant to plaintiff Norfolk-Hampton Boads Company.
    V. On June 28, 1917, the value of the three log.cabins, known as Kentucky Building, was $326.25, and the value of the remaining buildings, erected by plaintiff, Maurice Joo, was $1,848.75.
    The court decided that plaintiff was not entitled to recover.
   Booth, Judge,

delivered the opinion of the court:

The plaintiff, Maurice Joo, predicates a right of recovery for certain buildings attached to realty upon an alleged act of omission upon the part of the defendant. The gravamen of his complaint is restricted to an allegation that in the course of the proceedings to be set forth herein, he, the recognized owner of the buildings involved, was in fact recognized as entitled to the award made for the value of the same, and that the sum awarded the Hampton Boads Company in a suit in this court for the value of the lands taken did not include the value of his buildings.

The pertinent facts are as follows: The Norfolk-Hampton Boads Company was the owner of what is known as the Pine Grove tract of land at Sewalls Point, Ya. When the Jamestown Exposition Company was organized the Norfolk-Hampton Roads Co. leased this entire tract to the exposition company, and the latter, in turn, leased the lands to the State of Kentucky. The State of Kentucky, in formulating its exhibit for the exposition, erected on the premises three log cabins. After the close of the exposition and the expiration of the lease between the land company and the exposition company, the land company sold these buildings to the plaintiff, taking his promissory notes for $500 in payment therefor. At the same time a verbal agreement was consummated between the plaintiff and the land company leasing the premises' to the plaintiff. This verbal agreement recognized the title of all improvements then or thereafter to be placed on the premises as in the plaintiff, and conferred upon the plaintiff the right to remove the buildings. The land company did not possess an undisputed record title to the whole of the Pine Grove tract.

An adverse claimant, the Vue de L’Eau Company of Virginia, asserted title to a portion of the tract, and the question of fee simple title to the whole was dependent upon open, notorious, and adverse possession by the land company for the sufficient statutory period to give the land company title by prescription to the Vue de L’Eau Company’s interest. The land company on September 16, 1914, seven years after the making of the verbal agreement with the plaintiff,, i. e., the initial agreement, hereinbefore mentioned, entered into a written agreement with the plaintiff by the terms of which the indebtedness of the plaintiff for the purchase of the Kentucky buildings was canceled.and the promissory notes destroyed and liability thereunder released. In consideration of which the plaintiff conveyed to the land company his title to the Kentucky buildings and all other improvements then on or thereafter to be placed upon the premises in question, the plaintiff to continue in possession of the land as tenant at will.

The President, in pursuance of the act of June 15, 1917, 40 Stat. 207, took over this entire tract of land for use as a naval operating base. The order taking it over was dated. June 28, 1917. The compensation board appointed by the President fixed as just compensation for the lands taken $37,000 and $2,175 for the buildings thereon, a total award of $39,175. The land company was dissatisfied with the award. Under the statute the land company desired to accept 75 per cent of the award and sue, as it had a right under the statute to do, for such additional sum as would make up just compensation. The President, however, due to the failure of the land company to exhibit an undisputed record title, and the adverse claim of the Vue de L’Eau Company,, refused to pay over to the land company any portion of the award. In this state of affairs the land company, on December 7, 1920, brought suit in this court to recover as just compensation for the land taken the sum of $220,475, alleging in its petition that it was “ the sole owner of said land with the improvements thereon and the riparian rights thereto belonging.” The Vue de L’Eau Company filed an intervening petition, setting up its adverse claim to a portion of the premises. The case, after the development of a most formidable and complete record, was brought on for trial and resulted in a judgment for the land company in the sum of $68,500, made contingent upon the land company filing with the Attorney General of the United States a good and sufficient deed, and thereafter the amount of the judgment was paid to the land company. It is now insisted by the plaintiff, Maurice Joo, in which insistence the land company joins, that the judgment awarded the land company did not include the sum of $2,175, the conceded value of the buildings which were acknowledged by both the land company and the defendant in that suit to be the property of said plaintiff. It is not to be disputed that in the face of certain requested findings of fact, preferred by both parties in the land company case, that room for this contention exists. The petition of the land company did not concede this fact. The plaintiff was not a party to the litigation, although he was familiar with and knew exactly what the land company was claiming for the lands, for he was a witness for the land company and testified at length in that case. Why he did not intervene or assert title to the buildings in this litigation was manifestly due to the fact that he expected the land. company to recognize his rights and pay him out of any judgment procured.

Obviously this court in the adjudication of the land company’s case could legally accomplish no more than a determination of the rights of the parties properly in court, and whose interests were set up in the respective petitions. A careful examination of the land company’s petition clearly discloses that the land company was contending for a judgment which included the value of the lands taken with all improvements thereon. In our opinion the judgment of this, court conclusively determined the issue. The plaintiff seems to have knowingly submitted to what he believed to be the proper course in securing payment for the property he claimed from the land company. Strange, indeed, if it were otherwise, to allow litigation to proceed to judgment in both this and the Supreme Court without a claim to a portion of the same until long after the same is concluded and paid.

In addition to what has been said, and despite the equities as between the plaintiff and the land company respecting the buildings, the agreement of September 16, 1914, clearly and unmistakably confirms title to the buildings in the land company. The plaintiff by this written instrument divested himself of all legal claim of title to the buildings in suit. An attempt is made to give this instrument a different effect. It must necessarily fail. We must take the agreement as we find it. The plaintiff may not be heard to say that he executed it for an intended purpose, quite aside from transferring title to the property mentioned therein. It is a written contract, free from doubt or ambiguity, presented by the defendant, and evidence which we may not ignore.

The petition will be dismissed. It is so ordered.

Hat, Judge; DowNey, Judge; and Campbell, Chief Justice, concur.

GRAham, Judge, took no part in the decision of this case.  