United States v. Bauman

• Decision Date: 06 December 1943
• Docket Number: Civil Action No. 1594.
• Parties: UNITED STATES v. BAUMAN et al.
• Court: U.S. District Court — District of Oregon

56 F. Supp. 109

UNITED STATES v. BAUMAN et al.

Civil Action No. 1594.

District Court, D. Oregon.

December 6, 1943.

Bernard H. Ramsey, Sp. Asst. to Atty. Gen., James Leavy, Sp. Atty., Department of Justice, of Spokane, Wash., Stanley R. Darling and Bert C. Boylan, Sp. Attys., Department of justice, both of Portland, Or., and John E. Walker, Sp. Atty., Department of Justice, of Washington, D. C., for plaintiff.

Latourette & Latourette, of Portland, Or., for defendants Bauman.

JAMES ALGER FEE, District Judge.

A complaint in an action for condemnation of "the exclusive right to possession, and use of" lands owned by the individual defendants "for a term of years ending June 30, 1945" "cancellable at the election of the United States" on sixty days notice, either on June 30, 1943, or June 30, 1944, was filed October 27, 1942. "Immediate and exclusive possession" of this real property was granted by this court on the same day, after a statement in open court as to the emergency conditions by a special attorney for the Department of Justice and the possession was taken in accordance therewith.

On April 19, 1943, defendants Bauman filed answer to the complaint setting up that the United States had actually taken possession October 27, 1942, and alleging a value of $14,656 as the just compensation for the interest taken. A reply denies these allegations.

On September 24, 1943, almost a year after the filing of the original complaint and the taking of possession of these lands, the United States filed a motion for leave to file an amended complaint. It is recited therein that on September 17, 1943, by direction of the Acting Secretary of War, a declaration of taking was filed in this court and cause, whereby an estate is claimed in this land described as "a term of years ending June 30, 1944, extendable for yearly periods thereafter during the existing national emergency at the election of the United States, notice of which election shall be filed in the proceeding at least sixty days prior to the end of the term taken, or subsequent extensions thereof" subject to the right to remove improvements and structures within a reasonable time after the expiration thereof.

It is also recited that the United States deposited in the Registry of the Court $1106.63 "as estimated just compensation for a period beginning October 27, 1942, and ending June 30, 1944."

The procedure in condemnation is governed by Oregon law "as near as may be"¹ since expressly excluded by the Federal Rules of Civil Procedure.²

According to this guide, amendment is not of course, after the filing of an answer.³ Furthermore, events occurring subsequent to the filing of an original complaint, must be set up by supplemental complaint rather than mere amendment.⁴ These rules are not mere technicalities, but as the application to the situation demonstrates, reflect reality. The exercise of a sound discretion guides the court in determining whether amendment or supplement should be allowed to a pleading.⁵

In this instance, the United States went into this property after filing an original complaint setting up the exact interest which it was taking in the land.⁶ A court order was granted allowing it to enter under the protection of the court in the exact terms of the complaint. The complaint which instituted the proceedings fixed the rights of the parties. There was no procedure at common law to change the character of the estate created by an entry once accomplished.⁷

Congress has committed the acquisition of lands to courts under the judicial process. Where the declaration of taking method is used, the statute⁸ specifically provides that this document may be filed "in the cause" and must conform to the "petition" or complaint therein or the court would not have jurisdiction to proceed. The court thereupon places the United States in possession upon such terms as the court may fix. Under the Second War Powers Act the government is allowed to go into possession under the court order notwithstanding the fact that the title has not been approved by the Attorney General as required by the Revised Statutes, § 355, as amended, 33 U.S.C.A. § 733, or consent obtained from the particular state.⁹ But it is plain that permission for filing of the declaration of taking is required and that since the filing is in an action, the consequences are subject to judicial control by dismissal of the "petition" or complaint, or by striking the declaration from the files. See 40 U.S.C.A. § 258f. Here, the United States was placed in possession by order of the court. Possession was granted pursuant to the jurisdiction conferred by the act, to take "real property, temporary use thereof, or other interest therein." Title will not of course pass until final judgment. But there can be no release of the United States from the obligations which it assumed when it filed this suit except by court action. Possession has been assumed and it cannot be abandoned except on terms just to the landowner. The rights in this case have been fixed by the petition for condemnation and the judgment of the court^9a permitting the taking of possession. There could be modification of these rights by further order and on proper terms. The responsible authority is the Secretary of War and when that official requests the initiation of condemnation proceedings under the judicial process, the United States is committed to all the consequences and when possession has been once taken under a petition asking for a particular interest, the United States is bound to take and pay for that alone, subject to just orders of the court. It was the intention of Congress that the declaration of taking should correspond with the allegations of the "petition". Unless the formalities prescribed by the enactment are strictly complied with, the title would not pass. The declaration of taking must then be filed in the case and agree with the "petition" before, by judicial action, the title passes.

From the language of these acts it is plain that Congress intended the entire matter should be submitted to the determination of the courts. In dealing with real property as distinguished from personal, Congress has consistently chosen an orderly judicial method of protecting the rights of both parties. In this, the ablest writers have set the guides.

"The better opinion is, that the compensation or offer of it, must precede or be concurrent with the seizure and entry upon private property under the authority of the state. The government is bound, in such cases, to provide some tribunal for the assessment of the compensation or indemnity, before which each party may meet and discuss their claims on equal terms; and if the government proceed without taking these steps, their officers and agents may and ought to be restrained by injunction."¹⁰

Although a court might, if so advised, grant possession of land prior to the deposit of compensation as here, it must be recognized that that would be the exceptional case.¹¹ It was obviously to meet the objection that possession was grudgingly yielded by the courts where no title was to pass or compensation tendered that the statute providing for the filing of a declaration of taking was passed, but that did not mean that this act was not also a part of the judicial process.

It would be a vain thing to require condemnation proceedings to be initiated in a court if, thereafter, a declaration of taking could be filed which related to an entirely different piece of land or an entirely different estate in the same parcel and that title to the parcel or estate passes irrespective of a variance between that and the description in the complaint. Title, therefore, did not pass to the revised estates described in the purported declaration of taking here. The United States, therefore, has a right of possession of this land to June 30, 1945, and may cancel at the end of the period ending June 30, 1943, or June 30, 1944, by giving appropriate notice. Since this proceeding must be based upon a fact which has already taken place as shown by the record of the court, neither by amended complaint nor by supplemental complaint should the government be permitted to attempt to change the character of the proceeding or the nature of its possession. The only matter which remains in this proceeding is to fix the just compensation to be paid by the United States for the property so acquired.

Thus far the question seems purely procedural and depending for solution upon the administrative convenience of the court. However, it seems unjust to the defendants after their property has been taken by entry into immediate and exclusive possession by the United States, to have the interest taken changed arbitrarily and unreasonably without their consent. It seems contemptuous of the court for the Lands Division to proceed to file without leave, a declaration of taking in the court whereby an entirely different interest is sought than is asked when the court put the government in possession.¹² There is an orderly method of procedure which is open to the United States, which protects all the rights and even the convenience of the government. A new suit for condemnation may be filed if the United States has not yet acquired all the interest in this piece of land which is presently necessary. Each suit can then be tried and just compensation set in each respectively.

The clamorous insistence by attorneys of the Department of Justice, Lands Division, that the court adopt the procedure dictated by them and no other, even if another course be indicated by fairness of dealing, by administrative convenience of the court and by the procedural statutes of the State of Oregon which must be the guide, prompts further comment on actions in this and similar cases.

The course of this case has indicated the undesirability of control from Washington D. C. of attorneys dealing with this court.¹³ The local staff of the Lands...