notion that Congress intended that, as a collateral result of the Joint Resolution of 1947, the permissible period for extension of temporary takings had been delimited.
Still further, defendant is apparently under the impression that the temporary housing project located on his land is in existence because the Administrator has exercised his authority and declared it within the exception provision of section 313. However, such is not the case in this proceeding. The Government's taking is identified with the emergency which has not been terminated. As noted, the removal date is now December 31, 1952, unless an exception is determined by the Administrator, or unless Congress extends the December 31, 1952 period. In any event, the Administrator has not deemed the housing project located on defendant's land as within the exception provision of section 313. Until such time as the Administrator so acts, the question of whether or not there has been a new taking is not in issue.
Still further regarding the purpose for which the estate was acquired, the pleadings note a housing project due to an acute housing shortage.
As early as Stewart v. Kahn, 1870, 11 Wall. 493, 507, 20 L. Ed. 176 and Hamilton v. Kentucky Distilleries & Warehouse Co., 1919, 251 U.S. 146, 161, 40 S. Ct. 106, 110, 64 L. Ed. 194, it was held that: ' * * * 'The power (referring to the war power) is not limited to victories in the field and the dispersion of the insurgent forces. It carries with it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress.' * * * '
It is important to remember that it is the function of the Legislature to determine in the first instance what uses are public, and when Congress has spoken its decision is entitled to deference until it is shown to involve an impossibility. Old Dominion Land Co. v. United States, 1925, 269 U.S. 55, 66, 46 S. Ct. 39, 70 L. Ed. 162; United States v. Gettysburg Electric Ry. Co., 160 U.S. 668, 680, 16 S. Ct. 427, 40 L. Ed. 576; United States ex rel. T.V.A. v. Welch, 327 U.S. 546, 551, 66 S. Ct. 715, 90 L. Ed. 843. By express declaration of authority set out in the Lanham Act, Congress decreed that housing for persons engaged in national defense activities was essential to the national defense, 42 U.S.C.A. § 1521. 'Such legislation is clearly within the war powers granted to Congress by the Constitution', United States v. City of Chester, 3 Cir., 144 F.2d 415, 418; United States v. Certain Parcels of Land, Etc., D.C., 54 F.Supp. 943, although the authority to acquire land for a defense housing project exists by legislation independent of the war powers, United States v. Certain Land in Juneau, D.C., 70 F.Supp. 609. As the Supreme Court said in Highland v. Russell Car Co., 279 U.S. 253, 261, 49 S. Ct. 314, 316, 73 L. Ed. 688: 'Under the Constitution and subject to the safeguards there set for the protection of life, liberty, and property * * * the Congress and the President exert the war power of the nation, and they have wide discretion as to the means to be employed successfully to carry on * * * . The measures here challenged are supported by a strong presumption of validity, and they may not be set aside unless clearly shown to be arbitrary and repugnant to the Constitution. * * * '
Where the Federal Government under the Constitution has power to undertake the purpose for which land is sought to be condemned, then the use is a public one. City of Oakland v. United States, 9 Cir., 124 F.2d 959, 964, certiorari denied, 316 U.S. 679, 62 S. Ct. 1106, 86 L. Ed. 1753.
It is immaterial whether such defense housing projects constructed under the provisions of the Lanham Act are put to other uses and are not occupied by persons engaged in national defense activities. United States v. City of Philadelphia, D.C., 56 F.Supp. 862, affirmed per curiam, 3 Cir., 147 F.2d 291, certiorari denied, 325 U.S. 870, 65 S. Ct. 1410, 89 L. Ed. 1989.
Far from having abandoned the public use for which the proceedings were instituted, the property is still being used for a housing project for persons authorized to occupy such housing under existing legislation and regulations.
In the instant problem the McCrady-Rodgers Company when purchasing the involved lands took subject to the Government's possession and rights, under authority of law. The fact that a taking may prove a hardship upon an owner of property is no defense against the exercise of the power of eminent domain. United States v. 385 Acres of Land, Etc., D.C., 61 F.Supp. 746, 748-749. The government may acquire for public purposes such property as it may determine. United States v. 60,000 Square Feet of Land, Etc., D.C., 53 F.Supp. 767, 770. Furthermore, the Fifth Amendment to the Constitution does not prevent the United States and the landowner from entering into an agreement relating to the value of the land, such as was done in this action. The parties may bind themselves to a consideration which may be either greater or less than just compensation in the constitutional sense. Even the extension of a contract over a period of years does not exclude it or render it bad in a condemnation proceeding because the present cash value of such a contract can be determined. Mahowald v. United States, 8 Cir., 176 F.2d 509, 511; Scott v. United States, 6 Cir., 161 F.2d 1009, 1012; Oliver v. United States, 8 Cir., 155 F.2d 73, affirmed sub nom., Albrecht v. U.S., 329 U.S. 599, 603, 67 S. Ct. 606, 91 L. Ed. 532; Bank of Edenton v. United States, 4 Cir., 152 F.2d 251, 254.
In fact, the McCrady-Rodgers Company in the agreement entered into with the Bole heirs (September 30, 1948) for the purchase of the land in question, acknowledged, among other things, that it took subject to the rights of the Government; that the emergency still continued; that the Government was in possession for the emergency and three years thereafter.
The fact that the stipulation entered into by the Federal Government with the original owner, as to compensation, was subsequent to the McCrady-Rodgers Company purchasing the involved lands in no way invalidated said stipulation. For the McCrady-Rodgers Company executed and agreed to said stipulation as follows: 'This stipulation is executed and agreed to by McCrady-Rodgers Company upon the condition, anything heretofore stated notwithstanding, that the annual just compensation shall obtain only until midnight July 24, 1950, the termination of the period authorized in these proceedings.'
I believe the defendant's position is premised upon an erroneous assumption since I am satisfied the 'period authorized in these proceedings' has not terminated; that the emergency under which the present taking was effected has been terminated neither by Presidential Order or Congressional enactment.
All owners of real estate, regardless of when title was acquired, are governed by the amount of just compensation agreed upon at the date of the original declaration of taking. The amended declaration of taking did nothing more than extend the period of use in accordance with existing law, and must of necessity refer back to the time of original taking.
To hold otherwise would place the Government in a situation where the amount of just compensation could be questioned at any time. A real estate owner could circumvent the amount agreed upon for just compensation by a conveyance and sale of the premises to a third person.
There must be a time when the amount of sufficient compensation becomes definite and conclusive, and if the owners at the time of taking or at a subsequent time to the taking regardless of whether title has been transferred or not, in whole or in part, agree upon the amount with the Government, such has the same effect as judicial determination of the question. This cannot be altered by a subsequent owner where an amended declaration of taking is filed to extend the period of taking in accordance with existing law.
The rule of McCrady-Rodgers Company to show cause why it should not be permitted to intervene is granted.
The rule of the United States of America to fix the amount of just compensation for said premises in the sum of $ 1250.00 annually, without interest, beginning March 25, 1943 and continuing so long as the Government may be in possession of said land pursuant to said proceeding, including damages for the restoration of the land embraced in the proceedings at the termination of the Government's use, is made absolute.
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