A-14244, MAY 13, 1926, 5 COMP. GEN. 907

A-14244: May 13, 1926

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JUDGMENTS - CONDEMNATION PROCEEDINGS WHERE CONDEMNATION PROCEEDINGS ARE INSTITUTED BY THE RECLAMATION SERVICE UNDER THE PROVISIONS OF SECTION 7 OF THE ACT OF JUNE 17. IT IS NOT NECESSARY THAT THE DAMAGES SHALL BE ASSESSED AND PAID BEFORE THE GOVERNMENT IS ALLOWED TO TAKE POSSESSION. IS CONSTRUCTING A LARGE DAM ACROSS THE SNAKE RIVER AT AMERICAN FALLS. CERTAIN LANDS ARE REQUIRED FOR RIGHTS OF WAY FOR THE RESERVOIR TO BE CREATED BY THE DAM. WHERE DISAGREEMENTS HAVE OCCURRED CONDEMNATION PROCEEDINGS HAVE BEEN INSTITUTED BY VIRTUE OF SECTION 7 OF THE ACT OF JUNE 17. IT IS ESSENTIAL THAT POSSESSION OF THE PROPERTY BE SECURED PRIOR TO THE TRIAL OF THE CASE IN VIEW OF THE FACT THAT LANDS ARE INVOLVED WHICH IT WILL BE NECESSARY TO FLOOD IN THE NEXT TWO OR THREE WEEKS.

A-14244, MAY 13, 1926, 5 COMP. GEN. 907

JUDGMENTS - CONDEMNATION PROCEEDINGS WHERE CONDEMNATION PROCEEDINGS ARE INSTITUTED BY THE RECLAMATION SERVICE UNDER THE PROVISIONS OF SECTION 7 OF THE ACT OF JUNE 17, 1902, 32 STAT. 389, IT IS NOT NECESSARY THAT THE DAMAGES SHALL BE ASSESSED AND PAID BEFORE THE GOVERNMENT IS ALLOWED TO TAKE POSSESSION, NOTWITHSTANDING A STATE STATUTE TO THE CONTRARY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, MAY 13, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 6, 1926, READING IN PART AS FOLLOWS:

PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 17, 1902 (32 STAT. 388), AND ACTS OF CONGRESS AMENDATORY THEREOF AND SUPPLEMENTARY THERETO, THE UNITED STATES, THROUGH THE BUREAU OF RECLAMATION OF THIS DEPARTMENT, IS CONSTRUCTING A LARGE DAM ACROSS THE SNAKE RIVER AT AMERICAN FALLS, IDAHO. CERTAIN LANDS ARE REQUIRED FOR RIGHTS OF WAY FOR THE RESERVOIR TO BE CREATED BY THE DAM. THE BUREAU OF RECLAMATION HAS ENDEAVORED TO OBTAIN TITLE TO THESE LANDS BY CONVEYANCES FROM THE OWNERS, BUT WHERE DISAGREEMENTS HAVE OCCURRED CONDEMNATION PROCEEDINGS HAVE BEEN INSTITUTED BY VIRTUE OF SECTION 7 OF THE ACT OF JUNE 17, 1902, SUPRA.

IN THE CASE OF THE UNITED STATES V. RUSSELL HARRIMAN, ET AL, NO. 549 OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO, EASTERN DIVISION, IT IS ESSENTIAL THAT POSSESSION OF THE PROPERTY BE SECURED PRIOR TO THE TRIAL OF THE CASE IN VIEW OF THE FACT THAT LANDS ARE INVOLVED WHICH IT WILL BE NECESSARY TO FLOOD IN THE NEXT TWO OR THREE WEEKS, AS THE WORK OF THE CONTRACTOR ON THE AMERICAN FALLS DAM HAS ADVANCED SUFFICIENTLY TO PERMIT THE STORING OF WATER AND BEGIN FLOODING THE LANDS INVOLVED.

AS IT IS IMPOSSIBLE TO TRY THIS CASE UNTIL THE OCTOBER TERM OF THE FEDERAL COURT, IN ORDER TO SECURE POSSESSION OF THE PROPERTY PRIOR TO TRIAL OF THE CASE THE UNITED STATES HAS SECURED AN ORDER OF THE COURT APPOINTING THE THREE COMMISSIONERS OR APPRAISERS PROVIDED FOR IN SECTION 7420 OF THE IDAHO COMPILED STATUTES. THE THREE COMMISSIONERS APPOINTED BY THE COURT HAVE TAKEN THEIR OATH OF OFFICE AND HAVE GIVEN NOTICE THAT THEY WILL HEAR THE EVIDENCE AS TO THE DAMAGES.

