250 F. 499 | W.D. Va. | 1917
In opposition to a proceeding by the government to condemn land in this district, J. W. Dudley and R. C. Grogg, citizens of West Virginia, have appeared specially for the purpose and have filed written'grounds of objection to the jurisdiction of the court. The nature of these objections is sufficiently shown by what follows, except to explain that in the petition it appears that there are rival claimants to a part of the land, and that some of the claimants, other than Dudley and Grogg, had agreed with the government on the value of the land.
This is a condemnation proceeding-instituted by the government to acquire title to a large tract of land in this district. Among the numerous defendants are J. W. Dudley and R. C. Grogg, who have filed sundry objections to the jurisdiction of the court.
“That no deed or other instrument of conveyance shall he accepted * 9 until the Legislature of the state in which the land lies shall have consented to the acquisition of such land by the United States. * * ® ”
If only voluntary sales of lands were intended, it is difficult to see why instruments of conveyance other than deeds were mentioned. In enacting such legislation it must have been contemplated that many tracts of lands highly desirable for the purpose intended might be owned by infants, or by insane persons, or by persons who would try to exact unreasonable prices, and that in many cases conflicting claims of title would exist. To authorize acquirement only by voluntary sale was so certain to greatly interfere with the chief and ultimate purpose in view that the context would seem to afford strong reason for declining to read the word “purchase” otherwise than in its broad legal signification. Moreover, in enacting the statute it seems rather clear that Congress had in mind the purpose of acquiring certain kinds of land, rather than the method of acquiring.
Again, by the Act of August 1, 1888, c. 728, 25 Stats. 357, U. S. Comp. Stats. Ann. §§ 6909, 6910, 6 Fed. Stats. Ann. pp. 700-703, Congress had provided:
“That in every case in which the Secretary of the Treasury or any other officer of the government has been, or hereafter shall bo, authorized to procure real estate * * * for * * * public uses ho shall be, and hereby*502 is, authorized to' acquire the same for the United States by condemnation. * * * ”
It must be assumed that'in enacting the act of 1911 Congress had in mind the act of 1888. Sutherland, Stat. Constr. § 333; 36 Cyc. 1146. In view of the act of 1888 it was quite unnecessary to use in the act of 1911 words expressly stating an intent to permit acquisition of lands by condemnation. And indeed, because of the provisions of the act of 1888, it seems to me impossible to hold that the act of 1911 shows an implied intent to repeal the act of 1888 as to lands to be acquired under the act of 1911. If such intent had existed, no such words as “acquirement” and “acquisition” would have been used in the act of 1911. On the other hand, the language would have heén “purchase by voluntary sale” or words of similar import.
It is further urged that there are no provisions in the act of 1911 specifically relating to acquisition by condemnation. This was to be expected, because the act of 1888 provides in effect a complete procedure for condemnation.
In U. S. v. Beaty (D. C.) 198 Fed. 284, 286, the trial court passed upon this same question in construing the Act of March 3, 1911, c. 209, 36 Stats. 1037, 1049, and its ruling that the word “purchase” there used included condemnation was affirmed. See Beatty v. U. S., 203 Fed. 620, 621, 122 C. C. A. 16. See, also, U. S. v. Whipple, 191 Fed. 945, 946, 947, 112 C. C. A. 357.
On the whole, construing as we should the act of 1911 in connection with the act of 1888, it seems to me that the former must be read as contemplating and intending the acquisition of forested watershed lands by condemnation.
That the consent of the state of Virginia to the proposed acquisition
[I] 3. I am not absolutely satisfied that the Legislature of Virginia intended that an unsuccessful eifort to agree upon the price to be paid should be a jurisdictional prerequisite to a condemnation proceeding, and still less satisfied that the right of the federal government to maintain a proceeding to condemn land in its own courts was intended by the federal act of 1888 to be dependent on such requirements of the state laws. However, waiving both these questions, the petilion alleges that Dudley and Grogg are residents of Parkersburg, W. Va. In their “objections” these defendants allege that they are citizens and residents of West Virginia. In.the petition it is alleged:
‘■Petitioners cannot agree on the price and terms for the purchase of said lands, by reason of some one or more of the following facts, * * * respecting some of the persons * 0 * claiming * * * such lands: Because * v * some of said persons cannot with reasonable diligence be found in the state of Virginia.”
The petition sets out the names of all of the defendants with whom an agreement as to price had been made. It seems therefore to be fairly implied, either that no agreement could be reached with Dudley and Grogg, or that no agreement has been attempted with them as" they could not with reasonable diligence be found in the state of Virginia. Section 11051, subd. 4, reads, in part:
"Any company * * * authorized * 0 * to condemn lands * * * which cannot * * because of * * 15 inability to agree upon price or terms, or because the owner cannot, with reasonable diligence, be found in üiis state, * * 9 shall,” etc.
I must hold that the objections to the jurisdiction of the court are without merit.