Arnold A. Smith and Rachael Smith, His Wife, and Herbert Smith and Evelyn Smith, His Wife v. United States

362 F.2d 366 Arnold A. SMITH and Rachael Smith, his wife, and Herbert Smith and Evelyn Smith, his wife, Appellants, v. UNITED STATES of America, Appellee. No. 20359. United States Court of Appeals Ninth Circuit. June 6, 1966. Jarril F. Kaplan, Curtis A. Jennings, Moore, Romley, Kaplan, Robbins & Green, Phoenix, Ariz., for appellants. Richard M. Roberts, Acting Asst. Atty. Gen., Lee A. Jackson, Joseph Kovner, Lawrence B. Silver, Gilbert E. Andrews, Attys., Dept. of Justice, Washington, D. C., Wm. P. Copple, U. S. Atty., Richard C. Gormley, Asst. U. S. Atty., Phoenix, Ariz., for appellee. Before POPE, HAMLEY and KOELSCH, Circuit Judges. PER CURIAM: 1 Proceeding under the Tucker Act, 28 U.S.C. § 1346 (a) (2), Arnold A. Smith and Herbert Smith, and their wives, brought this action against the United States to recover $7,470 for the taking, use and occupancy of plaintiffs' warehouse and office buildings in Phoenix, Arizona. 2 We summarize the pertinent allegations of the amended complaint: Until May 8, 1964, and prior thereto, plaintiffs had leased the premises to Lichty Printing and Business Forms, Inc., for a rental of $1,350 a month or $45 a day. By that date the lessee had…

(concurring):

I agree with the disposition made by the foregoing Per Curiam opinion and I agree with what is said therein.

I write this opinion for the purpose of noting certain additional matters which the court below should take into consideration upon the remand and after a full development of the facts.

It may well appear, and I think will probably appear, that the officers of the United States had full and complete notice of the financial situation of the former tenant and that it had in effect thrown up its hands so far as further operations were concerned. If this develops then the situation should be the same as that discussed in Carroll v. United States, D.C.Ark., 229 F.Supp. 891 , where it was held that under similar circumstances the United States was liable to pay a reasonable compensation for the use of the premises occupied by it notwithstanding that the owners did not give notice of default as required by the lease. Not only that, but I think the court is obliged to take into consideration the probable fact that the United States by seizing the property actually took from the appellant a right which must be treated as a property right, one actually vested in him.…

Proceeding under the Tucker Act, 28 U.S.C. § 1346 (a) (2), Arnold A. Smith and Herbert Smith, and their wives, brought this action against the United States to recover $7,470 for the taking, use and occupancy of plaintiffs’ warehouse and office buildings in Phoenix, Arizona.

We summarize the pertinent allegations of the amended complaint: Until May 8, 1964, and prior thereto, plaintiffs had leased the premises to Lichty Printing and Business Forms, Inc., for a rental of $1,350 a month or $45 a day. By that date the lessee had been in default for a number of months in the monthly payments called for by the lease, and considerable back rent was due and owing. On May 8, 1964, the United States, through its agents and employees of the Internal Revenue Service, took possession of and occupied the premises, by padlocking the premises and levying upon and seizing the property of the lessee located on the premises, for taxes.

On the same date, plaintiffs, demanded possession of the premises from the United States. Plaintiffs advised the United States that plaintiffs were the owners and would look to the United States for payment of the rent in the sum of $45 per day so long as the…