City of Oakland v. United States, No. 9801.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtGARRECHT, HANEY, and STEPHENS, Circuit
Citation124 F.2d 959
PartiesCITY OF OAKLAND v. UNITED STATES.
Decision Date18 February 1942
Docket NumberNo. 9801.

124 F.2d 959 (1942)

CITY OF OAKLAND
v.
UNITED STATES.

No. 9801.

Circuit Court of Appeals, Ninth Circuit.

January 14, 1942.

Rehearing Denied February 18, 1942.


124 F.2d 960

Charles A. Beardsley, Port Atty., and W. Reginald Jones, Asst. Port Atty., both of Oakland, Cal., for appellant.

Norman M. Littell, Asst. Atty. Gen., M. Mitchell Bourquin, Sp. Asst. to Atty. Gen., of San Francisco, Cal., and Charles R. Denny, Jr., and John F. Cotter, Attys., Department of Justice, both of Washington, D. C., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

GARRECHT, Circuit Judge.

This is an appeal from a judgment entered by the District Court of the United States for the Northern District of California, Southern Division, in the above-entitled action on January 15, 1941, and from the order of the same court entered on March 6, 1941, denying appellant's motion to vacate the judgment. The appeal is both from the judgment and from the order, each appeal serving the same purpose.

A proceeding by the United States to acquire by condemnation seventy-two acres of land on the Oakland waterfront for the military purposes of the United States as these are described in "An act to authorize

124 F.2d 961
condemnation proceedings of lands for military purposes", 40 Stat. 241, as amended, 50 U.S.C.A. § 171, and referred to in the Act of September 8, 1940, Public No. 781, 76 Cong., 3d sess., appropriating money therefor, was instituted by filing a complaint in condemnation against appellant and others on January 15, 1941. The complaint alleged that the Secretary of War, acting under the authority of the acts of Congress had selected for acquisition by the United States of America the land described and had determined the same to be suitable and necessary for military purposes of the United States. It further alleged that the land was necessary for such purposes and that the use thereof was immediately required in order that necessary work could be begun at the earliest practicable date for the location, construction, and prosecution of works described in the acts of Congress referred to; that the purposes for which said land and appurtenances were being taken are necessary, suitable, and constitute a public use, and the use to which said property was to be applied was a use authorized by law

Simultaneously with the filing of the complaint there was filed in the name of the United States by the Secretary of War a declaration of taking conforming to the requirements of 40 U.S.C.A. § 258a, and there was deposited in the registry of the court the sum of $2,168,000, being the estimated amount of just compensation for the property. Upon the filing of the declaration of taking and the making of the deposit the court entered a judgment, finding that the requirements of said statute had been complied with, and decreeing that in accordance with the terms and provisions of the statute, title had vested in the United States; that the lands were deemed to have been condemned and taken for the use of the United States, and that the right to just compensation had vested in the persons entitled thereto, to "be ascertained and awarded in this proceeding and established by judgment herein pursuant to law".

The Declaration of Taking Act, approved February 26, 1931, c. 307, 46 Stat. 1421, 40 U.S.C.A. §§ 258a-258e, is printed in the margin.1

124 F.2d 962

Summons was served upon this appellant January 16, 1941. On February 14, 1941, appellant filed a motion to vacate the judgment, which was denied on March 6, 1941. On April 4, 1941, appellant gave notice of appeal from the judgment and from the order denying the motion to vacate said judgment.

Specifications of error relied upon are thus stated by appellant:

"Since the questions involved on the appeal from the judgment, and on the appeal from the order denying the motion to vacate the judgment, are the same or substantially the same, and since both appeals serve the same purpose, the specifications of the errors upon which the appellant relies, whether addressed to the judgment or addressed to the order, will be numbered consecutively herein. Specifications numbered (1) to (5) are addressed to the judgment; specification numbered (6) is addressed to the order; as follows:

"(1) The court erred in entering a judgment of condemnation, without either process, or appearance by the appellant, or a hearing, or an opportunity to be heard upon the issues adjudicated in said judgment;

"(2) The court erred in entering a judgment of condemnation on the declaration of taking, in the absence of any statutory authorization for any judgment thereon;

"(3) The court erred in entering a judgment of condemnation upon the commencement of the proceeding, contrary to the Acts of Congress requiring conformity to the practice in such proceedings in the California courts;

"(4) The court erred in entering a judgment of condemnation upon the declaration of taking, because it does not specify the public use for which the Secretary of War seeks to condemn the appellant's property;

"(5) The court erred in entering a judgment of condemnation on the declaration of taking, because the Act of Congress providing for such a declaration of taking in such a proceeding is unconstitutional in that it provides for a deprivation of property without due process of law, contrary to the provisions of the Fifth Amendment to the Constitution of the United States, and because the ex parte judgment itself is likewise violative of the due process requirement of said Amendment;

"(6) The court erred in denying the appellant's motion to vacate the judgment, to the end that the appellant might be given an opportunity to be heard at the trial upon any and all issues that may properly be raised in the proceeding."

