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56.

Memorandum in Support of Motion for Summary Judgment

(Caption as in Complaint)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

The option agreement which is attached to the Motion of the United States for Summary Judgment is self-explanatory. It will be noted that it provides that the vendors agreed to sell the property involved and to execute a deed thereto to the United States, and that the Government accepted the option in due time. It will be further noted that the vendors agreed that the United States may, notwithstanding the prior acceptance of this offer, acquire title to said land by condemnation or other judicial proceedings, in which event the vendor agrees to cooperate with the United States in the prosecution of subject proceedings, and agrees that the considerations as stated therein shall be the full amount of the award of just compensation, exclusive of interest, for the taking of said land.

The authority for the motion is Rule 56 of the Federal Rules of Civil Procedure.

In addition, the United States Supreme Court in Danforth v. United States , 308 U.S. 271, 181-183 (1939), held that, even if an offer were accepted, "friendly condemnation proceedings" could be instituted to clear title with a request for an award in the amount of the offer. In the case cited, after acceptance, the United States attempted to withdraw the offer, then condemned. After stating the agreement was authorized, the Supreme Court held:

The effect of such an agreement is to fix the value of the easement when the authority of the Court is invoked against a party to the agreement to acquire good title.

In Albrecht v. United States , 329 U.S. 599, 602-603 (1947), the Court stated in part as follows:

But the method used by courts to determine "just compensation" in an adversary proceeding where the parties have failed previously to agree on its amount is not the exclusive method for determining that question. The Fifth Amendment does not prohibit landowners and the Government from agreeing between themselves as to what is just compensation for property taken. Nor does it bar them from embodying that agreement in a contract, as was done here.

See also Wachovia Bank & Trust Company v. United States , 98 F.2d 609, 612 (4th Cir.1938); United States v. Two Acres in Will County , 144 F.2d 207 (7th Cir.1944); Mahowald v. United States , 176 F.2d 509 (8th Cir.1949).

It is submitted that based upon the option agreement as duly executed by the vendors and accepted by the Government there is no genuine issue as to the amount of just compensation to be received by the owners of Tract(s) No(s). and that an order of this Court should be entered fixing said compensation in accordance with the motion filed herein by plaintiff.

UNITED STATES OF AMERICA

BY:

United States Attorney