Eden Memorial Park Association v. United States, 17498.
| Decision Date | 15 February 1962 |
| Docket Number | No. 17498.,17498. |
| Citation | 300 F.2d 432 |
| Parties | EDEN MEMORIAL PARK ASSOCIATION, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Sandler & Rosen, Nelson Rosen, Thorpe, Sullivan, Clinnin & Workman, Beverly Hills, Cal., for appellant.
Ramsey Clark, Asst. Atty. Gen., Francis C. Whelan, U. S. Atty., Richard J. Dauber, Asst., Los Angeles, Cal., Roger P. Marquis, Attorney, Dept. of Justice, Washington, D. C., for appellee.
Before HAMLEY, JERTBERG and MERRILL, Circuit Judges.
In this federal condemnation proceeding an order was entered enjoining Eden Memorial Park Association, owner of two parcels being condemned, from seeking injunctive relief in certain litigation then pending in state courts. Eden appealed, and thereafter moved for an order staying the condemnation proceedings and granting other relief pending disposition of the appeal by this court.1 At the argument on this motion both Eden and the United States urged us to take the appeal under submission on the merits as well as on the motion for a stay pending disposition of the appeal. This was done.
The land in question is part of a cemetery owned and operated by Eden. It is being condemned for use as a part of the "Interstate System" of highways referred to in the Federal-Aid Highways Act of August 27, 1958, 72 Stat. 885, 23 U.S.C.A. § 101, et seq.
On November 1, 1960, the Department of Public Works of the State of California commenced a condemnation proceeding in the Superior Court of the State of California in and for the County of Los Angeles, for the purpose of acquiring this land for the highway purposes described above. An ex parte order for possession was entered by that court. Subsequently, Eden moved in that proceeding to vacate the order of possession, contending that construction of a highway on this cemetery land was barred by sections 8560 and 8560.5 of the Health and Safety Code of California.2
This motion was denied by the Superior Court, whereupon Eden appealed to the State District Court of Appeal of the Second Appellate District. On February 24, 1961, that court issued an order annulling the order of possession theretofore entered by the state trial court and prohibiting further state court proceedings with respect to the condemnation of the cemetery land. The court held that sections 8560 and 8560.5 of the California Health and Safety Code prevented the state from condemning or establishing roads across cemetery property. Eden Memorial Park Ass'n v. Superior Court, 189 Cal.App.2d 421, 11 Cal.Rptr. 189. The California Supreme Court thereafter denied the Department's petition to review the decision of the District Court of Appeal.
Following this decision, J. C. Womack, State Highway Engineer of the State of California, requested the Secretary of Commerce of the United States to condemn this land. Womack thus sought to invoke a provision of the Federal-Aid Highways Act which authorizes the United States to acquire land by condemnation under certain circumstances, for the purpose of conveying it to a state which would construct and maintain a state highway thereon. See 23 U.S.C.A. § 107.3
Responsive to Womack's request, the United States on April 27, 1961, commenced the instant condemnation proceeding. Concurrently therewith it filed a declaration of taking and a notice of motion for an order for immediate possession.
On May 5, 1961, Eden and Sol Rosenberg, filed a complaint for injunction in the Superior Court of the State of California in and for the County of Los Angeles. The case was docketed as No. 770431. Rosenberg is an officer of Eden, but he joined in the action in his capacity as a citizen, resident and taxpayer of the State of California. Named as defendants in this action were the Department of Public Works of the State of California, the director of that department, the State Highway Engineer (Womack), the California Highway Commission, and various other state officers and employees.
In this state action plaintiffs sought to enjoin the defendants therein from entering upon or taking possession of the cemetery land involved in the federal condemnation proceedings or constructing thereon a public highway. They also sought to enjoin those defendants from authorizing contractors to enter upon the land for construction purposes, expending state funds for the purpose of acquiring the land or constructing a highway thereon, entering into contracts purporting to obligate the state to expend state funds for such purposes, and paying to the United States or any official thereof or any person state funds in connection with such purposes.
