United States v. 49.79 Acres of Land

• Decision Date: 29 September 1983
• Docket Number: Civ. A. No. 82-732.
• Citation: 582 F. Supp. 368
• Parties: UNITED STATES of America, Plaintiff, v. 49.79 ACRES OF LAND, More or Less, SITUATE IN NEW CASTLE COUNTY, STATE OF DELAWARE; Frederic A. Potts and Company, Inc., a New York corporation; Getty Pipeline, Inc., a Delaware corporation; Citibank, N.A.; Nordic Bank Limited; Sunset Strippers of Virginia, Inc.; Freedom Energy Corp.; Attorney General, State of Delaware; Finance Department, Treasury Division Collection Unit of New Castle County; City Treasurer, City of Wilmington; and unknown owners, Defendants.
• Court: U.S. District Court — District of Delaware

582 F. Supp. 368

UNITED STATES of America, Plaintiff, v. 49.79 ACRES OF LAND, More or Less, SITUATE IN NEW CASTLE COUNTY, STATE OF DELAWARE; Frederic A. Potts and Company, Inc., a New York corporation; Getty Pipeline, Inc., a Delaware corporation; Citibank, N.A.; Nordic Bank Limited; Sunset Strippers of Virginia, Inc.; Freedom Energy Corp.; Attorney General, State of Delaware; Finance Department, Treasury Division Collection Unit of New Castle County; City Treasurer, City of Wilmington; and unknown owners, Defendants.

Civ. A. No. 82-732.

United States District Court, D. Delaware.

September 29, 1983.

COPYRIGHT MATERIAL OMITTED

Joseph J. Farnan, Jr., U.S. Atty., Peggy L. Ableman, Asst. U.S. Atty., Wilmington, Del., and Gary M. Peterson, Dept. of Justice, Washington, D.C., for plaintiff U.S.

Aubrey B. Lank and John G. Mulford of Theisen, Lank, Mulford & Goldberg, P.A., Wilmington, Del., for defendant Frederic A. Potts and Co., Inc.

Stephen E. Herrmann, Jr., of Richards, Layton & Finger, Wilmington, Del., for defendant Getty Pipeline.

J. Calvin Williams, Deputy Atty. Gen., Dept. of Justice, Wilmington, Del., for defendant State of Del.

Julianne E. Hammond, Asst. City Sol., Wilmington, Del., for defendant City of Wilmington.

MEMORANDUM OPINION

LATCHUM, Chief Judge.

This is a civil action instituted on November 12, 1982, by the United States of America, on behalf of the Corps of Engineers ("Corps") pursuant to its power of eminent domain to take a fee simple title to 49.79 acres of land from the defendant, Frederic A. Potts and Company, Inc. ("Potts"). Pursuant to an ex parte Order of Possession entered November 18, 1982, Potts was required to surrender possession of the 49.79 acres. On April 8, 1983, Potts filed its answer and counterclaimed for just compensation as to 237.213 acres of land. Potts also raised five affirmative defenses. On July 7, 1983, Potts filed a motion to set aside the Order of Possession. In addition, Potts filed a motion for summary judgment on its fourth and fifth affirmative defenses which allege that the taking of the property is an acquisition of said property for the Delaware Solid Waste Authority and that acquisition by means of a lease and not by means of a fee simple condemnation would be the proper and legal method for acquiring the property.

I. FACTS

In this action, the Corps seeks to acquire in fee 49.79 acres of land known as Cherry Island which is owned by defendant Potts. In 1975, Potts acquired 237.213 acres of land north of the Christiana River and west of the Delaware River. Potts' property consists of 49.79 acres west of the high water mark of the Delaware River as determined by an 1899 survey and 187 acres of land eastward from the high water mark to the bulkhead line of the Delaware River. In 1902, a bulkhead line along the Delaware River was established by a map approved by the Secretary of War. The establishment of the bulkhead line permitted the littoral owners to fill in with earth, stones or other material, the area between the bulkhead line and the 1902 high water mark.

The defendant Potts, in its brief, argues that although the line for the bulkhead was established in 1902, the bulkhead was not completed until sometime between 1924 and 1932 — no records are available to show the exact dates of construction. The defendant also concedes that the United States had the right to use the space between the bulkhead line and the high water mark for the deposit of dredge materials taken from the channel of the Delaware River. Although the defendant noted that the United States Government has continued to use this area to the present date, for depositing dredge materials, the facts do not indicate when this operation began. At the present time, the land behind the bulkhead has been filled to the height of 44 feet.

In its brief, Potts argues that when it acquired the land on Cherry Island in 1975, a portion of the land west of the high water mark as it existed in 1902 had been leased to the Corps as a disposal site. In April of 1981, the Delaware Solid Waste Authority ("the Authority") informed Potts of its desire to use Cherry Island as a landfill. Even though the leases were extended to December 31, 1982, the Corps notified Potts on August 5, 1982 that the United States was going to condemn 49.79 acres west of the 1902 high water mark in fee simple.

