Dow v. United States
| Decision Date | 03 January 1957 |
| Docket Number | No. 16125.,16125. |
| Citation | 238 F.2d 898 |
| Parties | C. M. DOW, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
L. Keith Simmer, Houston, Tex., Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., of counsel, for appellant.
Richard C. Peet, Roger P. Marquis, Attys., Dept. of Justice, Washington, D. C., Perry W. Morton, Asst. Atty. Gen., Malcolm R. Wilkey, U. S. Atty., Houston, Tex., Scott W. Key, Asst. U. S. Atty., Houston, Tex., for appellee.
Before RIVES, TUTTLE and CAMERON, Circuit Judges.
This appeal is from a summary judgment dismissing C. M. Dow as a party defendant in a condemnation proceeding which, in accordance with Rule 54(b), Fed.Rules Civ.Proc. 28 U.S.C.A., was entered as a final and appealable judgment.
The United States commenced proceedings to condemn an easement for a pipe line right of way on March 9, 1943, and shortly thereafter went into possession of the easement pursuant to an order obtained under the Second War Powers Act of 1942, 56 Stat. 177.1 More than two years thereafter, on November 1, 1945, Dow acquired by deed, made subject to the condemnation proceedings, 617.289 acres of land which included 2.7139 acres within the right of way. Seven months thereafter, on May 31, 1946, the Government filed a declaration of taking and deposited estimated compensation for the taking of Parcel No. 1, the particular 2.7139 acres.2
Commissioners appointed by the Court under the Texas practice held a hearing at which Dow appeared and offered evidence as to value. The Commissioners' report awarded $4,500.00 as compensation for the taking of Parcel No. 1. Dow's vendors, or their heirs or representatives, were not served with notice, and did not appear at the compensation hearing. After the report, however, the Government's attorney reached the conclusion that Dow was not entitled to compensation for the taking of Parcel No. 1, and moved to set aside the award alleging that the parties entitled to compensation were neither served nor present at the commissioners' hearing; and moved also for a summary judgment dismissing Dow's claim on the ground that his deed was a prohibited assignment of a claim against the Government.3
Answering said motion, Dow reiterated his claim. Notwithstanding the fact that his vendors appeared and filed a waiver to any compensation due from the Government and requested that the award be paid to Dow,4 the motion for summary judgment dismissing Dow was granted and this appeal followed.
The sole question for decision is whether the act prohibiting assignment of claims against the United States bars Dow's claim to compensation, he having purchased after possession had been awarded in the proceedings but prior to the filing of a declaration of taking. Under the explicit provisions of the Anti-Assignment Statute, a claim to compensation for a taking of property cannot be voluntarily transferred after it has arisen.5 Otherwise stated then, the question is whether the taking occurred and the claim arose when the United States went into possession of the easement pursuant to the order of possession,6 or subsequently upon the filing of the declaration of taking and of the deposit in the court.7
The Government insists that when it took possession there was a taking of the property, and that thereupon the claim to compensation arose. Concededly, however, the United States was free to abandon the condemnation at any time before filing its declaration of taking.8 In such an event, the United States would have become liable for actual use and occupancy with restoration damage.9 Such liability did not actually accrue. Instead, upon the filing of the declaration of taking the United States became irrevocably committed to the payment of the ultimate award.10 The Government then took title to the easement, whereupon the claim for compensation arose and vested in the owner, Dow. Theretofore the taking was not complete. Cf. United States v. Dickinson, 331 U.S. 745, 749, 67 S.Ct. 1382, 91 L.Ed. 1789.
The Declaration of Taking Act fixed a definite time of taking and of accrual of the claim for compensation and removed much of the uncertainty theretofore existing.11 Nothing herein said is inconsistent with, or is meant to change, the equitable rule that where the declaration of taking is filed on a date subsequent to the passing of possession to the Government, the value of the property should be determined as of the date possession was acquired.12
The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.
Reversed and remanded.
1
2 Pursuant to 40 U.S.C.A. § 258a, providing in pertinent part as follows:
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United States v. Dow
...of the declaration of taking in 1946, and that, because Dow by that time had become owner of the land, he was entitled to the award. 238 F.2d 898. Because the question presented bears importantly on rights resulting from federal condemnation proceedings, we granted the Government's petition......
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United States v. McCrory Holding Company
...The Government relies chiefly on United States v. Dow, 1958, 357 U.S. 17, 78 S.Ct. 1039, 2 L.Ed.2d 1109, reversing Dow v. United States, 5 Cir., 1956, 238 F.2d 898, as supporting its position. In that case the Government condemned an easement for a pipe line right of way acting under author......
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Chandler v. United States
...be paid to the United States of America." 2 See Catlin et al. v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911; Dow v. United States, 5 Cir., 238 F.2d 898, reversed on other grounds, United States v. Dow, 357 U.S. 17, 78 S.Ct. 1039, 2 L.Ed.2d 1109. 3 This memorandum opinion is not......