United States v. Certain Lands, Etc., Dare County, NC
| Decision Date | 19 March 1968 |
| Docket Number | Civ. No. 263. |
| Citation | 282 F. Supp. 564 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | UNITED STATES of America, Plaintiff, v. CERTAIN LANDS ON HATTERAS ISLAND, KINNAKEET AND HATTERAS TOWNSHIPS, DARE COUNTY, NORTH CAROLINA, Frank E. Britton, et al., and Unknown Owners, Defendants. |
Robert H. Cowen, U. S. Atty., Raleigh, N. C., by William S. McLean, Asst. U. S. Atty., for plaintiff.
SUMMARY
This is a condemnation proceeding instituted by the United States of America on August 15, 1955 pursuant to 40 U.S. C.A. Sec. 258a. Jurisdiction is vested in this Court by 28 U.S.C.A. Sec. 1358. The land in question was condemned to establish the Cape Hatteras National Seashore Recreational Area. The land is located in Dare County, North Carolina within the boundaries of the Eastern District of North Carolina. 28 U.S. C.A. Sec. 113; 28 U.S.C.A. Sec. 1403.
The late Don Gilliam, United States District Judge for the Eastern District of North Carolina, entered final judgments and orders of distribution on Tracts Nos. 263, 264 and 265 of the land in question on May 8, 1956, December 12, 1955, and May 8, 1956, respectively.
Now before the Court is the motion of the defendant Noah E. Price, filed August 30, 1963, for a rehearing as to Tracts Nos. 263, 264 and 265, in order that the defendant Price might show that he is, in fact, the true and rightful owner of these tracts and is entitled to compensation for their taking.
The plaintiff has opposed the motion. The Court has heard oral argument and counsel have submitted briefs.
On August 17, 1955, the plaintiff filed amended complaint No. 7 to condemn additional tracts of land for the Cape Hatteras National Seashore Park Project. Tracts Nos. 263, 264 and 265, as shown on the map of the Cape Hatteras National Seashore Recreational Area, were three of the additional tracts described therein. These tracts are near Avon on Hatteras Island, Dare County, North Carolina. They adjoin Tract No. 262 in which the defendant Price formerly owned an interest. The Government does not dispute the interest of the defendant Price in Tract No. 262. The claim of the defendant Price includes Tracts Nos. 262, 263, 264 and the northern portion of Tract No. 265. The Government asserts that Tracts Nos. 263, 264 and 265 have been closed out with other claimants who have proved their title and have been fully paid.
Tracts Nos. 262, 263, 264 and 265 are numbered serially from North to South, each succeeding tract being adjacent to the preceding one. The ocean beach runs approximately North and South and each tract runs westward therefrom, between parallel lines, to a depth of approximately 2,500 feet. The plaintiff has condemned, however, only the ocean fronts to a depth of 500 feet. The widths of the tracts are as follows: Tract No. 262—239.5 feet, Tract No. 263—239.5 feet, Tract No. 264—approximately 169 feet, Tract No. 265—290 feet, for a total width of 938 feet (measured along the beach from the north line of Tract No. 262 to the south line of Tract No. 265). Defendant Price's claim extends southward from the North line of Tract No. 262 a distance of 720 feet; thus, the defendant Price contends that he was the former owner of Tracts Nos. 262, 263 and 264 and a strip of land 72 feet in width off the north side of Tract No. 265. Although the defendant Price mentioned Tract No. 260 in his motion, he is not asking for a rehearing as to that tract.
Amended complaint No. 7 named the ostensible owners of the tracts being condemned. Among the former owners or persons who may have claimed an interest in the additional tract, and named as additional defendants therein were Noah E. Price, and wife, if any; James W. McMullan, and wife, if any; Goodrich Williams, and wife, if any; and C. T. Williams, and wife, if any.
Declaration of taking No. 17 was also filed on August 17, 1955. It described the same tracts as those listed in amended complaint No. 7. Estimated just compensation was deposited by the plaintiff in the registry of the Court when the declaration of taking was filed.
Notice of amended complaint No. 7 was also filed on August 17, 1955, addressed to Noah E. Price and wife, if any; Goodrich F. Williams and wife, if any; James W. McMullan and wife, if any; and C. T. Williams and wife, if any, as well as to other additional defendants. Personal service of the notice of amended complaint No. 7 was obtained on Noah E. Price and wife by the United States Marshal on October 10, 1955.
