United States v. CERTAIN REAL ESTATE, ETC.

• Decision Date: 10 December 1954
• Docket Number: No. 12081.,12081.
• Citation: 217 F.2d 920
• Parties: UNITED STATES of America, Appellant, v. CERTAIN REAL ESTATE LYING ON THE SOUTH SIDE OF BROAD STREET Between Eighth Avenue, South, and Ninth Avenue, South, and Certain Property Situate on the Eastern Side of Ninth Avenue, South, Between Broadway and McGavock Streets, in the CITY OF NASHVILLE, TENNESSEE: and D. A. Puckette, et al., Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

217 F.2d 920 (1954)

UNITED STATES of America, Appellant, v. CERTAIN REAL ESTATE LYING ON THE SOUTH SIDE OF BROAD STREET Between Eighth Avenue, South, and Ninth Avenue, South, and Certain Property Situate on the Eastern Side of Ninth Avenue, South, Between Broadway and McGavock Streets, in the CITY OF NASHVILLE, TENNESSEE: and D. A. Puckette, et al., Appellees.

No. 12081.

United States Court of Appeals Sixth Circuit.

December 10, 1954.

Edmund Clark, Washington, D. C., Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, Washington, D. C., Fred Elledge, Jr., Nashville, Tenn., on brief, for appellant.

Tom Stewart, W. B. Pendleton, Nashville, Tenn., W. B. Pendleton, Lewis S. Pope, Nashville, Tenn., on brief, for appellees.

Before MARTIN, McALLISTER and MILLER, Circuit Judges.

MARTIN, Circuit Judge.

The United States, through the District Attorney for Middle Tennessee and upon request of the Administrator of the Federal Works Agency, filed on January 2, 1947, a petition for the condemnation of certain downtown real estate in Nashville, Tennessee, "for use as a Federal Office Building." Included in the lands sought to be condemned was Tract 14, owned by the appellees, D. A. Puckette, et al. The petition was filed, so it stated, pursuant to the authority of the Act of August 1, 1888, 25 Stat. 357, U.S.C.A., Title 40, § 257; the Public Buildings Act of May 25, 1926, 44 Stat. 630, as amended, Title 40, § 341, U.S.C.A., and several other specified Acts, including the First Deficiency Appropriation Act of 1946, approved December 28, 1945, 59 Stat. 638.

The Federal Works Administrator on March 4, 1948, filed a declaration of taking and deposited simultaneously in the registry of the United States District Court $60,000 as the estimated amount of just compensation for the land owned by appellees, with the improvements thereon which consisted of a three-story brick building in use as a hotel. The Government took possession of this property on May 8, 1948, and, since that date, has remained in continuous possession. The hotel building has been remodeled by the Government and is now being used for office and storage purposes by several Federal agencies.

The modern Federal Office Building has been constructed and is now in constant use. This office building does not physically cover any part of Tract 14, which was owned by appellees.

A trial by jury was had to determine the amount of just compensation to be awarded appellees for their property taken; and a verdict was returned, but the District Judge set aside the verdict and granted a new trial. The appellees then filed an amended answer asserting that their property had not been taken lawfully, in that no part of the Federal Office Building is located thereon; and that private property may not be taken for public use by condemnation except for immediate use. They prayed that the declaration of taking and the writ of possession be set aside; that the title to Tract 14 be divested out of the United States and vested in them; that the Government be required to place their property in the same condition as when taken; and that a reasonable rental therefor be awarded against the Government.

The United States District Court entered judgment declaring the condemnation of the Puckette property to have been unlawful, null and void; ordered the same to be set aside; divested title to Tract 14 out of the United States Government and vested the title thereto in appellees.

The District Court decreed further that the Government, having had exclusive and continued possession of the Puckette building and premises since May 8, 1948, should be required to pay appellees a reasonable rental therefor and to pay them for any damage done as a result of alterations made by the Government. A reference to a Special Master was ordered to determine such reasonable rental and damage. The decree provided further that the $60,000 paid by the Government into the registry of the court as the appraised value of the Puckette property might be offset against the amount found by the Special Master as due appellees for reasonable rental and resultant damage during the period of occupancy by the Government. An appeal from this judgment was duly prosecuted by the United States to this court.

