United States v. Certain Parcels of Land in the County of Fairfax
Opinion of the Court
delivered the opinion of the Court.
This nine-year-old proceeding is for the condemnation of certain easements in land and title to sewer mains which together comprise the sewerage system of Belle Haven, a residential subdivision in Fairfax County, Virginia. It was brought under the authority of Title II, § 202 of the Act of June 28, 1941, 55 Stat. 361,
During World War II, defense housing needs in the Washington area led the government to construct a large sewer project to serve defense housing properties in Fair-
The District Court dismissed the petition on the ground that the Lanham Act, as amended, required the consent of the intervenors as well as the realty corporation, that the corporation had only conditionally consented to the taking and that the householders had not consented at all. While the Court of Appeals approved the trial court’s reading of the statutory consent requirement, it declined to base its affirmance on that ground because, “It is perfectly clear . . . that the power of condemnation given by the Lanham Act extends only to lands or interests in lands; . . . there is nothing in the act which authorizes the condemnation of a public works system such as this.” 196 F. 2d 657, 662, relying on Puerto Rico R. Light & Power Co. v. United States, 131 F. 2d 491.
The original Lanham Act of October 14,. 1940, 54 Stat. 1125, was designed to provide relief for defense areas found by the President to be suffering from an existing or impending housing shortage. In such cases, the Federal Works Administrator was empowered to acquire “improved or unimproved lands or interests in lands” for construction sites by purchase, donation, exchange, lease or condemnation. The quoted language describing the kind of property which the Administrator could condemn was carried over into Title II of the Act, added in 1941, which extended the statute to public works shortages in defense areas. “Public work,” as defined, included sewers and sewage facilities. § 201. While the general lan
In this connection, we do not believe that the consent requirement bars acquisitions by condemnation. This interpretation would strip it of significance since the other means of acquiring property described in the statute necessarily rest on consensual transactions. Although condemnation is sometimes regarded as a taking without the owner’s consent, 1 Lewis, Eminent Domain (3d ed.), § 1, it is not anomalous to provide for such consent which can, in effect, represent an election to have value determined by a court rather than by the parties. In addition, “friendly” condemnation proceedings are often used to obtain clear title where price is already settled. Cf. Danforth v. United States, 308 U. S. 271 (1939). Thus construed, all of the statutory terms are given effect.
Here, the consent of Belle Haven Realty Corporation was implicit in its promise to accept-nominal damages. That consent cannot be characterized as conditional. Indeed, the corporation’s answer, filed six years later, recognized this; rather than resisting the taking, it merely asserted a claim for more than nominal compensation.
Reversed.
“Sec. 202. Whenever the President finds that in any area or locality an acute shortage of public works or equipment for public works necessary to the health, safety, or welfare of persons engaged in national-defense activities exists or impends which would impede national-defense activities, and that such public works or equipment cannot otherwise be provided when needed, or could not be provided without the imposition of an increased excessive tax burden or an unusual or excessive increase in the debt limit of the taxing or borrowing authority in which such shortage exists, the Federal Works Administrator is authorized, with the approval of the President, in order to relieve such shortage—
“(a) To acquire, . . . improved or unimproved lands or interests in lands by purchase, donation, exchange, lease ... or condemnation ... for such public works.”
“. . . none of the funds authorized herein shall be used to acquire public works already operated by public or private agencies, except where funds are allotted for substantial additions or improvements to such public works and with the consent of the owners thereof . . . .”
Since the district judge deemed himself unable to order the government to restore the Belle Haven system to its original condition, the householders were remitted by dismissal of the condemnation petition to a separate action for any compensable damage they suffered because of the taking. Under this ruling, the property taken would remain part of the integrated system whether title is in the government or the realty corporation. In each case, the rights of the householders, if any, to an award remain to be determined. One effect of upholding the condemnation is to have that question tried on remand in this proceeding.
Dissenting Opinion
with whom Mr. Justice Reed joins, dissenting.
Respondent-intervenors, the Belle Haven property owners, have paid for the property under condemnation. They are held to be “owners, pro tanto,” of the sewerage system under Virginia law,
One basic error underlies the decision — the assumption that Congress intended to facilitate national acquisition of going private utilities by the amended provisions of the Lanham Act.
The purpose of the original Lanham Act of 1940, 54 Stat. 1125, 42 U. S. C. §§ 1521-1524, was to relieve housing shortages in defense areas. The 1941 Amendment added Title II to meet public utility shortages in the defense housing areas. Eminent domain powers were authorized for the accomplishment of that purpose, but only as an integrated part of a careful statutory scheme. Section 202 (a) of Title II authorized acquisition of “. . . improved or unimproved lands or interests in lands by purchase, donation, exchange, lease ... or condemnation ... for such public works.” And Subsection (b) authorized the Federal Works Administrator . . to plan, design, construct, ... or lease public works . . . on lands or interests in lands acquired under the provisions of subsection (a) . . . .” Subsection (c) authorized the Administrator “To make loans or grants, or both, to public and private agencies for public works and equipment therefor . . . .”
