Arthur J. Fulcher, Jr. v. United States
604 F.2d 295
4th Cir.
1979
Check Treatment

*1 argu- We have reviewed these respected. them

ments and find to be without merit.

The decision of the district court is re- case is in-

versed and the remanded with

structions to reinstate order

bankruptcy court. AND REMANDED

REVERSED WITH

INSTRUCTIONS. FULCHER, Jr., Appellant,

Arthur J. America, Appellee.

UNITED STATES of

No. 78-1552. Appeals, Court of Fourth Circuit. Manteo, (Christo- Khoury, Daniel D. N. C. Argued April 5, 1979. pher Seawell, Seawell, L. Aldridge Man- & C., teo, brief), Aug. appellant. Decided N. on Dept, Justice, Klarquist, Robert L. Moorman, Washington, (James D. C. W. Gen., C., Atty. Washington, George D. Asst. Anderson, Johnson, Atty., M. S. Bruce H. U. C., Atty., Raleigh, U. S. N. E. Asst. Charles Biblowit, Justice, Dept, Washington, D. C., brief), appellee. BRYAN, Judge,

Before Senior Circuit HALL, *, Judge, and WARRINER Circuit Judge. District HALL, Judge: K. K. Circuit single presented in this appeal validity United States’ title proceed- taken in condemnation ing, where no actual notice al- property’s sent to the owner identity been though could have discov- We hold ered search. passes has when the jurisdiction properly invoked in rem * Warriner, Judge Eastern District of Vir- D. Dortch Honorable sitting by designation. ginia, *2 law hold them to be court, no North Carolina would and that the condemnation time of condemnation. be maintained under the owners at the can thereafter that title. question 2409a U.S.C. § complaint, Fulcher relies In of his support holding in United v. Chat brought this action un- our Arthur J. Fulcher ham, 1963). re Cir. His present title certain 323 F.2d 95 claiming der 2409a § Cape In the con part misplaced. a Hatteras liance is property now jurisdiction County, in Dare court’s was held Area demnation National Seashore lacking “outrageously States moved due to inexcusable” North Carolina. The United dismiss, passed government. at by that title as a conduct the Id. contending years matter of law once the in rem on Possession was not assumed for seven proc of its condemnation was entered under 40 after and no service condemnation publication was no 258a.1 The district court dismissed ess executed other than U.S.C. § best, noting that, plaintiff tice, unen only the action has which we found to be “not a right compensation recognized positively misleading.” of which is Id. lightening but Act, conduct, exclusively under Tucker at 100. such we the U.S.C. Given unusual agree jurisdiction proper and 1491.2 We and affirm. concluded that over the §§ invoked, empha ty had not been we and in was the question subject iden sized that the owners could have been proceedings brought by of condemnation notably tified without easily resort —most in government the 1959. In those property law complexities to the of state complaint a a Declaration Tak- and of At of condem and title searches. the time by government. were filed the 258a. § previously nation owners had lived on the published was a. Notice of condemnation years the land for more than 25 were newspaper. notice was local Actual sent to commonly known in area as the owners who, Stanley Wahab as a title of holder sons resided fact. One of owners’ record, was the true believed to be owner of two from the and collected miles by Judg- now Fulcher. the tract claimed possession. rent the tenant from Taking ment on the was Declaration disputed possession tenant worked entered, judgment embracing and then title pasture- his part as fields question to the tract here was entered and, single, simple lands if asked but a stating previously that title had been vested question, readily have would identified the Compensation in Wahab. in the amount owners his landlords. We also acknowl as $18,825.40 paid was to Wahab. edged the owners could have been later, eighteen years Fulcher their title and from identified from record brought this 2409a. action under In es- lists. property taxation sence, he contends that condemnation wholly distinguisha- We think Chatham jurisdiction in rem was court’s vitiated as a case. plaintiff’s ble from government’s give result of the failure to 1977). Haddon, (1st 550 F.2d 677 ancestors, whose identi- actual notice Fulcher base his of title claim by have a ties could been discovered reason- no- alleged insufficiency publication diligent title He ably search. claims that posted property. tice or He notice such a title search would have revealed that that his does not contend ancestors’ interest subject was deeded to his an- view of years grantor easily by ten their made was discoverable a cestors before ap- it property. deed to He contends second Wahab. Since his ances- Wahab’s, peared public before matter of record and tors’ deed recorded as a “may compensation claims be or 1. The also raised the affirmative period brought” twelve-year 1346 or defense of the limitation could have been under §§ 2409a, ruling 2409a(a). but no was made the district We ex- the Tucker Act. § press opinion plaintiffs court on this regarding defense. un- no der the Tucker Act. quiet creating 2. The statute an action expressly scope excludes from its all bare (21 Wall.) 130, U.S. L.Ed. would have been discovered search, required in persons which is federal “all proceeding, In an in rem hav- suits Rule 71A of the thing condemnation Fed- ing any interest are deemed Assuming eral Rules of Civil Procedure. right pro to intervene parties, and have the we the facts to be true as must do on a suo; publi- if after lawful interesse *3 dismiss, we motion to think his attack made, they cations of notice have been fail proceedings the condemnation falls short. so, they do having to are considered as jurisdiction.” exercise of acquiesced the purpose proceedings of