United States v. John II Estate, Ltd.

MATHEWS, Circuit Judge.

This is a condemnation proceeding under the Act of April 14, 1930, c. 149, 46 Stat. 165, and, except as hereafter indicated, is similar in all respects to United States v. Shingle (C.C.A.) 91 F.(2d) 85, this day decided.

The rights here sought to be condemned are the privately owned rights of fishery within designated areas in Pearl Harbor, Island of Oahu, Territory of Hawaii, these being part of the larger area specified in the act. Answers were filed by all the appellees. The answers raised no issue save as to the amount of compensation to be paid and the distribution thereof. At the trial below, the John Ii Estate was permitted, over appellant’s objection, to file an amended answer in which it set up a claim for damages similar to that set up in the amended answer of the Oahu Railway & Land Company in the Shingle Case. The trial court’s judgment condemns for public use all privately owned rights of fishery within the above-mentioned areas, adjudges the value of said rights to be the sum of $90,000, awards said sum of $90,-000 to the John Ii Estate and James Panai Oneha, trustee, and directs that distribution thereof be made by paying $89,999 to said estate and $1 to said trustee. The judgment also awards $34,752 to the John Ii Estate as damages found to have been sustained by it prior to the commencement of this proceeding. The government appeals.

There are in this case 33 assignments of error. Eleven of the assigned errors (assignments 6, 8, 10, 11, 14, 18, 19, 22, 23, 24 and 27) are not specified in appellant’s brief, as required by our rule 24, and are therefore disregarded.

Assignments 1, 2, 3, 4, 5, 7, 9, 13, and 32 in this case are similar to assignments 1, 2, 3, 4, 6, 8, 9, 14, 15, 16, 17, 18, and 19 in the 'Shingle Case in that they are based, not on the record, but on the trial court’s opinion, which is no part of the record. In this case, as in the Shingle Case, the trial court made no finding of facts other than the general finding embodied in its judgment. No special finding was requested, and none was made. For the reasons stated by us in the Shingle Case, the questions which these assignments attempt to raise cannot be considered.

Assignment 12 is that “The court erred in not sustaining [appellant’s] motion to require the [John Ii Estate] to elect to take compensation for only one species or variety of fish, or, in the alternative, one-third of the entire fishery.” Appellant’s motion, as actually made, was “that the [John Ii Estate] be compelled to elect as to which species or variety of fish [it] chose to take, or, in the alternative, one-third of the entire catch.” Assuming, without deciding, that the estate had any such right of election, appellant was not entitled to demand, nor was the trial court empowered to require, the exercise of that right in this proceeding. That right, if it existed, was one of the “privately owned rights of fishery,” the condemnation of which was sought in this proceeding. The purpose of the proceeding was to condemn, rights, not to compel their exercise. Appellant’s motion was properly denied.

Assignments 15 and 16 in this case are similar to assignments 20 and 25 in the Shingle Case, in that they complain of the action of the trial court in permitting the John Ii Estate to amend its answer by setting up a claim for damages said to have been sustained by it prior to the commencement of this proceeding. Assignments 20, 21, and 25 in this case are to the admission of evidence in support of said claim for damages. For the reasons stated by us in the Shingle Case, the action of the trial court in permitting this amendment and in admitting this evidence was erroneous.

Assignment 17 in this case is similar to assignment 22 in the Shingle Case and, for the reasons there stated, is without -merit.

Assignments 26 and 28 in this case are to the admission of evidence (Exhibits 7 to 25 inclusive) offered by appellees and objected to by appellant. These assignments do not quote the full substance of this evidence, as required by our rule 11, and, for that reason, are disregarded.

Assignment 29 státes that the trial court erred in overruling appellant’s objection to testimony which, it was stipulated in this case, a witness had given in the Shingle Case regarding the rental value of a certain fishery, the stipulation being subject to appellant’s objection that the testimony was incompetent, irrelevant, and immaterial. It appears from the record, and indeed from the assignment itself, that the court did not, in fact, overrule appellant’s objection, but stated that “the stipulated evidence will be received in this case subject to these objections. I’m not sure what consideration, if any, will be accorded it, but it will be in the record for analysis and check.” The record does not show what consideration, if any, the trial court gave this evidence. Thus, it is seen, the ruling complained of was not actually made, and the ruling actually made is not shown to have prejudiced appellant.

Assignments 30 and 33 in this case are similar to assignments 36 and 37 in the Shingle Case and, for the reasons there stated, are not valid assignments.

Assignment 31 is that the trial court erred “in finding that the fair market value of the sea fisheries herein condemned is $90,000.” The assignment does not indicate why or in what respect the finding is erroneous. It does not attempt to raise the question of the sufficiency of the evidence to support the finding. Such an attempt, if made, would be futile, (1) because no such question was raised in the trial court, and (2) because the record does not contain or purport to contain all the evidence.

In so far as it awards damages in the sum of $34,752 to the John Ii Estate, the judgment is reversed. In all other respects, it is affirmed.