In re United States, No. 17267.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtHUTCHESON, , and JONES and WISDOM, Circuit
Citation257 F.2d 844
PartiesIn re UNITED STATES of America Praying for a Writ of Mandamus or Writ of Prohibition.
Decision Date01 August 1958
Docket NumberNo. 17267.

257 F.2d 844 (1958)

In re UNITED STATES of America Praying for a Writ of Mandamus or Writ of Prohibition.

No. 17267.

United States Court of Appeals Fifth Circuit.

August 1, 1958.


257 F.2d 845

Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis and Harold S. Harrison, Attys., Dept. of Justice, Washington, D. C., James L. Guilmartin, U. S. Atty., Miami, Fla., Robert F. Nunez, III, Asst. U. S. Atty., Tampa, Fla., for petitioner.

Chester H. Ferguson, John M. Allison, Tampa, Fla., for respondent.

Before HUTCHESON, Chief Judge, and JONES and WISDOM, Circuit Judges.

HUTCHESON, Chief Judge.

This is a petition for mandamus or prohibition to compel the district judge to set aside an order1 vacating a declaration of taking, as amended, entered by him in a condemnation proceeding,2 and

257 F.2d 846
to proceed to enter an appropriate order granting possession of the property here involved to the United States under the provisions of the Act of Feb. 26, 1931, 46 Stat. 1421, 40 U.S.C.A. § 258a, and the Act of August 7, 1956, 42 U.S.C.A. § 1594a

Two questions are presented for decision:

(1) Is Mandamus available to test the validity of the complained of order?

(2) Is the order invalid as claimed?

For the reasons hereafter briefly stated and upon the authorities cited in support, we think it clear that both questions must be answered in the affirmative.

As all, including the petitioner, agree, the order is not appealable. Dade County, Florida v. United States, 5 Cir., 142 F.2d 230; Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911; United States v. Richardson, 5 Cir., 204 F.2d 552.

On the other hand, we are in no doubt that this is a proper case for the issuance of the alternative writ under the principle applied in Richardson's case, supra, in denying its issuance there:

"* * * We are in no doubt that we have jurisdiction to issue an alternative writ in a proper case but these writs as was said in Ex parte Fahey, 332 U.S. 258, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041 `should be resorted to only where appeal is a clearly inadequate remedy. * * * As extraordinary remedies, they are reserved for really extraordinary causes.\' The present case may not be so characterized. The appellant contends that if a writ is not granted it is left without a remedy and that the power of reviewing will be defeated. Further that the order for examination constituted not only an abuse of discretion but an error as to the scope of the court\'s authority under the rules." 204 F.2d at page 556.

Indeed, the order granting defendant's motion to vacate the declaration of taking presents a perfect case for relief by mandamus, since it was not the function, and it was beyond the power, of the court to make such an order, and therefore no question of the use or abuse of discretion is presented. This is settled by the cases,3 as quotations from some of them will show.

In Dade County, Florida v. United States, 5 Cir., 142 F.2d 230, 231, this court, saying:

"The court does not award the right of possession nor adjudge the title. * * * The law gives the right of possession, apparently without the necessity of any court order, though it is orderly and decent to get one."

goes on to say:

"The statute declares: `Upon the filing of said declaration of taking and the deposit in the court, to the use of the persons entitled thereto, of the amount of the estimated compensation stated in said declaration, title to the said lands * * * shall vest in the United States of America * * * and the right to just compensation for the same shall vest in the persons entitled thereto.\' It does not matter whether the court makes any order about it or not.
257 F.2d 847
The Act proceeds to say: `and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein.\' That is the real and substantial function of the court. That judgment is the essential and final one."

