UNITED STATES v. McCULLEY, (E.D.La. 1951)

Citation Codes

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Docket Number

Misc. No. 680.

Attorney(S)

Norton L. Wisdom, Special Atty., Department of Justice, New Orleans, La., for plaintiff. John E. Jackson, Baldwin J. Allen, New Orleans, La., and George Link, Jr., New York City, for defendant Oyster Shell Products Co., Inc.

Judges

James Skelly Wright

Acts

Navigation And Navigable Waters — Flood Control — Adoption Of 1927 Project; Execution; Creation Of Board; Scope Of Authority; Appropriation
Judiciary And Judicial Procedure — District Courts; Jurisdiction — Jurisdiction And Venue — United States As Defendant
Navigation And Navigable Waters — River And Harbor Improvements Generally — Acquisition Of Land And Materials — Consideration Of Benefits In Assessing Compensation

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Smart Summary

Factual and Procedural Background

The United States filed a petition under 33 U.S.C.A. § 702a to condemn certain property for floodway purposes, and had previously filed a declaration of taking and completed construction of levees related to the Morganza Floodway. Oyster Shell Products, Inc. answered, claiming ownership of land described in the petition and filed a counterclaim alleging that the United States in fact took all of its property adjacent to the condemned parcel — including a site across Berwick Bay at Morgan City — by building levees landward of its properties. Oyster Shell contended that this constituted a taking of all its property within the meaning of the Fifth Amendment and sought compensation for the alleged taking. The United States moved to dismiss the counterclaim and to strike from the answer all references to property not described in the petition for condemnation. The court sustained the motion to dismiss the counterclaim and overruled the motion to strike.

Legal Issues Presented

Whether the defendant's counterclaim alleges a claim against the United States in a forum or manner in which the United States has not consented to be sued, such that the counterclaim must be dismissed.
Whether references in the defendant's answer to property not described in the petition for condemnation should be stricken.
Whether, if part of the defendant's property not described as taken has been damaged by the use of the part taken, the defendant may recover such damages under 33 U.S.C.A. § 595.

Arguments of the Parties

Oyster Shell Products, Inc.'s Arguments

It claims ownership of the land described in the petition and alleges that the United States actually took all of its adjacent property (including a site across Berwick Bay) by constructing levees landward of its properties.
It contends that the construction of the floodway levees landward of its properties constituted a taking of all of its property within the contemplation of the Fifth Amendment and that it should be compensated for that taking in these condemnation proceedings.
It asserts that the United States may not evade its obligation to compensate an owner in full by describing only part of property in the petition for condemnation while actually taking all of it.

United States' Arguments

The United States moved to dismiss the defendant's counterclaim on the ground that the counterclaim sets up a claim against the United States in a court and manner in which the United States has not consented to be sued.
The United States moved to strike from the answer any reference to property not described in the petition for condemnation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888	Cited for the principle that a claim against the United States cannot be maintained in a forum where the United States has not consented to be sued.	Used to support the conclusion that the defendant's counterclaim sets up a claim in a court and manner in which the United States has not consented to be sued.
Nassau Smelting Refining Works v. United States, 266 U.S. 101, 45 S.Ct. 25, 69 L.Ed. 190	Cited for the same principle regarding lack of consent to be sued by the United States.	Relied on to demonstrate that the counterclaim cannot be maintained in this court.
Kansas v. United States, 204 U.S. 331, 27 S.Ct. 388, 51 L.Ed. 510	Cited for the same principle regarding sovereign immunity and consent to suit.	Applied to support dismissal of the counterclaim for lack of consent to be sued in this forum.
United States v. Meyer, 7 Cir., 113 F.2d 387	Cited for the same principle regarding suits against the United States where consent has not been given.	Used as appellate/circuit authority reinforcing the court's conclusion on lack of consent to be sued here.
Hurley v. Kincaid, 285 U.S. 95, 52 S.Ct. 267, 76 L.Ed. 637	Cited to indicate that the claim may be brought against the United States under the Tucker Act.	Noted by the court as indicating an alternative forum/remedy (under the Tucker Act), but the court stated such a remedy is not available in these proceedings.
United States v. Nipissing Mines Co., 2 Cir., 206 F. 431; certiorari dismissed 234 U.S. 765, 34 S.Ct. 673, 58 L.Ed. 1582	Cited in the context of suits/claims against the United States and related procedural limitations.	Referenced to support the court's position that the present counterclaim is not maintainable in this court.
United States v. Dickinson, 331 U.S. 745, 751, 67 S.Ct. 1382, 91 L.Ed. 1789	Cited for the principle that if the part of property not taken has been damaged by use of the part taken, the owner may recover damages (under 33 U.S.C.A. § 595).	Identified by the court as authority supporting the possibility of recovery for damages to remaining property, if shown by the evidence.
Sharp v. United States, 191 U.S. 341, 354, 24 S.Ct. 114, 48 L.Ed. 211	Cited for the same principle concerning recovery of damages to property not formally condemned.	Used to indicate that damages to remaining property may be recoverable under governing statutes and precedent.
Baetjer v. United States, 1 Cir., 143 F.2d 391; certiorari denied 323 U.S. 772, 65 S.Ct. 131, 89 L.Ed. 618	Cited for the same proposition regarding recoverable damages to property not condemned.	Invoked to support the court's statement that the defendant may be able to recover damages for injury to the property not taken, under applicable law.

