West, Inc. v. United States, 22819.

Citation374 F.2d 218
Decision Date10 March 1967
Docket NumberNo. 22819.,22819.
PartiesWEST, INC., and Mrs. Florence Wetherbee, Appellants, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

COPYRIGHT MATERIAL OMITTED

Garner W. Green, Jr., Garner W. Green, Sr., Jackson, Miss., for West, Inc., and Mrs. Florence Wetherbee, appellants. Green, Green & Cheney, Jackson, Miss., of counsel.

E. R. Holmes, Jr., Asst. U. S. Atty., Jackson, Miss., Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis, Edmund B. Clark, Attys., Dept. of Justice, Washington, D. C., Robert E. Hauberg, U. S. Atty., Jackson, Miss., for appellee.

Before TUTTLE, Chief Judge, THORNBERRY and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

On June 8, 1964, the United States filed a petition in condemnation to acquire, inter alia, the fee title to the three tracts of land in question, needed in connection with the Yazoo Basin Headwater Project in Mississippi, allegedly for use as a fish and wildlife preserve designed to offset fish and wildlife losses due to the flood control project. (Flood Control Act of 1946, 60 Stat. 608; 77 Stat. 844 (1963); 33 U.S.C. §§ 591, 701, 702a, 702a-1 to 702a-2). The complaint and declaration of taking specified that Tracts 508 and 602, owned by appellant Wetherbee, and Tract 600, owned by appellant West, Inc., were to be taken in fee, reserving the appellants the mineral rights with rights of ingress and egress. Appellants filed an answer contesting the authority to take a fee and seeking dismissal of the complaint and declaration of taking on the ground that only a flowage easement was required for the project. Appellants also sought a writ of prohibition and an order directing that the proceedings be governed by Mississippi law pursuant to the provisions of 33 U.S.C. § 591 and Fed.R.Civ.P. 71A(k). The district court denied the motion to dismiss and struck those portions of the answer contesting the authority to take. Compensation was fixed by stipulation at $14,350.00 for the Wetherbee tracts and by jury at $25,000.00 for the West land, final judgments being entered accordingly, on June 28, 1965 with respect to the Wetherbee tracts, and on July 19, 1965 with respect to the West tract. This appeal followed. We affirm.

I.

The right of the federal government to condemn property within the state for public use has been sanctioned by history and precedent throughout the years albeit purposes and techniques have changed consonant with our fluid society. In the early case of Kohl v. United States, 91 U.S. 367, 371, 23 L.Ed. 449, 451 (1875), the Supreme Court upheld the exercise of Federal power of eminent domain to acquire a prospective site for a post-office in Ohio. In that case, Mr. Justice Strong said:

"It has not been seriously contended during the argument that the United States Government is without power to appropriate lands or other property within the States for its own uses, and to enable it to perform its proper functions. Such an authority is essential to its independent existence and perpetuity. These cannot be preserved if the obstinacy of a private person, or if any other authority, can prevent the acquisition of the means or instruments by which alone governmental functions can be performed. The powers vested by the Constitution in the General Government demand for their exercise the acquisition of lands in all the States * * *. If the right to acquire property for such uses may be made a barren right by the unwillingness of property holders to sell, or by the action of a State prohibiting a sale to the Federal Government, the constitutional grants of power may be rendered nugatory, and the Government is dependent for its practical existence upon the will of a State, or even upon that of a private citizen. This cannot be."

Whether and to what extent the United States needs the property for an admittedly constitutional purpose under a valid delegation to select the land needed are legislative rather than judicial questions, to be decided in this case by the Secretary of the Army. The function of the court in this area is a narrow one. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954); United States ex rel. T. V. A. v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843 (1945); Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1892).

In Shoemaker, supra, 147 U.S. at 298, 13 S.Ct. at 390, 37 L.Ed. at 184, a case where condemnation of land for a public park was upheld as a valid public use, the Supreme Court held that

"The adjudicated cases likewise establish the proposition that, while the courts have power to determine whether the use for which private property is authorized by the legislature to be taken is in fact a public use, yet, if this question is decided in the affirmative, the judicial function is exhausted; that the extent to which such property shall be taken for such use rests wholly in the legislative discretion, subject only to the restraint that just compensation must be made."

Appellants here contend that the taking of a fee interest by the United States was without authority when a flowage easement would have sufficed for the purpose intended. This argument is without merit. Provided that land can be reasonably related to a public purpose, the United States, in eminent domain proceedings, is not limited to taking in fee the amount of property which will be physically occupied by the public or actually submerged in a flood control operation. If Congress wanted to dot every i and cross every t in the pursuit of a legislative command, it would have the power and right to do so; but the courts should only sparingly deny governments an operable orbit to accomplish a legislative end. Numerous cases sustain the proposition that the purpose intended being valid, the necessity of the taking and the character of the title to be taken are decisions vested exclusively in the Secretary. E. g., Berman, supra; Welch, supra; Shoemaker, supra; United States v. Agee, 322 F.2d 139 (6 Cir. 1963). See also In re United States, 257 F.2d 844 (5 Cir. 1958).

