M. H. Sherman Company, a Corporation v. United States

HEALY, Circuit Judge.

Appellant was and is the owner of a tract of land in Arizona, a portion of which it leased to the respondent in May of 1943. The lease remained in effect until October of 1952. The instrument ag originally proposed by the government was on a form provided by it, which form as printed contained a provision f0 the effect that the lessee “if required by the lessor, shall * * * restore the premises to the same conditions as that existing at the time of entering on the game. * * * ” in the lease as signed, however, this provision was deleted by tbe parties and a provision designated «par. 12>” reading as follows, was inserted •

„A survey and inSpection 0f the conditiong of the within„de. scribed premises has been made and reveals the property to be unimproved desert land, on which there are no physical improvements, and the lessor agrees to the foregoing statement and hereby relieves the Government of any and all restoration responsibility resulting from the use of the subject lands by the Armed Forces.”

During itg possession the government uged ^ ¡and ag a miljtary ^ con. gtructing thereon buMings and other structureg having eoncrete foundations. Qn ^ expiration of the leage it re_ moved ^ buildingg but did not remove or disturb the foundations. It is agreed ^ lhe cogt of removal of the latter would amount to gome ?17 500¹ This suit is for the recovery of damages for failure to remove the obstructions.

The suit as originally filed failed to allege a ground of federal jurisdiction, and the trial court dismissed the complaint with leave to amend. As amended some three years after the termination of the lease it imported nothing new except as regards an allegation that the respondent “wrongfully and tortiously” refused to remove the foundations.

The trial court on hearing the matter made findings on the basis of which it concluded that the contract \ of lease specifically relieved the_ government of any duty to remove buildings or other structures from the premises, and that the plaintiff take nothing by its amended complaint. Judgment was accordingly entered for the government.

The court’s disposition of the case was clearly correct, and its judgment is affirmed.

1 . Counsel for appellant informed us on oral argument that since the lease was granted the land has become very »al-uable.