United States v. Dow, 357 U.S. 17, 78 S.Ct. 1039, 1045, 2 L.Ed.2d 1109, is to the same effect. There the court said:

"The Taking Act does not bestow independent authority to condemn lands for public use. On the contrary, it provides a proceeding `ancillary or incidental to suits brought under other statutes,\' Catlin v. United States, supra, 324 U.S. 229 at page 240, 65 S.Ct. 631 at page 637, 89 L.Ed. 911. Such a proceeding can be instituted either at the commencement of the condemnation suit under the `other statutes\' or, as in this case, after such a suit has been commenced and either before or after the Government has taken possession. In both situations the Taking Act enables the United States to acquire title simply by depositing funds `for or on account\' of the just compensation to be awarded the owners, rather than by making payment pursuant to a court order. In those cases where the Government has not yet entered into possession, the filing of the declaration enables it to enter immediately and relieves it of the burden of interest from the time of filing to the date of judgment in the eminent domain proceedings. See United States v. Miller, supra, 317 U.S. 369 at pages 380-381, 63 S. Ct. 276 at pages 283-284, 87 L.Ed. 336.
"The scheme of the Taking Act makes it plain that when the Government files a
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22 practice notes
  • Richardson v. Ramirez 8212 1589, No. 72
    • United States
    • United States Supreme Court
    • 24 Junio 1974
    ...assumption that the latter would abide by the opinion of the court of appeals without the compulsion of such a writ. In re United States, 257 F.2d 844 (CA5 1958); In re United States, 207 F.2d 567 (CA5 1953). We think that the reliance of the Supreme Court of California on its earlier decis......
  • United States v. 6.584 Acres of Land, Civil Action No. 7:20-cv-00244
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 12 Abril 2021
    ...98 ).107 2,606.84 Acres , 432 F.2d at 1290.108 Id.109 Dkt. No. 22 at 13, ¶ 35.110 See 71.1(c) and 40 USC § 3114.111 In re United States , 257 F.2d 844, 848 (5th Cir. 1958).112 Id. at 849 ("It should be noted that the deposit in no way affects substantial rights of landowners, and that the e......
  • Edwards v. Arkansas Power & Light Co., No. 81-1865
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 18 Agosto 1982
    ...1109 (1958). Nor does current federal case law recognize an injury due to the filing of an inadequate deposit. In In Re United States, 257 F.2d 844 (5th Cir.), cert. denied, 358 U.S. 908, 79 S.Ct. 234, 3 L.Ed.2d 228 (1958), a District Court had vacated the government's declaration of taking......
  • United States v. 49.79 Acres of Land, Civ. A. No. 82-732.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • 29 Septiembre 1983
    ...or even for notice prior to vesting of title. In re United States of America Praying for a Writ of Mandamus or Writ of Prohibition, 257 F.2d 844, 849-50 (5th Cir.), cert. denied sub. nom. Certain Interests in Property in Hillsboro County, Florida v. United States, 358 U.S. 908, 79 S.Ct. 234......
  • Request a trial to view additional results
22 cases
  • Richardson v. Ramirez 8212 1589, No. 72
    • United States
    • United States Supreme Court
    • 24 Junio 1974
    ...assumption that the latter would abide by the opinion of the court of appeals without the compulsion of such a writ. In re United States, 257 F.2d 844 (CA5 1958); In re United States, 207 F.2d 567 (CA5 1953). We think that the reliance of the Supreme Court of California on its earlier decis......
  • United States v. 6.584 Acres of Land, Civil Action No. 7:20-cv-00244
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 12 Abril 2021
    ...98 ).107 2,606.84 Acres , 432 F.2d at 1290.108 Id.109 Dkt. No. 22 at 13, ¶ 35.110 See 71.1(c) and 40 USC § 3114.111 In re United States , 257 F.2d 844, 848 (5th Cir. 1958).112 Id. at 849 ("It should be noted that the deposit in no way affects substantial rights of landowners, and that the e......
  • Edwards v. Arkansas Power & Light Co., No. 81-1865
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 18 Agosto 1982
    ...1109 (1958). Nor does current federal case law recognize an injury due to the filing of an inadequate deposit. In In Re United States, 257 F.2d 844 (5th Cir.), cert. denied, 358 U.S. 908, 79 S.Ct. 234, 3 L.Ed.2d 228 (1958), a District Court had vacated the government's declaration of taking......
  • United States v. 49.79 Acres of Land, Civ. A. No. 82-732.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • 29 Septiembre 1983
    ...or even for notice prior to vesting of title. In re United States of America Praying for a Writ of Mandamus or Writ of Prohibition, 257 F.2d 844, 849-50 (5th Cir.), cert. denied sub. nom. Certain Interests in Property in Hillsboro County, Florida v. United States, 358 U.S. 908, 79 S.Ct. 234......
  • Request a trial to view additional results

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