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January 4, 1966


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 the notice.

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 compensation.

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. 1957).

United States v. Miller (supra) sets forth the purpose of Section 258a, Title 40 U.S.C.A., and describes that purpose as follows:

    "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. ยงยง 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 ...

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