text:
    Floyd N. LEMMONS v. The UNITED STATES.
    No. 513-71.
    United States Court of Claims.
    May 15, 1974.

      James C. Meers, Washington, D. C., attorney of record, for plaintiffs. John E. Early, Evansville, Ind., of counsel.
    Joel Henry Meshorer, Washington, D. C., with whom was Asst. Atty. Gen. Wallace H. Johnson, for defendant.
    Before COWEN, Chief Judge, DAVIS and BENNETT, Judges.

      . Wilfong Poultry Farms v. United States, 480 F.2d 1326-1327, 202 Ct.Cl. 616, 619, n. 2 (1973), defined inverse condemnation as “a legal label for effective expropriation of private property, the sovereign acting indirectly without benefit of formal Eminent domain proceedings in condemnation; thus, sovereign acts incompatible with an owner’s present enjoyment of his property rights.”

   OPINION

PER CURIAM:

This case comes before the court on defendant’s motion, filed February 26, 1974, requesting that the court adopt the recommended decision of Trial Judge Thomas J. Lydon, filed January 18, 1974, pursuant to Rule 134(h), as the basis for its judgment in this case since plaintiff has failed to file a notice of intention to except thereto and the time for so filing pursuant to the Rules of the court has expired. Upon consideration thereof, without oral argument, since the court agrees with the said decision, as hereinafter set forth, it hereby affirms and adopts the same as the basis for its judgment in this case. Therefore, defendant’s motion of February 26, 1974, is granted, plaintiff is not entitled to recover and the petition, is dismissed.

OPINION OF TRIAL JUDGE

LYDON, Trial Judge:

Plaintiff seeks to recover damages in the form of just compensation for an alleged taking by defendant, acting through the Corps of Engineers, Department of the Army, of his property on or about June 25, 1965. Plaintiff claims he is entitled to recover the value of a sand and gravel tipple (which he estimates to be $55,000), the labor costs which would be incurred in installing a new tipple in another location (which he estimates would be $35,000), and the value of his leasehold interest (which he estimates to be $15,000).

The basic question presented in this case is whether there was a taking by defendant of plaintiff’s property entitling him to a just compensation award. Subsidiary questions to which the parties have directed their briefs are whether the tipple is to be considered a part of the realty, as claimed by plaintiff, or personalty, the position advanced by defendant, and whether plaintiff’s leasehold interest was a viable property-right possessing value on or about June 25, 1965. For reasons which follow, it is concluded there was no compensable taking by defendant of plaintiff’s property.

In 1957, plaintiff was President of Mid-West Sand and Gravel Co., Inc. (Mid-West) which had its main office in Boonville, Indiana. For purposes of this litigation plaintiff and Mid-West will be considered one and the same. On November. 23, 1957, plaintiff, as lessee, entered into a special purpose “Sand And Gravel Lease”, subsequently reassigned to Mid-West, with Marion D. Vanada and his wife, Lillian E. Vanada, lessors, whereby plaintiff was given the right to conduct a sand and gravel business on property, known as tract 114, owned by the lessors. Under this lease, plaintiff had the right to dredge and pump sand and gravel from the Ohio River and to process the sand and gravel by means of a tipple located on the riverbank on tract 114 for commercial sale. At or about the same time that he entered into the lease, plaintiff purchased from the lessors the sand and gravel tipple consisting at the time of three hoppers or bins, which was then located on tract 114 — having been moved there from an upstream location at a prior time.

The lease was for a term of 20 years with the lessee having the privilege of renewing the lease for a period of 5 years thereafter. It set up a schedule of rents and royalties which plaintiff was to pay the lessors, said schedule varying within different established time periods. For example, it provided that from January 1, 1965, to and including December 31, 1969, plaintiff was to pay the lessors an amount per ton of sand and gravel removed equal to 9 percent of the prevailing market price per ton for sand and gravel at the Evansville, Indiana, market as of January 1, 1965. Plaintiff, in any event, had to pay the lessors at least $2,000 annually as rent and royalties under the lease. The lease provided in pertinent part:

******
^ * * * * *
(h) Lessee shall have the right to remove all of his personal property and improvements made by him on said real estate at the end of the term of this lease.
(2) Lessors agree to permit the Lessee to use a reasonable portion of their land on the river bank [refers to tract 114] for hoppers [the tipple] or other equipment necessary for Lessee’s operation * * *.
(3) Lessee agrees to carry on the work of pumping sand and gravel in a diligent manner. Lessee’s failure to pump sand and gravel for a continuous period of six (6) months or more shall constitute an- abandonment and termination of this lease, unless the river conditions, strikes, or other unavoidable circumstances in some way prevent the Lessee from conducting a normal operation.
* * * * * *

The lease also allowed plaintiff to use a plot of land [known as tract 111] owned by the lessors for storage of sand and gravel, as well as use of a scales office building and maintenance shop located thereon.

It is important to understand that plaintiff’s lease was a special purpose lease and only empowered him to conduct a sand and gravel business on the lessor’s property. Plaintiff’s sole purpose in obtaining the lease and purchasing the tipple was to engage in the business of producing and selling sand and gravel, dredged from the Ohio River. He was not allowed to farm the land or engage in any other activity thereon.

The lease drew its vitality, and indeed its very existence, from a permit issued by the Corps of Engineers. Plaintiff conceded he could not operate his tipple and conduct his sand and gravel business without the permit. His entire operation on tract 114 was completely dependent on the flow of the Ohio River to carry sand and gravel downstream to where it could be dredged from the riverbed in an area known as Scuffletown Bar adjacent to tract 114, and processed by means of the tipple located on said tract. The Corps of Engineers had initially issued the permit in question, without any fee or cost attached thereto, in 1951 to Hageman Sand and Gravel Co. of Mt. Vernon, Indiana, and it was subsequently extended and/or reassigned until June 11, 1959, when it was assigned to Mid-West. Mid-West also had the permit extended, the last extension to expire on December 31, 1966.

The Corps of Engineers issued the permit, pursuant to the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., and it allowed the holder to conduct sand and gravel dredging operations for commercial purposes on the Ohio River at the Seuffletown Bar. Attached to the permit was a drawing showing the proposed dredging operations. The drawing noted the “Proposed Location of Pump, Pipe Line, 3 Hopper For Storage and Screening” and schematically depicted the tipple on the riverbank and the 8-ineh pipe leading from the dredge barge in the river to the tipple on the bank. The permit reserved the right of defendant to revoke it at any time in the interests of navigation and provided that no claim shall be made against defendant on account of revocation nor shall defendant incur any expenses as a result of revocation of the permit.

Plaintiff spent most of 1958 in preparation for the conduct of his sand and gravel business. He made considerable improvements to the tipple, e. g., he "added five additional hoppers or bins to the tipple in 1958, and in 1962 he made additional improvements to the tipple in order to increase production, e. g., he added a gravel screw and installed a new-type pump. The record does not indicate the initial purchase price of the tipple, the costs of improvements thereto, nor any depreciation data bearing thereon.

Tract 114 was a triangular-shaped plot of land lying immediately east of an area known as tract 108 and immediately south of an area known as tract 110 along the right bank of the Ohio River near Newburgh, Indiana. It consisted of 5.40 acres of which 3.47 acres were below normal pool (elevation 347.0 m. s. 1.). Under his lease, plaintiff, as noted supra, was entitled to use a reasonable portion of tract 114 on the riverbank for his tipple. The tipple was located in the northwest corner of tract 114, quite close to the boundary lines of tract 108 on the west and tract 110 on the north. The evidence presented at trial was inconclusive as to the elevation of the ground on which the tipple was located, varying from a low of 355 m. s. 1. to a high of 366.5 m. s. 1.

The purpose of the tipple was to size and separate sand and gravel. Sand and gravel was dredged from the Ohio River and pumped through an 8-inch pipeline into the tipple where it was processed by means of conveyors, screens, vibrator, scrubbers and washers and separated into the various hoppers or bins as sand or gravel. Chutes located at the bottom of the hoppers permitted trucks beneath the hoppers to be loaded with the final product for delivery to storage bins for commercial sale. Dredging operations were conducted from a steel barge located out in the river anywhere from 100 to 125 feet from the water’s edge. The pipe through which the dredged sand and gravel was pumped rested on pontoons from the barge until land was reached at which point it rested on supports until the pipe reached the tipple.

In December 1964, the tipple consisted of eight steel hoppers or bins and assorted electrical and other equipment necessary for its operation. The tipple sat on steel beam legs which were either embedded in concrete footings or bolted to steel plates embedded in concrete footings. The steel beam legs individually supported the various component parts of the tipple which were welded together to form a cohesive water-tight structure. The tipple itsfelf was not designed to be a monolithic structure. Instead, elements were added and/or welded to the tipple as the need arose. The hoppers were from 8 to 12 feet off the ground in order to enable trucks to be driven beneath them to be loaded. Two hoppers had concrete floors beneath them in order to better support the larger trucks. The tipple, as a structure, was around 85 feet long and averaged about 14 feet in width. The tops of some parts of the tipple were from 25 to 30 feet from the ground. The tipple was constructed so as to be a sturdy and long-lasting structure and was welded and braced together so as to withstand the pressures of high water, logs and driftwood which came downstream during the winter months.

