U.S. v. 125.2 Acres of Land, More or Less, Situated in Town and County of Nantucket, Mass., 83-1835

• Decision Date: 13 April 1984
• Docket Number: No. 83-1835,83-1835
• Citation: 732 F.2d 239
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. 125.2 ACRES OF LAND, More or Less, SITUATED IN the TOWN AND COUNTY OF NANTUCKET, MASSACHUSETTS, and Owners Unknown, Defendants, Appellees. Appeal of Joan FISHER, Executrix of the Estate of Matthew L. Jaeckle, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 239

732 F.2d 239

UNITED STATES of America, Plaintiff, Appellee, v. 125.2 ACRES OF LAND, More or Less, SITUATED IN the TOWN AND COUNTY OF NANTUCKET, MASSACHUSETTS, and Owners Unknown, Defendants, Appellees Appeal of Joan FISHER, Executrix of the Estate of Matthew L Jaeckle, Appellant.

No. 83-1835.

United States Court of Appeals First Circuit.

Argued March 7, 1984.

Decided April 13, 1984.

Andrew J. McElaney, Jr., Boston, Mass., with whom R. Reed Baer, and Nutter, McClennen & Fish, Boston, Mass., were on brief, for appellant.

Joseph J. McGovern, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for the United States of America.

Before CAMPBELL, Chief Judge, COFFIN and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

This is an appeal by Joan Fisher, executrix of the will of Matthew Jaeckle, from an award of compensation for land taken by the United States. The land in question is 26 acres in the Town of Nantucket, Massachusetts. On December 1, 1947, the United States filed a petition for condemnation in the United States District Court for the District of Massachusetts pursuant to 40 U.S.C. Sec. 258a for the purpose of establishing air navigation facilities. The petition described four tracts of land on Nantucket Island totalling 125.2 acres and listed as titleholders "persons unknown." The government deposited $1,252 into court as estimated compensation, and on December 1, 1947, the court entered a judgment vesting fee simple title to the land in the United States. A copy of the judgment was posted on the land.

In 1952, the petition was amended to include a list of persons believed to have interests in the four tracts. Included in that list was Matthew Jaeckle, whose address was given as "Nantucket, Massachusetts." The government posted on the land notice of a valuation proceeding and published a similar notice for three consecutive weeks in a local newspaper. The federal marshal reported that after a "diligent search" he had been unable to locate any of the persons listed in the amended petition. A valuation proceeding was held on September 29, 1953, at which the owners of one of the four tracts appeared. Judgment was entered valuing the land at $10 per acre. The proceedings were then stricken from the docket with "leave to reinstate for cause shown upon the application of any interested party."

Jaeckle learned of the condemnation in 1967 when he commissioned a survey of his land. On December 19, 1972, Jaeckle filed a petition to reinstate the proceedings, claiming that the notice given in 1952 was inadequate. He contended that the defective notice rendered the taking invalid. In the alternative he requested just compensation for the land. The case lay dormant until 1979, by which time Jaeckle had died. His executrix, Joan Fisher, was substituted as a party defendant. Fisher requested a hearing on Jaeckle's original petition. She also asked that if compensation were awarded in lieu of the land, the value of the land be determined as of the date Jaeckle learned of the taking, 1967, or the date he filed his petition, 1972.

The district court determined that Jaeckle was the owner of the 26 acre tract in 1947, but declined to upset the government's title to the land. Instead the court awarded compensation for the value of the land in 1947 at the $10 an acre figure established in the 1953 proceeding, for a total of $260. No valuation hearing was held even though Fisher had filed an affidavit by a local realtor (the "Buckley affidavit") valuing the land at $1,200 in 1947.

In this appeal, Fisher challenges both the district court's refusal to upset the government's title and the court's rulings on valuation. We agree with the district court that inadequacies in the notice given in 1952 did not vitiate the government's title, but we remand for further proceedings on the question of just compensation.

The Supreme Court has said:

It cannot be disputed that due process requires that an owner whose property is taken for public use must be given a hearing in determining just compensation. The right to a hearing is meaningless without notice.

