U.S. v. 416.81 Acres of Land, s. 74--1307

• Citation: 525 F.2d 450
• Decision Date: 21 July 1975
• Docket Number: 74--1308,Nos. 74--1307,s. 74--1307
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. 416.81 ACRES OF LAND, etc., and Mercantile National Bank of Indiana, as Trustee, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 450

525 F.2d 450

UNITED STATES of America, Plaintiff-Appellee, v. 416.81 ACRES OF LAND, etc., and Mercantile National Bank of Indiana, as Trustee, et al., Defendants-Appellants.

Nos. 74--1307, 74--1308.

United States Court of Appeals Seventh Circuit.

Argued Jan. 15, 1975.

Decided April 28, 1975.

Rehearing and Rehearing

Denied July 21, 1975.

Owen W. Crumpacker, Hammond, Ind., Wayland B. Cedarquist, Chicago, Ill., Malcolm E. Anderson, Chesterton, Ind., for defendants-appellants.

John R. Wilks, U.S. Atty., Fort Wayne, Ind., Richard L. Kieser, Asst. U.S. Atty., South Bend, Ind., and Wallace H. Johnson, Asst. Atty. Gen., Robert L. Klarquist, Atty., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before CLARK, Associate Justice, ^* CUMMINGS and TONE, Circuit Judges.

Mr. Justice CLARK.

These appeals, companion to No. 73--2104 decided this day, concern the condemnation of two tracts of land owned by members of the Crumpacker family within the area of the Indiana Dunes National Lakeshore. Three of the issues in No. 73--2104 are identical to ones raised here and our affirmance in that case controls the disposition here: (1) the propriety of the district court's striking of the landowners' defenses; (2) the propriety of the district court's striking of the landowners' interrogatories related to those defenses; and (3) the constitutionality of the legislation under which the Government proceeded. We turn therefore to the remaining issues.

I.

In both of these appeals, the landowners insist that the Government's failure to join certain members of the family who held interests in the condemned land requires that the judgment be vitiated. We cannot agree. Since an eminent domain proceeding is in rem, there are no indispensable parties. The failure to join a party does not defeat the condemnor's title to the land, though the party will retain his right to compensation. A. W. Duckett & Co. v. United States, 266 U.S. 149, 45 S.Ct. 38, 69 L.Ed. 216 (1924); C. Wright & A. Miller, Federal Practice & Procedure; Civil § 3045 (1973). Appellants earnestly argue, however, that Fed.R.Civ.P. 71A(c)(2) requires that all persons having an interest in condemned property must be made party to any hearing on compensation. ¹ Here, they urge, that mandate was not met.

To understand the landowners' arguments, some description of the holdings is necessary. It appears that Tract 02--135 the 80-acre parcel at issue in No. 74--1307, was acquired by two Crumpacker ancestors (Edgar and Charles) at the turn of the century, passed into the hands of Edgar's sons (Frederick, Owen, and Maurice), and came to rest in the ownership of Frederick's widow and Maurice's sons. At the time that the complaint was filed, the title record was in some disorder, but actual ownership was as follows: 1/2 to Mary W. Crumpacker (Frederick's widow) ²; 1/6 to James Crumpacker; 1/6 to Edgar D. Crumpacker; and 1/6 equally divided among Ann Winkler Crumpacker (widow of Peter Crumpacker, Maurice's youngest son) and her four children (Peter, Dean, Emily, and Abby). Tract 02--144, the 25.61-acre parcel at issue in No. 74--1308, had descended similarly.

