Town of Nahant v. United States

• Decision Date: 20 March 1905
• Docket Number: 529.
• Parties: TOWN OF NAHANT v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

136 F. 273

TOWN OF NAHANT v. UNITED STATES.

No. 529.

United States Court of Appeals, First Circuit.

March 20, 1905

James R. Dunbar and William Hoag, for plaintiff in error.

William H. Garland, Asst. U.S. Atty.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

ALDRICH District Judge.

This is a proceeding instituted by the United States for condemnation of certain land at Nahant needed by the general government for fortifications and coast defenses, together with all roads, ways, and avenues included in the description of land as well as all buildings and structures. The petition of the United States contains a prayer for notice to certain parties of interest expressly named, and a general prayer for notice to all parties interested in the lands described, and part thereof, and rights therein, and for an appraisement and valuation by a jury of the land and ways and interests therein, and any buildings standing on said land, including all damages sustained by the owner or owners thereof.

Following the prayer of the petition, the District Court ordered notice to the parties of interest named, and to any and all persons corporations, and associations who may be interested in the lands described in the petition, or any parts thereof or rights therein, and that they and each of them appear before the court, and show cause why the petition should not be granted as prayed for.

The order further directed the marshal to serve a copy of the petition upon parties of interest expressly named, and to give notice to all persons, corporations, or associations interested, by publication, and the return shows that notice was in fact given in accordance with the order. Subsequently but seasonably, the town of Nahant, in which the property is situated, filed its application for leave to be admitted as a party, and for leave to file its answer to the petition, that it might recover from the United States fair damages for the taking of its property.

In pursuance of its purpose to be heard and recover fair damages, the town filed its answer, in which it claimed interests in the condemned property, consisting of easements and rights of way over which it had built, at great expense, macadamized, crushed stone, and graveled streets, and under which, and in lands not streets, it had built and laid sewers and sewer pipes. The answer further sets forth that the town had built and laid water pipes, and that the taking of the land and the streets by the petitioner, and cutting off the sewers, stop the drainage of the land outside the land condemned, and would compel the town to build and maintain a new and expensive system of drainage. The answer concludes with a prayer that the jury may appraise the damages by reason of the taking of the land, its easements and improvements, including streets, sewers, and water pipes, for which compensation was demanded from the petitioner.

After service, and before trial, an agreement as to values and damages was duly entered into between the government and certain of the parties of interest, and subsequently a jury was duly impaneled, to which the cause was committed. At the trial it was admitted that no plan had been filed in the office of the Secretary of State of Massachusetts, as required by the act of May 6, 1902 Laws 1902, p. 289, c. 373), and that certain taxes were assessed upon the land in question on the 1st day of May, 1902; and the town claimed as an element of damage, or as an interest to be appraised and valued, a lien for the amount of the taxes assessed upon land condemned.

To state the substance of the town's claim for compensation, it offered to prove that within the territory condemned certain streets had been located and constructed by the town; that in such streets there were water pipes belonging to the town, connecting with and forming a part of its system, and that the taking by the United States would compel the town to construct other lines for the purpose of carrying water to its inhabitants, and for the purpose of completing the town water system; and that in such streets there were certain sewers, the property of the town, and part of it sewer system, discharging through an outlet into the ocean, which were taken by the government, and that the sewers taken cared for the sewage of other portions of the town not taken; and that the taking of the sewers condemned would make it necessary to construct new sewers, and construct a new outlet or outlets for the sewerage system of the town.

The court excluded all such evidence as irrelevant and incompetent, and ruled that the town was not entitled to damages either on account of taxes, or because of the taking of the land in which the water pipes and sewers were laid, and the town excepted. No questions were submitted to the jury as to the interests of the town, and the jury rendered verdicts condemning the land described in the petition, and awarded damages to the owners of the fee, but none to the town; and a decree of condemnation was entered, covering the land described, together with all roads, ways, and avenues included in the description of the land, with all buildings and structures on the described premises; and the decree further recites that the land taken is shown upon a plan annexed to the petition.

It results, therefore, that we are confronted with the question whether the claim and offer of the town disclosed any interest in the property taken and condemned, for which it was entitled to compensation.

The petition in this case was filed April 29, 1902, and sets forth that the proceeding was instituted by the Attorney General of the United States, upon the application of the Secretary of War, in accordance with an act of Congress approved August 1, 1888, c. 728, Sec. 1, 25 Stat. 357 (U.S. Comp. St. 1901, p. 2516), entitled 'An act to authorize condemnation of land for sites of public buildings, and for other purposes. ' In the following May there was passed in the state of Massachusetts an act entitled 'An act to approve the acquisition by the United States of a tract of land in the town of Nahant. ' Chapter 373, p. 289, Acts 1902. It is now contended by the United States that this proceeding for condemnation is so far authorized by the Massachusetts statute as to entitle the United States to stand upon the Massachusetts law as to the rule of damages where property taken for a second and different public use is connected with a prior public use authorized by the state, and that the rule of the local law is controlling.

We do not accept such view. The Massachusetts act was merely a recognition of the inherent power of the central government to exercise its own right of eminent domain, and a consent which amounts to a waiver of its jurisdiction under certain expressed limitations, and of all objection, if any, which the commonwealth might assert as a state upon consideration of its prior grants or delegations of quasi public power to municipal or other corporate interests. By the terms of the Massachusetts statute, it was an act to approve of and consent to the acquirement by the United States, through purchase or by condemnation, of land within its territory for purposes of national defense, reserving concurrent jurisdiction with the United States in and over the area to be acquired, only so far that all civil and criminal process issuing under authority of the commonwealth might be executed on the land so acquired. The act does not employ any express words of grant, nor does it contain any expression indicating a purpose to transfer property, municipal or otherwise, to the United States, without compensation. The manifest and only purpose of the state was to acquiesce in the idea that the general government might acquire by purchase, or in its inherent right, through condemnation, under its own constitutional limitations-- its own safeguards and proceedings--territory within the limits of Massachusetts for purposes of national defense.

In the case of Kohn et al. v. United States, 91 U.S. 367, 23 L.Ed. 449, where it was contended that the Circuit Court had no jurisdiction over a proceeding brought by the United States for condemnation of property within a state, and that the condemnation provided for by act of Congress meant condemnation by the state government in the exercise of its power of eminent domain, and that, if the state grant of power was accepted by the United States, it must be exercised in the mode and by the tribunal the state had prescribed, it was broadly, distinctly, and emphatically asserted that the principle of the right of eminent domain exists in the government of the United States as an inherent, necessary, and independent attribute of sovereignty; that the power of the United States in such respect is complete, and without any limitation that it shall be exercised in the manner prescribed for condemnation by a state; and that a proceeding in the United States court for condemnation for necessary public and federal uses is one by the United States government in its own right, and by virtue of its own eminent domain. See, also, United States v. Gettysburg Electric Railway, 160 U.S. 668, 679, 16 Sup.Ct. 427, 40 L.Ed. 576.

The United States, in the exercise of such inherent and paramount right of eminent domain, is under its own limitation and injunction in respect to questions relating to just compensation for property taken in its own right; and this results from the fifth amendment to the federal Constitution, which declares that private property shall not 'be taken for public use without just compensation.'

What would be just compensation for property taken by the general government in its exercise of the right to condemn property used for a prior federal...