The Supreme Court in Berman, supra, 348 U.S. at 36, 75 S.Ct. at 104, 99 L.Ed. at 39, discussing the Agency's right to take full title to property pursuant to a redevelopment project, concluded that if the Secretary considers it necessary in carrying out the project to take fee title to property involved, it may do so. The Court stressed its opinion that it is not for the judiciary to determine what is necessary for successful consummation of a project any more than it is the court's function to select the precise parcels to be condemned. Compare United States v. 6.74 Acres of Land, etc., 148 F.2d 618 (5 Cir. 1945), holding that the lower court was without right to question the Secretary's action either as to the necessity of taking or as to the extent of the interest in the property taken where, while under lease and in possession of property, the United States condemned fee title thereto.

Flood control embraces many elements, and the fact that a committee of Congress directs that the minimum of land necessary for flood control purposes be taken does not restrict the taking to an easement of flowage. United States v. Meyer, 113 F.2d 387 (7 Cir. 1940). If the flood control operation has some concomitant deleterious effects on the fish and wildlife in the areas involved, the scope of condemnation can include remedies to remove such deleterious effects. In United States v. 91.69 Acres of Land, etc., in Oconee County S.C., 334 F.2d 229, 231 (4 Cir. 1964), a case remarkably similar to the case at bar in that the owners there contested condemnation and endeavored to preserve their fee ownership in beach land which would be incidentally used for recreational purposes, the Fourth Circuit said:

"Ordinarily the Government may take not only the land that will be flooded but such additional land as in the discretion of the condemning authorities may be necessary or desirable to protect the lake or to permit the incidental public use."

Condemnation of the land involved in the instant case was undisputedly for a valid public use, since it was deemed necessary to the Yazoo River Basin flood control project and for other uses incident thereto. Public use being established, appellants cannot here question the character of the taking, for, barring a showing of arbitrary, capricious, or corrupt subversion of legally delegated authority, the decision as to amount and character is lodged exclusively with the Secretary. Berman, supra, 348 U.S. at 35-36, 75 S.Ct. 98, Agee, supra, 322 F.2d at 142. There are no allegations or even fantastic suggestions that these elements are present in this case, and, in fact, they are not. It would seem a fortiori that no bad faith could be attributed to the Secretary in the case at bar in his attempt to protect the wildlife and fisheries which would be harmed as a result of the flood control operation. Appellants' lengthy argument concerning the authority to take fee title is foreclosed by the court in Meyer, supra, 113 F.2d at 392:

"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. * * * Determination of the extent, amount or title of property to be taken, by an Administrative Department, is, in the absence of bad faith, final. * * * 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."
II.

Appellants herein zealously contend that the...

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9 cases
  • U.S. v. 1.04 Acres of Land, More or Less, Civil Action No. B-08-044.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 7, 2008
    ...codified separately as 40 U.S.C. § 258 and has now been superseded by Federal Rule of Civil Procedure 71.1. See West, Inc. v. United States, 374 F.2d 218, 223-24 (5th Cir.1967). The language of § 3113 is nearly identical to the original language of Section 1 of the Act of August 1, 1888, an......
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    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
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    ...taken lies within administrative determination subject only to the requirement that just compensation be paid"); West, Inc. v. United States, 374 F.2d 218, 223 (5th Cir.1967); Wilson v. United States, 350 F.2d 901, 906 (10th Cir. 1965) ("the nature or extent of the interest to be acquired i......
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    • United States
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    ...every court which has considered the issue. United States v. 2,606.84 Acres of Land, 432 F.2d 1286 (5th Cir.1970); West, Inc. v. United States, 374 F.2d 218 (5th Cir.1967); Wilson v. United States, 350 F.2d 901 (10th Cir.1965). The only exception to the general rule of no judicial interfere......
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    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • October 20, 2008
    ...of a project any more than it is the court's function to select the precise parcels to be condemned." West, Inc. v. United States, 374 F.2d 218, 222 (5th Cir.1967) (citing United States v. 6.74 Acres of Land, 148 F.2d 618 (5th Cir.1945)); see United States v. 2,606.84 Acres of Land in Tarra......
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1 books & journal articles
  • Reviving necessity in eminent domain.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 33 No. 1, January 2010
    • January 1, 2010
    ...necessity] is purely political, does not require a hearing, and is not the subject of judicial inquiry."); West, Inc. v. United States, 374 F.2d 218, 221 (5th Cir. 1967) ("[Necessity is a] legislative rather than judicial question[.]"); United States v. 170.88 Acres of Land, 106 F. Supp. 62......

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