United States v. Eighty Acres of Land, No. 3144.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtWHAM
Citation26 F. Supp. 315
PartiesUNITED STATES v. EIGHTY ACRES OF LAND IN WILLIAMSON COUNTY, ILL., et al.
Decision Date28 January 1939
Docket NumberNo. 3144.

26 F. Supp. 315

UNITED STATES
v.
EIGHTY ACRES OF LAND IN WILLIAMSON COUNTY, ILL., et al.

No. 3144.

District Court, E. D. Illinois.

January 28, 1939.


26 F. Supp. 316

Arthur Roe, U. S. Atty., of Danville, Ill., Carl Feickert, Asst. U. S. Atty., of East St. Louis, Ill., and G. R. Schwarz, Sp. Atty., Dept. of Justice, of Jerseyville, Ill., for the United States.

Frank E. Trobaugh, of West Frankfort, Ill., for defendants.

WHAM, District Judge.

The United States has filed its petition for the condemnation of defendants' land described therein and has filed in the condemnation suit its "Declaration of Taking" on which judgment was entered on June 23, 1938.

The defendants G. W. Kirk and Effie Kirk have filed a motion to dismiss the suit in its entirety and another motion to vacate the judgment on the "Declaration of Taking." The case is now before the court on the two motions.

The motion to dismiss is lengthy but the grounds upon which the defendants chiefly rely may be summarized as follows: (1) The petition does not state facts sufficient to constitute a cause of action. The United States has no authority under the Constitution to condemn lands for the uses and purposes set out in the petition, as they are not public uses and purposes within the constitutional power and authority of the federal government. (2) The Act of Congress (Title 2 of an Act of Congress approved June 16, 1933) upon which this suit is based contains an unlawful and unconstitutional delegation of powers to the President and the acts of the President and his agents pursuant to such delegated power, as set out in the petition, are unlawful and invalid. (3) The Act of Congress upon which this suit is based is unconstitutional. (4) The allegations of the complaint which purport to

26 F. Supp. 317
show a compliance by the plaintiff with the provisions of the Acts of Congress relied upon are not in accordance with the true facts, but the President and his designated agents have failed to perform those acts under the law which are requisite to the power to exercise the right of eminent domain thereunder in this suit. (5) The lands already taken and sought to be taken in the Crab Orchard Creek Project are not suitable for the purposes and uses alleged in the complaint and taking the lands will cause an economic loss and destruction of a large number of homes and a number of businesses, as well as schools, churches, burial grounds and public improvements, all of a value and importance so much larger than the possible good that can be achieved through the construction and maintenance of the proposed work that this suit is clearly an unlawful and unconstitutional invasion of the rights of the defendants. (6) The uses to which the land is to be put, as alleged in the petition, are not the true and actual uses to which the plaintiff intends to put the land when acquired; that, on the contrary, the land is being taken solely for the purpose of constructing a lake to be used for pleasure only. (7) Plaintiff has made no effort to agree with the defendants upon the compensation to be paid for the land

The right of the plaintiff to maintain the suit having been attacked by the defendants upon the grounds that plaintiff is without lawful authority to condemn the land in question and is seeking to take the land by right of eminent domain for an unauthorized purpose, the burden was upon the plaintiff to establish its lawful right to maintain its suit. Assuming the burden, the plaintiff, at the hearing, introduced in evidence certified copies of the various Executive Orders and official documents relied upon to give plaintiff the right to bring and maintain this suit under the provisions of Title 2 of the National Industrial Recovery Act of 1933 and the Federal Emergency Relief Appropriation Act of 1935, as set forth in the petition herein, including a letter from the Acting Secretary of Agriculture to the Attorney General informing the latter that it had been determined by the Secretary of Agriculture that it was useful, proper, necessary, advantageous and in the interest of the United States to acquire the lands described in the petition annexed to said letter, including the land of the defendants, for the uses set forth in said letter, that money had been appropriated and allocated to pay for the lands, and requesting the Attorney General to institute condemnation proceedings for the acquisition of said land. Oral testimony was introduced describing in detail the large amount of construction work that had already been done on the project, the work that was then being done and that which remains to be done thereon; also describing the kind, character, condition, topography and area of the land to be taken and affected by the project; also describing Crab Orchard Creek and its characteristics relating to floods and overflows; also stating the objectives sought to be achieved through the construction, maintenance and operation of said project. Evidence was introduced by defendants to show the considerable number of valuable farms and farm homes, also churches, public and private burial grounds, schools, public roads, public utility service lines, coal mines and coal deposits that will be taken, destroyed or made unavailable by the project; also evidence calculated to cast doubt upon the wisdom and feasibility of the project for the purposes and uses set forth in the petition; also to show the probable damages to surrounding territory and the effect of the taking of said lands upon the tax income requisite for the maintenance of local schools and governments.

The face of plaintiff's complaint shows that plaintiff seeks to condemn the land therein described under the provisions of Title 2 of an Act of Congress approved June 16, 1933 (48 Stat. 200 et seq., § 201 et seq., 40 U.S.C.A. § 401 et seq.), commonly known as the National Industrial Recovery Act, an Act of Congress approved April 8, 1935 (49 Stat. 115), commonly known as the Federal Emergency Relief Appropriation of 1935, and also certain specified Executive Orders made pursuant to said Acts and certain specified official acts thereunder of the Federal Emergency Administrator of Public Works and the Secretary of Agriculture of the United States; that pursuant to the foregoing laws and Executive Orders thereunder the Federal Emergency Administrator of Public Works, acting under the direction of the President, prepared a comprehensive program of public works with the concurrence of a Special Board of Public Works, which program included the acquisition of

26 F. Supp. 318
the land described in the petition, among other lands, for the establishment of and for use in connection with the Crab Orchard Creek Project of the Department of Agriculture, designated the Secretary of Agriculture as the acquiring authority and that money appropriated for the purposes and under the terms of the foregoing Acts of Congress has been duly allocated to the Secretary of Agriculture for the acquisition of said land and the establishment of said project. That pursuant to said authority the Secretary of Agriculture has duly selected for acquisition the land described in the petition for use in connection with said project and that said land is necessary in his opinion: "To provide for the reforestation and forestation of said land; to prevent soil erosion; to aid in flood control; to prevent forest fires; provide for the relief of unemployment by the erection and construction thereon and in connection therewith of useful public works, including truck trails, bridges, dams, ditches and other public works necessary to said project."