condemnation Id. to private property is convert the use of public into public good. some use for the A proceeding not A condemnation “is the necessary consequence of this conversion is taking rights designated persons, of of but extinguishment the of private rights in the itself,” property the of taking the and property. v. Norman Lumber Co. United condemned, property is the amount “[w]hen States, 868, (4th Cir.), 223 F.2d 870 cert. paid place proper- for it stands in the 902, 181, denied 350 U.S. 76 100 L.Ed. S.Ct. ty represents proper- and all interests the (1955). power government 792 of to ty acquired.” Improvement Eagle Lake Co. extinguish private rights is an of attribute 182, States, v. United 160 F.2d 184 sovereignty superior and as such is to and 1947) (citation omitted.) emphasis and In independent of private property. of Heitner, case the recent of Shaffer v. 433 However, sovereign right the is limited 2569, 186, 206, 97 53 U.S. L.Ed.2d 683 S.Ct. requirement the Fifth Amendment’s of due (1977), Supreme the Court reaffirmed its process just and compensation. Albert holding City York, in Schroeder v. of New States, Hanson Lumber Co. v. United 261 supra, approval and cited to with an anno- 587, 442, 581, U.S. 43 S.Ct. 67 L.Ed. 809 case, discussing tation begins, that necessity notice, As to the of aas mat- York, In City Schroeder v. of New process, ter of due in proceedings for the 208, 279, (1962), U.S. S.Ct. 9 L.Ed.2d 255 property, condemnation of real a distinc- Supreme the process Court held that due tion has taking been made between the of by publication was not satisfied notice alone the and the determination of signs posted where no were on the just compensation. taking Where the of and no personal notice was sent to the use, is public proc- for a the due owner, although her readily name was as- ess clause the Fourteenth Amendment certainable both from deed records and tax require necessity the and Supreme rolls. The questioned Court never expediency of be taking the determined condemning body’s property, title to the However, upon hearing. notice and with but rather its limited discussion to the mini- respect compensation for the to tak- process mum requirements due necessary ing, process requires that due the owner an right foreclose individual’s to be heard given of, be reasonable notice and an compensation on a claim of taking. See in, opportunity to pending be heard United States v. 323 F.2d at 99. proceedings, (footnote omitted) Implicit in the analysis Court’s careful 1398, 89 A.L.R.2d acceptance its proceed- that condemnation Therefore, and, are no to look proceedings against property we see reason be- such, exception general pro- as are an to the hind the clear terms of 258a which rule persons that no judgment passes are bound vide that to the except parties filing those who are its taking declaration of opportunity and have deposit compensation had be estimated Rochereau, heard. Dupasseur registry See 88 the of court.3 We think the involving ceedings. several not cases 258a it has Nation v. Cherokee Southern Kan- process prevents Co., 641, 659-60, Ry. 965, been held that due from sas U.S. 10 S.Ct. passing payment (1890); until is received owners 34 L.Ed. Albert Hanson Lumber States, represented pro- who were known Co. v. United 261 U.S. 581 at WARRINER, Judge, dissenting: title becomes indefeasible government’s taking payment plaintiff under which seeks The statute apparent to the record compensation relief, perfectly suited 28 U.S.C. §.2409a 1 owner, leaving true owner a claim may any that for complaint. It be damages. Catlin v. United money number of reasons defendant States, 229, 241-43, 65 S.Ct. U.S. suit, but on a motion prevail will (1945); Compa- Lumber L.Ed. 911 Norman plaintiff recognize that dismiss we must States, 223 F.2d at 870-71. ny v. United and seized in fee alleges he is “the owner case, plaintiff’s In this substance question. simple” of the real payment was made to the complaint is that the United States alleges He further so, may pur wrong party. plaintiff If then in the said lands adverse “claims an interest remedy against sue a the United States Finally, alleges and plaintiff.” he to the *4 Tucker Act but money damages under the the claim of the United States shows how may pursue not a collateral attack under cloud on his title. constitutes a judgment final of a con 2409a § legislation Congress When enacted solely demnation court deficien based envi- permitting such suits it could not have to owners who are cies in actual notice apt allegations more than those set sioned Ivie, United v. 163 States unknown. by plaintiff complaint. forth Yet the 138, 143 (N.D.Ga.1957). F.Supp. See United majority would affirm a dismissal because 5; Chatham, 100, F.2d at n. States v. 323 by obtained title means Haddon, United States F.2d 680- v. 550 at States I am unable to concur. of condemnation. Finally, of whether a con the issue demning body charged knowledge is with 2409a(a) eight listed distinct Within are § reveal, title search would what a general rule statutory exceptions to the given be requiring that actual notice before subject to suit to that the United foreclosed, is a matter compensation is Congress Had remove a cloud on title.2 in properly addressed federal court exempt from suit lands ac- intended to under the Tucker Act in the context of the by condemna- quired for the United States right money compensation. owner’s See tion, acquisition, a not uncommon means of York, City supra; of New Schroeder v. the condemna- Congress would have listed Heitner, supra. v. Shaffer exemptions. among the other tion statute judgment The of the district court dis- so, I am unable to Congress did not do missing plaintiff’s quiet title action is into the list read the condemnation statute judicial interpretation.

