United States v. Aho

• Decision Date: 02 August 1943
• Docket Number: No. 1337,1421,1650.,1337
• Citation: 51 F. Supp. 137
• Parties: UNITED STATES v. AHO et al. SAME v. FLOREA et al. SAME v. STARR et al.
• Court: U.S. District Court — District of Oregon

51 F. Supp. 137

UNITED STATES v. AHO et al.

SAME v. FLOREA et al.

SAME v. STARR et al.

Nos. 1337, 1421, 1650.

District Court, D. Oregon.

August 2, 1943.

Bernard H. Ramsey, James Leavy, and Bert C. Boylan, Sp. Assts. to the Atty., all of Portland, Or., for plaintiff.

Russell E. Sewall, Sewall & Sewall, and C. W. Pecore, all of Portland, Or., for defendant Beaver Drainage Dist.

William C. McCulloch, of Portland, Or., for defendant Multnomah County Drainage Dist. No. 1.

John F. Logan, of Portland, Or., for Ivy G. Starr.

JAMES ALGER FEE, District Judge.

These three actions were brought by the United States to appropriate three different parcels of land. The opinion will deal with all, since, in each, similar problems are presented. In each, the United States has filed a "Petition for Condemnation". In each case, an answer has been filed by a Drainage District, which was joined in the petition as a defendant in the proceeding. Each of the answers alleges that the particular parcel sought to be acquired is within the boundaries of the answering district, which seeks to be compensated because it can no longer levy assessments upon this parcel after the acquisition, or seeks a decree permitting the collection of future assessments from the government. In each instance, the United States has filed a motion to strike out the answer.

The questions sought to be raised are extremely important. It is vitally necessary that the technicalities be meticulously observed, in order that the rulings of the court may be clear-cut.

By common consent all parties in such actions for condemnation by the government disregard the fundamental rules of pleading established in Oregon and which must be followed by virtue of the Conformity Act.¹ Under the Code of Civil Procedure of the state of which the governing sections are part, appropriation of lands is effectuated by maintenance of an action² against the "person in the actual possession of the land at the time; or if the property be not in the actual possession of anyone, then against the person acting as the owner thereof³". The action is commenced by filing of a "complaint⁴", and follows the usual course of "action at law", with certain specific exceptions⁵. In the answer, defendant "may set forth any legal defense he may have to the appropriation of such lands or any portion thereof, and may also allege the true value of the lands and the damage resulting from the appropriation thereof⁶". The answer should contain, where the situation warrants, "A statement of any new matter constituting a defense * * * in ordinary and concise language, without repetition⁷". Motions to strike parts of an answer are permitted, where matter which is "irrelevant or redundant" is included⁸, and "sham, frivolous and irrelevant answers and defenses" may be stricken⁹. Plaintiff may demur to new matter, which does not constitute a defense¹⁰.

In order that the litigation follow proper lines, these provisions must be strictly observed. The "complaint", which by syncretism with some alien system of pleading is called a "petition", in none of these cases sets out a description of the "right" or "easement¹¹", if any, which the United States seeks to take from the respective drainage districts. In fact, close search indicates no direct allegation as to the reason for joining the districts in the respective actions.

No one of the answers in the respective actions sets up facts whereby the court can conclude whether the United States is appropriating any lands, rights or easements of the defendant district, nor indicates whether the matters were set up as a "defense" to appropriation or as material showing "damage" as a result of the taking.

Finally, a motion to strike has been filed in the Florea case against the answer "on the ground and for the reason that the allegations of said answer are irrelevant and immaterial and do not raise any material issue in this cause". There is no such motion directed against an answer as a whole known to the Oregon Code of Civil Procedure, nor authorized thereunder.

In the Aho case, a motion to strike the whole amended answer is filed upon the ground that it is "incompetent, irrelevant, sham and frivolous". The answer contains admissions and, therefore, could not be stricken out as a whole.

The situation in the Ivy Starr case is comparable to the Aho case.

The apparent purpose of these motions is to test the legal sufficiency of the new matter set up. But in Oregon in matters governed by the Code of Civil Procedure, the decisions of the Supreme Court of the state must be followed, even though it is considered liberal at present to disregard them. Chief Justice Lord, reversing a lower court for striking portions of an answer as sham and frivolous, irrelevant and immaterial, says: "There can be no doubt that the object of a motion to strike out is not to perform the office of a demurrer. There are many decisions to the effect that an answer may be insufficient in form or substance without being frivolous. To be frivolous it must appear so incontrovertibly from the mere reading or bare statement. If an argument is required to show that the pleading is bad, it is not frivolous". The Victorian, 24 Or. 121, 136, 137, 32 P. 1040, 1044, 41 Am.St.Rep. 838.¹²

A counterclaim, of course, may be stricken from an answer in a condemnation case¹³, as this court has often ruled. The court cannot sustain the motions, therefore, because there are serious questions of law which have been briefed. Therefore, each is overruled.

The next step would probably be to file a demurrer. The court has given serious consideration, however, to the questions which were argued and briefed. In the interests of economy and time, the court will take the responsibility of suggesting method by which such questions may be raised.

The government indicates in the "petition" that the acquisition of fee simple title of the land from the private citizen, who is in possession claiming to be owner, is demanded in the action. The drainage district in each respective case is joined as a defendant on the theory that it has some interest. But it was intimated that there were no assessments due at the time of the taking and that the districts had no title to the land or any part thereof. It is the theory of the United States that the levy of assessment in the future is the exercise of the power of taxation¹⁴. But if this theory is valid, the drainage district is a proper party in no one of the cases. If a property, which is subject of condemnation, was created by the inclusion of the property within the limits of the district, it was extralateral to the fee simple title. Such interests do exist and are subject to condemnation, as is shown by the cases relating to highways, where the fee simple title to the roadbed is in the abutting owners¹⁵.

If lands are removed from an irrigation district, the statute sets out an equitable method of apportioning obligations. 8 Oregon Compiled Laws Annotated § 125-404. Central Pacific Company v. Ager, 144 Or. 527, 25 P.2d 927. It is probable that between private parties, as to lands included in a drainage district, the courts would require some such adjustment. Here a heavier burden is thrown on the district and the included lands. But the service of draining the lands must, of necessity, continue.

It is clear enough that if the drainage districts have a right, a conveyance or lien upon the fee simple title does not affect that right. It is common knowledge that the conveyance of fee simple title to land within a drainage district does not affect the right of assessment. A mortgage given to the State Land Board to secure repayment of funds of the irreducible school fund is inferior to bonds of an irrigation district of a prior issue and sums levied and assessed for the annual service of such bonds and maintenance. State Land Board v. Davidson, 147 Or. 504, 34 P.2d 608. The fact of sovereignty is not permitted to relieve...