United States v. Certain Lands in the Town of Narragansett, R.I.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
• Citation: 145 F. 654
• Parties: UNITED STATES v. CERTAIN LANDS IN THE TOWN OF NARRAGANSETT, R.I.
• Decision Date: 16 May 1906

145 F. 654

UNITED STATES
v.
CERTAIN LANDS IN THE TOWN OF NARRAGANSETT, R.I.

United States Circuit Court, D. Rhode Island.

May 16, 1906

Charles A. Wilson, U.s. Dist. Atty.

James Tillinghast and Wm. R. Tillinghast, for Margaret D. L. Robinson. [145 F. 655]

BROWN, District Judge.

Appropriation Act March 3, 1905, c. 1482, 33 Stat. 1119, contains the following provision:

'Improving Point Judith harbor of refuge, Rhode Island, one hundred thousand dollars: Provided, that a contract or contracts may be entered into by the Secretary of War for such materials and work, as may be necessary to prosecute said project, to be paid for as appropriations may from time to time be made by law, not to exceed in the aggregate one hundred thousand dollars, exclusive of the amounts herein and heretofore appropriated: Provided further, that the amounts herein appropriated and authorized, with any existing balances on hand to the credit of such improvement, shall be applied in extending the easterly or shore arm of the breakwater and continuing it to the shore with a view of providing a shelter for a landing place for the passengers, crews, and cargoes of vessels in distress and other vessels, and for the lifeboats of the Point Judith life-saving service.'

It is conceded that the extension of the easterly or shore arm of the breakwater, and continuing it to the shore, will necessarily require the taking of a few feet of the shore, of the width of the end of this arm of the breakwater, and incidentally a few feet of the adjacent bank to protect it, and to prevent the sea from making around and undermining the shore end of the breakwater. It is contended, however, that the taking of a tract of land, comprising 1.39 acres, with a shore front of 294 feet, is unauthorized.

The answer of Margaret D. L. Robinson, to which the United States demurs, denies the power to condemn any more land than is needed to connect the shore arm of the breakwater with the shore; and also denies that the whole of the land described in the petition for condemnation (to wit, 1.39 acres), can be required, and that any necessity exists for the United States to acquire the whole of said land. It is conceded that there is a necessity for taking some land, and that the Secretary of War or other authorized official of the government must make a determination of the amount needed; but it is contended that, in the absence of express legislative action defining the amount of property, the power to take is limited to the necessity, and that the necessity of taking particular property is a question for the courts. In substance, the defendant argues that although the Secretary of War has instructed the United States Attorney to proceed for the condemnation of the specific tract of 1.39 acres, in so doing, he has exceeded the authority conferred upon him by statute, for the reason that he seeks to take more land than is necessary.

I am of the opinion that it sufficiently appears from the petition that the Secretary of War has exercised a discretionary power conferred upon him by law, and that his discretion so exercised is not reviewable by this court. Decatur v. Paulding, 14 Pet....