Appeal from the District Court of the United States for the Southern District of Illinois, Southern Division; J. Leroy Adair, Judge.
Before SPARKS, and TREANOR, Circuit Judges, and LINDLEY, District Judge.
Defendants appeal from a judgment in their favor for $66,750, entered in a proceeding to condemn certain of their lands for use in connection with the dam on the Mississippi River known as Lock and Dam No. 26. Adequate disposition of the several numerous errors assigned necessitates a somewhat extended comment upon the pertinent facts. Consequently, we shall avoid repetition necessarily entailed by a separate statement of facts.
Upon both the hearing upon their motion to dismiss and the trial, defendants questioned the authority of the Government to condemn the fee simple title to the lands involved.The petition of the Government for condemnation was filed pursuant to the Act of August 30, 1935, 49 Stat. 1028, 1034, 1035, specifically providing for the improvement, and the Rivers and Harbors Act of April 24, 1888, c. 194, 25 Stat. 94, 33 U.S.C. § 591, 33 U.S.C.A. § 591, which empowers the Secretary of War to institute proceedings in the name of the United States for the "acquirement by condemnation of any land, right of way, or material needed to enable him to maintain, operate or prosecute works for the improvement of rivers and harbors for which provision has been made by law." The power thus granted is unlimited and we cannot read into it limitations not clearly indicated by Congress. The fact that, in discussing the legislation providing for improvements including the dam here concerned, members of Congress and other Government officials referred to the cost of "flowage," "flowage damages" and "flowage easements" does not persuade us that Congress by the later act intended to limit in any manner the power previously granted to the Secretary to acquire the fee simple title for any authorized purpose when deemed necessary. If Congress had intended in the original act to curtail the wide powers of the Secretary therein granted, it would necessarily have employed phraseology other than that adopted, - "any land, right of way * * * needed to enable him to maintain, operate or prosecute works * * * for which provision has been made by law." The act clearly conferred upon the Secretary of War authority to condemn any land needed for projects authorized by Congress.
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. Rindge Co. v. County of Los Angeles, 262 U.S. 700, 43 S. Ct. 689, 67 L. Ed. 1186; Joslin Manufacturing Co. v. City of Providence, 262 U.S. 668, 43 S. Ct. 684, 67 L. Ed. 1167; Sears v. City of Akron, 246 U.S. 242, 38 S. Ct. 245, 62 L. Ed. 688; Bragg v. Weaver, 251 U.S. 57, 40 S. Ct. 62, 64 L. Ed. 135. Determination of the extent, amount or title of property to be taken, by an Administrative Department, is, in the absence of bad faith, final. Shoemaker v. United States, 147 U.S. 282, 13 S. Ct. 361, 37 L. Ed. 170; Sears v. City of Akron, 246 U.S. 242, 38 S. Ct. 245, 62 L. Ed. 688; United States v. Gettysburg Electric Railway Co., 160 U.S. 668, 16 S. Ct. 427, 40 L. Ed. 576; Barnidge v. United States, 8 Cir., 101 F.2d 295; United States v. Threlkeld, 10 Cir., 72 F.2d 464; certiorari denied, 293 U.S. 620, 55 S. Ct. 215, 79 L. Ed. 708; 2 Cooley, Constitutional Limitations (8th Ed. 1927), pp. 1145-1147; 1 Lewis, Eminent Domain (3d Ed. 1909), sec. 370, p. 677. 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.
Defendants' position further, however, is that the Secretary's action was not characterized by good faith but amounted to an abuse of his discretion, for the reason that a title in fee simple was not in fact necessary for the accomplishment of the purposes of the project. To substantiate this proposition they offered in evidence a letter from the Chief of Engineers of the War Department to Senator Lewis in which, in discussing the project, the writer indicated that in the pools of the lower reaches of the improvement, some of the lands to be acquired would no doubt be desired for development of parks and recreational facilities and stated that most of the land would be permanently under water, and that, in the interest of the users of the resulting pools for navigation, recreation and police of their shores, it was considered desirable for the Federal Government to obtain more than a flowage easement and that, therefore, a fee simple title should be acquired.It should be observed first that the letter was incompetent as evidence, for the reason that it was not written by the official who had the burden of determining the question of necessity but by a subordinate agent with whom the Secretary may or may not have agreed. The opinions of such third persons are of no avail to impeach the integrity of the responsible official. Moreover, nothing in this document impeaches the original purpose, namely, betterment of navigation and flood control. Old Dominion Land Co. v. United States, 4 Cir., 296 F. 20, affirmed 269 U.S. 55, 46 S. Ct. 39, 70 L. Ed. 162. The evidence in the record, including that tendered by defendants, tends to disclose only a difference in judgment as to the necessity of a fee simple title, - nothing in the way of abuse of discretion. Furthermore in their cross-complaint defendants averred that the possession of the Government "would completely destroy" the lands "by the operation of the dam." If there was a complete taking or destruction of defendants' property, it would seem obvious that a fee simple title was requisite.