Appellant's Right To Be Heard.

Appellant's principal grievance, most strongly voiced, is to the effect that the action taken by the District Court deprives it of property without giving it any opportunity to be heard. The judgment order

124 F.2d 963
complained about, by its very terms contradicts such claim. After determining that the ex parte showing made by the Government is sufficient to warrant the determination that the premises in question are necessary for the military uses of the United States, that they have been condemned and taken, and that the United States is entitled to immediate possession, it further provides that the actual taking of possession be suspended until after thirty days' notice of the judgment has been given to the defendant. The judgment then recites that "this cause is held open for such other and further orders, judgments and decrees as may be necessary in the premises"

As the learned District Court in its opinion on the motion to vacate the judgment order points out, there will be ample opportunity, if relief is prayed for on any such grounds, for...

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51 practice notes
  • 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
    ...similar to the orders held appealable in Forgay v. Conrad, supra, and Thomson v. Dean, supra. Oakland v. United States, 9 Cir., 124 F. 2d 959, involved an appeal from a judgment under the same statutory provisions. The judgment there, however, was not after a trial but was ex parte, like th......
  • Alpirn v. Huffman, No. 435 Civil.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • April 2, 1943
    ...Creary, 51 App.D.C. 195, 277 F. 594; Adams v. Nagle, 303 U.S. 532, 58 S.Ct. 687, 82 L.Ed. 999; City of Oakland v. United States, 9 Cir., 124 F.2d 959; United States v. 243.22 Acres of Land in Village of Farmingdale, Town of Babylon, Suffolk County, N. Y., D.C., 43 F.Supp. 561; Mississippi &......
  • United States v. Merchants Transfer & Storage Co., No. 10573.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 14, 1944
    ...to accompany H.R.14255, 71st Congress, 3d Session; January 5 (calendar day January 20) 1931. 13 City of Oakland v. United States, 9 Cir., 124 F.2d 959. 13a 50 U.S.C.A. § 14 Act of July 2, 1917, 40 Stat. 241, 50 U.S.C.A. § 171. 15 Cong. Record Vol. 55, Part IV, p. 4263; emphasis supplied. 16......
  • Caddo Tribe of Oklahoma v. United States, No. 1-57.
    • United States
    • Court of Federal Claims
    • October 9, 1957
    ...is discretionary and, as noted above, extends to interlocutory as well as final decisions. 6 City of Oakland v. United States, 9 Cir., 124 F.2d 959, certiorari denied 316 U.S. 679, 62 S.Ct. 1106, 86 L.Ed. 1753; United States v. 243.22 Acres of Land, 2 Cir., 129 F.2d 678, certiorari denied L......
  • Request a trial to view additional results
51 cases
  • 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
    ...similar to the orders held appealable in Forgay v. Conrad, supra, and Thomson v. Dean, supra. Oakland v. United States, 9 Cir., 124 F. 2d 959, involved an appeal from a judgment under the same statutory provisions. The judgment there, however, was not after a trial but was ex parte, like th......
  • Alpirn v. Huffman, No. 435 Civil.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • April 2, 1943
    ...Creary, 51 App.D.C. 195, 277 F. 594; Adams v. Nagle, 303 U.S. 532, 58 S.Ct. 687, 82 L.Ed. 999; City of Oakland v. United States, 9 Cir., 124 F.2d 959; United States v. 243.22 Acres of Land in Village of Farmingdale, Town of Babylon, Suffolk County, N. Y., D.C., 43 F.Supp. 561; Mississippi &......
  • United States v. Merchants Transfer & Storage Co., No. 10573.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 14, 1944
    ...to accompany H.R.14255, 71st Congress, 3d Session; January 5 (calendar day January 20) 1931. 13 City of Oakland v. United States, 9 Cir., 124 F.2d 959. 13a 50 U.S.C.A. § 14 Act of July 2, 1917, 40 Stat. 241, 50 U.S.C.A. § 171. 15 Cong. Record Vol. 55, Part IV, p. 4263; emphasis supplied. 16......
  • Caddo Tribe of Oklahoma v. United States, No. 1-57.
    • United States
    • Court of Federal Claims
    • October 9, 1957
    ...is discretionary and, as noted above, extends to interlocutory as well as final decisions. 6 City of Oakland v. United States, 9 Cir., 124 F.2d 959, certiorari denied 316 U.S. 679, 62 S.Ct. 1106, 86 L.Ed. 1753; United States v. 243.22 Acres of Land, 2 Cir., 129 F.2d 678, certiorari denied L......
  • Request a trial to view additional results

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