United States v. CERTAIN LAND, ETC.

• Decision Date: 31 August 1948
• Docket Number: No. 482.,482.
• Citation: 79 F. Supp. 558
• Parties: UNITED STATES v. CERTAIN LAND IN CITY OF CAPE GIRARDEAU, MO., et al.
• Court: U.S. District Court — Eastern District of Missouri

79 F. Supp. 558

UNITED STATES v. CERTAIN LAND IN CITY OF CAPE GIRARDEAU, MO., et al.

No. 482.

District Court, E. D. Missouri, S. E. D.

August 31, 1948.

Drake Watson, U. S. Atty. of New London, Mo., and Charles J. Hughes, Asst. U. S. Atty. of St. Louis, Mo., for plaintiff.

R. P. Smith, of Cape Girardeau, Mo., for defendant City of Cape Girardeau.

I. R. Kelso, of Cape Girardeau, Mo., for defendant Iska W. Carmack.

Strom & Spradling and A. M. Spradling, Jr., all of Cape Girardeau, Mo., for defendants R. S. Lorimier, A. C. Lorimier, and Maude Lorimier Uhl.

HULEN, District Judge.

By direction of the Supreme Court (United States v. Carmack, 329 U.S. 230, 67 S.Ct. 252, 91 L.Ed. 209), plaintiff was granted a preliminary judgment in condemnation of the land described in the petition. Conventional proceedings followed with appointment of commissioners to fix compensation. An award of Thirty-Five Thousand Dollars ($35,000) was made.

The Government alleges in their petition, defendant City of Cape Girardeau is the owner of the fee of the land condemned and entitled to the compensation award. The City of Cape Girardeau asserts a like interest in the land. Defendant Iska W. Carmack "for herself and others similarly situated" claims the heirs of Louis Lorimier, deceased, are entitled to the compensation award and that she is one of the said heirs.

Plaintiff has a motion pending to strike out the exceptions to the Commissioners' report filed by Iska W. Carmack and others as heirs of Louis Lorimier. Defendant Iska W. Carmack has a motion to dismiss the declaration of taking and vacate the judgment entered on the declaration of taking. Defendant Iska W. Carmack filed a separate motion to strike motion to amend the amended petition and vacate order granting leave to amend the amended petition, and to strike and dismiss declaration of taking and to set aside judgment entered on the declaration of taking.

By agreement of the parties all issues presented by the pleadings and the motions were consolidated for hearing (save as to exceptions to Commissioners' report). Who is entitled to the Commissioners' award as between the City of Cape Girardeau and the defendants, Lorimier heirs, is the basic question presented on the record. Our ruling on this issue will dispose of the questions presented by the numerous pleadings.

At the outset we state our opinion on the nature of this proceeding. The parties seem to be in confusion on this subject. Plaintiff is simply condemning the tract of land described in its petition by the time honored process. Under ruling of the Supreme Court that right is no longer open to debate. The defendants, Lorimier heirs and the City of Cape Girardeau would inject controversies between themselves into the case, apparently on the theory this is an equitable action. This proceeding is not governed by the Federal Rules of Civil Procedure (See Rule 81(a) (7)). It is an action at law. See Chappell v. United States, 1896, 160 U.S. 499, 16 S.Ct. 397, 40 L.Ed. 510; Kohl v. United States, 1875, 91 U.S. 367, 23 L. Ed. 449. Our powers in the case are accordingly circumscribed by the character of the action.

The rights of the adverse claimants to the compensation award turns on interpretation of a deed dated September 11, 1820. The heirs of Louis Lorimier are grantors in this deed. The inhabitants of the Town — now City — of Cape Girardeau are the grantees. The Lorimier heirs take the position, the purpose for which the land is being condemned is by solicitation of the City of Cape Girardeau, and such action by the City officers violates the terms of the 1820 deed, works a reverter, and as heirs of Louis Lorimier they are entitled to the compensation. The City's position, affirmed by the Government, is that such compensation is payable to it as owner of the fee, even if held in trust for specific purposes. The deed reads as follows:

"Be it remembered That the undersigned Heirs and legal representatives of Louis Lorimier deceased, namely Louis Lorimier, Daniel F. Steinbeck, Victor Lorimier and Thomas S. Rodney as Guardian of Thomas Jefferson Rodney and Polly Rodney, for and in consideration of the sum of One Dollar the receipt whereof is hereby acknowledged, and for Divers other good considerations and more particularly for the convenience and encouragement of the Inhabitants of the Town of Cape Girardeau and Owners of Lots in or near the same, have given, granted, sold, aliened, quit-claimed and conveyed, and they do hereby give, grant, sell, alien, quit-claim, convey and confirm unto the inhabitants of the Town aforesaid collectively, for their use, benefit and behoof forever, the several Lots of parcels of land hereinafter described, viz, 1°. The place known and designated in the plan of said Town, as the Public Square, bounded on the East by Spanish Street, and on the West by the Street of Independence in Ranges C & D, as originally laid off and Containing four acres. — 2dly. Lot No. Twenty-two in Range C, bounded Westwardly by a Street Sixty feet wide, and on the South by the Street of Independence, including a Spring — 3°. Lot No. Twenty-Two in Range A bounded on the West by Fountain Street and on the South by Williams Street. — 4°. all the vacant space between the river Mississippi and the front of Ranges A, B, G and H, designated on the map by the name of Front Street or, Aquamsi; and generally all the ground appropriated to Streets and alleys throughout the whole Town, as represented in the plan thereof. — 5°. The space on the river above the town, in front of Outlot No. One, containing two acres and a half, more or less.—6°. a hundred feet square in Outlot No. Two and adjoining North Street, so as to afford a convenient access to the Spring used in that part, and to include said Spring.—7°. Six acres of land (as laid off in the Map of Outlots) situated part in Outlot No. Two, and part in Outlot No. Thirty-two, and now used as a Grave Yard; with the condition that the Western half thereof shall be and remain appropriated to the Roman Catholic Church. — 8°. An Outlot Marked (h) containing about three acres and a quarter, bounded Eastwardly by Pacific Street, and Westwardly by John Scripps's purchase of six acres, on the North by Outlot (I) and on the South by Outlot (i), which Lot, including a large Spring, is destined for the establishment of a Public School. — Together with all and Singular the right, title, claim, and interest whatsoever of them the said Louis Lorimier, Daniel F. Steinbeck, Victor Lorimier, and Thomas Jefferson Rodney and Polly Rodney, and their heirs forever unto the several Lots or parcels of land above enumerated and described and all appurtenances belonging to the same.—Provided always that the several tracts or parcels of Land thus granted to the Town of Cape Girardeau and the Citizens Thereof shall remain forever affected and appropriated to the public uses to which they are respectively intended, and that they, nor any part of them, shall never become private property." (Italics added.)

A deed from Louis Lorimier dated July 29, 1807 originated the chain of title proper. We take the deed of 1820 because the land in issue was reconveyed to the heirs of Louis Lorimier in 1814, the seat of the then local government being moved from the "District of Cape Girardeau" it was conceded the purpose for which the land had been conveyed by deed of 1807 has been made impossible of...