In their complaint in this state action plaintiffs alleged the facts concerning the prior state action in which the condemnation proceedings instituted by the Department of Public Works were brought to a halt because of the provisions of sections 8560 and 8560.5. They further alleged that notwithstanding the judgment entered in the prior suit and in disregard of California state policy evidenced by sections 8560 and 8560.5, the state agencies and officials named in the new state suit threaten to take possession of the identical land and to lay out and construct a highway thereon. The plaintiffs in the state action also alleged that the named state agencies and officials intend to enter into contracts and expend state funds for the stated purpose.
Allegations were made concerning the request which Womack had made for federal condemnation, it being asserted that he was not authorized to make such a request on behalf of the state. It was also averred that it is the intention of the Federal Highway Administrator and the Secretary of Commerce upon acquiring the land in a federal proceeding to transfer title therein to the state or to permit the Department of Public Works to take immediate possession and to commence construction of a state highway thereon. Any such acts by state agencies and officials, it was alleged, would be illegal, unauthorized, arbitrary and in violation of the laws of the state. The threat of irreparable injury and the inadequacy of any remedy at law were also averred.
On May 12, 1961, Eden filed its verified answer to the complaint in the federal condemnation proceeding. Two defenses were therein asserted, the first being that the complaint in condemnation fails to set forth facts showing that there had been a compliance with alleged statutory conditions precedent to the bringing of such a suit, as prescribed in section 107 of the Federal-Aid Highways Act. According to the answer, these conditions precedent are that (1) the state request the Secretary of Commerce to acquire the lands; (2) the Secretary determine that either the state is unable to acquire the lands or is unable to acquire them with sufficient promptness; and (3) the Secretary determine that the state has agreed with the Secretary to pay a stated percentage of the cost of acquiring the land.
Eden's second defense raised the following specific objections: (1) the United States is not authorized by law to take or attempt to take the subject land; (2) the Federal Highway Administrator is not authorized by law to take or attempt to take the land; (3) the state has not requested that the United States acquire the land, this being a statutory condition precedent to the instituting of a section 107 condemnation proceeding; and (4) the State Highway Engineer was not authorized to make such a request on behalf of the state and the purported request made by him was illegal, ultra vires, arbitrary, in violation of the public policy of the state, and contrary to express state statutory prohibitions.4
Concurrently with the filing of its answer Eden filed its response and objection to the Government's motion for an order of immediate possession together with a motion to vacate and set aside the declaration of taking. In the alternative Eden asked that the district court stay the issuance of an order for immediate possession and stay all other proceedings in the district court until there was a determination by the state court of the issues of law there involved. On May 15, 1961, the district court granted the order of immediate possession and denied Eden's motion to vacate the declaration of taking and to stay the federal proceedings.
In the concurrent state court proceeding the superior court on May 16, 1961, denied plaintiff's application for a preliminary injunction. However, the court ordered that, pending an appeal from the denial and subject to modification by the court, the defendants would be restrained from building or constructing any permanent structure of any kind or any permanent highway upon the land in question. The order specifically permitted the defendants to construct temporary facilities.
On May 19, 1961, the Government filed in the condemnation action a petition for a preliminary injunction and for an adjudication in contempt. The facts concerning the federal condemnation proceeding, the plan to have the highway constructed by the state, and the newly instituted state court proceeding were recited therein. It was alleged that Eden instituted the state suit wilfully and with the purpose and intent of circumventing the effect of the declaration of taking and the orders of the court in the federal condemnation proceeding.
It was further alleged that the state action was commenced for the purpose of hindering, interfering with, and preventing the work of placing the necessary improvements upon the land in question. The Government also averred that although the United States is the real party in interest in the state proceeding because of its ownership of the property involved and by reason of its agreement to provide funds for the highway program, it has no way of participating in the state suit.
Irreparable damage by reason of the pendency of the state action was alleged. The relief sought was an injunction against Eden...
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