City of Davenport v. Three-Fifths of an Acre of Land

• Decision Date: 15 January 1957
• Docket Number: Civ. A. No. P-1875.
• Citation: 147 F. Supp. 794
• Parties: CITY OF DAVENPORT, a municipal corporation of the State of IOWA, and Davenport Bridge Commission, a police body corporate and politic of the State of Illinois, Plaintiffs, v. THREE-FIFTHS OF AN ACRE OF LAND, MORE OR LESS, located IN the CITY OF MOLINE, Rock Island County ILLINOIS, City of Moline, a municipal corporation of the State of Illinois, and Unknown Owners, Defendants.
• Court: U.S. District Court — Southern District of Illinois

147 F. Supp. 794

CITY OF DAVENPORT, a municipal corporation of the State of IOWA, and Davenport Bridge Commission, a police body corporate and politic of the State of Illinois, Plaintiffs, v. THREE-FIFTHS OF AN ACRE OF LAND, MORE OR LESS, located IN the CITY OF MOLINE, Rock Island County ILLINOIS, City of Moline, a municipal corporation of the State of Illinois, and Unknown Owners, Defendants.

Civ. A. No. P-1875.

United States District Court S. D. Illinois N. D.

January 15, 1957.

Lane & Waterman, Davenport, Iowa, Graham, Califf & Harper, Moline, Ill., for plaintiffs.

Wilmot F. Warner and H. Moss Meersman, Moline, Ill., Thomas A. Matthews, Chicago, Ill., for defendants.

MERCER, District Judge.

This is an action for the condemnation of four parcels of land located in the City of Moline, Illinois, pursuant to authority granted the plaintiffs herein by the Congress of the United States in Public Law No. 566 of the 82d Congress, 66 Stat. 734.

The lands sought to be acquired in these proceedings are alleged to be necessary for the construction of improvements and additions to the Iowa-Illinois Memorial Bridge which spans the Mississippi River between Bettendorf, Iowa and Moline, Illinois. Public Law No. 566 of the 82d Congress authorizes the additions to the existing bridge, including the construction of a new span adjacent to and interconnecting to the existing span.

The act further confers upon the plaintiffs the power of eminent domain to acquire property necessary for such improvements and additions. This action was commenced under Rule 71A of the Rules of Civil Procedure, 28 U.S.C.A., seeking to exercise the powers so conferred. The defendant City of Moline has filed a motion to dismiss the complaint. The motion challenges the legal sufficiency of the complaint and raises the issue of law as to whether or not the plaintiffs have power and authority to condemn public property of the City of Moline under the allegations set forth in the complaint. Plaintiffs have filed countermotions for summary judgment.

The first issue presented by plaintiffs' motions relates to the failure of defendant City of Moline to answer the complaint as required by Rule 71A(e), of the Rules of Civil Procedure, which provides as follows:

"Appearance or Answer: If a defendant has no objection or defense to the taking of his property, he may serve a notice of appearance designating the property in which he claims to be interested. Thereafter he shall receive notice of all proceedings affecting it. If a defendant has any objection or defense to the taking of his property, he shall serve his answer within 20 days after the service of notice upon him. The answer shall identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and state all his objections and defenses to the taking of his property. A defendant waives all defenses and objections not so presented, but at the trial of the issue of just compensation, whether or not he has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. No other pleading or motion asserting any additional defense or objection shall be allowed."

In lieu of an answer as contemplated by the provisions of the above rule, the defendant filed a motion to dismiss although the rule specifically prohibits the filing of any pleading or motion other than an answer. The obvious purpose of Rule 71A(e) is to prevent delay and dilatory tactics on the part of the defendant. It is quite possible that the defendant, not having answered within 20 days, has waived any objections or defenses to the taking of its property. However, the Courts should and do construe the rules of civil procedure so as to work substantial justice in all cases and avoid a strict technical interpretation which might work a hardship on the litigants. With this in mind the Court will consider the motion to dismiss as an answer in order that the matter may be determined upon its merits rather than upon a strict construction of procedure. The defendant has had numerous opportunities to ask the Court that the motion to dismiss be withdrawn and answer made; had such a request been made the Court no doubt, exercising a sound discretion, would have permitted the substitution. This has not been done but the Court is convinced that the defendant has not engaged in any dilatory tactics and the Court is constrained to deny the motion for summary judgment on the basis of the procedural question and said motion upon the procedural matter is denied.

