United States v. 544 ACRES OF LAND, ETC., FRANKLIN CO., TENN., Civ. A. No. 923.

• Decision Date: 26 September 1969
• Docket Number: Civ. A. No. 923.
• Citation: 314 F. Supp. 273
• Parties: UNITED STATES of America upon the relation and for the use of the TENNESSEE VALLEY AUTHORITY, Plaintiff, v. 544 ACRES OF LAND, MORE OR LESS, IN FRANKLIN COUNTY, TENNESSEE, Willard R. Anderson et al., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

314 F. Supp. 273

UNITED STATES of America upon the relation and for the use of the TENNESSEE VALLEY AUTHORITY, Plaintiff, v. 544 ACRES OF LAND, MORE OR LESS, IN FRANKLIN COUNTY, TENNESSEE, Willard R. Anderson et al., Defendants.

Civ. A. No. 923.

United States District Court, E. D. Tennessee, Winchester Division.

September 26, 1969.

Robert H. Marquis, Gen. Counsel, TVA, Thomas A. Pedersen, Solicitor, TVA, Don Whitehead, and Beecham Brogan, TVA, Knoxville, Tenn., for plaintiff.

Pat B. Lynch, Ben P. Lynch, and Mike Lynch, Lynch, Lynch & Lynch, Winchester, Tenn., for defendants.

MEMORANDUM OPINION

NEESE, District Judge.

The Court submitted to a jury the issue of just compensation herein, but reserved the issue of the relator's right to take that portion of the land included in the taking which lies above the floodline. The landowners claim a right to contest this reserved issue by evidentiary hearing.

The necessity and expediency of taking property for public use is a purely political determination for the Legislative Branch. It is not a subject for judicial inquiry, and it requires no hearing. Joslin v. Providence (1923), 262 U.S. 668, 678, 43 S.Ct. 684, 67 L.Ed. 1167, 1176 (headnote 12). After the Legislative Branch has decided the question of the public purpose, neither the amount or character of the land to be taken for a project nor the need of particular acreage to complete the integrated plan adopted, are matters for the Judicial Branch. Berman v. Parker (1954), 348 U.S. 26, 35-36, 75 S.Ct. 98, 99 L.Ed. 27, 39 (headnote 14). These basic principles have been followed uniformly. See United States v. Bowman, C.A. 7th (1966), 367 F.2d 768, 770 4; United States v. Mischke, C.A. 8th (1961), 285 F.2d 628, 631; also United States ex rel. TVA v. Welch (1946), 327 U.S. 546, 551-552, 66 S.Ct. 715, 90 L.Ed. 843, 847-848 (headnote 3).

For the purpose of maintaining and operating certain properties of the United States in the interest of the national defense and for agricultural and industrial development, and to improve navigation in the Tennessee River and to control the destructive flood waters in the Tennessee River and Mississippi River basins, the Congress created a public corporation, the relator Tennessee Valley Authority. 16 U.S.C. sec. 831. It granted this corporation such powers as may be necessary or appropriate for the exercise of the powers specifically conferred upon it, 16 U.S.C. sec. 831c (g), including the specific power to acquire real estate for the construction of reservoirs at any point along the Tennessee River or any of its tributaries, 16 U.S.C. sec. 831c(i), and the power to exercise in the name of the United States of America the right of eminent domain, title to real estate purchased or acquired by condemnation to be taken in the name of the United States of America, which thereafter is entrusted to the relator as the agent of the United States to accomplish the purpose of 16 U.S.C. ch. 12A. 16 U.S.C. sec. 831c(h). This right of condemnation of lands extends to such "* * * which, in the opinion of the relator Corporation, are necessary to carry out the provisions of this chapter 16 U.S.C. ch. 12A. * * *" 16 U.S.C. sec. 831x, as amended Sept. 28, 1968, Pub.L. 90-536, sec. 1, 82 Stat. 885.

While all appropriations necessary to carry out the provisions of 16 U.S.C. ch. 12A are authorized, 16 U.S.C. sec. 831z, the relator sought an appropriation from the Congress of funds to enable the relator to proceed with the Tims Ford dam and reservoir project.^*

H.R. 9920, 89th Cong., 1st Sess. The Court notices judicially, United States v. An Easement and Right-of-Way, Etc., D. C.Ky. (1965), 246 F.Supp. 263, 269 4, affirmed C.A. 6th (1967), 375 F.2d 120, that the relator advised the Congress fully of the nature, scope and purpose of the Tims Ford dam and reservoir project. That a part of the lands acquired for this public purpose by the relator TVA may be deeded or transferred to the Tennessee Elk River Development Agency, for the development and effectuation of plans and programs for comprehensive development of marginal lands around the reservoir, including the control and development of water resources, Public Acts of Tennessee of 1963, ch. 336, does not render the taking, or any part thereof, arbitrary or capricious. United States v. Bowman, supra, 367 F.2d at 770 5; Wilson v. United States, C.A. 10th (1968), 350 F. 2d 901, 907 8.

The landowners cannot complain that the Congress delegated to the relator TVA a determination of the specific lands to be taken for the public use, or that the relator TVA itself may delegate some of its responsibility to a state agency to complete the integrated plans of development and management of this project. See Berman v. Parker, supra, 348 U.S. at 36, 75 S.Ct. 98, 99 L.Ed. 27 (headnote 15), cited in Government of Guam v. Moylan, C.A. 9th (1969), 407 F.2d 567, 568; United States v. Forbes, D.C.Ala. (1919), 259 F. 585, 592; see also United States v. Certain Parcels of Land, Etc., D.C.Tenn., 175 F.Supp. 418.

The President has authorized and directed the directors of the relator TVA to make such general plans as may be necessary and suitable to aid the proper use and development of the Tennessee River drainage basin, and of the adjoining territory as may be related to or materially affected by the development consequent to 16 U.S.C. ch. 12A, and to promote the general welfare of the citizens of said area, within the limits of appropriations made therefor by the Congress. Executive Order no. 6161 of June 8, 1933, reference 16 U.S.C. secs. 831w, 831v.

Such plans may relate to the proper use of marginal lands, 16 U.S.C. sec. 831v(4), and the relator is empowered to make all "* * * necessary acquisitions of land, in order to effectuate the purposes of the chapter 16 U.S.C. ch 12A; and may cooperate with * * * State * * * agencies to that end. * * *" 16 U.S.C. sec. 831c (l). That chapter is to be "* * * liberally construed to carry out the purposes of Congress * * *", and the only limitation upon the relator in acquiring property is that "* * * no real estate shall be held except what is necessary in the opinion of the TVA Board to carry out plans and projects actually decided upon requiring the use of such land * * *". 16 U.S.C. sec. 831dd.

Thus, it appears as a matter of law that the relator was fully authorized and empowered to take the land above the floodline in this proceeding. The relator seeks a partial summary judgment herein on that issue. It is the duty of the Court to render such judgment forthwith, the pleadings and matters judicially noticed by the Court showing that there is no genuine issue of any material fact, and that the relator is entitled to a partial judgment thereon as a...