AFFIRMED. 442, (civil government employee); § 28 U.S.C. S.Ct. 67 L.Ed. 809. These cases do not rights partition address our of unknown action for commenced a tenant jurisdiction supports owners when in rem a joint tenant when the U.S. is one of common or judgment generally final of condemnation. tenants); joint the tenants in common or Co., v. Mullane Central Hanover Bank & Trust (Court empowered U.S.C. § 1491 Claims 306, 314-17, 652, 339 U.S. 70 S.Ct. 94 L.Ed. 865 U.S.); against hear 28 U.S.C. claims Heitner, 207-08, (1950); Shaffer v. 433 U.S. 2410(a)(1) (U.S. may party in a be named a § 97 S.Ct. 2569. property quiet title to real civil-action or suit mortgage which the U.S. has a or other on 2409a(a) part: pertinent 1. 28 § U.S.C. reads in may lien); (U.S. intervene to § l.R.C. may party The United States be named as a suit); subject property to a assert a lien on the defendant in a civil action under this section to joined 7425(a)(1). (If U.S. is not as a l.R.C. § adjudicate disputed a title to real party, respect with which the United States claims an interest a lien shall be made without which the U.S. has lien); 7426(a)(1) (Plain- disturbing § l.R.C. lands, or restricted Indian addition to trust subject claiming interest tiff 2409a(a) apply to or affect actions § against U.S.); levy may bring wrongful may following brought stat- be under the 666(a) (U.S. may joined be as de- 43 U.S.C. § utory 1346(b) (claims provisions: 28 U.S.C. § adjudication of water in suits fendant against injury the U.S. for or loss of rights). negligent wrongful caused or act of a holding that majority condemna- exempt, plain-

tion titles are seeks to refute by distinguish- contrary

tiff’s claim to the v. F.2d 1963). Chatham was decided in adopted

1963 while 2409a was in 1972. rights limited claimant had under longer consequence. are no

Chatham 2409a,

Congress, by enacting created a Corp.

new cause action. Pocono Pines Comm’n.,

Pennsylvania Pa. Game

345 A.2d Plaintiff’s analyzed light

now be of the lan- must

guage of the statute. That the facts of distinguished

Chatham are is of small mo- allega-

ment when it is manifest fit complaint

tions the statute.

I complaint believe the be cannot dis-

missed on defendant’s motion therefore

I would reverse and remand for further

proceedings. Va., Abraham, Virginia Beach, M.

Beril for appellant. Pedersen, Charleston, C.,

T. E. ap- S. pellee. CASPER, Individually Israel and d/b/a Sales, Abby Appellant, HALL, Before WIDENER and Circuit *, Judges, Judge. District WARRINER INC., TRADES, Appellee.

METAL HALL, Judge: K. K. Circuit No. 78-1504. diversity this central issue is United Appeals, States Court of taking whether the district court erred Fourth Circuit. interpret extrinsic evidence the terms of ambigu- contract which the court deemed Argued May ous. Aug. Decided parties agree that South Carolina litigation. writing

law controls the purchase ais order which contains conflicting typed and handwritten terms delivery disclaiming setting dates for delivery liability delays. seller’s Plaintiff/appellant seller contends unambiguous these terms are ad- * Warriner, Judge Eastern District of Honorable D. Vir- Dortch ginia, at Richmond.