J. F. Schneider & Son v. Watt

• Decision Date: 17 October 1952
• Citation: 252 S.W.2d 898
• Parties: J. F. SCHNEIDER & SON, Inc. v. WATT et al.
• Court: United States State Supreme Court — District of Kentucky

Page 898

252 S.W.2d 898

J. F. SCHNEIDER & SON, Inc. v. WATT et al.

Court of Appeals of Kentucky.

Oct. 17, 1952.

Rehearing Denied Dec. 19, 1952.

Robert J. Watson, Middlesboro, for appellant.

J. D. Buckman, Jr., Atty. Gen., Guy L. Dickinson, Asst. Atty. Gen., Logan Patterson, James Wilson, Pineville, for appellee.

MILLIKEN, Judge.

This is an appeal from a judgment dismissing the action when the appellant (plaintiff below) refused to plead further after a general demurrer had been sustained to its petition. The appellant had sought to recover damages from the individual members of the Kentucky National Park Commission (hereinafter called the Commission) because they allegedly exceeded their authority when they requested the Secretary of the Interior of the United States to institute condemnation proceedings against appellant's property in a federal court, and which action was dismissed after appellant allegedly had incurred expenses amounting to $5,981.10 in preparing its case for a trial which never eventuated, because the United States dismissed the action when the Commission failed to have funds available for the payment of an award.

The appellant's petition reveals that by appropriate legislation Congress had provided that when certain lands in Bell and Harlan Counties, Kentucky, Lee County, Virginia, and Claiborne County, Tennessee, as might be designated by the Secretary of the Interior, were acquired and title thereto vested in the United States, it would erect the Cumberland Gap National Historical Park provided 'That the United States shall not purchase by appropriation of public moneys any lands within the aforesaid areas'. 16 U.S.C.A. Sec. 261 et seq. It is further alleged that the Secretary of the Interior so defined the boundary of the Park that it included appellant's property which contained 5.67 acres upon which is located its meat packing plant. The petition also alleges that on June 14, 1946, the Commission adopted an order formally asking the Secretary of the Interior to institute condemnation proceedings against appellant's land and assurance was given the Secretary that funds would be available for the payment of any award made, but that there were no funds available at the time of the request and that no appropriation later was made for the purpose by the General Assembly of Kentucky, and, as a consequence, the condemnation suit was dismissed upon motion of the United States.

The appellant contends that it is entitled to recover from the individual members of the Commission its expenses incurred in preparing its case for trial because: (1) The Commission did not have sufficient funds to pay for the property which had been valued at $300,000 to $600,000 at the time it requested the United States to institute condemnation proceedings; (2) the Commission was not authorized to transfer money for the purchase of lands for national parks; and (3) the suit was brought in the United States District Court, whereas Kentucky Statutes require that suits brought by the Commission be instituted in the county where the land lies. These contentions will be discussed in reverse order.

The powers and functions of the Kentucky National Park Commission are embraced within KRS 148.090 thorugh 148.150. In regard to contention No. 3, KRS 148.120 duly requires that condemnation proceedings instituted by the Commission be brought in the county where the property lies. However, the Commission did not institute any suit against the appellant, nor was it a party to such a suit. The condemnation suit against the appellant was filed by the United States as authorized by Section 263 of Title 16 or Section 257 of Title 40 U.S.C.A. The legislative restriction concerning the choice of a forum imposed upon the Commission by our Statutes is not applicable to the selection of a forum by the United States.

At first blush, it would not...