Gov't of the Virgin Islands v. 19.623 Acres of Land, 78-2063
| Decision Date | 17 July 1979 |
| Docket Number | No. 78-2063,78-2063 |
| Citation | 16 V.I. 587 |
| Parties | GOVERNMENT OF THE VIRGIN ISLANDS v. 19.623 ACRES OF LAND, ETC., Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
Appeal from judgment denying costs and attorney's fees in condemnation action. The Court of Appeals, Maris, Circuit Judge, vacated judgment relating to costs and remanded to allow the district court, in its discretion, to award costs including reasonable attorney's fees against the government.JOHN B. NICHOLS, ESQ., Christiansted, St. Croix, V.I., for appellant
ELBERT G. BENNETT, ESQ., Charlotte Amalie, St. Thomas, V.I., for appellee
Before ROSENN, MARIS and HUNTER, Circuit Judges
The Government of the Virgin Islands initiated this condemnation proceeding under the authority of 28 V.I.C. §§ 411-422 to acquire property of the appellant, Chas. H. Steffey, Inc. (herein Steffey), as well as other privately-owned land situated on St. Croix, for use in the construc-tion of a public highway connecting Christiansted and Frederiksted, St. Croix. On June 9, 1978, in accordance with the terms of stipulations entered into by the government and the defendant landowners, the district court entered a final judgment awarding the government title to the properties in question.
Prior to the government's condemnation action, Steffey was the owner of Parcel No. 13, Vicorp Land Subdivision (Estate Bethlehem, New Works), approximately 28 acres of land zoned for light industry and situated in the area of the government's contemplated extension of the Christian-sted-Frederiksted highway. In May 1975, the commissioner of the Department of Property and Procurement of the Virgin Islands offered Steffey for four portions of Parcel 13, namely, 13k (1.083 acres), 13l (0.174 acres), 13m (1.374 acres) and 13n (0.031 acres), $29,800.00, $4,800.00, $37,800.00 and $1,000.00 respectively, a total of $73,400.00 for the four properties which the government estimated to be just compensation for them.
Steffey responded with a proposal that he would accept $90,000.00 in immediate settlement for the properties in question provided that the government guaranteed access to the adjoining land that would remain in Steffey's possession. The government rejected Steffey's counteroffer and on June 12, 1975, brought the present action to acquire the Steffey properties, among others, by condemnation under its power of eminent domain. An amended complaint adding several interested parties to the list of defendants was filed on August 27, 1975.
On June 19, 1975, the government, pursuant to 28 V.I.C. § 421, filed a declaration of taking and deposited in the district court, to the use of the persons entitled thereto, money in the amount estimated by the government to be just compensation for the properties being taken. With re-spect to the Steffey properties, the amount stated above totalling $73,400.00 was so deposited.
Steffey moved to vacate the declaration of taking asserting that the government had failed to comply with the procedures mandated under 28 V.I.C. § 435. Thereafter, in September 1975, Steffey and representatives of the government entered into a formal stipulation under which the government agreed to provide access to Steffey's remaining land, to estimate the damages, if any, resulting from the acquisition to the remaining land, for which the government was liable, and to appraise anew the Steffey land taken by condemnation and Steffey agreed to abandon its effort to vacate the government's declaration of taking. Steffey then was permitted to withdraw all but $1,000.00 of the $73,400.00 deposited in the court by the government as just compensation for the acquired Steffey land.
In October 1975, the government moved for the fixing of the time and terms for surrender of possession of the properties designated in the complaint for condemnation. In opposition, five of the condemnees, not including Steffey, moved for judicial review of the necessity for the taking. The government then filed a motion for judgment on the pleadings with respect to the validity of the taking of all of the properties described in the complaint.
On March 24, 1976, the district court rejected the challenge to the necessity for the taking but concluded that the taking was without legislative authority and that the landowners' right to due process had been violated. The court, accordingly, denied the government's motion for surrender of possession, entered judgment for the condemnees, dismissed the complaint without prejudice and ordered that the portions of the deposit released to the condemnees and the portion still held by the clerk be returned to the government.