THE ONLY WAY IN WHICH THE UNITED STATES CAN SECURE POSSESSION OF THE PROPERTY INVOLVED IN TIME TO PERMIT STORAGE OF WATER IS BY DEPOSITING WITH THE CLERK OF THE COURT THE AMOUNT OF THE DAMAGES AS DETERMINED BY THE THREE COMMISSIONERS, PURSUANT TO THE PROVISIONS OF SECTION 7420 OF THE IDAHO COMPILED STATUTES, WHICH PROVIDE IN PART AS FOLLOWS:

"THAT AT ANY TIME AFTER THE COMMENCEMENT OF PROCEEDINGS IN THE DISTRICT COURT, AS PROVIDED FOR IN THIS TITLE, TO CONDEMN PROPERTY, AND UPON 10 DAYS' NOTICE TO THE ADVERSE PARTY, THE DISTRICT COURT OR THE JUDGE THEREOF MAY APPOINT THREE DISINTERESTED PERSONS, WHO SHALL BE RESIDENTS OF THE COUNTY IN WHICH THE LAND IS SITUATED, AS COMMISSIONERS TO ASSESS AND DETERMINE THE DAMAGES THAT THE DEFENDANT WILL SUSTAIN BY REASON OF THE CONDEMNATION AND APPROPRIATION OF THE PROPERTY DESCRIBED IN THE COMPLAINT, AND THE SAID COMMISSIONERS SHALL, BEFORE ENTERING UPON THE DISCHARGE OF THEIR DUTIES, TAKE AND SUBSCRIBE AN OATH TO FAITHFULLY AND IMPARTIALLY DISCHARGE THEIR DUTIES AS SUCH COMMISSIONERS. SUCH COMMISSIONERS SHALL GIVE AT LEAST FIVE DAYS' NOTICE IN WRITING OF THE TIME AND PLACE WHERE THEY WILL MEET FOR THE PURPOSE AFORESAID, WHICH PLACE, UNLESS AGREED UPON BETWEEN THE TWO PARTIES, SHALL BE WITHIN FIVE MILES OF THE PREMISES AFORESAID. AT THE TIME AND PLACE MENTIONED IN SUCH NOTICE THEY MAY ADMINISTER OATHS TO WITNESSES, AND HEAR THE EVIDENCE OFFERED BY THE PARTIES, AND, AFTER VIEWING THE PREMISES, SHALL REPORT IN WRITING THEIR PROCEEDINGS AND THE DAMAGES WHICH THEY FIND THE DEFENDANT WILL SUSTAIN BY REASON OF THE CONDEMNATION AND APPROPRIATION OF SAID PROPERTY, WHICH REPORT SHALL BE SIGNED BY SAID COMMISSIONERS, OR A MAJORITY THEREOF, AND BE FILED IN THE OFFICE OF THE CLERK OF THE DISTRICT COURT IN WHICH SUCH ACTION SHALL BE PENDING; AND AT ANY TIME AFTER PAYMENT TO THE DEFENDANT OF THE AMOUNT SO ASSESSED AND FOUND BY SAID COMMISSIONERS AS DAMAGES, OR IN CASE THE DEFENDANT SHALL REFUSE TO RECEIVE THE SAME, THEN AT ANY TIME AFTER SUCH AMOUNT SHALL BE DEPOSITED WITH THE CLERK OF THE SAID COURT TO ABIDE THE RESULT OF SAID ACTION, THE PLAINTIFF MAY ENTER UPON, AND TAKE POSSESSION OF AND USE, THE PROPERTY MENTIONED IN THE COMPLAINT, UNTIL THE FINAL CONCLUSION OF THE LITIGATION CONCERNING THE SAME: PROVIDED FURTHER, THAT AT THE TIME OF MAKING SUCH PAYMENT TO THE DEFENDANT OF THE AMOUNT SO ASSESSED AND FOUND BY SAID COMMISSIONERS AS DAMAGES, OR IN CASE THE DEFENDANT SHALL REFUSE TO RECEIVE THE SAME, THEN AT ANY TIME AFTER SUCH AMOUNT SHALL BE DEPOSITED WITH THE CLERK OF THE SAID COURT TO ABIDE THE RESULT OF SAID ACTION, THE PLAINTIFF MAY ELECT TO BUILD THE FENCES, CATTLE GUARDS, AND OTHER STRUCTURES BY SAID COMMISSIONERS FOUND TO BE NECESSARY, AND MAY EXECUTE TO THE DEFENDANT A BOND AS PROVIDED IN SECTION 7417.'

