143 F.2d 445 (9th Cir. 1944), 10398, United States v. Carey

Docket Nº10398.
Citation143 F.2d 445
Party NameUNITED STATES v. CAREY et al.
Case DateJune 19, 1944
CourtUnited States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 445

143 F.2d 445 (9th Cir. 1944)

UNITED STATES

v.

CAREY et al.

No. 10398.

United States Court of Appeals, Ninth Circuit.

June 19, 1944

Page 446

Norman M. Littell, Asst. Atty. Gen., Carl C. Donaugh, U.S. Atty., and James M. Dillard, Asst. U.S. Atty., both of Portland, Or., and Vernon L. Wilkinson, Wilma C. Martin, and Samuel Billingsley Hill, Jr. Atty., Department of Justice, all of Washington, D.C., for appellant.

J. W. McCulloch and Edwin D. Hicks, both of Portland, Or., for appellees.

Before WILBUR and MATHEWS, Circuit Judges, and McCORMICK, District judge.

McCORMICK, District Judge.

The United States appeals from an order of the district court dismissing a petition for condemnation, vacating a judgment on a declaration of taking, and striking the declaration of taking in the proceeding from the files of the court.

Epitomized, the record reveals the following situation: On June 14, 1935, the United States instituted proceedings to condemn approximately 3474.34 acres of land in Harney County, Oregon. The original petition for condemnation filed by the United States Attorney for the District of Oregon alleged that the proceeding was brought pursuant to the authority of the Act for the Relief of Unemployment through the Performance of Useful Public Works, approved March 31, 1933, 1 and pursuant to Executive Order No. 6724, dated May 28, 1934, authorizing the purchase or rental of land for emergency conservation work, and as authorized by the Act of Congress approved August 1, 1888. 2

The petition, which included appellees' real property as part of the lands sought

Page 447

to be acquired, further alleged that the Secretary of Agriculture had selected for acquisition the fee simple title to the realty described in the petition subject only to existing public highways and public utility easements, 'for use in the construction of useful public works and improvements in connection with Lake Malheur Migratory Waterfowl Refuge, 3 and for such other uses as may be authorized by Congress or by Executive Order.'

Concurrently with the petition in condemnation appellant filed a declaration of taking of the fee simple title to the lands described in the petition in accordance with the applicable Act of Congress, 4 and the sum estimated by the acquiring agency of the Government as just compensation for all the property taken, to-wit, $32, 227.26, was simultaneously deposited in the registry of the district court for the use and benefit of those having an interest in the acquired property.

Thereafter, on June 14, 1935, the district court entered ex parte a judgment determining that the United States was entitled to acquire the property for the purposes specified in the petition, confirming the passage and vesting of title by and in accordance with the declaration of taking, ordering the delivery of possession of the property taken, and holding open the cause for such other and further orders, judgments and decrees as might thereafter be necessary. 5

Upon further search and examination of the title to the lands taken it was ascertained that additional persons and entities had or might have had some interest in the property acquired and, accordingly, a supplement to the original petition was filed in the court below on July 19, 1935, making such other parties defendants in the condemnation proceeding. Thereafter summons issued in the cause.

The twenty parcels of property described in the original petition, in the declaration of taking and in the decree thereon, which aggregated the total acreage condemned, are specified lots located along what is known as the Neal survey line around Lake Malheur, Mud Lake and the Narrows, 6 and in such instruments there appears in amplification of the property condemned the following phrase 'and together with all right, title, claim and interest of the owners of said tracts to land lying within the Neal survey lines purporting to surround Malheur and Mud Lakes, and the Narrows.'

Throughout the pendency of the proceedings in the court below defendants and claimants in various parcels of the lands taken appeared and petitioned to withdraw their shares of deposits in the court's registry, and the amounts withdrawn and paid to such claimants by court order to March 25, 1943 aggregated $30, 836.83, leaving a balance in registry at such time of $1, 390.43. Many of those whose land was taken, in addition to accepting their respective shares of the deposited monies as compensation for the taking of their property, executed confirmatory deeds to the United States. Other defendants having or claiming an interest in the lands taken, who failed to timely appear, were subjected to default orders duly entered in the district court.

