In re Manderson

• Decision Date: 16 August 1892
• Citation: 51 F. 501
• Parties: In re Manderson et al.
• Court: U.S. Court of Appeals — Third Circuit

51 F. 501

In re Manderson et al.

United States Court of Appeals, Third Circuit.

August 16, 1892

J Warren Coulston and Samuel Dickson, (Henry S. White, U.S Atty., and C. V. D. Joline, on the brief,) for plaintiff in error.

Wm. C Hannis, for defendants in error.

Before DALLAS, Circuit Judge, and BUTLER and WALES, District Judges.

WALES District Judge.

Proceedings were instituted in the court below for the condemnation of certain lands lying within the state of New Jersey, and which are required by the United States for continuing the improvement of the harbor at Philadelphia. A petition was filed by the proper officer of the government, describing the lands necessary to be taken, naming their owners, and setting forth the substance of the several acts of congress which, it is alleged, authorize the said proceedings. The acts of congress referred to in the petition are:

(1) The act of March 3, 1891, entitled 'An act making appropriation for sundry civil expenses of the government for the fiscal year ending June, thirtieth, eighteen hundred and ninety-two, and for other purposes,' and containing the following appropriation:

'Engineer Department. For improving harbor at Philadelphia, Pennsylvania; continuing improvement; removal of Smith's island and Windmill island, Pennsylvania, and Petty's island, New Jersey, and adjacent shoals,-- three hundred thousand dollars: provided, that the plan for the improvement may be modified by changing the line limiting the excavation on Petty's island to such position as the secretary of war may consider desirable, and the material to be removed from said islands and shoals under this appropriation, and appropriations heretofore made, shall be deposited and spread on League island, and to the extent of the cost of such deposit and spreading the said appropriations are hereby made available: provided, further, that the title to any additional lands acquired for this purpose shall be vested in the United States without charge to the latter.' 26 U.S.St. 977.

(2) The act of April 24, 1888, entitled 'An act to facilitate the prosecution of works projected for the improvement of rivers and harbors,' which reads as follows:

'That the secretary of war may cause proceedings to be instituted, in the name of the United States, in any court having jurisdiction of such proceedings, for the acquirement by condemnation of any land, right of way, or material needed to enable him to maintain, operate, or prosecute works for the improvement of rivers and harbors for which provision has been made by law; such proceedings to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the states wherein the proceedings may be instituted: provided, however, that when the owner of such land, right of way, or material shall fix a price for the same, which in the opinion of the secretary of war shall be reasonable, he may purchase the same at such price without further delay: and provided, further, that the secretary of war is hereby authorized to accept donations of lands or materials required for the maintenance or prosecution of such works.' 25 U.S.St. 94.

(3) The act of August 1, 1888, entitled 'An act to authorize condemnation of land for sites of public building, and other purposes,' which reads thus:

'That in every case in which the secretary of the treasury, or any other officer of the government, has been, or hereafter shall be, authorized to procure real estate for the erection of a public building or for other public uses, he shall be, and thereby is, authorized to acquire the same for the United States by condemnation, under judicial process, whenever in his opinion it is necessary or advantageous to the government to do so; and the United States circuit or district courts of the district wherein such real estate is located shall have jurisdiction of proceedings for such condemnation; and it shall be the duty of the attorney general of the United States, upon every application of the secretary of the treasury, under this act, or such other officer, to cause proceedings to be commenced for condemnation within thirty days from the receipt of the application at the department of justice.

'Sec. 2. The practice, pleadings, forms, and modes of proceeding 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 of the state within which such circuit or district courts are held, any rule of the court to the contrary notwithstanding.' 25 U.S.St. 357.

Reference is also made in the petition to the act of congress of August 11, 1888, whereby the sum of $500,000 was appropriated for improving the harbor at Philadelphia by the removal of Smith's island and Windmill island, in the state of Pennsylvania, and Petty's island, in the state of New Jersey, or such parts of them, and the shoals adjacent thereto, as may be required:

'Provided, that no part of this sum shall be expended until the title to the lands forming said islands shall be acquired and vested in the United States without charge to the latter beyond three hundred thousand dollars of the sum herein appropriated.' 25 U.S.St. 403.

The petition further states that the secretary of war...