176 F. 963 | U.S. Circuit Court for the District of Massachusetts | 1910
This case has been heard upon the bill and the answers filed by the two defendants. At the hearing an agreed statement of facts was submitted, and evidence was also introduced by the complainant and the defendants respectively. Upon a motion made by the complainant for a preliminary injunction, a restraining order was issued January 35, 1910, which has since remained in force, pending a hearing upon an order to show cause why a temporary injunction should not issue. The hearing upon bill and answers having presented all the questions which would be involved in a healing under the order to show cause, the restraining order will, if the complainant maintains its bill, become a permanent injunction.
The parties assert conflicting rights in certain premises within the limits of Brattle street in Cambridge, lying below the sidewalk, on the southerly or easterly side of that street. Certain rooms on the ground floor of a building there, fronting on Brattle street, and in connection therewith a basement room in the same building below, are occupied and used by the Cambridge post office, and have been so occupied and used by it for post office purposes since August 35, 1909; the Postmaster General having previously established a post office there on October 7, 1908, as is admitted. The basement room referred to is for the most part within and underneath the building and outside the street limits, but at one end it extends beyond the front line of the building into the limits of Brattle street, underneath the sidewalk, and is lighted in part through sidewalk lights within the street limits. The defendants are engaged in constructing a subway, under authority granted to the defendant railway company by the state of Massachusetts. The subway is to run at this point beneath the surface of Brattle street, but within its limits, and, as planned, it will permanently occupy a part of that space beneath the sidewalk, and within the street limits, into which the basement room referred to extends. Such occupation will reduce the floor area of the room, at present about 1,135 square feet, by about 80 square feet. It will also somewhat interfere with the light which the room now receives through the sidewalk, though the subway is to be, in section, of such a shape that the area of the sidewalk lights will not be reduced. The process of construction will also, while it lasts, inevitably interfere to some extent with the present use of the room by the post office authorities.
The United States as complainant alleges that it is essential to the effective and convenient operation of the postal service that in the exercise of its constitutional duty it should not be prevented from or disturbed in the use of the premises referred to or any part thereof. It contends that any invasion of or interference with those premises by the defendants, after the establishment of a post office in them and while they are being occupied and used for the purposes of the postal service as at present, will be unlawful; and it seeks to have the inva
No alleged want of jurisdiction in the court to inquire into the lawfulness of the government’s possession has in this case to be considered. The government has come into court of its own accord to apply for the protection sought by its bill and is, therefore, undertaking to prove the lawfulness of the possession which it asks the court to defend.
Brattle street is an ancient public highway and a post road. The authority given the defendant railway company to build a subway under it is contained in an act passed by the Massachusetts Legislature which was approved by the Governor, June 23, 1906, and is published as chapter '320 of the Acts of 1906. It has taken effect by acceptance as provided in section 32, and has therefore been in effect at least since August'23, 1906. The defendant Hugh Nawn Contracting Company is performing the physical work of the construction in virtue of a contract with the railway company and under its direction and control. The act referred to, in sections 1 and 4, gives the defendant company full authority to locate and construct the subway wherever it may deem best within the limits of Brattle street, subject, however, to the approval of the Railroad Commissioners.
The defendants contend that their proposed construction of the subway, inasmuch as it has been duly authorized by law and is to be wholly confined within the limits of Brattle street, will not, even if it encroach upon, that part of the basement room referred to which lies under Brattle street, invade or enter upon premises in which the complainant has any rights as against them, and that it cannot, therefore, be forbidden as unlawful by the court.
The United States has no ownership in any portion of the premises occupied and used hy the Cambridge post office as above. It has never acquired or attempted to acquire them or any part of them, either by condemnation or purchase. Its occupation and use of them are, so far as they are supported by any title to them, under and by virtue of an agreement with Edwin H. Abbot of Cambridge. He, for the purposes of this decision, there being no suggestion of title in anyone else, may be assumed to be their owner, although no proof of liis title has been offered: June 30, 1908, Mr. and Mrs. Abbot tendered to the Post Office Department a written agreement to lease the space on the ground floor of the building and the basement room, for 10 years, upon terms and conditions stated. By a letter dated October 7, 1908, the department accepted their agreement, subject to the provisions of the form of lease used by the department in such cases, and notified Mr. Abbot' that a lease would be drawn up and sent for execution when the premises should be reported by a department representative as fitted up according to the agreed terms. No actual execution of any lease has been shown. The agreement and acceptance referred to are Exhibits G and H annexed to the agreed statement of facts. On August 25,1909, possession of the premises was given to and taken by the department, which has ever since retained it.
