Was the Federal act of 1882 for the condemnation of land used in the aqueduct constitutional or ever ruled against?

The 1882 Act for Increasing the water supply to D.C. changed how land was condemned for the aqueduct. This changed how the land was condemned because it took compensation for the land out of the Maryland courts and placed jurisdiction for awarding amounts to the U.S. Court of Claims.
 

• Laws Relating to Aqueduct Land Condemnation
• 1885 U.S. District Court: GFMC v. Garland, Atty. Gen.
• 1888 U.S. Supreme Court: GFMC v. the Attorney General
• Post 1888 Cases Citing Supreme Court Case 12,086: GFMC v. the Attorney General

Laws Relating to Aqueduct Land Condemnation
March 3, 1853, the 32d Congress passed an appropriations act that had the following provision (vol. 10, Statutes at Large, in general appropriation bill, p. 206, passed March 3, 1853).

"Provided, That if the plan adopted by the President of the United States should require water to be drawn from any source within the limits of Maryland, the assent  of the legislature of that State should first be obtained;"

"Sec. 3. And be it enacted, That in the condemnation and assessment of such lands and materials as may be necessary for said purposes, the like proceedings in all respects shall be had, as by existing laws are required for the condemnation and assessment of lands and materials, for the use and construction of the Chesapeake and Ohio canal and the works appurtenant thereto."

1885 U.S. District Court: GFMC v. Garland, Atty. Gen.
In 1885, the Great Falls Manufacturing Company made an unsuccessful attempt to block the completion of the dam as detailed in GREAT FALLS
MANUFACTURING CO. v. GARLAND, Atty. Gen., etc., and others. Circuit Court of the United States for the District of Maryland 25 F. 521; 1885 U.S. App. LEXIS 2287.

"The want of lawful warrant for the acts complained of it be complainant's bill put upon the ground, (1) the unconstitutionality of the act of congress of July 15, 1885; and, (2) conceding the constitutionality of the act, upon the failure to pursue its terms."

The grounds upon which the constitutionality of this act of congress is attacked, are thus stated in complainant's bill:

   "And your complainant is informed and believes, and therefore avers, that even if the provisions of said act were ever so strictly followed by said attorney general and said secretary of war, and their servants and agents, and their acts done in the premises in strict accordance therewith, yet their said acts and doings, as regards your complainant, would not be justified in law, because said act is unconstitutional, and void in its provisions in these: (1) Said act makes no provisions by which reasonable compensation for the property taken for public use under its provisions can be constitutionally and lawfully adjusted and determined. (2) It does not provide that the compensation in its amount shall be ascertained by a verdict of a jury, which is a constitutional right of your complainant. (3) The act has provided that whatever wrong and injury may be done to your complainant in carrying on this public work, or in taking its land and water for such purpose of public use, that the only tribunal to which your complainant is compelled to have recourse for the adjudication of its rights is the court of claims, which is a court unknown to the constitution, being neither a court of equity, such as was known to our ancestors at the time of the ratification of the constitution, nor a court of common law, as said court does not proceed, by its constitution, in the determination of cases according to the rules of the common law as known and practiced at the time aforesaid.  (4) That said court of claims is    not other and different from a board of referees constituted by one party to hear and determine such cases as another party will consent to submit to judgment thereby, and even such judgment is not authoritative or binding against the party that chooses the board of referees. In addition to this, said act makes a limitation on the power of the referees to enforce any judgment against the United States, because it enacts that judgments of these referees, to whom the act compels those whose property is taken for public use alone to resort, shall be paid as other judgments of said board of referees are to be paid, -- only when the judgment debtor pleases to pay them; i.e. pleases to make an appropriation for that purpose. (5) In this, that the act directs property to be taken and entered upon, and the owner dispossessed therefrom, without any provision by which the compensation for taking said property can be paid, and this is done when neither the act nor the surrounding facts show any need of haste in so doing, or any necessity which requires that property be taken until after an appropriation at least has been made for compensation for so doing."
 

