Dade County, Fla. v. United States
| Citation | 142 F.2d 230 |
| Decision Date | 22 April 1944 |
| Docket Number | No. 10926.,10926. |
| Parties | DADE COUNTY, FLA., v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
J. Mark Wilcox, of Miami, Fla., for appellant.
Roger P. Marquis, Atty., Department of Justice, of Washington, D. C., Norman M. Littell, Asst. Atty. Gen., and Vernon L. Wilkinson, Chief of Appellate Section, Lands Division, Department of Justice, of Washington, D. C., Stuart W. Patton, Sp. Atty., Lands Division, Department of Justice, of Miami, Fla., and H. S. Phillips, U. S. Atty., of Tampa, Fla., for appellee.
Before SIBLEY, McCORD, and WALLER, Circuit Judges.
The question immediately for decision is whether the appeal is from a final judgment so as to give this court jurisdiction under 28 U.S.C.A. § 225.
On Feb. 12, 1943, a proceeding was filed in the District Court for condemnation under stated Acts of Congress, including the Second War Powers Act of March 27, 1942, 50 U.S.C.A. Appendix, § 632, of a tract of land in Dade County, Florida, determined by the Secretary of War to be necessary for a supply and repair depot in connection with a Government airport. Immediate possession was alleged to be necessary and vital to the prosecution of the present war, and all necessary orders were prayed to that end, and for a vesting of a fee title in the United States but subject to existing easements for public roads and highways, and for the ascertainment and distribution of just compensation to persons entitled. The court on Feb. 15 made an ex parte order which recited the sufficiency of the petition and the existence of a state of war, and ordered immediate possession to be given, "subject to existing easements for public roads and highways", and that the Marshal serve a copy of the order on every person found in possession. On March 24 the United States amended the petition by striking out the words subject to public roads and highways. The court the same day granted a new order for possession which conformed to the amendment. On April 14, Dade County entered an objection to the taking of two named highways in fee simple, on the grounds that the United States cannot legally acquire fee simple title to essential public highways belonging to a subdivision of the State of Florida, and can only acquire the use of them during the national emergency. A motion was also filed on the same grounds to modify the last order for possession. On May 24 and July 23 orders were taken apparently ex parte, and based on declarations of taking and the deposit in the registry of the court of sums of money as the estimated just compensation of two parcels of the land, which orders declared that the United States was vested with the title in fee simple to the lands described. On August 16 the United States sought to amend the first declaration of taking so as to include the roads and highways. On that date the judge heard the objection and motion of Dade County and overruled them, and by a separate order of the same date amended the order on the declaration of taking as moved by the United States. The case is otherwise still pending. The United States has been in possession since Feb. 15, 1943. On Nov. 13, 1943, Dade County gave notice of appeal from the order of Aug. 16, 1943.
We are of opinion that the refusal to modify the order touching possession, and the amendment of the order touching the vesting of title are not final judgments substantially disposing of the case and leaving merely a distribution of a fund to be accomplished. On the contrary the orders in question are really pro forma, or at most incidental, the real function of the court being to ascertain the just compensation to be paid and to distribute it. The court does not award the right of possession nor adjudge the title. The United States, acting through the Congress and the agencies which Congress appoints, takes what is needed, recognizing the courts as the constitutional organ to fix the constitutional just compensation and ascertain its owners. Especially is this true under the Second War Powers Act. It amends the Act of July 2, 1917, 50 U.S.C.A. § 171, with reference to taking by the Secretary of War for military purposes, and provides as to possession: "Upon or after the filing of the condemnation petition, immediate possession may be taken...
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