United States v. 2.74 Acres of Land in Williamson County, Civ. No. 140.

• Citation: 32 F. Supp. 55
• Decision Date: 03 February 1940
• Docket Number: Civ. No. 140.
• Parties: UNITED STATES v. 2.74 ACRES OF LAND IN WILLIAMSON COUNTY, ILL., et al.
• Court: U.S. District Court — Eastern District of Illinois

32 F. Supp. 55

UNITED STATES v. 2.74 ACRES OF LAND IN WILLIAMSON COUNTY, ILL., et al.

Civ. No. 140.

District Court, E. D. Illinois.

February 3, 1940.

Arthur Roe, U. S. Atty., of Danville, Ill., G. R. Schwarz, Sp. Atty., Department of Justice, of Jerseyville, Ill., and Jacob N. Wasserman and Leland L. Yost, Attys., Department of Justice, both of Washington, D. C., for plaintiff.

George W. Dowell, of DuQuoin, Ill., for defendants.

WHAM, District Judge.

This case is before the court upon defendants' motion to dismiss the petition for condemnation filed by the United States of America by which it seeks to condemn four separate tracts of land totalling 2.74 acres, each of which tracts is now being used for cemetery purposes, and seeks an order for the removal of the bodies therefrom that the said land may be inundated by the waters of Crab Orchard Creek Reservoir. The petition is filed and condemnation sought under the provisions of Title III of the Bankhead-Jones Farm Tenant Act (hereinafter referred to as the Bankhead-Jones Act), approved July 22, 1937 (50 Stat. 522, 7 U.S.C.A. §§ 1000-1029), and the provisions of the Act of Congress approved August 1, 1888 (25 Stat. 357, 40 U.S.C.A. § 257).

The grounds of the motion to dismiss the petition are:

(1) That the legislation under which the condemnation is sought does not authorize the acquisition of the lands in question.

(2) The legislation relied upon is unconstitutional in that it delegates legislative powers to the Secretary of Agriculture.

(3) The acquisition, invasion and use of said lands now being used as cemeteries and the removal of the bodies therefrom will violate civil and criminal laws of the State of Illinois and will constitute an encroachment upon the powers reserved to the state by the Tenth Amendment.

(4) That the court is without power or jurisdiction to authorize, by its order, the removal of the bodies interred in said cemeteries or to establish the rules and conditions of such removals.

(5) The Act of Congress approved August 7, 1939, 53 Stat. 1244, which authorizes the Soil Conservation Service, Department of Agriculture, to remove the bodies buried within the area of the Crab Orchard Creek Dam Project prohibits removal of the bodies as sought through the petition.

The allegations of the petition show that the cemeteries in question lie in the midst of a large area of land heretofore acquired by the United States for use in what is known as the Crab Orchard Creek Project, Williamson County, Illinois, for purposes, among others, of flood control, reforestation, soil conservation and prevention of soil erosion. The constitutionality of the laws under which said lands were acquired, the legality of the authority as exercised thereunder and the legality of such acquisition has heretofore been considered and sustained by this court. United States v. Eighty Acres of Land, D.C., 26 F.Supp. 315; United States v. Sixty Acres of Land, D.C., 28 F.Supp. 368.

The allegations of the petition further show that unless the parcels of land here sought to be condemned are acquired with the right to remove the bodies buried therein so that said lands may be inundated by the waters of the reservoir which will be formed by closing the large dam already constructed and completed as part of said Crab Orchard Creek Project the purpose of the project will be defeated and the intended use of the lands heretofore acquired interfered with and prevented; that under the authority of said Bankhead-Jones Act the Secretary of Agriculture (hereinafter referred to as "the Secretary") has taken all the steps set forth in detail in said petition required to procure the institution of these proceedings for the acquisition of said cemetery lands by condemnation for purposes of said Act; that the Secretary has determined that said lands are necessary and has selected them for purposes of said Act, namely, to correct maladjustments in land use; to assist in controlling soil erosion; to provide for the reforestation of said lands; to preserve natural resources; to aid in flood control; to prevent impairment of dams and reservoirs; to conserve surface and subsurface moisture; to protect the watersheds of navigable streams; and to protect the public lands, health, safety and welfare.

An examination of the Bankhead-Jones Act discloses that by its provisions (7 U.S. C.A. §§ 1010 and 1011) the Secretary is authorized and directed to develop a program of land conservation and land utilization for the very purposes set forth in the petition herein as the purposes for which the land herein sought to be condemned is being acquired and that the Secretary is authorized to acquire for such purposes by purchase, gift or devise, submarginal land and land not primarily suitable for cultivation.

It is noticed at once that the uses and purposes for which the lands are being sought here are the same in large measure as the purposes of the Crab Orchard Creek Project which were held by this court in United States v. Eighty Acres of Land, supra, to be proper and lawful public uses, the accomplishment of which will warrant the exercise by the government of its power of eminent domain. Act of Congress approved August 1, 1888, 25 Stat. 357, 40 U.S.C.A. § 257.

The land which is here sought to be acquired is obviously not suitable for cultivation, and statutory authority to acquire land for a public use by purchase is authority to acquire by condemnation under the sovereign power of eminent domain and the provisions of the Act of Congress approved August 1, 1888 (25 Stat. 357, 40 U.S.C.A. § 257); Hanson Co. v. United States, 261 U.S. 581, 43 S.Ct. 442, 67 L.Ed. 809; United States v. Crary, D.C., 1 F. Supp. 406.

That the acquisition of the land here in question is necessary to correct a maladjustment of land seems obvious under the allegations of the petition, all of which, if well pleaded, are admitted by the motion to dismiss, that such acquisition is absolutely essential to plaintiff's use for their intended purposes of thousands of acres of land now owned by the plaintiff.

Then, too, the purposes of the Crab Orchard Creek Project and the purposes of the authority conferred by the Bankhead-Jones Act to acquire land for the uses set forth in the petition being substantially identical, as hereinbefore mentioned, it would seem to follow that though the acquisition of the land here sought is intended to aid the Crab Orchard Creek Project it comes within the Congressional purpose and intent in the enactment of the Bankhead-Jones Act.

Is the authority and right of the plaintiff to acquire the land here in question by eminent domain affected by the fact that it is being used for cemetery purposes and is already devoted to a public use? That question was considered by this court and answered in the negative in the case of United States v. Sixty Acres of Land, supra. After careful reconsideration I adhere to my views expressed in the opinion in that case. The fact that the plaintiff's authority here is given by a different law than that which gave the authority in the other case is of no consequence as the same principle is involved. By each law the plaintiff is authorized to acquire land by condemnation for a public purpose of the federal government. The rules governing the power of the national government to acquire for a federal public use by condemnation land already devoted to a public use under the laws of a state are the same regardless of the particular statute under which the government may be proceeding, unless some limitation, express or implied, appears in the statute itself.

One ground is here urged against the power of the federal government to acquire for a different public use land already devoted to a public use as a cemetery that was not considered in United States v. Sixty Acres of Land, supra. Def...