Appellants complain that the Government erred in omitting Mary W. Crumpacker, Ann Crumpacker, her four children, and their guardian (John Winkler) as party defendants. We note that the original complaint did name Mary W. Crumpacker and Peter Crumpacker (Ann's deceased husband) as among the owners of Tract 02--144 and Frederick Crumpacker (Mary's deceased husband) and Peter Crumpacker as among the owners of Tract 02--135. Importantly, the landowners' answer of June 26, 1970, specifically listed Mary, Ann, the four children, and the guardian as being among the owners of the property condemned, and the district court so listed them in his orders of September 16, 1970 (Tract 02--135), and October 26, 1970 (Tract 02--144), striking the answers. Owen Crumpacker as the attorney for these and other members of the family appeared at the pre-trial conference of December 16, 1970, though the pre-trial order of May 19, 1971, referred only to 'James Crumpacker, Edgar D. Crumpacker, Peter Crumpacker, and the Estate of Edgar D. Crumpacker' as defendants. Owen Crumpacker subsequently entered his appearance for the 'missing' owners in the pre-trial meeting of November 20, 1973, and filed various motions on their behalf. Following the November 20th conference, in which Owen Crumpacker argued that the owners had not been named, the district court ruled:

This court concluded from the extensive representations made by Mr. Crumpacker and the appearances entered, as well as the allegations in the complaint, that the real parties in interest were all represented by counsel in these matters.

The day before trial was scheduled to begin, attorney Crumpacker moved the court to set aside this ruling. The trial judge noted that, in the three years in which the case had been pending, only one motion for substitution of parties had been filed, and that motion substituting Mercantile National Bank for Mary W. Crumpacker had been granted. The court then stated:

However, Mr. Crumpacker has entered his appearance for all the members of the family or their heirs in this matter.

Certainly, in the more than three years there has been an opportunity to specifically suggest the exact alleged omitted party or, in the case of deceased parties, to move for substitution of the parties. This was never done, with the one exception above-noted.

We note from the record that the omitted parties were regularly listed along with the other Crumpackers in appellants' pleadings. Further, at the time of the selection of the jury and when the jury was charged, as well as in the verdict and the judgment itself, the names of Mary W. Crumpacker, Ann Crumpacker, and John Winkler, as guardian for the children of Peter Crumpacker, were entered with those of the other landowners. No objection was ever voiced to their inclusion, nor, on the other hand, was any attempt ever made to intervene. ³ We therefore find no merit in the argument of appellants. Though the formalities may not have been fully observed by the Government, we think it patent that the 'missing' owners were sufficiently represented and sufficiently party to the proceedings for purposes of establishing just compensation in this case. As the trial judge concluded, Owen Crumpacker's active representation of the 'missing' owners cured any error that may have resulted from the May 19, 1971, order. We add that they, of course, may participate in the award entered in the trial court. Cf. Rambo v. United States, 117 F.2d 792, 794 (5th Cir. 1941).

II.

Appellants next claim error from the trial court's long delay in entering an order as to Tract 02--135 after the joint pre-trial conference on December 16, 1970. Through lack of diligence, oversight, or otherwise, the order was not filed until September 20, 1973. The landowners assert that this was an abuse of discretion and 'precluded the landowners from having a fair and impartial trial of the issues.' It is true that effective judicial administration requires that orders covering pre-trial hearings be filed within a reasonable period of time, but here appellants have failed to specify in what, if any, respect the district court's 33-month tardiness had precluded them from enjoying a fair trial. In the intervening time, they neither complained of the delay nor claimed any prejudice nor called it to the attention of the court. Especially since the written order was identical to the one entered on May 19, 1971, regarding Tract 02--144, we find no prejudice resulting from the delay.

III.

Appellants next complain of the refusal of the district court to exclude the testimony of three Government appraisers (Fabian, Ott, and Adomatis) because these witnesses failed to respect the provisions of Section 301 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4651. Section 301 states that:

(H)eads of Federal agencies shall, to the greatest extent practicable, be guided by the following policies:

(1) The head of a Federal agency shall make every reasonable effort to acquire expeditiously real property by negotiation.

(2) Real property shall be appraised before the initiation of negotiations, and the owner or his designated representative shall be given an opportunity to accompany the appraiser during his inspection of the property.

The Government's appraisers apparently entered upon appellants' property for the express purpose of obtaining information as to value without complying with the landowners' request to attend the inspections. Appellants claim that the appraisers' testimony should have been stricken. Their arguments might have some force were it not for the language of Section 102 of the same Act, which...