period while negotiations were in progress, Spreckels v. United States, supra, or for any failure to remove its property after the premises were vacated, Colton v. United States, 1930, 71 Ct.Cl. 138, or for any failure to give formal notice when the parties knew what was required and acted on that basis, Smith v. United States, 1942, 96 Ct.Cl. 326. The owners did, however, have a right to be fairly informed of what election the Government had made so that they might know what materials and work force were necessary. So long as the Government had not resolved, and revealed to the owners, what restoration it would make, the owners could not reasonably know what was expected of them
The Government maintains there is no liability for rental beyond October 31, 1954, because it acted at all times as would a reasonable man in attempting to prevent costs to the Government beyond that absolutely necessary by terminating the estate forthwith in accordance with the request of the Administrator of the General Services Administration, dated August 28, 1954, that the pending proceedings be terminated 'at the earliest possible date subsequent to September 1.' This phrase may not be interpreted as necessarily meaning immediately, but must be construed as requesting termination as soon as possible according to the best interests of the Government. The order would necessarily involve considerations of removal of Government property from the premises, the extent to which restoration should be made by the Government, possibilities of compromise, and similar factors. Until responsible Government agencies had decided upon a course of action in the light of these considerations, the earliest possible date cannot be said to have been determined. This is therefore not a case sounding in tort for any alleged negligence, mistake, inadvertence, or unauthorized action of a Government representative, cf. Johnson v. United States, 1866, 2 Ct.Cl. 391.
The Government argues that its notice of August 31, 1954, was a sixty days' notice of termination of its estate, so that the owners were obligated to take possession sixty days thereafter, that is October 31, 1954; that the second notice filed October 30, 1954, confirmed the first notice. The notice of August 31, however, was a notice that the estate was terminated effective September 1, 1954. It sought to terminate the estate on the day after the notice was filed and the day before the estate could terminate under the terms of the taking. Under the complaint, the Government was required to give the sixty days' notice before termination of the estate; under a fair reading of the proviso, the sixty days could not possibly begin running after the estate was terminated. There was furthermore in effect a withdrawal of the notice in that the owners were advised by Government counsel on September 2, 1954, that the Government was in fact not prepared to surrender possession before removing certain equipment from the premises. The Government argues this affected the provisions as to possession, but not as to termination. Both provisions are, however, in the same language and indicate an intention that termination and transfer of possession were to take place the same day.
The notice of October 30, 1954, was another attempt to terminate the estate immediately, and was to be effective on October 29, the day before the notice was filed. Since the complaint provided for termination by notice filed in the proceeding, the date of filing, that is October 30, 1954, and not October 29 would be controlling. The notice filed October 30, 1954, could not have been intended to be based upon the notice of August 31 as a termination upon a sixty days' notice, because the notice of August 31 was not referred to and both notices are couched in the same language based upon the complaint in the case. If the notice of August 31 had been a sixty days' notice, the period of sixty days had not expired on October 29. The Government states it was so dated because October 30 and 31 were a Saturday and Sunday, respectively, when its offices were closed, but this does not explain why the notice could not be stated as effective on October 31 or why the fact was not stated in the notice as to avoid natural confusion on the face of the notice. There was also confusion as to the extent of the proposed restoration of the premises and as to tender of keys. Having led the owners to believe, by the Stipulation entered on June 25, 1951, that complete restoration would be made before surrender of possession, the Government indicated for the first time uncertainty as to the extent of its proposed restoration. Government counsel indicated to the owners' counsel he would take the matter up with his superiors. While there was evidence no restoration was made after October 26, this fact was not communicated to the owners. There was a statement in the notice of October 30th that the keys were thereby tendered, but no keys were attached to the notice, served upon the owners or their representative, or even offered by telephone by Government counsel at any time when they were in his possession. The Court finds that as to both the notice of August 31 and that of October 30, there was such uncertainty on the part of the Government representatives as to their plans, with regard to surrendering the premises, it would be unjust to hold either of such notices was effective. Under the circumstances, the Court finds such notices were without legal effect.
With its motion of December 10, 1954, requesting that the Court order the custody of the property be turned over to the owners, there did come a time when the Government filed in this proceeding a clear and unequivocal notice of intention to terminate the estate and surrender possession. The Court is of opinion it was a necessary inference from the filing of the motion that the Government had done all the restoration it intended to do. No conversations between representatives of the parties indicated anything to the contrary. While it was not stated the motion was a sixty days' notice, the Court is of opinion the owners had placed upon them an affirmative duty to prepare to take the property over within sixty days. The action of another judge of the Court overruling the motion as raising questions of fact to be determined by the jury did not affect the certainty of the Government's intention to surrender possession.
The owners insist they were at all times willing to accept surrender of the estate upon conditions that their right to rental during Government possession be preserved and a jury view the premises before restoration. The right of the owners to rental for the period the Government was in possession could have been preserved by answer filed to the motion. Indeed such right existed as a matter of law. Their right to reasonable rental for the period of restoration, and to an award for costs in completing restoration, has never been questioned. There was opportunity to apply formally to the Court for the selection of a condemnation jury as to have permitted a jury view before the sixty days following the Government's motion of December 10, 1954, had expired; there also was opportunity to demand surrender of the keys if required. Once a definite intention to surrender was made clear to the owners, negotiations to settle would not suspend the effective date of the surrender. The Court feels constrained to conclude the Government terminated its estate and its liability for rental expired sixty days after December 10, 1955.
When these hearings began, the Government made objection to the introduction of any testimony upon the ground that the matter for decision by the Court was one of law upon the record. Testimony was permitted by the Court, subject to reconsideration. The Court has disregarded all testimony, some of which related to inadmissible evidence as to discussions of settlement, except testimony as to facts discussed in this opinion.
On the basis of the record and the limited evidence considered, the Curt finds the Government's estate ran until sixty days after the motion of December 10, 1954, was filed, for an order directing custody of the property be turned over to the owner. Rent will be awarded to the owners, upon the rate entered by stipulation, to that date. Counsel will prepare appropriate findings of fact and conclusions of law in conformity with this opinion.
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