Court's Reasoning and Analysis

The court analyzed the defendant's counterclaim and concluded that it "sets up a claim against the United States in a manner and in a court in which the United States has not consented to be sued." To support that conclusion the court cited authority (United States v. Shaw; Nassau Smelting Refining Works v. United States; Kansas v. United States; United States v. Meyer; and related authorities) establishing that the United States' consent to suit is a prerequisite to maintaining such claims in this forum. The court acknowledged that the defendant's substantive complaint — that construction of levees landward of its properties amounted to a taking of all of its property — might be actionable under the Tucker Act (citing Hurley v. Kincaid), but emphasized that such an action is not properly brought in this court or in these proceedings.

The court further observed that, based on evidence taken at trial, the part of the defendant's property not condemned might have been damaged by use of the condemned part; if so, recovery for such damages could be available under 33 U.S.C.A. § 595, and the court cited United States v. Dickinson, Sharp v. United States, and Baetjer v. United States to illustrate that proposition. The court noted, however, that no claim for such damages had been made to date.

On the basis that the counterclaim was not maintainable in this court and that there was no just reason for delay, the court determined that the proper disposition was to enter final judgment dismissing the counterclaim.

Holding and Implications

Holding: The court ordered that the defendant's counterclaim be dismissed; the opinion states: the motion to dismiss the counterclaim filed by Oyster Shell Products, Inc., is sustained and it is hereby dismissed. The court also ruled that the United States' motion to strike references to property not described in the petition was overruled.

Implications: The direct effect is dismissal of the counterclaim in this proceeding. The court noted two qualifications stated in the opinion: (1) the defendant's asserted claim might be pursued under the Tucker Act in an appropriate forum (as suggested by Hurley v. Kincaid), but not in this court or in these proceedings; and (2) if evidence shows that the part of defendant's property not taken has been damaged by use of the part taken, the defendant may be able to recover damages under 33 U.S.C.A. § 595 (as illustrated by United States v. Dickinson, Sharp v. United States, and Baetjer v. United States), although no such damages claim had been made at the time of the opinion. The court did not announce any new legal precedent beyond applying existing authorities to dismiss the counterclaim.

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UNITED STATES v. 9 ACRES OF LAND, MORE OR LESS, IN ST. MARY PARISH, LOUISIANA, et al.

WRIGHT, District Judge.

The United States filed a petition pursuant to the authority contained in 33 U.S.C.A. § 702a to condemn certain property for floodway purposes describing the property to be condemned and naming, among others, as defendant and owner thereof the Oyster Shell Products, Inc. The United States had previously filed a declaration of taking of the property in question and had completed the construction thereon of certain levees to be used in connection with the Morganza Floodway.

Oyster Shell Products, Inc., has answered claiming the ownership of land described in the petition for condemnation on which part of the levee has been built. It has also filed a counterclaim alleging that in addition to its land described in the petition for condemnation, the United States has in fact taken all of its property adjacent thereto including a site across Berwick Bay at Morgan City. Oyster Shell Products, Inc., operates two plants used in the conversion of oyster shells into feeds and fertilizers on that part of its land not described as taken in the petition for condemnation, but which is contiguous to that part so described. It alleges that since the floodway levees have been built landward of its property, when the floodway is used for the purpose for which it has been designed flood waters will overrun its property on both sides of Berwick Bay completely destroying same. It contends that the moment the United States built the levees landward of its properties there was a taking of all of its property within the contemplation of the 5th Amendment, and that it should be compensated for that taking in these proceedings. In effect it alleges that the United States may not evade its obligation to compensate an owner in full for his property by describing only a part of it in the petition for condemnation while actually and in fact taking all of it.

The United States has filed a motion to dismiss the counterclaim and a motion to strike from the answer all reference to property of the defendant not described in the petition for condemnation. The motion to dismiss the counterclaim filed by Oyster Shell Products, Inc., is sustained and it is hereby dismissed. The motion to strike filed by the United States is overruled.

The counterclaim filed herein by the defendant, Oyster Shell Products, Inc., sets up a claim against the United States in a manner and in a court in which the United States has not consented to be sued. United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; Nassau Smelting Refining Works v. United States, 266 U.S. 101, 45 S.Ct. 25, 69 L.Ed. 190; Kansas v. United States, 204 U.S. 331, 27 S.Ct. 388, 51 L.Ed. 510; United States v. Meyer, 7 Cir., 113 F.2d 387; 3 Moore's Federal Practice 66-82. It may well be that this claim can be brought against the United States under the Tucker Act, Hurley v. Kincaid, 285 U.S. 95, 52 S.Ct. 267, 76 L.Ed. 637; but not in this court nor in these proceedings. United States v. Nipissing Mines Co., 2 Cir., 206 F. 431, certiorari dismissed 234 U.S. 765, 34 S.Ct. 673, 58 L.Ed. 1582.

See 28 U.S.C.A. § 1346.

It should be observed in passing that the evidence taken at the trial may show that the part of the defendant's property not taken in these proceedings has been damaged by the use to which the part taken has been put, in which event under 33 U.S.C.A. § 595 the defendant may be able to recover its damages. United States v. Dickinson, 331 U.S. 745, 751, 67 S.Ct. 1382, 91 L.Ed. 1789; Sharp v. United States, 191 U.S. 341, 354, 24 S.Ct. 114, 48 L.Ed. 211; Baetjer v. United States, 1 Cir., 143 F.2d 391, certiorari denied 323 U.S. 772, 65 S.Ct. 131, 89 L.Ed. 618. Up to the present time, however, no claim has been made for such damages.

Since there is no just reason for delay, final judgment should be entered dismissing the counterclaim.