United States v. Cobb, No. 18836

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtPOPE, JERTBERG and BROWNING, Circuit
Citation328 F.2d 115
PartiesUNITED STATES of America, Appellant, v. William Lucian COBB, etc., and 40.52 Acres of Land in Siskiyou County, State of California, Appellees. UNITED STATES of America, Appellant, v. Hon. Sherrill HALBERT, Respondent.
Decision Date19 February 1964
Docket Number18965.,No. 18836

328 F.2d 115 (1964)

UNITED STATES of America, Appellant,
v.
William Lucian COBB, etc., and 40.52 Acres of Land in Siskiyou County, State of California, Appellees.

UNITED STATES of America, Appellant,
v.
Hon. Sherrill HALBERT, Respondent.

Nos. 18836, 18965.

United States Court of Appeals Ninth Circuit.

February 19, 1964.


Ramsey Clark, Asst. Atty. Gen., Roger P. Marquis and A. Donald Mileur, Attys., Dept. of Justice, Washington, D. C., Cecil F. Poole, U. S. Atty., J. Harold Weise, and Charles R. Renda, Asst. U. S. Attys., San Francisco, Cal., for appellant.

Hurley & Bigler, Yreka, Cal., Morley, Thomas & Orona, Lebanon, Or., and Weatherford, Thompson & Horton and

328 F.2d 116
Orval Thompson, Albany, Or., for appellees

Before POPE, JERTBERG and BROWNING, Circuit Judges.

POPE, Circuit Judge.

In this case the Government sought to condemn a right of way through the Rogue River National Forest over some unpatented mining claims for access to certain timber stands. In connection with the condemnation it filed a declaration of taking and deposited the sum of $1.00 as the estimated amount of damages or value involved, pursuant to the Act of February 26, 1931, 46 Stat. 1421, 40 U.S.C. § 258a-e. The Government's effort was to condemn a right of way for a road which would be destructible, that is to say, which appellees could cut through or destroy in the process of mining their claims.

By certain maneuvers, not here material, appellees sought an order of the district court dismissing the declaration of taking on the ground that the estimate of just compensation was not made in good faith. The right of the trial judge to dismiss or vacate the declaration of taking, or to make inquiry as to whether the estimate of just compensation was made in bad faith, was challenged by the Government. The court, however, proceeded to make a finding of bad faith, denied the Government's motion for an order of immediate possession, and ordered the declaration of taking set aside and vacated "without prejudice to plaintiff, if it so desires, to file an amended declaration of taking."

This court has held in United States v. Carey, 9 Cir., 143 F.2d 445, 450, and in United States v. Hayes, 9 Cir., 172 F.2d 677, 679, that when a declaration of taking is filed and deposit is made, title vests in the United States and the district court is powerless to dismiss the proceedings. In accord is United States v. 2,974.49 Acres, 4 Cir., 308 F.2d 641. There was no mention in those cases of a possible question of bad faith. Nor is there any holding that it is within the power of the district court, on the basis of a finding of lack of good faith, to set aside or vacate a declaration of taking. In re United States, 5th Cir., 257 F.2d 844, holds that there is no such power.1 The statute contains no...

To continue reading

Request your trial
14 practice notes
  • Calf Island Comm. Trust v. Young Mens Christian, No. Civ. 302CV462AHN.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 26, 2005
    ...3114 is limited to consideration of the legal authority for the taking. See 162.20 Acres of Land, 639 F.2d at 304; United States v. Cobb, 328 F.2d 115, 116 (9th This is also the case with regard to the defendants' challenges based on the government's alleged failure to obtain congressional ......
  • U.S. v. 101.80 Acres of Land, More or Less, in Idaho County, Idaho, Nos. 82-3044
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 23, 1983
    ...law to make an initial deposit that is the government's best estimate of the actual value of the taken estate, see United States v. Cobb, 328 F.2d 115, 117 (9th Cir.1964), the government's desire to receive a fair valuation at trial does not preclude an initial deposit in the amount of the ......
  • Likins-Foster Honolulu Corp. v. CIR, No. 10060-10061.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 16, 1969
    ...of the initial deposits in the Texas condemnations did not delay the vesting of title in the United States. United States v. Cobb, 9 Cir., 328 F.2d 115. The date title vested in the United States is also the date the "sale or exchange" necessary for capital gains treatment occurred. Kieselb......
  • Edwards v. Arkansas Power & Light Co., No. 81-1865
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 18, 1982
    ...the courts have no jurisdiction to review the amount of estimated compensation. Ibid. (emphasis ours). Accord, United States v. Cobb, 328 F.2d 115 (9th Cir. I am inclined to agree with this approach. If the final award includes interest at the market rate from the date of taking, I cannot s......
  • Request a trial to view additional results
14 cases
  • Calf Island Comm. Trust v. Young Mens Christian, No. Civ. 302CV462AHN.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 26, 2005
    ...3114 is limited to consideration of the legal authority for the taking. See 162.20 Acres of Land, 639 F.2d at 304; United States v. Cobb, 328 F.2d 115, 116 (9th This is also the case with regard to the defendants' challenges based on the government's alleged failure to obtain congressional ......
  • U.S. v. 101.80 Acres of Land, More or Less, in Idaho County, Idaho, Nos. 82-3044
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 23, 1983
    ...law to make an initial deposit that is the government's best estimate of the actual value of the taken estate, see United States v. Cobb, 328 F.2d 115, 117 (9th Cir.1964), the government's desire to receive a fair valuation at trial does not preclude an initial deposit in the amount of the ......
  • Likins-Foster Honolulu Corp. v. CIR, No. 10060-10061.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 16, 1969
    ...of the initial deposits in the Texas condemnations did not delay the vesting of title in the United States. United States v. Cobb, 9 Cir., 328 F.2d 115. The date title vested in the United States is also the date the "sale or exchange" necessary for capital gains treatment occurred. Kieselb......
  • Edwards v. Arkansas Power & Light Co., No. 81-1865
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 18, 1982
    ...the courts have no jurisdiction to review the amount of estimated compensation. Ibid. (emphasis ours). Accord, United States v. Cobb, 328 F.2d 115 (9th Cir. I am inclined to agree with this approach. If the final award includes interest at the market rate from the date of taking, I cannot s......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT