ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE VIRGIN ISLANDS.
Gibbons, Sloviter, and Becker, Circuit Judges.
This appeal presents the question whether an individual who succeeds to real property by intestacy may participate in condemnation proceedings brought against that property before he has formally been adjudicated an heir. The district court held that participation by such a person is foreclosed and therefore precluded appellant from contesting the Government of the Virgin Islands' estimate of the value of the condemned property. We disagree, and we therefore will vacate and remand for further proceedings.
In early 1980, the Government of the Virgin Islands (the "Government") instituted proceedings to condemn a number of parcels of land in Estate Nisky, St. Thomas. The record titleholder of two of the parcels was the recently deceased Ozias Parrott; the Government's petition therefore named as respondents the estate of Ozias Parrott and six of his twelve children.
The Government attempted to effect service on all respondents by serving Roy Parrott (the "appellant"), who is one of the children named as respondents*fn1 and also a member of the Virgin Islands Bar Association, but appellant refused to accept service, stating that he was not authorized to do so "in this action for any of the named respondents." (Emphasis added.) Thereafter, neither appellant nor any of the other respondents ever filed an answer or entered an appearance in response to the Government's petition.*fn2
Despite the lack of official response by appellants,*fn3 the district court appointed three Commissioners to value the land,*fn4 and the Commissioners notified all Parrott children by mail that the first meeting of interested parties and attorneys would be held on April 16, 1981. The notice stated that "each party will be required to produce evidence in support of what it believes to be just compensation." Only appellant showed up at the appointed time; however, he did not formally enter an appearance, either on his own behalf or as counsel for his siblings. Accordingly, the Government objected to appellant's participation in the proceedings, but the Commissioners nevertheless decided to hear him as an "amicus curiae." When they again convened on July 1, 1981, for the express purpose of accepting evidence on the value of each of the condemned parcels, however, the Commissioners granted (over appellant's objection) what they termed the Government's "ex parte motion" to accept the Government's estimate of the value of the Parrott property without the participation of any of parties named in the published notices.
Having been denied the opportunity to participate in the hearing on just compensation, appellant moved the district court to discharge the Commission or to issue an order to show cause why the Commissioners had not exceeded their authority in denying appellant the opportunity to present evidence of the value of the condemned property.*fn5 The Court ruled that appellant had no standing to make the motion and denied the requested relief, explaining that appellant could not participate in the hearing unless he appeared as the legal representative of the estate, as an adjudicated heir of Ozias Parrott, or as an attorney for any other adjudicated heir. Appellant could pretend to none of these roles;*fn6 he now appeals from the district court's refusal to allow him to participate.
The Government initially contends that we must dismiss this appeal for lack of appellate jurisdiction because the district court never entered a final order, see 28 U.S.C. § 1291 (1976) (amended 1982). Specifically, the Government notes that the Commission has not issued a final report on just compensation, in accordance with Fed. R. Civ. P. 71A(h) and 53(e)(2); nor has the district court taken any action "to adopt, modify, reject, recommit, or receive further evidence with respect to" any such report. Hence, the Government asserts, the district court's denial of appellant's motion for an order to show cause or to discharge the Commission is an unappealable interlocutory order in an as yet uncompleted proceeding to condemn a whole series of lands in addition to the Parrott parcels.
We recognize that the underlying litigation is not over, but we do not agree that the district court's denial of appellant's motion is unreviewable at this juncture. Although appellant styled his motion as one principally seeking to discharge the Commissioners, his grievance essentially was that the Commissioners had refused to allow him to intervene in proceedings in which he claimed to have a right to participate. Indeed, appellant argued as much to the district court:
It is my understanding of the law that upon the death of the property owner, title to the land vested in the distributees, and it appears to me that was the theory upon which I was made a party defendant to this cause of action, as a party with a vested interest in the subject property, ...