Tract No. 263: This tract was calendared for hearing at the April 2, 1956 regular term of the United States District Court for the Eastern District of North Carolina at Elizabeth City, North Carolina. The defendant Price was notified of this hearing by a letter addressed to the defendant Price, dated March 26, 1956, by Clyde E. Gooch, Esquire, Trial Attorney, United States Department of Justice. The defendant Price appeared at that term of Court. However, he asserted no interest in this tract when the Court, after hearing evidence of title of Goodrich F. Williams and wife, inquired if there were any other parties present who desired to claim any interest in the tract. On May 4, 1956, Judge Gilliam signed an order, filed on May 8, 1956, reciting that Goodrich F. Williams and wife, Jeanie Williams, were the owners of this tract, that all other parties to the action had been served with notice of the hearing and had failed to respond, and directed the Clerk to pay to Goodrich F. Williams and wife, Jeanie Williams, and the Dare County Tax Collector the amount deposited by the plaintiff with the Clerk. By check dated May 9, 1956, the Clerk made payment to the parties named in Judge Gilliam's order.
Tract No. 264: On December 8, 1955, Judge Gilliam ordered a full and complete distribution to James W. Scarborough and James B. McMullan and wife, Bettie H. McMullan of the amount that they had agreed to accept in full payment for the taking of this tract and other tracts not involved in this motion for rehearing. The order recited a Torrens proceeding (N.C.Gen.Stat. Chap. 43) in the Superior Court of Dare County, North Carolina, in which Scarborough and McMullan had perfected their title, and had registered it. On the strength of such title evidence, Judge Gilliam in an order dated December 8, 1955, filed December 12, 1955, directed the Clerk to pay to Scarborough and the McMullans the amount deposited by the plaintiff with the Clerk. By check dated January 5, 1956, the Clerk made payment to the parties named in Judge Gilliam's order. Judge Gilliam signed this order approximately two months after personal service of notice upon the defendant Price and after the defendant Price had failed to file any responsive pleading or to otherwise appear in the action within twenty (20) days as required by the notice served upon him and by the provisions of the Federal Rules of Civil Procedure. It appears that the defendant Price does not claim all of the land comprising this tract.
Tract No. 265: This tract was calendared for hearing at the April 2, 1956 Regular Term of the United States District Court for the Eastern District of North Carolina at Elizabeth City, North Carolina. The defendant Price was notified of this hearing by a letter addressed to him dated March 26, 1956, by Clyde E. Gooch, Esquire, Trial Attorney, United States Department of Justice. The defendant Price appeared at that term. However, he asserted no interest in this tract when the Court, after hearing evidence of the title of C. T. Williams and wife, inquired if there were any other parties present who desired to claim any interest in said tract. On May 4, 1956, Judge Gilliam entered an order, filed May 8, 1956, reciting that C. L. Williams and wife, Iantha Williams, were the owners of this tract, that all other parties to the action had been served with notice of the hearing and had failed to respond, and directed the Clerk to pay to C. L. Williams and wife, Iantha Williams, the amount deposited by the plaintiff with the Clerk. By check dated May 9, 1956, the Clerk made payment to the parties named in Judge Gilliam's order.
Although the defendant Price made no formal appearance in this action until after the entry of judgments as to the three tracts in question, he did correspond with various persons and governmental agencies concerning the tracts of land in which he claimed an interest, and it was known to them that the defendant Price claimed an interest in Tract No. 262 prior to any distribution of awards for Tracts Nos. 263, 264 and 265. However, at the time judgments were entered as to Tracts Nos. 263, 264 and 265 the plaintiff was not aware of, nor had any notice of, the defendant Price's claim of any interest in Tracts Nos. 263, 264 and 265. It was not until after final judgments had been entered as to those tracts and after the defendant Price's letter dated June 12, 1956, addressed to Clyde Gooch, Esquire, United States Department of Justice, Salisbury, North Carolina, had been received that the plaintiff became aware of the defendant Price's claim of a tract of land which had 720 feet of ocean frontage and which tract lapped over into Tracts Nos. 263, 264 and 265.
During a Special Term of the United States District Court for the Eastern District of North Carolina which commenced on July 30, 1956, at Bodie Island, Dare County, North Carolina, Tract No. 262 was calendared for hearing. At that time the defendant Price explained to Judge Gilliam that his claim exceeded the area designated as Tract No. 262 by the plaintiff. Upon being advised by Judge Gilliam to retain counsel, the defendant Price employed Wallace McCown, Esquire, of the Dare County Bar. Mr. McCown appeared before Judge Gilliam at that term and explained the claims of his client. No action was taken by the Court at that time.
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