(dissenting in part).
I concur in the conclusion that the trial court has power to allow amendments to declarations of taking (including revision of estimated damages). The majority opinion finds the power to allow such amendments in the general, inherent power of courts to allow amendments; and with this view I have no difference though I would place it upon the statutory expression of that power stated in Section 777, Title 28 U. S.C.A. As I read the opinion however, the judicial exercise of this inherent power is regarded as so limited that it is an abuse of sound discretion to refuse to allow such amendments of estimates where the good faith of the acquiring officer is not in question.' As I see it, the practical effect of such limitation is to hold that, barring bad faith, there is an absolute right to make such amendments. This view is based upon one of the purposes of the Declaration of Taking Act- — to hold down interest payments by t-he Government as a part of the damages. I am unable to accept this limitation upon the uáual exercise of judicial discretion in allowance of amendments — whether based upon inherent judicial power or upon Section 777.
The Act (§§ 258a-258e, Title 40 U.S. C.A.) is an additional or supplemental permissive right (§ 258a, § 258d, United States v. 76,800 Acres, etc., D.C.S.D.Ga., 44 F.Supp. 653, 654) given the Government for the main object of speedily acquiring title and possession pending determination of the amount of damages in a regular condemnation proceeding, thus avoiding the delays incident to final termination of such litigation. City of Oakland v. United States, 9 Cir., 124 F.2d 959, 964; United States v. 2,049.85 Acres of Land, D.C.S.D. Tex., 45 F.Supp. 731, 732; United States v. 76,800 Acres, etc., D.C.S.D.Ga., 44 F.Supp. 653, 654; United States v. .8677 Acre, etc., D.C.E.D.S.C., 42 F.Supp. 91, 98. When this right is exercised, the title vests upon the filing of the declaration and the making the deposit (§§ 258a and 258b) and the Court shall fix the time and terms of passing of possession. § 258a. The only issues remaining have to do with ascertainment of the amount and the payment of compensatory damages for the taking. United States v. .8677 Acre, etc., D.C.E.D.S.C., 42 F.Supp. 91, 98. Since the Government can constitutionally take property in advance of ascertainment of damages (Yearsley v. Ross Construction Co., 309 U.S. 18, 21, 60 S.Ct. 413, 84 L.Ed. 554), there was no constitutional need for any deposit to- enable the Government speedily to establish title and to secure possession. It would have been within the power of Congress to enact that title and right to possession should pass upon the mere filing of a declaration without deposit.
The purposes to be served by the deposit were two. United States v. Miller, 317 U.S. 369, 381, 63 S.Ct. 276, 87 L.Ed. -. One was to lessen the hardship to the landowner brought about by the sudden deprivation of his property- — often his only real estate and his home. This was accomplished by the deposit of an honestly estimated value of his property which he could withdraw on order of the Court. The other was to avoid or lessen interest charges against the Government to the extent of those upon the deposited amount.
The majority opinion, as I read it, is largely, if not entirely, influenced by the purpose of saving interest to the Government in its construction of this right of amendment of the estimate. I am unable to see that this purpose is more important than the other purpose of the Act, to-wit, to protect the difficult position of the unfortunate landowner who will, rather suddenly and without his consent, have his property and home taken from him and his life plans drastically altered. If a balance between these purposes must be made— which I think unnecessary — I would think protection of the landowners was the more important of the two. It can scarcely be *16the less weighty. Any change in the amount of deposit would certainly concern and affect the landowner as much as it would the Government. The Government has the exclusive advantage of making the initial estimate and the landowner has no way of compelling an increase thereof no matter how inadequate he may deem it nor how inadequate it may in fact be.1 It would seem simple justice to allow the landowner to be heard and court to exercise the usual discretion before the deposited estimate could be changed to his detriment.
I appreciate that the officers of the Government might discover that the initial estimate was, in their opinion, incorrect and they might wish to change it. I think they should then have an opportunity to make such change, but I do not think that opportunity should be an absolute right. Section 777 affords such opportunity but at the same time gives the landowner some chance to be heard in connection with a matter affecting his very real interests. Any change in estimate would, obviously, be the result of what the Government officials regarded as additional and more definite information as to value acquired by them after the initial estimate. Such information should not be difficult to present to the trial court. It can hardly be thought that a trial judge would not carefully weigh the reasons for change and be as zealous to protect the Government as to protect the landowner.
Altogether, I can see no necessity, in order to carry out the purposes of the Act, for construing the Act to give, in effect, an absolute right to amend declarations (including estimates and deposits). Therefore, I am constrained to disagree with such construction. Judged by the standard, which seems to me proper, I think no abuse of discretion is shown in denying these amended estimates, and, therefore, that the denial orders should stand.
While what has been heretofore stated expresses my views as to- the important issue, yet there is another- matter, dependent on this main issue, which must be worked out if I am to state what disposition should, in my judgment, be made of this case. That matter is appellant’s contention that even if the Court be not required to accept the amended Declaration of Taking and to reallocate the funds on deposit in accordance therewith, yet it erred in its method of computing interest. What the Court did was to allow interest from August 26, 1941 (date of original deposit) on the deficiency between the respective verdict amounts and the corresponding deposit either in the original or in the amended Declaration deposits, whichever was smaller. Applied to the several parcels, this method resulted as follows. As to parcels 7 and 69, the allowance was based on the original deposits which were smaller than the corresponding amended deposits.. As to the other parcels (8, 19, 70, 14, 71 and 16), the allowance was based upon the amended deposits which were smaller than the corresponding original deposits.
I think the Court was right as to parcels 7 and 69 and wrong as to the others. The reasons are (1) the Court denied in toto substitution of the amended deposits, thus leaving the original deposits as the only effective ones before the Court2; (2) the Act provides expressly that “interest shall not be allowed on so much thereof as shall have been paid into- the Court.”
Applying this conclusion to the figures here the results are as follows. Treating parcels 7, 8, 19 and 70 in group, as was done by the Court and not objected to by the parties, interest was allowable on $3,-550, being the difference between the verdict amounts ($16,350) and the original deposits ($12,800). Similarly treating parcels 14 and 71 in group, interest was allowable on $40, being the difference between the verdict amounts ($5,000) and the original deposits ($4,960). As to parcel 16, interest was allowable on $383, being the difference between the verdict amount ($17,983) and the original deposit ($17,-600). As to parcel 69, interest was allow*17able on $2,200 being the difference between the verdict ($3,000) and the original deposit ($800). As to all, interest dates from August 26, 1941 (date of the original deposit). The fact that smaller amounts were sought or were allowed withdrawn than the corresponding original deposits does not affect the amount subject to interest. The withdrawal provisions of the Act have no connection with the interest provisions.
I think the case should be remanded for modification of the judgments to accord with the above bases for calculation of interest and, when and as so modified, the judgments should be affirmed.
It is truly said that the estimate must be in good faith. This implies a right in the landowner to contest an estimate made in bad faith. But of what practical benefit is that right? The entire purpose of the deposit, in so far as he is concerned, is to furnish him an opportunity for getting approximate compensation promptly and before his damages are ascertained and paid. A contest of the good faith as to an estimate would largely, if not entirely, defeat the above purpose. Thus there is no workable relief for the landowner against even a bad faith estimate.
I think the Court had power to allow and to deny any separate parcel deposits sought in the amended Declaration but it denied all thus leaving only the deposits under the original Declaration.