The defendants concede that the government is to be protected in the occupation not only of any property it may own. hut also in the occupation of any property whereof it may be in lawful possession, whether used by it for post office purposes or for any other public purposes whatsoever. But they contend that, before it can claim such protection, the government must prove the lawfulness of its possession, and that mere present occupation and use for public purposes, however lawful in their origin, if without other right or, title except such as may result ipso facto from that use, do not establish such lawful possession in the government as against persons otherwise lawfully entitled. They contend that there is nothing in the evidence to show any right or title in the United States to the premises here in question, derived from any source other than Mr, Abbot.
If the government has only Mr. Abbot’s rights in the premises, it is without any right to oppose the construction of the subway through so much of them as lie under Brattle street. Tt claims, however, in virtue of its paramount authority, a right to use the premises and to use every part of them which transcends any right that a mere owner of abutting property could assert. The only facts which it alleges in its bill as establishing the right of the government to the relief asked ffil-are. in substance: The establishment of a post office in the premises by the Postmaster General, the present use of the premises for post office purposes, and the necessity to the operation of the postal service that the government’s occupation and use should in no respect be disturbed. And it contends that inasmuch as the Postmaster General has selected the premises and established a post office in them, by virtue of the power and discretion vested in him by law, and this original
That the owner of premises may, by virtue of his title, evict and dispossess officei-s of the government, though occupjung and using them by government authority and in the performance of governmental functions, the United States is obliged to concede, in view of the decision in U. S. v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L. Ed. 171. But it insists that, unless the continued occupancy of its officers becomes a violation of some prior conflicting right secured by the Constitution to those attempting to oust if, its contentions above summarized must prevail.
For the purposes of this decision, it thus becomes necessary to inquire, in the first place, what rights in land the government may acquire merely by the establishment of a post office, followed by occupation and use for necessary post office purposes; and next whether or not any violation of prior conflicting rights secured by the Constitution will be involved in sustaining the claim of the government as against the claim of the defendants.
In the mere fact that the department has established a post office in the premises I am unable to find any strong support for the government’s position. Congress has power under the Constitution (article 1, § 8, cl. 7) to “establish post offices and post roads.” It has empowered the Postmaster General to “establish post offices at all such places on post roads established by law as he may deem expedient.” Rev. St. § 3829 (U. S. Comp. St. 1901, p. 2608). The power to which these provisions refer is power “to designate the places where mail shall be received and delivered.” Ware v. U. S., 4 Wall. 617, 632, 18 L. Ed. 389. A place having been so designated, there is a post office over which a postmaster may be appointed, and the post office thereafter continues to exist until it is discontinued. But no reason appears for believing that such establishment accomplishes of itself any appropriation or dedication of the site selected to public uses, or any interference with existing rights therein. It is said in Kohl v. U. S., 91 U. S. 367, 372, 23 L. Ed. 449:
“When the power to establish post offices and create courts within the states was conferred upon the federal government, included in it was authority to obtain sites for such offices and for courthouses, and to obtain them by such means as were known and appropriate. The right of eminent domain was one of these means well known when the Constitution was adopted, and employed to obtain lands for public uses.”
Equally well known means of obtaining sites were, of course, purchase from or agreement with the owner. Admitting then that power
The subsequent use and occupation for postal purposes are relied on in connection with the establishment, as supporting the right which the government asserts. The character of this occupation and use shows that all the acts of the department officers have been within the scope of their official duties, but this I do not understand to be denied. It can have no force of itself to give the government any rights in the premises greater than were obtained by the establishment o f the office in them, nor any -weight of itself in determining the precise nature of the rights obtained.
