West, Inc. v. United States, No. 22819.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTUTTLE, , THORNBERRY and GOLDBERG, Circuit
Citation374 F.2d 218
Decision Date10 March 1967
Docket NumberNo. 22819.
PartiesWEST, INC., and Mrs. Florence Wetherbee, Appellants, v. UNITED STATES of America, Appellee.

374 F.2d 218 (1967)

WEST, INC., and Mrs. Florence Wetherbee, Appellants,
v.
UNITED STATES of America, Appellee.

No. 22819.

United States Court of Appeals Fifth Circuit.

March 10, 1967.


374 F.2d 219
COPYRIGHT MATERIAL OMITTED
374 F.2d 220
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.

374 F.2d 221
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).

374 F.2d 222

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...

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9 practice notes
  • U.S. v. 1.04 Acres of Land, More or Less, Civil Action No. B-08-044.
    • United States
    • U.S. District Court — Southern District of Texas
    • March 7, 2008
    ...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, and clearly......
  • US v. 0.35 OF AN ACRE OF LAND, WESTCHESTER CTY., No. 86 Civ. 8891 (PKL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 17, 1988
    ...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 is not ......
  • United States v. 49.79 Acres of Land, Civ. A. No. 82-732.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • September 29, 1983
    ...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 The only exception to the general rule of no judicial interference occurs when: ......
  • U.S. v. 1.16 Acres of Land, More or Less, Civil Action No. 1:08-cv-169.
    • 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......
  • Request a trial to view additional results
9 cases
  • U.S. v. 1.04 Acres of Land, More or Less, Civil Action No. B-08-044.
    • United States
    • U.S. District Court — Southern District of Texas
    • March 7, 2008
    ...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, and clearly......
  • US v. 0.35 OF AN ACRE OF LAND, WESTCHESTER CTY., No. 86 Civ. 8891 (PKL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 17, 1988
    ...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 is not ......
  • United States v. 49.79 Acres of Land, Civ. A. No. 82-732.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • September 29, 1983
    ...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 The only exception to the general rule of no judicial interference occurs when: ......
  • U.S. v. 1.16 Acres of Land, More or Less, Civil Action No. 1:08-cv-169.
    • 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......
  • Request a trial to view additional results

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