Lester v. GL Tarlton Contractor, Inc., 169
| Decision Date | 11 July 1942 |
| Docket Number | 170.,No. 169,169 |
| Citation | 45 F. Supp. 994 |
| Parties | LESTER et al. v. G. L. TARLTON CONTRACTOR, Inc., et al. MANESS v. SAME. |
| Court | U.S. District Court — Western District of Missouri |
Leo H. Johnson and Ruark & Ruark, all of Neosho, Mo., for plaintiff in No. 169.
Herbert H. Douglas and Ruark & Ruark, all of Neosho, Mo., for plaintiff in No. 170.
Richard M. Musser and Earl A. Grimes, U. S. Attys., both of Kansas City, Mo., for defendant in both cases.
Suits by the several plaintiffs were filed against the contractors who were acting for the government and under the immediate supervision of the War Department in providing and constructing facilities for military training purposes at Camp Crowder, near Neosho, Missouri.
The complaint in No. 170 is in two counts. By the first count it is averred that the defendants wrongfully entered into and upon plaintiff's real estate and forcibly deprived the plaintiff of the use thereof, and that at the present time the defendants are withholding said property from the plaintiff. The second count in substance charges that the property is not only being withheld from plaintiff, but that it is being injured and that the operations of the defendants are such as to cause physical injuries to the plaintiff and members of his family.
The complaint in No. 169 is that the defendants have wrongfully entered upon a leasehold estate owned and improved by the plaintiffs and that by the conduct and operations of the defendants such leasehold has been injured and rendered uninhabitable by the plaintiffs. On the ground that the invasion of their leasehold was wanton and willful and for the injuries alleged to have accrued to them, these plaintiffs also seek heavy damages.
The cases were removed to this court upon the ground that the defendants were acting for and on behalf of the United States Government and under its supervision in the construction of facilities for military training and other military purposes. It is asserted, moreover, that the identical properties claimed by the several plaintiffs have been appropriated by the government under the right of eminent domain and that by reason of the operations of the government on the lands involved federal questions arise and that by reason thereof the cases are removable.
1. While the complaints in the several cases do not specifically set forth matters from which federal questions would ordinarily arise, yet the court must take judicial notice of the fact that declarations of taking have been filed on the identical properties involved in these controversies. Moreover, the court will take judicial notice of the existence, operations and purposes of Camp Crowder. Notice will also be taken of the extraordinary emergency now existing wherein the government is struggling to maintain its own existence and that the national authorities are now engaged in marshaling all military forces, including both manpower and matériel. Moreover, the court will notice the law whereby the government may begin its essential operations upon property even before the title has been acquired by a proper condemnation.
See Matter of Dunn, 212 U.S. 374, loc. cit. 386, 29 S.Ct. 299, 53 L.Ed. 558.
2. Clause 11, Section 8, Article I of the Constitution of the United States empowers the Congress to declare war, and subsequent clauses enable the government, through its Congress, to raise and support armies and to exercise its authority in enacting such laws as may be necessary and proper for carrying into execution such powers, "and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
It is useless to discuss that provision of the Constitution which enables the government to appropriate property for its own use. It was well said in James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 215, 82 L.Ed. 155, 114 A.L. R. 318, that: "The right of eminent domain inheres in the federal government by virtue of its sovereignty, and thus it may, regardless of the wishes either of the owners or of the states, acquire the lands which it needs within their borders."
It follows that the government possessed the inherent power, through its proper officers, to seize the properties in question.
3. The government can only act through its agents. Although the...
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