October 9, 1967
ERVIN HOHENSEE, APPELLANT,
STATE OF PENNSYLVANIA, DEPT. OF HIGHWAYS AND UNITED STATES OF AMERICA.
Before BIGGS, FREEDMAN and SEITZ, Circuit Judges.
Opinion OF THE COURT
The plaintiff-appellant Hohensee seeks to recover a judgment for land taken under the "Federal-Aid Highway Acts", 23 U.S.C.A. § 101 et seq. as appears. Assuming that jurisdiction existed in the court below, his claim must be denied under Martin v. Creasy, 360 U.S. 219, 224, 79 S. Ct. 1034, 1037, 3 L. Ed. 2d 1186 (1959). In Creasy the Supreme Court stated: "It must be assumed that the courts of Pennsylvania meant what they said in stating that the plaintiffs will be afforded a procedure through which the full measure of their rights under the United States Constitution will be preserved. Assuming, however, that there was a basis to support intervention by a court of equity, the District Court, we think, should nevertheless have declined to adjudicate this controversy." Hohensee has not invoked the aid of any State court insofar as the record shows.
The other issues raised by appellant need not be referred to. The judgment will be affirmed.
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