now exists. His claim is that he has the right, by virtue of the original Order, to require plaintiff to hold all its property in the hands (or formerly in the hands) of subcontractors subject to his orders, and that he, without formal seizure, may require delivery of parts of it to him if and when he may need them for use in the main plant. By his contention he proposes to deny all use of the property to plaintiff, although making it liable for its preservation, in order that he later may, or may not, obtain a part of it for use in the main plant.
The defendant's position is without authority of law. When the United States requires real estate it files its petition to condemn it, thereby making itself liable to the owner for its value. When it seizes a plant, as in the instant case, it is required to do so in such manner as to make itself liable for the preservation of the property taken over and to make it plain just what property has been seized. If property, even though described, has not been taken over and the United States has never entered into possession of it, no liability for its seizure exists. See Marion & R.V. Ry. Co. v. United States, 270 U.S. 280, 46 S. Ct. 253, 70 L. Ed. 585. In the instant case the Navy Department never took possession of the property in the hands of subcontractors, but continued to deal with the said subcontractors and the owners in apparent recognition of their rights and in substantial admission that it was not part of the seized property.
The defendant, in addition to his rather tenuous claim of right under the original order, has presented several defenses along technical lines.
He contends that this is a suit against the United States, which cannot be made a party; also that plaintiff has a remedy at law by suit in the Court of Claims against the United States; also that defendant's superiors, not joined, are essential parties.
This action is not against the United States. The charge is that defendant has wrongfully invaded the property rights of plaintiff, and the remedy is to be sought in equity to restrain him. See Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S. Ct. 340, 56 L. Ed. 570; Lane v. Watts, 234 U.S. 525, 34 S. Ct. 965, 58 L. Ed. 1440; Payne v. Central Pac. Ry. Co., 255 U.S. 228, 41 S. Ct. 314, 65 L. Ed. 598; Ickes v. Fox, 300 U.S. 82, 97, 57 S. Ct. 412, 81 L. Ed. 525.
The superiors of defendant are not essential parties. This is the active officer in charge of the work. He and his superiors are acting without lawful authority. Each of them may be liable, and individually liable, but that does not mean that all must be joined, particularly when the effect of the joinder would defeat the action by reason of inability to serve some of the parties. Acting as he has been without lawful authority no need for joinder of superiors is required.
Some time was consumed by counsel in argument in connection with an agreement entered into by defendant and plaintiff after the seizure of the plant. That agreement related to property desired neither by plaintiff nor defendant for use in the plant, and by it the plaintiff was allowed to sell the property in question and the United States was relieved of any claim for liability therefor. The defendant points to it and says that plaintiff might obtain leave to sell certain of the property originally in the hands of subcontractors if it will apply to defendant and obtain permission to do so. The answer is that it might or might not obtain the permission and in any event is not required to ask such permission where defendant is acting without authority of law. This agreement is of no particular moment in the instant action.
The motion for a preliminary injunction will be granted.
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