Walker v. City of Hutchinson, 352 U.S. 112, 115, 77 S.Ct. 200, 202, 1 L.Ed.2d 178 (1956). The question is what type of notice is constitutionally required. In Mullane v. Central Hanover Trust Co., 339 U.S. 306, 319, 70 S.Ct. 652, 660, 94 L.Ed. 865 (1950), the Supreme Court held that published notice is normally inadequate when the intended recipient of such notice "could easily be informed by other means at hand":

[W]hen notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.... It would be idle to pretend that publication alone, as prescribed here, is a reliable means of acquainting interested parties of the fact that their rights are before the courts.

Id. at 315, 70 S.Ct. at 657-658. In the present case, Jaeckle's name was known, and it was also known that he was a resident of Nantucket, Massachusetts. The record contains excerpts from the 1952 Nantucket telephone directory listing Jaeckle's street address and telephone number. Additionally, there is evidence that he had lived in Nantucket for many years and that he and his wife had served in town offices. Notice sent to "Matthew Jaeckle, Nantucket, Massachusetts," could scarcely not have reached him.

The ease with which notice could have been mailed to Jaeckle must be contrasted with the actual steps taken by the government. While posting notice on land could be adequate under some circumstances here one copy of the petition was posted on the 125.2 acres being condemned, apparently on a tract not owned by Jaeckle. Further, the land was undeveloped, thus diminishing the likely effectiveness of the posting. In Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962), notice by the city of the acquisition of water rights in a river was published in local newspapers and posted along the banks of the river. The appellant owned a summer house on the river and was listed on the tax rolls as owner. The appellant alleged that she had not seen the posted or published notice. The Supreme Court held under Mullane that the notice was inadequate in view of the feasibility of mailing personal notice:

It is true that in addition to publishing in newspapers, the city in the present case did put some signs on trees and poles along the bank of the river. But no such sign was placed anywhere on appellant's property, or ever seen by her. The posting of these signs, therefore, did not constitute the personal notice that the rule enunciated in the Mullane case requires.

371 U.S. at 213, 83 S.Ct. at 283. We believe the attempted notice in the present case was similarly defective. Possessed of knowledge of Jaeckle's name and town, and with access via the telephone book to his street address, the government could easily have notified him of the court proceeding by mail or other direct means, such as leaving the notice at his residence, yet it did not do so. Instead, it contented itself with publishing and posting. Due process requires more. ¹ Mullane, 339 U.S. at 319-20, 70 S.Ct. at 659-60. See also Mennonite Board of Missions v. Adams, --- U.S. ----, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983).

The harder issue in this case is not that notice was inadequate but the consequences from this inadequacy. Fisher contends that lack of notice renders the taking void. She relies on the principle that when an interested party fails to appear at a proceeding because of a lack of constitutionally adequate notice, the outcome of the proceeding is not binding on the non-appearing party. New York v. New York, New Haven & Hartford Railroad Co., 344 U.S. 293, 73 S.Ct. 299, 97 L.Ed. 333 (1953); Smith v. United States, 403 F.2d 448 (7th Cir.1968).

Personal notice is not, however, a requirement for an effective declaration of taking. The Declaration of Taking Act, 40 U.S.C. Sec. 258a, bifurcates a condemnation proceeding into a vesting of title in the United States and a subsequent proceeding for compensation:

Upon the filing said declaration of taking and of the deposit in the court, to the use of the persons entitled thereto, of the amount of the estimated compensation stated in said declaration, title to the said lands in fee simple absolute, or such less estate or interest therein as is specified in said declaration, shall vest in the United States of America, and said lands shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation for the same shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein.

Title vests in the United States prior to the need to notify owners of the right to compensation:

[T]he Taking Act enables the United States to acquire title simply by depositing funds "for or on account" of the just compensation to be awarded the owners, rather than by making payment pursuant to a court order.

United States v. Dow, 357 U.S. 17, 23, 78 S.Ct. 1039, 1045, 2 L.Ed.2d 1109 (1958). See also United States v. Miller, 317 U.S. 369, 381, 63 S.Ct. 276, 283, 87 L.Ed. 336 (1943). The Court has long held that takings in advance of compensation do not violate due process. In Bragg v. Weaver, 251 U.S. 57, 40 S.Ct. 62, 64 L.Ed. 135 (1919), a landowner sought to enjoin a taking pursuant to a state statute on the ground that no pre-taking hearing on compensation was provided. The Court rebuffed the attack stating,

it is well settled by the decisions of this court that where adequate provision is made for the certain payment of the compensation without unreasonable delay the taking does not contravene due process of law in the sense of the Fourteenth Amendment merely because...