
    MARION & RYE VALLEY RAILWAY COMPANY v. THE UNITED STATES
    
    [No. C-699.
    Decided January 26, 1925]
    
      On the P-roofs
    
    
      Eminent domain; no deprivation of possession or control; Railroad Administration. — Where plaintiff has remained in complete and absolute possession and control of its property during- the period for which claim is made, no constructive taking by the United States under eminent domain can be implied by reason of a general proclamation of the 'President or orders and circulars of the Kailroad Administration that would have authorized an actual taking, and the Government is not responsible for depreciation or damage caused to said property by plaintiff’s untrammelled management thereof during said period.
    
      
      The Reporter's statement of the case:
    
      Mr. Ben B. Gain for the plaintiff. Mr. J. P. Buchanan was on the briefs.
    
      Mr. A. A. McLaughlin, with whom was Mr. Assistant Attorney General Robert. H. Lovett, for the defendant. Messrs. George H. Foster and Sidney F. Andrews were on the brief.
    
      Mr. MLlton G. Elliott as amicus curiae.
    
    The following are the facts as found by the court:
    I. December 26th, 1917, the President of the United States issued the following proclamation, together with the following statement, to wit: ■
    By the President of the United States of America
    A PROCLAMATION
    Whereas the Congress of the United States, in the exercise of the constitutional authority vested in them, by joint resolution of the Senate and House of Representatives bearing date of April 6, 1917, resolved:
    That the state of war between the United States and the Imperial German Government which has thus been thrust upon the United States is hereby formally declared; and that the President be, and he is hereby, authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial German Government; and to bring the conflict to a successful termination all the resources of the country are hereby pledged by the Congress of the United States.
    And by joint resolution bearing date of December 7, 1917, resolved:
    That a state of war is hereby declared to exist between the United States of America and the Imperial and Royal Austro-Hungarian Government; and that the President be, and he is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial and Royal Austro-Hungarian Government; and to bring the conflict to a successful termination all the resources of the country are hereby pledged by the Congress of the United States.
    And whereas it is provided by section 1 of the act approved August 29,1916, entitled “An act making appropriations for the support of the Army for the fiscal year ending-June 30, 1917, and for other purposes,” as follows:
    The President in time of war is empowered, through the Secretary of War, to take possession and assume control of any system or systems of transportation, or any part thereof, and to utilize the same, to the exclusion, as xar as may be necessary, of all other traffic thereon, for the transfer or transportation of troops, war material, and equipment, and for such other purposes connected with the emergency as may be needful or desirable.
    And whereas it has now become necessary in the national defense to take possession and assume control of certain systems of transportation and to utilize the same, to the exclusion, as far as may be necessary, of other than war traffic thereon, for the transportation of troops, war material, and equipment therefor, and for other needful and desirable purposes connected with the prosecution of the war; Now, therefore, I, Woodrow Wilson, President of the United States, under and by virtue of the powers vested' in me by the foregoing resolutions and statute, and by virtue of all other powers thereto me enabling, do hereby, through Newton D. Baker, Secretary of War, take possession, and assume control at 12 o’clock noon on the 28th day of December, 1917, of each and every system of transportation and the appurtenances thereof located wholly or in part within the boundaries of the continental United States and consisting of railroads and owned or controlled systems of coastwise and inland transportation engaged in general transportation, whether operated by steam or by electric power, including also terminals, terminal companies, and terminal associations, sleeping and parlor cars, private cars and private car lines, elevators, warehouses, telegraph and telephone lines, and all other equipment and appurtenances commonly used upon or operated as a part of such rail or combined rail-and-water systems of transportation; to the end that such systems of transportation be utilized for the transfer and transportation of troops, war material, and equipment, to the exclusion so far as may be necessary of all other traffic thereon; and that so far as such exclusive use be not necessary or desirable such systems of transportation be operated and utilized in ,the performance of such other services as the national interest may require and of the usual and ordinary business and duties of common carriers.
    It is hereby directed that the possession, control, operation, and utilization of such transportation systems, hereby by me undertaken, shall be exercised by and through Wii-liam G. McAdoo, who is hereby appointed, and designated Director General of Railroads. Said director may perform tlie duties imposed upon him, so long and to such extent as he shall determine, through the' boards of directors, receivers, officers, and employees of said systems of transportation. Until and except so far as said director shall from time to time by general or special orders otherwise provide, the boards of directors, receivers, officers, and employees of the various transportation systems shall continue the operation thereof in the usual and ordinary course of the business of common carriers, in the names of their respective companies.
    Until and except as far as said director shall from- time to time otherwise by general or special orders determine, such systems of transportation shall remain subject to all existing statutes and orders of the Interstate Commerce Commission and to all statutes and orders of regulating commissions of the various States in which said systems or any part thereof may be situated.’ But any orders, general or special, hereafter made by said director shall have paramount authority and be obeyed as such.
    Nothing herein shall be construed as now affecting the ■possession, operation, and control of street electric passenger railways, including railways commonfy called inter - urbans, whether such railways bi or be not owned or controlled by such railroad companies or systems. By subsequent order and proclamation, if and when it shall be found necessary or desirable, possession, control, or operation may be taken of all or any part of such street railway system, including subways and tunnels; and by subsequent order and proclamation, possession, control, and operation in whole or in part may also be relinquished to the owners thereof of any part of the railroad systems or rail and water systems, possession, and control of which are hereby assumed.
    The director shall, as soon as may be after having assumed such possession and control, enter upon negotiations with the several companies looking to agreements for just and reasonable compensation for the possession, use, and control of their respective properties on the basis of an annual guaranteed compensation above accruing depreciation and the maintenance of their properties equivalent, as nearly as may be, to the average of the net operating income thereof for the three-year period ending June 30, 1917, the results of such negotiations to be reported to me for such action as may be appropriate and lawful.
    But nothing herein contained, expressed or implied, or hereafter done or suffered hereunder, shall be deemed in any way to impair the rights of the stockholders, bondholders, creditors, and other persons having interests in said systems of transportation or in the profits thereof to receive just and adequate compensation for the u.se and control and operation of their property hereby assumed.
    Regular dividends hitherto declared and maturing interest _ uj)on bonds, debentures, and other obligations may be paid in due course; and such regular dividends and interest may continue to be paid until and unless the said director shall from time to time otherwise by general or special orders determine; and, subject to the approval of the director, the various carriers may agree upon and arrange'for the renewal and extension of maturing obligations.
    Except with the prior written assent of said director, no attachment by mesne process or on execution shall be levied on or against any of the property used by any of said transportation systems in the conduct of their business as common carriers; but suits may be brought by and against such carriers and judgments rendered as hitherto until and except so far as said director may, by general or ¿special orders, otherwise determine.
    From and after 12 o’clock on said 28th day of December, 1917, all transportation systems included in this order and proclamation shall conclusively be deemed within the possession and control of said director without further act or notice. But for the purpose of accounting said possession and control shall date from 12 o’clock midnight on December 31, 1917.
    In witness whereof I have hereunto set my hand and caused the seal of the United States to be affixed.
    Done by the President, through Newton D. Baker, Secretary of War, in the District of Columbia, this 26th day of December, in the year of our Lord one thousand nine hundred and seventeen, and of the independence of the United States the one hundred and forty-second.
    WOODROW WlLSON.
    By the President:
    ROBERT LANSING,
    
