88 F.2d 902 (7th Cir. 1937), 5942, Dieckmann v. United States

Docket Nº:5942.
Citation:88 F.2d 902
Case Date:February 16, 1937
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 902

88 F.2d 902 (7th Cir. 1937)




No. 5942.

United States Court of Appeals, Seventh Circuit.

February 16, 1937

Page 903

Andrew W. Kops and R. E. Noelker, both of Batesville, Ind., for appellant.

Harry W. Blair, Asst. Atty. Gen., Val Nolan, U.S. Atty., of Indianapolis, Ind., and Ralph S. Boyd, Sp. Atty., Department of Justice, of Washington, D.C., for the United States.

Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.

SPARKS, Circuit Judge.

This is an appeal from an order of the District Court overruling appellants' objections to the complaint and appointing appraisers for the assessment of damages to their land. The action involved was a condemnation proceeding with respect to land for use in connection with a demonstration recreational project alleged to be authorized by title 2 of the National Industrial Recovery Act, 48 Stat. 195 (section 201 et seq., 40 U.S.C.A. § 401 et seq.), and Executive Orders issued thereunder.

We are first confronted with appellee's motion to dismiss the appeal on the ground that it is not from a final order as contemplated by section 128 of the Judicial Code, as amended, 28 U.S.C.A. § 225.

No question is raised as to the government's right to exercise the power of eminent domain for all purposes set forth in the National Industrial Recovery Act, which are consonant with the Constitution, and it is conceded that if the purpose here involved is of that character and is within the purview of that Act, the right of eminent domain with respect to appellants' land, which lies in Indiana, must be exercised as near as may be, in conformity to the laws of that state, 40 U.S.C.A. § 258.

The pertinent sections of the Indiana statute are found in Burns' Annotated Statutes 1933, Sec. 3-1705 (7684) et seq. This statute provides that any defendant may object in writing to such proceedings on the ground that the court has no jurisdiction either of the subject matter or of the person, or that the plaintiff has no right to exercise the power of eminent domain for the use sought, or for any other reason disclosed in the complaint or set up in such objections.

The statute further provides that if the land owner's objections to the complaint for condemnation are overruled, the court or judge shall appoint appraisers, and from such interlocutory order overruling such objections and appointing appraisers the land owner may appeal to the Supreme Court, but the appeal shall not stay the proceedings. Thereafter the appraisers shall determine and report the value of the land and improvement and the damage resulting to the owner by virtue of the appropriation. Either party may contest the amount of damages or benefits, and upon the evidence adduced at that trial the court, as in civil actions, may render such findings and judgment as may seem just. From that judgment as to...

To continue reading