Defendants insist that by the order for immediate possession, their constitutional rights were violated. Congress by the Act of May 15, 1936, 49 Stat. 1278, 1306, appropriated some $150,000,000 to be expended under the direction of the Secretary of War to develop such previously authorized projects as might be desirable in the interests of commerce and navigation. When the petition was filed and presented to the court, it was accompanied by a letter of the Secretary to the effect that funds were then available for paying such awards as should be allowed in condemnation proceedings for these purposes. The court evidently relied upon this in determining the correctness of the Secretary's finding and found that the preliminaries required by the Act of July 18, 1918, c. 155, sec. 5, 40 Stat. 904, 911, 33 U.S.C. § 594, 33 U.S.C.A. § 594, had been complied with. This was the correct action. In re Military Training Camp, D.C., 260 F. 986. It was not necessary that funds for satisfaction of the awards be deposited in advance of the taking. The statute does not so provide but rather authorizes immediate possession when "certain and adequate provision shall have been made for the payment of just compensation to the party or parties entitled thereto, either by previous appropriation by the United States or by the deposit of moneys or other form of security in such amount and form as shall be approved by the court in which such proceedings shall be instituted." 33 U.S.C. sec. 594, 33 U.S.C.A. § 594. The requirement of the Fifth Amendment is that just compensation shall be paid for property taken but that does not mean that the funds must be deposited prior to taking. Appropriation by Congress furnishes adequate security. Commercial Station Post Office v. United States, 8 Cir., 48 F.2d 183. Where Congress has authorized an appropriation for a sum of money, that appropriation is back of the obligation to pay for whatever is taken in pursuance of such authorized purpose.Hurley v. Kincaid, 285 U.S. 95, 104, 52 S. Ct. 267, 76 L. Ed. 637; Crozier v. Fried. Krupp Aktiengesellschaft, 224 U.S. 290, 306, 32 S. Ct. 488, 56 L. Ed. 771; Joslin v. City of Providence, 262 U.S. 668, 678, 43 S. Ct. 684, 67 L. Ed. 1167; Hays v. Port of Seattle, 251 U.S. 233, 238, 40 S. Ct. 125, 64 L. Ed. 243; Bragg v. Weaver, 251 U.S. 57, 62, 40 S. Ct. 62, 64 L. Ed. 135; Williams v. Parker, 188 U.S. 491, 502, 503, 23 S. Ct. 440, 47 L. Ed. 559; Adirondack Railway Co. v. State of New York, 176 U.S. 335, 349, 350, 20 S. Ct. 460, 44 L. Ed. 492; Sweet v. Rechel, 159 U.S. 380, 404, 16 S. Ct. 43, 40 L. Ed. 188; Cherokee Nation v. Southern Kansas Railway Co., 135 U.S. 641, 10 S. Ct. 965, 34 L. Ed. 295; Backus v. Fort Street Union Depot Co., 169 U.S. 557, 568, 569, 18 S.Ct 445, 42 L. Ed. 853.Furthermore, where taking results from authorized acts of agents of the United States, it is to be considered as an exercise of eminent domain by the Government for which just compensation can be recovered under the Tucker Act, 28 U.S.C.A. § 41 (20). United States v. Lynah, 188 U.S. 445, 465, 23 S. Ct. 349, 47 L. Ed. 539; Hurley v. Kincaid, 285 U.S. 95, 52 S.CT. 267, 76 L. Ed. 637; Crozier v. Fried. Krupp Aktiengesellschaft, 224 U.S. 290, 32 S. Ct. 488, 56 L. Ed. 771; Tilden v. United States, D.C., 10 F.Supp. 377.