  "It seems to us apparent that the agents of the complainant knew what the United States proposed to appropriate, and were negotiating with the officers of the government up to the time of filing the claim in the court of claims with regard to a proper settlement of the amount of compensation, and could not agree with them.  All, then, that was intended to be accomplished by the act in order to bring about an agreement and purchase, if possible, was attempted and failed, and we think that all that was necessary to give jurisdiction to the court of claims was done, and the case is now in that court for determination, just as the act of congress intended it should be if the parties could not agree as to the amount to be paid in compensation; and as the filing of the claim was the act of the complainant, we know of no reason why it should not be held a waiver by it of merely formal antecedent matters.
   It remains then to consider whether the act of congress is unconstitutional, and the employs of the government trespassers, because, without having paid the compensation, and without completing the proceedings to ascertain the amount of compensation, possession was taken of the premises embraced in the survey, and the construction of the work proceeded with.  In Cooley, Const. Lim. 560, it is said to be the rule deducible from adjudged cases that unless there is some constitutional or legislative requirement, it is not essential to the validity of a law for the exercise of eminent domain that provision should be made for payment of compensation before the actual taking of the property, where the taking is by the sovereign power itself; and that when the taking is by the state itself, not by a private corporation under authority from the state, it is sufficient if provision is made by the law by which the party whose [**24]  property is taken can obtain compensation, and an impartial tribunal provided for assessing it.  The same rule is given as the result of the authorities in Mills, Em. Dom. @ 126, and in Potter's Dwar. St. 391.
   It must be acknowledged that this doctrine goes to the verge of what can be sanctioned without destroying the essential right of the citizen to have just compensation secured to him before his property is entered upon and he is dispossessed.  But there are numerous cases reported in which the courts have relaxed the strict rule applicable to private corporations in favor of the sovereign power itself, where the legislature has deemed the importance and urgency of the public use sufficient to call for taking the property before the compensation is ascertained, and where the solvency of the state was undoubted, its good faith unquestioned, an adequate method of ascertaining the compensation provided, which the party could pursue of his own motion, and the delay in payment only caused by the unavoidable checks and precautions with regard to payments and expenditures of public moneys.  Haverhill Bridge Co. v. County  Com'rs, 103 Mass. 125.
    The present case is one in which all the reasons which have induced the courts to relax the rule requiring payment to precede entry apply very strongly.  The land and water-rights of the complainant in question were not and never have been used in any beneficial manner whatever, but have remained unimproved and vacant.  The complainant admits that it is willing and anxious to sell to the United States whatever of its property and rights may be required for the proposed water supply, in order that it may get the price, and also in order that it may hold the balance of its property unclouded by the uncertainty as to how much may be required for this public work, which it is obvious sooner or later must be carried out.  All the complainant desires is to obtain payment for what it does not now use itself, and which it is clear the government ought to take.  The officers of the government, knowing that in any event the water supply must be taken from the Great Falls of the Potomac, without waiting for the completion of the proceedings by which the compensation was to be ascertained, proceeded, as directed by the act of congress, to construct the dam and other works.  This application for injunction is made some 18 months after these works were commenced, and after contracts have been made, costly coffer-dams put down in the river, and other expensive preparations made for pushing the work during the summer months.  If the injunction should now issue, and the work be interrupted until the meeting of congress, much of this large expenditure will be sacrificed.  Without therefore undertaking to sanction any rule by which, in general, property may be taken into possession without compensation first being made, even when not expressly forbidden by constitutional or legislative provision, it does seem to us that this is a case in which we should decline to interfere by injunction at this time, if the means provided by the act of congress to ascertain the amount of compensation are adequate and proper, and the payment of the amount, when ascertained, reasonably provided for and assured.
   The only remaining question then is as to the provision of the act of congress that the "judgment of the court of claims in favor of the claimants shall be paid as other judgments of said court are now directed to be paid;" that is to say, the judgment may be paid out of any appropriation made by congress  for the payment of such claims as have been established by that court.  It is urged that after the judgment of the court of claims has been obtained, the failure of congress to pass a law appropriating money to pay the judgment would defeat the complainant's efforts to get payment for its property.  This is true.  But it is also true that congress always has heretofore appropriated the money required to pay the judgments of the court of claims; and as it has specially designated that court as the tribunal to ascertain what amount shall be paid to the complainant, nothing but a flagrant breach of good faith could delay the payment.  The possibility of such action on the part of congress, under all the circumstances of this case, we do not think sufficient to justify the issuing of a preliminary injunction.  If the complainant is so advised, this cause may be continued, so that hereafter, if it should indeed prove to be true that a certain and adequate provision has not been made for payment of the amount which shall be ascertained to be due to the complainant, the further action of this court may be invoked.
   The application for a preliminary injunction is denied."