      Secretary of State.
    
    Newton D. Baker,
    
      Secretary of War.
    
    Statement of the President:
    “ I have exercised the powers over the transportation systems of the country which were granted me by the act of Congress of last August because it has become imperatively necessary for me to do so. This is a war of resources no less than of men, perhaps even more than of men, and it is nee-essary for the complefe mobilization of our resources that the transportation systems of the country should be organized and employed under a single authority and the simplified method of coordination which have not proved possible under private management and control. The committee of railway executives who have been cooperating with the Government in this all-important matter have done the utmost that it was possible for them to do; have done it with patriotic zeal and with great ability; but there were difficulties that they could neither escape nor neutralize. Complete unity of administration in the present circumstances involves upon occasion and at many points a serious dislocation of earnings, and the committee was, of course, without power or authority to rearrange charges or effect proper compensations and adjustments of earnings. Several roads which were willingly and with admirable public spirit accepting the orders of the committee have already suffered from these circumstances and should not be required to suffer further. In mere fairness to them the full authority of the Government must , be substituted. The Government itself will thereby gain an immense increase of efficiency in the conduct of the war and of the innumerable activities upon which its successful conduct depends.
    “ The public interest must be first served, and, in addition, the financial interests of the Government and the financial interests of the railways must be brought under a common direction.^ The financial operations of the railways need not then interfere with the borrowings of the Government, and they themselves can be conducted at a greater advantage. Investors in railway securities may rest assured that their rights and interests will be as scrupulously looked after by the Government as they could be by the directors of the several railway systems. Immediately upon the reassembling of Congress I shall recommend that these definite guarantees be given: First, of course, that the railway properties will be maintained during the period of Federal control in as good repair and as complete equipment as when taken over by the Government; and, second, that the roads shall receive a net operating income equal in each case .to the average net income of the three years preceding June 30, 1917; and I am entirely confident that the Congress will be disposed in this case, as in others, to see that justice is done and full security assured to the owners and creditors of the great systems which the Government must now use under its own direction or else' suffer serious embarrassment.
    “The Secretary of War and I are agreed that, all the circumstances being taken into consideration, the best results can be obtained under the immediate executive direction of the Hon. William G. McAdSo, whose practical experience peculiarly fits him for the service and whose authority as Secretary of the Treasury will enable him to coordinate as no other man could the many financial interests which will be involved and which might, unless systematically directed, suffer very embarrassing entanglements.
    “ The Government of the United States is the only great Government now engaged in the .war which has not already assumed control of this sort. It was thought to be in the spirit of American institutions to attempt to do everything that was necessary through private management, and if zeal and ability and patriotic motive could have accomplished the necessary unification of administration it would certainly have been accomplished; but no zeal or ability could overcome unsuperable obstacles, and I have deemed it my duty to recognize that fact in all candor, now that it is demonstrated, and to use without reserve the great authority reposed in me. A great national necessity dictated the action, and I was therefore not at liberty to abstain from it.
    “ Woodrow Wilson.”
    II. Following said proclamation and statement, William G. McAdoo, named therein as Director General of Railroads, issued various general orders and circulars to the railroads generally, the following of which were received and complied with by the plaintiff, to wit:
    Office of the Director GeNeral of Railroads,
    
      Washington, December %8, 1917.
    
