U.S. v. Haddon, 76-1371
| Decision Date | 02 March 1977 |
| Docket Number | No. 76-1371,76-1371 |
| Citation | 550 F.2d 677 |
| Parties | UNITED STATES of America, Plaintiff, Appellee, v. William V. HADDON et al., Defendants, Appellants. |
| Court | U.S. Court of Appeals — First Circuit |
John S. Leonard, Boston, Mass., with whom George A. McLaughlin, Sr., John Yagjian, and McLaughlin Brothers, Boston, Mass., were on brief, for defendants-appellants.
Dorothy R. Burakreis, Atty., Dept. of Justice, with whom Peter R. Taft, Asst. Atty. Gen., Washington, D. C., James N. Gabriel, U. S. Atty., Kenneth P. Nasif, Asst. U. S. Atty., Boston, Mass., Raymond N. Zagone, and Dirk D. Snel, Atty., Dept. of Justice, Washington, D. C., were on brief, for plaintiff-appellee.
Before COFFIN, Chief Judge, and ALDRICH and CAMPBELL, Circuit Judges.
The United States brought this action to quiet title to two tracts of land in Nantucket, amounting to some 25 acres, which it had acquired through condemnation proceedings commenced in 1948. Appellants claimed title to the land by virtue of two instruments executed by the Treasurer of the Town of Nantucket in March, 1965, assigning to them a tax title which the Town believed it had acquired four weeks earlier. The district court granted the United States' motion for summary judgment, and defendants appealed.
On February 10, 1948 the United States filed a petition for condemnation in the United States District Court for the District of Massachusetts to acquire fee simple title to property described as follows:
"The lands or interests therein sought to be condemned are shown as Tracts 21 and 22B on a plan entitled 'Civil Aeronautics Administration Federal Airways', dated December 10, 1947 and marked Schedule 'B' attached to Declaration of Taking herewith filed, and more particularly described in Schedule 'A' attached hereto and made a part hereof".
Paragraph six of the petition stated that title to the lands described was "vested in owners unknown". Filed along with the petition was a Declaration of Taking signed by the Secretary of Commerce in accordance with 40 U.S.C. § 258a 1 declaring that the land be taken for immediate public use. Two "schedules" were attached to the declaration: "Schedule B" was a map showing the location of the two tracts, and "Schedule A" read as follows:
The estimated compensation of $250 was deposited with the court at the same time.
On the day that the United States filed its petition and declaration, the district court entered a judgment that fee simple in the land identified in Schedule A vested in the United States upon the filing of the declaration, that "said land is deemed to be condemned and taken for the United States", that the right to just compensation had vested in the "persons entitled thereto", and that the amount of just compensation and any award would be determined in the condemnation proceeding. See note 1, supra. The record shows that a copy of the district court's judgment, which did not include the map contained in Schedule B nor the description of land provided in Schedule A, was recorded in the Nantucket Registry of Deeds in May, 1948.
The condemnation proceedings lay dormant for four years until March, 1952, when the United States moved to amend its petition by substituting for the former statement that title to the lands before the taking was vested in "owners unknown" the new statement that title had been vested in "those persons whose names appear in Schedule B attached hereto". The attached Schedule B named two individuals, Richard M. and Henry C. Everett, as trustees under the will of Henry C. Everett, who had owned land abutting the two tracts, and two public officials, the Tax Collector for Nantucket and the Massachusetts Commissioner of Corporations and Taxation, and there followed under the statement "The following named persons or their spouses, heirs, devisees, distributees, creditors or assigns:" a list with 30 entries 22 named individuals, "heirs" of 7 named individuals, and one "Proprietors". The district court allowed the motion to amend and thereafter ordered each of the parties named in Schedule B to file an appearance or answer if he had any claim for just compensation. It further ordered that notice of the amended petition and of its order to the parties be given to all persons named in Schedule B by publishing a copy of the order of notice in the Nantucket Inquirer and Mirror once a week for three successive weeks, by mailing a copy of the order to any of the persons residing outside the Commonwealth, by the United States Marshal personally serving any of the parties found within the District of Massachusetts, and "upon all others by posting conspicuously upon said tract of land".
Two months after the court's order, the Marshal filed a Certificate of Service, stating that he personally served Richard M. and Henry C. Everett, the Nantucket Tax Collector, and the Commissioner of Corporations of the Commonwealth. He also stated that he posted a copy of the order of notice "on land in Nantucket County". With respect to the other 30 persons and "heirs", the Marshal said that he made diligent search for them but "failed to find them or any last and usual place of abode in (his) district." The United States Attorney filed an affidavit indicating that he served notice by publication as ordered. Only Richard Everett entered an appearance, but there is no indication that he took any further action. In October, 1953, the district court issued a final judgment establishing the value of the land at $250, the amount initially deposited by the United States, and the condemnation action was closed.
Defendants appear on the scene some twelve years later. On March 2, 1965, the Town of Nantucket acquired tax title to the land, referred to in its records as part of share 21 and all of share 22B, because of the failure of the mythical owner, John Doe, to pay his 1964 taxes. On March 30, 1965, the Treasurer of the Town of Nantucket assigned separate tax titles for each share to defendants for a total price of $47.24. The assignments were recorded with the Registry of Deeds on the same day. Over two-and-one-half years later, the Massachusetts Land Court, on petition of defendants, entered an order foreclosing tax liens on the property. Sometime around 1969, defendants constructed, furnished and occupied a single family dwelling on the premises.
In August, 1970, the Department of Commerce reported to the General Services Administration that the tracts were excess to the Department's needs. GSA inspected the property in February, 1971, and two months later advised defendant Haddon of the Government's ownership of the property and demanded that he remove the dwelling. On May 17, 1971, defendants filed a "Plan" with the Massachusetts Land Court to register title in them as tenants-in-common. There is no indication that the Land Court took any action on defendants' plan, and one year later the United States brought this action to quiet title.
Citing especially United States v. Chatham, 323 F.2d 95 (4th Cir. 1963), appellants argue that the United States never acquired title because the district court never acquired in rem jurisdiction over the property. The court is said to have lacked jurisdiction because notice of the condemnation proceeding was inadequate to give the true owners of the tracts notice that their land was being taken and, therefore, did not meet the requirements of due process. Appellants say that the United States never made meaningful efforts to locate the owners, and that notice of the court's later, 1952 order was deficient. They challenge the diligence of the Marshal's search for the 30 named individuals and "heirs" named in Schedule B of the 1952 order, inferring a lack of diligence from the Marshal's statement that he searched for these individuals one afternoon beginning at 3:35 p. m. On this point, however, they ignore the Marshal's further statement that he searched for these parties "at other divers times and places". They also suggest that posting of the 1952 order was inadequate, observing that the Marshal stated only that he had posted a copy of the order "on land in Nantucket County" not that he posted "said tracts of land" as ordered. Finally, they argue that publication was deficient since the order which was published referred only to "25 acres of land, more or less, situated in Town of Nantucket", without identifying its location. 2
In response, the United States relies upon the statutory scheme governing a...
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...unintended "disputed title." Congress fully intended that only the compensation issue would be open, see United States v. Haddon, 550 F.2d 677, 680-1, 682 (1st Cir. 1977), and for reasons so compellingly expressed by Judge Hall Congress made evident its determination, where the dispute was ......
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