As the result of agreed settlements or defaults in the cause most of the issues were disposed of save those arising by the owners, appellees herein, of certain undivided interests in Parcels Numbers 16 and 31a, involving approximately 224.05 acres.

In September, 1935, the appellees filed a motion in the court below to require the United States to make more definite and certain that portion of the petition for condemnation concerning those lands within the Neal survey lines and in front of Tracts Numbers 16 and 31a which the Government sought to acquire. This motion raised numerous questions of riparian rights and titles to lands in Malheur Lake. To settle such issues the United States instituted an independent suit in the district court to quiet title.

On January 25, 1937, prior to this court's decision in the quiet title litigation, United States v. Otley, supra, upon stipulation of the affected parties, orally made in open court in the court below, appellees' undivided interests in Tracts Numbers 16 and 31a of the lands taken were severed and

Page 448

leave was given the Government to file an amended petition in the proceedings therein as against those interests, excluding therefrom any riparian rights and any portions of the property lying inside the Neal survey lines. Shortly thereafter amended petitions were filed amplifying in greater detail the averments in the original pleading of the authority for and the purpose of the proceeding and further alleging that the property set forth in the original petition as Tracts 16 and 31a did not include any riparian rights which appellees (defendants in the court below) may have claimed as appurtenant to their tracts, or any lands or waters inside the Neal survey lines or as meander lines of 'Malheur Lake', as shown by a specified official map on file with the Surveyor General.

On December 4, 1940, William J. George, Anna Carey and Eliza O. Shoemaker, owners of an undivided three-ninths interest in Parcel Number 16, and Gordon T. Carey, owner of an undivided one-half interest in Parcel Number 31a, four of appellees herein, jointly filed a motion to vacate the judgment on the declaration of taking and to dismiss petition of...

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13 cases
  • 234 F.2d 410 (2nd Cir. 1956), 287, United States v. 44.00 Acres of Land
    • United States
    • United States Court of Appeals (2nd Circuit)
    • June 12, 1956
    ...the final judgment was deposited on March 7, 1955. [5] United States v. Hayes, 9 Cir., 172 F.2d 677, 679; United States v. Carey, 9 Cir., 143 F.2d 445, 448-450; United States v. 165.1978 Acres of Land, etc., D.C.E.D.N.Y., 61 F.Supp. 362; cf. United States v. 6.74 Acres of Land, etc., 5 Cir.......
  • Starr v. C.I.R., 090976 FEDTAX, 8707-73
    • United States
    • Federal Cases United States Tax Court
    • September 9, 1976
    ...or the taxpayer's witnesses or documents) no contradictory evidence supporting the bare assessment. (citation omitted) Lawrence v. C.I.R., 143 F.2d 446 (9th Cir. 1944), the other case cited by the district court, stands for this proposition. United States v. Rexach, supra, 482 F.2d at 17 n.......
  • 163 F.Supp. 518 (D.Mont. 1958), Civ. 1952, United States v. Certain Interests in Property in Cascade County, Montana
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Court (Montana)
    • June 20, 1958
    ...of Taking, and its order so doing is void. (citing United States v. Hayes, 9 Cir., 172 F.2d 677, 679; and United States v. Carey, 9 Cir., 143 F.2d 445, 448-450.) We may concede, arguendo, that a court has jurisdiction to vacate a Declaration of Taking where, contrary to the implied requirem......
  • 287 F.2d 916 (Fed. Cir. 1961), 218-60, Travis v. United States
    • United States
    • Federal Cases Court of Federal Claims
    • March 1, 1961
    ...the condemnation suit, in the courts which have commented on this point. Under the facts in United States v. Carey et al., 9 Cir., 1944, 143 F.2d 445, it was held that the dismissal of the condemnation petition would not result in a divesting of the title acquired by the United States as a ......
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