    
      To the Presidents am,d Directors of all Railroad Companies:
    
    Having assumed the duties imposed upon me by, and in pursuance of, the proclamation of the President dated December 26, 1917, you will, until otherwise ordered, continue the operation of your road in conformity with said proclamation. You are requested to make every possible effort to increase efficiency and to move traffic by the most-convenient and expeditious routes.
    I confidently count on your hearty cooperation. It is only through united effort, unselfish service and effective work that this war can be won and America’s future be secured.
    W. G. McAdoo,
    
      Director General of Railroads.
    
    
      DIRECTOR GENERAL OE RAILROADS.
    
      Washington, December 89, 191?,
    
    Order No. 1
    Pursuant to the order of the President of the United States, through the Secretary of War, the undersigned, as Diyector General of Railroads, has taken possession and assumed control of certain transportation systems described in the proclamation of the President of Avhich proclamation and order officers, agents, and employees of said transportation systems are to take immediate and careful notice. In addition to the provisions therein contained, it is,
    Until further ordered, directed that — •
    1. All officers, agents, and employees of such transportation systems may continue in the performance of their present regular duties, reporting to the same officers as heretofore and on the same terms of employment.
    2. Any officer, agent, or employee desiring to retire from his employment shall give the usual and seasonable notice to the proper officer to the end that there may be no interruption or impairment of the transportation service required for the successful conduct of the Avar and the needs of general commerce.
    3. All transportation systems covered by said proclamation and order shall be operated as a national system of transportation, the common and national needs being in all instances held paramount to any actual or supposed corporate advantage. All terminals, ports, locomotives, rolling stock, and other transportation facilities are to be fully utilized to carry out this purpose Avithout regard to OAAmership.
    4. The designation of routes by shippers is to be disregarded AA'hen speed and efficiency of transportation service, may thus be promoted.
    5. Traffic agreements betAveen carriers must not be permitted to interfere with expeditious movements.
    G. Through routes which have not heretofore been.established because of short hauling or other causes, are to be established and used Avhenever expedition and efficiency of traffic will thereby be promoted; and if difficulty is experienced in such through routing, notice thereof shall by carriers or shippers or both be given at once to the director by wire.
    7. Existing schedules of rates and outstanding orders of the Interstate Commerce Commission are to be obseived, but any such schedules of rates or orders as may hereafter be found to conflict with the purposes of said proclamation or with this order shall be brought immediately by wire to the attention of the director.
    W. G. McAdoo,
    
      Director General of Railroads.
    
    Office oe the Director GENERAL of Railroads,
    Washington, D. C., December %9,191V.
    
    General Order No. 2
    
      To the Chief Executives of the Railroads:
    
    Pursuant to the authority vested in me by the President of the United States in his proclamation of December 26, 1917, wherein it was stated that for purposes of accounting, possession, and control of the railroads shall date from 12 o’clock midnight on December 31,1917, you are notified that, until otherwise directed, no changes in the present methods of accounting as prescribed by the Interstate Commerce Commission will be required. The accounts of your respective companies shall be closed as of December 31, 1917, and opened as of January 1, 1918, in the same manner as they have heretofore been handled at the close of one fiscal period and the beginning of another; and in the same manner that you should have handled your accounts had the Government not taken possession and control.
    William G. McAdoo,
    
      Director General of Railroads.
    
    Director GeNeral of Railroads,
    INTERSTATE COMMERCE , COMMISSION BUILDING,
    
      Washington, January 8,1918,
    
    
      To dll Raibroad Officers'and Employees:
    
    The Government of the United States having assumed possession and control of the railroads for the period of the present war with Germany, it becomes more than ever obligatory upon every officer and employee of the railroads to apply himself with unreserved energy and unquestioned loyalty to his work.
    The supreme interests of the Nation have compelled the drafting of a great army of our best young men and sending them to the bloody fields of France to fight for the lives and liberties of those who stay at home. The sacrifices we are ■exacting of these noble American boys call to us who stay at home with an irresistible appeal to support them with oil most unselfish labor and effort in the work we must do at home, if our armies are to save America from the serious dangers that confront her. Upon the railroads rest a grave responsibility for the success of the war. The railroads can not be efficiently operated without the wholehearted and loyal support of everyone in the service from the highest to the lowest.
    I earnestly appeal to you to apply yourselves with new devotion and energy to your work, to keep trains moving on schedule time, and to meet the demands upon the transportation lines, so that our soldiers and sailors may want for nothing which will enable them to fight the enemy to a standstill and win a glorious victory for united America.
    Every railroad officer and employee is now, in effect, in the service of the United States, and every officer and employee is just as important a factor in winning the war as the men in uniform who are fighting in the trenches.
    I am giving careful consideration to the problems of railroad employees, and every effort will be made to deal with these problems justly and fairly and at the earliest possible moment. There should be a new incentive to every one in railroad service while under Government direction to acquit himself with honor and credit to himself and to the country.
    W. G. McAdoo,
    
      Director General of Railroads.
    
    N. B. — The Director General of Railroads requests that the above statement be posted by all railroads.
    [Western Union Telegram]
    WASHINGTON, D. C., Jam,. 18-18.
    
