Gallagher

This is an appeal from a judgment awarding damages to appellees in a judge-tried proceeding under the Tucker Act, 28 U.S.C.A. § 41 (20), upon a contract implied in fact for the carriage of sand and gravel by the appellant over a road owned by the appellees. The amount of gravel and sand carried is agreed to be 66,643 yards. It was carried between October 1, 1942, and August 19, 1944.

Appellant contends‘that in a prior judgment in a condemnation suit for a part of the road, it acquired the title to the entire road by virtue of a decree of condemnation in a suit between it and appellees, *842 rendered on the 14th day of May, 1945, over six months after the last services of the road. The appellant claims it was vested with title to the entire road on October 5, 1942. We do not agree. The condemnation complaint sought only a portion of the road and it was not until the date of trial, on November 24, 1944, over a month after the services were rendered, that the parties stipulated that the value of the entire road should be determined. Title to the portion not covered by the condemnation complaint, if acquired at all, could not have been acquired by appellant till after the date of the…