Iriarte v. United States, 4113

• Decision Date: 14 August 1946
• Docket Number: No. 4113,4114.,4113
• Court: U.S. Court of Appeals — First Circuit
• Parties: IRIARTE et al. v. UNITED STATES. UNITED STATES v. IRIARTE et al.

157 F.2d 105 (1946)

IRIARTE et al. v. UNITED STATES.

UNITED STATES v. IRIARTE et al.

Nos. 4113, 4114.

Circuit Court of Appeals, First Circuit.

August 14, 1946.

George S. Swarth, Atty., Department of Justice, of Washington, D. C. (J. Edward Williams and Roger P. Marquis, both of Washington, D.C., and Philip F. Herrick, U.S. Atty., of San Juan, P. R., on the brief), for the United States.

Celestino Iriarte, Jr., of San Juan, P. R., Jose A. Poventud, of Ponce, P. R., and Hector Gonzalez Blanes, of San Juan, P. R., for Celestino Iriarte, Jr., and others.

Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.

WOODBURY, Circuit Judge.

These are cross-appeals from a judgment of the District Court of the United States for Puerto Rico awarding $33,297 as just compensation for 33.297 acres, more or less, of land fronting on Pueblo Viejo Bay in San Juan Harbor condemned and taken by the United States Government for purposes admittedly of a military nature.

The United States filed its Declaration of Taking and its Petition for condemnation in the court below on May 31, 1941. In the Declaration the then Secretary of War alleged that the taking was under various acts of Congress, including that of August 1, 1888, 25 Stat. 357, 40 U.S.C.A. § 257 et seq., that of August 18, 1890, 26 Stat. 316, as amended by the Acts of July 2, 1917, 40 Stat. 241 and April 11, 1918, 40 Stat. 518, 50 U.S.C.A. § 171, and that of February 26, 1931, 46 Stat. 1421, 40 U.S.C.A. § 258a, and acts supplementary thereto and amendatory thereof; that the full fee simple title to the lands and all the buildings and improvements thereon and appurtenances thereto was being taken; and that $7,311.60 as the estimated just compensation therefor was simultaneously deposited in the registry of the court for the use and benefit of the persons entitled thereto. In this Declaration the Secretary of War set out that "The public uses for which said lands are taken are as follows: The said lands are necessary to adequately provide for storage and terminal facilities at an army base. The said lands have been selected by me for acquisition by the United States for use in connection with the establishment of a terminal and dock to serve the Puerto Rican General Depot, and for such other uses as may be authorized by Congress or by Executive Order, and are required for immediate use."

The Petition for Condemnation recites the same statutory authority for the taking and that: "The Secretary of War, acting under the authority vested in him by the acts herein above stated, has determined that, in his opinion, it is necessary and advantageous to acquire the lands involved for the United States by condemnation under judicial process * * * for the purposes of the acts above set forth, to be used for military purposes."

On the day the Declaration and Petition were filed the court below on the petitioner's motion entered a judgment vesting title to the lands in fee simple in the United States, and also giving it the right to possession immediately upon the service of a copy of the Judgment, Petition and Summons upon the defendants in possession of the premises. Thereafter the defendants below answered alleging that they were the sole owners in fee simple absolute of the lands involved, and that the amount deposited as just compensation was wholly inadequate — the fair market value of the land being in fact not less than $200,430. The United States admitted the defendants' title, and at the trial in the District Court the sole issue litigated was the value of the land, the principal bone of contention being the most valuable use to which it could readily be devoted — the defendants contending that it was eminently suitable for development as industrial water-front property in the way the United States in fact developed it; the United States taking the position that such development was so expensive that only it or the Insular Government could undertake such a project and that in private hands the best use for the land was to subdivide it and sell it in small lots for the erection of low-cost houses.

We shall consider the defendants' points of appeal first.

