United States v. Cobb

• Decision Date: 19 February 1964
• Docket Number: 18965.,No. 18836,18836
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

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

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 such provision. If such power exists it must be implied.

We agree with the Fifth Circuit decision just cited, particularly in view of the fact that there is no contrary authority, and despite a few dicta or references to the possibility of vacating a declaration of taking on the ground of lack of good faith.²

In the first place, the administrative officials have been delegated the authority to make the declaration of taking and to make the estimate. In this case, the estimate was made by the Assistant Secretary of Agriculture. There is nothing in the statute which suggests that the district court has any right to review the action of the Assistant Secretary. In its opinion the court conceded that an inquiry into the sufficiency of a deposit is not permissible.³ A reading of the opinion as a whole makes it plain that the conclusion as to bad faith was based in part upon the Judge's belief that the sum of $1.00 was inadequate.

The main objection to permitting the Judge to go into the question of good faith is that he thereby could do what he clearly is not authorized to do, namely, pass upon the appropriate amount of deposit. If, for instance, $50,000 were deposited and the Judge were of the opinion that fair compensation would be $500,000, he could, under...