United States v. . 8677 ACRE OF LAND IN RICHLAND COUNTY

• Decision Date: 06 December 1941
• Docket Number: No. 635.,635.
• Citation: 42 F. Supp. 91
• Court: U.S. District Court — District of South Carolina
• Parties: UNITED STATES v. .8677 ACRE OF LAND IN RICHLAND COUNTY AND CITY OF COLUMBIA, S. C., et al.

42 F. Supp. 91

UNITED STATES v. .8677 ACRE OF LAND IN RICHLAND COUNTY AND CITY OF COLUMBIA, S. C., et al.

No. 635.

District Court, E. D. South Carolina.

December 6, 1941.

Yancey A. McLeod, Sp. Atty., and Claud N. Sapp, U. S. Atty., both of Columbia, S. C., for petitioner.

D. W. Robinson, Jr., of Columbia, S. C., for defendants.

WYCHE, District Judge.

On October 22, 1941, the United States filed a condemnation proceeding for the purpose of acquiring title to .8677 of an acre of land located in the triangle bounded by Laurel, Assembly and Blanding Streets in the City of Columbia, South Carolina, to erect thereon a recreational center, as provided for in "An Act to expedite the provision of housing in connection with national defense, and for other purposes", Public Law No. 849, 76th Congress, 54 Stat. 1125, 42 U.S.C.A. § 1521 et seq., and in "An Act to provide for the acquisition and equipment of public works made necessary by the defense program", Public Law No. 137-77th Congress, 55 Stat. 361, 42 U.S.C.A. §§ 1521, 1523, 1531 et seq.

At the same time on a Declaration of Taking, signed by the Secretary of War, it asked and obtained an order immediately vesting title in the United States, 40 U.S.C.A. § 258a, and there was deposited into the registry of this Court the sum of ten thousand ($10,000) dollars, being the estimated amount of just compensation for the property, and the right to just compensation was vested in the persons entitled thereto to be ascertained and awarded in this proceeding.

On October 29, 1941, by permission of this Court, Mr. and Mrs. Edwin G. Seibels were allowed to intervene. To their motion to vacate the order vesting title in the United States and to dismiss the condemnation proceeding the United States filed a motion to strike and a return asking that the petition of the intervenors be dismissed and the order permitting them to intervene he reopened and vacated.

Part of the property being condemned is owned by the City of Columbia, and the petitioners allege that the remaining portion is owned by the State of South Carolina. The part owned by the City was conveyed to it on the 11th day of February, 1907, Richland County, Deed Book AQ, page 247, by the late Edwin W. Robertson, at that time the owner and occupant of 1001 Laurel Street, "To have and to hold the above mentioned premises unto the City of Columbia and its successors, in trust nevertheless for the perpetual uses of the public as a public park and for no other purposes." On October 3, 1929, Evelyn P. Robertson and Thomas J. Robertson, devisees under the will of Edwin W. Robertson, conveyed the property at 1001 Laurel Street, a two-acre tract at the northwest corner of Laurel and Assembly Streets, to Rosamond K. Seibels, (Mrs. Edwin G. Seibels). Since that date she, with her husband, Edwin G. Seibels, has resided there. This home, with its gardens, is one of the most beautiful in Columbia. It faces south on the property being condemned.

The remaining portion of the property being condemned, it is alleged, is property belonging to the State of South Carolina, and dedicated for street and highway purposes. Under the Act of 1786 (4th Stat. 751) laying out the capitol city and the surveyor's map made pursuant thereto, Laurel Street was laid out with a width of 100 feet and Assembly Street with a width of 150 feet. The proposed condemnation proceeding, according to a map presented at the hearing by the Government, includes a strip of Laurel Street 57.9 feet in width from Assembly Street across the entire northern end of the triangle, about 335 feet, leaving of Laurel Street between the Seibels property and the property being condemned only a width of 42.1 feet. A substantial portion of Laurel Street as originally laid out is included in this eminent domain proceeding. The eastern line of the property being condemned is 139.6 feet from the property line along the eastern side of Assembly Street. Assuming that this property line is correctly located, intervenors contend that a strip of Assembly Street 10.4 feet in width is included within the condemnation proceeding, and that a portion of Laurel Street as originally laid out is included in this proceeding. While these streets have never been opened to their full width in the sense that a roadbed has been laid over them, no structure has ever been placed on the unopened portion, no one has made any claim adversely to the State and the entire width of each has continued until this proceeding available for actual use as a street. Mere non-user does not deprive the State of its title Chafee v. City of Aiken, 57 S.C. 507, 517, 35 S.E. 800; Grady et al. v. City of Greenville et al, 129 S.C. 89, 99, 100, 123 S.E. 494, 495. The Government contends, however, that there would be no encroachment upon Assembly Street, which is one of the boundary streets of the parcel in question, and that the Government's property line would coincide with the present established property line of Assembly Street, thereby enabling it to be widened to its maximum property line width, should the occasion therefor ever arise, and that, while there would be an encroachment upon Laurel Street, another boundary street, should the intervening petitioners successfully established their contention that Laurel Street is entitled by statute to a width of 100 feet, nevertheless, it is not one of the principal thoroughfares of the City, is not feasibly susceptible, because of its terrain, to being materially widened at a future date, and that it is to remain undisturbed and without change or encroachment to the extent that it is now opened and paved.

The intervenors here are citizens, residents and taxpayers of the City of Columbia, of the State of South Carolina, and of the United States. Mrs. Seibels is Edwin W. Robertson's successor in title to the two-acre plot of land and the house at 1001 Laurel Street immediately north of the property being condemned and separated from it only by the reduced width, about 42 feet, of Laurel Street. It is alleged that Mr. and Mrs. Seibels are affected by the erection and operation of this building differently from any other persons, and that the effect of the erection and maintenance of this recreational center will largely destroy the value of their home. The papers before me show that the United States has not made the State of South Carolina a party to this proceeding, the State has neither intervened nor made objection to the condemnation, and it appears that the City of Columbia is not resisting the condemnation proceeding because, though the intervention petition and rule to show cause was served upon the City on October 29, 1941, it has not appeared in the cause. In fact, it is clear that the City desires that the Government acquire title to this property, and has cooperated to that end. In these circumstances these petitioners are entitled to intervene and to press this motion as persons injured in kind different from others. Miller et al. v. City of Columbia, 138 S. C. 343, 136 S.E. 484; McQuillan, Municipal Corps. (2d Ed.) Vol. V, Section 1730; as citizens and taxpayers, Kirk v. Clark, 191 S.C. 205, 4 S.E.2d 13; Haesloop v. City Council of Charleston, 123 S.C. 272, 115 S.E. 596; Green v. City of Rock Hill, 149 S.C. 234, 147 S.E. 346; Mrs. Seibels is entitled to make this motion as the successor in title to Edwin W. Robertson, McQuillan, Municipal Corps. (2d Ed.) Vol. V, section 1728, and as the owner of property abutting on Laurel Street and on the park, South Bound Railroad v. Burton, 67 S.C. 515, 46 S.E. 340; Miller et al. v. City of Columbia, supra. They are entitled to be heard on the legality of the acts which will result in the alleged destruction of their residence.

But the real question in this controversy is, do the statutes relied upon authorize the United States to condemn lands owned by the State and dedicated to a prior public use.

The pertinent portions of the statutes involved in this controversy are as follows:

The Act of August 1, 1888, 40 U.S.C.A. § 257, is as follows: "In every case in which the Secretary of the Treasury or any other officer of the Government has been or shall be, authorized to procure real estate for the erection of a public building or for other public uses he shall be authorized to acquire the same for the United States by condemnation, under judicial process, whenever in his opinion it is necessary or advantageous to the Government to do so. And the United States district courts of the district wherein such real estate is located, shall have jurisdiction of proceedings for such condemnation, and it shall be the duty of the Attorney General of the United States, upon every application of the Secretary of the Treasury, under this section and section 258 of this title, or such other officer, to cause proceedings to be commenced for condemnation, within thirty days from the receipt of the application at the Department of Justice."

The Act of June 28, 1941, Public Law 137, 77th Congress, Section 201, 55 Stat. 361, 42 U.S.C.A. § 1531, is as follows: "It is hereby declared to be the policy of this title to provide means by which public works may be acquired, maintained, and operated in the areas described in section 202. As used in this title, the term `public work' means any facility necessary for carrying on community life substantially expanded by the national-defense program, but the activities authorized under this title shall be devoted primarily to schools, waterworks, sewers, sewage, garbage and refuse disposal facilities, public sanitary facilities, works for the treatment and purification of water, hospitals and other places for the care of the sick, recreational facilities, and streets and access roads." (Emphasis added.)

The Act of June 28, 1941, Public Law 137, 77th Congress, Section 202, 42 U.S. C.A. § 1532, is as follows: "Whenever the President finds that in any area or locality an acute shortage of public...