The tipple operation was shut down during the winter months because of high water and/or ice conditions. Generally, tipple operations ceased in November and started up again the following May. Plaintiff discontinued tipple operations in mid-December 1964 because of adverse weather conditions. Plaintiff’s tipple operation production increased over the years from a low of 2,243 tons of sand and gravel in 1958 to a high of 113,616 tons in 1964. The record indicates that the tipple’s 1964 operations were profitable.

Like most tipples, plaintiff’s tipple had the capability of being moved if market or other conditions so dictated. In sand and gravel, coal, and quarry operations, tipples similar to plaintiff’s were frequently moved from one location to another.

On March 29, 1965, the Secretary of the Army revoked plaintiff’s permit to conduct sand and gravel dredging operations in the Ohio River because of construction of the Newburgh Locks and Dam, a project to improve navigation on the Ohio River. Plaintiff was directed to remove from the Ohio River the equipment used in his dredging operations not later than July 1, 1965. It is conceded that revocation of the permit was accomplished in a legal and authorized manner. Following revocation of the permit on March 29, 1965, plaintiff’s sand and gravel business on tract 114 was effectively terminated. Revocation of the permit rendered plaintiff’s tipple useless as long as it remained on tract 114. Further, revocation of the permit frustrated the sole purpose of the lease of November 23, 1957, under which plaintiff conducted his sand and gravel operations. Under the terms of the lease, set out, supra,, “failure to pump sand and gravel for a continuous period of six (6) months or more shall constitute an abandonment and termination of this lease * * Since plaintiff stopped pumping in mid-December 1964, revocation of the permit on March 29, 1965, leads, on this record, to the reasonable conclusion that by June 25, 1965, the lease was considered abandoned and terminated by the parties thereto. There is no evidence in the record that any rent or royalty was paid by plaintiff to the lessors for 1965 or any part thereof, or for any year thereafter as required by said lease.

Subsequent to March 29, 1965, plaintiff made no effort to remove his tipple from tract 114. The record clearly establishes that plaintiff voluntarily chose not to move his tipple because he believed it would not be worthwhile, cost-wise, to do so. The tipple was considered an “eye sore” on the riverbank by the Corps of Engineers in August 1967, because of its deteriorated condition, and its removal was subsequently effected by the Corps by means of competitive bidding. The Corps reasonably concluded, in this regard, that the tipple had been abandoned on the riverbank.

The land on which the tipple was located (tract 114), as well as surrounding lands (e. g., tracts 108, 110), were considered necessary by the Corps of Engineers for enhancing navigation and commerce along the Ohio River, a navigable river, in connection with the construction of the Newburgh Locks and Dam. Defendant, attendant to this project, condemned, informal proceedings, on June 25, 1965, tracts 108 and 110 inter alia, and appropriate compensation was subsequently awarded to all parties affected thereby. Tract 114 was included by the Corps of Engineers in the land area which was felt to be necessary in connection with the above-mentioned navigational project, but the Corps of Engineers concluded that this tract was below the ordinary high-water line (OHWL) (which it determined to be 362.6 m. s. 1. for this area) and thus belonged to the Federal Government under the doctrine of navigational servitude. The Corps of Engineers’ OHWL determination was based on a 1960 survey of the Ohio River from Louisville, Kentucky, downstream to near the mouth of said river at Cairo, Illinois. The survey area encompassed tract 114. Accordingly, defendant believed it was not necessary to include this tract in the formal condemnation proceedings since the land already belonged to the government. In any event, it is clear defendant intended to exercise ownership and possession over tract 114, the only tract germane to this case, whether by formal condemnation proceedings or otherwise.

Plaintiff contends that the tipple site on tract 114 was above the ordinary high-water mark and thus defendant by inverse condemnation took said land, as well as his leasehold interest thereon, at or about the time it formally condemned tracts 108 and 110 on June 25, 1965. Since the tipple, in plaintiff’s view was attached to the land and a part thereof, it was also taken by defendant. Thus, the first issue as framed by plaintiff is whether or not the tipple was part of the realty on or about June 25, 1965. If the tipple is personalty, then plaintiff ostensibly would agree that he is not entitled to recover the value thereof. The second issue to be decided is whether plaintiff’s leasehold on or about June 25, 1965, constituted a compensable interest.

I.

Plaintiff claims that because the sand and gravel tipple was annexed to the land it must be considered real property. There is no question but that the tipple may properly be considered a trade fixture. The general rule at common law considered anything annexed to the realty a part thereof. In essence, plaintiff relies on this simple rule, claiming that the tipple was a large steel structure welded together and placed upon steel legs which were set in and/or welded to concrete footings and not readily movable.

The common law rule, supra, was not without exceptions. One exception, almost equal to the rule itself, concerned trade fixtures annexed to realty by a lessee. Under this exception, based on principles of public policy and a desire to encourage trade and manufacturing, a trade fixture annexed to realty and belonging to a lessee is generally regarded as personalty. Van Ness v. Pacard, 27 U.S. (2 Pet.) 137, 143, 7 L.Ed. 374 (1829); Anderson-Tully v. United States, 189 F.2d 192, 196 (5th Cir. 1951); see also New Castle Theater Co. v. Ward, 57 Ind.App. 473, 104 N.E. 526, 528 (1914); Gordon v. Miller, 28 Ind. App. 612, 615-618, 63 N.E. 774, 776 (1902). In Wiggins Ferry Co. v. O & M Ry., 142 U.S. 396, 416, 12 S.Ct. 188, 194, 35 L.Ed. 1055 (1892), the Supreme Court in holding a trade fixture annexed to realty by a lessee to be personalty observed : “ * * * Indeed, it is difficult to conceive that any fixture, however solid, permanent and closely attached to the realty, placed there for the mere purposes of trade, may not be removed at the end of the term * * Under his lease, plaintiff unquestionably could move his tipple at its termination. Without more the tipple as a trade fixture belonging to plaintiff, a lessee must reasonably be considered personalty unless other facts compel a contrary conclusion. The record does not reveal any such facts. Plaintiff recognizes the impact of the trade fixture exception, supra, but counters with the argument that the tipple is more akin to mining machinery and equipment and some courts have “presumed" such machinery and equipment to be realty fixtures. Plaintiff cites 35 Am.Jur.2d, Fixtures, Sec. 108 and Strong v. Sunset Copper Co., 9 Wash.2d 214, 114 P.2d 526 (1941) in support of his argument. These authorities do not aid plaintiff for the critical reason that he is a lessee and not the owner of the realty. Indeed, the Strong case points out that where a tenant annexes a trade fixture to the realty, “the presumption is that he did not intend to enrich the free hold * .* and thus the fixture would be treated as personalty whether mining machinery and equipment or not (114 P.2d at 533).

While a trade fixture is most often considered personalty, the intention of the party annexing the fixture to have it so treated might be found to be otherwise. Intention, in this regard, is to be gleaned from the totality of the circumstances, e. g., the relationship of the parties, the nature and purpose of the item annexed, and the method of annexation. See Annot., 77 A.L.R. 1400 (1932). Plaintiff recognizes that one of the criteria used by courts in determining whether a fixture is realty or personalty is the “intention of the party making the annexation to make the article a permanent accession to the freehold.” Binkley v. Forkner, 117 Ind. 176, 19 N.E. 753, 754 (1889).

There is no affirmative evidence that plaintiff intended the tipple to be part of the realty. The evidence that is available shows rather clearly that the tipple was considered personalty by plaintiff. First plaintiff’s relationship with the owner of the realty was that of lessee. The lease under which plaintiff conducted his business operations, which centered on the tipple, clearly contemplated the right of removal of the tipple at its termination. While the lease was for a period of 20 years with an option to renew for an additional period of 5 years, provisions in the lease also made it subject to termination within a 6-month period if certain conditions existed. The termination provisions of the lease are not consonant with the view that the tipple was deemed part of the realty. See United States v. Certain Parcels of Land, 131 F.Supp. 65, 70-71 (S.D.Cal. 1955). Too, plaintiff made expensive improvements to the tipple to increase its production and efficiency of operation. It is not reasonable to conclude that these improvements, expecially in view of the termination provision of the lease, were made for the benefit of the lessor, which would be the case if the tipple were considered part of the realty. Bank of Shelbyville v. Hartford, supra, 104 S.W.2d at 219. See Wiggins Ferry Co. v. O & M Ry., supra, 142 U.S. at 415. See also Central Trust & Savings Co. v. Wallace, 66 Ind.App. 629, 634, 118 N.E. 593, 594 (1918). Second, the tipple was designed to function as a trade device and was dependent on this particular river site to provide it with the raw materials, sand and gravel, necessary to sustain its operation. If the raw material source was closed off at this river site, for any reason, the tipple could not operate and the purpose for its existence on the site would cease. Under these circumstances, the tipple would have to move to another site if it were to continue operations. Indeed, the tipple had been moved to the site in question from another location. The fact that the tipple only consisted of three hoppers at the time of said move is not deemed important. It was capable of being moved whether it consisted of three hoppers or eight hoppers. Third, the tipple sat on steel legs which were embedded and/or bolted to steel plates embedded in concrete footings. The tipple was readily removable by experienced personnel by backing a low-boy truck under the bins, which were easily severed from the steel legs and into sections by torch cutting, and removing them by sections. The record indicates that tipples, such as the one in question, were frequently moved from one location to another for a variety of reasons. See in this regard Shaleen v. Central Coal & Coke Co., 127 Ark. 397, 192 S.W. 225, 227 (1917). Removal of the tipple did not damage the realty and would not damage the tipple itself which could be reassembled at a new site and operations reestablished. In fact, plaintiff did not want to remove the tipple because of the expense involved. However, it has been held that “inconvenience and expense of removing a going business and its equipment from property so taken cannot be paid for directly and cannot operate indirectly to change a chattel into real estate.” Futrovsky v. United States, 62 App.D.C. 235, 66 F.2d 215, 217 (1933). Finally, corroborative of the view that the tipple was personalty is the fact that industry custom and trade practice treated tipples, similar to the one in question, as personalty. See Van Ness v. Pacard, supra, 27 U.S. (2 Pet.) at 143, 144.

