United States v. Crary, 895.

• Decision Date: 11 May 1932
• Docket Number: No. 895.,895.
• Citation: 1 F. Supp. 406
• Court: U.S. District Court — Western District of Virginia
• Parties: UNITED STATES v. CRARY et al.

1 F. Supp. 406

UNITED STATES v. CRARY et al.

No. 895.

District Court, W. D. Virginia.

May 11, 1932.

COPYRIGHT MATERIAL OMITTED

R. O. Crockett, Sp. Asst. Atty. Gen., for the United States.

John T. Harris, of Harrisonburg, Va., and Edwin B. Jones, of Monterey, Va., for United States Lumber Co.

Edw. C. Martz, of Harrisonburg, Va., for Crary's Heirs.

McDOWELL, District Judge.

I. The Pleadings.

This is a condemnation proceeding instituted in this court by the United States to acquire three tracts of land lying in this judicial district. The petition to condemn asserts that the petitioner is authorized by the act of Congress of March 1, 1911, c. 186, 36 Stat. 961, to acquire the lands sought for the protection of the watersheds of navigable streams; and alleges the performance of the various acts made necessary by that statute, which is generally known as the Weeks Act.

Two of the tracts of land are stated to lie in Highland county, and one of them partly in Highland and partly in Augusta county, in this state.

Next follows a reference to the act of August 1, 1888, 25 Stat. 357 (40 USCA §§ 257, 258); an allegation that it is necessary and advantageous to the petitioner to acquire the lands above referred to by condemnation, and (pp. 2, 3) that this proceeding has been instituted by the Attorney General.

The petition (p. 3) then asserts the reasons for an ineffectual effort to acquire the land by purchase.

It is also alleged that plats and descriptions of the three tracts are filed with the petition, and "that there is also filed in the clerk's office of this court, marked Exhibit B — 1, a memorandum showing the names and residences of the owners of said lands and showing the quantity of land which is sought to be condemned; that the said plats and descriptions and memorandum, marked as aforesaid, are made parts of the petition; that the interests or estates intended to be taken in the said lands are titles in fee simple; * * * that the lands sought to be condemned are wanted for the uses and purposes of petitioner as aforesaid."

The concluding paragraph (p. 4) reads: "Wherefore, your petitioner prays for the appointment of commissioners, as provided for by law, to ascertain what will be a just compensation for the lands proposed to be condemned for its uses, and award the damages, if any, resulting to the adjacent or other property of the owner, or to the property of any other persons, beyond the peculiar benefits that will accrue to such properties, respectively, from the acquisition of the said land by your petitioner, and converting it to its uses, as aforesaid."

Exhibit 1 is a contract, dated July 7, 1930, for the purchase of the three tracts of land sought to be condemned, made between the United States, by the Secretary of Agriculture, and a representative of some of Eleanor Crary's heirs. Exhibit 2 is a supplemental contract reducing the agreed purchase price. In the original contract is a paragraph which reads in part as follows: "It is further mutually understood and agreed that, if the vendors do not, within one year from the date of the execution of this agreement, show in themselves a safe title, satisfactory to the Attorney General of the United States, to all the hereinbefore described lands, or do not, when called upon by the proper officer or agent of the United States, promptly convey said title or titles to the United States, as provided for herein, then and in that event the portion or portions of the lands, the vendor's title to which is not satisfactory to the Attorney General of the United States or which the vendors have failed to convey to the United States as stipulated and provided herein, shall be acquired by the institution of condemnation proceedings. * * *"

The memorandum above referred to contains the names of 35 residents of Virginia of address known to the petitioner; of 29 nonresidents of known address; of 40 persons of unknown address; as well as "unknown parties."

It appears from the papers in the file that the nonresident defendants, the defendants of unknown address, as well as the unknown defendants were given notice by publication; and that numerous resident defendants, including the United States Lumber Company, were served with notice. See sections 4364 and 4365, Codes 1919 and 1930.

On April 29, 1932, counsel for the United States Lumber Company, appearing specially, presented a pleading, which has been indorsed "Objections to Jurisdiction," and filed. This pleading is not verified, and is not supported by affidavit.

At the time stated, the government by counsel informally objected to the foregoing pleading as insufficient in law. This may, and I believe should, be regarded as a demurrer to the objections to jurisdiction.