    L. A. AmbleR,
    
      Gen. Mgr. Virginia Southern R. R., Marion, Va.:
    
    In view of the order of the fuel administrator for a five-day cessation of industrial activity in this territory for the purpose of accumulating and distributing an ample fuel supply, I urge and direct that every possible effort be made by the railroads to move coal and cooperate to the minutia with the fuel administration for the accomplishment of the desired end. I hope that the officers and employees of the railroads will do their part so effectively that there may be no further occasion for the interruption of the industrial and normal activity of the Nation.
    W. G. McAdoo,
    
      Director General.
    
    
      DIRECTOR GENERAL OE RAILROADS,
    Interstate Commerce Building,
    Washington, March 85, 1918.
    
    General Order No. 14
    The committee on transportation, American Railway Association, having at the request of the director general submitted a report in connection with the Federal law “To save daylight and to provide standard time for the United States,” which becomes effective at 2:00 a. m., Sunday, March 31, 1918, the following instructions, based on such report, are hereby issued:
    First. At 2:00 a. m., Sunday, March 31st, all clocks and watches in train- dispatchers’ offices, and in all other offices open at that time, must.be advanced one hour to indicate 3:00 a. m.
    Employees in every open office must, as soon as the change has been made, compare time with the train dispatcher. Clocks and watches in all offices at the first opening' at or after the time the change becomes effective must be advanced to conform to the new standard time, and employees, before assuming duties in such offices, must, after the change is made, compare time with the train dispatcher. ,
    Second. Each railroad will issue necessary instructions ■and arrange for such supervision and check of the watches of its employees as to insure that they have been properly changed to conform to the new standard time.
    Third. Owing to the varying conditions which will prevail on the railroads of the United States, it is not advisable to issue a uniform rule or order to cover the details involved in the movement of trains at the period the change in standard time becomes effective. Therefore each railroad must adopt such measures as may be necessary to properly safeguard the movement of its trains on the road at the time of the change.
    W. G. McAdoo,
    
      Director General of Railroads.
    
    General Order No. 28
    Washington, D. O., May 85, 1918.
    
    Whereas it has been found and is hereby certified to the Interstate Commerce Commission that in order to defray the expenses of Federal control and operation fairly chargeable to railway operating expenses, and also to pay railway tax accruals other than war taxes, net rents for joint facilities and equipment, and compensation to the carriers, operating as a unit, it is necessary to increase tlie railway operating revenues, and,
    Whereas the public interest requires that a general advance in all freight rates, passenger fares, and baggage charges on all traffic carried by all railroad and steamship lines taken under Federal control under an act of Congress approved August 29, 1916, entitled “An act making appropriations for the support of the Army for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes,” shall be made by initiating the necessary rates, fares, charges, classifications, regulations, and practices by filing the same with the Interstate Commerce Commission under authority of an act of Congress approved March 21, 1918, entitled “An act to provide for the operation of transportation systems while under Federal control, for the just compensation of their owners, and for other purposes.”
    Now, therefore, under and by virtue of the provisions of the said act of March 21, 1918, it is ordered that all existing freight rates, passenger fares, and baggage charges, including changes heretofore published but not yet effective, on all traffic carried by all said railroad and steamship lines under Federal control, whether the same be carried entirely by railroad, entirely by water, or partly by railroad and partly by water, except traffic carried entirely by water to and from foreign countries, be increased or modified, effective June 28, 1918, as to freight rates and effective June 10, 1918, as to passenger fares and baggage charges, to the extent and in the manner indicated and set forth in the “ Exhibit ” hereto attached and made part hereof, by filing schedules with the Interstate Commerce Commission effective on not less than one day’s notice.
    Given under my hand this the 25th day of May, 1918.
    W. G. McAdgo,
    ■ Director General of Railroads.
    
    III. It is agreed that the allegations in paragraphs I, II, III, V, X, and XIII of plaintiff’s petition filed herein shall be taken as true and that a true copy of the report of the board of referees appointed as alleged in paragraph X of said petition is attached as appendix thereto and same is made a part hereof by reference.
    IV. John P. Buchanan, a witness for petitioner, before board of referees, stated that at the beginning of Federal control he had general supervision of the management of the road and was substantially its managing director'. Upon receipt of General Order No. 1 he liad some doubt as to whether his road was intended to be taken under Federal control, and he then and there wired the director general and asked if the Marion and Bye Valley Bailway was under Federal control and if he should observe the order. He received a reply from the director general directing him to obey the order.
    Witness was not able to produce the director general’s telegram at the trial, stating that said telegram had been taken by him along with certain letters and telegrams from the director general and left with the Interstate Commerce Commission in the month of June, 1918. The circumstances under which said telegram was thus left in possession of the commission were that there was some uncertainty in June, 1918, as to whether the Marion & Bye Valley Bailway should put into effect the increase in passenger fares and freight rates authorized by General Order No. 28 of the director general. The witness, as general counsel for petitioner, conferred with the Corporation Commission of the State of Virginia, whereupon the State Corporation Commission of Virginia wrote witness that petitioner was under Federal control; thereupon witness took the matter up with the Interstate Commerce Commission and on that occasion brought the said telegram and other correspondence to Washington and left the same with the Interstate Commerce Commission. That as a predicate for offering oral proof witness testified that the files of the Commission had been searched for the message in question but without success. A search of the files of the Director General of Bailroads failed to disclose that such telegram had been received or answered by the director general.
    V. In connection with General Order No. 28, testimony was introduced before the board of referees showing that at the date of its issuance there was pending before the State Corporation Commission of Virginia an application for an increase in rates and the said commission refused to take action on the ground that it was without jurisdiction. The matter was then presented to the officers of the Bailroad Administration and the Interstate Commerce Commission ior instructions and acting under authority oí the Interstate Commerce Commission and the director general the increases named in General Order No. 28 were put into effect by plaintiff.
    Instructions were issued by H. C. Buchanan, vice president, and B. F. Buchanan, general counsel for. plaintiff, to the auditor of petitioner that increase of twenty-five per cent in all rates be put into effect as of Jtme 25, 1918. At the conclusion of conferences with officers of the Eailroad Administration and the Interstate Commerce Commission and as a result of such conferences, H. G. Buchanan, general counsel for plaintiff, telegraphed the auditor from Washington, D. C., as follows:
    “ Have seen commission. You have authority to enforce 25% rate increase as of twenty-fifth instant until Federal control relinquished.”
    VI. General Order No. 27, commonly known as the wage order, issued by the Director General of Eailroads May 25, 1918, pursuant to which wages of employees on railroads being operated by the Government under Federal control, were increased, was not made applicable to the railroad of plaintiff, and was not applied thereon. General Order No. 27 named the railroads to which it was applicable and did not name plaintiff.
    VII. On the third or fourth of July, 1918, plaintiff received from John Barton Payne, general counsel for the director general, the following notice, to wit:
    JuNE 24, 1918.
    Deae Sie: It is not clear whether the Marion & Eye Valley Eailway Company has at any time been under Federal control. To remove any possible question this order is issued definitely relinquishing same.
    Very truly yours,
    (Signed) JohN BabtoN PayNe.
    T. S. Amblee,
    