On November 12, 1982, the Government filed a complaint in condemnation for the 49.79 acres. Simultaneously, the Government deposited the sum of $336,100.00 in the registry of the court as estimated compensation. By filing a declaration of taking, the fee simple title to the 49.79 acres of land vested in the United States. On November 18, 1982, an Order of Possession was signed granting immediate possession to the Government.

Since the filing of the action, the Authority, on March 31, 1983, selected a portion of the Potts property as the new landfill facility for Northern New Castle County. In addition, the Authority advised Potts that in the event the United States should either abandon its current condemnation proceedings or not complete the condemnation successfully, the Authority will acquire by condemnation Potts' entire parcel of land.

Potts argues that just compensation should be paid by the United States for the entire 237.213 acres because that is the total amount of the land actually used by the Corps. The Corps contends that the 187 acres between the bulkhead line and the 1902 high water mark are subject to its dominant navigational servitude pursuant to the Rivers and Harbors Act of 1899. 33 U.S.C. § 403 (1976). As a result, the Corps claims that it is under no obligation to pay for any of the 187 acres east of the high water mark because it will be used as a spoil area for the deposit of dredge materials removed from the channel of the Delaware River.

II. DISCUSSION

Generally, Congressional authority to condemn land for public use is conferred by general statutes. United States ex rel. T.V.A. v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843 (1946). Therefore, it is the function of Congress to decide what type of taking is "public." Then the authorized entity may do so to the full breadth of its authority. Id. Although this is a discretionary matter for Congress, it may be delegated. United States v. Threlkeld, 72 F.2d 464 (10th Cir.), cert. denied, 293 U.S. 620, 55 S.Ct. 215, 79 L.Ed. 708 (1934). By the Act of April 24, 1888, 25 Stat. 94, 33 U.S.C. § 591 (1974), Congress conferred upon the Secretary of the Army the authority to condemn land to "maintain, operate or prosecute works for improvement of rivers and harbors for which provision has been made by law." United States v. Bowman, 367 F.2d 768, 770 (7th Cir.1966). The power granted under 33 U.S.C. § 591 (1976) is unlimited and discretion is clearly vested in the Secretary of the Army to determine the size and amount of the taking. United States v. 10.08 Acres of Land, 46 F.Supp. 138 (M.D. Pa.1942).

Pursuant to 33 U.S.C. § 403, the Secretary of the Army had the authority to establish harbor lines beyond which no piers, bulkheads, or other works shall be extended or deposits made. The Secretary exercised that authority in 1902 when the bulkhead line was established by a map approved by the Secretary of War. Subsequent to the establishment of the bulkhead line in 1902, the State of Delaware enacted legislation permitting the littoral owners to fill in the area between the bulkhead line and the high water mark. 23 Del.C. § 1508 (1981).

It is important to note the breadth of the Secretary's power under 33 U.S.C. § 591. Courts, which have been faced with this issue, have declined to read into the powers granted by the 1888 Act any limitations not indicated by Congress. United States v. Meyer, 113 F.2d 387 (7th Cir.), cert. denied, 311 U.S. 706, 61 S.Ct. 174, 85 L.Ed. 459 (1940). The only limitations Congress has expressly provided for are three: (a) that the Secretary institute condemnation proceedings for the acquisition of land, right-of-way, or material for the improvement of rivers and harbors; (b) that the owner of such land, right-of-way, or material receive reasonable compensation; and (c) that the proceedings be prosecuted in accordance with the laws of the state wherein the proceedings may be instituted. 33 U.S.C. § 591.

The substance of Potts' first argument is that the land acquired by the United States Government's condemnation was not acquired for "public use" and that the power of condemnation was exercised arbitrarily, capriciously and in bad faith. (Docket Item "D.I." 24, at 15, 16.) Pursuant to 33 U.S.C. § 591, the Secretary of the Army is vested with the authority to cause proceedings to be instituted in the name of the United States for the acquisition by condemnation of any land or material for the purpose of improving the rivers and harbors. Harwell v. United States, 316 F.2d 791 (10th Cir.1963). Potts argues that the effect of this condemnation is not for the purpose of maintaining or improving navigation in the Delaware River but for the purpose of conveying piecemeal the entire 237.213 acres to a state authority, the Delaware Solid Waste Authority. (D.I. 24, at 19.)

The general rule is that private property can constitutionally be taken by eminent domain only for a "public" use. United States v. 0.16 Acres of Land, 517 F.Supp. 1115 (E.D.N.Y.1981). As a result, in a condemnation proceeding, the only inquiries for judicial review are whether the expressed use is, in fact, a public one, Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1893), and whether the condemnation results from bad faith or arbitrary and capricious motives. United States v. Carmack, 329 U.S. 230, 67 S.Ct. 252, 91 L.Ed. 209 (1946). In the absence of egregious bad faith, if the use is a public one, the necessity for the designated property is not open to judicial review. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1...