United States v. 10.08 ACRES OF LAND, ETC.

• Decision Date: 21 July 1942
• Docket Number: No. 666.,666.
• Parties: UNITED STATES v. 10.08 ACRES OF LAND, MORE OR LESS, IN JACKSON AND WEST MANCHESTER TOWNSHIPS, et al.
• Court: U.S. District Court — Middle District of Pennsylvania

46 F. Supp. 138

UNITED STATES v. 10.08 ACRES OF LAND, MORE OR LESS, IN JACKSON AND WEST MANCHESTER TOWNSHIPS, et al.

No. 666.

District Court, Middle District of Pennsylvania.

July 21, 1942.

Frederick V. Follmer, U. S. Atty., of Scranton, Pa., and Herman F. Reich, Asst. U. S. Atty., of Sunbury, Pa., for the United States.

John A. Hoober, of York, Pa., in pro. per. for respondent.

JOHNSON, District Judge.

Under the Rivers and Harbors Act and in accordance with a request from the War Department, proceedings were instituted on behalf of the United States of America to acquire the fee simple title to two tracts of land designated as Tracts Nos. 1 and 2 of Parcel RA-50 for use in connection with the Indian Rock Dam and Reservoir Project, York County, Pennsylvania. Petition in Condemnation was filed on May 13, 1941, and an order of court granting immediate possession was entered the same day. Viewers were appointed by this Court and thereafter they held hearings in connection with the damages occasioned by the taking; but before the report of the viewers had been filed, the Secretary of War, by letter of October 24, 1941, requested that the proceedings be so amended as to modify the interest to be acquired in Tract No. 1, containing 3.45 acres of Parcel RA-50, from a fee title to a perpetual easement for flowage purposes. A motion has been filed on behalf of the United States of America for leave to amend the petition in condemnation in accordance with this request. A copy of this motion was served on the owners and their attorney and an answer has been filed by them resisting the Government's motion and denying the right to so amend the petition.

The Rivers and Harbors Act of April 24, 1888, 33 U.S.C.A. § 591, was involved in United States v. Meyer, 7 Cir. 1940, 113 F.2d 387, certiorari denied 1940, 311 U.S. 706, 61 S.Ct. 174, 85 L.Ed. 459. It is there said that the power granted under that Act is unlimited, and discretion is clearly vested in the Secretary of War to take a flowage easement or a fee simple. Pages 391, 392 of 113 F.2d. The court likewise held on abundant authority that neither 33 U.S.C.A. § 594, nor the Fifth Amendment require a deposit of funds prior to granting an order for immediate possession. Page 393 of 113 F.2d. Among the authorities cited in support of the last statement above referred to in the Meyer case are Commercial Station Post Office, Inc. v. United States, 8 Cir., 1931, 48 F.2d 183, and Cherokee Nation v. Southern Kansas Railway Co., 1890, 135 U.S. 641, 10 S.Ct. 965, 34 L.Ed. 295.

It is clear that the Government has authority to abandon or discontinue the proceedings in toto, in the absence of express statutory provisions to the contrary, at least at the present stage of the instant proceedings. II Lewis, Eminent Domain, 3d Ed. 1909, § 954; Kanakanui v. United States, 9 Cir., 1917, 244 F. 923, 924.

In Johnson & Wimsatt v. Reichelderfer, 1933, 62 App.D.C. 237, 66 F.2d 217, the authorities holding that the entire proceeding may be abandoned in the absence of statute are reviewed (page 218 of 66 F.2d), and the court concluded (p. 219 of...