United States v. 635.76 Acres of Land, Etc., Arkansas

• Citation: 319 F. Supp. 763
• Decision Date: 02 December 1970
• Docket Number: Civ. No. 1802.
• Parties: UNITED STATES of America, Plaintiff, v. 635.76 ACRES OF LAND, MORE OR LESS, IN FRANKLIN ET AL. COUNTIES, ARKANSAS, and State of Arkansas, et al., and Unknown Owners, Defendants.
• Court: U.S. District Court — Western District of Arkansas

319 F. Supp. 763

UNITED STATES of America, Plaintiff, v. 635.76 ACRES OF LAND, MORE OR LESS, IN FRANKLIN ET AL. COUNTIES, ARKANSAS, and State of Arkansas, et al., and Unknown Owners, Defendants.

Civ. No. 1802.

United States District Court, W. D. Arkansas, Fort Smith Division.

July 1, 1970.

Supplemental Opinion December 2, 1970.

Robert E. Johnson, Asst. U. S. Atty., Fort Smith, Ark., for plaintiff.

Ray Blair, Paris, Ark., and James K. Young, Russellville, Ark., for McLean Bottom District, Don A. Smith of Harper, Young & Smith, Fort Smith, Ark., for intervenors.

OPINION

JOHN E. MILLER, Chief Judge.

This is a controversy between McLean Bottom Levee and Drainage District No. 3, Logan County, Arkansas, and certain landowners who have intervened to determine who should receive the just compensation from the United States for land acquired by the District for a right of way and used for the construction of the levee and subsidiary drainage projects.

On May 7, 1947, the County Court of Logan County, Arkansas, granted the petition of proponents and established the District under the general Statutes of Arkansas. There was an appeal from the order of the County Court to the Circuit Court of the Northern District of Logan County, Arkansas, and upon a hearing the Circuit Court found said District valid and properly formed.

There was an appeal to the Supreme Court of Arkansas from the judgment of the Circuit Court, and on June 30, 1947, the Supreme Court affirmed the judgment of the Circuit Court. On the same appeal the Supreme Court considered two other cases appealed on subsidiary or incidental orders relative to the appointment of appraisers to assess damages, etc. O'Kane v. McLean Bottom Levee and Drainage District No. 3 (1947) 211 Ark. 938, 203 S.W.2d 392.

Subsequent to the affirmance by the Supreme Court of the order creating the District, appraisers were appointed for the purpose of appraising the lands required by the District for the construction of the improvements. Sec. 35-1103, Ark.Stat.Ann. (1962 Repl.), being Section 3 of Act 177, Acts of the General Assembly of Arkansas for the year 1945, provides that the appraisers shall enter upon the land which has been appropriated or is intended to be appropriated and ascertain the fair market value of the same; the damage which the construction of the levee and other improvements will cause by obstructing the natural drainage, etc.; and shall reduce their findings to writing, giving the amount of award per acre for the land appropriated or intended to be appropriated.

The Act of Congress approved December 22, 1944, P.L. 534, 78th Cong., authorized certain local flood protection projects on the Arkansas River, including the McLean Bottom Levee.

On May 11, 1946, the Commissioners of the District, having been advised of the enactment of the above statute, entered into a contract with the Corps of Engineers, as authorized by Ark.Stat. Ann. §§ 21-804 to 21-809 (1968 Repl.), in which the District agreed and pledged:

"* * * that it will truly and faithfully perform and execute the cooperation required by the United States Government as set out by the district engineer, Little Rock, Arkansas, and in accordance with the recommendations of the Chief of Engineers in House Document No. 447, Seventy-eighth Congress, second session, as follows: (a) Provide without cost to the United States all lands, easements, and rights-of-way necessary for the construction; (b) alter and construct any bridges required across water courses; (c) hold and save the United States free from damage due to the construction works, and (d) maintain and operate all the works after completion in accordance with regulations prescribed by the Secretary of War to include protection of the flood carrying capacity of the channel of the Arkansas River in the locality."

See, Drainage Dist. No. 18, Craighead County v. Cornish (1939) 198 Ark. 857, 131 S.W.2d 938.

The levee was constructed by the Corps of Engineers in accordance with the contract. On September 6, 1949, the Commissioners were advised of the completion of the levee and other improvements, and of the formal transfer of the completed project and of the responsibility of the Levee District for the operation and maintenance of the project beginning on that date.

