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June 29, 1967

UNITED STATES of America, Plaintiff,
17.0098 ACRES OF LAND (LAWNCROFT CEMETERY) Situate IN DELAWARE COUNTY, COMMONWEALTH OF PENNSYLVANIA, and Interstate Cemetery Company, and Unknown Owners, Defendants

The opinion of the court was delivered by: CLARY

 CLARY, Chief Judge.

 This is a pre-trial proceeding in a condemnation action, in which the United States of America (Government), on request of the Commonwealth of Pennsylvania (Commonwealth), is condemnor and Lawncroft Cemetery (Lawncroft), is condemnee. The Government has been asked to condemn Lawncroft for construction of a portion of the Interstate Highway System, Route 95. Lawncroft does not contest the power of the Government to make this condemnation; however, it does challenge the Government's asserted date of taking. Therefore, because the date of taking is the date on which value is determined and from which interest runs, the Government has petitioned this Court to fix the date of taking before trial is held to find Lawncroft's just compensation. The defendants have stipulated that the Commonwealth, through its contractors, entered the property on July 1, 1966.


 The Federal-Aid Highways Act (23 U.S.C. § 101 et seq.), authorizing the Interstate Highway System, calls for close co-operation between the States and the Government in its construction. "The Act contemplates that implementation of the interstate highway program, including right-of-way acquisition, shall be accomplished by the States to the extent possible." United States v. Certain Parcels of Land, etc., 209 F. Supp. 483 (S.D.Ill.1962). Indeed, the provision for Government condemnation of right-of-ways, 23 U.S.C. § 107(a), requires that before the Government may act, the State must (1) request Government condemnation, (2) be unable to acquire the land or act with sufficient promptness, and (3) agree to pay 10 percent of the costs. *fn1" [For a discussion that this provision does not limit federal eminent domain power, see United States v. Certain Parcels of Land, etc., supra, adopted by United States v. Pleasure Driveway and Park District of Peoria, Illinois, 314 F.2d 825 (7 Cir. 1963)].

 Thus, in May of 1965, the Commonwealth of Pennsylvania, with the approval of the United States Bureau of Public Roads, *fn2" condemned a portion of Lawncroft for construction of Route 95. Lawncroft challenged the power of the Commonwealth to make the condemnation and filed preliminary objections in the Court of Common Pleas of Delaware County. The preliminary objections were dismissed, and Lawncroft appealed to the Pennsylvania Supreme Court. The basis for the appeal was the Act of April 5, 1849, P.L. 397, § 1, 9 P.S. § 8, which provides:

"It shall not be lawful to open any street, lane, alley or public road through any burial ground or cemetery within this commonwealth, any laws, heretofore passed to the contrary notwithstanding: Provided, That this section shall not extend to the city or county of Philadelphia."

 However, on July 1, 1966, while Lawncroft's appeal was pending, the Commonwealth entered Lawncroft and began construction. Lawncroft petitioned the Supreme Court of Pennsylvania for an injunction, and on September 1, 1966, construction was enjoined. On September 27, 1966, Mr. Justice Eagen, writing for a majority of the Pennsylvania Supreme Court, held that the Commonwealth did not have the power to condemn Lawncroft. See: Interstate Cemetery Company Appeal, 422 Pa. 594, 222 A.2d 906 (1966). Thereafter, on November 15, 1966, the Government, in response to a written request from the Pennsylvania Department of Highways dated September 27, 1966, filed the instant suit against Lawncroft, and later that same day, Judge Harold K. Wood signed an Order for Delivery of Possession. The Government, however, does not claim November 15, 1966 as the date of taking; instead, it claims July 1, 1966, the date of the Commonwealth's illegal entry. The importance of the Government's claim becomes apparent with the additional fact that Lawncroft is now prosecuting in the State Courts a damage action against the Commonwealth for the illegal entry.

 "Ordinarily, when a condemnation suit is commenced by the Government, it files a declaration of taking as provided in 40 U.S.C. § 258a, but if the Government, prior to the commencement of the suit and the filing of a declaration of taking, has entered upon the property or has utilized it for its purposes, there is a taking and just compensation becomes due on that date." United States v. 1,060.92 Acres of Land, etc., 215 F. Supp. 811 (W.D.Ark.1963). In the instant case, although the Government has chosen to proceed under different statutory authority, *fn3" the rule of prior entry remains the same. United States v. Dow, 357 U.S. 17, 78 S. Ct. 1039, 2 L. Ed. 2d 1109 (1958). Thus, for the Government to succeed with its contended date of taking, it need only show that it entered or used Lawncroft on July 1, 1966. Since, factually, the Government actually did not enter or use Lawncroft on that date, it must show that it entered with the Commonwealth.

 These arguments, however, are not tenable. The Federal-Aid Highways Act (Act) does not contemplate or expect the relationships between the Government and the States which the Government urges this Court to find. Under the Act, the States retain all attributes of their sovereignty. Eden Memorial Park Association v. United States, 300 F.2d 432, 439 (9 Cir. 1962) held as follows:

"Moreover, analysis of the Federal-Aid Highways Act indicates that while close co-operation between the United States and the individual states was contemplated, the states or their agencies or officials were in no sense to become agents of the United States in projects authorized by that act. The whole tenor of the act is that the United States stands ready to assist the states when, under stated conditions, the states seek such assistance. Section 107 agreements are intended to confirm this arrangement, but not to create a principal and agent relationship in either direction."

 Thus, it is clear that the Act contemplates co-operation between independent entities, not the subordination or agency of the States, argued by the Government, and does not create, in the Government or the States, the capacity which would permit the formation of the argued-for agency relationships.

 Specifically, 23 U.S.C. § 107(a) (§ 107) is very exact in indicating the independent functions of the States and Government in right-of-way condemnation. Condemnation is left exclusively with the States, unless Government aid is (1) requested, (2) necessary, and (3) financially supported. In the instant case, the Government, acting in response to a concurrence of these three requirements, condemned Lawncroft on November 15, 1966. This was its first act against Lawncroft and must be held as the date of taking. Undoubtedly, the Government, under its general eminent domain power, could have acted earlier, but it did not so act, thus denying all possibility of an earlier taking. The Government chose to proceed under § 107, and ...

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