United States v. 254.35 ACRES OF LAND, ETC.

• Decision Date: 29 September 1942
• Docket Number: No. 493.,493.
• Citation: 46 F. Supp. 913
• Parties: UNITED STATES v. 254.35 ACRES OF LAND IN CADDO PARISH, LA., et al.
• Court: U.S. District Court — Western District of Louisiana

46 F. Supp. 913

UNITED STATES v. 254.35 ACRES OF LAND IN CADDO PARISH, LA., et al.

No. 493.

District Court, W. D. Louisiana, Shreveport Division.

September 29, 1942.

Malcolm E. Lafargue, U. S. Atty., John A. Patin and Jared Y. Fontenot, Asst. U. S. Attys., and J. P. Wallace, Sp. U. S. Atty., all of Shreveport, La., for plaintiff.

Tucker, Bronson & Martin, of Shreveport, La., for Board of Commissioners of Caddo Levee Dist.

Hussey & Smith, of Shreveport, La., for defendants.

PORTERIE, District Judge.

The above-entitled suit was instituted on June 24, 1941, at the request of the War Department in the name of the United States, "under the provisions of Section 9 of the River and Harbor Act approved August 8, 1917, 40 Stat. 267, 333 U.S.C.A. § 593, to condemn the fee simple title to 5.49 acres, designated as tract No. 3, and the flowage easement to 248.86 acres, designated as tract No. 3-A, both in Caddo Parish, Louisiana, for use in connection with the Wallace Lake Dam and Reservoir Project. It is also requested that an order be obtained authorizing the United States to take immediate possession of tract No. 3 at the time of filing petition as provided in Section 5 of the Act of July 18, 1918, 40 Stat. 911, 33 U.S.C.A. § 594, and further that the Caddo Levee District be required to deposit into the registry of the court funds sufficient to cover awards and costs at the time of the filing of petition and obtaining order of immediate possession in lieu of bond." Quotation is from certificate of the Department of Justice directing the local District Attorney to file the suit. The petition of the United States of America is in direct consonance with this above-quoted direction. The expropriation case accordingly went to a jury and the jury fixed the value. The defendants have filed a motion to tax, as costs, the fees of expert witnesses employed by them in the proceeding, relying particularly upon Section 9 of the Rivers and Harbors Act approved August 8, 1917, 40 Stat. 267, 33 U.S. C.A. § 593, under which the Secretary of War is authorized to bring the proceedings:

"Whenever any State, or any reclamation, flood control or drainage district, or other public agency created by any State, shall undertake to secure any land or easement therein, needed in connection with a work of river and harbor improvement duly authorized by Congress, for the purpose of conveying the same to the United States free of cost, and shall be unable for any reason to obtain the same by purchase and acquire a valid title thereto, the Secretary of War may, in his discretion, cause proceedings to be instituted in the name of the United States for the acquirement by condemnation of said land or easement, and it shall be the duty of the Attorney General of the United States to institute and conduct such proceedings upon the request of the Secretary of War: Provided, That all expenses of said proceedings and any award that may be made thereunder shall be paid by such State, or reclamation, flood control or drainage district, or other public agency as aforesaid, to secure which payment the Secretary of War may require such State, or reclamation, flood control or drainage district, or other public agency as aforesaid, to execute a proper bond in such amount as he may deem necessary before said proceedings are commenced." (Italics supplied.)

The government contends for many principles, declared in cases cited with which we take no issue. We quote in full from the government brief, as follows:

"The constitutional mandate of just compensation does not require reimbursement of an owner for his attorneys' fees and other litigation expenses in defending a condemnation proceeding. Dohany v. Rogers, 1930, 281 U.S. 362, 368 50 S.Ct. 299, 74 L.Ed. 904, 68 A.L.R. 434. Immunity from costs is a sovereign attribute of the United States, United States v. Chemical Foundation, Inc., 1926, 272 U.S. 1 47 S.Ct. 1, 71 L.Ed. 131, and in the absence of a specific provision in the applicable federal statutes, the United States is not liable for costs in condemnation proceedings, notwithstanding the federal conformity acts and state statutes and practice. United States v. Knowles' Estate 9 Cir., 1932, 58 F.2d 718; Kanakanui v. United States 9 Cir., 1917, 244 F. 923; In re Post Office Site 2 Cir., 1914, 210 F. 832; Carlisle v. Cooper 2 Cir., 1894, 64 F. 472; Ingram Day Lumber Co. v. United States, 1938, 87 Ct.Cl. 468, certiorari denied 1938, 305 U.S. 638 59 S.Ct. 105, 83 L.Ed. 411; United States v. Wade D.C. D.Idaho, 1926, 40 F.2d 745; In re Hastings Lock and Dam D.C. D.Minn.1932, 2 F. Supp. 324, 329. It is immaterial whether or not a declaration of taking has been filed. The sole determinant is whether a federal statutory provision directs the assessment of costs."

No case by either side is given directly interpretative of the language "That all expenses of said proceedings and any award that may be made thereunder shall be paid by such State, or reclamation, flood control or drainage district, or other public agency as aforesaid, * * *." We have made a rather exhaustive research and find no decision.

The government offers the case of United States v. Knowles' Estate et al., supra, as being directly in point. We quote from the case, as follows: "The petition filed by the government in the condemnation proceedings in the court below recites that they are based upon the Act of May 16, 1906, 34 Stat. L., pt. 1, page 196 (33 U.S.C.A. § 592). The government's brief, however, makes no mention of that act, but seems to rely upon the Act of July 2, 1917, 40 Stat. L. 241 (50 U.S.C.A. § 171). The latter act contains the following provision: `* * * such proceedings to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the States...