United States v. CERTAIN PARCELS OF LAND, ETC.

• Decision Date: 05 August 1959
• Docket Number: Civ. A. No. 3704.
• Citation: 175 F. Supp. 418
• Parties: UNITED STATES of America v. CERTAIN PARCELS OF LAND IN KNOX COUNTY, TENNESSEE, Highland Memorial Cemetery, Inc., et al.
• Court: U.S. District Court — Eastern District of Tennessee

175 F. Supp. 418

UNITED STATES of America v. CERTAIN PARCELS OF LAND IN KNOX COUNTY, TENNESSEE, Highland Memorial Cemetery, Inc., et al.

Civ. A. No. 3704.

United States District Court E. D. Tennessee, N. D.

August 5, 1959.

John C. Crawford, Jr., U. S. Atty., Knoxville, Tenn., for plaintiff.

Clyde W. Key, Knoxville, Tenn., for defendants.

ROBERT L. TAYLOR, District Judge.

This matter was recently argued and the Court, after indicating to counsel its views, took the matter under consideration and at the same time advised counsel that a memorandum would be filed stating in more detail and with finality the conclusions reached. This memorandum is filed pursuant to that understanding.

Under the authority of 40 U.S.C.A. §§ 257 and 258a to 258e and the Federal-Aid Highway Act of 1956, 70 Stat. 374, 23 U.S.C.A. § 101 et seq., the United States of America has filed this action to take, under power of eminent domain, certain parcels of land in Knox County, Tennessee, belonging to the Highland Memorial Cemetery Corporation to be used for the construction of a portion of the National System of Interstate and Defense Highways. This Court entered judgment on Declaration of Taking on October 9, 1958.

On November 5, 1958, the defendant filed an answer denying the right of the United States to acquire lands through the exercise of the power of eminent domain for the reason that it was authorized and contemplated in the Highway Act of 1956 that the lands taken would immediately be conveyed to the State in which same were situated or to some political subdivision thereof. It alleges that the lands in suit are used for the burial of the dead and that the taking of lands by the United States for the purpose of conveying them to a political subdivision of the State of Tennessee is not for a public use.

Subsequently, and pursuant to motion by the Government, the Court on March 25, 1959 entered an order for delivery of possession. Upon motion of Highland Memorial Cemetery, this order was vacated on April 2, 1959, pending determination by the Court of plaintiff's right to acquire said lands. In the order the plaintiff was given the right to renew at any time its application for an order of possession.

The lands sought to be taken are not presently used for burial purposes but it is the owner's intention to use them in the future for such purposes.

Defendant concedes in its brief that the power of eminent domain in the Federal Government exists as an attribute of sovereignty; and concedes further that the last clause of the Fifth Amendment of the Constitution, to-wit, "nor shall private property be taken for public use, without just compensation" is an implied recognition of that power. But it argues that under that section of the Fifth Amendment, the taking for right-of-way use of land dedicated to cemetery purposes is not a "public use" for which the Federal Government may constitutionally use its power of eminent domain.

Defendant argues that the State of Tennessee does not have the power to acquire through condemnation lands previously dedicated to cemetery use and to divert said lands to the construction of public highways. In support it cites the well known case of Memphis State Line Railroad Company v. Forest Hill Cemetery Company, 116 Tenn. 400, 94 S.W. 69. It quotes at length from the concurring opinion of Justices Wilkes and Shields, but as we read the majority opinion the case does not hold that a cemetery is inviolate. What the case does say is that in view of special statutes policing cemeteries against unseemly intrusion, the general statute on eminent domain without more is ineffectual for the taking of a railway right of way through a portion of property dedicated to cemetery use. We quote the following from the majority opinion at page 419 of 116 Tenn., at page 73 of 94 S.W.:

"* * * True it is the dead must give place to the living. In process of time their sepulchers are made the seats of cities, and are traversed by streets, and daily trodden by the feet of man. This is inevitable in the course of ages. But while these places are yet within the memory and under the active care of the living, while they are still devoted to pious uses, they are sacred, and we cannot suppose that the legislature intended that they should be violated, in the absence of special provisions upon the subject, authorizing such invasion, and indicating a method for the disinterment, removal, and reinterment of the bodies buried, and directing how the expense thereof shall be borne." (Emphasis added).

Defendant cites a number of other cases which stand for the general principle that property devoted to a public use, selected and set apart by proper legislative authority, cannot be taken for another and inconsistent public use in the absence of legislation expressly or impliedly unwarranting it. In Southern Ry. Co. v. City of Memphis, 126 Tenn. 267, 148 S.W. 662, 41 L.R.A.,N.S., 828, a condemnation by the City of Memphis for city park purposes of land used by the Southern Railway Company as switchyards was approved by the Court because the legislation so contemplated.

It is our understanding that these cases hold that, if the legislation specifically contemplates, land dedicated to one public use may be condemned for an inconsistent public use. And defendant's position that the State of Tennessee has no power to condemn lands previously dedicated to cemetery purposes is weakened rather than strengthened by these and other cases it has cited. Perhaps the authority does not exist under the general statute on condemnation, but the Forest Hill and other cases indicate the Legislature has the power to pass special legislation authorizing such condemnation.

Defendant then argues that the Federal Government may not constitutionally do what the State lacks the power to do, by using its own power of condemnation to condemn the cemetery and then conveying the lands thus acquired to the State. Counsel for the defendant cites no authority for this proposition; and it is, as indicated, based upon the unjustified assumption that the State lacks the power to condemn cemetery property for another public use. Lack of power to condemn and lack of authority to condemn under existing statutes are entirely different matters. Under the authority of the Forest Hill case it appears that the State has the basic power to condemn land dedicated to cemetery use, even though that power be not at this time implemented by specific legislation.

But if we are mistaken in this view, it is to be noted that the condemnation in this case was initiated by the Federal Government, rather than by the State of Tennessee, to procure lands for a section of the National System of Interstate and Defense Highways, certain provisions for which appear as Sec. 108 et seq., of the Federal-Aid Highway Act of 1956, (70 Stat. 378). In sub-section (a) of Sec. 108, it was

"* * * declared to be essential to the national interest to provide for the early completion of the `National System of Interstate Highways,' as authorized and designated in accordance with section 7 of the Federal-Aid Highway Act of 1944 (58 Stat. 838). It is the intent of the Congress that the Interstate System be completed as nearly as practicable over a thirteen-year period and that the entire System in all the States be brought to simultaneous completion. Because of its primary importance to the national defense, the name of such system is hereby changed to the `National System of Interstate and Defense Highways!" (Emphasis added).

This section was amended by the 1958 Acts, 23 U.S.C.A. § 101(b) to read:

"It is hereby declared to be in the national interest to accelerate the construction of the Federal-aid highway systems, including the National System of Interstate and Defense Highways, since many of such highways, or portions thereof, are in fact inadequate to meet the needs of local and interstate

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