United States v. Crary

Decision Date24 October 1932
Citation2 F. Supp. 870
CourtU.S. District Court — Western District of Virginia
PartiesUNITED STATES v. CRARY et al.

R. O. Crockett, of Tazewell, Va., for the United States.

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

Edw. C. Martz, of Harrisonburg, Va., for Crary heirs.

McDOWELL, District Judge.

Following the filing of the opinion in this case of May 11, 1932 (D. C. 1 F. Supp. 406) the United States Lumber Company has, under protest, appeared generally and has filed an answer, which embodies a number of motions.

As preliminary to what will be an unavoidably tedious discussion, it seems advisable to say here:

(a) I cannot doubt the right of the government to institute an omnium gatherum condemnation suit to acquire the rights and claims of every person, known or unknown, who has or may have a right to, or a right in, the land sought to be acquired. This conclusion is, I believe, too manifest to require discussion.

(b) Because the government is a sovereign, it may at any time, before taking the land sought, dismiss or abandon this proceeding. If the government's representatives regard the awards, after confirmation, as excessive, the government has a right to decline to accept the awards and to dismiss this proceeding. See Kanakanui v. U. S. (C. C. A. 9) 244 F. 923; Owen v. U. S. (C. C. A. 5) 8 F.(2d) 992.

In this case I understand that there will be no conflicts as to the tract 212 b lying mainly in Augusta county. I shall therefore confine the following discussion to the two tracts sought to be condemned 212 a-I and 212-I, which lie wholly in Highland county.

In the following discussion I shall have occasion to refer to the following statutes, which are for convenience here cited: (1) The Act of Aug. 1, 1888, c. 728, 25 Stats. p. 357, 40 USCA §§ 257, 258; (2) the "Weeks Act" of March 1, 1911, c. 186, 36 Stats. 961, 16 USCA §§ 480, 500, 513-519, 521, 552, 563; (3) the Act of March 3, 1891, c. 561, § 24, 26 Stats. 1095, 1103; (4) the Act of June 4, 1897, c. 2, 30 Stats. 11, 35, 36; (5) the Act of June 7, 1924, c. 348, § 9, 43 Stats. 653, 655 (16 USCA § 471); (6) sections 4364-4378, Code of Va. 1930; (7) sections 1074-1088, Code of Va. 1887; (8) section 1105f, subsecs. (4)-(18), Pollard's Code of Va. 1904.

The sections of the Code of 1887 and 1904 are prototypes of sections 4364-4378, Code 1930.

The scheme of the Virginia condemnation statutes above cited is in brief outline as follows:

(a) The filing in the clerk's office of a petition for condemnation.

(b) Notice of the time, place, and purpose of a motion by the condemnor to appoint five freeholders, residents of the county where the land lies, as condemnation commissioners, any three of whom may act, to view the land, hear evidence, and report the sums of money which will be just compensation.

(c) The order of court appointing the five commissioners, directing them at a time fixed in the order to go upon the land sought to be expropriated, to view it and the "adjacent" land, to hear evidence, and to file a report of their findings as to just compensation.

(d) The report is to lie for thirty days for exceptions.

(e) If, on trial before the judge, good cause for objection to the report is not shown, it will be confirmed. If confirmed, the amount of the award may be paid into court, to be distributed by the judge, after trial, or the matter of distribution may be referred to a commissioner.

If for good cause the report is set aside, another commission is appointed, and so on until a report is confirmed.

Confining attention to cases in which the government seeks to condemn a part of a tract of land, the state statutory law, for instance section 4366, Code Va. 1930, in addition to the value of the parcel sought to be condemned, authorizes damages (1) to the "adjacent property" of the owner of the parcel sought to be condemned; (2) to "other property" of the said owner; and (3) to property of "any other person."

As briefly as possible, and in the reverse of the above order, I shall here comment on the foregoing provisions of the Virginia statute in respect to damages.

(a) Damages to Property of Any Other Person.

The only limitations on the government's right to take private property for public use found in the Constitution of the United States which need be mentioned at this juncture are the provisions as to due process of law and just compensation, found in the Fifth Amendment. The only federal statutory limitations, so far as I know, are found in the Condemnation Conformity Act, section 2 of the Act of Aug. 1, 1888 (25 Stats. p. 357, 40 USCA § 258) and possibly the provision in the Weeks Act, § 6 (36 Stats. p. 962, 16 USCA § 515), requiring the consent of the state.

