United States v. Certain Parcels of Land

• Decision Date: 15 May 1942
• Docket Number: No. 118-SD Civil.,118-SD Civil.
• Citation: 44 F. Supp. 936
• Parties: UNITED STATES v. CERTAIN PARCELS OF LAND IN CITY OF SAN DIEGO, SAN DIEGO COUNTY, et al.
• Court: U.S. District Court — Southern District of California

44 F. Supp. 936

UNITED STATES v. CERTAIN PARCELS OF LAND IN CITY OF SAN DIEGO, SAN DIEGO COUNTY, et al.

No. 118-SD Civil.

District Court, S. D. California, S. D.

May 15, 1942.

Wm. Fleet Palmer, U. S. Atty., by Chas. H. Scharnikow, both of Los Angeles, Cal., and George A. Lazar, Jr., of San Diego, Cal., for the United States.

Jacob Weinberger, City Atty., by James J. Breckenridge, Deputy City Atty., both of San Diego, Cal., for codefendants City of San Diego.

Edward L. Bracklow, of San Diego, Cal., for certain defendants.

Thomas Whelan, Dist. Atty., of San Diego, Cal., for San Diego County.

NETERER, District Judge.

Pursuant to declaration of taking, for the use of the United States under authority of law for the purpose of a site for housing for persons engaged in National Defense activities and their families, in the vicinity of San Diego, California, this proceeding was instituted, on the 15th day of August, 1941.

A trial by jury was, by stipulation in writing waived by the owners of the several parcels, and by the United States, and the consent of the Judge.

At the opening of the trial it was stipulated that the prorating, if any, of the taxes against the said several parcels on trial, between the owners of the 44 parcels in issue and the United States for the year 1941, should be determined by the court after the trial and value fixed. The findings of the court as to value having been rendered, the issue as to the prorating of the taxes assessed for the year 1941 is presented. The plaintiff contends that taxes for the year 1941, against said several parcels, should be withheld and deducted from the award. The owners of the several parcels respectively contend that the tax for the year 1941 should be prorated, and that only that part of the taxes which accrued against the several parcels while the title vested in the owner, from July 1st, the beginning of the fiscal year, to the 15th day of August, 1941, when the title was divested from the owners, vested in the plaintiff.

The basis of the owners' contention to prorate the current taxes is 40 U.S.C.A. § 258a, which reads: "The court shall have power to make such orders in respect of encumbrances, liens, rents, taxes, assessments, insurance, and other charges, if any, as shall be just and equitable."

The owners in support of their contention cite: United States v. Certain Land, etc., D.C.Mo.1939, 29 F.Supp. 92, and United States v. Certain Parcels of Land, etc., D.C.Md.1941, 40 F.Supp. 436.

The determination of this issue involves a consideration of the California Law relative to taxation and the construction and application thereof by the California courts.

The funds on deposit in the Registery of the court stand in place of the respective parcels of land condemned, and are subject to all liens which have attached to the several parcels at the time of the entry of the decree of condemnation. The lien status is not changed by the taking of the land by the inherent right in society, and superior to all property rights, subject only to just compensation (5th Amendment to the Constitution) for public need and use by the declaration of taking, and the decree of condemnation. This in effect was a compulsory sale by the owners of the properties to the plaintiff. 29 C.J.S., Eminent Domain, Sec. 1, page 779. See also Buckhout v. New York, 176 N.Y. 363, 68 N.E. 659-661; Jackson v. State, 213 N.Y. 34, 35, 106 N.E. 758, L.R. A.1915D, 492, Ann.Cas.1916C, 779; Bethany Pres. Church v. City of Seattle, 154 Wash. 529, 282 P. 922, 924. It is distinguished from a judicial sale, after notice, to the highest bidder.

There are matters which require consideration by the court to determine just and equitable claims for compensation out of the award, hence the quoted portion of Sec. 258a, supra. The tax lien status however, must be determined by the law of the state, and, if established, must be followed by the United States Court. In United States v. Certain Parcels of Land, etc., 29 F.Supp. 92, at page, 94 supra, the court said: "Section 9747, R.S.Mo.1929, Mo.St.Ann. § 9747, p. 7868, Mo.R.S.A. § 10941 imposes upon all real property a lien in favor of the state for all taxes thereon, that lien to continue in force until all taxes, forfeitures, back taxes and costs have been fully paid or the land sold or released but it does not fix the time when the lien shall attach." (Italics supplied) On page 95 of 29 F. Supp. the court quotes from a decision of the Supreme Court of Missouri as follows: "The lien of the state for taxes is established by an assessment of all land for that purpose. * * * However, said lien does not accrue and become a fixed encumbrance until the amount of the tax is determined by an annual assessment of the land and annual levy of the tax. * * * landowner cannot pay the annual tax until after it has been determined, ordered and levied and certified to the collector. * * * It follows that at the time appellant purchased the land, the owner held title free of, but subject to, the lien of future installments of the estimated total tax. * * *" And then says: "The language quoted demonstrates that the...