United States v. Certain Parcels of Land

• Decision Date: 05 May 1956
• Docket Number: Civ. No. 2901.
• Citation: 141 F. Supp. 300
• Parties: UNITED STATES of America, Petitioner for Condemnation, v. CERTAIN PARCELS OF LAND IN CITY OF CHEYENNE, LARAMIE COUNTY, State of WYOMING; John C. Arp and Mildred K. Arp; The Children's Hospital Association, a Colorado corporation; The City of Cheyenne, Wyoming and The County of Laramie, Wyoming, and unknown owners, Defendants.
• Court: U.S. District Court — District of Wyoming

141 F. Supp. 300

UNITED STATES of America, Petitioner for Condemnation, v. CERTAIN PARCELS OF LAND IN CITY OF CHEYENNE, LARAMIE COUNTY, State of WYOMING; John C. Arp and Mildred K. Arp; The Children's Hospital Association, a Colorado corporation; The City of Cheyenne, Wyoming and The County of Laramie, Wyoming, and unknown owners, Defendants.

Civ. No. 2901.

United States District Court D. Wyoming.

May 5, 1956.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John F. Raper, Jr., U. S. Atty., for District of Wyoming, Cheyenne, Wyo., for plaintiff.

Norman B. Gray and J. J. Hickey (of Ellery, Gray & Hickey), Charles E. Lane, Cheyenne, Wyo., for John C. Arp and Mildred K. Arp.

CHRISTENSON, District Judge.

This is an action in which the power of the Government to condemn the fee simple title to certain land in which it theretofore had acquired a leasehold interest is questioned. The issues here, raised by various motions, directly concern the pleadings. Their determination largely turns upon an interpretation and appraisal of Section 605(a) of the Housing Act of 1950, 42 U.S.C.A. § 1585(a), which reads:

"(a) The Administrator may continue by lease or condemnation any interest less than a fee simple in lands heretofore acquired by the Administrator for national defense or war housing or for veterans' housing (whether of a permanent or temporary character), or held by any Federal agency in connection therewith, and may acquire, by purchase or condemnation, a fee simple title to or lesser interest in any such lands if the Administrator determines that the acquisition of such fee simple or lesser interest is necessary to protect the Government's investment or to maintain the improvements constructed thereon, or that the cost of fulfilling the Government's obligation to restore the property to its original condition would equal or exceed the cost of acquiring the title thereto."

The Government came into possession of the land involved in this case in October, 1943, when it filed a declaration of the taking of a leasehold interest for housing purposes under the Lanham Act, Act of October 14, 1940, Ch. 862, 54 Stat. 1125, as amended, 42 U.S.C.A. § 1521 et seq. At the time of the original taking, the land was owned by Maude B. Van Tassell (hence references in the record to the "Van Tassel Housing Project"). Title was acquired by the defendants, John C. Arp and Mildred K. Arp thereafter. There are other parties defendant: The Children's Hospital Association because of its record interest in mineral rights, and the City of Cheyenne, because the land has been platted for streets. The Arps are the only defendants who are contesting the present proceeding as far as the record discloses.

The estate of the Government taken in 1943 was described as:

"* * * the exclusive use for a period of one year, with the right to renew from year to year for the duration of the war emergency as determined by the President, and three years thereafter, together with all improvements thereon; with the right in the Government to demolish any and all improvements, if any; and with the right in the Government at the termination of such period to remove any or all improvements placed thereon by said Government." (Supplemental Declaration of Taking.)

A housing project was developed, and ever since maintained, on this land by the Government. Nominal land rental ($2 per year) was agreed upon between the parties and confirmed by the Court. The rights of the United States were renewed from year to year, and the stipulated rental paid and accepted, for the period expiring December 22, 1954. Rental for the period December 22, 1954 to December 22, 1955, was tendered by the Government but was rejected by the Arps. On May 6, 1955, a motion to terminate the condemnation proceedings and a request for appraisal of the lands were filed by the Arps in reliance upon 42 U.S.C.A. §§ 1524, 1592d. The record indicates no ruling on this motion yet. On August 25, 1955, the United States filed a complaint for condemnation and a declaration of taking of the fee of said lands because of the asserted determination by the Acting Public Housing Commissioner that "the acquisition of a fee simple title in and to said lands is necessary to continue in use the housing constructed on said lands in the orderly demobilization of the war effort, to maintain the improvements constructed thereon, and to protect the investment of the United States in said improvements."

