Great Falls Mfg. Co. v. Garland

• Decision Date: 28 July 1885
• Citation: 25 F. 521
• Parties: GREAT FALLS MANUF'G CO. v. GARLAND, Atty. Gen., etc., and others. [1]
• Court: U.S. Court of Appeals — Fourth Circuit

25 F. 521

GREAT FALLS MANUF'G CO. v. GARLAND, Atty. Gen., etc., and others. ^[1]

United States Circuit Court, D. Maryland.

July 28, 1885

G. M Robeson, Benj. F. Butler, and O. D. Barrett, for complainant.

John Goode, Sol. Gen., for defendant.

MORRIS J.

This motion for preliminary injunction is made upon a bill filed by the Great Falls Manufacturing Company, a corporation of the state of Virginia, against Augustus H. Garland, a citizen of Arkansas, now attorney general of the United States William C. Endicott, a citizen of Massachusetts, now secretary of war of the United States; Garrett J. Lydecker, a citizen of New York, now major of engineers in the United States army; George B. Chittenden and Samuel H. Chittenden, citizens of the United States, now dwelling in the state of Maryland, contractors with said secretary of war for the building of a dam and other structures across Conn's island, and across the Potomac river from Conn's island to the Virginia shore, and for the building of other structures and works in connection therewith on land alleged to belong to the complainant near the Great Falls of the Potomac river, in Maryland.

The complaint of the bill is that by virtue of a supposed authority granted by an act of congress approved July 15 1882, entitled 'An act to increase the water supply of the city of Washington, and for other purposes,' 'the secretary of war of the United States has taken possession of Conn's island, belonging to the complainant, and of other land and water-rights in the Potomac river belonging to the complainant, and through his agent, the said Lydecker, major of engineers, and through the said contractors, George B. & Samuel H. Chittenden, is occupying the same and building thereon a dam and other structures in disregard of complainant's ownership of said lands and water-rights, and is occupying said land with sufficient force to prevent any opposition without a breach of the peace of the state of Maryland.'

The want of lawful warrant for the acts complained of is by complainant's bill put upon the ground, (1) the unconstitutionality of the act of congress of July 15, 1885; and, (2) conceding the constitutionality of the act, upon the failure to pursue its terms. The act, so far as it affects the property of the complainant, provides that the secretary of war shall cause to be made a survey and map of 'the land necessary for a dam across the Potomac river at Great Falls, including the land now occupied by the dam, and the land required for the extension of said dam across Conn's island to and upon the Virginia shore; and when surveys and map shall have been made, the secretary of war and the attorney general shall proceed to acquire to and for the United States the outstanding title, if any, to said land and water-rights. ' It is further provided that if it shall be necessary to resort to condemnation, the proceedings shall be as follows:

'When the map and survey are completed, the attorney general shall proceed to ascertain the owners or claimants of the premises embraced in the survey, and shall cause to be published for the space of 30 days in one or more of the daily newspapers published in the District of Columbia a description of the entire tract or tracts of land embraced in the survey, with a notice that the same has been taken for the uses mentioned in this act, and notifying all claimants to any portion of said premises to file, within the period of publication, in the department of justice, a description of the tract or parcel claimed and a statement of its value, as estimated by the claimant. On application of the attorney general the chief justice of the supreme court of the District of Columbia shall appoint three persons not in the employ of the government or related to the claimants to act as appraisers, whose duty it shall be, upon receiving from the attorney general a description of any tract or parcel the ownership of which is claimed separately, to fairly and justly value the same and report such valuation to the attorney general, who thereupon shall, upon being satisfied as to the title to the same, cause to be offered to the owner or owners the amount fixed by the appraisers thereof, and if the offer be accepted then, upon the execution of a deed to the United States in form satisfactory to the attorney general, the secretary of war shall pay the amount to such owner or owners from the appropriation made therefor in this act. * * * Any person or corporation having any estate or interest in any of the lands embraced in said survey and map, who shall for any reason not have been tendered payment therefor as above provided, or who shall have declined to accept the amount tendered therefor, and any person who, by reason of the taking of said land, or by the construction of the works hereinafter directed to be constructed, shall be directly injured in any property right, may, at any time within one year from the publication of notice by the attorney general, as above provided, file a petition in the court of claims of the United States, setting forth his right or title, and the amount claimed by him as damages for the property taken or injury sustained, and the court shall hear and adjudicate such claims in the same manner as other claims against the United States are now by law directed to be heard and adjudicated therein; provided the court shall make such special rules in respect to such cases as shall secure their hearing and adjudication with the least possible delay.'

'Judgments in favor of said claimants shall be paid as other judgments of said court are now directed to be paid.'

'Upon publication of the notice as above directed, the secretary of war may take possession of the premises embraced in the survey and map, and proceed with the construction herein authorized.'

'Sec. 2. That the secretary of war be, and he is hereby, authorized and directed to * * * complete the dam at Great Falls to the level of 148 feet above tide, and extend the same at that level across Conn's island to the Virginia shore.

'The following sums, or so much as may be necessary, are hereby appropriated out of any money in the treasury not otherwise appropriated: * * * To pay for water-rights and land necessary to extend dam at Great Falls to the Virginia shore, $45,000.'

The grounds upon which the constitutionality of this act of congress is attacked, are thus stated in complainant's bill:

'And your complainant is informed and believes, and therefore avers, that even if the provisions of said act were ever so strictly followed by said attorney general and said secretary of war, and their servants and agents, and their acts done in the premises in strict accordance therewith, yet their said acts and doings, as regards your complainant, would not be justified in law, because said act is unconstitutional, and void in its provisions in these: (1) Said act makes no provisions by which reasonable compensation for the property taken for public use under its provisions can be constitutionally and lawfully adjusted and determined. (2) It does not provide that the compensation in its amount shall be ascertained by a verdict of a jury, which is a constitutional right of your complainant. (3) The act has provided that whatever wrong and injury may be done to your complainant in carrying on this public work, or in taking its land and water for such purpose of public use, that the only tribunal to which your complainant is compelled to have recourse for the adjudication of its rights is the court of claims, which is a court unknown to the constitution, being neither a court of equity, such as was known to our ancestors at the time of the ratification of the constitution, nor a court of common law, as said court does not proceed, by its constitution, in the determination of cases according to the rules of the common law as known and practiced at the time aforesaid. (4) That said court of claims is not other and different from a board of referees constituted by one party to hear and determine such cases as another party will consent to submit to judgment thereby, and even such judgment is not authoritative or binding against the party that chooses the board of referees. In addition to this, said act makes a limitation on the power of the referees to enforce any judgment against the United States, because it enacts that judgments of these referees, to whom the act compels those whose property is taken for public use alone to resort, shall be paid as other judgments of said board of referees are to be paid,-- only when the judgment debtor pleases to pay them; i.e. pleases to make an appropriation for that purpose. (5) In this, that the act directs property to be taken and entered upon, and the owner dispossessed therefrom, without any provision by which the compensation for taking said property can be paid, and this is done when neither the act nor the surrounding facts show any need of haste in so doing, or any necessity which requires that property be taken until after an appropriation at least has been made for compensation for so doing.'

With regard to the claim that complainant is entitled to have his compensation assessed by a jury, it has been so often decided that this is not a constitutional requisite that it cannot be any longer regarded as an open question. In condemnations of private property for public use in the exercise of the right of eminent domain, neither by the provisions of the constitution of the United States guarantying the right of trial by jury in common-law cases, nor under the provision forbidding a citizen being deprived of his property without due process of law, nor under similar provisions in the constitutions of states, has it been held...