Erwin P. Werner v. United States

Plaintiff-appellant’s predecessors in the title on February 1, 1943, leased 40 acres adjacent to March Field, Riverside County, California to the government for military purposes. The agreed rental was $25 (sixty-two and one-half cents per acre) per year. The initial term of the lease was for the five month period ending June 30, 1943. However, the lease contained the following clause:

After the execution of the lease a modification was made with respect to “notice of renewal.” (The modification is not material here.) At the time the complaint was filed herein on August 28, 1951, the government had remained constantly in possession since 1943, paying or tendering payment each year of the sum of $25.

By November, 1949, Werner had become dissatisfied and began his first attempt to “break out” of the lease. That was a suit to reform the lease to provide that it should terminate “six months from the date of cessation of the hostilities of the Axis Nations then at war or the surrender of the Axis Nations” rather than at the termination of the national emergency. A plea of the statute of limitations was dispositive of the case without the consideration of substantive questions, Werner…

(concurring).

I concur, but because I think the issue of the rule against perpetuities was fortuitously and inadvisedly brought into the case, I express no opinion on that subject.

Circuit Judge, concurring in result.

Whatever the rights of plaintiff, he did not take prompt and effective measures to bring an end to the term of the United States created by the execution of the original lease. The two previous cases in this Court make this clear. Upon the last remand, there was a direction to try a single question of fact. But that was not tried.

. In view of the fact that none of the questions considered was properly before the trial court or, in my opinion, before us, .1 am constrained to concur in the result only.

233 F.2d 52 Erwin P. WERNER, Appellant, v. UNITED STATES of America, Appellee. No. 14410. United States Court of Appeals Ninth Circuit. March 31, 1956. Morris Lavine, Los Angeles, Cal., for appellant. Perry W. Morton, Asst. Atty. Gen., Harold S. Harrison, John F. Cotter, Fred W. Smith, Attys., Dept. of Justice, Washington, D.C., Laughlin E. Waters, U.S. Atty., Joseph F. McPherson, Asst. U.S. Atty., Los Angeles, Cal., for appellee. Before STEPHENS, FEE and CHAMBERS, Circuit Judges. CHAMBERS, Circuit Judge. 1 Plaintiff-appellant's predecessors in the title on February 1, 1943, leased 40 acres adjacent to March Field, Riverside County, California to the government for military purposes. The agreed rental was $25 (sixty-two and one-half cents per acre) per year. The initial term of the lease was for the five month period ending June 30, 1943. However, the lease contained the following clause: 2 'This lease may, at the option of the Government, be renewed from year to year at a rental of $25.00 per year, and otherwise upon the terms and conditions herein specified, provided notice be given in writing to the Lessor at least 30 days before this lease or any renewal thereof would…