Defendants insist further that when the court entered the order of immediate possession, it thereby gave the Government the right to flood the land and that thereby, they were deprived of their property in violation of their constitutional right, under the Fifth and Seventh Amendments, to a jury trial in assessing damages.The flooding, they say, took from them the right to have a jury view the land taken.The premise of a right to a jury trial, however, is fallacious. When we adopted the Seventh Amendment, guaranteeing the right of trial by jury, it had long been the law in England as well as in America that determination of the amount of an award to be made in an eminent domain proceeding might be referred to a nonjudicial tribunal. Crane v. Hahlo, 258 U.S. 142, 42 S. Ct. 214, 66 L. Ed. 514.A jury trial as at common law preserved by the Constitution is not guaranteed in such proceedings. United States v. Kenesaw Mountain Battlefield Ass'n, 5 Cir., 99 F.2d 830, certiorari denied 306 U.S. 646, 59 S. Ct. 587, 83 L. Ed. 1045; United States, v. Johnes, 109 U.S. 513, 519, 3 S. Ct. 346, 27 L. Ed. 1015; Shoemaker v. United States, 147 U.S. 282, 13 S. Ct. 361, 37 L. Ed. 170; Bauman v. Ross, 167 U.S. 548, 593, 17 S. Ct. 966, 42 L. Ed. 270; United States v. Hess, 8 Cir., 71 F.2d 78, 80; Great Falls Mfg. Co. v. Garland, C.C.D. Md., 25 F. 521, affirmed 124 U.S. 581, 8 S. Ct. 631, 31 L. Ed. 527; Federal Condemnation Proceedings and the Seventh Amendment (1927), 41 Harv.L.Rev. 29. And for the same reason, the Fifth Amendment does not guarantee a jury trial in such cases. Dohany v. Rogers, 281 U.S. 362, 369, 50 S. Ct. 299, 74 L. Ed. 904, 68 A.L.R. 434; Crane v. Hahlo, 258 U.S. 142, 147, 42 S. Ct. 214, 66 L. Ed. 514; Bauman v. Ross, 167 U.S. 548, 593, 17 S. Ct. 966, 42 L. Ed. 270; United States v. Jones, 109 U.S. 513, 519, 3 S. Ct. 346, 27 L. Ed. 1015; Walker v. Sauvinet, 92 U.S. 90, 92, 23 L. Ed. 678; United States v. Hess, 8 Cir., 71 F.2d 78; Great Falls Mfg. Co. v. Garland, C.C.D. Md., 25 F. 521, affirmed 124 U.S. 581, 8 S. Ct. 631, 31 L. Ed. 527. Furthermore, under the law of Illinois, a view of the premises by the jury is not a necessary element of a trial by jury in a condemnation cause but its allowance lies within the discretion of the court. Humphreys & Co. v. City of Bloomington, 246 Ill.App. 334, 341; Rich v. City of Chicago, 187 Ill. 396, 398, 58 N.E. 306; Vane v. City of Evanston, 150 Ill. 616, 622, 37 N.E. 901; Louisville & N.R. Co. v. Western Union Telegraph Co., 6 Cir., 249 F. 385, certiorari denied 248 U.S. 576, 39 S. Ct. 18, 63 L. Ed. 428, 429; Murhard Estate Co. v. Portland & Seattle R. Co., 9 Cir., 163 F. 194; Forbes v. United States, 5 Cir., 268 F. 273.
Defendants complain that, although the petition recited that there had been an unsuccessful attempt by the Government to acquire the property by purchase, such was not a fact, and, consequently, that event being a condition precedent to acquisition of title by condemnation, the Government's proof was defective and its right to succeed, defeated. But the record is silent as to evidence of the title of defendants. Consequently, we must rely upon the court's order finding that title in at least one tract was based on adverse possession, thus creating a question as to whether defendants had and could convey good marketable title.
