State Road Department of Florida v. United States

• Decision Date: 01 April 1948
• Docket Number: No. 12133.,12133.
• Citation: 166 F.2d 843
• Parties: STATE ROAD DEPARTMENT OF FLORIDA v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

166 F.2d 843 (1948)

STATE ROAD DEPARTMENT OF FLORIDA v. UNITED STATES.

No. 12133.

Circuit Court of Appeals, Fifth Circuit.

April 1, 1948.

Calvin A. Johnson, of Tampa, Fla., for appellant.

A. Devitt Vanech, Asst. Atty. Gen., Roger P. Marquis and Elizabeth Dudley, Attys. Department of Justice, both of Washington, D. C., H. S. Phillips, U. S. Atty., of Tampa, Fla., and William D. Jones, Jr., Special Asst. to Atty. Gen., for the United States.

Before SIBLEY, WALLER, and LEE, Circuit Judges.

WALLER, Circuit Judge.

On the 6th of February, 1943, the United States instituted condemnation proceedings to secure the use during the then existing national emergency of certain parcels of land in St. Lucie County, Florida, as an amphibious training base. The State Road Department of Florida was the owner of the land on which a segment of highway extended into the area taken, but it was not made a defendant in the proceedings nor did the petition attempt, by express description, to condemn any part of such road or right of way. On the contrary, the amended petition expressly stated that "all rights of way deeded or acquired for public roads thru this tract" were excepted from the lands taken. On March 18, 1946, a final judgment was entered fixing the compensation to be paid defendant landowners, with no provision for any payment to the State Road Department.

After such final judgment the United States gave public notice that the trial of all matters relating to damages to lands taken would begin on February 5, 1947. On March 27, 1947, the State Road Department filed a petition in the condemnation suit alleging that it owned the legal title to the highway within the area and that the United States: (a) had taken exclusive possession at the time of the original taking of the lands; (b) had posted guards at the end of a bridge on the road and had excluded it and the public from use thereof from March, 1943, until August, 1946; (c) had made such hard and constant use of the road by its trucks and equipment as to practically destroy it and so as to make it necessary, upon its return to the State Road Department, for it to expend the sum of $14,818.32 to restore the highway to the condition it was in when taken.

A motion of the United States to strike the amended petition of Appellant was sustained, with this appeal resulting.

The Road Department is here insisting that since the petition in condemnation embraced all the land within the area, and since it owned the road in fee simple and not merely an easement or right of way, the exception of the existing easements or rights of way did not exclude its land and the road located thereon, and consequently the United States took the highway in the condemnation proceedings. Its argument, so premised, continues to the conclusion that since the United States had thus taken its road and by its exclusive and hard use had practically destroyed same, it, the owner, was belatedly entitled to an award of...