Plaintiff cites a number of cases wherein courts have held certain fixtures to be part of the realty. Each of these cases turned on their own facts and provide little guidance here. For example, plaintiff relies on United States v. 252.36 Acres of Land, 336 F.Supp. 667, 671 (W.D.Penn., 1972) wherein the District Court issued an advance ruling which the court hoped would be useful to the parties in their trial preparations or settlement negotiations. The dispute in this case centered on whether certain undeseribed sand and gravel processing machinery located on condemned land were part of the real estate under Pennsylvania’s Assembled Economic Unit Doctrine. As is obvious, the case has limited application — involving as it did the application of Pennsylvania law to specific facts. More importantly, the ruling in the case does not delineate the articles and items which make up the sand and gravel processing machinery such that one could form a conclusion that a tipple, such as is in issue here, would be considered realty or personalty, absent consideration of the doctrine on which the ruling hinged. Assuming, arguendo viability of the District Court ruling to the facts in this case, a careful reading of that ruling is not incompatible with the conclusion reached here that the tipple should be treated as personalty. Under the Pennsylvania Assembled Economic Unit Doctrine, an owner is not to be compensated if the machinery, equipment and fixtures of the economic unit located on land condemned in Pennsylvania is susceptible of continuance as a comparable economic unit in a new location. In this case, the tipple, as an economic unit, was capable of being removed to another location and functioning as an economic unit at the new location and presumably would be considered personalty, on the facts of this case, under Pennsylvania law. (See 336 F.Supp. at 671.)

Plaintiff could have moved his tipple at any time after the permit was revoked. Plaintiff decided that movement of the tipple to another location would be too expensive. In United States v. Sixty-Two Parcels of Land, 24 F.Supp. 882 (D.Del.1938) a claim that the government took cottages of lessees when it condemned certain land was rejected when the lessees failed to remove said cottages within an 18-month period although free to no so during this period. The fact that one of the lessees had no money to effect removal of the cottages did not support a taking claim or a right to compensation for the cottages. Here, plaintiff’s economic decision not to move the tipple likewise provides no basis for compensation. Plaintiff made no effort to sell the tipple for salvage or otherwise. He simply walked away from the tipple. In United States v. 252.36 Acres of Land, swpra, the case relied on by plaintiff and discussed, supra, the District Court made clear it would not condone, by way of compensation, an owner “walking away from his machinery” 336 F.Supp. at 670, 671. During the period prior to August 1967, the tipple was cannibalized, i. e., stripped, of all motors, switch gears, electrical wiring, etc. The record does not indicate who did the stripping, but by August 1967 it was reasonably concluded by the Corps of Engineers that the tipple, in view of- its condition and the condition of the site around the tipple, had been abandoned on the riverbank.

Under the circumstances of this case, it seems reasonable to conclude, as did the Corps of Engineers, that plaintiff abandoned the tipple on the riverbank. Plaintiff had no intention of removing the tipple and its deteriorated condition in 1967, having been inoperative and uncared for since at least late 1965, with its vital parts removed therefrom, bespeaks intent by the owner (plaintiff) to abandon it and leave removal and attendant expense of the carcass to someone else. Intent to abandon property may be inferred from the facts of a case, Baglin v. Cusenier Co., 221 U. S. 580, 597-598, 31 S.Ct. 669, 55 L.Ed. 863 (1911). Such an inference is warranted herein, based on plaintiff’s refusal to remove the tipple and his allowing it to deteriorate to an “eye sore” on the riverbank. Indeed, it has been held that if a lessee does not remove fixtures at the termination of his lease, he is presumed to have abandoned them. Hedderich v. Smith, 103 Ind. 203, 2 N.E. 315, 316 (1885); Glaser v. North’s, 201 Or. 118, 266 P.2d 680, 682 (1954). With the revocation of the operating permit in March 1965, the purpose of the lease was frustrated and it is reasonable to conclude it was considered terminated by the parties thereto. There certainly was no intent, as indicated earlier, on the part of the Corps of Engineers to take the tipple. Plaintiff made no effort to remove the tipple and the record contains no evidence that any government act, directly or by reasonable inference, prevented plaintiff from removing the tipple. The circumstances indicate an intent by plaintiff to abandon the tipple, cf. Biggs Rental Co. v. United States, 353 F.2d 1013, 1017, 173 Ct.Cl. 789, 796-797 (1965) cert. denied 384 U.S. 927, 86 S.Ct. 1443, 16 L.Ed.2d 531 (1966). Since the government had the tipple removed after it had been abandoned by plaintiff, he is not entitled, in any event, to recover the value thereof.

II.

It is established that a leasehold interest is property, the taking of which entitles the leaseholder to just compensation for the value thereof. Pewee Coal Co. v. United States, 161 F.Supp. 952, 955, 142 Ct.Cl. 796, 801 (1958), cert. denied, 359 U.S. 912, 79 S.Ct. 588, 3 L.Ed.2d 574 (1959). As was the case with respect to the tipple claim, it is not necessary to determine the question of whether plaintiff’s leasehold interest involved land above the ordinary high-water mark because no recovery would be due plaintiff in any event.

Generally, the measure of a lessee’s compensation for the taking of his leasehold interest in eminent domain situations is the fair market value of the unexpired term of the lease less the rent which the lessee would have to pay. United States v. Petty Motor Co., 327 U.S. 372, 381, 66 S.Ct. 596, 90 L.Ed. 729 (1946); R. S. Howard Co. v. United States, 81 Ct.Cl. 646, 654 (1935); United States v. 70.39 Acres of Land, 164 F.Supp. 451, 473 (S.D.Calif.1958); see Annot., 3 A.L.R.2d 286, 290-96 (1949). In this ease, the sole purpose of plaintiff’s lease was to enable him to conduct his sand and gravel business on the bank of the Ohio River. When the Corps of Engineers revoked the permit to engage in this business on the river, the purpose and vitality of the lease was frustrated and impaired. The record indicates quite clearly that .after revocation of the permit on March 29, 1965, the lease had no significant market value to plaintiff or to anyone else. Under the lease, plaintiff paid the lessor some $2,000 per annum as rent. Over the unexpired term of the lease the rent obligated would amount to some $24,000. Plaintiff sét the value of his leasehold interest at $15,000. Accordingly, after revocation of the permit, the rent obligation under the lease exceeded any possible market value of the lease and thus plaintiff would not be entitled to recover, in any event, for its leasehold interest subsequent to government possession of the land in question on and after June 1965. Corrigan v. Chicago, 144 Ill. 537, 33 N.E. 746, 749 (1893); see 4 Nichols, Eminent Domain, § 12.42 [3], at 516 (3d 1971); see also Annot., 3 A.L.R.2d 293-94. It is plaintiff’s burden to show that the value of his leasehold interest is more than the amount of his rent obligation, United States v. 6.87 Acres of Land, 147 F.2d 351, 353 (2d Cir. 1945). Plaintiff is in exactly the same position he would have been in had the government not taken possession of tract 114, which encompassed the leased land, and thus no basis exists on which plaintiff can recover for the value of its leasehold interest. Almota Farmers Elevator & Whse. Co. v. United States, 409 U.S. 470, 474, 93 S.Ct. 791, 35 L.Ed.2d 1 (1973) and cases cited therein. See also United States v. General Motors Corp., 323 U.S. 373, 379, 65 S.Ct. 357, 89 L.Ed. 311 (1945).

Under the lease, the parties could terminate the lease when there was no production by the tipple for a 6-month period. The tipple shut down in December 1964. On March 29, 1965, the permit to conduct sand and gravel operations was revoked. On June 25, 1965, formal condemnation proceedings were instituted relative to tracts 108, 110 and 111 and the government exercised possession over tract 114. Accordingly, on June 25, 1965, the tipple had been inoperative for 6 months. While there is no affirmative evidence that the lease was formally terminated, the circumstances in the record raises a presumption that the parties to the lease so viewed the situation. There is no evidence that plaintiff paid any rent for the year 1965 and the absence of such a payment supports an inference that no such rent payment was due because no lease agreement existed. Generally, when leased land is taken, the lessee's obligation to pay rent is discharged. See 4 Nichols, Eminent Domain, § 12.42 [1], at 492. Thus, plaintiff here incurred no damages in the way of continued rental payment obligation. If no lease agreement existed on or before June 25, 1965, then there was no leasehold interest in existence which could be the subject of a taking.

III.

