In re Montgomery

• Citation: 48 F. 896
• Parties: In re MONTGOMERY et al.
• Decision Date: 19 January 1892
• Court: U.S. District Court — District of New Jersey

48 F. 896

In re MONTGOMERY et al.

United States District Court, D. New Jersey.

January 19, 1892

H. S White, Dist. Atty., J. Warren Coulston, Joseph K. McCammon and C. V. D. Joline, contra.

GREEN J.

By an act of the congress of the United States, approved April 24 1888, entitled 'An act to facilitate the prosecution of works projected for the improvement of rivers and harbors,' it was enacted 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 land or materials required for the maintenance or prosecution of such works. By another act, entitled 'An act to authorize condemnation of land for sites of public buildings, and for other purposes,' approved August 1, 1888, it was further enacted 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 hereby 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 treasury, under this act, or such other officer, to cause proceedings to be commenced for condemnation within 30 days from the receipt of the application at the department of justice. And by said act it was provided 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 of the state within which such circuit or district courts are held, any rule of the court to the contrary notwithstanding. By another act, entitled 'An act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1889, and for other purposes,' approved October 2, 1888, it was, inter alia, provided that for 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, and for the improvement of the harbor between the cities of Philadelphia, Pa., and Camden, N.J., the sum of $500,000 should be appropriated: provided, that no part of said sum should be expended until the title to the lands, forming said islands should be acquired and vested in the United States, without charge to the latter beyond $300,000 of the sum appropriated. By another act, approved March 3, 1891, entitled 'An act making appropriations for sundry civil expenses of the government for the fiscal year ending June thirteenth, eighteen hundred and ninety-two, and for other purposes,' it was enacted that for improving harbor at Philadelphia, Pa., and continuing the improvement, and for the removal of Smith's island and Windmill island, Pennsylvania, and Petty's island, New Jersey, and adjacent shoals, $300,000 were appropriated: provided, that the plan for the improvement may be modified by changing the line limiting the excavation of 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.

Under the various acts above referred to, the present proceedings were begun by way of petition to this court upon the request of the secretary of war, and by direction of the attorney general, to obtain possession by condemnation of the lands right of way, and material set out and described in the said petition for the purpose of improving the navigation of the river Delaware at or near the city of Philadelphia. The petition, reciting the acts hereinbefore set forth, alleges that the secretary of war, under the provisions of the act last above referred to, had approved modifications of the project for improving the harbor of Philadelphia by changing the line of excavation which had previously been adopted by the department in making said improvement, which modifications necessitated the acquisition by the United States of about 23 acres of land, parcel of Petty's island, in addition to that theretofore acquired; that, to acquire said lands, the secretary of war had requested the attorney general of the United States to commence these proceedings in condemnation according to the acts in such case made and provided, and that the petitioner, by its duly-authorized officials, had elected to conform said proceedings on condemnation to those authorized by the act of the legislature of New Jersey entitled 'An act to authorize the formation of railroad corporations, and to regulate the same,' approved April 2, 1873. The petition also described by metes and bounds the lands so required for the said...