In the appeal to the Supreme Court of the District Court's decision not to grant an injunction for the completion of the dam based on the 1882 law, Ben Butler and O.D. Barrett argued the following for the Great Fall's Manufacturing Company:

"  I.  The act of 1882 in its provisions is unconstitutional: (1) In that it does not take private property for public use.  Instead thereof it takes land and water-power, the property of the United States under the award, but for which the Government has not paid compensation to the owner: (2) In that the act tends to avoid an adjudication and determination of damages for land already taken by the United States by a new taking: (3) In that the act tends to avoid and set [***21]  aside a compact with a sovereign State for the making of which the Government has received consideration from the State and its citizens, to which the faith of the Government is solemnly pledged: (4) In that it takes private land and water privileges in that State without the assent of the State of Maryland, or any cession of jurisdiction thereof, for the use of the inhabitants of Washington and Georgetown:

   II.  It is unconstitutional in that it does not provide for a constitutional and impartial tribunal to assess and determine the damages or compensation for the private property taken, if the taking is a "purchase" or condemnation in these: (1) It provides for a valuation of land and water rights taken, for the purpose of fixing just compensation for the taking by appraisers, all appointed by an agent of the Government only, and does not provide any notice to the injured party to take part in such appointment, or to be present, or heard at the appraisement.  And the only provision for compensation is a tender of such valuation, and to get that, a deed of its land must be executed at his own expense by the injured party: (2) It provides that such appraisers shall not consider the true and just value of the property taken or injured as compensation, in these words: "In making the valuation the appraiser shall only consider the present value of the land, without reference to the value for the uses for which it is taken, under the provisions of this act:" (3) It does not provide for a constitutional tribunal by which damages and compensation shall be assessed for private lands taken for a public use, such controversy being a "suit at law," the trial by jury was not provided, nor any tribunal whose judgment as to compensation can be enforced; nor is any pledge of the faith of the Government that said compensation shall be paid, or any payment ordered, save in case such appraisement is accepted: (4) In this, that it provides as the only tribunal, the Court of Claims, which has no power to enforce the payment of any of its decisions, or to adjudicate cases or suits like the present, where specific performances of contracts is to be adjudged and enforced: (5) In that the act does not provide, nor is there any other provision of law by which the compensation for the property taken shall be paid, or any fund from which it shall be paid, save such as may hereafter be voted by the legislature, and approved by the accounting officers of the Treasury.

   III.  The Circuit Court erred in this: Assuming the provisions of the act to be within the purview of the Constitution, and the manner of taking as described by the act is not in any of its parts constitutionally objectionable, the court should have overruled the demurrer, and granted the relief sought for by the bill by some proper order and decree in favor of your orator: (1) Because it was the duty of those charged with the execution of the act to carry out and enforce every provision thereof in relation to purchasing and to "acquiring said land and water rights," and providing for valuation and appraisement thereof, and so to do all things that your orator might get relief in the premises without any delay except that of urgent necessity.  As to all and each of which duties, doings, and things to be done, prescribed by said act relative to your orator or his said lands, said officers or either of them did nothing: (2) Because that the Secretary of War and his officers and agents became trespassers ab initio, by entering upon the lands of your complainant and taking possession of them.  By the provisions of said act, "upon the publication of the notice as above directed, the Secretary of War may take possession of the premises embraced in the survey and map, and proceed with the constructions herein authorized; and upon payment being made therefor, or without payment upon the expiration of the time above limited, without the filing of a petition, an absolute title shall vest in [***26]  the United States;" and no surveys or proper map embracing the lands had been made by him, as is charged in the bill, and as is admitted by the demurrer; nor was any provision for payment made; and, without payment or provision for payment, Congress cannot vest an absolute title to the lands of the citizen in the United States: (3) Because, if the officers charged with the execution of this act, do on the land anything nor authorized and directed by the act, or take any other and different, or more property, or for any other purpose than they are permitted by the act, then such officers become trespassers ab initio, and should be enjoined, and other relief against them be afforded."

