Kanakanui v. United States

• Decision Date: 06 August 1917
• Docket Number: 2935.
• Parties: KANAKANUI et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

244 F. 923

KANAKANUI et al. v. UNITED STATES.

No. 2935.

United States Court of Appeals, Ninth Circuit.

August 6, 1917

The court below sustained a demurrer to the complaint of the plaintiffs in error in an action which they brought against the United States, in which it was alleged that in a prior action between the same parties the United States had sought to condemn, for the erection of a military post and fortification, a tract of land consisting of 4.3 acres together with water, riparian, and fishing rights, belonging to the plaintiffs in this action; that in said condemnation suit it was finally decreed that, upon payment into the registry of the court of the sum of $5,000, all the right title, and interest of the owners of said property should vest absolutely in the United States; that said money has not been paid, or any part thereof; that two years have elapsed since final judgment; that all the rights of the United States in the judgment have been lost to it; that at no time during said two years following said final judgment did the United States notify the plaintiffs, or either of them, that it did not claim under said judgment, 'but at all times did suffer said judgment to remain, and did claim under the same'; that the plaintiffs paid the sum of $1,100 attorney's fees in the preparation of their defense to said condemnation suit and the trial thereof, and the further sum of $64.85 for witness fees, and other expenses, all of which were reasonably incurred; and that they were damaged in the sum of $5,000 for the loss of the use of said property. For these sums, and for interest, the plaintiffs demanded judgment under the provisions of Act March 3, 1887 (24 Stat 505, c. 359), known as the Tucker Act, and under the provisions of section 505 of the Revised Laws of Hawaii of 1905, which provides as follows: 'The plaintiff must within two years after final judgment pay the amount assessed as compensation or damages; and upon failure so to do all rights which may have been obtained by such judgment shall be lost to the plaintiff; and if such payment shall be delayed more than thirty days after final judgment, then interest shall be added at the rate of seven per cent. per annum. Such payment shall be made to the clerk of the court rendering the judgment, who shall distribute the same in accordance with the order of the court. If the plaintiff shall fail to make such payment as aforesaid, the defendant shall be entitled to recover his costs of court, reasonable expenses and such damage as may have been sustained by him by reason of the bringing of the action.' David L. Withington, of Honolulu, T.H. (William R. Castle, W. A. Greenwell, and Alfred L. Castle, all of Honolulu, T.H., of counsel), for plaintiffs in error.

John W. Preston, U.S. Atty., and Ed. F. Jared, Asst. U.S. Atty., both of San Francisco, Cal., and S. C. Huber, U.S. Atty., of Honolulu, T.H.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

The only limitation upon the power of the United States to exercise the right of eminent domain is that just compensation shall be made for property taken. Just compensation means the full equivalent for the property taken. Monongahela Navigation Co. v. United States, 148 U.S. 312, 326, 13 Sup.Ct. 622, 37 L.Ed. 463. By the terms of the judgment of condemnation as it is here pleaded, and by the rule sustained by the weight of authority, there was no taking of the property which was sought to be condemned. Lewis on Eminent Domain, (3d Ed.) Sec. 655. The United States had the right to and did abandon the proceeding. The complaint in the present action clearly shows that the plaintiffs suffered substantial damage by reason of the action of the defendant, and it must be conceded that the statute of Hawaii is just and equitable, in that it permits recovery for such damages.

The question here, however, is whether the United States has subjected itself to liability under that statute. Congress might have enacted that the condemnation suit be conducted according to common law, or by a procedure wholly irrespective of that of the territory of Hawaii. By the act of August 18, 1890 (26 Stat. 316), Congress made the general provision under which the condemnation suit was brought, which was that condemnation shall be conducted in accordance with the laws relating to suits for the condemnation of...