The second ground in support of plaintiffs' motion for summary judgment is directed to the legal question of plaintiffs' power under Congressional legislation to condemn property owned by the City of Moline and devoted to public use. This is the substantive question in the case and the Court feels that this substantive question should be answered and the case determined by said finding rather than upon a question of a construction of Rule 71A(e).

The affidavit of A. E. Anderson, attached to City of Moline's motion to dismiss, shows that a portion of the property sought to be condemned is devoted to public use and that a portion of the property sought to be acquired shows that the same may be devoted to public use in the future. This future public use is, to some extent, speculative, however, there is little question that the public use question is involved herein.

The power to condemn is found in Public Law No. 566 of the 82d Congress. It confers "the right and power to enter upon and acquire, condemn, occupy, possess, and use such real estate and other property as may be needed upon making just compensation therefor." It is well settled that in the area of interstate commerce, including the regulation of the use of navigable streams and the erection of dams therein and bridges thereover, federal power is exclusive when the Congress has chosen to act. Defendant contends that the construction of a bridge is not within the federal power over interstate commerce and is not specifically mentioned as one of the functions of the United States Government in the Constitution as is the construction of a postoffice or military fortification. However, the preamble to the original Act of Congress, Public Law No. 533, approved May 26, 1928, 45 Stat. 759, provides as follows: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, in order to facilitate interstate commerce, improve the postal service, and provide for military and other purposes naming grantees are hereby, authorized to construct, maintain, and operate a bridge and approaches thereto across the Mississippi River."

It is the opinion of the Court that the original Act of Congress comes clearly with the Federal power over Interstate Commerce. The constitutionality of the above Act has not been challenged and in the opinion of this Court could not be successfully challenged since the power of Congress in this regard has been recognized by the Supreme Court whenever the issue has been presented. In Luxton v. North River Bridge Co., 153 U.S. 525, at page 530, 14 S.Ct. 891, at page 892, 38 L.Ed. 808, the Court said * * * "From these premises, the conclusion appears to be inevitable that, although congress may, if it sees fit, and as it has often done, recognize and approve bridges erected by authority of two states across navigable waters between them, it may * * * use its sovereign powers, directly or through a corporation created for that object, to construct bridges for the accommodation of interstate commerce by land, as it undoubtedly may to improve the navigation of rivers for the convenience of interstate commerce by water." At page 533 of 153 U.S., at page 894 of 14 S.Ct., the Court further stated: "In State of California v. California Pacific Railroad Co., 127 U.S. 1, 8 S.Ct. 1073 32 L.Ed. 150, it was directly adjudged that congress has authority, in the exercise of its power to regulate commerce among the several states, to authorize corporations to construct railroads across the states as well as the territories of the United States * * *. `It cannot at the present day be doubted that congress, under the power to regulate commerce among the several states, as well as to provide for postal accommodations and military exigencies, had authority to pass these laws. The power to construct, or to authorize individuals or corporations to construct, national highways and bridges from state to state, is essential to the complete control and regulation of interstate commerce. Without authority in congress to establish and maintain such highways and bridges, it would be without authority to regulate one of the most important adjuncts of commerce.'"

The principal contention of the defendant City of Moline is that the Congress does not have the power to condemn land owned by any state or a subdivision thereof, that the Congress does not have unlimited powers and has only such powers as are delegated to it by the Constitution of the United States and that these powers do not include the destruction of the sovereign powers of any state nor does it contain the power to condemn land owned by any state or subdivision thereof.

It is well settled that in the area of Interstate Commerce, including the regulation of the use of navigable streams and the erection of dams therein and bridges thereover, the Federal power is exclusive when the Congress has chosen to act. In this case, the plaintiffs as donees of the power have been empowered by special act of Congress to construct improvements to the existing bridge between Bettendorf, Iowa and...