United States v. 597.75 ACRES OF LAND, ETC., Civ. A. No. 10373.

• Decision Date: 20 May 1965
• Docket Number: Civ. A. No. 10373.
• Citation: 241 F. Supp. 796
• Parties: UNITED STATES of America v. 597.75 ACRES OF LAND, MORE OR LESS, Situate IN ST. MARTIN PARISH, STATE OF LOUISIANA, and Everett S. Welch, et al.
• Court: U.S. District Court — Western District of Louisiana

241 F. Supp. 796

UNITED STATES of America v. 597.75 ACRES OF LAND, MORE OR LESS, Situate IN ST. MARTIN PARISH, STATE OF LOUISIANA, and Everett S. Welch, et al.

Civ. A. No. 10373.

United States District Court W. D. Louisiana, Lafayette Division.

May 20, 1965.

Edward L. Shaheen, U. S. Atty., and D. H. Perkins, Jr., Asst. U. S. Atty., Shreveport, La., Philip Zeidner and Anthony R. Sluga, Attorneys, Department of Justice, Washington, D. C., for plaintiff.

Clarence Frost, New Orleans, La., for Texas Pipe Line Co. and Texaco, Inc.

PUTNAM, District Judge.

This condemnation suit was filed on July 9, 1964 by the United States at the request of the Secretary of the Army. Texaco, Inc. and The Texas Pipe Line Company were served with notice of this suit in accordance with the provisions of Rule 71A, Federal Rules of Civil Procedure. This rule provides, inter alia, that all persons having an interest in properties affected by a condemnation action instituted by the United States should be served with notice thereof. The interests of Texaco, Inc. and The Texas Pipe Line Company were derived from certain instruments of public record wherein they were mineral lessees or assignees as to the minerals under the lands comprising Tracts Nos. 321E-1 and 322E-3 upon which the United States expropriated dredging easements. The defendants then amended their Notices of Appearance claiming large sums of money to cover the costs of lowering their pipelines in accordance with the direction of the acquiring agency of the United States.

The Notices of Appearance filed by each defendant did not set forth claims for specific sums for just compensation. Independently of the condemnation suit and under the provisions of Section 10, of the Act of Congress approved March 3, 1899, entitled, "An Act Making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes", 30 Stat. 1121, the District Engineer, U.S. Army Engineer District, New Orleans, Louisiana, issued notices to the defendants to lower their pipelines in the bed of the navigable river so as to accommodate the proposed improvement to the navigation channel.

The United States then filed a Motion to Dismiss the defendants from the condemnation suit on the grounds neither defendant had a compensable interest in that the estates taken for public use were taken subject to the existing easements for pipelines.

Defendants' pipelines crossed the navigation channel prior to the institution of the condemnation suit under authority of permits issued by the acquiring agency pursuant to its authority for administering the public rights of navigation in the Atchafalaya River. In each of these permits it is clearly provided that if future operations by the United States required alteration in the position of the structure or work authorized, the owners would, without expense to the United States, remove or reconstruct the structures without claim to damages or right to compensation against the United States.

Despite the waiver of compensation and damages in the crossing permits, the defendants claimed that pipe line rights-of-way of public record which they obtained from the State of Louisiana, the Atchafalaya Basin Levee District and the A. Wilberts' Sons Lumber and Shingle Company, on adjoining riparian lands, were in effect expropriated even though the Declaration of Taking filed in this condemnation suit stated the dredging easements were taken subject to existing easements for pipelines. The "subject to" phrase in the Declaration of Taking can be given no other interpretation except that the servitudes of the defendants were not being expropriated. New York Telephone Company v. United States, 136 F.2d 87, 88 (C.A. 2, 1943).

It is the basic principle of condemnation law that when an estate is condemned in land, all persons possessing any interest in the land, legal or equitable, may be parties defendant in the proceeding. Swanson et al. v. United States et al., 156 F.2d 442 (9 Cir. 1946), United States v. Block, 160 F.2d 604 (9 Cir. 1947). Considering defendants' interests of public record consisting of pipeline servitudes and mineral interests, they were properly made parties and served with notice of the condemnation suit, but informing them of the condemnation suit by serving notices does not entitle them to compensation for interests not taken, and the fact that such interests are not taken requires that, as to the servitudes or easements on adjoining riparian lands, the government refrain from disturbing defendants in the exercise of such rights.

The dredging easements condemned by the United States were in aid of flood control purposes. Control of floods in navigable rivers is of itself control of navigation. United States v. West Virginia Power Company et al., 56 F.Supp. 298 (S.D.W.Va.1944). Accordingly, no state, subdivision thereof or individual citizen may grant any servitude which will hinder the United States through its proper agencies from making necessary works in navigable streams to control navigation, when the adjoining real property is not taken or disturbed.

The arguments of the defendants that compliance with the order of the District Engineer to lower the pipelines will cause defendants to make a very large expenditure in money are not persuasive. Union Bridge Co. v. United States, 204 U.S. 364, 27 S.Ct. 367, 51 L.Ed. 523 (1907); Louisville Bridge Co. v. United States, 242 U.S. 409, 37 S.Ct. 158, 61 L. Ed. 395 (1916).

There is nothing novel or unconstitutional in the requirement that the defendants relocate pipelines they constructed in and across the bed of a navigable river. The right of free unobstructed navigation is of paramount interest to the welfare of the citizens of the United States. Lewis Blue Point Oyster...