IN VIEW OF THE URGENCY OF THE CASE, SPECIAL AUTHORITY IS REQUESTED FOR THE LOCAL FISCAL AGENT OF THE BUREAU OF RECLAMATION TO MAKE SUCH PAYMENT TO THE DEFENDANT OF THE AMOUNT SO ASSESSED AND FOUND BY THE COMMISSIONERS AS DAMAGES; OR IN CASE THE DEFENDANT SHALL REFUSE TO RECEIVE SUCH PAYMENT, TO DEPOSIT SUCH AMOUNT WITH THE CLERK OF THE COURT, AS PROVIDED BY SECTION 7420 OF THE IDAHO COMPILED STATUTES.

SECTION 7 OF THE ACT OF JUNE 17, 1902, 32 STAT. 389, UNDER WHICH THE CONDEMNATION PROCEEDINGS IN QUESTION WERE INSTITUTED PROVIDES:

THAT WHERE IN CARRYING OUT THE PROVISIONS OF THIS ACT IT BECOMES NECESSARY TO ACQUIRE ANY RIGHTS OR PROPERTY, THE SECRETARY OF THE INTERIOR IS HEREBY AUTHORIZED TO ACQUIRE THE SAME FOR THE UNITED STATES BY PURCHASE OR BY CONDEMNATION UNDER JUDICIAL PROCESS, AND TO PAY FROM THE RECLAMATION FUND THE SUMS WHICH MAY BE NEEDED FOR THAT PURPOSE, AND IT SHALL BE THE DUTY OF THE ATTORNEY GENERAL OF THE UNITED STATES UPON EVERY APPLICATION OF THE SECRETARY OF THE INTERIOR, UNDER THIS ACT, TO CAUSE PROCEEDINGS TO BE COMMENCED FOR CONDEMNATION WITHIN THIRTY DAYS FROM THE RECEIPT OF THE APPLICATION AT THE DEPARTMENT OF JUSTICE.

THE PROCEEDINGS AUTHORIZED UNDER THIS ACT ARE AN EXERCISE OF THE RIGHT OF EMINENT DOMAIN VESTED IN THE FEDERAL GOVERNMENT AND SUCH RIGHT OR POWER CAN NEITHER BE ENLARGED NOR DIMINISHED BY A STATE NOR CAN A STATE PRESCRIBE THE MANNER IN WHICH SUCH RIGHT OR POWER MAY BE EXERCISED. KOHL ET AL. V. UNITED STATES, 91 U.S. 374. THEREFORE, SECTION 7420 OF THE IDAHO COMPILED STATUTES QUOTED ABOVE IS INAPPLICABLE WHERE CONDEMNATION PROCEEDINGS ARE INSTITUTED BY THE FEDERAL GOVERNMENT.

IN THE CASE OF THE UNITED STATES V. O-NEILL, 198 FED.REP. 677, A STATUTE OF THE STATE OF COLORADO SIMILAR TO THAT OF THE STATE OF IDAHO HERE IN QUESTION WAS CONSIDERED AND IT WAS HELD THAT IN CONDEMNATION PROCEEDINGS BY THE UNITED STATES UNDER THE ACT OF JUNE 17, 1902, SUPRA, IT IS NOT NECESSARY THAT THE DAMAGES SHALL BE ASSESSED AND PAID BEFORE THE GOVERNMENT MAY BE ALLOWED TO TAKE POSSESSION.

YOU ARE ADVISED THAT THE PAYMENT OF ANY AMOUNT AS DAMAGES UNDER CONDEMNATION PROCEEDINGS OF THE BUREAU OF RECLAMATION IS UNAUTHORIZED UNTIL THE AMOUNT OF SUCH DAMAGES HAS BEEN FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION AND SUCH PAYMENTS ARE TO BE EFFECTED BY MEANS OF SETTLEMENTS MADE BY THIS OFFICE. DECISION OF MARCH 18, 1926, A-13467, 5 COMP. GEN. 737.