United States v. Oregon Ry. & Nav. Co.

• Decision Date: 01 June 1883
• Court: U.S. District Court — District of Oregon
• Parties: UNITED STATES v. OREGON RY. & NAV. CO.

16 F. 524

UNITED STATES v. OREGON RY. & NAV. CO.

United States Circuit Court, D. Oregon.

June 1, 1883

James F. Watson, for the United States.

Joseph N. Dolph, for defendant.

DEADY J.

This action is brought by the United States to procure the condemnation of four parcels of land, containing in the aggregate about 40 acres, belonging to the defendant, and situate in the county of Wasco, Oregon, for the use of the canal now being constructed by the plaintiff around the cascades of the Columbia river, in Oregon. The defendant demurs to the complaint for that (1) the court has no jurisdiction of the subject-matter; (2) that the plaintiff has no legal capacity to sue; and (3) that the complaint does not state facts sufficient to constitute a cause of action. The complaint alleges that the defendant is a corporation formed and existing under the laws of Oregon, with its principal office at Portland, and is the owner and in the possession of the four tracts of land sought to be condemned-- describing them with metes and bounds, and with reference to the canal; that in the construction of said canal locks and dams are required that all and every of said parcels of land are actually necessary for the construction and operation of said canal and to that end they have been selected by an authorized agent of the plaintiff, acting under the direction of the secretary of war; and that the defendant refuses to sell said parcels of land, or either of them, to the plaintiff at a reasonable price, and concludes with a prayer 'that the compensation to be paid for the said premises may be determined in the manner provided by law, and when the amount thereof shall be so determined and paid into court,' that judgment may be given condemning the said lands to the uses of the aforesaid.

By section 1 of the river and harbor act of August 14, 1876, (19 St. 138,) there was appropriated $90,000 'for the construction of a canal around the cascades of the Columbia river,' of which amount the secretary of was was authorized 'to expend so much as in his judgment may be necessary and proper to secure title and right of way for canal and locks, not exceeding $10,000. ' It was also provided in said section that if it became necessary 'to obtain the right of way over any lands for the said canal and locks, the secretary of war shall take possession of and use said lands after having purchased the same; or, in case the said lands cannot be purchased for a reasonable price; then after having paid for the same, or secured the value thereof, which value may be ascertained in the mode provided by the laws of Oregon for the condemnation of lands for public uses in the state, the department of justice shall represent the interests of the United States in any legal proceedings under this act to obtain the right of way for said canal.'

By the act of June 18, 1878, (20 St. 157,) there was appropriated $150,000 'for constructing a canal around the cascades of the Columbia;' and by that of June 14, 1880, (21 St. 189,) an appropriation of $100,000 was made for 'continuing operations' in constructing said canal. This was followed by an appropriation of $265,000 for the same purpose, contained in the act of August 2, 1882, (22 St. 205.)

By the said act of June 14, 1880, (21 St. 193,) it was further provided that--

'Such parts of the money appropriated by this act for any particular improvement, may be expended in the purchase, voluntarily or by condemnation, as the case may be, of necessary sites: provided, that such expenditure shall be under the direction of the secretary of war: and provided further, that if the owners of such lands shall refuse to sell them at reasonable prices, then the prices to be paid shall be determined, and the title and jurisdiction procured, in the manner prescribed by the laws of the state in which such lands or sites are situated.'

On the argument of the demurrer, counsel for the defendant made the following points:

(1) It does not appear that any portion of the appropriation of 1876 or 1880 is still unexpended, and therefore it does not appear that the plaintiff is now authorized to purchase, or can purchase, the premises; even if the 'price' was ascertained by agreement or otherwise; (2) the facts stated do not authorize the plaintiff to maintain a suit to condemn the premises; and (3) the facts showing the necessity of appropriating the lands for the purpose in question, or the inability to agree with the defendant concerning the price thereof, or that the defendant will not sell the same at a reasonable price, or the value of the premises, are not alleged, and therefore the plaintiff is not authorized to maintain this action; citing Or. Ry. & Nav. Co. v. Or. R.E. Co. in MS. Oct. term, 1882, of the Oregon supreme court, in which it is held that a corporation cannot maintain an action to appropriate a right of way over the lands of another without alleging and proving that the parties were unable to agree as to the compensation to be paid therefor.

Notwithstanding the awkward and confused language of the provisions in the acts of 1876 and 1880, supra, they may be fairly interpreted as at least authorizing the United States, by the department of justice, to institute and maintain legal proceedings to ascertain the value to any lands which, in the judgment of the secretary of war, are necessary and proper to secure the right of way for the line of the canal and locks, and so much of the adjacent land as may be necessary and proper for their convenient construction, operation, and maintenance. And this proceeding is to be according to the mode provided by the laws of this state for the appropriation of land to public uses. This 'mode' is provided for in title 3 of the corporation act, (Or. Laws, 533,) by which a corporation desiring 'to appropriate lands or the right of way' is authorized to maintain an action therefor, in which the right to make such appropriation and the value thereof are tried and determined as in an ordinary action at law.

The government of the United States has the right of eminent domain, and may exercise it within a state whenever necessary to the exercise of any of the powers conferred upon it by the constitution; and no question is made b0 that the construction of this canal and locks is an exercise of such power. In the exercise of this right it is not restrained by any constitutional limitation, except that it is bound to make or provide a just compensation to the owner for the property taken. Kohl v. U.S. 91 U.S. 367; Cooley, Const. Lim. 526; Fifth Amendment to the Const.

The right to appropriate private property to public use rests with the legislative power. A legislative act may declare the necessity of the appropriation. And, such acts being 'the law of the land,' no other or further adjudication is necessary on this point. Cooley, Const. Lim. 527.

In this case congress has not absolutely or directly selected any land at the cascades for the use of the canal, nor declared that there is a...