United States v. Graham & Irvine

• Decision Date: 23 November 1917
• Docket Number: 601.
• Citation: 250 F. 499
• Parties: UNITED STATES v. GRAHAM & IRVINE et al.
• Court: U.S. Court of Appeals — Fourth Circuit

250 F. 499

UNITED STATES v. GRAHAM & IRVINE et al.

No. 601.

United States District Court, W.D. Virginia.

November 23, 1917

E. L McNeilly, Sp. Asst. Atty. Gen., and Joseph H. Chitwood, Asst U.S. Atty., of Roanoke, Va., for the United States.

Sipe &amp Harris, of Harrisonburg, Va., and Edwin B. Jones, of Monterey, Va., for Dudley and Grogg.

McDOWELL District Judge.

In opposition to a proceeding by the government to condemn land in this district, J. W. Dudley and R. C. Grogg, citizens of West Virginia, have appeared specially for the purpose and have filed written grounds of objection to the jurisdiction of the court. The nature of these objections is sufficiently shown by what follows, except to explain that in the petition it appears that there are rival claimants to a part of the land, and that some of the claimants, other than Dudley and Grogg, had agreed with the government on the value of the land.

This is a condemnation proceeding instituted by the government to acquire title to a large tract of land in this district. Among the numerous defendants are J. W. Dudley and R. C. Grogg, who have filed sundry objections to the jurisdiction of the court.

1. The first objection is based on the theory that the 'Weeks Act' (of March 1, 1911, 36 Stats. 961, c. 186, 5 U.S. Comp. Stats. Ann. Secs. 5174-5187) does not authorize condemnation. This contention finds its chief support in the use of the word 'purchase' in the statute. If we were necessarily limited to the language of this statute, there might be room for some doubt. It is the general rule that, unless the context forbids, words used in statutes are to be construed in the sense in which they are popularly used. However, it is to be noted that the words 'acquirement,' 'acquisition,' and 'acquired' are quite frequently used in the statute, and that in the title the word 'acquisition' is used and not the word 'purchase.' Again, the act deals with the highly technical subject of the acquisition of title to land. It would therefore be expected that the word 'purchase' therein was used in its legal sense, rather than in the narrow, popular sense. In section 7 of the act it is provided:

'That no deed or other instrument of conveyance shall be accepted * * * until the Legislature of the state in which the land lies shall have consented to the acquisition of such land by the United States. * * * '

If only voluntary sales of lands were intended, it is difficult to see why instruments of conveyance other than deeds were mentioned. In enacting such legislation it must have been contemplated that many tracts of lands highly desirable for the purpose intended might be owned by infants, or by insane persons, or by persons who would try to exact unreasonable prices, and that in many cases conflicting claims of title would exist. To authorize acquirement only by voluntary sale was so certain to greatly interfere with the chief and ultimate purpose in view that the context would seem to afford strong reason for declining to read the word 'purchase' otherwise than in its broad legal signification. Moreover, in enacting the statute it seems rather clear that Congress had in mind the purpose of acquiring certain kinds of land, rather than the method of acquiring.

Again, by the Act of August 1, 1888, c. 728, 25 Stats. 357, U.S. Comp. Stats. Ann. Secs. 6909, 6910, 6 Fed.Stats.Ann.pp. 700-703, Congress had provided:

'That in every case in which the Secretary of the Treasury or any other officer of the government has been, or hereafter shall be, authorized to procure real estate * * * for * * * public uses he shall be, and hereby is, authorized to acquire the same for the United States by condemnation. * * * '

It must be assumed that in enacting the act of 1911 Congress had in mind the act of 1888. Sutherland, Stat. Constr. Sec. 333; 36 Cyc. 1146. In view of the act of 1888 it was quite unnecessary to use in the act of 1911 words expressly stating an intent to permit acquisition of lands by condemnation. And indeed, because of the provisions of the act of 1888, it seems to me impossible to hold that the act of 1911 shows an implied intent to repeal the act of 1888 as to lands to be acquired under the act of 1911. If such intent had existed, no such words as 'acquirement' and 'acquisition' would have been used in the act of 1911. On the other hand, the language would have been 'purchase by voluntary sale' or words of similar import.

It is argued that the language of section 7 of the act of 1911 negatives acquisition of land by condemnation, because the Secretary of Agriculture is only authorized to purchase at a price to be fixed by the National Forest Reservation Commission. I am unable to see why the commission may not as well fix the price it is willing to pay after a report by commissioners of condemnation, as after negotiations in pais with landowners.

It is further urged that there are no provisions in the act of 1911 specifically relating to acquisition by condemnation. This was to be expected, because the act of 1888 provides in effect a complete procedure for condemnation.

In U.S. v. Beaty (D.C.) 198 F. 284, 286, the trial court passed upon this same question in construing the Act of March 3, 1911, c. 209, 36 Stats. 1037, 1049, and its ruling that the word 'purchase' there used included condemnation was affirmed. See Beatty v. U.S., 203 F. 620, 621, 122 C.C.A. 16. See, also, U.S. v. Whipple, 191 F. 945, 946, 947, 112 C.C.A. 357.

If there remains grave doubt as to the proper construction of the act of 1911, the construction put on it, in a great number of instances, by the executive officers of the government charged with its execution, including the Attorney General, showing the statute to have been construed as authorizing condemnation proceedings, is of considerable weight. Also of some weight is the language of the Virginia Act of March 22, 1916, Acts 1916, p. 793, giving consent to 'the acquisition by the United States, by direct purchase from the owner or owners, by condemnation, or otherwise, of any land in the state for the...