United States v. 17,280 ACRES OF LAND, ETC.

• Decision Date: 30 October 1942
• Docket Number: Civ. No. 138.
• Citation: 47 F. Supp. 267
• Parties: UNITED STATES v. 17,280 ACRES OF LAND, MORE OR LESS, SITUATED IN SAUNDERS COUNTY, NEB., et al.
• Court: U.S. District Court — District of Nebraska

47 F. Supp. 267

UNITED STATES v. 17,280 ACRES OF LAND, MORE OR LESS, SITUATED IN SAUNDERS COUNTY, NEB., et al.

Civ. No. 138.

District Court, D. Nebraska, Lincoln Division.

October 30, 1942.

William Lemke, of Fargo, N. D., and M. O. Cunnningham, of Omaha, Neb., for moving respondents, Mary T. Charling and others.

Joseph T. Votava, of Omaha, Neb., and A. Z. Donato, of Wahoo, Neb., for petitioner.

DELEHANT, District Judge.

The issues here considered arise in an action by which the United States of America, under the authority of Title 40, U.S.C.A. §§ 257, 258, 258a, has acquired the title to, and possession of, nearly eighteen thousand acres of land in Saunders County, Nebraska, as the site of an army ordnance plant. Late in 1941 sundry petitions for condemnation and declarations of taking were filed and deposits made of the estimated just compensation for the lands taken (40 U.S.C.A. § 258a). Orders awarding possession of the condemned land to the United States were seasonably entered and possession even of the most recently acquired land has been enjoyed for approximately nine months, and of some of the property for a still longer period.

Several of the owners of the separate tracts have accepted the estimated just compensation as full payment for their respective parcels of property and, by stipulations and orders of the court, have received the entire amounts deposited on account of their respective tracts in satisfaction of their claims. Except in cases where dispute or uncertainty respecting title has intervened, owners not accepting the estimated compensation, including all presently moving respondents, have, by separate stipulations and orders of court, received eighty per cent of the estimated and deposited compensation, or seventy-five per cent thereof in instances where claims of tenants in possession are unadjusted. The undistributed twenty (in some instances twenty-five) per cent of the deposited sum remains in the registry of the court.

Appraisers have not yet been appointed by this court to make the initial judicial appraisal contemplated by the statutes of Nebraska, to which recourse must be had for the greater part of the procedure to be pursued in this court (40 U.S.C.A. § 258; Rule 81(a) (7), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c). Nor has the petitioner, by any pleading or motion, sought such appointment (vide infra).

The action is presently before the court upon the joint motion of the owners of twenty-eight separate tracts in the condemned area in which they demand, (a) the immediate payment to each of them of the reserved portion of the estimated and deposited compensation for the taking of his or her real property, and (b) the immediate appointment of appraisers, as contemplated by the law of Nebraska, in the judicial taking of private property for public use. The petitioner resists the motion in its entirety. The motion's prayers will be considered separately.

Upon the demand of the moving respondents for the immediate distribution of the reserved portion of the deposited funds, the court is persuaded that their general position is well taken. This conclusion has been reached with acknowledged hesitation, founded, perhaps, on the program in condemnation cases under the laws of Nebraska. Those laws clearly contemplate that in the Nebraska practice a defendant electing to contest the issue of the value of the condemned property after the deposit of the amount of his initially determined damages must anticipate both a resultant delay in his receipt of the moneys deposited by the condemning petitioner and the hazard of failure to receive more than the first appraisal with the consequent taxation of costs and denial of interest. See Sections 74-307, 26-711, and 83-1603, C.S.Neb.1929. But two considerations claim attention upon this point. In the first place, it is only the procedural machinery of the local jurisprudence that is utilized in actions of this character. Title 40 U.S.C.A. § 258. Provisions of the statutes of Nebraska relating to any aspect of the law of Eminent Domain other than "practice, pleadings, forms and modes of proceedings" are inapplicable here. The elemental legal rights and equities as between the condemning petitioner and the respondent owners are governed by the laws of the United States. United States v. Certain Lands in Borough of Brooklyn, D.C., 39 F.Supp. 91. Then, the taking of the respondents' lands and the deposit of the petitioner's voluntary estimate of the just compensation therefor have occurred in this instance at the very inception of the suit, and under the terms of Title 40 U.S. C.A. § 258a. No precisely comparable situation is contemplated by the laws of Nebraska, under which the option of the petitioner to pay into court a tentatively determined measure of damages, and thereupon to enter into possession of the condemned property, arises only upon the making of the first appraisal by a board of judicially appointed appraisers. And that in any event is appreciably later than, and in this instance will be many months after, the commencement of the suit.