Simply stated, Title II authorized the Government to meet the public utilities shortage by giving aid to going
The administrators of the law understood the statutory scheme to be as outlined above, as evidenced by their communications to Congress in pressing for enactment of the Amendment
In 1942, the Federal Works Agency attempted to condemn an entire electric system in Puerto Rico under the
“none of the funds authorized herein shall be used to acquire public works already operated by public or private agencies.” 89 Cong. Rec. 7286.
Senator Taft explained this amendment by reference to the Puerto Rican power case, concluding as follows:
“. . . certainly there was nothing in the Lanham Act which authorized any such proceeding. It was intended to provide new facilities, it was not intended to provide for taking over old facilities. I think it is perfectly clear that no such power should he included in the act.” (Emphasis supplied.) Ibid.
Senator Maloney, who was in charge of the pending bill and had been in charge of the Lanham Act, concurred in Senator Taft’s interpretation of the Lanham Act:
“Mr. President, I can see no objection to the amendments offered by the Senator from Ohio. I agree with him that Lanham Act funds, at least in my opinion — and I was one of those who helped to write the act — were not intended to be used for such a purpose as the acquisition of a public utility in Puerto Rico. So I have no objection to the language, and as a matter of fact I share the feeling of the Senator from Ohio.” Id., at 7287.
It was not until the following day that the excepting clause was added to the Amendment. It was introduced and explained by Senator Taft. The Public Works Agency had called to the Senator’s attention a case where the Navy needed to expand a railroad by a project which would require expenditure of about double the present value of the railroad. The Agency asked that in such a case they be authorized to take over the existing utility. Senator Taft said that “Even in such cases I do not think the authority should be given except with the consent of those who own the existing public works.” 89 Cong. Rec. 7314. Thus the 1943 Amendment came into its present form.
This legislative background shows that the excepting clause in the 1943 Amendment constitutes the entire authority given to acquire going utilities. That authority should be strictly construed in keeping with the spirit of guarded caution under which it was granted. Therefore, I would construe the class of “owners,” whose consent must be had, to be at least as broad as the normal usage of that term in the eminent domain context.
The persuasion of common sense is to interpret the word “owners” as the equivalent of persons having a compensable interest under the Fifth Amendment, simply because when Congress speaks of owners in the eminent domain context, its most obvious source of reference is the Fifth Amendment. That is not to say that some other meaning might not be given by express definition, or by implication, where clearly necessary to carry out some overriding policy of the statute.
The sewerage system under condemnation was built in 1925 by the Belle Haven Realty Corp. as part of the development of a residential subdivision. As lots were sold, a proportionate part of the cost of the sewer system was included in the price paid by the purchaser of each lot. The conveyance of each lot included a grant of all “appurtenances to the same in any wise belonging.” Belle Haven Realty Corp. retained nominal title to the system and responsibility for maintaining it, but no charge was made for its use. On this state of facts, the District Court held that the property owners had property rights by way of easements appurtenant to the Belle Haven sewer system. United States v. Certain Parcels of Land in Fairfax County, 89 F. Supp. 571 (1948).
The District Court's finding on the nature of the property interest under Virginia law is not questioned by this Court. It has been decided that such a property interest would give the owners thereof a compensable interest in a taking by power of eminent domain. United States v. Welch, 217 U. S. 333 (1910). It should follow, from the principles of statutory construction that I have urged above, that the consent of these easement owners was required.
Perhaps there may be some practical limitation on the consents which Congress required. Thus, where there is a legal entity which may speak with proper authority for all who have an interest in the property, as in the case of a corporation or a trustee speaking for the shareholders or beneficiaries, consent of each individual owner might not be required. But the corporation cannot be
Even if consent of the corporation would satisfy the statute, I cannot agree that its consent was ever obtained. In 1943, when the Federal Works Agency was seeking only an easement of flowage through the lower end of the Belle Haven trunk line, the corporation consented to the taking if the Agency would take the entire system and provide in the decree that no service charges would be imposed against the Belle Haven property owners.
I do not think a consent can be salvaged out of the corporation’s answer seeking just compensation. That answer came in 1950, only after the decision of the District Court that the property owners had a compensable interest in the system and a right to intervene. 89 F. Supp. 567. The answer pleads a belief that the conditional consent had been violated and states its primary purpose to serve the interest of the property owners. Thus, though it does ask for just compensation, the only fair construction that can be given to the answer in its entirety is that it is an alternative plea, attacking the right to take on the belief that the conditional consent had been dishonored, or alternatively seeking just compensation for its interest in the sewer if the Government’s right to take should be upheld.
