United States v. CERTAIN PARCELS OF LAND, ETC.

• Decision Date: 02 August 1951
• Docket Number: Civ. A. No. 11999.
• Citation: 99 F. Supp. 714
• Parties: UNITED STATES v. CERTAIN PARCELS OF LAND IN CITY OF PHILADELPHIA, PA., et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

99 F. Supp. 714

UNITED STATES v. CERTAIN PARCELS OF LAND IN CITY OF PHILADELPHIA, PA., et al.

Civ. A. No. 11999.

United States District Court E. D. Pennsylvania.

August 2, 1951.

Gerald A. Gleeson, U. S. Atty., Philadelphia, Pa., C. James Todaro, Sp. Asst. to the Atty. Gen., for plaintiff.

Harold D. Saylor, Philadelphia, Pa., for defendant.

GANEY, District Judge.

This case involves proceedings in condemnation. The question posed is whether the United States, as of March 1, 1951, is entitled to obtain title to the Merchants' Exchange property through such proceedings.

Section 1 of the Act of June 28, 1948, 62 Stat. 1061, 16 U.S.C.A. § 407m, provides in part as follows: "For the purpose of preserving for the benefit of the American people as a national historical park certain historical structures and properties of outstanding national significance located in Philadelphia, Pennsylvania, and associated with the American Revolution and the founding and growth of the United States, the Secretary of the Interior * * is authorized to acquire by donation or with donated funds, or to acquire by purchase, any property, real or personal, within the following-described areas, such park to be fully established as the `Independence National Historical Park' when, in the opinion of the Secretary, title to sufficient of the lands and interests in lands within such areas, shall be vested in the United States". Then follows a proviso that the park shall not be established until title to certain designated properties, including the Merchants' Exchange property, and two-thirds of the remaining lands contained in the area of the proposed park shall be vested in the United States.

The park will cover roughly the area¹ of the three city blocks located east of the square on which Independence Hall stands, and bounded by Chestnut, Fifth, Walnut and Second Streets, but excluding the United States Custom House at the southeast corner of Second and Chestnut Streets. Housing units and business establishments within this area will be demolished. Buildings of great historical value, such as the Merchants' Exchange², located on the southeast corner of Third and Walnut Streets, will be restored and made an integral part of the park³. At present the Merchants' Exchange building is known as the Merchants' Produce Exchange. It is being used as an office building with produce stores on the ground floor and a cold storage establishment in the basement; the area outside the building fronting Third and Dock Streets is utilized as a gasoline service station. The building, occupied by approximately twenty-six tenants, is in poor condition. Many of the original fixtures, ornaments and furnishings have been removed or destroyed.

At the request of a representative of the Secretary of the Interior proceedings were instituted on March 1, 1951, pursuant to section 1 of the Act of August 1, 1888, 25 Stat. 357, as amended, 40 U.S.C.A. § 257,⁴ to acquire title to twenty-seven parcels of land, including the Merchants' Exchange property, within the area of the proposed park. On the same day a declaration of taking was filed, together with the deposit of the estimated compensation, and judgment and an order of the court was entered thereon. The declaration of taking stated that the properties are required "for immediate use". However the petition in condemnation set forth that the interest sought to be condemned is the full fee simple title to the lands, subject to the following:

"(a) The right of the owners of the Parcel numbered A-4(427-429 Walnut Street), their lessees, successors and assigns, to continue to occupy said parcel for a period of five (5) years from the date of the filing of the Declaration of Taking;

"(b) The right of the owners of other parcels as herein described, their lessees, successors, and assigns to continue to use and occupy said parcels for such periods of time and under such terms and conditions as may hereafter be stipulated between the parties".

On April 4, 1951, an answer to the petition in condemnation was filed by the trustees of the estate to which title to the Merchants' Exchange belonged prior to March 1, 1951. The substance of certain paragraphs, or portions thereof, of the answer, which the Government has moved to strike, is that the United States is not presently entitled to obtain title to the property in question by condemnation proceedings because it will not put the property to a public use until a period of five years or more from the date of taking has elapsed.

It has long been settled that the United States, through its power of eminent domain, has the right to acquire by condemnation sites or buildings of national historical significance for the purpose of preserving them in order to commemorate and illustrate the nation's history. United States v. Gettysburg Electric Railway Company, 1896, 160 U.S. 668, 680-683, 16 S.Ct. 427, 40 L.Ed. 576; Barnidge v. United States, 8 Cir., 1939, 101 F.2d 295, 298-299. Therefore there can be no question at this late date that the government may condemn the property described in the Independence National Historical Park Act in order to "provide a permanent memorial to the principles on which our country is founded."⁵

The trustees of the estate impliedly admit all this. However they claim that the government should not condemn the Merchants' Exchange...