Washington Metropolitan Area Transit Authority v. One Parcel of Land in District of Columbia Vestry of Rock Creek Parish

• Decision Date: 23 June 1975
• Docket Number: No. 74-2022,74-2022
• Citation: 514 F.2d 1350,169 U.S.App.D.C. 109
• Parties: WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, a body corporate v. ONE PARCEL OF LAND IN the DISTRICT OF COLUMBIA VESTRY OF ROCK CREEK PARISH, a corporation organized and existing under the Maryland Vestry Act of 1798, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1350

514 F.2d 1350

169 U.S.App.D.C. 109

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, a body corporate v. ONE PARCEL OF LAND IN the DISTRICT OF COLUMBIA VESTRY OF ROCK CREEK PARISH, a corporation organized and existing under the Maryland Vestry Act of 1798, et al., Appellants.

No. 74-2022.

United States Court of Appeals, District of Columbia Circuit.

June 23, 1975.

Ernest F. Henry, Washington, D. C., for appellants.

Wallace H. Johnson, Asst. Atty. Gen., and Edmund B. Clark, Atty., Dept. of Justice, were on the brief for appellee.

Before BAZELON, Chief Judge, and TAMM and ROBB, Circuit Judges.

PER CURIAM:

Plaintiff-appellee Washington Metropolitan Area Transit Authority (Metro) commenced this action in the district court to condemn a property interest in Rock Creek Cemetery, and moved for possession of that interest. Defendants-appellants Vestry of Rock Creek Parish and Ernest F. Henry, as interested parties, answered Metro's complaint, counterclaimed for declaratory and injunctive relief, and opposed Metro's motion for possession. After a hearing, the district court ordered that possession be surrendered. We affirm the district court's order.

It is important to understand what is and is not involved in this case. Metro is presently in various stages of constructing a comprehensive, rapid transit rail system for the Washington metropolitan area. Public hearings revealed that one of Metro's proposed routes would require the destruction of seventy homes in a stable residential neighborhood, a fact that created significant opposition. Consequently, Metro is considering several alternative routes to avoid the destruction of these homes, one of which involves the construction of a 2500 foot tunnel under Rock Creek Cemetery. Preliminarily, Metro must determine the composition of the subsoil of the relevant portion of the cemetery to ascertain the feasibility of the project, to complete an environmental impact analysis of the proposed alternatives, and to prepare for public hearings. In order to examine the composition of the subsoil, Metro sought to condemn "a temporary and assignable right of use and occupancy, together with the right of ingress and egress, for a period of thirty (30) days, . . . for the purpose of entering upon said parcel with appropriate drilling equipment for the purpose of making eight (8) test borings, each four (4) inches in diameter." Thus, although questions concerning Metro's authority to build a tunnel under the cemetery are lurking in the background, they are not presently before this court. The ultimate issue before us is only whether Metro may enter the cemetery for the limited purpose of making eight test borings.

Initially, Metro suggests that this court lacks jurisdiction. 16 D.C.Code § 1365 provides in part:

A party aggrieved by a final judgment in a proceeding pursuant to this subchapter may appeal therefrom to the United States Court of Appeals for the District of Columbia Circuit.

It is true that "ordinarily in condemnation proceedings appellate review may be had only upon an order or judgment disposing of the whole case, and adjudicating all rights, including ownership and just compensation, as well as the right to take the property." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). It is not true, however, that no order issued in a condemnation case can be an appealable order before all the issues raised in the condemnation proceeding, including just compensation, have been adjudicated. Rather, an order of possession is final and subject to review if it operates to defeat the right of the property owner to challenge the validity of the taking in the condemnation proceeding. See Loughran v. United States, 115 U.S.App.D.C. 196, 317 F.2d 896 (1963); United States v. 58.16 Acres of land, 478 F.2d 1055 (7th Cir. 1973); United States v. Certain Land in the Borough of Manhattan 332 F.2d 679 (2d Cir. 1964). The possession order in this case is such an order. Had this court not stayed that order Metro would long since have taken possession and completed its borings, thereby defeating any remedy the Cemetery may have. Consequently, the order is subject to review at this time.

Appellants raise two issues on appeal: (1) whether Metro has the power to condemn Rock Creek Cemetery for any purpose, including the purpose of completing eight test borings, and (2) whether Metro was required to join as defendants in this action all owners of burial plots in the Cemetery. We hold that Metro has the power to condemn a property interest in the cemetery for the purpose of making the proposed test borings, and that Metro was not required to join all owners of burial plots.

Metro filed its complaint pursuant to section 82 of the Washington Metropolitan Area Transit Authority Compact, which provides in pertinent part:

Condemnation

82. (a) The Authority shall have the power to acquire by condemnation, whenever in its opinion it is necessary or advantageous to the Authority to do so, any real or personal property, or any interest therein, necessary or useful for the transit system authorized herein, except property owned by the United States, by a signatory, or any political subdivision thereof . . . .

(b) Proceedings for the condemnation of property in the District of Columbia shall be instituted and maintained under (16 D.C.Code §§ 1351-1369 (1973)) . . . .

Pub.L. No. 89-774, 80 Stat. 1350-51 (1969), as codified in D.C.Code § 1-1431 (1973). Appellants argue that this general condemnation power does not authorize the condemnation of a property interest in the cemetery because of the common law rule that property already devoted to a public use is "protected from invasion by other uses except by express legislative action." Appellants Br. at 13.

Appellants have misperceived the common law rule which, properly stated, is:

If . . . a condemnor to whom the power of eminent domain has been delegated, such as a municipality or a private corporation, seeks to exercise the power with respect to property already devoted to a public use, the general rule is that where the proposed use will either destroy such existing use or interfere...