Town of Clarksville, Va. v. United States

• Decision Date: 05 August 1952
• Docket Number: No. 6447.,6447.
• Parties: TOWN OF CLARKSVILLE, VA., v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

198 F.2d 238 (1952)

TOWN OF CLARKSVILLE, VA., v. UNITED STATES.

No. 6447.

United States Court of Appeals Fourth Circuit.

Argued July 2, 1952.

Decided August 5, 1952.

B. S. Royster, Jr., Oxford, N. C., and George E. Allen, Richmond, Va. (Ashby B. Allen, Allen, Allen, Allen & Allen, Richmond, Va., and Frank W. Hancock, Jr., Oxford, N. C., on the brief), for appellant.

Elizabeth Dudley, Atty., Department of Justice, Washington, D. C. (Wm. Amory Underhill, Asst. Atty. Gen., A. Carter Whitehead, U. S. Atty., Harris Grimsley, Sp. Asst. to the U. S. Atty., Richmond, Va., and Roger P. Marquis, Atty., Department of Justice, Washington, D. C., on the brief), for appellee.

Before PARKER, Chief Judge, DOBIE, Circuit Judge, and HAYES, District Judge.

DOBIE, Circuit Judge.

This is an appeal from an order of the United States District Court for the Eastern District of Virginia, entered in a proceeding by the United States to condemn, among other properties, certain parts of the water and sewer lines of the Town of Clarksville, Virginia, for use in the establishment of a flood control project in that area. A trial by jury was demanded in the complaint but subsequently the parties stipulated that construction of substitute facilities would constitute just compensation for the interests of the Town which have been taken. The stipulation further provided for a judicial determination as to whether in law (a) the cost of constructing a sewage treatment plant, and (b) the cost of the operation and maintenance of five lift stations, not needed under the old system, which the United States has agreed to construct, are compensable items. The District Court denied the appellant's claim for these items, and its order further provided that the action should be held open until other conditions had been complied with, at which time final judgment would be entered determining that just compensation had been made. The memorandum opinion of the District Court is reported at 104 F. Supp. 369.

When this appeal was first filed, it was apparent that the order of the District Court was not appealable under Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., since the case was held open for future determination and the order was hence not a final one with respect to the claims involved in this appeal. See Kam Koon Wan v. E. E. Black, Ltd., 9 Cir., 182 F.2d 146, 148; Etten v. Kauffman, 3 Cir., 179 F.2d 302. But since that time the District Court has complied with Rule 54(b) by issuing an order determining that there is no just reason for delay and expressly directing entry of final judgment upon the two claims, and we think there is now jurisdiction to consider the appeal.

The general rule of appealability here is stated in Catlin v. United States, 324 U.S. 229, at page 233, 65 S.Ct. 631, 633, 89 L.Ed. 911, to be that "ordinarily in condemnation proceedings appellate review may be had only upon an order or judgment disposing of the whole case, and adjudicating all rights, including ownership and just compensation, as well as the right to take the property."

Of course, where multiple claims are involved in the condemnation, Rule 54(b) will modify this principle. That Rule reads as follows:

"(b) Judgment Upon Multiple Claims. When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims."

The condition precedent for the application of this Rule is the presence of more than one claim in the action, and where there is only a single claim or "factual occurrence" the Rule cannot be invoked to confer jurisdiction upon an appellate court. See Pabellon v. Grace Line, 2 Cir., 191 F.2d 169, 174; Canister Co. v. National Can Corp., 3 Cir., 163 F.2d 683; Western Contracting Corp. v. National Surety Corp., 4 Cir., 163 F.2d 456. Hence the inquiry in the present case is whether the two "claims" of the Town of Clarksville for additional compensation are separate claims from the rest of the condemnation award within the meaning of the Rule.