Title 40 U.S.C.A. § 258a, enacted in 1931, is not a complete condemnation statute. It merely supplements theretofore existing legislation by allowing to the United States as a condemning petitioner a newly devised option to secure the immediate title to and possession of lands upon the deposit in the court of a sum of money estimated by the petitioner to be the just compensation for the lands taken. It was prompted by the necessity for punctuality in the initiation of public works in relief of the economic depression during which it was passed; but it is of even greater and more obvious utility to the federal government in the current international crisis. It is so largely material to the present motion that it is quoted in its entirety:

"In any proceeding in any court of the United States outside of the District of Columbia which has been or may be instituted by and in the name of and under the authority of the United States for the acquisition of any land or easement or right of way in land for the public use, the petitioner may file in the cause, with the petition or at any time before judgment, a declaration of taking signed by the authority empowered by law to acquire the lands described in the petition, declaring that said lands are thereby taken for the use of the United States. Said declaration of taking shall contain or have annexed thereto —

"(1) A statement of the authority under which and the public use for which said lands are taken.

"(2) A description of the lands taken sufficient for the identification thereof.

"(3) A statement of the estate or interest in said lands taken for said public use.

"(4) A plan showing the lands taken.

"(5) A statement of the sum of money estimated by said acquiring authority to be just compensation for the land taken.

"Upon the filing 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, and the right to just compensation for the same shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein, and the said judgment shall include, as part of the just compensation awarded, interest at the rate of 6 per centum per annum on the amount finally awarded as the value of the property as of the date of taking, from said date to the date of payment; but interest shall not be allowed on so much thereof as shall have been paid into the court. No sum so paid into the court shall be charged with commissions or poundage.

"Upon the application of the parties in interest, the court may order that the money deposited in the court, or any part thereof, be paid forthwith for or on account of the just compensation to be awarded in said proceeding. If the compensation finally awarded in respect of said lands, or any parcel thereof, shall exceed the amount of the money so received by any person entitled, the court shall enter judgment against the United States for the amount of the deficiency.

"Upon the filing of a declaration of taking, the court shall have power to fix the time within which and the terms upon which the parties in possession shall be required to surrender possession to the petitioner. The court shall have power to make such orders in respect of encumbrances, liens, rents, taxes, assessments, insurance, and other charges, if any, as shall be just and equitable."

Upon the oral argument of this motion the government emphasized the permissive character of the authority of the court to direct the disbursement of the money deposited in the registry as the estimated just compensation for the lands taken. The necessity for flexibility in the language of the paragraph of the act wherein the power of the court respecting distribution is defined will be obvious to any one who recalls the almost infinite variety of estates, interests, shares, liens, and encumbrances under, and subject to, which lands may be held and the frequent uncertainty in which the actual ownership of property is involved. This court considers those factors especially in its appraisal of the liberality which the court is allowed in directing distribution. And they have been given due recognition by other courts. United States v. Certain Lands in Borough of Brooklyn, 2 Cir., 129 F.2d 577, 579. There, after quoting the paragraph of the act touching distribution, the court said: "The sentence last quoted obviously refers to what is `just and equitable' as between the lienors and lienees. ...