The Act of Congress approved June 16, 1933, §§ 201-203, 40 U.S.C.A. §§ 401-403, above mentioned, provides:

Section 201: "(a) To effectuate the purposes of this chapter, the President is hereby authorized to create a Federal Emergency Administration of Public Works, all the powers of which shall be exercised by a Federal Emergency Administrator of Public Works (hereafter referred to as the `Administrator'), and to establish such agencies, * * * and to utilize such Federal officers and employees, * * * as he may find necessary, to prescribe their authorities, duties, responsibilities, and tenure, * * *. The President may delegate any of his functions and powers under this chapter to such officers, agents, and employees as he may designate or appoint. * * *"

Section 202: "The Administrator, under the direction of the President, shall prepare a comprehensive program of public works, which shall include among other things the following: * * * (b) conservation and development of natural resources, including control, utilization, and purification of waters, prevention of soil or coastal erosion, development of water power, transmission of electrical energy, * * * and flood control * * * (c) any projects of the character heretofore constructed or carried on either directly by public authority or with public aid to serve the interests of the general public; * * *".

Section 203: "With a view to increasing employment quickly * * * the President is authorized and empowered, through the Administrator or through such other agencies as he may designate or create, (1) to construct,...

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22 practice notes
  • United States v. Meyer, No. 7148
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 23, 1940
    ...rule by which under the Conformity Act, 28 U.S.C.A. ß 724, the District Court was bound. United States v. Eighty Acres of Land, D.C., 26 F.Supp. 315; In re Secretary of Treasury of United States, C.C., 45 F. 396, 399, 11 L.R.A. 275; United States v. Crary, D.C., 1 F. Supp. 406; In re Condem......
  • United States v. Carmack, No. 40
    • United States
    • United States Supreme Court
    • December 9, 1946
    ...286, 290, certiorari denied, 315 U.S. 814, 62 S.Ct. 798, 86 L.Ed. 1212; United States v. Eighty Acres of Land in Williamson County, D.C., 26 F.Supp. 315, 319. See, also, United States v. Certain Parcels of Land in Town of Denton of Caroline County, Md., D.C., 30 F.Supp. 372, 379; United Sta......
  • In re United States, No. 2262
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • May 19, 1939
    ...States v. 458.95 Acres of Land, D.C., 22 F.Supp. 1017; United States v. 40 Acres, D.C., 24 F.Supp. 390; United States v. 80 Acres, D.C., 26 F.Supp. 315; United States v. 2,271.69 Acres, D.C., 31 F.2d 617; United States v. Threlkeld, 10 Cir., 72 F.2d 464; certiorari denied, 293 U.S. 620, 55 ......
  • United States v. Shafer, Civ. No. 8218.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 17, 1955
    ...7 Cir., 115 F.2d 669, 672; Ryan v. U. S., 136 U.S. 68, 81, 10 S.Ct. 913, 34 L.Ed. 447; U. S. v. Eighty Acres of Land, D.C.D.Ill., 26 F.Supp. 315, Moreover, publication of a document in the Federal Register raises a presumption of validity, and defendants offered no evidence to rebut that pr......
  • Request a trial to view additional results
22 cases
  • United States v. Meyer, No. 7148
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 23, 1940
    ...rule by which under the Conformity Act, 28 U.S.C.A. ß 724, the District Court was bound. United States v. Eighty Acres of Land, D.C., 26 F.Supp. 315; In re Secretary of Treasury of United States, C.C., 45 F. 396, 399, 11 L.R.A. 275; United States v. Crary, D.C., 1 F. Supp. 406; In re Condem......
  • United States v. Carmack, No. 40
    • United States
    • United States Supreme Court
    • December 9, 1946
    ...286, 290, certiorari denied, 315 U.S. 814, 62 S.Ct. 798, 86 L.Ed. 1212; United States v. Eighty Acres of Land in Williamson County, D.C., 26 F.Supp. 315, 319. See, also, United States v. Certain Parcels of Land in Town of Denton of Caroline County, Md., D.C., 30 F.Supp. 372, 379; United Sta......
  • In re United States, No. 2262
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • May 19, 1939
    ...States v. 458.95 Acres of Land, D.C., 22 F.Supp. 1017; United States v. 40 Acres, D.C., 24 F.Supp. 390; United States v. 80 Acres, D.C., 26 F.Supp. 315; United States v. 2,271.69 Acres, D.C., 31 F.2d 617; United States v. Threlkeld, 10 Cir., 72 F.2d 464; certiorari denied, 293 U.S. 620, 55 ......
  • United States v. Shafer, Civ. No. 8218.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 17, 1955
    ...7 Cir., 115 F.2d 669, 672; Ryan v. U. S., 136 U.S. 68, 81, 10 S.Ct. 913, 34 L.Ed. 447; U. S. v. Eighty Acres of Land, D.C.D.Ill., 26 F.Supp. 315, Moreover, publication of a document in the Federal Register raises a presumption of validity, and defendants offered no evidence to rebut that pr......
  • Request a trial to view additional results

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