Higginson v. United States

384 F.2d 504

Opinions

PER CURIAM.

During and immediately after World War II the government established a United States Army Garrison at Morgan-field, Kentucky, known as Camp Breckenridge. For this purpose it assembled some 36-thousand acres of land through eminent domain proceedings in the United States District Court for the Western District of Kentucky, Owensboro Division. In the condemnation actions Declarations of Taking were filed by Henry L. Stinson, Secretary of War of the United States, in which it was stated that “the said lands are necessary adequately to provide for the establishment of a triangular division camp,” and that, “the estate taken for said public uses is the full fee simple title thereto, subject, however, to existing easement for public utilities, for railroads and pipelines.”

Following World War II, Camp Breckenridge was placed in inactive status and has so remained since 1953. Plaintiff-appellant, on behalf of himself and all other former owners, or heirs, successors or assigns thereof, of the land involved brought this action to require a reconveyance of the property and to recover damages.

Following a period of considerable procedural history, the District Court ultimately entered an order sustaining a motion by the defendant-appellee (hereinafter usually referred to as the “government”) to dismiss the action, and this appeal resulted. In addition to those hereinabove set forth, the following facts (which must for present purposes be taken as true) are alleged in the third amended complaint.

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Plaintiff thus establishes that the 36,-000 acres of land which he and those on whose behalf the action was instituted formerly owned was acquired by the government in the eminent domain proceedings for approximately $3,600,000. After the cessation of use of Camp Breckenridge for military purposes the government offered the mineral rights of the subject property for sale. Offers to purchase those rights were received in an amount exceeding $32,000,000, from which “it is evident that the United States by the selling of the mineral rights in said property will realize a profit of approximately Thirty Million Dollars ($30,000,000.00).” That statement appears in the Amended Complaint, the prayer of which seeks, inter alia, liquidated damages in the amount of $64,-000,000. It is the plaintiff-appellant’s contention that at the time of their conveyance of their properties, and as a part of the consideration therefor, the then owners were informed by government agents and employees that they would have the right and opportunity to repurchase their lands, since the government was acquiring the property solely for the purpose of constructing and maintaining “a temporary camp for military purposes during the period of national emergency.” The government having occupied the property only for the purpose of such a temporary camp, plaintiff contends generally that acquisition of rights greater than were necessary for that limited purpose constituted a taking of the property without due process of law and without payment of just compensation, in violation of the Fifth and Fourteenth Amendments to the Constitution. He complains that they were denied the right to prove the value of the mineral rights at the time of the condemnation proceedings, and specifically claims that the government’s acquirement of those rights constituted a taking without payment.

The first count of the complaint in its final form prays that the government be directed to sell the subject property to plaintiffs in accordance with the terms of section 23(d) of the Surplus Property Act of 1944 (58 Stat. 777). However, that statute was repealed by section 502 of the Federal Property and Administrative Services Act of 1949 (63 Stat. 399), 13 years before Camp Breckenridge was declared surplus and 16 years prior to commencement of this action. Obviously no right could accrue to plaintiff thereunder. The prayer of the second count is for judgment under 28 U.S.C. § 1346(a) (2) (1964) in the sum of $9,300 as “reasonable rental” for the property for the period of occupancy by the government for the period subsequent to the cessation of its use thereof for the purpose of the taking, i. e., military purposes.

Appellant asserts that Kentucky law should govern the title acquired by the United States government and that under Kentucky law, since the government did not need fee simple title, it should be held to have acquired this site subject to reversionary rights in the former owners when it became surplus.

The first problem with appellant’s argument is that we believe that the nature of title taken by federal condemnation under a federal condemnation statute is subject to determination by federal law unless Congress states otherwise. United States v. 93,970 Acres, 360 U.S. 328, 332-333 & n. 7, 79 S.Ct. 1193, 3 L.Ed.2d 1275 (1959); United States v. Miller, 317 U.S. 369, 379-380, 63 S.Ct. 276, 87 L.Ed. 336 (1943); United States v. Certain Interests, 271 F.2d 379, 384 (7th Cir. 1959).

The government’s title to the land acquired by negotiated purchases vested some 20-30 years ago. This title cannot now be disputed under any accepted property theory. See Beistline v. City of San Diego, 256 F.2d 421 (9th Cir.), cert. denied, 358 U.S. 865, 79 S.Ct. 96, 3 L.Ed.2d 98 (1958).

