United States v. Agee

• Citation: 322 F.2d 139
• Decision Date: 30 August 1963
• Docket Number: No. 15161.,15161.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arison AGEE, etc., et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

322 F.2d 139 (1963)

UNITED STATES of America, Plaintiff-Appellee, v. Arison AGEE, etc., et al., Defendants-Appellants.

No. 15161.

United States Court of Appeals Sixth Circuit.

August 30, 1963.

Z. T. Osborn, Jr., Nashville, Tenn., for appellants, C. Allen High, Denney, Leftwich & Osborn, Nashville, Tenn., on the brief.

Elizabeth Dudley, Atty., Dept. of Justice, Washington, D. C., for appellee, Ramsey Clark, Asst. Atty. Gen., Kenneth Harwell, U. S. Atty., Nashville, Tenn., Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., on the brief.

Before CECIL, Chief Judge, and MILLER and PHILLIPS, Circuit Judges.

PHILLIPS, Circuit Judge.

This is an eminent domain proceeding involving the right of the United States to condemn certain land in Wilson County, Tennessee, selected by the Secretary of the Army for acquisition in connection with the Old Hickory Lock and Dam on the Cumberland River.

The tract in question was owned by Arison W. Agee, now deceased, who was non compos mentis and an inmate of a mental institution at the time of the taking. Following the death of Agee, the case was revived in the name of his heirs and the administrator of his estate.

Condemnation of the land is sought by authority of the Declaration of Taking Act of February 26, 1931, 46 Stat. 1421, 40 U.S.C. § 258a; the general condemnation Act of April 24, 1888, 25 Stat. 94, 33 U.S.C. § 591; the Act of July 24, 1946, 60 Stat. 634, 636, which approved the Old Hickory Lock and Dam and other projects; and the Act of July 27, 1953, 67 Stat. 197, which appropriated funds for the project.

The Agee tract contains 57.6 acres and is located within twenty miles of the dam. A portion of the tract comprising 24.6 acres is below the high water line of the reservoir. The access road to the remaining 33 acres is also below the high water line. The right to take the 24.6 acre portion of the tract is not contested. The guardian ad litem, appointed by the court for the landowner, by supplemental answer challenged the Government's right to take the 33 acres above the high water line, insisting that this 33 acre portion of the tract was not needed for the project, that it was not taken for public use, and that the determination by the Secretary of the Army in selecting this portion of the tract for condemnation was arbitrary, capricious and made in bad faith. The guardian ad litem prayed that the order taking the land above the high water mark be set aside and the title restored to the landowner, and for a temporary injunction.

It was contended on behalf of the United States that the determination by the Secretary of the Army to condemn the land above the high water mark is final and not subject to judicial review and that the question of whether the decision was arbitrary and capricious and made in bad faith presents no issue justiciable in the courts; and further that there is nothing in the record to establish arbitrariness, capriciousness or bad faith on the part of the officials in taking the entire tract.

The District Court held that, while the scope of judicial review of administrative decisions as to what lands are to be acquired in condemnation proceedings is extremely narrow, there is no controlling authority foreclosing the power of the court to set aside a taking where the designated officials responsible for the taking have acted in bad faith. The trial court then proceeded to consider the case on its merits and found that the Government officials did not act in bad faith in taking the 33 acres above the high water mark.

In his opinion the District Judge found that the basic plans for the project required the acquisition of all lands lying below 451 feet mean sea level and that the taking line generally followed the 451-foot contour; that deviations were made in some instances to acquire areas above the 451-foot elevation for public access sites and for other purposes directly connected with the maintenance and operation of the project; additionally, that where the 451-foot contour traversed a tract and destroyed the access, and the cost of providing new access exceeded the value of the land, it was the policy of the Corps of Engineers to take the entire tract; that in such cases if the landowner, despite the loss of access, desired to keep the unaffected portion of his land and agreed to waive severance damages, he was permitted to do so; that while other property owners in the vicinity who were willing to waive severance damages were permitted to keep unaffected portions of their land, Agee was not offered this choice because he was mentally incompetent to have executed a binding agreement; that, if Agee had been capable of making such an agreement, he would have been afforded an opportunity to waive severance damages and retain the lands not flooded; that, after the taking, the value of lands in the vicinity have increased substantially; and that the tract in question subsequently has been leased to the Girl Scouts of America, a nonprofit organization, for a rental of one dollar.

In this court appellants contend that the landowner was deprived of property without due process of law in that (1) the privilege of retaining unflooded lands was accorded other property owners electing to waive severance damages, but denied to Agee because he was non compos mentis and incapable of entering into a binding agreement; (2) the administrative representative of the Corps of Engineers made a determination that the cost of providing access would exceed the value of the remainder of the tract where no standards had been fixed by the condemning authority for the determination of this question; and (3) the United States had no present use and no plan for future use of the unflooded lands at the time of the taking.

Appellee makes no attempt to reverse the decision of the District Court in favor of the United States, but contends that the District Court took a mistaken view of its scope of review, in that neither the District Court nor this Court is authorized to investigate and weigh the soundness of the reasons of the administrative authority for taking all of this tract of land, rather than the portion of it below the high water mark. Appellee further contends that if it be assumed that the District Court had authority to re-examine this question, its conclusions were correct.

First we consider the question of the scope of judicial review. Appellee urges that the District Court and this court are foreclosed absolutely from reviewing the decision of the condemning authority. We are unwilling so to hold, though it is well-established that the scope of judicial review of administrative determinations in eminent domain proceedings is extremely narrow. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27; United States v. Certain Real Estate Lying on the South Side of Broad Street, 217 F.2d 920 (C.A. 6).

The case of United States ex rel. T. V. A. v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843, is relied upon by appellee as authority for the proposition that there can be no judicial review. We do not so interpret the case, and construe it to be authority supporting the action of the District Court. It is true that Mr. Justice Reed raised the question in his concurring opinion as to whether the opinion of the Court implied that there was no judicial review of T.V.A.'s determination to condemn isolated lands which would not be flooded in the Fontana Dam project, saying: "This taking is for a public purpose but whether it is or is not is a judicial question," and that "the constitutional doctrine of the Separation of Powers would be unduly restricted if an administrative agency could invoke a so-called political power so as to immunize its action against judicial examination in contests between the agency and the citizen." 327 U.S. at 556-557, 66 S.Ct. at 720 (concurring opinion).

Mr. Justice Frankfurter did not read any such implication into the opinion of the Court, saying in his concurring opinion: "This Court has never deviated from the view that under the Constitution a claim that a taking is not `for public use' is open for...