The opinion of the court was delivered by: Juergens, Chief Judge.
The United States of America instituted this action for the
taking of property under the power of eminent domain and for the
ascertainment and awarding of just compensation.
Subsequent to filing the complaint, plaintiff moved for order
of delivery of possession. The Court signed its order for
delivery of possession on November 4, 1965. Notice of
condemnation was served upon the parties in interest, which
asserted that the land was being taken in accordance with the
provisions of Title 40 U.S.C.A. § 258a, Title 33 U.S.C.A. § 591,
Title 33 U.S.C.A. § 701, and other acts of Congress set forth in
Jean Wood and Kathleen Wood filed their motion praying that
plaintiff be required to deposit just compensation into the
registry of the Court as a condition precedent to the exercise of
the power of eminent domain and that the order of Court entered
on November 4, 1965 be stayed pending such deposit.
Emma Kathryn McDavid Karsell filed cross-petition, requesting
that plaintiff be required forthwith to deposit in the Court the
amount of estimated compensation due to her for certain
enumerated tracts owned by her and that the plaintiff be not
permitted to go on and have possession of the tracts until the
deposit was made.
On December 3, 1965, plaintiff offered to deposit funds and
pursuant to the offer the Court ordered deposited in the registry
of the Court the sum of $125,000.00 as security for just
Thereafter, defendants Jean Wood, Kathleen Wood, William
Gustin, County Treasurer and Ex-officio Tax Collector of Moultrie
County, Illinois, and State Bank of Arthur (hereinafter referred
to as defendants) filed their motion to withdraw the deposited
funds. The Federal Land Bank of St. Louis (hereinafter also
referred to as defendant) filed its motion, also requesting
disbursement of funds, asserting that it would accept the sum set
forth in the motion of the previously named defendants for
release of its mortgage on the tract in question.
In support of their motion defendants assert that they are
entitled to withdraw the deposit under the provisions of Rule
71A(j), Title 28 U.S.C.A.
In support of their position defendants cite United States v.
Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943), and
United States v. 15.3 Acres of Land, 158 F. Supp. 122 (U.S.D.C.Pa.
"The purpose of the statute is twofold. First, to
give the Government immediate possession of the
property and to relieve it of the burden of interest
accruing on the sum deposited from the date of taking
to the date of judgment in the eminent domain
proceeding. Secondly, to give the former owner, if
his title is clear, immediate cash compensation to
the extent of the Government's estimate of the value
of the property. The Act recognizes that there may be
an error in the estimate and appropriately provides
that, if the judgment ultimately awarded shall be in
excess of the amount deposited, the owner shall
recover the excess with interest."
United States v. 15.3 Acres of Land, 158 F. Supp. 122, discusses
the purpose of Section 258a, Title 40 U.S.C.A., as follows:
"* * * § 258a does not assume to erect a
complete condemnation procedure. It provides rather a
supplemental and optional course, (citing cases),
whereby the United States may at any time before
judgment file a declaration of taking, estimating the
amount of just compensation, accompanying it with a
deposit. The judgment in question means that which
finally determines the `just compensation' to be
awarded. (citing cases). The government is not
required to file a Decclaration of Taking. If it
elects to do so it must estimate the value of the
property taken and make such sum available as
compensation to the land owner. * * *"
Pursuant to its power of eminent domain, the United States may
take property in one of two ways. It may enter into possession of
property without authority of court order, or it can institute
condemnation proceedings under various acts of Congress which
provide authority for such takings. The Court is not here
concerned with the first method and it need not be further
discussed herein. Under the second procedure the government may
either employ statutes which require it to pay over the
judicially determined compensation before it can enter upon the
land or proceed under other statutes which enable it to take
immediate possession upon order of court before the amount of
just compensation has been determined. In both classes of taking,
however, title to the property passes to the government only when
the owner receives compensation, Albert Hanson Lumber Co. v.
United States, 261 U.S. 581, 43 S.Ct. 442, 67 L.Ed. 809, or when
compensation is deposited into court pursuant to the Taking Act
(Title 40 U.S.C.A. §§ 258a-258e), the passage of title does not
necessarily determine the date of taking. The usual rule is that
if the United States has entered into possession of the property
prior to the acquisition of title, it is ...