United States v. Dow

PETITIONER: United States
RESPONDENT: Dow
LOCATION: Shotwell Manufacturing Co.

DOCKET NO.: 102
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 357 US 17 (1958)
ARGUED: Mar 05, 1958
DECIDED: Jun 09, 1958

Facts of the case

Question

Media for United States v. Dow

Audio Transcription for Oral Argument - March 05, 1958 in United States v. Dow

Earl Warren:

Number 102, United States of America (Inaudible) C.M.Dow.

Mr. Morton, you may precede.

Perry W. Morton:

Mr. Chief Justice and may it please the Court.

This is a condemnation case.

The central and we think the determinative issue is, "When did the taking occur?

Did it occur as the Government insists?

When the United States took actual physical possession shortly after the filing of the case under an order of possession entered by the Court, or did it occur as the respondent contends?

When a declaration of taking was filed with the payment they deposit, approximately three years later.

The controversy which presents this basic issue here for a review arises because the respondent is an intermediate purchaser of the land through which ran the perpetual pipe-line easement taken by the Government and the case thus, involves an application of the familiar Anti-Assignment Act.

The facts which are not materially in dispute maybe briefly summarized as follows, the case started in March of 1943 when the United States filed its petition to require a perpetual right-of-way or a pipe line or petroleum products over certain lands in Harris County, Texas.

The property interest involved in the case is this perpetual easement confined to a strip, 33 feet wide, containing about 2.7 acres across a part of a 617-acre farm which then belonged to the respondent's predecessors entitled.

An order of possession was made by the Court the same day, and within 10 days thereafter, the Government's contractor, exercising the easement, went into actual possession and started the construction of the pipe line which was completed and which has been in use ever since sometime in 1943.

Now, somewhat over two years thereafter, by -- by now it is November 1945, the 617-acre farm was sold to the respondent, Dow, for a consideration of over $200,000.

I must ask your indulgence because of the condition of my throat.

The deed to Dow accepted certain other easements and then it recited, "And also except us to the right-of-way easements and the condemnation proceedings here and after mentioned.”

The deed later states that it is expressly agreed that it is "subject to the existence of the following easement and proceedings."

And item D of the list which follows is a specific identification of the condemnation case according to its caption in the District Court stage by reference to the list pendance record.

In May of 1946, and I think this is now about seven months after the transfer, the Government filed a declaration of taking under the Act of 1931.

An estimated compensation was deposited therewith and a judgment was entered confirming those actions.

Five months after that and now it is October 1946, an amendment to the petition was made to name additional parties defendant for the first time including Dow.

When?

Perry W. Morton:

In November of 1948.

The parties, who were the parties in the original?

Perry W. Morton:

They were designated as, I think, a party by the name of Bute and some other party, both of them had died and their interest were dropped in later.

The original owners of the land?

Perry W. Morton:

They were the predecessors entitled of the respondent.

In November of 1948, the commissioners appointed under the old Texas practice before the federal rules to determine the compensation, made an award of $4450 for the easement involved in this case after a hearing at which Dow appeared, presented evidence of value.

No notice had been served at that time upon Dow's grantors and they did not appeal.

In October of 1949, the Government moved to set aside the award upon the ground that Dow had no interest in the land at the time the Government took possession in 1943.

And therefore, Dow was not entitled to receive the compensation.