Five Tracts of Land in Cumberland Tp, Adams Co, Pa, v. United States

• Decision Date: 25 April 1900
• Docket Number: 32.
• Parties: FIVE TRACTS OF LAND IN CUMBERLAND TP., ADAMS CO., PA., v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

101 F. 661

FIVE TRACTS OF LAND IN CUMBERLAND TP., ADAMS CO., PA., v. UNITED STATES.

No. 32.

United States Court of Appeals, Third Circuit.

April 25, 1900

William McClean and Wm. Arck McClean, for plaintiff in error.

James M. Beck, for the United States.

Before ACHESON and GRAY, Circuit Judges, and KIRKPATRICK, District Judge.

GRAY Circuit Judge.

The United States presented its petition to the judges of the circuit court of the United States for the Eastern district of Pennsylvania, setting out the act of congress of August 1 1888, entitled 'An act to authorize condemnation of land for sites of public buildings and other purposes,' the act of general assembly of the state of Pennsylvania approved June 8, 1874, entitled 'An act providing a mode by which the title to all estates and interests in land in the state of Pennsylvania may be vested in the United States when no agreement can be made with the owners of the same for the purchase thereof,' and the act of congress approved February 11, 1895, entitled 'An act to establish a national military park at Gettysburg, Pennsylvania,' and describing five certain tracts of land in Cumberland township, Adams county, Pa., the title to which it was necessary that the United States acquire, in order to carry out the purpose of said last-mentioned act of congress; that the five tracts of land are contained in map prepared by Maj Gen. Daniel E. Sickles, United States army, of the battlefield of Gettysburg, and were occupied by the infantry cavalry, and artillery on the 1st, 2d, and 3d days of July A.D. 1863, and praying for the appointment of a jury to view, estimate, and determine the value of the said lands.

The act of congress of August 1, 1888 (section 2), above referred to, provides that:

'The practice, pleadings, forms and modes of proceedings in causes arising under the provisions of this act shall conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record in the state within which such circuit or district courts are held, any rule of the court to the contrary notwithstanding.'

The act of the general assembly of the state of Pennsylvania of June 8, 1874, above referred to, provides that, when it shall happen that the United States cannot agree with the owner or owners thereof for the purchase of lands proposed to be taken as part of the premises which the United States are or may be authorized to acquire in said commonwealth for any public use or purpose, a petition may be filed in the court of common pleas of the county, in behalf of the United States, and after notice to owners, etc., the said court is authorized to appoint seven freeholders, who, upon due qualification and giving due notice, shall estimate and determine the fair value of the estates or interest in lands so proposed to be taken for the use of the United States, shall designate the several owners thereof, and shall report the same to the said court; and their award is made subject to appeal. After the passage of the act of congress of February 11, 1895, entitled 'An act to establish a national military park, at Gettysburg, Pennsylvania,' James M. Beck, Esq., district attorney of the United States, in behalf of the United States, and pursuant to the act of congress of August 1, 1888, above referred to, made application to the circuit court of the United States for the Eastern district of Pennsylvania, conforming in said application, and in the proceedings pursuant thereto, as near as possible, to the requirements of the act of the general assembly of the state of Pennsylvania of June 8, 1874. The jury of viewers appointed by the said court met for the discharge of their duties, and filed their report in the said court. The landowners appealed from the report of the said jury of viewers, and their appeal came on for trial in the circuit court of the United States, before his honor, George M. Dallas, at the October term of said court, 1898. In the course of the trial in the circuit court the landowners called as a witness Gen. H. V. Boynton. Counsel for the government requested that it should be stated what was proposed to be proved by Gen. Boynton. Counsel for the landowners stated that he would make the offer, if it was understood that it would be with the same force and effect as if the witness had been sworn.

'The Court: There being no objection, the offer will be made as if the witness had been called and sworn, and will be so treated.'

Counsel for the landowners then made the offer as follows:

'The owners of these tracts of land propose to show that the witness who has been called was a distinguished officer in the service during the Civil War; that he at present is in the volunteer service, with the rank of brigadier general, located at Chickamauga; that for a number of years he served as clerk to the Chickamauga commission and the Chattanooga commission, and was interested in the acquisition of the lands which have been acquired by the government on the field of Chickamauga and at Chattanooga Park; that after serving as clerk to this commission for a period of five years, during which time the Chickamauga and Chattanooga enterprise began, and through which it was continued, he was appointed chairman of the Chickamauga commission, and now holds that position; that he is thoroughly familiar with the battlefield of Gettysburg, having visited it on a number of occasions purely for the purpose of inspecting the field; that he has taken an interest in the improvement of the field of Gettysburg in connection with his

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