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AMENDMENT V. RIGHTS OF PERSONS

Private Property

NOTES OF DECISIONS

In general.-Protection of constitutional | Government, there may be claimed and alprovision prohibiting taking of private lowed, in the form of interest, such addition property for public use by United States to the value of the property at the time of without just compensation cannot be de- the taking as will produce the full equivanied (Const. Amend. 5). U. S. v. Wheeler lent of that value paid contemporaneously TP (C. C. A. 1933), 66 F. (2d) 977, 978. with the taking. Jacobs et al. v. U. S. (1933), 290 U. S. 13.

The obligation of the United States to pay just compensation for private property taken under its power of eminent domain rests upon the Fifth Amendment, independent of statute or express promise. Jacobs et al. v. U. S. (1933), 290 U. S. 13, reversing (C. C. A. 1933) 63 F. (2d) 326.

A promise to pay is implied because the duty is imposed by the Amendment. Id.

Constitutional requirement of just compensation for property taken for public use was not suspended by war. U. S. v. McIntosh (D. C. 1932), 2 F. Supp. 245.

Company in building railroad along bank of navigable river had right to rely upon continued maintenance of natural level, width, and flow thereof, and right to increase artificially such level, width, and flow to railroad's injury beyond that provided by nature could be obtained by United States only by exercise of right of eminent domain, and payment of just compensation (33 U. S. C. A. 591, Act Jan. 21, 1927, 44 Stat. 1010; Const. Amend. 5). United States v. Chicago, B. & Q. R. Co. (C. C. A. 1936) 82 F. (2d) 131.

Amount and elements of compensation.Under Constitution requiring "just compensation" only damages to residue of tract are allowable besides value of parcel taken by Government. U. S. v. Crary et al. (D. C. 1932), 2 F. Supp. 870.

If fixtures can be removed without substantial injury either to realty or to fixtures, they remain personalty, and need not be taken as part of realty as respects liability therefor in Federal condemnation proceed. ings. Futrovsky et al. v. U. S. (App. D. C. 1933), 66 F. (2d) 215.

In absence of legislation by Congress, costs and attorneys' fees incurred by landowner in condemnation proceeding brought by Government held not allowable against Government as part of "just compensation" for property taken. U. S. v. Certain Lands in Washington and Dakota Counties et al. (D. C. 1932), 2 F. Supp. 324.

Just compensation for property taken for war purposes included interest for period between time of taking and full payment. Act of July 1, 1918 (40 Stat. 704, 724), U. S. v. McIntosh et al. (D. C. 1932), 2 F. Supp. 244.

In a suit under the Tucker Act to recover just compensation for property taken by the

Plaintiffs allowed just compensation for the exclusive use and occupation of their land as a camp site and artillery range, taken over by the Government under its military powers in time of war. Interest allowed as part of just compensation from the date of relinquishment of the property by the Government to the date of payment. Included also in just compensation is the cost of locating, excavating, and removing or exploding unexploded shells left buried in the ground. West v. U. S. (1931), 73 Ct. Cls. 201.

Where the use of plaintiff's property was taken by the Government and thereafter the fee, the plaintiff is entitled to just compensation for the use in addition to that for taking of the fee, and the just compensation to be awarded includes interest at a proper rate from the termination of the use (acquirement of the title) to the date paid. Hamburg-American Co. v. U. S. (1932), 74 Ct. Cls. 360.

The fact that the statute under which the taking was accomplished made no provision for just compensation does not affect plaintiff's right thereto, which arises under the guaranty of the Fifth Amendment, out of an implied contract to pay just compensation.

Id.

In condemnation proceeding, compensation is allowable for proximate damages to remaining parts of parcel of land when some part thereof has been actually taken (Const. Amend. 5). United States v. Chicago, B. and O. R. Co. (C. C. A. 1936), 82 F. (2d) 131.

Consequential damage. The owners of the "Tarbert" and "Receiver" sand and gravel bars in the bed of the Mississippi River are not entitled to compensation for the sand and gravel taken by the United States from these bars and used for the improvement of the navigation of the river by revetting its banks, so as to confine the waters of the river to its natural channel. (1916) 31 Op. Atty. Gen. 67.

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titled to recover as for a taking thereof by the Government because of the Government's authorization and construction of a dam in the stream in aid of navigation having resulted in the impounding of a surplus of water in the river and pool over such lands, which surplus was licensed by the Government for use by private parties. Anselan Buchanan et al. v. U. S. (1934), 78 Ct. Cls. 791.

