United States v. 74.57 Acres of Land, More or Less, CIVIL ACTION 12-0239-WS-N

• Decision Date: 11 April 2012
• Docket Number: CIVIL ACTION 12-0239-WS-N
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. 74.57 ACRES OF LAND, MORE OR LESS, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

UNITED STATES OF AMERICA, Plaintiff,

v.74.57 ACRES OF LAND, MORE OR LESS, et al., Defendants.

CIVIL ACTION 12-0239-WS-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

Dated: April 11, 2012

ORDER

This newly filed matter comes before the Court on plaintiff's Motion to Deposit Funds (doc. 4) and Motion for Ex Parte Order for Delivery of Immediate Possession (doc. 5).

I.Background.

On April 6, 2012, the United States filed a Complaint in Condemnation (doc. 1) seeking to effectuate the taking of certain property under the power of eminent domain and the award of just compensation to owners and parties in interest.¹The real property in question is two adjacent parcels located in Conecuh County, Alabama, the first consisting of 33.25 acres of land, more or less, and the second consisting of 41.32 acres of land, more or less.The Government proposes to take fee simple title of the 33.25-acre tract (subject to existing easements of record for public utilities, drainage and so on), and to take a permanent restrictive easement as to the 41.32-acre tract to impose stringent limits on the use and development of such property by its owners.Although the final figures are ultimately for the Court to decide in these proceedings, the pleadings reflect that estimated just compensation for these takings is $46,024 for the smaller parcel and $107,802 for the larger parcel.The Government's stated purpose for taking theseparcels is to facilitate the Secretary of the Navy's extension of runways and acquisition of clear zones at Middleton Field, a Naval Outlying Landing Field in Evergreen, Alabama.

Contemporaneously with the Complaint, the Government filed a Declaration of Taking (doc. 2), Motion to Deposit Funds (doc. 4), and Motion for Ex Parte Order for Delivery of Immediate Possession (doc. 5).²With respect to the Motion to Deposit Funds, the Government seeks leave to deposit with the Clerk of Court the amount of $153,826.00, which equals the combined total of the estimated just compensation figures for both parcels.Meanwhile, the Motion for Ex Parte Order sets forth the Government's request for entry of an order vesting immediate possession of the subject property to the Government, without allowing the property owners to be heard ex ante.

II.Analysis.

"The United States has the authority to take private property for public use by eminent domain, ... but is obliged by the Fifth Amendment to provide 'just compensation' to the owner thereof."Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 9, 104 S.Ct. 2187, 81 L.Ed.2d 1(1984)(citation omitted).Pursuant to the Declaration of Taking Act, the Government may bring an expedited proceeding to acquire land, or an easement in land, for public use by filing a declaration of taking setting forth a statement of authority under which the land is being taken, the public use for which the land is being taken, a description of the land, the estate or interest in the land being taken, a plan showing the land being taken, and an estimate of the just compensation amount.See40 U.S.C. § 3114(a).Upon the Government's filing of the declaration of taking and depositing the estimated compensation amount in the court registry, the following events occur by operation of law: "(1) title to the estate or interest specified in the declaration vests in the Government; (2) the land is condemned and taken for the use of the Government; and (3) the right to just compensation for the land vests in the persons entitled to the compensation."40 U.S.C. § 3114(b);see alsoEast Tennessee Natural Gas Co. v. Sage, 361 F.3d 808, 825(4th Cir.2004)(in a Declaration of Taking Act case, "[t]itle and the right topossession vest in the government immediately upon the filing of a declaration and the requisite deposit").Significantly, however, "[w]hile the DTA gives the government the right of immediate possession, the time and terms of possession are fixed by the district court. ...The precise compensation figure is determined later."East Tennessee, 361 F.3d at 821(citation omitted).

The Supreme Court has recognized that the purpose of the Declaration of Taking Act is "to give the Government immediate possession of the property," while simultaneously providing the former owner "immediate cash compensation to the extent of the Government's estimate of the value of the property."United States v. Miller, 317 U.S. 369, 381, 63 S.Ct. 276, 87 L.Ed. 336(1943).The Government may avail itself of the expedited procedures prescribed by the Act"whenever an officer of the United States is authorized to bring a condemnation action in federal court."United States v. 1.04 Acres of Land, More or Less, Situate in Cameron County, Tex., 538 F. Supp.2d 995, 1007(S.D. Tex.2008).The type of condemnation under which the Government takes immediate possession pursuant to § 3114 is sometimes described as the "quick-take" method.East Tennessee, 361 F.3d at 821.

Bearing that statutory backdrop in mind, the Court now considers the two pending motions.First, the Government has requested leave to deposit the sum of $153,826.00, which equates to the total estimated just compensation amount for the two parcels, in the Registry of the Court in an interest-bearing account.This is the proper procedure.The Declaration of Taking Act provides that, for title to vest, the Government must "fil[e] the declaration of taking and deposit[] in the court ... the amount of the estimated compensation stated in the declaration."40 U.S.C. § 3114(b).And the Federal Rules of Civil Procedure state that the Government "must deposit with the court any money required by law as a condition to the exercise of eminent domain and may make a deposit when allowed by statute."Rule 71.1(j)(1), Fed.R.Civ.P.Pursuant to both § 3114(b)andRule 71.1(j)(1), the Government's Motion to Deposit Funds (doc. 4) is granted.The Government is ordered, on or before April 19, 2012, to remit to the Clerk of Court a United States Treasury check in the amount of $153,826.00.The Clerk, in turn, is directed to deposit those funds into an interest-bearing account pending further instruction from the Court.Pursuant to the schedule promulgated under 28 U.S.C. § 1914, a fee of 10% of the interest earned on the deposited funds will be assessed by the Clerk of Court at the time of disbursement.

The Government's Motion for Ex Parte Order for Delivery of Immediate Possession stands on a different footing.The Government seeks immediate possession of the two parcels, before service of process has been completed on defendants and without affording them notice or opportunity to object.Although the Government's position is that such ex parte orders are entered in Declaration of Taking Actcases as a matter of course, this Court's research and experience suggest otherwise.Significantly, the Act does not state that possession necessarily passes to the Government instantaneously upon filing of a declaration of taking and deposit of estimated just compensation.Rather, the Act provides that the court"may fix the time within which, and the terms on which, the parties in possession shall be required to surrender possession to the petitioner."40 U.S.C. § 3114(d)(1).Federal courts have construed this language as empowering (and perhaps even obligating)district courts to examine the equities of the matter to evaluate whether some undue hardship to the present landowner or occupant might...