In the petition to condemn in the case at bar, there are no "other persons" than claimants to the two tracts sought to be condemned who are made defendants. Such other persons could not be bound by any judgment rendered in this cause, and we have here no concern with them. However, it tends to clarify my own thoughts to say that the provision of the state statutory law in question creates a new and a substantive right, not given by the Federal Constitution and not given by any federal statute. The state of Virginia is in advance of Congress as to damages to others than the condemnees; but this provision is not applicable to a condemnation proceeding instituted by the federal government. See Campbell v. U. S., 266 U. S. 368, 371, 45 S. Ct. 115, 69 L. Ed. 328. Additional authority for this statement will be cited further along in this opinion.

(b) Damages to Other Property of the Condemnee.

In construing the meaning of the phrase "just compensation" as used in the Fifth Amendment, the Supreme Court has held that, in addition to the value of the parcel sought to be taken, the damages allowable are only the damages to the residue of the tract of which a part is sought to be taken. See Sharp v. U. S., 191 U. S. 341, 354, 24 S. Ct. 114, 48 L. Ed. 211; U. S. v. Grizzard, 219 U. S. 180, 183, 184, 185, 31 S. Ct. 162, 55 L. Ed. 165, 31 L. R. A. (N. S.) 1135; U. S. v. Cress, 243 U. S. 316, 329, 37 S. Ct. 380, 61 L. Ed. 746; U. S. v. Wayne County (mem.), 252 U. S. 574, 575, 40 S. Ct. 394, 64 L. Ed. 723.

No federal statute gives to a condemnee, in a government condemnation suit, any right to damages to property, which is not the residue of the tract of land, a part of which is sought to be taken. The right of a condemnee to have damages to "other property" given him in the state courts in condemnations by the state or its agencies, or by public service corporations, is, to my mind, a substantive right. And, if so, this court is bound by the foregoing Supreme Court decisions, and I must refuse to allow damages to the condemnee's "other property."

However, I recognize the difficulty in always accurately discriminating between substantive and procedural laws, and I shall for present purposes assume that the state statutes which give the condemnee damages to other property is procedural. If the matter is procedural, the question which arises is: Shall this court follow the state statutes or follow the Supreme Court rulings? It is clear that damages based on the state statute would be greater than if based on the Supreme Court rulings. It would, if it did not defeat, certainly impair, the purpose of section 1 of the Act of Aug. 1, 1888 (25 Stats. 357, 40 USCA § 257), to adopt the Virginia statutory method of ascertaining damages. It follows that the discretion given the court by the words "as near as may be" in the second section of said act (40 USCA § 258) should be exercised by following the Supreme Court rulings. See Indianapolis, etc., R. Co. v. Horst, 93 U. S. 291, 300, 301, 23 L. Ed. 898; Luxton v. North River Bridge Co., 147 U. S. 337, 338, 13 S. Ct. 356, 37 L. Ed. 194; Mexican Central R. Co. v. Pinkney, 149 U. S. 194, 207, 13 S. Ct. 859, 37 L. Ed. 699; Chappell v. U. S., 160 U. S. 499, 514, 16 S. Ct. 397, 40 L. Ed. 510; Hills & Co. v. Hoover, 220 U. S. 329, 336-337, 31 S. Ct. 402, 55 L. Ed. 485, Ann. Cas. 1912C, 562. See, also, authorities cited 28 US CA § 724, note 8, construing the General Conformity Act (Rev. Stats. § 914, 28 US CA § 724), which was copied in section 2 of the Act of August 1, 1888 (25 Stats. p. 357, 40 USCA § 258).

In Mexican Central Railway Co. v. Pinkney, supra, 149 U. S. 194, 207, 13 S. Ct. 859, 865, 37 L. Ed. 699, it is said: "The words of this section, `as near as may be,' were intended to qualify what would otherwise have been a mandatory provision, and have the effect to leave the federal courts some degree of discretion in conforming entirely to the state procedure. These words imply that in certain cases it would not be practicable, without injustice or inconvenience, to conform literally to the entire practice prescribed for its own courts by a state in which federal courts might be sitting. This qualification is indicated in Indianapolis & St. Louis Railroad v. Horst, 93 U. S. 291, 300, 301 23 L. Ed. 898."

(c) Damages to the Owner's Adjacent Property.

If the expression "adjacent property" means the residue of the tract of land, a part of which is sought to be taken, there is here no difference between the Supreme Court rulings and the state statute. But, if this expression includes more than is included in the phrase "the residue," there is a difference. And the same reasoning which leads to the conclusion that damages to the condemnee's "other property" cannot be allowed requires that "adjacent property" must in the case at bar be restricted to "the residue."

Further along I shall have occasion to discuss the meaning of the phrase "the residue" as I understand it and as applied to the case at bar.

The very important difference in the rights of a landowner, given by the state Constitution and state statutes, when sued in a state court by a state agency or by a public service corporation, and his...

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