Before SWYGERT, Chief Judge, FAIRCHILD, Circuit Judge, and CAMPBELL, Senior District Judge.*fn1
This appeal concerns the extent a landowner may question the taking of his property by the federal government in the exercise of its power of eminent domain and when that question may be raised, what procedural rights are afforded the landowner, and finally, the appealability of an order denying a challenge of the United States' right to take when that order precedes a determination of just compensation.
On June 30, 1971 the United States filed a complaint to acquire certain real estate owned by George Cooley and his wife, Elizabeth. The complaint alleged that the projected acquistion was requested by the Secretary of the Army, in conformity with the Acts of Congress, 46 Stat. 1421, 40 U.S.C. § 258a, being the Declaration of Taking Act; and under authority of 25 Stat. 94, 33 U.S.C. § 591, River and Harbor Improvement Act and 39 Stat. 950, 33 U.S.C. § 701, which authorize the acquisition of land for flood control; Public Law 75-761 which authorizes Carlyle Reservoir Project; and Public Law 91-439 which appropriated funds for such purposes. The complaint further alleged that the public uses for which the land is to be taken are that it is necessary to adequately provide for flood control downstream of the Carlyle Reservoir Dam, for reduction of flood crests in the lower and middle Mississippi River, and for other uses incidental thereto.
The land in question is a 58.16 acre tract (Tract 512-3) located in Clinton County, Illinois. It is farmland on which the Cooleys' home and miscellaneous farm buildings are located. The land has a frontage on the Carlyle Reservoir, which was constructed during the years 1964 through 1966 by damming the Kaskaskia River. Prior to the construction the Cooleys had sold to the United States certain lands adjacent to Tract 512-3 and also had granted a floodstage easement to the government on the tract.
On the same day the complaint was filed, the Secretary of the Army filed in the district court a declaration of taking pursuant to 40 U.S.C. § 258a, and the court thereupon ordered the landowners to surrender possession of the lands to the United States on or before January 1, 1972. Both a copy of the order and a notice of condemnation*fn2 were thereafter served upon the Cooleys. A week later the landowners filed an answer to the complaint, specifically challenging the Secretary's allegation that the land was being taken for a public use.*fn3 Subsequently, on October 12, 1971, the Cooleys filed a motion to vacate or modify the order for delivery of possession, asserting that they had a valid defense to the condemnation proceeding in that the Secretary's action was "arbitrary, discriminatory, capricious, vindicative and in bad faith." An affidavit, signed by George F. Cooley, was filed in support of the motion. The affiant asserted that after the Carlyle Reservoir Dam had been completed the filled reservoir began causing erosion of the Cooley property because of "wave action" which was due to the failure to maintain proper water levels; that the Cooleys had complained to the Army Corps of Engineers frequently during the years 1968 through 1970, but that no action had been taken to repair the damage or to prevent further erosion; that the Corps finally responded to the complaints in January 1971 by advising the Cooleys that the cost to protect their homestead exceeded its fair market value and therefore the Corps had elected to condemn the property. The affiant further alleged that the Corps intended to condemn only his land even though other tracts adjacent or near his property had similar elevations along the shoreline.
The Government answered the motion, denying that it acted in bad faith or arbitrarily and capriciously. Thereafter, the district court, without taking evidence or conducting a hearing denied the motion to vacate or modify the possession decree. The judge's memorandum accompanying the order stated:
The Court has considered the entire matter and finds that the United States v. 80.5 Acres of Land, etc., Co. of Shasta, Cal., 448 F.2d 980 (9th Cir., 1971), is controlling here. The Court finds that defendants' motion to amend this Court's prior order is without merit and will, therefore, be and the same is hereby denied.
This appeal followed, and the possession order was stayed during the pendency of the appeal.
The order from which this appeal is taken is unclear. By referring to United States v. 80.5 Acres of Land, etc., 448 F.2d 980 (9th Cir. 1971), the district judge apparently took the position that the election of the Corps of Engineers to condemn the Cooleys' land was not judicially reviewable. The judge went on to say, however, that the motion to vacate the order for possession was "without merit," which might indicate that he found against the Cooleys on their claim of bad faith, arbitrariness, and capriciousness on the part of the Corps of Engineers; on the other hand, this could mean that he found the motion had no merit because it did not present a justiciable issue.
With respect to the extent of judicial review over the right of eminent domain, courts have a fundamental but narrow function. The Supreme Court in Shoemaker v. United States, 147 U.S. 282, 298, 13 S. Ct. 361, 37 L. Ed. 170 (1893), delineated that function thus:
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 ...