The defendants now for the first time question the statutory authority of the Secretary of War to take their lands in the name of the United States for the purpose disclosed in the Declaration of Taking. They do not question the taking on the ground that their lands are not to be put to a public use of a military nature. Nor do they question the Secretary's administrative determination of the necessity for taking their lands for that use. Their contention boils down to the specific proposition that although the act of August 18, 1890, as amended by the acts of July 2, 1917, and April 11, 1918, supra, 50 U.S.C.A. § 171, authorizes the acquisition of "any land, temporary use thereof or other interest therein, or right pertaining thereto, needed for the site, location, construction, or prosecution of works for fortifications, coast defenses, military training camps" etc., it does not authorize the acquisition of lands "for use in connection with the establishment of a terminal and dock to serve the Puerto Rican General Depot." We cannot subscribe to this contention. In fact we regard it as so lacking in merit that we do not pause to consider possible impediments to our considering it due to the failure of the defendants to raise it below.

Construed as the defendants would have it the statutory language quoted above would authorize the taking of lands by the United States for use as the actual sites of fortifications, coast defences or military training camps, but would not authorize the taking of lands by the United States to provide access to such military installations or even, possibly, to provide the lands needed for storage of the ammunition and other supplies and equipment essential to make such installations effective. It is hard to believe that Congress intended any such extraordinary result to follow from the language it used. On the contrary it seems to us abundantly clear that by providing that lands may be taken not only for the site, but also for the "prosecution of" the military installations enumerated, Congress must have intended to authorize the taking of whatever lands the Secretary of War might validly determine to be necessary for use in connection with land devoted directly and immediately to fortifications, coast defenses or military training camps. Thus we have no difficulty in reaching the conclusion that the statute authorizes the taking of land for the uses and purposes disclosed in the Declaration of Taking and Petition for Condemnation. See City of Oakland v. United States, 9 Cir., 124 F.2d 959, 964, certiorari denied 316 U.S. 679, 62 S.Ct. 1106, 86 L.Ed. 1753.

The former owners of the land involved herein concluded their answer in the court below with a demand for "trial by jury as provided by acts of Congress," and at the outset of the trial they argued their right thereto at length in the District Court. That court, however, refused their request on the ground that § 2 of the act of August 1, 1888, supra, now 40 U.S.C.A. § 258, required conformity as near as may be with local practice and procedure, and local practice and procedure in Puerto Rico did not require or even permit, trial by jury on the issue of value, or any other issue, in condemnation cases. We think this ruling correct.

The defendants did not suggest in the court below, nor do they suggest here, that trial by jury in condemnation cases is or ever was a feature of insular law. Instead they contended below that they were entitled to a jury trial by the Seventh Amendment. Now, however, they have abandoned that claim, apparently either in recognition of the rule that "By the constitution of the United States, the estimate of the just compensation for property taken for the public use, under the right of eminent domain, is not required to be made by a jury," (Bauman v. Ross, 167 U.S. 548, 593, 17 S.Ct. 966, 983, 42 L.Ed. 270, and cases cited) or possibly because of the statement in Balzac v. Puerto Rico, 258 U. S. 298, 304, 305, 42 S.Ct. 343, 66 L.Ed. 627, that the constitutional provisions for trial by jury in criminal and civil cases do not apply to territory belonging to but not incorporated into the Union, and rest their contention solely upon 28 U.S.C.A. § 770, which provides, so far as material, that "The trial of issues of fact in the district courts, in all causes except cases in equity and cases of admiralty and maritime jurisdiction, and except as otherwise provided in proceeding in bankruptcy, shall be by jury."

Thus, there being no constitutional question presented, and it being conceded that the law of Puerto Rico does not provide for trial by jury in condemnation cases, the problem before us is to reconcile the provisions of § 2 of the act of August 1, 1888, 40 U.S.C.A. § 258, requiring conformity as near as may be with local forms of trial in cases like this, with the provisions of 28 U.S.C.A. § 770 requiring trial of issues of fact in District Courts by a jury except in cases in equity, in admiralty, and in certain instances in bankruptcy.

Two rules of statutory construction point unmistakably to the conclusion that the provisions of § 2 of the act of 1888 control. In the first place the provision for trial by jury contained in 28 U.S.C.A. § 770, stems directly from § 9 of the Judiciary Act of 1789, 1 Stat. 73, 77, and thus antedates the conformity provision of the act of 1888 by very nearly a century, so that the rule applies that a later expression of the legislative will supersedes a former conflicting expression thereof. Beatty v. United States, 4 Cir., 203 F. 620, 621, 622. Then in the second place the statutory requirement of trial by jury is general, whereas the statutory requirement of conformity is specific, so that the rule applies that when there are two conflicting statutes upon the same...