The government obtained the bulk of the land comprising Camp Breckenridge by condemnation under the authority of 50 U.S.C. § 171. As part of the condemnation proceedings Declarations of Taking were filed pursuant to 40 U.S.C. § 258a. This statute provides in part:

“Upon the filing said declaration of taking and of the deposit in the court, to the use of the persons entitled thereto, of the amount of the estimated com pensation stated in said declaration, title to the said lands in fee simple absolute, or such less estate or interest therein as is specified in said declaration, shall vest in the United States of America, and said lands shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation for the same shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding and established by judgment there- ”

In light of the language of § 258a, if anything less than a fee simple absolute is taken, the lesser title or exceptions to fee title must be designated in the declaration. Burkhart v. United States, 227 F.2d 659, 661-662 & n. 2 (9th Cir. 1955). In the instant case the declarations provided that “The estate taken for said public uses is in full fee simple title, subject however to existing easements for public utilities, for public railroads, and for pipelines.” Thus, if valid title passed to the United States, it received full fee title except for the specified easements.

Title to land obtained by condemnation vests upon the filing of the declaration of taking. 40 U.S.C. § 258a, supra. This title, however, is subject to a right of the former land owner to challenge the taking as not being for the prescribed statutory purpose. Catlin v. United States, 324 U.S. 229, 240-243, 65 S.Ct. 631, 89 L.Ed. 911 (1944). This problem is not in issue in the instant case because Camp Breckenridge was erected in accordance with the prescribed military purpose. Consequently, valid title passed to the United States when the declaration of taking was filed.

The subsequent abandonment of Camp Breckenridge did not affect the validity of the government’s title to the land acquired by condemnation. A subsequent abandonment of the original purpose for which land was acquired does not affect the validity of the condemnation. The validity of title is determined by the conditions existing at the time of the taking. Also, title to property which is vested in the United States government cannot be returned to the original land owners without Congressional authorization. United States v. Three Parcels of Land, 224 F.Supp. 873 (D.Alaska 1963); United States v. 10.47 Acres of Land, 218 F.Supp. 730 (D.N.H.1962).

If we were to assume that Kentucky law applied in the instant ease, it would still appear that fee simple title was obtained by the United States government. The circumstances surrounding the condemnation transactions indicated an intention and purpose to transfer a fee simple title, subject only to certain specified easements. First, the declaration of taking clearly provided for fee simple title. Second, many years passed after Camp Breckenridge was abandoned as a military base without a claim against the government’s title. Such claims were initiated only after oil was found on the property. Finally, under Kentucky law, the particular statute authorizing the condemnation is important in determining the title acquired. Craddock v. U. of Louisville, Ky., 303 S.W.2d 548 (1957); Kentucky Elec. v. Wells, 256 Ky. 203, 75 S.W.2d 1088 (1934); Binder v. County Board, 224 Ky. 143, 5 S.W.2d 903 (1928). The applicable federal statutes authorized a fee simple taking in the instant case. 50 U.S.C. § 171 provides:

“The Secretary of the Army may cause proceedings to be instituted in the name of the United States, in any court having jurisdiction of such proceedings for the acquirement by condemnation of any land, temporary use thereof or other interest therein, or right pertaining thereto, needed for the site, location, construction, or prosecution of works for fortifications, coast defenses, military training camps, and for the construction and operation of plants for the production of nitrate and other compounds and the manufacture of explosives and other munitions of war and for the development and transmission of power for the operations of such plants; such proceedings to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the States wherein the proceedings may be instituted: Provided, That when the owner of such land, interest, or rights pertaining thereto shall fix a price for the same, which in the opinion of the Secretary of the Army shall be reasonable, he may purchase or enter into a contract for the use of the same at such price without further delay. * * *”

This language is certainly broad enough to permit a taking in fee simple. Furthermore, § 258a of 40 U.S.C., supra, an ancillary statute which was used to implement § 171, specifically provides for a taking in fee simple. Our conclusion that the government acquired the fee makes it unnecessary, of course, to consider plaintiff’s claim for “reasonable rental” for occupancy subsequent to the use for military purposes.

We will not deal at length with appellee’s added contention that the claim of appeal in this case was defective. The mistake was such as could have been made by a clerk or stenographer. Appellee concedes that the error affected no substantial rights. It misled no one. We believe that good authority supports a liberal interpretation of Federal Rule 73(b). Fed.R.Civ.P. 61; see also 28 U.S.C. § 2111 (1964); Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Moore, Federal Practice ¶ 73.14 at 3,216-22 (1966).

Affirmed.

A determination of the factual allegations is rendered difficult by reason of the fact that the Third Amended Complaint is not an entire document within its four corners. It contains a statement adopting “all allegations contained in the original and prior amended complaints, to the same extent as set forth herein, which are not inconsistent with the allegations contained herein, * * * ” Thus in order to determine what facts were before the District Court it is necessary to not only study the complaint in its four forms but also to determine which allegations are voided by subsequent assertions. Further complications are encountered by reason of the additional incorporation by reference of extensive Exhibits to the Complaint, Second Amended Complaint and Third Amended Complaint.