II. Questions of Law.

The objections to jurisdiction contain several grounds of objection to the jurisdiction, possibly of the subject-matter, and certainly of the cause, and also an objection to the jurisdiction of the person of the defendant the lumber company. I shall quote the several paragraphs of the objections, and discuss the questions thereby raised separately. As a matter of convenience I shall discuss first the objections to the jurisdiction of the subject-matter and of the cause, and later the objection to the jurisdiction of the person.

A. Objections to the Jurisdiction of the Subject-matter and of the Cause.

The prefatory paragraph of the "Objections to Jurisdiction" reads as follows: "The United States Lumber Company, a West Virginia Corporation, which has been proceeded against in the above entitled cause by publication requiring it and others to appear and do what may be necessary to protect their interests in said suit, now comes by its attorneys and enters its appearance specially for the purposes hereinafter set out and for no other purpose, and says:"

There is an error in the foregoing statement. The United States Lumber Company was not proceeded against by publication. The returned notices in the case papers show that a notice addressed to Albemarle Grocery Company and to the United States Lumber Company, was served on November 27, 1931, on the president of the Albemarle Grocery Company; and on Nov. 28, 1931, at Monterey, on "E. B. Jones, Statutory Agent," by Deputy Marshal J. C. Brown.

Ground No. 1.

"1st: Defendant is the owner in fee simple and is and has been for years in open actual and notorious possession and enjoyment by residence, cultivation and control of the parcels of land described in said petition."

I can perceive no reason for a want of jurisdiction to entertain a proceeding instituted by the United States in this court to expropriate land lying in this judicial district because the lumber company is in possession of the three tracts of land now sought to be condemned.

I shall further along comment on so much of the foregoing ground of objection as undertakes to allege facts intended to show a possessory title in the lumber company.

Ground No. 2.

"2nd: This court is without jurisdiction to entertain and grant the relief prayed for by petitioner because nowhere in the Act of Congress of March 1, 1911 (36 Stats. 961) or the Act of Congress approved August 1, 1888 (25 Stats. 357) is authority given to petitioner to take the lands of this defendant in invitum, nor is such authority elsewhere found in the Constitution of the United States or the laws made in pursuance thereof, the averments in said petition as to the authority of petitioner and the jurisdiction of this court to the contrary notwithstanding."

The question here raised is as to the authority of the United States to acquire land by condemnation. I have discussed this question in U. S. v. Beaty, 198 F. 284, 286, and again in U. S. v. Graham & Irvine, 250 F. 499, 501, 502. The rulings made in those cases as to this question, as I read the opinion, have been approved in Hanson Lumber Co. v. U. S., 261 U. S. 581, 587, 43 S. Ct. 442, 444, 67 L. Ed. 809. In the opinion in that case is the following: "The Acts of July 25, 1912, and of August 1, 1888, make it obvious that the Secretary of War was authorized to acquire the property by purchase or condemnation. The authority to condemn conferred by the last-mentioned act extends to every case in which an officer of the government is authorized to procure real estate for public uses. See United States v. Beaty (D. C.) 198 F. 284 (reviewed in Beatty v. U. S. (C. C. A.), 203 F. 620, 122 C. C. A. 16) but not overruled on this point, and writ of error dismissed in U. S. v. Beatty, 232 U. S. 463, 34 S. Ct. 392, 58 L. Ed. 686; United States v. Graham & Irvine (D. C.) 250 F. 499."

Ground No. 3.

"3rd. The jurisdiction of this court in this proceeding cannot be grounded upon an Act of the General Assembly of Virginia as is in said petition averred, because petitioner can only exercise the right of eminent domain in pursuance of the Constitution of the United States and the laws made in pursuance thereof, and the State of Virginia, under the constitution and laws of the United States and the constitution of Virginia, cannot consent to the acquisition of petitioner by direct purchase or by condemnation or otherwise of land in this state for the purpose of forest conservation and preservation of natural resources or necessary to the regulation of the flow of navigable streams. The Legislature of Virginia may consent to the purchase by petitioner of places for the erection of forts, magazines, arsenals, dockyards and other needful buildings, and perhaps consent from time to time to the acquisition by petitioner of certain limited and particular parcels in the state for the purpose of forest conservation and preservation of natural resources, but it can not consent, as is attempted in the Act upon which petitioner grounds the jurisdiction of this court to the acquisition by petitioner of unlimited and undefined territory in this state for the purpose of forest conservation and preservation of...