Carmack v. United States

• Decision Date: 26 April 1943
• Docket Number: No. 12420.,12420.
• Citation: 135 F.2d 196
• Parties: CARMACK v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

135 F.2d 196 (1943)

CARMACK v. UNITED STATES.

No. 12420.

Circuit Court of Appeals, Eighth Circuit.

April 26, 1943.

Homer Hall, of St. Louis, Mo., and L. L. Bowman, of Cape Girardeau, Mo. (Frank Kelly and I. R. Kelso, both of Cape Girardeau, Mo., on the brief), for appellant.

Harry C. Blanton, U. S. Atty., of Sikeston, Mo. (Norman M. Littell, Asst. Atty. Gen., and Vernon L. Wilkinson and S. B. Hill, Jr., Attorneys, Department of Justice, both of Washington, D. C., on the brief), for appellee.

Before GARDNER, RIDDICK, and VAN VALKENBURGH, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a preliminary decree of condemnation, holding that the United States is entitled to judgment of condemnation and that it is entitled to appropriate the land sought to be condemned, and that the appellant, Iska W. Carmack, has no right, title or interest in or to the property so sought to be condemned. The property is situated in the City of Cape Girardeau, County of Cape Girardeau, Missouri, and the United States seeks to condemn it as a site for a United States Post Office and Custom House. The land was originally conveyed in 1807 by its then owner, Louis Lorimier, to the Board of Commissioners and Assessors for the use of the District of Cape Girardeau. The deed recites that it was executed pursuant to a proposal of the grantor, made on the 13th day of January, 1806, to have the Seat of Justice of that district permanently fixed upon his land at that place. The deed contains provisions in the nature of conditions or limitations that the land so given should "be and remain forever common and public, and never to be appropriated to private use, agreeably to the explicit intention of the donor."

In 1814, the Seat of Justice having in the meantime been removed from Cape Girardeau to Jackson, the judges of the Court of Common Pleas in form conveyed this tract to the heirs of Louis Lorimier, and on September 11, 1820, all of the heirs of Louis Lorimier, deceased, conveyed the premises by quit claim deed to the inhabitants of the Town of Cape Girardeau collectively "for their use, benefit and behoof forever." This deed conveyed certain other property not here involved, and concluded with the following paragraph: "Provided always that the several tracts or parcels of land thus granted to the Town of Cape Girardeau and the citizens thereof shall remain forever affected and appropriated to the public uses to which they are respectively intended, and that they, nor any part of them, shall never become private property."

The property is in the nature of a public park upon which is located a court house used by the Court of Common Pleas of Cape Girardeau County, a public library building, a bandstand, a memorial monument surrounded by a fountain, and a memorial monument to W. F. D. Bajer, the latter being in front of the library building. The park upon which these structures are located is used for gatherings of the public generally, for band concerts, gatherings of the Boy Scouts, and gatherings of various other groups. It is also used as a place for recreation, and is furnished with settees. The library is a public one, used by the public generally. The bandstand is not only used by the band in giving concerts, but is used for public speakings. The second story of the court house is occupied by the Common Pleas Court, a judge's chambers, and a law library for the court, the entire second floor being appropriated to the Common Pleas Court, a service. The first floor is occupied by various city officials, including the city clerk, the clerk of the Court of Common Pleas, the city engineer, the mayor, the city council and the city attorney. There is a basement in this building used largely for a storage place, in which to keep the files and records of the Court of Common Pleas. The Government seeks to condemn all the property with the improvements thereon, "except the library building."

The court entered findings, finding, among other things, that the Town of Cape Girardeau subsequently became the City of Cape Girardeau; that the appellant does not reside in the City of Cape Girardeau but owns property within the city, on which she pays taxes; that the acquisition of the property as a site for a post office and custom house building will cause the discontinuance of the use of the property for the purpose of holding the Cape Girardeau Court of Common Pleas thereat. It concluded as a matter of law that the answer failed to allege facts which would justify the conclusion that the Government had acted arbitrarily in the selection of the property sought to be condemned as a site for a government building; that appellant had no interest which would permit her to maintain the defense asserted by her; that the property is sought for a public purpose; that the plaintiff has the right to acquire it for that purpose; that the present ownership of the property is not material at this stage of the proceedings, except for the purpose of ascertaining whether a necessary present public use will be interfered with. In the decree the court adjudged that the use for which the plaintiff sought to acquire the land was a public use, and that such defendants as had any right or title to the land were entitled to compensation in damages for the property taken and appropriated, but that appellant had no right to share in such compensation.

At the close of all the evidence in the case, appellant filed a demurrer to its sufficiency, on the grounds: "First, said evidence does not contain proof of the allegation in the sixth paragraph of plaintiff's petition that funds are available to pay any award or awards which may be rendered in this condemnation proceeding. Second, said evidence does not contain any proof that the Federal Works Administrator acted jointly with the Postmaster General as provided by the Federal Statute. Title 40 U.S.C.A. § 341. The proof (Plaintiff's Exhibit 1) shows that only the Acting Administrator of the Public Works Agency acted alone. Third, said evidence contains no proof of the allegations in the second paragraph of plaintiff's petition that the site selected was necessary for the construction of a United States Post Office." The demurrer was overruled and the court entered findings and decree as above outlined. Thereafter, appellant interposed a motion to set aside the findings and judgment, or to grant a new trial upon various grounds, but this motion was stricken by the court as being filed out of time.

In seeking reversal, appellant, among other things, contends that: (1) The District Court erred in holding that the petition of the Government states facts sufficient to constitute a cause of action under the statutes of Missouri and the decisions of the Supreme Court of Missouri relating to condemnation proceedings; (2) the court erred in not sustaining the demurrer to all the evidence, which demurrer was offered by appellant, Iska W. Carmack, at the close of all the testimony given and offered at the trial of the case; (3) the court erred in allowing the appellee to condemn property underneath the public library building, without including the library building itself; (4) the court erred in not holding that the Acting Administrator of Federal Works Agency acted arbitrarily and improperly in determining the necessity for and the selection of the proposed site for the new Post Office and Custom House building.

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