If the government had purchased these premises from the owner, it would have acquired no greater rights in so much of them as lay under Brattle street than it acquired under its agreement with the owner. It does not seem to be disputed that it might have obtained the whole site, whether within or without Brattle street, by using its right of eminent domain. The general principle is that property devoted to one public use may be taken for another public use, and that the right to take for federal uses is paramount. Had the department chosen to adopt this means, it would have extinguished, so far as it was concerned, all other rights in every part of the premises, whether belonging to the city of Cambridge or the defendant railway company. But it could have resorted to this means of obtaining the site only at the cost of making just compensation to the owners of the rights extinguished, whether public, semipublic, or private. See St. Louis v. Telegraph Co., 148 U. S. 92, 100, 101, 13 Sup. Ct. 485, 37 L. Ed. 380. With the principles according to which the amount of such compensation would have been determined we are not now concerned. Instead
It is further to be remembered that, because condemnation proceedings are in rem, public notice and hearing are essential to their validity, and the notice must describe the' land to be taken. Nothing of the kind being required for the “establishment” of a post office, there was, of course, nothing of the kind in this instance. The boundaries of the site were agreed between Mr. Abbot and the department without opportunity for any assertion of other rights in the land within those boundaries.
That the department may obtain land within the limits of a post road, or rights in such land beyond the right to use it as part of a post road, by means other than those it is obliged to use in the case of land not so situated, I see no reason to believe. If a telegraph company uses such a road under the permission given by Congress in Rev. St. § 5263 (U. S. Comp. St. 1901, p. 3579), it cannot displace private rights without the owner’s consent. Pensacola, etc., Co. v. Western Union, etc., Co., 96 U. S. 1, 11, 12, 24 L. Ed. 708.
If it would be in any case possible to allow a greater effect than I have allowed to the “establishment” of this post office on October 7, 1908, I think the facts agreed afford strong ground for holding that the department should be presumed to have had no intention of acquiring by it, in this case, any rights adverse to those on which the railway company relies. On the date referred to, the act of 1906 had been in effect by acceptance for more than two years, as has been stated. The railway company had also had on file with the city engineer for more than fifteen months, or since January 28, 1907, the plan marked “Exhibit B,” referred to in paragraph 6 of the agreed facts. This was filed in compliance with section 3 of the act, as a prerequisite to beginning construction. The plan shows, on a small scale it is true, but, as it seems to me, with sufficient distinctness, that the railway company would construct the subway so as to make it occupy about half the width of the sidewalk adjoining these premises and encroach upon them substantially as it now proposes, unless the Railroad Commissioners should alter the plan; as they might, according to section 3. I
In adopting, as the only means to be used for obtaining a site for this post office, the method of acquiring only such rights in it as the owner could transfer, and in doing so with knowledge that the above steps had been taken to devote, by state authority, so much of the site as lay below the sidewalk and within the proposed subway, to its construction, and thus to divest the owner, to that extent, of any possible rights, I think the department must be taken as having knowingly accepted a site subject to be encroached upon as proposed, when the subway construction had progressed far enough to make the encroachment necessary, and therefore as having- contented itself with obtaining only such rights in the premises as such encroachment would not disturb. To hold, therefore, that it may now, by virtue of its possession and occupation, obstruct the work of construction to the extent of excluding the defendants from every part of the premises, will be to accord it rights in them never obtained by due process of law.
I am therefore obliged to hold that the United States has not established its right to the relief prayed for in its bill. This result, so far as I can see, in no way conflicts with the undeniable principle that the instrumentalities of the federal government are not to be burdened, controlled, or interfered with by state legislation, nor with the principle that a state statute must be construed, whenever possible, as not intending any such application of its provisions. The question in this case seems to me to be: To what extent has the part of these premises in dispute become a federal instrumentality? The state legislation here in question having been enacted, and the railway company’s designation of space below Brattle street to be used for the purpose thereby authorized having been made, as stated, by the submission of its plan, long before the department took any of the steps claimed to have devoted any part of this post office site to federal uses (though not approved until later), I do not see how any proceedings by the department, not effectual to supersede or suspend public rights under state laws, could accomplish that result as to the part in question.
How far that portion of the basement room which the subway construction will render unavailable is really necessary to the work of the post office is a question upon which, conflicting evidence was submitted, subject to the objection of the government that the question is immaterial. The result above reached renders it unnecessary to consider the question at all.
The bill'is to be dismissed.