An answer to this complaint for condemnation was filed by the Arps. The Government's motion to strike the affirmative defenses set out therein was sustained, with leave to amend, by the Honorable T. Blake Kennedy, United States District Judge for the District of Wyoming, now retired. The motion of the Government to strike the affirmative defenses set out in the Arps' amended answer filed pursuant to such leave, the motion of the said defendants for leave to amend their amended answer by adding a fourth affirmative defense, their motion for leave to file a supplemental answer and their motion, already referred to, to terminate the condemnation proceedings, present the issues of law now to be decided.

The Lanham Act, with its numerous amendments, successive extensions of deadlines, and detailed provisions is rather complex. No comprehensive analysis of it will be attempted here since this may be found in some of the cases which are cited in connection with other points. Nor will I undertake to follow the sequence of amendments as they relate to the various phases of the property's development, or to examine certain other points elaborately treated in the briefs concerning which there now seems little question. Suffice it to say, in getting to the vortex of the dispute, that the Acting Commissioner of the Public Housing Administration who signed the declaration of taking of the fee, then had authority to act for the Housing and Home Finance Administrator to the extent of the powers of the latter on the subject; that the improvements on the land comprise "temporary housing" rather than "permanent housing" within the purview of the Lanham Act; that after the extended date of July 1, 1954, it was the announced policy of Congress with respect to such housing that it should be removed or otherwise disposed of as promptly as practicable and in the public interest, 42 U.S.C.A. §§ 1524, 1541, 1553, 1584, and that this housing (aside from the disputed effect of section 1585(a), supra), was not excepted from such policy. See Shanks Village Residents Association, Inc., v. Cole, 1954, 95 U.S.App. D.C. 60, 219 F.2d 28, certiorari denied 349 U.S. 906, 75 S.Ct. 582, 99 L.Ed. 1242.

In their amended answer, the Arps allege in substance that the action of the Administrator (Acting Commissioner) in taking the fee was not necessary in connection with the demobilization of the war effort; that it was not necessary to maintain the improvements since the Government already has possession by virtue of the leasehold interest and that it could thereunder maintain possession for a substantial period; that the defendants had not indicated any intention to interfere; that the acquisition of the fee was not necessary to protect the investment of the United States in that the United States already had acquired the right to occupy the land for housing during the war emergency and for three years thereafter, with the right at the termination of the war emergency to realize the greatest possible salvage out of the improvements by any appropriate salvage or liquidation proceedings open to it under the provisions of the original condemnation judgment and the law applicable thereto; that it has adequate time to liquidate its investment by sale of the right of occupancy or by continued use for the balance of the three-year period and by the removal of the housing improvements or the scrapping and salvage of the same; that the Government has already realized in net rental far in excess of its investment; that the defendants have offered, and now offer, to pay to the United States the full value of the remaining housing improvements to be arrived at by appraisal in accordance with the suggestion of the answering defendants or by any other method of appraisal that the Court might designate, and that the purported determination that the acquisition of the fee was necessary to protect the investment of the United States was unauthorized, without foundation, arbitrary and in bad faith. Must such allegations of the affirmative defense be stricken on plaintiff's motion as not constituting a defense to the taking of the fee?

A motion to dismiss, or as in this case, a motion to strike alleged defenses, like a demurrer, admits only facts well pleaded, and mere conclusions of law, not warranted by the asserted facts have no efficacy. Barnidge v. United States, 8 Cir., 1939, 101 F.2d 295; Keyes v. United States, 1941, 73 App.D.C. 273, 119 F.2d 444, certiorari denied 314 U.S. 636, 62 S.Ct. 70, 86 L.Ed. 510.

The defendants are correct that the statute relied upon does not authorize the Administrator to take the fee merely because in his judgment this is necessary for the orderly demobilization of the war effort. The statute relied upon does not specify this as among the possible bases of such action by him. Congress, itself, has laid down the rules for the orderly demobilization of the war effort. It is conceded that the cost of fulfilling the Government's obligation to restore the property to its original condition prior to its surrender to the owners would not equal or exceed the cost of acquiring title thereto, so that this possible basis of the Administrator's action must be immediately excluded (except as it may suggest that Congress in adopting the entire subsection was cost conscious). It follows that if the taking of the fee is authorized, it must be because there has been a sustainable determination that "the acquisition of such fee simple * * *...