Irrespective of this, however, it was unnecessary for the Government to attempt to purchase the land. The Illinois Act imposes as a condition precedent to the creation of the right of condemnation, an attempt to purchase, but this is a matter of substantive law and goes to the existence of the cause of action; it is not a procedural rule by which under the Conformity Act, 28 U.S.C.A. § 724, the District Court was bound. United States v. Eighty Acres of Land, D.C., 26 F.Supp. 315; In re Secretary of Treasury of United States, C.C., 45 F. 396, 399, 11 L.R.A. 275; United States v. Crary, D.C., 1 F.Supp. 406; In re Condemnations for Improvement of Rouge River, D.C., 266 F. 105; Kanakanui v. United States, 9 Cir., 244 F. 923, 925; United States, v. Oregon Ry. & Nav. Co., C.C., 16 F. 524, 528. When as here, the United States is the condemning party, its power to take the property is not limited by any condition precedent such as the duty to endeavor to purchase the property. In re Condemnations for Improvement of Rouge River, D.C., 266 F. 105. The averment of inability to agree with defendants contained in the petition, being mere surplusage, was properly disregarded by the District Court.
Defendants insist that they should have been permitted to prosecute and succeed upon their answer, which included a prayer for affirmative relief in the form of an injunction to restrain government officials form taking possession of the land. The procedure governing condemnation suits in Illinois, by which under the Conformity Act the District Court was bound to proceed, does not contemplate an answer or a cross-complaint except to the extent of alleging damages to land not taken. Smith v. Chicago & W.I.R. Co., 105 Ill. 511; Johnson v. Freeport & M.R. Ry. Co., 111 Ill. 413; Chicago R.I. & P. Ry. Co. v. City of Chicago, 143 Ill. 641, 32 N.E. 178. The courts have reached this conclusion upon the reasoning that since condemnation is entirely statutory and since the statute makes no provision for the filing of an answer, the legislature contemplated the filing of none and none is permissible. Consequently defendants could not proceed by cross complaint, in an unauthorized answer, for injunction against government officials who were not parties to the suit. Scott v. Donald, 165 U.S. 107, 117, 17 S. Ct. 262, 41 L. Ed. 648; Chicago, M. St. P. & P.R. Co. v. Adams County, 9 Cir., 72 F.2d 816, 822. Nor, if such officials be considered representative of the government, could defendants maintain the cross complaint as a suit against the United States without the latter's consent. Illinois Cent. R. Co. v. Public Utilities Comm., 245 U.S. 493, 504, 38 S. Ct. 170, 62 L. Ed. 425; Hill v. United States, 149 U.S. 593, 13 S. Ct. 1011, 37 L. Ed. 862; Oregon v. Hitchcock, 202 U.S. 60, 26 S. Ct. 568, 50 L. Ed. 935. Their remedy lies in the Court of Claims. Judicial Code, sec. 267, 36 Stat. 1163, 28 U.S.C. § 384, 28 U.S.C.A. § 384; Hurley v. Kincaid, 285 U.S. 95, 52 S. Ct. 267, 76 L. Ed. 637.Because the injunction could not have been allowed, it was unnecessary to convene a court of three judges. Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 292 U.S. 386, at page 391, 54 S. Ct. 732, 78 L. Ed. 1318.
Defendants urge that the court improperly excuded evidence offered by them when the motion to dismiss was heard. We have discussed the rulings attacked in so far as they relate to alleged attempts to purchase, to the necessity of a fee simple title and to evidence of flooding the land, said to destroy a view by the jury. The suggestion that the Government was taking and damaging more land than it had described in the condemnation proceeding, was subject matter to be presented, not on motion to dismiss, but upon trial by jury. Furthermore motions to dismiss, under the Illinois Practice Act, admit the truth of all facts well pleaded. Scully v. Hallihan, 365 Ill. 185, 6 N.E.2d 176. Consequently the hearing of evidence was beyond its proper scope.
It may be that the District Court treated the motion to dismiss as a motion to set aside the order of immediate possession in which case the pertinent facts might be material. But, treated as such, the propriety of the order and of the denial of the prayer for injunction have become moot questions. The dam has been completed, the timber has been removed, the lands have been flooded and any damage that might have been avoided at that time has now been consummated. The parties' remedy must be other than by suit for injunction. In cases such as this, if the acts complained of had been actionable, it would have been necessary to retain jurisdiction to assess damages, but here the damages have been assessed and all questions raised as to the interlocutory orders are moot. Wingert v. First National Bank, 223 U.S. 670, 32 S. Ct. 391, 56 L. Ed. ...