"Upon the case as presented to us, and without intending to express doubt as to the constitutionality of the act of July 15, 1882, we are of the opinion that there is no obstacle in the way of the plaintiff's securing, by means of its suit in the Court of Claims, and without unreasonable delay, just compensation for all of its property taken for the public use indicated in the act of Congress; and, consequently, the decree dismissing its bill is Affirmed."

 

negative treatment	13 cases
possible negative treatment	23 cases
positive treatment	6 cases
neutral analysis	4 cases
cited (no treatment indicated)	21 cases

It does not appear that the 1882 law was ever ruled unconstitutional and none of the cases examined question the authority of the Federal Government from condemning land using Eminent Domain without having the state's approval or circumventing state courts. Below are the themes discussed when the Great Falls cases are cited.

• "We do not think the rule that one may not in the same proceeding both rely upon and assail a statute n14 is applicable to the present situation. In the cases the Government  [*140]  cites, the litigants had received or sought advantages from the statute that they wished to attack, advantages other than the mere right to sue. What we are concerned with in this case is not an estoppel to sue but the allowable scope of the statutory jurisdiction."
• Oklahoma v. United States Civil Service Com., 330 U.S. 127, 91 L. Ed. 794, 67 S. Ct. 544, 1947 U.S. LEXIS 2860 (1947)
• Question jurisdiction of Court of Claims (federal jurisdiction not state)
• United States v. Lynah, 188 U.S. 445, 47 L. Ed. 539, 23 S. Ct. 349, 1903 U.S. LEXIS 1290 (1903)
• Scranton v. Wheeler, 57 F. 803, 1893 U.S. App. LEXIS 2207 (6th Cir. Mich. 1893)
• In the law of eminent domain, it is thoroughly well established that the property owner who has accepted compensation for his property taken in condemnation proceedings cannot thereafter question the validity or constitutionality of the act or the regularity of the procedure by which the property was taken. " (US v. McIntosh)
• United States v. McIntosh, 2 F. Supp. 244, 1932 U.S. Dist. LEXIS 1618 (D. Va. 1932)
• Snowden v. Ft. Lyon Canal Co., 238 F. 495, 1916 U.S. App. LEXIS 1365 (8th Cir. Colo. 1916)
• Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 80 L. Ed. 688, 56 S. Ct. 466, 1936 U.S. LEXIS 947 (1936)
• Frost v. Corporation Com. of Oklahoma, 278 U.S. 515, 73 L. Ed. 483, 49 S. Ct. 235, 1929 U.S. LEXIS 338 (1929)
• Wall v. Parrot Silver & Copper Co., 244 U.S. 407, 61 L. Ed. 1229, 37 S. Ct. 609, 1917 U.S. LEXIS 1653 (1917)
• United States v. Nedelman, 104 F.2d 549, 1939 U.S. App. LEXIS 4179 (7th Cir. Ill. 1939)
• Boczar v. Kingen, 2000 U.S. Dist. LEXIS 11615 (S.D. Ind. Mar. 9, 2000)
• "We are satisfied 1292 *9 that they will have. The Supreme Court in a long line of decisions which we cite in the margin has settled it that, when the United States 'takes' property for a public purpose, an implied promise arises to pay compensation to the owner, even though no statute so provided. n8" (McGrath v. Cities Service)
• McGrath v. Cities Service Co., 189 F.2d 744, 1951 U.S. App. LEXIS 3231 (2d Cir. N.Y. 1951)
• Commercial Station Post Office, Inc. v. United States, 48 F.2d 183, 1931 U.S. App. LEXIS 4206 (8th Cir. Minn. 1931)
• Sponenbarger v. United States, 21 F. Supp. 28, 1937 U.S. Dist. LEXIS 1312 (D. Ark. 1937)