Still another reason serves to preclude recovery by plaintiff for the value of the tipple and the leasehold interest. The permit to dredge and remove sand and gravel from the Ohio River created the value in the leasehold and the tipple which plaintiff now seeks to recover. It is established that one is not entitled to recover elements of value that the government created or that it might have destroyed under exercise of government authority other than power of eminent domain, United States v. Fuller, 409 U.S. 488, 491-492, 494, 93 S.Ct. 801, 35 L.Ed.2d 16 (1973). There is no question but that defendant had a paramount right to revoke the permit with complete immunity from damage claims resulting therefrom, United States v. Chandler-Dunbar Co., 229 U.S. 53, 68, 33 S.Ct. 667, 57 L.Ed. 1063 (1913); Miami Beach Jockey Club v. Dern, 66 App.D.C. 254, 86 F.2d 135 (1936), cert. denied, 299 U.S. 556, 57 S.Ct. 17, 81 L.Ed. 409; see also Schoeffel v. United States, 193 Ct.Cl. 923, 936 (1971). When plaintiff’s permit to remove sand and gravel from the Ohio River was revoked by the Corps of Engineers, his business operations ceased. With this revocation, the tipple’s purpose at the site was at an end and plaintiff had to decide whether to move the tipple to another location, sell the tipple for salvage or otherwise, or abandon the tipple where it was. Accordingly, it was not defendant’s possession of the land that rendered the tipple useless, but defendant’s absolute right to revoke the permit that enabled the tipple to process sand and gravel removed from the river. Damages that are not the consequence of a taking cannot be recovered. In Kelley’s Creek & N. W. R. v. United States, 100 Ct.Cl. 396, 406- (1944) the court denied recovery for a coal tipple which had been rendered useless not by the taking of the land but because the level of the water had been raised by construction of a dam on a navigable stream. Plaintiff has stressed the fact that the tipple it- / self did not interfere with navigation on the Ohio River since it sat on the riverbank. However, the court in the Kelley’s Creek case pointed out that the absence of physical interference with navigation was not a significant fact (100 Ct.Cl. at 410). It must be concluded that there was no compensable taking of plaintiff’s property by defendant.

CONCLUSION OF LAW

Upon the findings of fact and the foregoing opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover, and the petition is dismissed.

       Whereas the court adopts the trial judge’s separate findings of fact, which are set forth in his report filed January 18, 1974, they are not printed herein since such facts as are necessary to the decision are eontained in his opinion.

      . See United States v. Kansas City Ins. Co., 339 U.S. 799, 804-808, 70 S.Ct. 885, 94 L.Ed. 1277 (1950).

      . The parties at trial and in their briefs devoted much attention to the question of whether the tipple site was above or below the ordinary high-water mark. It is a most troublesome question and the record in this case does not provide that degree of positive evidence on which one could resolve the question with complete assurance that a correct decision had been reached. Fortunately, the case can be disposed of on other grounds. It is conceded that defendant possessed tract 114, including the tipple site, on and after June 25, 1965. It is not necessary to determine whether that possession was obtained by inverse condemnation or navigational servitude, since plaintiff would not be entitled to recover in any event.

      . It is interesting to note that as far as is known no taking claim has been advanced by the owners of tract 114, Marion D and Lillian Vanada.

      . There is no evidence defendant intended to take the tipple on June 25, 1965, or at any reasonable period of time thereafter and no act of the defendant has been cited or is present in this record from which one could imply or reasonably infer such intent. Absent such an intent, there can be no taking. J. J. Henry Co. v. United States, 411 F.2d 1246, 1249, 188 Ct.Cl. 39, 46 (1969); Biggs Rental Co. v. United States, 353 F.2d 1013, 1017, 173 Ct.Cl. 789, 796 (1965), cert. denied, 384 U.S. 927, 86 S.Ct. 1443, 16 L.Ed.2d 531 (1966).

      . If this is so then plaintiff as a lessee may not be the proper party entitled to direct compensation. The lessor, not a party herein, may have greater rights under the circumstances. See, e. g., The City of New York v. Cypress Ave. Holding Corp., 249 App.Div. 579, 293 N.Y.S. 223 (1st Dept.), aff’d mem., 274 N.Y. 581, 10 N.E.2d 561 (1937).

      . An item is generally regarded as a trade fixture if annexed to realty for the purpose of aiding one in possession thereof, especially a lessee, in the conduct of a business for profit. Bank of Shelbyville v. Hartford, 268 Ky. 135, 104 S.W.2d 217, 218-219 (1937).

      . Generally, whether a fixture is deemed realty or personalty turns on the circumstances of each case with certain criteria utilized by courts to assist them in reaching a determination. See 36A C.J.S. Fixtures § 1, pp. 590-592 and § 38 — Trade Fixtures, pp. 691-694; see also Annot., 90 A.L.R. 159 (1934) (fixtures annexed by owner of realty), and Annot., 3 A.L.R.2d 286 (1949) (fixtures annexed by lessee) relative to eminent domain proceedings. The trend of modern decisions generally favors the more liberal construction of holding fixtures to be personalty. See 36A O.J.S. Fixtures, supra at 592-593.

      . Interestingly, the Supreme Court in this case cited with approval a lower court holding that stone piers built by a lessee railroad and firmly embedded in earth were personalty and did not become part of the realty. Accordingly, the fact that the steel legs which supported the tipple were embedded in or bolted to concrete footings is not a sufficient reason, under the circumstances, to treat the tipple as realty. See McFarlane v. Foley, 27 Ind.App. 484, 486, 60 N.E. 357, 358 (1901); see also Block v. Talge, 221 Ind. 658, 661, 51 N.E.2d 81, 82 (1943).

      . The lease, fairly construed, recognized the fact that operations might be terminated when it provided that the lease might be terminated if there were no operations for a 6-month period.

      . Removal of the tipple in sections does not affect its character as personalty. See Andrews v. Williams, 115 Colo. 478, 173 P.2d 882, 884 (1946). In Potomac Electric Power Co. v. United States, 66 App.D.C. 77, 85 F.2d 243, 248 (1936) cert. denied, 299 U.S. 565, 57 S.Ct. 27, 81 L.Ed. 416 (1936) three pieces of heavy machinery, one of which was a 35-ton generator set which rested on a concrete foundation specially built for it, were considered personalty since used in the business and not considered improvements to the real estate. Even ponderous and firmly attached items may retain their character as personalty if such is the intent of the parties, Nadien v. Bazata, 303 Mass. 496, 22 N.E.2d 1, 2 (1939). Accordingly, the size of tipple, which was used in a business and cannot under any view be considered an improvement to the real estate, does not affect its status as personalty under the facts of this case.

      . Only one case cited by plaintiff in Ms initial brief involves a lessee, Pause v. Atlanta, 98 Ga. 92, 26 S.E. 489 (1896) and it concerned primarily the right of a lessee operating a restaurant to recover damages to a leasehold interest inflicted by a municipality. There was no discussion of whether fixtures were to be treated as realty or personalty. Apropos the Pause case, see Matz v. Miami Club Restaurant, 127 S.W.2d 738 (Mo.1939) wherein restaurant items (bar, booths, soda fountain, etc.) were considered trade fixtures under a lease and thus personalty. The annotation relied on by plaintiff (90 A. L.R. 159-62) has little application to the taking of a leasehold interest. A more pertinent annotation, as far as this case is concerned, is Annot., 3 A.L.R.2d 286, et seq., which deals with the question of the rights of lessees to recover for loss of fixtures and leasehold interests in eminent domain situations.

      . When the tipple was removed in 1969, it cost the successful bidder about $2,000 to move it. In order to remove it from the riverbank, the Corps of Engineers made it part of a package deal in a bid invitation involving removal of other items located on previously condemned lands. The successful bid was $450. The successful bidder allocated $275 to the tipple, and subsequently, at a salvage sale, realized $3,700 from sale of six of the tipple’s bins.

      . The tipple had been sitting idle since December 1964. Over several feet of silt had accumulated around and beneath the tipple such that one would have to stoop quite low to walk underneath the tipple whereas in December 1964, trucks were driven underneath the tipple to be loaded from the bins,

      . It has been suggested that a lease is often viewed as within that class of property not commonly bought and sold and consequently the value to the owner might be taken as the best and only available test of market value. See Polasky, The Condemnation of Leasehold Interests, 48 Va.L.Rev. 477, 519 (1962); see also Kimball Laundry Co. v. United States, 338 U.S. 1, 6, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949). As was indicated, the revocation of the permit rendered the special purpose lease valueless as far as plaintiff was concerned.

      . Plaintiff would not be entitled to recover the estimated cost of installing a new tipple at another location even if a taking were found to have taken place since such costs would constitute consequential damages and, as such, would not be compensable as part of just compensation. Kimball Laundry Co. v. United States, 338 U.S. 1, 11-12, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949); United States v. General Motors Corp., 323 U.S. 373, 379, 65 S.Ct. 357, 89 L.Ed. 311 (1945). Even if this were not so, reproduction costs would not be an appropriate valuation method in this case where another valuation basis was available. Schoeffel v. United States, 193 Ct.Cl. 923, 936 (1971); Bishop v. United States, 164 Ct.Cl. 717, 723 (1964).


source: Caselaw Access Project

author: DUNIWAY, Circuit Judge:

license: Public Domain

text:
    Richard J. SCHUSTER, Individually and on behalf of all other members of the press similarly situated, Plaintiff-Appellant, v. District Judge Grant L. BOWEN of the Second Judicial District Court of the State of Nevada, Defendant-Appellee.
    No. 72-2979.
    United States Court of Appeals, Ninth Circuit.
    May 10, 1974.
    Jerry Carr Whitehead (argued), David R. Belding, of Breen, Young, Whitehead & Hoy, Reno, Nev., for plaintiff-appellant.
    John C. Bartlett (argued), of Vargas, Bartlett & Dixon, Reno, Nev., Robert H. Walker, Oakland Cal., for defendantappellee.
    Before BROWNING and DUNIWAY, Circuit Judges, and RENFREW, District Judge.

