United States v. Meyer

• Decision Date: 23 July 1940
• Docket Number: No. 7148,7149.,7148
• Citation: 113 F.2d 387
• Parties: UNITED STATES of America v. MEYER et al.
• Court: U.S. Court of Appeals — Seventh Circuit

113 F.2d 387 (1940)

UNITED STATES of America v. MEYER et al.

Nos. 7148, 7149.

Circuit Court of Appeals, Seventh Circuit.

June 12, 1940.

Rehearing Denied July 23, 1940.

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Ford W. Thompson, of St. Louis, Mo., for appellants.

Norman M. Littell, Asst. Atty. Gen., Daniel F. Steck, Sp. Asst. Atty. Gen., of Ottumwa, Iowa, and Andrew J. Murphy, Jr., Sp. Asst. Atty. Gen., of Davenport, Iowa, and Charles R. Denny, Jr., and Francis Hoague, Attys. Department of Justice, both of Washington, D. C., for appellee.

Russell R. Casteel, of East Alton, Ill., and Henry Davis, of St. Louis, Mo., amici curiÊ.

Before SPARKS, and TREANOR, Circuit Judges, and LINDLEY, District Judge.

LINDLEY, District Judge.

Defendants appeal from a judgment in their favor for $66,750, entered in a proceeding to condemn certain of their lands for use in connection with the dam on the Mississippi River known as Lock and Dam No. 26. Adequate disposition of the several numerous errors assigned necessitates a somewhat extended comment upon the pertinent facts. Consequently, we shall avoid repetition necessarily entailed by a separate statement of facts.

Upon both the hearing upon their motion to dismiss and the trial, defendants questioned the authority of the Government to condemn the fee simple title to the lands involved. The petition of the Government for condemnation was filed pursuant to the Act of August 30, 1935, 49 Stat. 1028, 1034, 1035, specifically providing for the improvement, and the Rivers and Harbors Act of April 24, 1888, c. 194, 25 Stat. 94, 33 U.S. C. ß 591, 33 U.S.C.A. ß 591, which empowers the Secretary of War to institute proceedings in the name of the United States for the "acquirement by condemnation of any land, right of way, or material needed to enable him to maintain, operate or prosecute works for the improvement of rivers and harbors for which provision has been made by law." The power thus granted is unlimited and we cannot read into it limitations not clearly indicated by Congress. The fact that, in discussing the legislation providing for improvements including the dam here concerned, members of Congress and other Government officials referred to the cost of "flowage," "flowage damages" and "flowage easements" does not persuade us that Congress by the later act intended to limit in any manner the power previously granted to the Secretary to acquire the fee simple title for any authorized purpose when deemed necessary. If Congress had intended in the original act to curtail the wide powers of the Secretary therein granted, it would necessarily have employed phraseology other than that adopted, ˜ìî "any land, right of way * * * needed to enable him to maintain, operate or prosecute works * * * for which provision has been made by law." The act clearly conferred upon the Secretary of War authority to condemn any land needed for projects authorized by Congress.

Defendants insist that a fee simple title was not necessary to accomplish the purposes contemplated by the legislation. But the power to decide whether such a title was needed is, by the legislation, conferred upon the Secretary and, in the absence of bad faith or abuse of discretion, such determination is not subject to judicial review. Rindge Co. v. County of Los Angeles, 262 U.S. 700, 43 S.Ct. 689, 67 L.Ed. 1186; Joslin Manufacturing Co. v. City of Providence, 262 U.S. 668, 43 S.Ct. 684, 67 L.Ed. 1167; Sears v. City of Akron, 246 U.S. 242, 38 S.Ct. 245, 62 L. Ed. 688; Bragg v. Weaver, 251 U.S. 57, 40 S.Ct. 62, 64 L.Ed. 135. Determination of the extent, amount or title of property to be taken, by an Administrative Department, is, in the absence of bad faith, final. Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170; Sears v. City of Akron, 246 U.S. 242, 38 S.Ct. 245, 62 L. Ed. 688; United States v. Gettysburg Electric Railway Co., 160 U.S. 668, 16 S.Ct. 427, 40 L.Ed. 576; Barnidge v. United States, 8 Cir., 101 F.2d 295; United States v. Threlkeld, 10 Cir., 72 F.2d 464; certiorari denied, 293 U.S. 620, 55 S.Ct. 215, 79 L.Ed. 708; 2 Cooley, Constitutional Limitations (8th Ed.1927), pp. 1145-1147; 1 Lewis, Eminent Domain (3d Ed.1909), sec. 370, p. 677. The decision as to such questions rests wholly in legislative discretion, subject only to the restraints that just compensation must be paid and the determination made in good faith.

