Barnidge v. United States, No. 11282.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtSTONE, GARDNER, and THOMAS, Circuit
Citation101 F.2d 295
PartiesBARNIDGE v. UNITED STATES.
Decision Date27 January 1939
Docket NumberNo. 11282.

101 F.2d 295 (1939)

BARNIDGE
v.
UNITED STATES.
*

No. 11282.

Circuit Court of Appeals, Eighth Circuit.

January 27, 1939.


101 F.2d 296

Norman Begeman, of St. Louis, Mo. (Julius T. Muench, of St. Louis, Mo., on the brief), for appellant.

Charles R. Denny, Jr., of Washington, D. C., Atty., Department of Justice, and Harry C. Blanton, U. S. Atty., of Sikeston, Mo. (Carl McFarland, Asst. Atty. Gen., A. T. Welborn, Asst. U. S. Atty., of St. Louis, Mo., and Oscar Provost, Atty., Department of Justice, and Philip Nichols, Jr., Atty., Department of Justice, both of Washington, D. C., on the brief), for the United States.

Before STONE, GARDNER, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a judgment in eminent domain proceedings, which were brought under the Act of Congress of August 21, 1935, 16 U.S.C.A. § 461 et seq., known as the Historic Sites Act. The Secretary of the Interior, acting under the Historic Sites Act, determined that certain lands in the City of St. Louis, Missouri, possessed exceptional value as commemorating or illustrating the history of the United States. Thereupon, the President, by Executive Order of December 21, 1935, No. 7253, after reciting that by this Act Congress had declared a national policy to preserve for public use historic sites, buildings and objects of national significance for the inspiration and benefit of the people of the United States, and that the Secretary of the Interior had determined that certain described lands situated on the banks of the Mississippi River at and near the site of Old St. Louis, Missouri, possessed exceptional value as commemorating or illustrating the history of the United States and were a historic site, and that the City of St. Louis had agreed to contribute for the project the sum of $2,250,000, allocated to the Secretary of the Interior from the funds made available by the Emergency Relief Appropriation Act 1935, 49 Stat. 115, the sum of $6,750,000, which, with the sum of $2,250,000 to be contributed by the City of St. Louis, would make available for the said project a total sum of $9,000,000, and authorized and directed the Secretary to expend said sum in acquiring the said property and in developing and preserving it for the purposes of the Act. The City of St. Louis, pursuant to the provisions of the Act, deposited the sum of $2,250,000 to the credit of the Treasury in the Federal Reserve Bank at St. Louis. On the request of the Secretary of the Interior, this condemnation proceeding was then instituted.

The appellant filed an answer to the petition in condemnation, in which he alleged, among other things, (1) that the Historic Sites Act did not authorize condemnation of land; (2) that the use for which the land was sought was not a public use; (3) that the Historic Sites Act was an unconstitutional delegation of legislative power; and (4) that no funds were available to pay any awards in the proceeding. The Government moved to strike parts of this answer as argumentative, and as stating only erroneous conclusions of law. The lower court granted the motion. The appellant then made an offer of proof, purporting to sustain the issues raised by his answer, and this offer was rejected.

The lower court then appointed commissioners to view the land for the purpose

101 F.2d 297
of fixing the compensation to which the owners were entitled. Appellant excepted to the appointment of commissioners on substantially the same grounds which he had set out in his answer. The commissioners reported that damages and compensation for the taking of appellant's land were $13,200. Appellant filed exceptions to the commissioners' report, which were overruled. The Government also excepted to the commissioners' report on the sole ground that the award was excessive. The lower court heard the parties on the exceptions filed, and received testimony on the question of value. In the course of this hearing, appellant withdrew his exception as to the amount of the award, but proffered testimony in support of his contention that the site was not historic because the buildings on it were not historic. The lower court entered findings and judgment by which the commissioners' award was reduced to $11,000

It has been stipulated that assignments of error based upon the action of the court in reducing the amount of the commissioners' award are withdrawn, but it is agreed that if we shall hold that the United States had the right to condemn the property, judgment should be ordered entered restoring the original commissioners' award of $13,200.

In seeking reversal, appellant in effect contends: (1) the court erred in sustaining the Government's motion to strike parts of appellant's answer; (2) there is no authority in the Historic Sites Act, or other Acts of Congress, to condemn the property of appellant for the purposes of the Historic Sites Act; (3) the use described in the Historic Sites Act is not a public one for which land may be taken by eminent domain; (4) the lands sought to be taken are not necessary for the effectuation of the purposes of the Historic Sites Act; (5) the Historic Sites Act unconstitutionally delegates legislative power.