The United States District Judge delivered an oral opinion and filed required findings of fact and conclusions of law. Among his salient findings, the Judge asserted that, notwithstanding prior knowledge that no part of the new Federal Office Building would cover any part of the Puckette tract, the Government had "proceeded to condemn such tract under color of authority of the aforementioned Appropriation Act and related procedural Statutes"; that issue had been joined and a trial had ensued to fix the value of the property so taken. The Judge stated that the jury had awarded appellees $100,000 as just compensation for the land taken, but that the verdict had been set aside and appellees had been granted a new trial.

The United States District Court found further that at no time since plans for the new Federal Office Building were adopted had any Government agencies concerned entertained any definite plan for use of the Puckette tract by the Government. The Court found that a plan once considered by the Administrator that this tract be cleared and used as parking space in connection with the new building had been abandoned and a plan had been adopted and put into effect whereby the old building on the Puckette tract was used as additional office space. To this end, the old building had been remodeled and has been used by the Government for office and storage purposes.

It was found further that no evidence adduced gave "any hint whatsoever that such use of the old building will not continue indefinitely." There was said to be a clear implication from certain testimony that the existing use of the old building is convenient to the Government and will be continued for an indeterminate time, unless prevented by the court.

As to the physical setup, the Court made additional findings that a small strip, some five feet wide on the north side of the Puckette building, adjoins a vacant lot and is being used as a private parking lot by Government employees and is not open for use by the public or by persons having business to be transacted in the new building. Along this line it was found, moreover, that the Puckette tract is separated from the land on which the new office building has been erected by a public alley, or roadway; and that the Puckette tract and the lot on which the new office building stands are separated and not contiguous parcels of land. There is a finding, also, that there is a large lot between the Puckette tract and the public alley.

The Court stated the conclusions that the taking by the Government of the property involved was unnecessary, inasmuch as it was not needed and was not used in the construction of the new Federal Office Building for which provision was made in the Appropriation Act. The Court concluded that the taking was illegal, in that the appropriation by Congress was made for the purpose of acquiring a site for the construction of a new Federal Office Building, and not for the purpose of condemning and taking an existing building and remodeling it for use as a Government office building and storehouse in addition to the new building authorized by the Act.

Another conclusion of the District Court was that the use of part of the Puckette tract as a private parking lot for Government employees is not a public use; that it was not authorized by law; and that therefore the condemnation of the tract for such purpose is void.

The District Court stated further the following conclusions:

"It appearing from all the facts in the case that the taking of the property was not only unnecessary, but was not in accord with the provisions of the appropriation act authorizing the acquisition of a site for a new Federal Office Building, the owner thereof is entitled to have the property returned to him and the title thereto divested out of the Government and vested in him.

"The defendant landowner is entitled to damages for the wrongful taking of said property, including a reasonable rental for the time the plaintiff has had possession of same, and a reference will be had to a special master to determine the reasonable rental value of said property and any other damages that the defendant landowner might be entitled to.

"The sum of $60,000.00, heretofore paid into Court by the Government as the appraised value of the property at the time of filing the Declaration of Taking may be offset against such sum as is found by the special master to be due the Defendants as the reasonable rental value of said property and for damages done thereto, during the period of Government occupancy and possession."

Finally, it was held that the landowners were not guilty of any acts constituting an estoppel.

It would seem from the oral opinion of the Judge that he considered authority of the Administrator of Public Works to condemn to be limited strictly to the authority contained in the Appropriation Act and that the Administrator could not pursue condemnation proceedings under the Act of May 25, 1926, and its subsequent amendments, these being in his opinion merely procedural Acts. Appellant takes the position that the condemnation authority granted to provide for Federal buildings is not limited by the Act appropriating money for the construction of a particular Federal office building; and that in the instant case the condemnation of Tract 14 (the Puckette property) was authorized by the Act of May 25, 1926, as amended. U.S.C.A., Title 40, section 341. This section provides: "To enable the Administrator of General Services to provide suitable accommodations in the District of Columbia for the executive departments, and independent establishments of the Government not under any executive department, and...