United States v. Marin
| Decision Date | 11 June 1943 |
| Docket Number | No. 10357.,10357. |
| Citation | 136 F.2d 388 |
| Parties | UNITED STATES v. MARIN. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Norman M. Littell, Asst. Atty. Gen., M. Mitchell Bourquin, Sp. Asst. to the Atty. Gen., and Vernon L. Wilkinson and Roger P. Marquis, Attys., Dept. of Justice, both of Washington, D. C., for appellant.
Charles O. Bruce and Francis T. Cornish, both of Berkeley, Cal., for appellee.
Before MATHEWS, STEPHENS, and HEALY, Circuit Judges.
The United States instituted suit to condemn 1.9 acres of land in Berkeley, California, and at the same time filed a declaration of taking pursuant to the Act of February 26, 1931, 46 Stat. 1421, 40 U.S. C.A. § 258a et seq. Estimated compensation of $26,651 was deposited, of which sum $1,200 was allocated to a parcel owned by appellee. The usual ex parte judgment was entered the same day and immediate delivery of possession ordered.
The other owners do not appear to have contested the suit, but appellee answered alleging that the taking was not for a public use. Following a motion to dismiss, interposed by appellee, the government was permitted to amend its complaint. As amended the complaint alleged that condemnation was sought pursuant to certain designated statutes, and that "the land hereinafter described is taken and condemned under the authority of the abovementioned Acts of Congress for the uses and purposes authorized by said Acts, and is sought and taken by the plaintiff for the establishment of essential equipment and facilities for the expansion of the American Forge Company, Berkeley, California, for use in the production of steel forgings for naval purposes; that said use of said land constitutes a public use and said lands have been selected by the Acting Secretary of the Navy for acquisition for said purposes and uses above stated. * * *"
The motion to dismiss was thereupon renewed and was granted, the judgment of dismissal reciting that "the use and purpose for which said real property is sought and taken is for a private use and not for a public use." From this judgment the government appeals.
Among the acts of Congress referred to in the complaint, and relied on as affording a basis for the taking, is the Act of July 29, 1941, 55 Stat. 608, appropriating funds for naval construction and repair and authorizing execution of the work at "either private or naval establishments." The Act grants authority to acquire such lands as the Secretary of the Navy, with the approval of the President, may deem best suited to the purpose in hand. From the report of the House Committee submitting this legislation (H. Rep. No. 934, 77th Cong. 1st Sess.) it is plain that the Act was passed for the specific purpose of acquiring lands and constructing buildings so as to enlarge the facilities of private concerns engaged in the production of essential naval material. The report lists the production of steel forgings and castings as an activity in which serious bottlenecks had developed, necessitating further plant expansion. It states that "additional equipment and facilities in both Government and private yards are an urgent need." A table in the report lists the plant of the American Forge Company, a producer of forgings and castings, as among those which may be expected to expand.1
Also mentioned in the complaint is the Second War Powers Act of March 27, 1942, Ch. 199, Public Law 507, 50 U.S.C.A. Appendix, § 631 et seq. Title II of this statute amended the Act of July 2, 1917, 40 Stat. 241, 50 U.S.C.A.Appendix, § 632, by providing that "the Secretary of War, the Secretary of the Navy, or any other officer, board, commission, or governmental corporation authorized by the President, may acquire by purchase, donation, or other means of transfer, or may cause proceedings to be instituted in any court having jurisdiction of such proceedings, to acquire by condemnation, any real property * * * that shall be deemed necessary, for military, naval, or other war purposes, such proceedings to...
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Catlin v. United States
...have been an end of the litigation and appeal would lie within Section 128. United States v. Carey, 9 Cir., 143 F.2d 445; United States v. Marin, 9 Cir., 136 F.2d 388. But denial of a motion to dismiss, even when the motion is based upon jurisdictional grounds, is not immediately reviewable......
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United States v. CERTAIN REAL ESTATE, ETC.
...and "appeal would lie within Section 128." The Supreme Court cited United States v. Carey, 9 Cir., 143 F.2d 445, 450 and United States v. Marin, 9 Cir., 136 F.2d 388. In the first-cited case, the Court of Appeals held that where the Government had filed a declaration of taking and had depos......
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United States v. Kansas City, Kan.
...States to acquire property by condemnation and transfer it to others in aid of the national defense cannot be doubted. United States v. Marin, 9 Cir., 136 F.2d 388, and cases there cited; City of Oakland v. United States, 9 Cir., 124 F.2d 959. See, also, Brown v. United States, 263 U.S. 78,......
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Lake Charles Harbor & Terminal District v. Henning
...be the only user would not necessarily convert the proposed storage area into a private boon for that company. Cf. United States v. Marin, 136 F.2d 388 (9th Cir. 1943).5 The record clearly shows that a place for bulk storage of liquids is an essential constituent in the board's overall plan......