U.S. v. Herring, No. 83-2429-EA

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore BRIGHT and McMILLIAN; LIMBAUGH
Citation750 F.2d 669
Decision Date14 December 1984
Docket NumberNo. 83-2429-EA
PartiesUNITED STATES of America, Appellant, v. Bill R. HERRING, Appellee.

Page 669

750 F.2d 669
UNITED STATES of America, Appellant,
v.
Bill R. HERRING, Appellee.
No. 83-2429-EA.
United States Court of Appeals,
Eighth Circuit.
Submitted June 14, 1984.
Decided Dec. 14, 1984.

Page 670

Donald T. Hornstein, Dept. of Justice, Washington, D.C., for appellant.

Roy Gene Sanders, Little Rock, Ark., for appellee.

Before BRIGHT and McMILLIAN, Circuit Judges, and LIMBAUGH, * District Judge.

LIMBAUGH, District Judge.

This is a quiet title action in which appellee Bill R. Herring invokes the provisions of the Quiet Title Act, 28 U.S.C. Sec. 2409a against the United States of America to determine title to certain land.

In 1960, the federal government acquired fee title to three acres of real property located in Cleburne County, Arkansas. The three acres were part of a larger tract of land (Tract 2118), which was condemned by the United States for a flood control project. The government acquired the property by filing a declaration of taking and depositing funds in the Federal District Court in the Western District of Arkansas, pursuant to the Declaration of Taking Act, 40 U.S.C. Sec. 258a.

Also pursuant to the Act, and Rule 71A, the government sought to locate the condemnees and to serve them personally with notice of the condemnation proceedings. Appellee Herring's whereabouts were not ascertained, evidently due to some mistaken belief by the government that Herring only held certain mineral interests within Tract 2118. Actually, Herring was the owner, in fee of three acres within Tract 2118. Although notice impleading all unknown owners was published in a local Arkansas paper, Herring, living at that time in Arizona, did not file an answer or enter an appearance in the condemnation proceeding and apparently was unaware of the taking. On August 13, 1962, compensation in the amount of $575.00 was paid to A.L. Clark, the record owner of the entire Tract 2118.

Seventeen years later, in December of 1979, Herring discovered that Tract 2118 had been condemned which tract included Herring's three acres. Herring brought this action in 1980 pursuant to the provisions of the Quiet Title Act, alleging defects in the government's title to the property and asking the district court to have him declared the rightful owner. The district court held that the inadequacies of the government's notice to Herring voided the declaration of taking and Herring continued to own fee title in the three acres. For the reasons set forth herein, we reverse the order of the district court and remand for further proceedings on the question of just compensation.

This case involves not only the proper construction of the Quiet Title Act, 28 U.S.C. Sec. 2409a, but of the Declaration of Taking Act, 40 U.S.C. Sec. 258a as well. Thus, when the government acquires title to real estate following condemnation proceedings under the Declaration of Taking Act, the issue is whether the validity or substance of the title may be ascertained pursuant to the Quiet Title Act.

In a very scholarly opinion, the trial court held the original notice by the government in the declaration of taking proceedings in 1960, was insufficient and did not afford Herring basic due process rights of notice and hearing. The Court then decided that the Quiet Title Act was the proper statutory authority to use in divesting the government of its claimed title. The effect of this decision is to vest title in appellee Herring and require the government to recondemn the three acres, if it now chooses to do so, and pay Herring for his land at today's values.

The United States argues that when title to land is acquired by it under the procedures

Page 671

of the Declaration of Taking Act, such title cannot be collaterally attacked on the basis of an alleged failure to provide adequate notice of condemnation to the landowner. Herring, the landowner, is not without a remedy, however, as he can still present his claim for just compensation against the United States following the provision of the Tucker Act, 28 U.S.C. Sec. 1346 and 1491 or those in 28 U.S.C. Sec. 1346(a)(2).

The government maintains, further, that even if its title can be collaterally attacked, legal title vested in it at the time of taking in 1960, subject to an equitable right in a landowner having no notice of the proceedings to receive just compensation in further proceedings. In either event, the landowner Herring would receive just compensation for his three acres at 1960 values, plus interest.

This Court holds that the Quiet Title Act can be invoked to ascertain title on challenge after the government has acquired ostensible title through condemnation under the Declaration of Taking Act. As legal title is determined to be in the government, we do not decide if the Quiet Title Act can be invoked to divest the government of title and to vest the title in another party.

The Declaration of Taking Act, 40 U.S.C. Sec. 258a, mandates that a condemnation proceeding is a two-step process. First, it provides that:

"Upon the filing [of] 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, ...."

The purpose of the Declaration of Taking Act is to establish a procedure in which the government's title to property is completely settled at the outset, thereby allowing the government to proceed with public projects in advance of time consuming proceedings concerning valuation. See H.R.Rep. No. 2086, 71st Cong., 3rd Sess. 1; 74 Cong.Rec. 777, 778 (Dec. 15, 1930) (statements of Rep. Graham).