In action against the United States for damages caused to land by overflow of river because of construction of dam, damages in tort could not be allowed (Jud. Code, sec. 24 (20), U. S. C. A. 28:41 (20); Const. Amend. 5.). Christman v. United States (C. C. A. 1934), 74 F. (2d) 112.

United States held not liable for consequential damages to land from overflow of river because of construction of dam, where damages resulted also from self-efficient cause, by freshets running down creek (Jud. Code, sec. 24 (20), U. S. C. A. 28: 41 (20); Const. Amend. 5). Id.

"Indirect" or "consequential damages" are those which do not arise as an immediate or natural and probable result of the act of the party, but as an incidental consequence. Damages are either "direct" or "consequential." The former are such as result from an act without the intervention of any intermediate controlling or self-efficient cause, and the latter are such as are not produced without the concurrence of some other event attributable to the same origin or cause. Id.

Ordinarily, "consequential damages" are those which do not arise as immediate, natural, and probable result of act done, but arise from interposition of additional cause, without which act done would have produced no harmful result, while "proximate damages" are those which accrue directly and in natural sequence, and as specific result from act done, without intervention of independent cause. United States v. Chicago, B. & Q. R. Co. (C. C. A. 1936), 82 F. (2d) 131.

Direct damage.-Where, in the making of public improvements, the Government closes a roadway over which the owner of adjacent lands had an established and recognized easement or right-of-way between his lands and the public highway, there is an implied contract or agreement on the part of the Government to pay the owner just compensation for the loss and damage sustained by him, including interest as a part thereof. Federal Real Estate Co., etc. v. U. S. (1934), 79 Ct. Cls. 667.

The overflowing of adjacent lands and private roadways thereon resulting from the construction by the Government of a dam in a navigable river in aid of navigation constitutes a taking of such property by the Government, and the owners are entitled to recover just compensation therefor, including as a part of such compensation interest on the value of the property from the time of the taking until payment is made. Johnson v. U. S. (1934), 80 Ct. Cls. 367.

Time of payment.-Fifth Amendment does not require that taking private property for public use by United States must be accompanied or preceded by payment. Lee et al. v. U. S. (App. D. C. 1932), 58 F. (2d) 879. Validity of statutes.-Statute authorizing advance taking of private property for public use in District of Columbia, and providing for judgment against United States, with interest, held not violative of Fifth Amendment. Lee et al. v. U. S. (App. D. C. 1932), 58 F. (2d) 879.

Owner accepting compensation for property taken in condemnation cannot thereafter question validity of act under which property was taken or regularity of procedure. U. S. v. McIntosh et al. (D. C. 1932), 2 F. Supp. 244.

Statute authorizing President to take land for Marine Corps post held constitutional as providing ultimately for judicial ascertainment of just compensation. (Act of July 1, 1918, 40 Stat. 704, 724.) Id.

AMENDMENT XIV NOTES OF DECISIONS

Abridgement of privileges and immunities.— The "privileges and immunities" protected by the Fourteenth Amendment are those that belong to the citizens of the United States as distinguished from citizens of the States-those that arise from the Constitution and laws of the United States as contrasted with those that spring from other

sources.

If the refusal by a State to allow its citizen to exercise the privilege of attending the State's university, except upon condition that he take military training, to which he objects on religious and conscientious

grounds, is not repugnant to the due process clause of the Fourteenth Amendment as an undue deprivation of liberty, it does not violate the privileges and immunities clause.

The liberty guaranteed by the Fourteenth Amendment does not confer upon a conscientious and religious objector to war and military training the right to attend a State university without taking a course in military training required by the State as part of the curriculum. Hamilton v. Regents (1934), 293 U. S. 245, affirming (Calif. 1934) 28 P. (2d) 355.

SUPPLEMENT V

TO THE

MILITARY LAWS

OF THE

UNITED STATES

EDITION OF 1929

CONTAINING LEGISLATION OF THE
71ST CONGRESS, 72D CONGRESS
73D CONGRESS, AND 74TH
CONGRESS

[CUMULATIVE]

This supplement supersedes Supplement IV, September 1, 1934

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AMENDMENT XXI

SECTION 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

SEC. 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

SEC. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

This amendment was certified by the Secretary of State as valid to all intents and purposes as a part of the Constitution on December 5, 1933.

Provision for enforcement of section 2, supra, is made by act of June 25, 1936 (49 Stat. 1928).

UNITED STATES OF AMERICA

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28. Pay and allowances, National Guard, Organized Reserves, and civilians

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30. Public buildings and public grounds in the District of Columbia_

329

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