Defendants' position further, however, is that the Secretary's action was not characterized by good faith but amounted to an abuse of his discretion, for the reason that a title in fee simple was not in fact necessary for the accomplishment of the purposes of the project. To substantiate this proposition they offered in evidence a letter from the Chief of Engineers of the War Department to Senator Lewis in which, in discussing the project, the writer indicated that in the pools of the lower reaches of the improvement, some of the lands to be acquired would no doubt be desired for development of parks and recreational facilities and stated that most of the land would be permanently under water, and that, in the interest of the users of the resulting pools for navigation, recreation and police of their shores, it was considered desirable for the Federal Government to obtain more than a flowage easement and that, therefore, a fee simple title should be acquired. It should be observed first that the letter was incompetent as evidence, for the reason that it was not written by the official who had the burden of determining the question of necessity but by a subordinate agent with whom the Secretary may or may not have agreed. The opinions of such third persons are of no avail to impeach the integrity of the responsible official. Moreover, nothing in this document impeaches the original purpose, namely, betterment of navigation and flood control. Old Dominion Land Co. v. United States, 4 Cir., 296 F. 20, affirmed 269 U.S. 55, 46 S.Ct. 39, 70 L.Ed. 162. The evidence in the record, including that tendered by defendants, tends to disclose only a difference in judgment as to the necessity of a fee simple title, ˜ìî nothing in the way of abuse of discretion. Furthermore in their cross-complaint defendants averred that the possession of the Government "would completely destroy" the lands "by the operation of the dam." If there was a complete taking or destruction of defendants' property, it would seem obvious that a fee simple title was requisite.

Defendants insist that by the order for immediate possession, their constitutional rights were violated. Congress by the Act of May 15, 1936, 49 Stat. 1278, 1306, appropriated some $150,000,000 to be expended under the direction of the Secretary of War to develop such previously authorized projects as might be desirable in the interests of commerce and navigation. When the petition was filed and presented to the court, it was accompanied by a letter of the Secretary to the effect that funds were then available for paying such awards as should be allowed in condemnation proceedings for these purposes. The court evidently relied upon this in determining the correctness of the Secretary's finding and found that the preliminaries required by the Act of July 18, 1918, c. 155, sec. 5, 40 Stat. 904, 911, 33 U.S.C. ß 594, 33 U.S.C.A. ß 594, had been complied with. This was the correct action. In re Military Training Camp, D.C., 260 F. 986. It was not necessary that funds for satisfaction of the awards be deposited in advance of the taking. The statute does not so provide but rather authorizes immediate possession when "certain and adequate provision shall have been made for the payment of just compensation to the party or parties entitled thereto, either by previous appropriation by the United States or by the deposit of moneys or other form of security in such amount and form as shall be approved by the court in which such proceedings shall be instituted." 33 U.S. C. sec. 594, 33 U.S.C.A. ß 594. The requirement of the Fifth Amendment is that just compensation shall be paid for property taken but that does not mean that the funds must be deposited prior to taking. Appropriation by Congress furnishes adequate security. Commercial Station Post Office v. United States, 8 Cir., 48 F. 2d 183. Where Congress has authorized an appropriation for a sum of money, that appropriation is back of the obligation to pay for whatever is taken in pursuance of such authorized purpose. Hurley v. Kincaid, 285 U.S. 95, 104, 52 S.Ct. 267, 76 L.Ed. 637; Crozier v. Fried. Krupp Aktiengesellschaft, 224 U.S. 290, 306, 32 S.Ct. 488, 56 L.Ed. 771; Joslin v. City of Providence, 262 U.S. 668, 678, 43 S.Ct. 684, 67 L.Ed. 1167; Hays v. Port of Seattle, 251 U.S. 233, 238, 40 S.Ct. 125, 64 L.Ed. 243; Bragg v. Weaver, 251 U.S. 57, 62, 40 S.Ct. 62, 64 L.Ed. 135; Williams v. Parker, 188 U.S. 491, 502, 503, 23 S.Ct. 440, 47 L.Ed. 559; Adirondack Railway Co. v. State of New York, 176 U.S. 335, 349, 350, 20 S.Ct. 460, 44 L.Ed. 492; Sweet v. Rechel, 159 U.S. 380, 404, 16 S. Ct. 43, 40 L.Ed. 188; Cherokee Nation v. Southern Kansas Railway Co., 135 U.S. 641, 10 S.Ct. 965, 34 L.Ed. 295; Backus v. Fort Street Union Depot Co., 169 U.S. 557, 568, 569, 18 S.Ct 445, 42 L.Ed. 853. Furthermore, where taking results from authorized acts of agents of the United States, it is to be considered as an exercise of eminent domain by the Government for which just compensation can be recovered under the Tucker Act, 28 U.S.C.A. ß 41 (20). United States v. Lynah, 188 U.S. 445, 465, 23 S.Ct. 349, 47 L.Ed. 539; Hurley v. Kincaid, 285 U.S. 95, 52 S.Ct. 267, 76 L.Ed. 637; Crozier v. Fried. Krupp Aktiengesellschaft, 224 U.S. 290, 32 S.Ct. 488, 56 L.Ed. 771; Tilden v. United States, D.C., 10 F.Supp. 377.

Defendants insist further that when the court entered the order of immediate possession, it thereby gave the Government the right to flood the land and that thereby, they...