      Gen. Mgr., Marion & Bye Valley By. Oo.
    
    VIII. In due course the plaintiff presented a claim to the Interstate Commerce Commission under section 204 of the transportation act of 1920 and the bureau of accounts of the commission in connection therewith advised plaintiff as follows:
    “ The commission has held, for the purpose of computing the amount payable under section 204 of the transportation act of 1920, that the period during which the carrier operated its own railroad or system of transportation dates from the time its property was relinquished by the railroad administration in the manner provided in the Federal control act. As the property of your company was formally relinquished on June 24, 1918,'it is held to have been under Federal control for the period from January 1, 1918, to June 24, 1918.”
    Subsequent to this communication from the bureau of accounts the commission made an order which contained the following:
    “The Marion & Eye Valley Eailway Company, a corporation of the State of Virginia, hereinafter termed ‘the carrier,’ is a steam railroad company which during the full control period engaged as a common carrier in general transportation, operating a line of railroad between Marion and Sugar Grove, Virginia, a distance of seventeen and seven-tenths miles, which connected with the Norfolk & Western Eailway, a railroad under Federal control. It is therefore a carrier within the meaning of paragraph (a) of section 204 of the transportation act, 1920. The carrier was under Federal control from January 1, 1918, to June 30, 1918, inclusive, and is entitled to the benefits of section 204 for the period from July 1, 1918, to February 29, 1920, inclusive.”
    IX. The Marion & Eye Valley Eailway is standard gauge and interchanged traffic and equipment under the conditions usually pertaining between connecting railroads in the United States; it has always engaged in a considerable volume of competitive traffic. It connects at Marion with the Norfolk & Western Eailroad and at Sugar Grove with the Virginia Southern Eailroad, which latter road was and is operated by the same officials as operated the Marion & Eye Valley Eailway. The Marion & Eye Valley and the Virginia Southern connected at Sugar Grove and formed a continuous line to the terminus of the Virginia Southern. During a portion of the test period the Virginia Southern extended to Fairwood, three miles from Trout-dale. At Fairwood there was located a large lumber mill. In the year 1915 or 1916 this lumber mill ceased operating and was abandoned, and subsequently that portion of the track of the Virginia Southern extending from Troutdale to Fairwood was taken up. After said mill at Fairwood was abandoned no traffic of any consequence was received from Fairwood. While the Marion & Eye Valley Eailway connected with the Norfolk & Western Eailroad a large portion of its traffic came ’from the Virginia Southern, which traffic could be diverted to the Virginia Carolina Eailroad, about twenty-five miles distant across the country. The country is rough, but the bulk of the traffic comes from Grafton, Ash, and Allegheny Counties, equally accessible to the Virginia Southern and Virginia Carolina, and-plaintiff could not get traffic out of that section except on a competitive basis, because the Virginia Carolina rates are higher. Traffic off of the Virginia Southern moved over the plaintiff’s railroad. The Virginia Carolina Eailroad was under Federal control, being a part of the Norfolk & Western Eailroad system.
    X. Plaintiff did not keep separate books during the period of alleged Federal, control, but closed its books as of January 1, 1918, and continued to keep the accounts thereafter as directed by General Order No. 2, hereinbefore quoted.
    XI. In 1899 the Marion & Eye Valley Bcdlroad Company was sold under .foreclosure proceedings to the petitioner, the Marion & Eye Valley Railway Company, which was incorporated February 3, 1900, under the general laws of Virginia. About 1906 the United States Spruce Lumber Company acquired all of the capital stock of the plaintiff. About 1916 said capital stock was purchased by F. Sitter-ding, C. B. Buchanan, and J. B. Buchanan, who are the present owners. At the time of acquiring the ownership of the capital stock of plaintiff the United States Spruce Lumber Company owned and operated a large lumber mill just outside of Marion, situated on the line of the railroad, and also owned and operated the large lumber mill at Fair-wood, heretofore mentioned, at the then terminus of the Virginia Southern Eailroad. Said lumber mill at Marion ceased operating in 1916 or 1917, about one year subsequent to the abandonment of said lumber mill at Fairwood.
    XII. It is agreed that from December 28, 1917, to July 1, 1918, the plaintiff’s railroad had a net income of $1,-897.43, which sum it retained for its own use; that during the aforesaid period it did not turn over any of its earnings to the Director General of Railroads or the United States; that from December 28, 1917, to July 1, 1918, the railroad transported the same character of traffic as it had transported prior thereto; that it did not serve anj^ military camps and did not transport any troops or munitions of war during said period; that during said period there was no change in the manner- or method of conducting the operation of said railroad.
