United States v. THREE PARCELS OF LAND, ETC.

• Decision Date: 10 December 1963
• Docket Number: Civ. No. F-6-61.
• Citation: 224 F. Supp. 873
• Parties: UNITED STATES of America, Plaintiff, v. THREE PARCELS OF LAND, Situated IN the CITY OF FAIRBANKS, STATE OF ALASKA, and Alaska State Housing Authority, Mary E. Bridges and the heirs-at-law of Alvin Copeland, deceased, et al., Defendants.
• Court: U.S. District Court — District of Alaska

224 F. Supp. 873

UNITED STATES of America, Plaintiff, v. THREE PARCELS OF LAND, Situated IN the CITY OF FAIRBANKS, STATE OF ALASKA, and Alaska State Housing Authority, Mary E. Bridges and the heirs-at-law of Alvin Copeland, deceased, et al., Defendants.

Civ. No. F-6-61.

United States District Court D. Alaska.

December 10, 1963.

Warren C. Colver, U. S. Atty., and James R. Clouse, Jr., Asst. U. S. Atty., Anchorage, Alaska, for plaintiff.

Allen L. Jewell, Gen. Counsel, Alaska State Housing Authority, Anchorage, Alaska, for defendant Alaska State Housing Authority.

Robert A. Parrish, Fairbanks, Alaska, for defendant Mary E. Bridges.

PLUMMER, District Judge.

On May 31, 1961, a complaint and declaration of taking was filed and the sum of $12,200.00 was deposited with the Clerk of Court. The complaint and declaration of taking recited that the public use for which said land was taken was to provide for necessary postal facilities and that the estate to be acquired in the property was a fee simple absolute. On May 31, 1961, title to the land here involved vested in fee simple absolute in the United States of America; said lands were condemned and taken for the use of the United States; and the right to just compensation for the same vested in the persons entitled thereto. 40 U.S.C.A. § 258a; Travis v. United States, 287 F.2d 916, 919 (Ct.Cl.1961).

On January 4, 1962, defendant Bridges moved to continue the pre-trial conference and an order was entered continuing the pre-trial conference until March 30, 1962, and setting this case for trial on May 28, 1962.

On April 10, 1962, defendant Bridges moved to vacate the trial setting and on May 14, 1962, a minute order was entered vacating the trial date of May 28, 1962.

On September 19, 1963, a minute order was entered setting the case for trial at 10:00 a. m. on December 9, 1963. On the same date, September 19, 1963, the court addressed a letter to counsel for defendant Bridges which advised that the case had been set for trial on December 9, 1963, and which further advised that if the trial date set was not satisfactory to counsel for defendant Bridges the case could be removed from the trial calendar upon request provided the court were notified at the earliest possible date.

On October 1, 1963, the Clerk of Court forwarded to counsel of record a notice that the case had been set for trial by jury at Fairbanks on December 9, 1963, at 10:00 a. m.

On December 3, 1963, defendant Bridges moved for continuance of pretrial conference and to vacate the trial setting of December 9, 1963.

On December 4, 1963, defendant Bridges moved for leave to file an answer to the complaint in condemnation.

A continuance is a matter within the discretion of the court. Although the motion of defendant Bridges for continuance of pre-trial conference and to vacate trial setting of December 9, 1963, is not supported by an adequate showing, the court does not feel justified in disregarding the statements of counsel for Bridges during the course of oral argument. In view of the fact that defendant offered to pay the reasonable costs that might be occasioned to the United States of America by a continuance in this matter and in view of the fact that the court has ruled that the sole issue for determination on the trial of this case is the matter of just compensation for the land taken as of May 31, 1961, it does not appear that the United States of America will be materially or substantially prejudiced by the court's granting a continuance of less than sixty days.

Rule 71A(e) specifically provides that, "If a defendant has any objection or defense to the taking of his property, he shall serve his answer within 20 days after the service of notice upon him." Any answer to a condemnation complaint must conform to the provisions of Rule 71A of the Federal Rules of Civil Procedure. Travis v. United States, supra. Notwithstanding the clear wording of Rule 71A(e), the United States District Court for the Southern District of Illinois in City of Davenport v. Three-Fifths of an Acre of Land, 147 F.Supp. 794, 796, affirmed 7 Cir., 252 F.2d 354, stated in part as follows:

"It is quite possible that the defendant, not having answered within 20 days, has waived any objections or defenses to the taking of its property. However, the Courts should and do construe the rules of civil procedure so as to work substantial justice in all cases and avoid a strict technical interpretation which might work a hardship on the litigants. With this in mind the Court will consider the motion to dismiss as an answer in order that the matter may be determined upon its merits rather than upon a strict construction of procedure."

This court being similarly inclined has therefore considered the proposed defenses, asserted by the defendant Bridges in her answer, on their merits. For reasons hereinafter stated the court finds them legally insufficient to constitute meritorious defenses to the complaint in condemnation.

Upon the filing of the declaration of taking and the deposit in court, to the use of the persons entitled thereto, of the amount of the estimated compensation stated in the declaration, title to the lands taken vested in fee simple absolute in the United States of America. The lands were condemned and taken for the use of the United States and the right to just compensation vested in the persons entitled thereto. 40 U.S.C.A. § 258a; and Travis v. United States, supra.

Property acquired in fee simple by a public body for a particular purpose may be diverted to another use.

In Beistline v. City of San Diego, 256 F.2d 421, 424 (9th Cir. 1958), the court stated:

"Because a sovereign body plans to acquire private property for a lawful purpose (here an airport), does acquire the property with such purpose, and thereafter changes its corporate mind and uses the property for a different purpose, or even trades or sells the property to another, and at an increased price, does not thereby establish a taking for private use, nor fraud, nor any fraudulent or false or untrue representations. Need for taking the particular land, like the issue of compensation for the taking, is judged solely by the conditions existing at the time of the taking." Citing cases. (Emphasis supplied.)

In United States v. 10.47 Acres of Land, etc., 218 F.Supp. 730 (D.C.N.H. 1962), the United States brought proceedings to condemn lands to provide additional facilities in connection with an Air Force base. The court held that the taking of lands to provide a substitute water supply for city...