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

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 •

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 ?17 500 1 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 com *882 plaint with leave to amend. As…

(concurring)

_ in addition to paragraph 12 of the lease, quoted in the opinion of the court, the lease contained a paragraph 8 which reads as

The nub of appellant’s contention is that, under paragraph 8, the Government was authorized to remove all of a particular fixture, addition, or structure, including the concrete foundations thereof, but that it could not remove a part of any such fixture, addition, or structure, leaving portions which were unusable and expensive to remove. Appellant poses the question: “If the Ap-pellee had removed the roof from each of the buildings, wouldn’t the Court be justified in saying that it must pay for the removal of the remaining part?” Acknowledging that there was no express covenant to complete the removal of any structures, • appellant argues that such a covenant is to be implied,

The leage in question gave the Gov_ ernment the right to remove improvements at the expiration of the lease, but not the duty to do g0_ There ig no express covenant requiring the Government to restore the premises to the same condition as that existing at the beginning of the term. Under these circumstances, there is no implied covenant of the kind suggested by…

258 F.2d 881 M. H. SHERMAN COMPANY, a corporation, Appellant, v. UNITED STATES of America, Appellee. No. 15892. United States Court of Appeals Ninth Circuit. Aug. 25, 1958. Gust, Rosenfeld, Divelbess & Robinette, Frank E. Flynn, Phoenix, Ariz., for appellant. Jack D. H. Hays, U.S. Atty., William A. Holohan, Asst. U.S. Atty., Phoenix, Ariz., for appellee. Before HEALY, HAMLEY, and HAMLIN, Circuit Judges. HEALY, Circuit Judge. 1 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 as originally proposed by the government was on a form provided by it, which form as printed contained a provision to 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 same. * * *' In the lease as signed, however, this provision was deleted by the parties and a provision designated 'par. 12,' reading as follows, was inserted: 2 'A joint survey and inspection of the conditions of the within-described premises has been made and reveals the property to be…