United States v. Sunset Cemetery Co.
| Decision Date | 02 March 1943 |
| Docket Number | No. 7885.,7885. |
| Citation | 132 F.2d 163 |
| Parties | UNITED STATES v. SUNSET CEMETERY CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Herbert Becker and George S. Freudenthal, Jr., both of Chicago, Ill., for appellant.
Norman M. Littell, Vernon L. Wilkinson, and John F. Cotter, Asst. Attys. Gen., for appellee.
Before EVANS and KERNER, Circuit Judges, and LINDLEY, District Judge.
Sunset Cemetery Company, defendant in a proceeding brought by the United States to condemn certain land in Cook County, Illinois, appeals from an order dismissing it as a party.
The tract with which we are concerned was owned in fee simple by Curtiss-Wright Corporation, subject, however, to (1) certain easements for highway purposes and (2) an easement in defendant under which it had the right to lay and maintain sewers across the land, thereby draining its adjoining cemetery. These facts were set forth in the petition for condemnation, the prayer of which was that the title "in fee simple absolute, subject only to outstanding easements for highway purposes" and "free from any claims of persons or person or corporation or body politic whomsoever," be vested in the United States. Contemporaneously with the filing of the petition, the Government filed a declaration of taking, as authorized by the act of Congress, U.S.C.A. Title 40, Section 258a, declaring that the estate taken "is in fee simple absolute, subject to outstanding permanent easements for highway purposes." Thereupon the court entered judgment, vesting title in the United States in fee simple subject only to easements for highway purposes.
Shortly later, defendant filed its cross-petition, setting up ownership of the drainage easement, averring damage to the cemetery as a result of the taking of the easement and praying that it might be allowed compensation and damages. Still later the court entered judgment determining the rights and interests of all defendants finding that Curtiss-Wright owned the tract subject to certain easements, including that of defendant, and that defendant was the owner of the easement referred to.
Some seven months after filing the declaration of taking, the Government made a motion for leave to amend its declaration so as to exclude defendant's easement. The court overruled the latter's objection and granted leave to the Government to amend as prayed. Thereupon an amendment to the declaration of taking was filed, excluding defendant's easement from the property taken. The court denied defendant's motion to vacate the order and dismissed it from the proceeding. The Government then filed an amendment to the condemnation petition excluding defendant's easement from the prayer.
Defendant insists that, upon filing the declaration of taking, the Government was immediately vested, by virtue of the statute, with title to its easement; that the title thus acquired can not be taken from the Government except by its own authorized alienation; that the court was without authority to permit the amendment to the declaration of taking so as to exclude anything already seized and that by the original declaration both the Government's and defendant's rights were fixed and could not thereafter be modified or altered. The Government agrees that title vested in the Government by virtue of the declaration and that the title thus acquired can not be destroyed by an amendment to the declaration excluding claim to anything taken, but it insists that, properly construed, the declaration did not include defendant's easement.
Upon the filing of the declaration of taking, title to the lands in fee simple vests in the United States and the right to just compensation for the same in the persons entitled thereto, to be ascertained by the court in accord with their respective interests, Section 258a, and that action irrevocably commits the United States to payment of the ultimate award. Section 258c and Section 258e.
Constitutionality of the act is upheld upon the reasoning that title to the land vests in the Government and the...
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