Carmack v. United States, 13928.

• Decision Date: 19 December 1949
• Docket Number: No. 13928.,13928.
• Citation: 177 F.2d 463
• Parties: CARMACK v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Eighth Circuit

177 F.2d 463 (1949)

CARMACK v. UNITED STATES et al.

No. 13928.

United States Court of Appeals Eighth Circuit.

October 27, 1949.

Rehearing Denied December 19, 1949.

I.R. Kelso, Cape Girardeau, Mo., (Homer Hall, St. Louis, Mo., was with him on the brief), for appellant.

Harold S. Harrison, Attorney, Department of Justice, Washington, D. C. (A. Devitt Vanech, Assistant Attorney General, Drake Watson, United States Attorney, Charles J. Hughes, Special Assistant to the United States Attorney, St. Louis, Mo. and Roger P. Marquis, Attorney, Department of Justice, Washington D. C., were with him on the brief), for appellee United States of America.

R. P. Smith, Cape Girardeau, Mo., for appellee City of Cape Girardeau.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

WOODROUGH, Circuit Judge.

This appeal is taken to review a final judgment of condemnation entered at the instance of the United States on October 11, 1948, in proceedings instituted by the United States in November, 1941, to condemn certain land in Cape Girardeau, Missouri, for use as a United States Post Office, Customhouse and Court Building. The site was a city park upon which were located a court house, city library and bandstand, the land having been conveyed to Cape Girardeau by deeds executed in 1807 and 1820 which limited the use to public purposes. Iska W. Carmack, an heir of the donor of the property and a taxpayer and property owner in the city, sought to contest the proceeding but on the first trial was held by the District Court not to have standing to maintain the defenses asserted by her. This court, without deciding as to the extent of her interest, deemed it sufficient to require trial of her claim that the condemnation was unauthorized and illegal and reversed in Carmack v. United States, 1943, 135 F.2d 196, with remand to the District Court. There the petition for condemnation was amended and trial was had, resulting in a decree dismissing the petition. This court affirmed, United States v. Carmack, 1945, 151 F.2d 881, but on December 9, 1946, the Supreme Court reversed and remanded the case to the District court, holding that "the petitioner was entitled to a preliminary judgment of condemnation." United States v. Carmack, 1946, 329 U.S. 230, 67 S.Ct. 252, 260, 91 L. Ed. 209.

After remand of the case a stipulation was entered into between the United States and the City of Cape Girardeau which undertook to waive appointment of commissioners and called upon the court to adjudicate that the City was the only party entitled to compensation for the taking of the land and agreeing that the City should accept from the United States the present Federal Building and the land on which it is located in satisfaction of its claim. The United States orally moved for judgment in accordance with the stipulation but the court concluded that the amount of the damage for the taking should be determined by commissioners and that the rights of claimants to the award should be thereafter determined. United States v. Certain Land Situate in City of Cape Girardeau, D.C.1947, 72 F.Supp. 875.

Thereafter on October 15, 1947, a declaration of taking was filed by the United States, $1.00 was deposited as estimated compensation and preliminary judgment of condemnation was entered on October 16, 1947, declaring that "the title to the land in fee simple absolute vested in the United States" and the right to just compensation is "vested in the persons entitled thereto". On December 12, 1947, the petition for condemnation was amended by adding the allegation that the City was the only party having a legally compensable interest in the land.

On March 3, 1948, the commissioners appointed by the court to assess the damages reported that they found the value of the property taken to be $35,000.00. On March 16, 1948 (apparently within the time required by Missouri Statute), Iska W. Carmack and three others who were intervenors filed exceptions to the commissioners' report and award of damages and demanded jury trial on the amount of damages. The government on the same day filed its motion to strike the exceptions on the ground that none of the parties excepting were owners of the land or of any part thereof, and therefore they were not entitled to except to the award. A hearing was had on July 14, 1948, upon all issues then undisposed of relative to the question whether the award of the commissioners should be adjudicated to be due to the City of Cape Girardeau and affirmed as requested by the government and the City, or whether the case should proceed with a jury to assess the amount of damages. After full hearing the court entered findings of fact and conclusions of law and final judgment.

By the terms of the judgment the City of Cape Girardeau was adjudged to be entitled to the whole amount of the damages awarded by the commissioners and it was held that Iska W. Carmack and others similarly situated were not owners of the land taken and had no title or interest to support a claim to any part of the compensation and were without standing to contest the amount of the award. The judgment affirmed the Report of the Commissioners.

The written opinion of the trial court filed in connection with the judgment is reported under the title United States v. Certain Land in the City of Cape Girardeau, Missouri, D.C., 79 F.Supp. 558. Iska Carmack alone has appealed.

Opinion.

The...