    During Federal control there was a diminution of car supply. It was not possible to get empty coal hoppers to ship products of the mines theretofore loaded in hoppers. Hoppers went in loaded with coal and were required to be shipped out empty. There was a general demand for such cars, and the conditions were no different than would have happened at other times of car shortage. Before Federal control the plaintiff was allowed to load out hoppers and was compelled to utilize box cars and flats for shippers of mineral and things of that kind.
    There were no towns along the line of the Marion & Rye Valley Railroad between Sugar Grove and Marion. There were two villages, at which points there were plants, one a tanning plant, the other a working establishment. The tanning plant was in operation during the period that the plaintiff claims it was under Federal control.
    The same officials operated the railroad from December 28, 1917, to July 1, 1918, as had operated it prior thereto; it never received any instructions from the Director General of Railroads applying to it individually. The company received no orders with reference to the expenditure of money for maintaining ‘its road and received no instructions as to how it should be operated or maintained, other than those heretofore mentioned.
    No specific instructions as to the road of the plaintiff were ever received by it from the Director General of Railroads. The plaintiff from December 28, 1918, to June 29, 1919, continued to operate its road exactly as it bad always operated it.
    XIII. Plaintiff’s average railway operating income for the three fiscal years ended June 80, 1917 (called test period) as certified to by the Interstate Commerce Commission was $23,252.00, one-half of which is $11,626.00. The actual net railway operating income earned by the.property from January 1, 1918, to July 1, 1918, was $1,897.43, which amount was $9,728.57 less than its average net income during the said test period. The character of traffic transported by plaintiff and the tonnage thereof for the following periods were as follows:
    Tonnage of products of forest:
    For six months of test period average was_ 51, 917 tons
    For first six months of 1918 was- 15,301 tons.
    (A decrease of 70.5 per cent.)
    For calendar year 1916 was_ 128, 889 tons.
    For calendar year 1917 was_ 73, 815 tons.
    For calendar year 1918 was_ 33,421 tons.
    For calendar year 1919 was_ 46, 914 tons.
    For calendar year 1920 was_ 10, 623 tons.
    Total tonnage of all revenue freight:
    For one-sixth of the test-period was_ 78,937 tons.
    For six months of 1918_ 48,479 tons.
    (A decrease of 38.58 per cent.)
    For calendar year 1917 was_ 170,772 tons.
    For calendar year 1918 was_ 90, 622 tons.
    For calendar year 1919 was_ 99,043 tons.
    For calendar yéar 1920 was_ 48, 829 tons.
    Tonnage of manufactures:
    For calendar year 1917 was_ 69, 937 tons.
    For calendar year 1918 was_ 32,397 tons.
    For calendar year 1919 was_'_ 29, 318 tons.
    For calendar year 1920 was_ 19, 892 tons.
    Plaintiff’s railway operating revenue for the following periods was as follows:
    Year ended June 30, 1915_$72, 570. 54
    Year ended June 30, 1916__ S3, 708. 08
    Year ended June 30, 1917_ 87,978. 59
    First six months 1918_ 29,328.48
    Calendar year 1918- 62,247.41
    Calendar year 1919_ _ 67,751. 56
    Calendar year 1920_-_ 63,344.16
    
      XIV. The plaintiff charged on its books for depreciation of equipment during the test period, the following amounts:
    For year ending- June 30, 1915_$7,097.40
    For year ending June 30, 1916_^_ 7, 097.40
    For year ending June 30, 1917_ 894.42
    A total for the three years of $15,089.22, or a yearly average of $5,029.74, or a six months’ average of $2,514.87.
    The board of referees adopted such six months’ average as basis for arriving at the item of $2,514.87, described as “ Depreciation ” in tabulated statement on Sheet 15 of its opinion, and constituting a portion of the amount allowed by the board of referees for failure to return the property of plaintiff in as good condition as on January 1, 1918. The said amount of $15,089.22 depreciation was charged on plaintiff’s bóoks in accordance with rules and regulations of the Interstate Commerce Commission in reference to accounting, which rules and regulations are made a part hereof, without copy attached. No evidence of actual depreciation was submitted to the board of referees and said board relied entirely upon the charges made by plaintiff in its books, as aforesaid.
    XV. Defendant concedes that plaintiff’s property in controversy was undermaintained during the period January 1 to July 1, 1918, as compared with like six months during the test period and that the amount of such undermainte-nance, aside from depreciation, is the amount found by the board of referees, to wit, $2,182.50.
    The court decided that plaintiff was not entitled to recover.
    