The validity of the government's title under a declaration of taking is not conditional on the specific results of the subsequent condemnation proceeding except in cases where an issue concerning the statutory validity of the taking arises. In those cases, the government takes only a defeasible title. Catlin v. United States, 324 U.S. 229, 241, 65 S.Ct. 631, 637, 89 L.Ed. 911 (1945). In the present case, Herring does not suggest that the government lacked the proper statutory authority to acquire property for the flood control project. Thus, the nature of the government's title in this case is best described as "indefeasible", Fulcher v. United States, 632 F.2d 278, 281 (4th Cir.1980) or "absolute", Covered Wagon, Inc. v. Commissioner, Internal Revenue, 369 F.2d 629, 633 (8th Cir.1966), and 6a Nichols, The Law of Eminent Domain, No. 27.25, at 27-62 (3rd Ed.Supp.1983).

We hold,...

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13 practice notes
  • U.S. v. 1.04 Acres of Land, More or Less, Civil Action No. B-08-044.
    • United States
    • U.S. District Court — Southern District of Texas
    • 7 Marzo 2008
    ...the condemnation process, supplemental to the main condemnation procedures outlined in Rule 71 [now Rule 71.1]." United States v. Herring, 750 F.2d 669, 673 (8th Cir.1984); see also United States v. 729.773 Acres of Land, More TO Less, Situate in the City and County of Honolulu, State of Ha......
  • Board of Com'rs of Little Rock Mun. Water Works v. Rollins, No. CA
    • United States
    • Court of Appeals of Arkansas
    • 14 Mayo 1997
    ...Ark. 202, 506 S.W.2d 523 (1974); or the date of taking might be determined to be the date the petition is filed, United States v. Herring, 750 F.2d 669 (8th Cir.1984); Newgass v. St.Louis, A. & T. Railway Co., 54 Ark. 140, 15 S.W. 188 (1891). The Arkansas Supreme Court has stated that when ......
  • Cadorette v. U.S., No. 92-1181
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 14 Septiembre 1992
    ...Fourth Circuit, Fulcher v. United States, 632 F.2d 278 (4th Cir.1980) (en banc), followed by the Eighth Circuit, United States v. Herring, 750 F.2d 669, 672 (8th Cir.1984), that casts doubt upon our "mootness" conclusion. In Fulcher, a plaintiff brought a § 2409a action in 1977 to "quiet ti......
  • U.S. v. 194.08 Acres of Land, More or Less, Situated in St. Martin Parish, State of La., No. 95-30916
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 9 Marzo 1998
    ...validity of the taking. See Catlin v. United States, 324 U.S. 229, 241, 65 S.Ct. 631, 637, 89 L.Ed. 911 (1945); United States v. Herring, 750 F.2d 669, 673-74 (8th Cir.1984) (holding that lack of notice to a party that should have been notified that its property interest was being condemned......
  • Request a trial to view additional results
13 cases
  • U.S. v. 1.04 Acres of Land, More or Less, Civil Action No. B-08-044.
    • United States
    • U.S. District Court — Southern District of Texas
    • 7 Marzo 2008
    ...the condemnation process, supplemental to the main condemnation procedures outlined in Rule 71 [now Rule 71.1]." United States v. Herring, 750 F.2d 669, 673 (8th Cir.1984); see also United States v. 729.773 Acres of Land, More TO Less, Situate in the City and County of Honolulu, State of Ha......
  • Board of Com'rs of Little Rock Mun. Water Works v. Rollins, No. CA
    • United States
    • Court of Appeals of Arkansas
    • 14 Mayo 1997
    ...Ark. 202, 506 S.W.2d 523 (1974); or the date of taking might be determined to be the date the petition is filed, United States v. Herring, 750 F.2d 669 (8th Cir.1984); Newgass v. St.Louis, A. & T. Railway Co., 54 Ark. 140, 15 S.W. 188 (1891). The Arkansas Supreme Court has stated that when ......
  • Cadorette v. U.S., No. 92-1181
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 14 Septiembre 1992
    ...Fourth Circuit, Fulcher v. United States, 632 F.2d 278 (4th Cir.1980) (en banc), followed by the Eighth Circuit, United States v. Herring, 750 F.2d 669, 672 (8th Cir.1984), that casts doubt upon our "mootness" conclusion. In Fulcher, a plaintiff brought a § 2409a action in 1977 to "quiet ti......
  • U.S. v. 194.08 Acres of Land, More or Less, Situated in St. Martin Parish, State of La., No. 95-30916
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 9 Marzo 1998
    ...validity of the taking. See Catlin v. United States, 324 U.S. 229, 241, 65 S.Ct. 631, 637, 89 L.Ed. 911 (1945); United States v. Herring, 750 F.2d 669, 673-74 (8th Cir.1984) (holding that lack of notice to a party that should have been notified that its property interest was being condemned......
  • Request a trial to view additional results

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