United States v. Stubbs, 1809.

• Decision Date: 07 October 1929
• Docket Number: No. 1809.,1809.
• Citation: 35 F.2d 357
• Parties: UNITED STATES v. STUBBS et al.
• Court: U.S. District Court — Western District of Louisiana

35 F.2d 357 (1929)

UNITED STATES v. STUBBS et al.

No. 1809.

District Court, W. D. Louisiana. Monroe Division.

October 7, 1929.

Philip H. Mecom, U. S. Atty., of Shreveport, La., J. O. Modisette, Sp. Asst. Dist. Atty., of Jennings, La., and John C. Dyott, Sp. Asst. Dist. Atty., of St. Louis, Mo.

Harry Russell and F. P. Stubbs, both of Monroe, La., Wm. C. Dufour, John St. Paul, Jr., and T. J. Freeman, all of New Orleans, La., C. J. Ellis, of Rayville, La., and Street & Burnside, of Lake Village, Ark., for defendants.

DAWKINS, District Judge.

Pursuant to provisions of the Act of May 15, 1928, commonly known as the Flood Control Bill (33 USCA §§ 702a-702m, 704) the government seeks in this case to condemn 114.26 acres of land for the building of a portion of what is called the Monroe Circle Levee. It is also a part of the general plan for control of flood waters of the Mississippi river. The act in question authorizes the appropriation of $325,000,000 for the entire work, but makes available for present expenditures only $30,000,000. Primarily, the purpose of this suit is to determine the procedure and requirements necessary to permit the taking possession of the property desired, and the larger issue of whether actual work upon the guide levees of the general project shall commence or be restrained remains to be heard in the case of Kincaid v. the Secretary of War and Others, now pending in this court. In other words, the plaintiff seeks an interpretation of section 4 of the Act of May 15 (33 USCA § 702d) in conjunction with the provisions of sections 594 and 595 of title 33 of the U. S. Code (33 USCA), as to whether the appropriation of $30,000,000 for all purposes at the present time, coupled with the letter of the Secretary of War to the Attorney General that funds are available to pay for the particular property in this instance, is sufficient to meet the requirements of the law and to authorize the taking of possession; or whether the court may and should, in its discretion, require in each case a deposit in the registry of the court or an official depository of funds to cover the maximum value that may be found for the property.

Section 4 of the Act of May 15, 1928 (33 USCA § 702d), reads in part as follows:

"The Secretary of War may cause proceedings to be instituted for the acquirement by condemnation of any lands, easements, or rights of way which, in the opinion of the Secretary of War and the Chief of Engineers, are needed in carrying out this project, the said proceedings to be instituted in the United States district court for the district in which the land, easement, or right of way is located. In all such proceedings the court, for the purpose of ascertaining the value of the property and assessing the compensation to be paid, shall appoint three commissioners, whose award, when confirmed by the court, shall be final. When the owner of any land, easement, or right of way shall fix a price for the same which, in the opinion of the Secretary of War is reasonable, he may purchase the same at such price; and the Secretary of War is also authorized to accept donations of lands, easements, and rights of way required for this project. The provisions of sections 594 and 595 of this title are hereby made applicable to the acquisition of lands, easements, or rights of way needed for works of flood control: Provided, That any land acquired under the provisions of this section shall be turned over without cost to the ownership of States or local interests."

Section 594 of title 33 of the U. S. Code (33 USCA), which is the one pertinent to the issue now to be decided, provides:

"When Immediate Possession of Land may be Taken. Whenever the Secretary of War, in pursuance of authority conferred on him by law, causes proceedings to be instituted in the name of the United States for the acquirement by condemnation of any lands, easements, or rights of way needed for a work of river and harbor improvements duly authorized by Congress, the United States, upon the filing of the petition in any such proceedings, shall have the right to take immediate possession of said lands, easements, or rights of way, to the extent of the interest to be acquired, and proceed with such public works thereon as have been authorized by Congress: Provided, That 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. The respondent or respondents may move at any time in the court to increase or change the amounts or securities, and the court shall make such order as shall be just in the premises and as shall adequately protect the respondents. In every case the proceedings in condemnation shall be diligently prosecuted on the part of the United States in order that such compensation may be promptly ascertained and paid."

It will be noted that section 594 of the Code requires: "That 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." It also provides...