United States v. 10.47 ACRES OF LAND, ETC., Civ. A. No. 1922.

• Decision Date: 22 December 1962
• Docket Number: Civ. A. No. 1922.
• Citation: 218 F. Supp. 730
• Parties: UNITED STATES of America, Plaintiff, v. 10.47 ACRES OF LAND, MORE OR LESS, Situated IN the CITY OF DOVER AND TOWN OF MADBURY, STRAFFORD COUNTY, STATE OF NEW HAMPSHIRE, and Marle R. Davis, et al., and Unknown Owners, Defendants.
• Court: U.S. District Court — District of New Hampshire

218 F. Supp. 730

UNITED STATES of America, Plaintiff, v. 10.47 ACRES OF LAND, MORE OR LESS, Situated IN the CITY OF DOVER AND TOWN OF MADBURY, STRAFFORD COUNTY, STATE OF NEW HAMPSHIRE, and Marle R. Davis, et al., and Unknown Owners, Defendants.

Civ. A. No. 1922.

United States District Court D. New Hampshire.

December 22, 1962.

William H. Craig, Jr., U. S. Atty., and Paul L. Normandin, Asst. U. S. Atty., Concord, N. H., for the United States.

Stanley M. Burns, Dover, N. H., for defendants.

GIGNOUX, District Judge, serving by designation.

This proceeding was instituted by the United States of America, on behalf of the Secretary of the Air Force, to condemn certain lands of the defendants situated in Dover and Madbury, New Hampshire, in order to provide for additional facilities in connection with Pease Air Force Base, Rockingham County, New Hampshire. The complaint and declaration of taking, together with the estimated just compensation, were filed and deposited with the Court on April 18, 1958, and on the same day the Court entered an order for immediate possession. Authority for the taking was asserted by virtue of various federal statutes, including the Declaration of Taking Act of February 26, 1931, 40 U.S.C. § 258a-e, and the general Condemnation Act of August 1, 1888, 40 U.S.C. § 257.¹

On May 6, 1958 defendants filed an answer contesting the taking, and seeking both dismissal of the proceedings and a court order revesting title to the lands taken in the defendants as the former owners. By its Rescript and Order dated February 12, 1959, this Court, Connor, J., resolved in plaintiff's favor most of the questions raised by the various defenses asserted by defendants in their answer,² and at a pre-trial conference held before me on October 23, 1962, the parties agreed that the only issues remaining between them are as follows:

"Whether or not there was a valid taking of said land by the plaintiff (1) in view of the fact that the purpose of the taking was to acquire a substitute water supply for the City of Portsmouth, New Hampshire, a portion of whose water supply had been previously acquired by the plaintiff in connection with its original acquisition of land for the construction of Pease Air Force Base, and (2) in view of the further fact that the plaintiff has discontinued its efforts to develop said land for such purpose."

At the pre-trial conference, the parties further agreed as to defendants' ownership of the lands taken as of April 18, 1958, and stipulated as to the amount of the just compensation to be paid to defendants on account of the taking in the event it should be finally determined by the Court that title to the condemned premises remains in plaintiff.

The following stipulated facts form the background of this proceeding: In connection with the construction of Pease Air Force Base, it was deemed necessary that plaintiff acquire certain lands on which was located a portion of the water supply system of the City of Portsmouth, New Hampshire. On January 27, 1954, after extended negotiations, plaintiff and the City of Portsmouth entered into a contract by which the City agreed to convey said lands to plaintiff, and plaintiff agreed to construct for the City a substitute water supply system by the development of wells on other lands to be acquired by plaintiff. When the well development contemplated by the contract failed to produce the required quantity of water, plaintiff undertook to develop a new source of water supply by constructing a new series of wells on the land which is the subject of this proceeding. The instant proceeding was instituted by plaintiff for the purpose of acquiring this land as a source of water supply for the City in fulfillment of plaintiff's obligation under the agreement of January 27, 1954.³ Following the taking, plaintiff commenced development of wells upon the condemned land, but, before completion of the project, discontinued the development because of the construction by plaintiff of the Bellamy River Dam, so called,⁴ which rendered further development of this project unnecessary. Plaintiff has no further use for this land and proposes to dispose of it as surplus property.

With respect to both of the questions which remain for my consideration, I find that defendants' position is clearly without merit:

I. Controlling decisions of the United States Supreme Court have long since settled that a substitute taking such as that involved here, which is closely connected with and necessary to the carrying out of a conceded public use, is for a public and not a private purpose, and is hence a legal taking. United States ex rel. T. V. A. v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843 (1946); Dohany v. Rogers, 281 U.S. 362, 50 S.Ct. 299, 74 L.Ed. 904 (1930); Brown v. United States, 263 U.S. 78, 44 S.Ct. 92, 68 L.Ed. 171 (1923). See 2 Nichols, Eminent Domain, § 7.226 (3d ed. 1950). Cf. United States v. Board of Education, 253 F.2d 760 (4th Cir. 1958). This record furnishes no support for defendants' unsubstantiated assertion that plaintiff in taking their lands acted in bad faith or so "`capriciously and arbitrarily'" that its action was "without adequate determining principle or was unreasoned." No such issue is present here. Cf. United States v. Carmack, 329 U.S. 230, 243, 67 S.Ct. 252, 91 L.Ed. 209 (1946).

II. By the terms of the Declaration of Taking Act, "* * * Upon the filing said declaration of taking and of the deposit in the court * * * title * * * 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 * * *." 40 U.S.C. § 258a⁵ The effect of this provision is to transfer to the United States as of the date of taking the title to the...