United States v. Marin, No. 10357.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtMATHEWS, STEPHENS, and HEALY, Circuit
Citation136 F.2d 388
PartiesUNITED STATES v. MARIN.
Decision Date11 June 1943
Docket NumberNo. 10357.

136 F.2d 388 (1943)

UNITED STATES
v.
MARIN.

No. 10357.

Circuit Court of Appeals, Ninth Circuit.

June 11, 1943.


Norman M. Littell, Asst. Atty. Gen., M. Mitchell Bourquin, Sp. Asst. to the Atty. Gen., and Vernon L. Wilkinson and Roger P. Marquis, Attys., Dept. of Justice, both of Washington, D. C., for appellant.

Charles O. Bruce and Francis T. Cornish, both of Berkeley, Cal., for appellee.

Before MATHEWS, STEPHENS, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

The United States instituted suit to condemn 1.9 acres of land in Berkeley, California, and at the same time filed a declaration of taking pursuant to the Act of February 26, 1931, 46 Stat. 1421, 40 U.S. C.A. § 258a et seq. Estimated compensation of $26,651 was deposited, of which sum $1,200 was allocated to a parcel owned by appellee. The usual ex parte judgment was entered the same day and immediate delivery of possession ordered.

The other owners do not appear to have contested the suit, but appellee answered alleging that the taking was not for a public use. Following a motion to dismiss, interposed by appellee, the government was permitted to amend its complaint. As amended the complaint alleged that condemnation was sought pursuant to certain designated statutes, and that "the land hereinafter described is taken and condemned under the authority of the abovementioned Acts of Congress for the uses and purposes authorized by said Acts, and is sought and taken by the plaintiff for the establishment of essential equipment and facilities for the expansion of the American Forge Company, Berkeley, California, for use in the production of steel forgings for naval purposes; that said use of said land constitutes a public use and said lands have been selected by the Acting Secretary of the Navy for acquisition for said purposes and uses above stated. * * *"

The motion to dismiss was thereupon renewed and was granted, the judgment of dismissal reciting that "the use and purpose for which said real property is sought and taken is for a private use and not for a public use." From this judgment the government appeals.

Among the acts of Congress referred to in the complaint, and relied on as affording a basis for the taking, is the Act of July 29, 1941, 55 Stat. 608, appropriating funds for naval construction and repair and authorizing execution of the work at "either private or naval establishments." The Act grants authority to acquire such lands as the Secretary of the Navy, with the approval of the President, may deem best suited to the purpose in hand. From the report of the House Committee submitting this legislation (H. Rep. No. 934, 77th Cong. 1st Sess.) it is plain that the Act was...

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7 practice notes
  • Catlin v. United States, No. 419
    • United States
    • United States Supreme Court
    • February 26, 1945
    ...of the litigation and appeal would lie within Section 128. United States v. Carey, 9 Cir., 143 F.2d 445; United States v. Marin, 9 Cir., 136 F.2d 388. But denial of a motion to dismiss, even when the motion is based upon jurisdictional grounds, is not immediately reviewable. Cf. Roche v. Ev......
  • United States v. CERTAIN REAL ESTATE, ETC., No. 12081.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 10, 1954
    ...within Section 128." The Supreme Court cited United States v. Carey, 9 Cir., 143 F.2d 445, 450 and United States v. Marin, 9 Cir., 136 F.2d 388. In the first-cited case, the Court of Appeals held that where the Government had filed a declaration of taking and had deposited estimated co......
  • United States v. Kansas City, Kan., No. 3339.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 6, 1946
    ...property by condemnation and transfer it to others in aid of the national defense cannot be doubted. United States v. Marin, 9 Cir., 136 F.2d 388, and cases there cited; City of Oakland v. United States, 9 Cir., 124 F.2d 959. See, also, Brown v. United States, 263 U.S. 78, 44 S.Ct. 92, 68 L......
  • Lake Charles Harbor & Terminal District v. Henning, No. 26406.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 3, 1969
    ...be the only user would not necessarily convert the proposed storage area into a private boon for that company. Cf. United States v. Marin, 136 F.2d 388 (9th Cir. 1943).5 409 F.2d 935 The record clearly shows that a place for bulk storage of liquids is an essential constituent in the board's......
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7 cases
  • Catlin v. United States, No. 419
    • United States
    • United States Supreme Court
    • February 26, 1945
    ...of the litigation and appeal would lie within Section 128. United States v. Carey, 9 Cir., 143 F.2d 445; United States v. Marin, 9 Cir., 136 F.2d 388. But denial of a motion to dismiss, even when the motion is based upon jurisdictional grounds, is not immediately reviewable. Cf. Roche v. Ev......
  • United States v. CERTAIN REAL ESTATE, ETC., No. 12081.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 10, 1954
    ...within Section 128." The Supreme Court cited United States v. Carey, 9 Cir., 143 F.2d 445, 450 and United States v. Marin, 9 Cir., 136 F.2d 388. In the first-cited case, the Court of Appeals held that where the Government had filed a declaration of taking and had deposited estimated co......
  • United States v. Kansas City, Kan., No. 3339.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 6, 1946
    ...property by condemnation and transfer it to others in aid of the national defense cannot be doubted. United States v. Marin, 9 Cir., 136 F.2d 388, and cases there cited; City of Oakland v. United States, 9 Cir., 124 F.2d 959. See, also, Brown v. United States, 263 U.S. 78, 44 S.Ct. 92, 68 L......
  • Lake Charles Harbor & Terminal District v. Henning, No. 26406.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 3, 1969
    ...be the only user would not necessarily convert the proposed storage area into a private boon for that company. Cf. United States v. Marin, 136 F.2d 388 (9th Cir. 1943).5 409 F.2d 935 The record clearly shows that a place for bulk storage of liquids is an essential constituent in the board's......
  • Request a trial to view additional results

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