The condemnation of one small sewerage system may seem an insignificant thing in view of the vast -scope of federal eminent domain powers, and much of the impact of the present decision may be balmed over with the assurance that intervenors can claim just compensation for their losses. But there is something at stake here which transcends the immediate interests of the parties. That
United States v. Certain Parcels of Land in Fairfax County, 101 F. Supp. 172, 175 (D. C. E. D. Va. 1951); 89 F. Supp. 567 (1950); 89 F. Supp. 571 (1948).
United States v. Certain Parcels of Land in Fairfax County, 196 F. 2d 657, 662 (C. A. 4th Cir. 1952).
As I read the opinion, this must be the assumption which compels the majority to place a limiting construction on the word “owners,” as used in the consent proviso of the 1943 Amendment, 57 Stat. 565, lest the Government be forced “to deal with the holder of every servitude to which the property might be subject,” thereby making national acquisition of public works “cumbersome.”
At the hearings the General Counsel to the Federal Works Agency testified with respect to H. R. 3213 (a preliminary draft, the language of which is substantially the same as Title II, for present purposes) as follows:
■''And then authority is given to acquire land, improved or unimproved, and upon the land so acquired to construct public works, to maintain them and operate them, administer them and to lease them, to sell them, to transfer them, and also to make loans and grants for all of these purposes.” (Emphasis supplied.) Hearings before the House Committee on Public Buildings and Grounds on H. R. 3213 and H. R. 3570, 77th Cong., 1st Sess. 59.
“Authority of the Federal Works Administrator under Title II.— Under title II the Federal Works Administrator is authorized:
“(1) To construct community facilities as federal projects.
“(2) To make loans or grants, or both, for the non-Federal construction of community facilities.
“(3) To make contributions for the maintenance and operation of community facilities.”
Memorandum of Federal Works Administrator attached to Report of Senate Committee on Public Buildings and Grounds, S. Rep. No. 376, 78th Cong., 1st Sess. 3.
". . none of the funds authorized herein shall be used to acquire public works already operated by public or private agencies, except where funds are allotted for substantial additions or improvements to such public works and with the consent of the owners thereof . . . .” 57 Stat. 565.
Cf. Dubois v. Hepburn, 10 Pet. 1, 23 (1836), interpreting a statute which permitted the “owner” to redeem tax delinquent land: “Any right, which in law or equity amounts to an ownership in the land; any right of entry upon it to its possession, or enjoyment, or any part of it . . . makes the person the owner . . . .”
Thus in Glover v. United States, 164 U. S. 294 (1896), a mortgage creditor was held not to be an “owner” for purposes of a statute making a land tax refund, since the obvious statutory scheme was to reimburse persons who had been liable to pay the tax.
It is interesting to note that this agreement was apparently reached in the “spring of 1943,” which would place it prior to the enactment of the 1943 Amendment, which was on July 15, 1943. Thus, it is a little difficult to believe that the Corporation was giving or the Government seeking a consent under the statute.
This is the conclusion reached by the Court of Appeals. 196 F. 2d 657, 662-663. To some extent the conclusion depends upon questions of fact which have never been tried. But most of what there presently is in the records supports the inference that the federal power of eminent domain was exercised here to help a local county solve a problem of sewerage assessments. If this be true, I think the whole affair is completely unworthy of the high trust which should attend use of the sovereign power of eminent domain. However, that raises a question of fact going to whether or not the taking was for a public purpose. That question, as well as the factual questions of whether the President approved this specific project as required by Title II, Puerto Rico Ry. Light & Power Co. v. United States, 131 F. 2d 491, 495-496 (C. A. 1st Cir. 1942), and whether funds were allotted “for substantial additions or improvements” to the Belle Haven system, as required by the 1943 Amend»ment, will still be left open on remand.
In proceedings in the District Court the Government referred to Belle Haven Realty Corp. as the “purported owner” of the system, 101 F. Supp. 172, 175, a position quite inconsistent with its later position that the corporation was the “owner” whose consent brings the taking within the 1943 Amendment.
196 F. 2d 657, 662. There were no formal findings of fact. But as the Court of Appeals pointed out, “The [district] judge found it [the language quoted in text] as a fact, . . . after hearing the parties in a number of pre-trial conferences.”
Reference
- Full Case Name
- UNITED STATES v. CERTAIN PARCELS OF LAND IN THE COUNTY OF FAIRFAX, VIRGINIA, Et Al.
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- 20 cases
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