In support of his contention that the court erred in striking parts of his answer, counsel seek to invoke the rule that all facts that were well pleaded in the answer must be accepted as true. Hence, it is urged that the allegations in the answer that there was no power in plaintiff to condemn, that no authority is vested in the Secretary of the Interior to commence proceedings, that the use is not a public one, that funds are not available, and that the Historic Sites Act is unconstitutional, must be accepted as true. But while, for the purpose of such motion, the well-pleaded facts must be accepted as true, it does not follow that conclusions of law are admitted. Equitable Life Assur. Soc. v. Brown, 213 U.S. 25, 29 S.Ct. 404, 53 L. Ed. 682; Pacific States Box & Basket Co. v. White, 296 U.S. 176, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853; Shohoney v. Quincy, O. & K. C. R. Co., 231 Mo. 131, 132...

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54 practice notes
  • Historic Green Springs, Inc. v. Bergland, Civ. A. No. 77-0230-R.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • August 11, 1980
    ...properties "for public use," as that term may encompass the "taking of land for commemorative purposes." Barnidge v. United States, 101 F.2d 295, 298 (8th Cir. 1939). Nor is it a violation of the Act's policy that the preservation easements in many instances allow for subdivision and develo......
  • United States v. Meyer, No. 7148
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 23, 1940
    ...L. Ed. 688; United States v. Gettysburg Electric Railway Co., 160 U.S. 668, 16 S.Ct. 427, 40 L.Ed. 576; Barnidge v. United States, 8 Cir., 101 F.2d 295; United States v. Threlkeld, 10 Cir., 72 F.2d 464; certiorari denied, 293 U.S. 620, 55 S.Ct. 215, 79 L.Ed. 708; 2 Cooley, Constitutional Li......
  • Nixon v. Administrator of General Services, Civ. A. No. 74-1852.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 1, 1976
    ...power of the state to condemn places of unusual historical interest for the use and benefit of the public"); Barnidge v. United States, 101 F.2d 295, 298-99 (8th Cir. 1939) ("Primarily, the right to determine the purpose to be a public one is in Congress"; "We have no doubt of the power of ......
  • United States v. 243.22 Acres of Land, No. 349.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 26, 1942
    ...City of Oakland v. United States, 9 Cir., 124 F.2d 959; United States v. Forbes, D.C., 259 F. 585; cf. Barnidge v. United States, 8 Cir., 101 F.2d 295; United States v. Gettysburg Electric R. Co., 160 U.S. 668, 16 S.Ct. 427, 40 L.Ed. 19 That conclusion is authoritative, although the questio......
  • Request a trial to view additional results
54 cases
  • Historic Green Springs, Inc. v. Bergland, Civ. A. No. 77-0230-R.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • August 11, 1980
    ...properties "for public use," as that term may encompass the "taking of land for commemorative purposes." Barnidge v. United States, 101 F.2d 295, 298 (8th Cir. 1939). Nor is it a violation of the Act's policy that the preservation easements in many instances allow for subdivision and develo......
  • United States v. Meyer, No. 7148
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 23, 1940
    ...L. Ed. 688; United States v. Gettysburg Electric Railway Co., 160 U.S. 668, 16 S.Ct. 427, 40 L.Ed. 576; Barnidge v. United States, 8 Cir., 101 F.2d 295; United States v. Threlkeld, 10 Cir., 72 F.2d 464; certiorari denied, 293 U.S. 620, 55 S.Ct. 215, 79 L.Ed. 708; 2 Cooley, Constitutional Li......
  • Nixon v. Administrator of General Services, Civ. A. No. 74-1852.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 1, 1976
    ...power of the state to condemn places of unusual historical interest for the use and benefit of the public"); Barnidge v. United States, 101 F.2d 295, 298-99 (8th Cir. 1939) ("Primarily, the right to determine the purpose to be a public one is in Congress"; "We have no doubt of the power of ......
  • United States v. 243.22 Acres of Land, No. 349.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 26, 1942
    ...City of Oakland v. United States, 9 Cir., 124 F.2d 959; United States v. Forbes, D.C., 259 F. 585; cf. Barnidge v. United States, 8 Cir., 101 F.2d 295; United States v. Gettysburg Electric R. Co., 160 U.S. 668, 16 S.Ct. 427, 40 L.Ed. 19 That conclusion is authoritative, although the questio......
  • Request a trial to view additional results

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