The government appealed from the district court's judgment that it was without authority to take the land in question and that it had, in the taking, violated the due process rights of the landowners. Several of the condemnees cross-appealed from various other provisions of the district court's order. This court vacated the district court's order and remanded the case with instructions to the district court to enter an order for surrender of possession of the properties in question. 536 F.2d 566 (1976).
On remand the district court proceeded to appoint three independent appraisers as commissioners with the powers of a master as set forth in Rule 53(c) of the Federal Rules of Civil Procedure to determine the issue of compensation for the condemned properties and to submit their findings and report to the district court as provided in 28 V.I.C. § 418.
The commissioners found that the value of the Steffey property subject to the government's condemnation action —which now included two additional properties on which the government had impressed easements, namely, Parcels Nos. 13d (0.092 acres) and 13e (0.070 acres)—to be $27,075.00 for Parcel No. 13k, $4,350.00 for No. 13l, $34,350.00 for No. 13m, $775.00 for No. 13n, $690.00 for No. 13d and $525.00 for No. 13e, a total value of $67,765.00 for the severed land and the easements. However, the commissioners found, in addition, that Steffey's remaining land was damaged by the severance in the amount of $62,908.00 and that the total just compensation due Steffey for the acquisition was $131,000.00.
Steffey petitioned the district court for confirmation of the part of the commissioners' report relating to the valuation of the government's acquisition of its portions of Parcel 13 and for attorney fees and costs. The government stipulated to such confirmation by the court and the commissioners' findings pertaining to Parcel 13 were confirmedby the district court on December 12,1977, the court ordering that the government pay Steffey $57,600.00 together with interest, that sum being the difference between the $73,400.00 estimated by the government to be just compensation for the properties acquired from Steffey and, as such, deposited in the court, which amount had already been released to Steffey, and the figure reported by the commissioners and approved by the court as being the actual value of the acquisition. The district court reserved the question of Steffey's entitlement to costs and attorney fees until its entry of final judgment.
The government and Steffey thereafter entered into an agreement which was filed in the district court, Steffey agreeing to the conveyance to the government of Parcels No. 13P (0.128 acres) and No. 13w (2.252 acres), the value of which the commission had found to be totally lost by the severance, and both parties agreeing that the sum of $66,647.00 represented the government's total remaining liability to Steffey for the acquisition.
The district court's final judgment was entered on June 9, 1978. The court decreed that title to the condemned properties, consisting of Parcels Nos. 13k, 13l, 13m, 13n, 13d, 13e, 13p and 13w, was vested in the government, directed the government to pay the commissioners' fees for services rendered, and ordered the parties to bear their own costs and attorney fees. It is from the portion of this judgment denying the appellant costs and attorney fees that this appeal has been taken.
The district court held that costs are not allowable against the government in condemnation cases in the Virgin Islands citing its prior decision in Government v. 3.4 Acres of Land, 12 V.I. 469 (1975). That decision rested basically upon the court's conclusion that Rule 54(d) of the Federal Rules of Civil Procedure, which provides for costs in civil cases, is not applicable to condemnation cases by virtue of Rule 71A(1) and that there is no other statutory or common law authority for the allowance of costs and attorney fees in such cases. It is the correctness of this decision which is the primary question before us upon this appeal.
[1] We recognize at the outset that Rule 71A of the Federal Rules of Civil Procedure promulgated by the Supreme Court including its subdivision (1) is applicable to the procedure in condemnation cases in the Territory of the Virgin Islands. For the Federal Rules of Civil Procedure which govern the practice and procedure in civil cases including condemnation proceedings are expressly made applicable to the Virgin Islands by section 25 of the Revised Organic Act, 48 U.S.C.A. § 1615, and the legislature of the Virgin Islands recognized this in enacting its condemnation law, 28 V.I.C. ch. 19, when it provided in section 416 of that title that:
"(b) Except as provided in this chapter, the procedure in such actions is governed by Rule 71A of the Federal Rules of Civil Procedure."
[2] A close reading of Rule 71A discloses that except for the provisions of subdivision (1) it makes no mention of costs in condemnation cases. It is also obvious that the language of subdivision (1), which does relate to costs, was carefully chosen. It states, "Costs are not subject to Rule 54(d)." It will first be noted that the rule does not say that costs shall not be allowed in such cases. On the contrary, it...
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