       The Honorable Charles B. Renfrew, United States District Judge for the Northern District of California, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

The judgment in this case does not conform to the requirements of Rule 58, Fed.R.Civ.P. Ordinarily, we would dismiss on that ground, but without prejudice to the entry of a new judgment and the filing of a new appeal. We do not do so in this case only because we have concluded that the case is moot, so that the entry of a new judgment, followed by a new appeal, would be an exercise in futility.

The case arises from a notorious murder trial in the Nevada state courts. The appellee, Judge Bowen, presided at the trial, which was divided into a guilt determining phase and a penalty phase. The jury found the defendant in the case guilty, and, at the penalty trial, imposed the death penalty. The Supreme Court of Nevada reversed the death penalty determination and the matter again came before Judge Bowen and a jury. The Supreme Court’s decision caused an uproar in the community. At the outset of the death penalty retrial, and at the request of defense counsel, concurred in by the prosecutor, Judge Bowen ordered “that the names of the jurors and the alternate jurors shall not be published, and that no further reference be made to any individual juror in this particular case.” He also expressed the hope that the press “would co-operate and not create any difficulties at all.”

Plaintiff Schuster is the publisher of two daily papers in the county. A motion, asking Judge Bowen to rescind the order as an interference with the freedom of the press, was unsuccessful. So was a petition to the Supreme Court of Nevada. Schuster then turned to the district court, seeking injunctive or declaratory relief under 42 U.S.C. § 1983. When the complaint was filed, the trial in the state court was still in progress. Before there was any ruling, however, the trial was completed and Judge Bowen rescinded his order. District Judge Thompson denied a motion to dismiss the action as moot, and ultimately entered a declaratory judgment that Judge Bowen’s order was valid.

The record does not show that Judge Bowen or any other judge of the State of Nevada has ever made a similar order. Whether he or any other judge may in the future make such an order is purely speculative. The case does not present the question whether such an order could be made in every pending case, nor is it shown that Judge Bowen, or any other Nevada judge, is likely to do so. On the contrary, the attack upon the order by Schuster, its defense by Judge Bowen, and the ruling of District Judge Thompson are all based on the facts surrounding the trial of the particular case that was before Judge Bowen. Neither in the district court nor here has Schuster argued that such an order could never be valid, regardless of the circumstances of the case. If, in a particular case in the future, a similar order should be made it would again be necessary to look at that case and its circumstances before an intelligent ruling could be made as to the validity of the order. One could readily imagine a case in which any court would be forced to conclude that a comparable order would be desirable or even essential for the protection of the jurors and their families and to assure the defendant a fair trial. We do not decide whether the case before Judge Bowen was such a case.

We conclude that when Judge Bowen rescinded his order, there was no longer a case or controversy before Judge Thompson, and that there is presently no case or controversy before this court. O’Shea v. Littleton, 1974, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (Part I); North Carolina v. Rice, 1971, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413. Nor, as we have shown, does it appear that the same issue is likely to recur. See United States v. W. T. Grant Co., 1953, 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303; United States v. Concentrated Phosphate Export Ass’n, Inc., 1968, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (dictum).

The case is remanded to the district court with directions to vacate the judgment and dismiss the action as moot.


author: AINSWORTH, Circuit Judge: GODBOLD, Circuit Judge

text:
    In the Matter of Jimmy HUNT, d/b/a Speed Equipment World of Dallas #1 and Speed Equipment World of South Oak Cliff, Bankrupt. SPEED EQUIPMENT WORLDS OF AMERICA, INC., et al., Appellants, v. Jimmy HUNT, d/b/a Speed Equipment World of Dallas #1, et al., Appellees.
    No. 73-3447.
    United States Court of Appeals, Fifth Circuit.
    June 27, 1974.
    Rehearing and Rehearing En Banc Denied Oct. 7, 1974.

      Vernon O. Teofan, Arthur I. Ungerman, Dallas, Tex., for appellants.
    Waylon E. McMullen, Harold C. Abramson, Paul Shoop, Dallas, Tex., for appellees.
    Before WISDOM, AINSWORTH and GODBOLD, Circuit Judges.
   AINSWORTH, Circuit Judge:

Speed Equipment Worlds of America (SEW), one of the appellants here, is a franchisor of “speed shops,” which supply automobile accessories to private individuals in retail establishments. Appellee Jimmy Hunt operated two of these franchises until February 18, 1973, when he closed down and vacated the two stores and removed the inventory to a warehouse. On February 22, 1973, appellant SEW and the four other appellants, as petitioning creditors, filed an involuntary petition in bankruptcy against appellee Hunt, praying that Hunt be duly adjudged a bankrupt under the provisions of the Bankruptcy Act, 11 U.S.C. § 1 et seq. On February 23, 1973, the proceeding was referred to a referee, and on March 5, 1973, Hunt filed an answer, which, in essence, denied insolvency and the commission of acts of bankruptcy and demanded a jury trial. Hunt also filed a motion to dismiss in which it was asserted that' the bankruptcy petition was brought in bad faith. After appellants filed their reply, the motion to dismiss was heard and denied by the referee. The proceeding was thereafter returned to the district court for jury trial.

Before a jury trial was commenced, however, the district court, on its own motion and on the motion of Hunt, held a hearing to determine whether there had been a settlement of claims between SEW and Hunt subsequent to the filing of the petition, and, if there had been, what action should be taken by the court. After hearing the testimony, the court found the following: (1) that SEW made an agreement of settlement with Hunt; (2) that SEW unilaterally backed out as to the performance and consummation of the settlement; (3) that, pursuant to the settlement agreement, Hunt transferred his two stores to SEW; (4) that, not acting in good faith, SEW accepted the benefits of the settlement without fulfilling its obligations under the agreement; (5) that SEW reached the settlement with Hunt without the involvement of the other four petitioning creditors; (6) that, considering the settlement negotiations and the actions of SEW, SEW is the only “true and valid” petitioning creditor; (7) that the four other petitioning creditors were joined merely to satisfy the requirement of section 59 of the Bankruptcy Act, 11 U.S.C. § 95, that there be three petitioning creditors in a situation such as this; and (8) that SEW committed acts violative of law and equity and does not have clean hands in this proceeding. On the basis of these findings, the court dismissed the proceeding against Hunt and assessed against SEW all costs, including attorneys’ fees. Notice of the dismissal to creditors other than the petitioning creditors was deemed unnecessary by the court.

In this Court, appellants set forth three basic contentions: (1) that the district court should not have dismissed the proceeding because the court erred in its finding that SEW is the only true and valid petitioning creditor and in its findings as to the circumstances surrounding the settlement agreement; (2) that the district court erred in dismissing the proceeding without giving prior notice to all creditors; and (3) that the district court erred in assessing against SEW all costs, including an award to Hunt’s attorneys of attorneys’ fees in the sum of $1,000. Finding no substance in these contentions, we affirm the district court’s dismissal of this proceeding.

I.

Appellants’ first contention challenges the findings of fact of the district court as to the settlement agreement and the nature of the petitioning creditors other than SEW. In our posture as a reviewing court, we are restricted to the “clearly erroneous” standard of review with respect to these findings of fact. Fed.R.Civ.P. 52(a); e. g., McCarty v. Small Business Administration, 5 Cir., 1970, 420 F.2d 943; In re Pennyrich International, Inc. of Dallas, 5 Cir., 1973, 473 F.2d 417, 421 n. 4. The record contains ample evidence to support a conclusion that the challenged findings are not clearly erroneous. See, e. g., TMT Trailer Ferry, Inc. v. Kirkland, 5 Cir., 1972, 471 F.2d 10; Williams v. Wirt, 5 Cir., 1971, 441 F.2d 1150.

The petition filed herein contained allegations that SEW had a provable claim in the total sum of $16,847.42, and that the four other petitioning creditors were owed $95.60, $10.48, $75.71,‘and $200, respectively. At the district court hearing, three attorneys appeared for the alleged bankrupt, Hunt. Appearing jointly on behalf of the petitioning creditors were the attorney of record for all five petitioning creditors together with the attorney for SEW, who was also an officer and a director of the company. Two of Hunt’s attorneys and the attorney for SEW testified at the hearing concerning, for the most part, the events surrounding the settlement- agreement and, to some extent, the role of the petitioning creditors other than SEW. These witnesses testified that SEW, through its corporate officers negotiated with Hunt and his attorneys in an effort to reach a settlement. It is evident that agreement was reached as to a settlement and that only the dismissal by SEW of the pending bankruptcy proceedings and the transfer of closing papers and a certain amount of cash remained before the settlement was final. Hunt had carried out his obligations under the agreement, and SEW had benefited by his actions; yet, SEW, without notice to Hunt, declined to fulfill its responsibilities in the execution of the settlement agreement. The testimony further shows that throughout the settlement negotiations no consideration was given to the petitioning creditors other than SEW. In fact, the settlement agreement, though it involved the transfer of the material part of the alleged bankrupt’s estate, made no specific mention of the petitioning creditors other than SEW.

The inferences are fairly drawn from the evidence presented at the hearing that the petitioning creditors other than SEW were not “true and valid” and that SEW was not before the court in good faith. Consequently, dismissal of the involuntary petition was well within the discretion of the court below. See, e. g., 1 H. Remington, Bankruptcy Law § 379 (5th ed. J. Henderson 1950, Supp.1973); Stern v. Barnett, 7 Cir., 1971, 452 F.2d 211, 212-213; In re St. Lawrence Condensed Milk Corporation, 2 Cir., 1925, 9 F.2d 896.