      
       Appealed.
    
   Hay, Judge,

delivered the opinion of the court:

This case is before us on a motion for a new trial made by the plaintiff. In that motion it is conceded that the' findings of fact heretofore found by the court are correct; but the plaintiff contends that the court erred in its conclusion of law. Upon the facts found the court is of the opinion that its conclusion of law is correct, and therefore adheres to its former opinion which was as follows:

This is a suit to recover the sum of $14,425.94, the amount of an award made by a board of referees duly appointed by the Interstate Commerce Commission under section 8 of the Federal control act, 40 Stat. 451, and the transportation act of 1920,41 Stat. 456, as the just compensation of the plaintiff for the alleged taking and use of its railroad property by the United States for the period beginning December 28, 1917, and ending June 29, 1918. The Director General of Railroads having refused to accept the report of the board of referees as a basis for settlement the plaintiff filed its petition in this court as provided by law.

The finding of the amount of the award for just compensation by the board of referees is prima facie in this court, but the prima facie effect of the award may be overcome if it appears that the board applied an erroneous measure of compensation, or if it appears from the facts found that there was no taking by the Government of the plaintiff’s property for public use.

The first question which is presented for our consideration is, Did the Government take possession of the railroad of the plaintiff and operate and control it for the public use %

It is not always necessary that in order to constitute a taking the property should be absolutely taken. If there is a serious interruption to the common and necessary use of property, such an interruption may .be equivalent to the taking of it. But there must be evidence to show that the use of the property was such that its common and necessary use was so seriously interrupted as to cause loss and damage to the owner thereof, and that the owner was deprived of its control and operation in such manner as to prevent him from deriving the benefits which would have accrued had the property not been taken. These principles are particularly apjfiicable in cases where the alleged taking is for the use of the property for a time, and not the taking of the title. There can be no taking of private property for public use unless there is possession and use thereof for public purposes, evidenced by some act which deprives the owner of the use, possession, control, and operation of his property. A mere declaration of an intention to take can -not constitute a taking. The proclamation of the President setting forth that on some future day he will take over the property of certain owners does not of itself constitute a taking of the property. There must be some definite act, some positive proceeding by which the property is actually taken and appropriated before the taking' can be consummated. It must be such a taking of the property as that the owner is deprived of, or circumscribed in some way, in the use and enjoyment of his property. If his possession is undisturbed and his property in its value and use is undiminished it can not be said that there is a taking within the meaning of the Constitution.

The plaintiff in this case in order to establish a taking relies upon the proclamation of the President and certain orders which the Director General of Railroads sent to it during the period when the plaintiff alleges that its property was under the control of the Government. The proclamation was issued by the President on December 26, 1917, and provided “ that the possession, control, operation, and utilization of such transportation systems * * * shall be exercised by and through William G. McAdoo, who is hereby appointed and designated Director General of Railroads,” and “that from and after 12 o’clock on said 28th day of December, 1917, all transportation systems included in this order and proclamation shall conclusively be deemed within the possession and control of said director without further act or notice.” The possession, control, operation, and utilization to be exercised by the Director General of Railroads in accordance with the proclamation meant that possession must be at least of such a character as to deprive the owner of its control and operation, and that the owner of the property could no longer use it for its own purposes.

The proclamation by itself did not constitute a taking. If no other .step had been taken, and no agent of the President had done anything to carry into effect the proclamation of the President, it would certainly not have Ijeen regarded as a taking of the property. The contention of the plaintiff that its property was taken by virtue alone of the proclamation of the President can not be sustained.

The plaintiff, however, relies further upon certain general orders sent out by William G. McAdoo as Director General of Railroads as evidencing the intention of the (Government to take its property and as showing that its property was actually taken. Some of these orders were sent to the plaintiff; many of them were not sent to the plaintiff.

Among those sent to the plaintiff was general order No. 1, dated December 29, 1917, which is addressed to “All concerned,” and declares that the Director General of Eail-roads “ has taken possession and assumed control of certain transportation systems described in the proclamation of the President.” The receipt of this order by the plaintiff did not constitute a taking of the plaintiff’s prbperty. It did not by its terms signify or state that the property of the plaintiff was being taken possession of. It contained nothing which ousted or tended to oust the property of the plaintiff from its control. There were no instructions in the order which caused the plaintiff to change the management and operation of its property. The plaintiff was not deprived of or circumscribed in any way in the use and enjoyment of its property.

The plaintiff also received general orders Nos. 2, 14, and 28, and two circulars, but none of these interfered in any way with the control and operation of its property by the plaintiff. During the whole period for which the plaintiff claims compensation for the taking and use of its property the plaintiff had absolute control of it. By the testimony of its own general manager it appears that the plaintiff continued to operate its road from December 26, 1917, to June 29,1918, exactly as it always had operated it. No possession of it was taken, no control over it was exercised, and no use of it was made by the Government at any time. Under this state of facts it is difficult to perceive how a taking of this property for public use can be deduced.

The plaintiff seems to rely upon the following letter, which it argues shows that the Government had to have possession in order to relinquish it. The letter is as follows :

Deae SiR:
It is not clear whether the Marion & Eye Valley Eailroad Company has at any time been under Federal control. To remove any possible question, this order is issued definitely relinquishing same.
Very truly yours,
JOHN BARTON PAYNE.
Mr. T. S. Ambler,
General Manager,
Marion db Rye Y alley Ry. Go.