A separate claim is said to be that which is entirely distinct from other claims involved in an action and which arises from a different occurrence or transaction. See Reeves v. Beardall, 316 U.S. 282, 285, 62 S.Ct. 1085, 86 L.Ed. 1478; Western Contracting Corp. v. National Surety Corp., supra at page 458 of 163 F.2d. Thus in State of Texas v. Chuoke, 5 Cir., 154 F.2d 1, certiorari denied 329 U.S. 714, 67 S.Ct. 45, 91 L.Ed. 620, where there were two claimants to a condemnation award, which had already been agreed upon and paid into court, an order of the District Court that one claimant had no right to any of the award was held to be a decision on a separate claim. There are many other examples of separate claims found in the cases but none which throws much light on the instant question. See, e. g., Prickett v. Consolidated Liquidating Corp., 9 Cir., 180 F.2d 8, 9; Hanney v. Franklin Fire Ins. Co., 9 Cir., 142 F.2d 864; Zalkind v. Scheinman, 2 Cir., 139 F.2d 895, 903, certiorari denied, 322 U.S. 738, 64 S.Ct. 1055, 88 L.Ed. 1572; Lydick v. Fischer, 5 Cir., 135 F.2d 983; Karl Kiefer Machine Co. v. United States Bottlers Machinery Co., 7 Cir., 108 F.2d 469. See also the discussion in Moore's Federal Practice, Vol. 3, 1949 Supp. at pages 186-201.

In a sense, the two items of additional compensation which the Town demands might be said to be counterclaims, for although technically they are only part of the main award, in reality they are something separate and distinct from that which the Government included in its complaint. In any event, we do not think that the award here can be viewed as a single factual unit from which only one set of rights or claim can spring. Just as several claimants may seek to share in an award and a decision denying the right of any of them will be one on a separate claim, so a decision including or excluding a particular item of property in the compensatory list ought to be equally appealable where the District Court makes the necessary entry of judgment in compliance with Rule 54(b).

As the Supreme Court has stated, there are two competing considerations in a question of appealability: "the inconvenience and costs of piece-meal review on the one hand and the danger of denying justice by delay on the other." Dickinson v. Petroleum Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299. We think the latter consideration is more compelling here. The District Court's order is a final one for all practical purposes, since nothing is left to be done under it except construction of the substitute system (without the two additional items) and agreement by the parties on the amount of engineers' fees to be awarded. (We are informed that this amount has since been determined.) The sole contest here was over the treatment plant and lift stations, and this has now been decided by the District Court's judgment. To view this contest as only an indistinct part of the whole condemnation proceeding is to give Rule 54(b) a hyper-technical interpretation not in accord with its manifest spirit and purpose. It would mean that no order in a condemnation proceeding involving only one claimant could be appealed from, unless of course it denied the actual right of taking, until the entire proceeding was concluded. If jurisdiction is denied in the instant case, appellate review of the two issues it presents will have to wait until the substitute system is constructed, all other matters are wound up, and formal entry of judgment is made declaring that just compensation has been paid. Then if we reverse the District Court's decision on the two items, the amount to be awarded on them will still have to be determined at a time long after the case should have been closed. If Rule 54(b) was designed for any purpose, it is to afford relief in just such a situation. See Reeves v. Beardall, 316 U.S. 283, 285, 62 S.Ct. 1085, 86 L.Ed. 1478; Audi Vision, Inc. v. RCA Manufacturing Co., 2 Cir., 136 F.2d 621, 624, 147 A.L.R. 574; Collins v. Metro-Goldwyn Pictures Corp., 2 Cir., 106 F.2d 83, 85. See also Moore's Federal Practice, Vol. 3, 1949 Supp. at page 189.

We are called upon to determine whether the District Court erred in denying the Town's claim for compensation for the cost of constructing a sewage treatment plant and the operation and maintenance of the five lift stations of the new substitute system. We think that the scope and meaning of just compensation embraces these items in its ambit and that the District Court's decision was, therefore, incorrect.

The facts may be summarized as follows: The United States, by authority of the Congress of the United States, formulated plans which it is now in the process of executing, to erect some distance below the Town of Clarksville a dam on the Roanoke River to impound in a large lake its waters. This is now known as the John H. Kerr dam and reservoir, formerly the Bugg's Island project. The Town of Clarksville is located on the south side of the Roanoke River, at the confluence of the Dan and Staunton Rivers, and when the project is completed the waters of the Roanoke will inundate about 41% of the Town's present area and will render useless its present water and sewer systems.

The existing sewer system was constructed about 1926 and has been adequate to serve the Town and community. The Town is quite small, having a...