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UNITED STATES v. LOT 800 IN SQUARE 1928

January 22, 1959

UNITED STATES of America, Plaintiff,
v.
LOT 800 IN SQUARE 1928, CONTAINING 5,967.79 SQUARE FEET MORE OR LESS, IN DISTRICT OF COLUMBIA, and American Oil Co. et al., and unknown owners, Defendants



The opinion of the court was delivered by: SIRICA

The United States of America, plaintiff, at the request of the National Capital Planning Commission, filed an action in this court on October 9, 1958 for the taking of property under the power of eminent domain and for the ascertainment and award of just compensation to the owners and parties in interest. Trial by jury of the issue of just compensation was demanded by plaintiff.

In its complaint, it is alleged that plaintiff's authority for taking is the Act of Congress of March 1, 1929 (45 Stat. 1415 et seq.), as amended, D.C.Code 1951, § 16-619 et seq., and the Acts of Congress of June 6, 1924 (43 Stat. 463) and April 30, 1926 (44 Stat. 374) as amended by the Act of July 19, 1952 (66 Stat. 781), 40 U.S.C.A. § 71 et seq. establishing the National Capital Planning Commission, and the Act of Congress of May 29, 1930 (46 Stat. 482). The use for which the land is taken is the comprehensive development of the park, parkway and playground system of the National Capital. The property involved in this proceeding is located at the southeast corner of Wisconsin and Massachusetts Avenues, Northwest.

 On the same date the complaint was filed, namely, October 9, 1958, Harland Bartholomew, Chairman of the National Capital Planning Commission filed a declaration of taking in this court stating that by direction of the Commission and pursuant to the Acts of Congress heretofore referred to, the described property was being taken for public use and was to be used as a part of the park and parkway system in the District. The Commission estimated that the amount of $ 128,250 was just compensation for the land taken, with all buildings and improvements thereon, and all appurtenances thereto. This sum has been deposited in the registry of the Court.

 In its answer defendant admits ownership of the land in question and states that, because of its strategic location at the intersection of two major highways, defendant's gasoline service station is a highly profitable enterprise that brings large profits to defendant and substantial taxes to the Federal Government and to the District of Columbia. The answer also alleges that the declaration of taking is outside the scope of the Commission's authority as set forth in 40 U.S.C.A. § 72, and that, in any event, the plaintiff's claim for immediate possession is unauthorized since the Commission does not presently have appropriated funds in order to convert the land for authorized public purposes. Defendant also contends that the sum of $ 128,250 estimated by the United States does not constitute just or adequate compensation for the property.

 Motions Filed by Plaintiff

 The plaintiff has filed four motions in the alternative: under 12(c) of the Federal Rules of Civil Procedure, 28 U.S.C. for judgment on the pleadings; under Rule 12(d) to dismiss the answer for failure to state a claim; under Rule 12(f) to strike all of the answer except paragraph 1; or under Rule 56 for a summary judgment. Plaintiff states the grounds for these alternative motions as follows:

 '1. The Acts of Congress set forth in the Complaint constitute clear authority for the acquisition by condemnation of the lands here involved for the uses set forth therein. The allegations in defendant's answer set forth erroneous assumptions or conclusions of law or fact or of law and fact.

 '2. Plaintiff is entitled to possession of defendant's lands as a matter of right.

 '3. The Order for Delivery of Possession was obtained according to law.

 '4. The asserted objections and defenses set forth in defendant's answer do not constitute valid and legal defenses to the taking of said property or to the delivery of possession of lands herein to plaintiff and fail to set forth a valid claim upon which the relief sought by defendant, can be granted.

 '5. There is no genuine issue between plaintiff and said defendant as to any material fact, and plaintiff is entitled as a matter of law to judgment on the issue of the right of the Government to condemn the lands herein involved.'

 The Court will treat the motion as one for summary judgment.

 The defendant contends that Title 16, §§ 619-644 of the District of Columbia Code is not applicable to condemnation actions by the Commission in the absence of repeal of 40 U.S.C.A. § 72. Defendant further states that the mere fact that the general condemnation statute (Title 16, § 619, D.C.Code, 1951 Ed.) was passed subsequent to the enactment of 40 U.S.C.A. § 72 is of no legal significance.

 The Court disagrees with this contention. It is the opinion of the Court that the Acts of Congress set forth in the complaint and declaration of taking constitute clear authority for the acquisition by condemnation of the property herein involved for the uses described in the ...


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