The letter shows on its face that the general counsel of the railroad administration did not believe that the property of the plaintiff was under Federal control, and the letter had for its object the removal of any possible question about the matter.

After reviewing very carefully all the evidence upon which the plaintiff relies to establish a taking,of its property for public use the court is of opinion that no taking is shown which comes within the meaning of the Constitution and the law. It follows that the plaintiff can not recover.

It may not be amiss, however, to point out that even if the Government may be said to have had technical control of plaintiff’s property, yet that control was not of such a character as would entitle the plaintiff to compensation.

The plaintiff insists that both the President and the Congress provided for the compensation to which the railroads under Federal control would be entitled, the President in his Proclamation and the Congress by the act of February 28, 1920, 41 Stat. 456, and the act of March 21, 1918, 40 Stat. 451. Without going into the method of compensation set out in the statutes it is sufficient to say that the question of compensation is a judicial question, and just compensation must be determined by the evidence produced before the court. The court is not bound in its findings as to what is just compensation to adopt the method of ascertaining it which may be suggested by .the statute. The just compensation to be awarded is to be measured by the loss caused to the property by the taking. The plaintiff in this case is entitled to receive the value of what it has been deprived, and no more. “ To award it less would be unjust to it, to award it more would be unjust to the public.” Bauman v. Ross, 161 U. S. 548, 574. The question is what has the plaintiff lost? If it has lost nothing it would be gross injustice to require the United States to pay something for nothing. What has the plaintiff lost by the supposed taking? There is no proof that it has lost anything thereby. Its property has never been out of its own control. It operated it without let or hindrance by the Government during the entire period for which it is claiming that the Government had possession of it. If any loss was incurred during that time it was the result of the plaintiff’s own operation and control of its own property.

All the provisions of the statutes which look to compensation of owners of railroad properties could only apply to properties which were taken possession of by the Government and actually operated and controlled by it. Surely Congress never intended that the United States should pay for the losses or depreciation of properties which the Government did not operate, did not control, did not use, and •did not take possession of. For instance, provision is made in the statute for “adequate provision for maintenance of the property.” Surely this can only mean adequate provision for maintenance of property in the control of and use by the United States. If the plaintiff did not adequately maintain its property while it was in its own possession and being used by it to the exclusion of the United States and •everybody else, is it possible that the United States must pay the plaintiff for the maintenance of its property?

Other reasons are advanced by the plaintiff, and supported by the findings of the board of referees, as to why compensation should be awarded the plaintiff in this case. It is not deemed necessary to recite these reasons which are not sufficient to combat the plain and uncontradicted evidence that the alleged taking of the plaintiff’s property did not ■disturb it in the use and control of its property, nor did it restrict the right of the plaintiff to dispose of it, nor did it cause the plaintiff any pecuniary loss. So if the technical control of the plaintiff’s property by the United States caused it to lose nothing, no award of compensation can in justice be made. We think that the property of the plaintiff was not táken by the Government. If there was technical control of the property by the Government it was of such a character that it did not cause any loss to the plaintiff, and does not justify the award of any compensation.

The plaintiff, however, contends now, for the first time, that if it is not entitled to recover under the act of March 21, 1918, 40 Stat. 454, it is so entitled under section 204.of .the act of February 28, 1920, 41 Stat. 460.

Section 204 (c) provides as follows:

“As soon as practicable after March 1, 1920, the commission shall ascertain for every carrier, for every month of the period of Federal control during which its railroad or system of transportation was not under Federal operation, its deficit in railway operating income, if any, and its railway operating income, if any (hereinafter called ‘Federal control return ’), and the average of its deficit in railway operating income, if any, and of its railway operating income, if any, for the three corresponding months of the test period taken together (hereinafter called ‘test period return ’) : Provided, That ‘ test period return ’ in the case of a carrier which operated its railroad or system of transportation for at least one year during, but not for the whole of, the test period, means its railway operating income, or the deficit therein, for the corresponding month during the test period, or the average thereof for the corresponding months during the test period taken together, during which the carrier operated its railroad or» system of transportation.”

Section 204 (d) provides as follows:

“For every month of the period of Federal control during which the railroad or system of transportation of the carrier was not under Federal operation, the commission shall then ascertain (1) the difference between its Federal control return, if deficit, and its test period return, if a smaller deficit, or (2) the difference between its test period return, if any income, and its Federal control return, if a smaller income, or (3) the sum of its Federal control return, if a deficit, plus its test period return, if an income. The sum of such amounts shall be credited to the carrier.”

It will be observed that what the statute provides for is a deficit to be paid to railroads not under Federal operation, which deficit is to be ascertained in the manner provided for in that act.

In this case there is no proof that the plaintiff had a deficit. The case of the plaintiff is based upon the Federal control act, and the compensation which it is suing for is the compensation which that act provides for. It has no relation to the guaranty which is alleged to have been made by Congress in the transportation act of 1920, and no proof was offered by the .plaintiff and no steps have been taken by it to bring itself under the provisions of the latter act. That being so this court can not undertake to pass upon the question whether the plaintiff is or is not entitled to recover under the provisions of the transportation act of 1920.

The motion of the plaintiff for a new trial must be denied, and its petition must be dismissed. It is so ordered.

Graham, Judge; DowNey, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  