II.

Appellants’ second contention, that it was error for the district court to dismiss the involuntary proceeding without prior notice to all creditors, is based on section 59(g) of the Bankruptcy Act, 11 U.S.C. § 95(g), which provides that a petition in bankruptcy, whether voluntary or involuntary, shall not be dismissed by consent or for lack of prosecution without notice to all creditors.

It is clear from the statute and from the case law that not all dismissals require prior notice to creditors. E. g., Wynne v. Rochelle, 5 Cir., 1967, 385 F.2d 789, 794; 1 Collier Bankruptcy Manual U 59.15, at 608 (1973). The well-settled rule is that notice to all creditors is not required if application to the court for dismissal comes up controversially. E. g., 1 H. Remington, supra, § 381, at 547. More specifically, notice is not necessary where the question of dismissal has been submitted to the court for consideration and the involuntary petition is dismissed on the merits after a hearing. E. g., 3 Collier on Bankruptcy j[ 59.34, at 658 (14th ed. 1974); Wynne v. Rochelle, supra, at 794-795.

Based on its findings that SEW was the only bona fide petitioning creditor and that SEW should not be permitted to pursue the bankruptcy proceeding because it had reneged on the settlement agreement, the court below concluded “[t]hat the proceeding should be dismissed on the merits due to the disqualification of the petitioners . . . .” Having given the petitioning creditors a hearing, the court found that they could not sustain their petition. See, e. g., Wynne v. Rochelle, supra, at 795; In re Chalfen, D.Mass., 1915, 223 F. 379; 3 Collier on Bankruptcy |f 59.34 (14th ed. 1974). The district court was, therefore, correct that notice to the nonpetitioning creditors was unnecessary. The court’s result, furthermore, was in accord with the purpose for which section 59(g) was designed: “to prevent the petitioning creditors from making a settlement with the bankrupt and then have the petition dismissed to the prejudice of creditors who, in reliance upon the pending proceeding, did not file a petition of their own.” 3 Collier on Bankruptcy |f 59.34, at 655 (14th ed. 1974). The involuntary petition against Hunt was dismissed because of SEW’s conduct in failing to complete its part of the settlement agreement and because the petitioning creditors other than SEW were not bona fide. Dismissal occurred not on the consent of the petitioning creditors and the bankrupt, but over vigorous opposition. See, e. g., In re St. Lawrence Condensed Milk Corporation, 2 Cir., 1925, 9 F.2d 896, 899.

III.

In light of its findings that SEW had committed acts that violated the rules of law and equity, the district court taxed all costs against SEW, including $1,000 for attorneys’ fees. Considering the particular facts and circumstances of this case, this assessment of costs, including attorneys’ fees, was within the district court’s general equitable powers. See, e. g., Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); In re Swartz, 7 Cir., 1942, 130 F.2d 229; Fine v. Weinberg, 4 Cir., 1967, 384 F.2d 471, 473; In re Swofford, D.Minn., 1952, 112 F.Supp. 893. See also In re Hogsett, S.D.Cal., 1940, 1 F.R.D. 284. It is ordered, furthermore, that an additional $750 be assessed against SEW for the benefit of Hunt’s attorneys as attorneys’ fees for the briefing, preparation, and argument of this appeal.

We have considered all of appellants’ arguments and find them to be without merit. The judgment of the district court is affirmed, and attorneys’ fees are awarded in accordance with this opinion.

Affirmed.

GODBOLD, Circuit Judge

(dissenting):

The purpose of § 59(g) of the Bankruptcy Act is to protect other creditors who in reliance on the pending proceeding did not file a petition of their own, against the petitioning creditors making a settlement with the bankrupt and having the petition dismissed. 3 Collier on Bankruptcy |f 59.34. In this case a hearing was convened without notice to other creditors to determine whether there had been a settlement between the principal creditor and the bankrupt and, if so, what action the court should take. The court concluded there had been a settlement agreement from which the principal creditor had backed out, and that the other three petitioning creditors were not “true and valid” creditors, and then as a penalty against the principal creditor it dismissed the proceeding without notice to other creditors. It seems to me peculiar that a statute which protects other creditors from a consummated settlement and a resulting dismissal would not protect them from an abortive settlement and a court-ordered dismissal imposed as a penalty against the petitioning creditor considered responsible. The interest of other creditors who may have withheld filing petitions because of the pendency of a viable proceeding is the same in both instances.

      . The section provides in full:
      “A voluntary or involuntary petition shall not be dismissed upon the application of the petitioner or petitioners, or for want of prosecution, or by consent of parties, until after notice to the creditors as provided in section 94 of this title, and to that end the court shall, upon entertaining an application for dismissal, require the bankrupt to file a list, under oath, of all his creditors, with their addresses, shall cause such notice to be sent to the creditors of the pendency of such application and shall delay the hearing thereon for a ■ reasonable time to allow all creditors and parties in interest an opportunity to be heard. If the bankrupt shall fail to file such list within the time fixed by the court, such list may be filed by the petitioning creditors according to the best of their knowledge, information, and belief: Provided, however, That in the case of a dismissal for failure to pay the costs of the bankruptcy proceedings, such notice of dismissal shall not be required.”

      . For a discussion of other instances in which section 59(g) has been held inapplicable, see 3 Collier on Bankruptcy K 59.34, at 658-660 (14th ed. 1974).


author: HAYS, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Gennaro ZANFARDINO et al., Defendants, Arcadio Boria, Defendant-Appellant.
    Nos. 710, 716, 774, Dockets 73-3516, 73-2624, 73-2856.
    United States Court of Appeals, Second Circuit.
    Argued March 4, 1974.
    Decided April 26, 1974.
    Gerald A. Feffer, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., Lawrence S. Feld and S. Andrew Schaffer, Asst. U. S. Attys., on the brief), for appellee.
    David Breitbart, New York City (Goldberger, Asness, Feldman & Breitbart, New York City, on the brief), for defendant-appellant.
    Before LUMBARD, HAYS and OAKES, Circuit Judges.
   HAYS, Circuit Judge:

Appellant Boria was convicted after a jury trial of distributing and possessing with intent to distribute heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b) (1) (A), and conspiracy to commit these acts in violation of 21 U.S.C. § 846. He appeals on the ground that there was insufficient evidence to convict. Specifically, he contends that the government’s main witness against him testified that the criminal acts of which Boria was accused took place in October or November of 1971, a period during which Boria was concededly in jail. After the jury verdict of guilty appellant made a motion in the district court pursuant to F.R.Crim.P. Rule 29(c) for a judgment of acquittal on this ground. The district court denied the motion. We affirm.

The main witness against Boria was Dolores Martinez. She testified that beginning in October 1971 she regularly met with John Campopiano in a tavern in the Bronx and in other places and purchased cocaine from him. In January or February of 1972 Campopiano first told her that he also had heroin for sale but that she would have to have “front money”- — that is, that she would have to pay for the heroin before receiving it. When she asked if she might take the heroin on consignment he went to the back of the tavern and consulted Gennaro Zanfardino and returned to tell her she could not.

She further testified that within a few days thereafter she twice arranged for appellant to purchase heroin from Campopiano.

The day after giving this testimony Martinez took the stand and amended her prior testimony by stating that the meeting at which Campopiano had consulted Zanfardino had occurred not in January or February 1972 but in November 1971.

This testimony did not require the jury to find that, since Boria was in jail in November 1971, no sale to him had taken place. Martinez’ changed testimony related only by implication to the sales to Boria. At no time did she explicitly direct her attention to the sales to Boria, which involved large quantities of heroin and the exchange of considerable sums of money, on one occasion $25,000, or state that they had occurred in November 1971. It is not surprising that her testimony as to dates of meetings with Campopiano should be somewhat confusing. She testified to at least fifty drug sales and to numerous meetings with Campopiano. When asked how many times she had had meetings with Campopiano during which Campopiano left her to ask questions of Zanfardino and then returned with an answer, she replied, “Several times.” The jury could and apparently did find either that Martinez was mistaken about the date of the meeting which preceded the sales to Boria or that she had confused that meeting with a similar meeting in November.

There was other testimony which supports this interpretation. On cross-examination Martinez emphasized that her original purchases had been exclusively of cocaine and that she had not received heroin from Campopiano until February of 1972. There was also testimony by an Assistant United States Attorney that in an interview before trial Boria admitted that he had lived in the apartment described by Martinez as the place where the sales to Boria occurred.

It is the province of the jury to “weigh the evidence and draw justifiable inferences of fact.” United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972). Applying this standard, we find that there was sufficient evidence that the sales to Boria took place in February 1972.

We have considered appellant’s other claims and find them to be without merit.

Affirmed.

      . The district court’s charge to the jury was probably more favorable than appellant deserved. The court charged the jury:
      “If you find that Dolores Martinez’ testimony concerning the defendant Arcadio Boria places the time of their dealings in November, 1971, then I charge you you must acquit Boria because he was not in New York City until after December 23, 1971 and that fact is not in dispute.”


author: INGRAHAM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Johnny Miles HUNT and Baron Raymon Kolb, Defendants-Appellants.
    No. 73-3165.
    United States Court of Appeals, Fifth Circuit.
    July 1, 1974.

