Ledford v. Corps of Engineers of U.S., 74-8095

• Decision Date: 16 July 1974
• Docket Number: No. 74-8095,74-8095
• Citation: 500 F.2d 26
• Parties: Virgil M. LEDFORD, Plaintiff-Appellant, v. CORPS OF ENGINEERS OF the UNITED STATES et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 26

500 F.2d 26

Virgil M. LEDFORD, Plaintiff-Appellant, v. CORPS OF ENGINEERS OF the UNITED STATES et al., Defendants-Appellees.

No. 74-8095.

United States Court of Appeals, Sixth Circuit.

Decided July 16, 1974.

Charles W. Curry, Shuffett, Kenton & Curry, Lexington, Ky., Lee B. Ledford, Harlan, Ky., for plaintiff-appellant.

Eugene E. Siler, Jr., U.S. Atty., Lexington, Ky., for defendants-appellees.

Before McCREE, LIVELY and ENGEL, Circuit Judges.

PER CURIAM.

Plaintiff-Appellant moves for a stay of the order of the district court entered May 6, 1974 dissolving a temporary restraining order (which had expired by virtue of Rule 65(b) F.R.Civ.P.), denying plaintiff's motion for a preliminary injunction, denying a stay of the district court's order, and dismissing the action. The district court also determined that its order of May 6, 1974 was a final appealable order. We agree because it terminated the action. Plaintiff-Appellant, in the alternative, moves for a temporary restraining order or preliminary injunction pending final resolution of this appeal. He also moves this court to advance the appeal for hearing.

Appellant filed a complaint, April 12, 1974, to enjoin defendants from proceeding to take by condemnation a certain tract of land owned by appellant in Harlan County, Kentucky. Jurisdiction was asserted under Article III, Section 2 of the United States Constitution and under 58 U.S.C. 1358. The district court issued a temporary restraining order on April 17, 1974, but after a hearing on May 6, 1974, entered an order granting defendants-appellees' motion to dismiss the action and denied appellant's motion for a preliminary injunction. The district court found that a Declaration of Taking affecting the subject land had been filed on April 4, 1974 and that judgment had been entered thereon on April 5, 1974-- seven days before this action was commenced on April 12, 1974.

Appellant relies primarily upon United States v. 58.16 Acres of Land, etc., 478 F.2d 1055 (7th Cir. 1973), where Chief Judge Swygert recognized that there is a narrow exception to the general rule of judicial nonreviewability of an administrative decision to condemn a particular tract of property. However, that decision holds that a court may consider only a contention that property is not being taken for a public use. Once a court decides that the taking of property is for a public use, then the judicial function is exhausted, and the extent, amount, or title of property to be taken lies within administrative determination, subject only to the requirement that just compensation be paid. This limitation on the power of courts to review condemnation proceedings was stated by Mr. Justice Douglas for a unanimous court in Berman v. Parker, 348 U.S. 26, 35, 75 S.Ct. 98, 104, 99 L.Ed. 27 (1954):

It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.

Accord, United States ex rel. TVA v. Two Tracts of Land, 456 F.2d 264 (6th Cir. 1972).

The complaint in this appeal concedes the public purpose of the Martins Fork Dam and Reservoir Project, but complains 'that Engineers have taken and intend to take much larger areas of land than reported to the Congress and the public, contrary to...