United States v. 2,606.84 Acres of Land in Tarrant Co., Tex.
Decision Date | 09 November 1970 |
Docket Number | No. 28390.,28390. |
Citation | 432 F.2d 1286 |
Parties | UNITED STATES of America, Plaintiff-Appellant, v. 2,606.84 ACRES OF LAND IN TARRANT COUNTY, TEXAS, and Frank Corn, et al., Defendants-Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
Shiro Kashiwa, Asst. Atty. Gen., Eldon B. Mahon, U. S. Atty., Fort Worth, Tex., Claude D. Brown, Asst. U. S. Atty., Fort Worth, Tex., Roger P. Marquis, Robert McKee, George R. Hyde, Attys., Department of Justice, Washington, D. C., for the appellant.
Cantey, Hanger, Gooch, Cravens & Munn, R. Daniel Settle, Carlisle Cravens, Fort Worth, Tex., for appellees; Cantey, Hanger, Gooch, Cravens & Munn, Fort Worth, Tex., of counsel.
Before GEWIN, GOLDBERG and SIMPSON, Circuit Judges.
In this condemnation proceeding the government appeals from a final judgment setting aside a declaration of taking1 for the Benbrook Dam and Reservoir in Tarrant County, Texas. The judicial asides and interregnum of the Benbrook project cover a span of many years, and mere time has not laid its problems to rest. Now, more than twenty years after the land was taken by the United States and years after water began to flow over its spillway, we must test its birth and development for legitimacy.
Richardson, the landowner, filed an answer objecting to the taking of his property on the grounds that the taking transgressed legislative purposes and that the proposed construction departed from authorized project specifications. Specifically, Richardson alleged first that the fee interest in his land above a certain level was not sought for the purposes sanctioned by Public Law 14 and espoused by the Secretary of the Army — the construction and operation of Benbrook Dam — but was earmarked for recreational use, a purpose not authorized by Congress. Second, Richardson argued that the dam and reservoir being constructed were a substantial departure from and at variance with the public work described in H.D. 403 and authorized by Public Law 14, and that the Secretary's attempt to take the land was arbitrary and capricious because unauthorized by law.
After a fifteen-year delay2 and the death of the landowner, proceedings on this claim were finally held before the district court sitting without a jury. The court made copious findings of fact and concluded that the land lying above 697.1 foot elevation (647 acres) was taken for a recreational purpose and that condemnation for such a purpose was not authorized by Public Law 14. The trial court further concluded that the entire taking was without authority because the dam and reservoir as actually built were materially changed from the project authorized by Congress. The court determined, however, that the landowner had validly waived his right to contest the taking of the area below elevation 697.1. Accordingly, the court vested title to the 560 acres below elevation 697.1 in the United States. Title to the 647 acres above elevation 697.1 was vested in the Estate of Sid W. Richardson. The United States appealed from this determination. Disagreeing with the conclusion of the trial court, we are compelled to reverse.
The landowner's first contention is that the government, through the Secretary of the Army, attempted to condemn land for recreation, a purpose not authorized by Congress. The trial court agreed, finding that the land above elevation 697.1 was taken solely for recreation and that recreation was a purpose not authorized by Congress in Public Law 14. The trial court apparently reached this conclusion because it found evidence in the record that the Corps of Engineers had some recreational facilities planned for the area and further found that Richardson's land was not necessary for either the construction or operation of the Benbrook Dam and Reservoir. In other words, the trial court found that the Secretary's stated purpose for the taking — the construction and operation of the project — was not the real purpose for which the land was condemned. The court reached this conclusion by finding that the land was not necessary to achieve that stated purpose. We think that in so finding the court overstepped the bounds of judicial review in condemnation cases.
This court later made the same observations in West, Inc. v. United States, 5 Cir. 1967, 374 F.2d 218, wherein we said:
Accord, Shoemaker v. United States, 1893, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170; O'Brien v. United States, 5 Cir. 1968, 392 F.2d 949; Wilson v. United States, 10 Cir. 1965, 350 F.2d 901; 2,953.5 Acres of Land, etc. v. United States, 5 Cir. 1965, 350 F.2d 356; United States v. 91.69 Acres of Land, 4 Cir. 1964, 334 F.2d 229.
The district court attempted to take the present case out of this rule of non-justiciability by characterizing the question as one of purpose rather than necessity. Instead of finding outright that the land was not needed for the stated purpose, the court concluded that the purpose stated by the Secretary of the Army in the declaration of taking was not the real purpose for the taking and that the real purpoes, recreation, was unauthorized. We do not...
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