      J. Mack Ausburn, San Antonio, Tex., for defendants-appellants.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Jeremiah Handy, Ralph E. Harris, Asst. U. S. Attys., El Paso, Tex., Robert P. Trout, Atty., Dept, of Justice, Crim. Div., Government Regulations Section, Washington, D. C., for plaintiff-appellee.
    Before BELL, SIMPSON and IN-GRAHAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

Defendants Johnny Miles Hunt and Baron Raymon Kolb were convicted for receiving in interstate commerce obscene publications in violation of 18 U.S.C. § 1462. On appeal, defendants argue that the allegedly obscene publications were obtained as a result of an unlawful search and seizure and that the evidence introduced at trial does not establish the requisite scienter to support their convictions. Concluding that the publications underlying defendants’ convictions were unlawfully seized by government agents, we reverse.

In the summer of 1971, Special Agent Robert Bishop of the Federal Bureau of Investigation began investigating the interstate transportation of obscene materials into the El Paso, Texas area. In meetings with Sgt. Genaro C. Oliveri, a Texas police officer, and a person from the United States Attorney’s office, Bishop viewed copies of three different magazines obtained from three book stores, namely, the Erotique, the Eros, and the Place. Bishop examined the contents of these magazines and later testified that the magazines contained pictures and textual descriptions of various sexual activities between persons and between animals and persons. His investigation also revealed that these book stores were operated by defendant Hunt and Paul Bik Hogervorst, Jr., and that both of these persons had been arrested previously for the sale of obscene literature. Furthermore, he learned that these book stores received shipments of books from various California publishing companies known to print and distribute obscene literature, one of which was All Star Distributors of Hollywood.

In the midst of Bishop’s investigation, law enforcement officers of the State of Texas searched under the authority of three warrants all three book stores and confiscated the entire stock of each. Bishop appeared at the Erotique just as the last of the materials were being boxed and taken away, but he did not examine any materials while he was there. The day after the search, he went to the El Paso City Jail where the confiscated materials were stored and there examined the contents of some of the publications.

On August 20, 1971, about a month after he examined the confiscated materials in the El Paso Jail, Bishop learned that six boxes addressed to defendant Kolb, in care of Eros, from All Star Distributors were at a local shipping firm. The next day Bishop went to the shipping agency and examined the boxes and the shipping documents. He then executed an affidavit in support of a search warrant and appeared before a federal magistrate with an order to show cause why the warrant should not issue against the six boxes. Relying only on the information in the affidavit and Bishop's testimony to the same effect, the magistrate issued the show cause order and the warrant, which specifically provided that it was not to be executed unless the officer was convinced that defendants would not comply with the' show cause order. Bishop, armed with the warrant and show cause order, returned to the shipping agency and waited for someone to pick up the boxes.

Kolb arrived the following Monday, August 23, 1971, claimed the six boxes and began loading them into the back of his pickup. After two boxes were in the truck, Bishop and a fellow lav/ enforcement officer, one Crossman, approached Kolb, Bishop identified himself, read the entire warrant to him and took possession of all six boxes. Bishop testified that, in accordance with the terms of the warrant, he took the boxes because he was afraid that the defendants would not comply with the show cause order. The boxes were delivered to the magistrate unopened.

At the show cause hearing the following day the magistrate rejected defendants’ contentions that the boxes were seized within the meaning of the Fourth Amendment when taken by Bishop at the shipping firm. The magistrate insisted that, even though Bishop read the warrant to Kolb and physically took possession of the boxes, a seizure and execution of the warrant did not take place until after probable cause and probable obscenity were established at the hearing. The confiscation by Bishop the previous day, according to the magistrate, was merely a temporary detention of the evidence in order to insure its presentation to a judicial officer. When the boxes were opened and the contents examined, the magistrate concluded that the materials were obscene.

Prior to trial, defendants moved to suppress the publications, contending that Bishop’s taking possession of the boxes when Kolb attempted to pick them up at the shipping firm was a seizure within the Fourth Amendment unsupported by probable cause. The trial court concluded that the initial confiscation of the boxes to insure that the evidence was presented to a magistrate was reasonable under the circumstances of this case. Since the subsequent hearing before the magistrate established probable cause to open the boxes, the initial taking of the boxes did not violate defendants’ rights. Accordingly, the motion to suppress was denied, and the defendants thereafter were found guilty of transporting pornography in interstate commerce.

The first question is whether Bishop’s taking physical possession of the six boxes at the shipping firm was a seizure within the meaning of the Fourth Amendment. The government argued, and the magistrate and district court agreed, that this ■ confiscation was not a seizure, but merely a temporary detention of the evidence required under the circumstances of this case to insure that the evidence was presented to a magistrate. Since the warrant specifically authorized such a procedure, the government contends that Bishop’s so-called temporary detention of the evidence was not a violation of defendants’ Fourth Amendment rights. The essence of the government’s argument is that it is constitutionally permitted to seize property and establish probable cause afterwards to justify the seizure. But the cases cited by the government do not stand for such a broad proposition, and we decline to adopt that position now.

While it is true that many courts have utilized the show cause procedures in obscenity cases to be sure that citizens are afforded full First Amendment protections, implementation of such a procedure does not authorize a violation of the Constitution. Law enforcement officials cannot seize a person’s property unless the seizure is based on probable cause. Simply because the magistrate says that this was not an unlawful seizure proscribed by the Fourth Amendment does not make it so. Bishop and Crossman, without Kolb’s consent, removed two of the six boxes from the back of Kolb’s pickup and confiscated the other four boxes as Kolb was attempting to load them. We believe that this taking, whether it be temporary or otherwise, is a seizure within the terms of the Fourth Amendment. No doubt there is a possibility that the defendants would not comply with the magistrate’s show cause order, or that the defendants might tamper with, or destroy, the evidence. But a court has ample authority to issue restraining orders to adequately insure that nothing happens to the evidence and to require that defendants abide by the show cause order. Demich, Inc. v. Ferdon, 426 F.2d 643 (9th Cir., 1970).

Attempting to validate Bishop’s confiscation of the six boxes, the government contends that the detention here m question is similar to that recognized by the Supreme Court in United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). A police officer and postal clerk in Van, Leeuwen temporarily detained two packages placed in the mail while investigating authorities discovered enough information to make out probable cause to support the issuance of a search warrant. Justice Douglas, writing for a unanimous court, noted that “[t]he nature and weight of the packages, the fictitious return address, and the British Columbia license plates of respondent who made the mailings . . . certainly justified detention, without a warrant, while an investigation was made.” Id. at 252. A search warrant was ultimately issued based on probable cause, the packages “opened, inspected, resealed, and promptly sent on their way.” Id. at 250.

In Van Leeuwen, however, the policeman merely removed the suspected parcels from the normal flow of the mails when they were initially deposited and replaced them after inspection in order for them to proceed on to their destination. , In the instant case, the boxes were not simply removed from the normal flow of the mails, but were seized after they had reached their destination, were claimed by defendant Kolb and two of the boxes were actually in his physical possession while the remaining four were in the process of being loaded on his truck. It was not until the boxes were actually within the recipient’s possession, or at least his control, that the government agents made their move and seized them. This difference, we think, takes the seizure of the six boxes outside the scope of the temporary detention recognized in Van Leeuwen.

Having concluded that the government agents’ confiscation of the six boxes at the local shipping terminal was a seizure within the meaning of the Fourth Amendment, we must now determine whether the seizure was based on probable cause. As noted previously, Bishop executed an affidavit in support of a warrant, and a warrant was issued based thereon. While the affidavit initially appears to set forth sufficient information to constitute probable cause for the seizure of the boxes, a closer examination reveals that the affidavit does not make out probable cause for two reasons. First, it is now plain that false statements in an affidavit can eviscerate the existence of probable cause. United States v. Thomas, 489 F.2d 664 (5th Cir., 1973). If the affiant intentionally makes false statements to mislead a judicial officer on application for a warrant, these falsehoods render the warrant invalid regardless of whether or not such statements are material to establishing probable cause. If the warrant contains false statements not intentionally made to mislead but are material to the establishment of probable cause, the material falsehoods must be excised from the warrant and the remaining information examined to see if it independently constitutes probable cause. United States v. Thomas, supra. If the affidavit, after excising material falsehoods, fails to set forth sufficient information to make out probable cause, the warrant issued on the basis of the affidavit is, of course, invalid.

Applying these principles to the case at hand, it is necessary to delete any statements to the effect that Bishop viewed the contents of any publication while he was in any of the book stores. It is undisputed that the only time Bishop was in any of the three stores was when he was in the Erotique near the conclusion of the state search and that he did not view any materials at that time. Yet the affidavit plainly misrepresents that he viewed obscene literature while he was in the book store. The only materials seen by Bishop were publications obtained by state agencies that he examined during his investigation prior to the state search and the materials obtained as a result of the state search. Since these statements in the affidavit are false and material to the establishment of probable cause, they cannot be considered in determining whether there was probable cause for the seizure of the six boxes.

Second, it is necessary to delete information in the affidavit that was obtained as a result of an unlawful search and seizure conducted by state officials. The government does not dispute, and . the district court concluded, that the state’s massive confiscation of all the materials in all three book stores violated defendants’ Fourth Amendment rights. As evidence unlawfully seized by state authorities cannot be used as the basis of a federal prosecution, likewise information obtained as a result of the unlawful state seizure may not be set forth in an affidavit to establish probable cause for a subsequent federal search. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L.Ed.2d 1669 (1960).

