Matthews v. United States

• Decision Date: 16 July 1940
• Docket Number: No. 11694,11695.,11694
• Parties: MATTHEWS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

113 F.2d 452 (1940)

MATTHEWS v. UNITED STATES.

Nos. 11694, 11695.

Circuit Court of Appeals, Eighth Circuit.

July 16, 1940

Sam Costen, of Memphis, Tenn., for appellant.

John F. Cotter, Atty., Department of Justice of Washington, D. C., (Norman M. Littell, Asst. Atty. Gen., Harry C. Blanton, U. S. Atty., of Sikeston, Mo., and Charles R. Denny and Robert H. Fabian, Attys., Department of Justice, both of Washington, D. C., on the brief), for appellee.

Before WOODROUGH and THOMAS, Circuit Judges, and BELL, District Judge.

WOODROUGH, Circuit Judge.

These appeals are taken to reverse judgments of voluntary non-suit entered on applications of the United States to condemn lands for flowage easement under the Mississippi Flood Control Act, 33 U.S.C.A. §§ 702a-702m. The lands comprise a tract of 20,000 acres in the Birds Point-New Madrid Floodway in New Madrid and Mississippi Counties, Missouri, the title to which is held by the appellant, A. J. Matthews, as trustee. Although the tract is well known as a unitary timber tract, it extends into two counties and a separate condemnation proceeding was instituted in each county. Separate judgments of voluntary nonsuit were entered and separate appeals have been taken, but in the court below and again on this appeal, the two cases have been argued together and are determined in one opinion.

The appellant's lands are located in the Birds Point-New Madrid Floodway in a region which has always been subject to overflow during times of high water in the Mississippi River. In fact the lands are low in elevation and contain at all times lakes, swamps and ponds; the contour of the land in certain places reveals that river once coursed there-through. The tract is almost entirely covered with virgin timber which replaces itself and flourishes in the conditions of flooding to which it is subjected. Flood waters do not sweep the land with current caused by overflow or diversion from the river, but rise to the substantial extent of their flood height by means of backwater from nearby St. John's Bayou. Complete details and history of the floods, as well as description of the lands, their timber, lumbering operations thereon and the relevant details of the government's flood control program, are set out in Matthews v. United States, 87 Ct. Cl. 662, where the Court of Claims made complete findings of fact relevant to the claim this appellant asserted in that case, that acts of the government had deprived him of property without due process of law. He claimed in that action that the passing of the Mississippi Flood Control Act and acts done by the United States pursuant thereto constituted a taking of his property or rights therein and that the United States in consequence was bound to compensate him as upon an implied contract. The United States denied that there had been a taking in law or in fact and asserted that there had been no past and consummated physical invasion or destruction of use by the government or an ouster of the owner of possession or beneficial use of the property. The Court of Claims decided there had been no taking at the time there involved, April 10, 1933. The Court made the following finding of fact (87 Ct.Cl. 708): "Neither the United States nor any of its agents prior to institution of this suit caused any headwaters to flow over or stand upon plaintiff's land. The Government has not caused any additional backwaters to flow over or be impounded upon plaintiff's land, nor has it caused any physical damage or injury to the land, the drainage ditches therein, or to the timber growing thereon." In the course of its opinion, the Court stated (87 Ct.Cl. 719), "The United States did not take or intend to take plaintiff's timber or business, or any property right therein, and the facts do not show that the timber or any property right therein will be damaged or destroyed by any act of the Government." In the present action there is no claim or evidence in the record that the government has, since the time referred to, physically appropriated the land or altered the conditions described in the opinion of the Court of Claims.

Subsequent to the enactment of the Flood Control Act establishing the Birds Point-New Madrid Floodway, Major Somervell of the U. S. Army Engineers wrote letters to appellant offering to agree to a valuation of the maximum amount authorized for purchase of a flowage easement over the various tracts which comprised Matthews' holding. The letters, which each referred to a definite constituent tract, were in standard form and stated if the offer to agree on a valuation was accepted, friendly condemnation proceedings would be entered in court with a request that an agreed verdict be awarded in the amount of the offer. Appellant accepted the several offers, which totaled some $394,859.51, in due time, but when flood control officials conferred with officials in the Department of Justice, the latter found the valuations offered were too high to be conscientiously recommended to a court, and the flood control officials then wrote appellant that the offers were withdrawn. New offers from the flood control officials were tendered at substantially lower valuations, but appellant did not accept them. In June of 1932 he brought suit in the Court of Claims to enforce payment for the flowage easement at the prices offered in the first letters. The government demurred to his petition, and on April 10, 1933, he sought and was granted a voluntary non-suit. On the same day he filed another action in the Court of Claims in which he abandoned the position that he had a contract enforceable against the government and pleaded that the United States, by virtue of the passing of the Birds Point-New Madrid Floodway provisions of the Flood Control Act and action undertaken pursuant thereto, had taken his land and was liable upon an implied contract to pay him the value of his damages in the amount of $1,387,500. While this action was pending in the Court of Claims, the United States on August 17, 1933, instituted the present condemnation proceedings in the Federal District Court for the Eastern District of Missouri, naming appellant and others as parties defendant.

Appellant appeared in the condemnation proceedings in the District Court and denied that anyone other than himself had an interest in the land or was properly joined as co-defendant in the action. He moved that the proceedings be dismissed, and in the course of his pleading set out the position taken by him in his action in the Court of Claims and asserted: "That by reason of the aforesaid matters and things and by reason of the institution of his said suit in said Court of Claims, this defendant, as such trustee, has elected to regard the acts of the officers and agents of the said United States of America as a taking and expropriation of a perpetual flowage right upon and over said lands for a public purpose, and has effectively waived his right to insist on condemnation proceedings, and had on April 10, 1933, and prior thereto become and since then has been limited entirely to a recovery of just compensation therefor."

He also pleaded: "That by reason of all the foregoing, at least so far as concerns this defendant, the parties, the causes of action, scope of injury, issues and relief sought or to be had or administered in this proceeding in this court, and in the said suit, so previously instituted by this defendant in said Court of Claims, are in all respects substantially identical; that there existed and exists no necessity or occasion nor in fact any right on the part of said United States of America to condemn said land or the said easement therein, and that the above entitled action and proceeding in this court is vexatious and oppressive and should abate."

The District Court held that the proceedings should be stayed, "pending a decision of this identical matter in the Court of Claims", but retained jurisdiction in case "there remain other points in it not decided by that court". The District Court appointed viewers, who were continued in their appointment from term to term.

Appellant's action in the Court of Claims proceeded to trial and was decided on May 31, 1938, when that court determined that his lands had not been taken. Matthews v. United States, 87 Ct. Cl. 662, supra. On April 6, 1939, the Secretary of War wrote to the Attorney General that further prosecution of the condemnation proceedings was unnecessary and requested dismissal. On April 11, 1939, attorneys for the United States made application to the District Court for an order dismissing the condemnation actions without prejudice; Matthews opposed the dismissal and within two days filed a motion requesting that Commissioners for the term be appointed and that they proceed to value the land for condemnation. The trial court heard argument on the motion, requested submission...