United States v. 15.3 Acres of Land, Civ. A. No. 5051.

• Decision Date: 12 December 1957
• Docket Number: Civ. A. No. 5051.
• Citation: 158 F. Supp. 122
• Parties: UNITED STATES of America, Plaintiff, v. 15.3 ACRES OF LAND, More or Less, Situate IN THE CITY OF SCRANTON, County of Lackawanna and Commonwealth of PENNSYLVANIA, and Delaware, Lackawanna & Western Railroad Company, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

158 F. Supp. 122

UNITED STATES of America, Plaintiff, v. 15.3 ACRES OF LAND, More or Less, Situate IN THE CITY OF SCRANTON, County of Lackawanna and Commonwealth of PENNSYLVANIA, and Delaware, Lackawanna & Western Railroad Company, et al., Defendants.

Civ. A. No. 5051.

United States District Court M. D. Pennsylvania.

December 12, 1957.

Harry T. Dolan, Brooklyn, N. Y., and J. Julius Levy, U. S. Atty., Scranton, Pa., for plaintiff.

Rowland W. Davis, Jr., New York City, Walter L. Hill, Jr., and Joseph C. Kreder (of Warren, Hill, Henkelman & McMenamin), Scranton, Pa., for defendants.

JOHN W. MURPHY, Chief Judge.

In this condemnation proceeding, contemporaneous with filing the Complaint, Fed.Rules Civ.Proc. Rule 71A, 28 U.S. C.A., and Declaration of Taking, 40 U.S. C.A. § 258a, estimated just compensation of $860,000 was deposited and upon its application released to defendant as payment on account. A commission duly appointed, United States v. 15.3 Acres of Land, etc., D.C.M.D.Pa., 17 F.R.D. 337, found just compensation to be $1,720,700. Objections by plaintiff and defendant were overruled; findings of fact and conclusions of law confirmed; the amount of the award sustained. United States v. 15.3 Acres of Land, etc., D.C.M.D.Pa., 154 F.Supp. 770.

Shortly thereafter, reserving the right to appeal, an additional $860,700, representing the balance of the award, was deposited and on defendant's application paid on account.

"The owner is not limited to the value of the property at the time of the taking; `he is entitled to such addition as will produce the full equivalent of that value paid contemporaneously with the taking.' Interest at a proper rate `is a good measure by which to ascertain the amount so to be added.' Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 306, 43 S.Ct. 354, 356, 67 L.Ed. 664." Jacobs v. United States, 1933, 290 U.S. 13, at page 17, 54 S.Ct. 26, at page 28, 78 L.Ed. 142. "* * * interest at the rate of 6 per centum per annum * * *", 258a, supra.

As a matter of law the deposit should be applied first to accrued interest on the balance unpaid from the date of taking, August 23, 1954, to the date of the second deposit, August 22, 1957, i.e., $154,784.51; the balance, $705,915.49 to principal. See United States v. Hirsch, 2 Cir., 1953, 206 F.2d 289, at page 295. With this proposition plaintiff and defendant presently concur. There remains unpaid $154,784.51, together with interest at 6% per annum from August 22, 1957, to the date of payment.

Long before the passage of § 258a or adoption of the Rule 71A, the rule of law was that "* * * money, when deposited, becomes in law the property of the party entitled to it, and subject to the disposal of the court." United States v. Dunnington, 1892, 146 U.S. 338, at page 351, 13 S.Ct. 79, at page 83, 36 L.Ed. 996; United States v. 53¼ Acres of Land, etc., 2 Cir., 1949, 176 F.2d 255, at page 258. § 258a made no change in that regard. United States v. Foster, 8 Cir., 1942, 131 F.2d 3, at page 7. "The purpose of the statute is twofold. First, to give the Government immediate possession of the property and to relieve it of the burden of interest accruing on the sum deposited from the date of taking to the date of judgment in the eminent domain proceeding. Secondly, to give the former owner, if his title is clear, immediate cash compensation to the extent of the Government's estimate of the value of the property. The Act recognizes that there may be an error in the estimate and appropriately provides that, if the judgment ultimately awarded shall be in excess of the amount deposited, the owner shall receive the excess with interest." United States v. Miller, 1943, 317 U.S. 369, at page 381, 63 S.Ct. 276, at page 283, 87 L.Ed. 336, 147 A.L.R. 55.

"The payment is of estimated compensation; it is intended as a provisional and not a final settlement with the owner; it is a payment `on account of' compensation and not a final settlement of the amount due." Id. 317 U.S. at page 381, 63 S.Ct. at page 284. The deposit by the government is in a sense "earnest money" commensurate with the value it has placed upon the property. There is also the promise to deposit any additional funds necessary to make up the amount which will ultimately be found to be just compensation should the award exceed the original deposit. Thibodo v. United States, D.C.S.D.Cal.1955, 134 F.Supp. 88, at page 95.

Rule 71A(j) provides "* * * if the compensation finally awarded * * * exceeds the amount which has been paid to him on distribution of the deposit, the court shall enter judgment against the plaintiff and in favor of that defendant for the deficiency * * *"; 258a, "* * * if the compensation finally awarded * * * shall exceed the amount of the money so received * * * the court shall enter judgment against the United States for the amount of the deficiency."

As to the deposit itself: Rule 71A(j) provides, "The plaintiff shall deposit with the court any money required by law as a condition to the exercise of the power of eminent domain; and, although not so required, may make a deposit when permitted by statute."

As to the former, see United States v. 1,997.66 Acres of Land, etc., 8 Cir., 1943, 137 F.2d 8, at pages 11-12. As to the latter, § 258a does not assume to erect a complete condemnation procedure. It provides rather a supplemental and optional course, United States v. 17,280 Acres of Land, etc., D.C.D.Neb. 1944, 57 F.Supp. 745, at page 746, whereby the United States may at any time before judgment file a declaration of taking, estimating the amount of just compensation, accompanying it with a deposit. The judgment in question means that which finally determines the "just compensation" to be awarded. Catlin v. United States, 1945, 324 U.S. 229, at pages 233, 239, 242-243, 65 S.Ct. 631, at pages 636, 638, 89 L.Ed. 911. The government is not required to file a Declaration of Taking. If it elects to do so it must estimate the value of the property taken and make such sum available as compensation to the land owner. The amount may be increased or decreased by final judgment. United States v. Catlin, 7...