In view of this principle, we must exclude from the determination of probable cause any information obtained as a consequence of the illegal state seizure. The affidavit specifically states that the affiant observed the inventory of the Eros and Place book stores after the inventory had been seized and removed to the El Paso City Jail. Thus, references to the examination of publications noted at that time must be excised from our determination of whether probable cause existed for the seizure of the six boxes.

Excluding both the material falsehoods and the information obtained as a result of the illegal state seizure, the affidavit in question reads as follows:

“My name is Robert Bishop. I am a Special Agent of the Federal Bureau of Investigation, and I have personal knowledge or reliable information concerning the matters set forth in this affidavit. Since on or about July 15, 1971 and continuing up to the present time, I have been working with investigations concerning possible violations of 18 U.S.C. § 1462 by the owners of Eros Bookstore, the Place Bookstore, and Erotique Bookstore, all of which stores are located in El Paso, Texas.
“I am familiar with the procedure by which the books, magazines and novelties which I have described in this affidavit are shipped from California via interstate carrier to El Paso, Texas, and delivered to Eros, the Place, and Erotique, here in El Paso, Texas. The six boxes now on the premises located at 2216 E. Yandell Street, are the same type boxes which I have observed in the past as containing books, magazines, and novelties sent to Eros, the Place and Erotique in El Paso, Texas. I have observed the shipping documents concerning the six boxes located at 2216 E. Yandell Street in El Paso, Texas. I am familiar with the business and activities of the consignee of the six boxes, and based upon personal knowledge, I have reason to believe that the six boxes contain books, magazines and novelties which are obscene, lewd and lascivious, and which were knowingly shipped by common carrier in interstate commerce.”

This affidavit, after the appropriate excisions, does not contain sufficient information to establish probable cause. It contains nothing more than Bishop’s statements that he conducted an investigation, that he was familiar with the manner in which obscene materials are shipped into Texas, and that these boxes were similar to those he had seen previously. But the evidence established at the motion to suppress hearing demonstrated that the shipments he had previously observed had different external markings, were not shipped from All Star Distributors, and were shipped by way of a different shipping firm. Furthermore, he testified that his examination of the shipping documents revealed nothing about the contents of the boxes. Without any specific knowledge that these boxes contained obscene materials, the affiant’s statements show nothing more than assertions and conclusions of suspected criminal activity that are unsupported by the facts related in his affidavit and thus do not establish probable cause. Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933).

Having concluded that the affidavit was insufficient to establish probable cause and thus the warrant based on the affidavit is invalid, the facts of this case are distilled down to a situation similar to Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). In Roaden a county sheriff in Kentucky viewed a film at a drive-in theater and, based on his own predisposition, concluded that it was obscene. Without a prior determination by a judicial officer of the obscene nature of the film or a warrant, the sheriff arrested Roaden, the manager of the theater, and seized a copy of the film. The Supreme Court held that such a seizure was invalid. Reiterating that the seizure of books and film arguably protected by the First Amendment is to be assessed in light of a “higher . . . hurdle of reasonableness” than the seizure of dangerous weapons or stolen goods, the Court concluded that law enforcement officers should not make this determination based on their subjective determinations of obscenity. In order to fully protect First Amendment rights, the officers should retire to an impartial judicial officer for the determination of whether probable cause, measured by a higher standard, exists for the seizure of alleged obscene materials. Likewise, Bishop in this case, without the authority of a valid warrant and based on his own assumption that the boxes contained legally obscene literature, seized the six boxes of alleged obscene materials. This seizure contravened defendants’ rights against unreasonable seizures under the Fourth Amendment.

The defendants’ convictions are reversed.

      . Section 1462 provides in pertinent part as follows:
      “Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce—
      “(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character ;
      “Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.”

      . The defendants also raise in their brief the argument that § 1462 is unconstitutional because it is vague. They conceded at oral argument, however, that this contention was resolved by this court in United States v. Thevis, 484 F.2d 1149 (5th Cir., 1973).

      . While Hogervorst was tried along with Hunt and Kolb, the trial court granted his motion for judgment of acquittal.

      . After describing the six boxes to be seized, the warrant provides:
      “You are hereby ORDERED not to execute this search warrant unless you are satisfied and convinced that the custodian of the 6 boxes described herein will not comply with the order to show cause why a search warrant should not be issued which is attached to and made part of this search warrant. In the event the search warrant is executed, the 6 boxes described herein are to be delivered immediately to the Magistrate’s Court without being opened or otherwise disturbed in any manner.”
      We note this provision of the warrant with disapproval, because it delegates to the executing officer far too much discretion in determining whether the materials are to be seized or not. See Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (1957).

      . In United States v. Rich, 407 F.2d 934 (5th Cir., 1969), Judge Ainsworth specifically noted that the seizure of obscene materials was made under the authority of a warrant. The only question in that case was whether the affidavits set forth sufficient information to establish probable cause, and we concluded that there was. The seizure, under the authority of a valid warrant, was not a violation of the Fourth Amendment.
      Equally unauthoritative is United States v. One Carton Containing a Quantity of Paperback Books, 324 F.Supp. 957 (N.D.Ga., 1971).
      In One Oarton the carton containing the books was broken in transit and agents of the common carrier noticed that it contained books with photographs portraying sexual conduct between men and women. The contents of the package was plainly known to the agents of the carrier. Additionally, however, the government never seized the package itself from the carrier. Instead, an agent of the carrier produced the package at the show cause hearing.
      In United States v. Little Beaver Theatre, Inc., 324 F.Supp. 120 (S.D.Fla., 1971), the trial court, after application for a warrant based on an affidavit, entered a temporary restraining order to prevent any interested person from disposing of or altering the alleged obscene film. At all times prior to the show cause hearing, the film was in the possession of respondents. The film was not seized by the government until after probable cause for issuance of the warrant was established at the show cause hearing.
      Similarly, in United States v. Fifty Magazines, 323 F.Supp. 395 (D.R.I., 1971), there was no seizure by government agents of any obscene publications. The custodian of the materials was merely required to produce the publications pursuant to a subpoena duces tecum in order to conduct a prior adversary hearing as to their obscene nature.
      It is true, as the government argues, that a prior adversary hearing, such as a show cause hearing, can be held where possessors of alleged obscene materials have the opportunity to establish that the materials are not obscene and are therefore protected by the First Amendment. Maizels v. Van Hoomissen, 429 F.2d 982 (9th Cir., 1970); Demich, Inc. v. Ferdon, 426 F.2d 643 (9th Cir., 1970). Such a procedure, conducted in deference to the First Amendment, does not authorize a seizure of publications without a warrant or probable cause in violation of the Fourth Amendment that is justified on the basis of a hearing held subsequent to the seizure where probable cause is sought to be established retroactively.
      The only cases cited by the government that offer support for such a proposition are United States v. Strand Art Theatre Corp., 325 F.Supp. 256 (W.D.Mo., 1970), and United States v. Berger, 325 F.Supp. 249 (W.D.Mo., 1970). In these cases, however, the court did not specifically confront the issue of whether the seizure, without a valid warrant or probable cause, of alleged obscene materials when in the possession of a common carrier was a violation of the Fourth Amendment.

      . The affidavit provides in full as follows:
      “My name is Robert Bishop. I am a Special Agent of the Federal Bureau of Investigation, and I have personal knowledge or reliable information concerning the matters set forth in this affidavit. Since on or about July 15, 1971 and continuing up to the present time, I have been working with investigations concerning possible violations of 18 U.S.C. § 1462 by the owners of Eros Bookstore, the Place Bookstore, and Erotique Bookstore, all of which stores are located in El Paso, Texas. I have personally visited the Erotique Bookstore and observed the inventory of books, magazines and novelties. All of the books and magazines which I have observed in Erotique contain photographs of lewd and lascivious sexual activities between nude men and nude women, between nude men and nude men, and between nude women and nude women. The books also contain descriptions of lewd and lascivious and unnatural sexual activities between animals and women. I did not observe any books, magazines, or novelties in the Erotique Bookstore which did not contain photographs or descriptions of lewd sexual activities. I have observed the inventory of the Eros Bookstore and the inventory of the Place Bookstore, after the inventory was seized by the El Paso Police Department pursuant to a search warrant, and the inventory consisted of books, magazines and novelties. All of the books and magazines contained photographs and descriptions of lewd and lascivious sexual activities between nude men and nude women, nude men and nude men, and nude women and nude women. The novelties consist of various devices related to sexual activities such as artificial male and female genitals and sexual organs, all of which are designed to appeal to the prurient interests. I have personally observed bills of lading showing shipment of these books, magazines and novelties from various points in California to El Paso via common carriers.
      “I am familiar with the procedure by which the books, magazines and novelties which I have described in this affidavit are shipped from California via interstate carrier to El Paso, Texas, and delivered to Eros, the Place, and Erotique, here in El Paso, Texas. The six boxes now on the premises located at 2216 E. Xandell Street, are the same type boxes which I have observed in the past as containing books, magazines, and novelties sent to Eros, the Place and Erotique in El Paso, Texas. I have observed the shipping documents concerning the six boxes located at 2216 E. Xandell Street in El Paso, Texas. I am familiar with the business and activities of the consignee of the six boxes, and based upon personal knowledge, I have reason to belieave that the six boxes contain books, magazines and novelties which are obscene, lewd and lascivious, and which were knowingly shipped by common carrier in interstate commerce.”
      We make no determination of whether this affidavit considered in its entirety sets forth sufficient information to constitute probable cause.