On January 3, 1949, the Circuit Court heard exceptions of landowners to the report of appraisers heretofore appointed by the Commissioners of the District to assess damages under an order which the court had entered on June 25, 1947, directing the Commissioners, through their agents and representatives, to go upon the lands owned by the defendants to assess damages, if any, in favor of the defendants. The court found that all damages occurring to the defendants by reason of the order of entry in the destruction of crops had been fully adjudged and paid by plaintiff, and further found that the "said levee across the lands of the defendants has been completed, and in the construction of said levee plaintiff has taken and appropriated for perpetual use of said levee and said District" certain lands therein described.

On the same day the court entered another order specifically finding that the levee District had "appropriated certain lands of the defendants the land now claimed by intervenors for permanent right-of-way and right of ingress and egress situated in Sections 5, 7 and 8 in Township 8 North, Range 25 West."

"That said levee has been fully completed and said District has now appropriated for permanent use and right of way the following described lands belonging to the defendants, described as follows, here follows a specific description of the lands."

The order further provided:

"The court further finds that all damages by reason of the taking and appropriating of said lands have been paid in full by plaintiff, and that plaintiff is entitled to the permanent use and occupancy of said lands so above described.

"IT IS THEREFORE, by the Court considered, ordered and adjudged that the permanent occupancy and use of said above described lands be vested in plaintiff, free of any right, title, interest or claim of the defendants or either of them in and to said lands, and that the plaintiff pay the cost of this proceeding."

On July 24, 1946, P.L. 525, 79th Cong., which authorized the multiple purpose plan on the Arkansas River became effective.

On June 4, 1964, the condemnation action was commenced. Upon the filing of the declaration of taking and the deposit in the registry of the court of estimated just compensation, the court on June 8, 1964, entered an order requiring all persons in possession or control of the property described in the complaint to surrender possession of said property to the extent of the estate being condemned. The Government alleged in its complaint that it was necessary to acquire from the Levee District for this project the fee simple title to Tracts Nos. 2715-1 and 2715-2 with minerals reserved and subordinated and the right to occasionally flood Tract 2715E-1 which extends along the river side of the levee.

On December 4, 1969, the intervenors filed their intervention, in which they alleged that the United States in this proceeding has condemned certain property and has named as defendants, among others, the three Commissioners of the District.

"That neither the Levee District nor the Commissioners are the owners of the described land in said condemnation action which is alleged to belong to McLean Bottom Drainage District No. 3, Logan County, Arkansas, and that in fact the property of these applicants for intervention and others is being taken without notice to the true owners of said property."

The concluding paragraph of the intervention is:

"Wherefore, applicants for intervention individually and in their representative capacity for the class, pray that this Court determine the actual ownership of the fee simple title in and to said property sought to be condemned by the United States Government in this case, and thereafter set for hearing the matters relating to just compensation for the individual tracts which constitutes said levee now under condemnation by the Government. Applicants for intervention pray for any and all other relief to which they may be entitled in law or equity."

In the answer of the District to the intervention it is alleged:

"1. McLean Bottom Levee & Drainage District No. 3 admits that on the 25th day of June, 1947, the Logan County Circuit Court, Northern District, entered the Order in Cause No. 1877 attached to the intervention filed herein. McLean Bottom Levee & Drainage District No. 3, however, further states that said Order was a right of entry, and that on the 3rd day of January, 1949, a final judgment was entered by the Circuit Court of Logan County, Arkansas, Northern District, which states:

"`That the permanent occupancy and use of said above described lands be vested in plaintiff, free of any right, title, interest or claim of the defendants or either of them in and to said lands.'"

A complaint or intervention may be dismissed on motion if clearly without any merit. This want of merit may consist in the absence of law to support a claim of the sort made, or of facts sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim. However, a complaint or intervention should not be dismissed for insufficiency unless it appears to a certainty that intervenor or plaintiff is entitled to no relief under any set of facts which could be proved in support of the claim. 2A Moore's Federal Practice, 2d Ed., p. 2271 et seq. in DeLoach v. Crowley's, Inc. (5 Cir. 1942) 128 F.2d 378, the court at page 380 said:

"A petition may be dismissed on motion if clearly without any merit; and this want of merit may consist in the absence of law to support a claim of the sort made, or of facts sufficient to make a good claim, or in the disclosure of some fact which will necessarily

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