Halpert v. Udall

CHOATE, District Judge:

I concur with the able opinion of Judge Jones except in the premise that an inclusion in a Federal Park would be in nowise a taking, or that a conditional authority to the Secretary to so acquire imposes no burden upon the lands in question. See, c. f., Alford v. Finch, 155 So.2d 790 (Fla.1963).

In the post reconstruction era of 19th Century Texas English capital together with tough, able American cowmen built fabulous land empires in Northwest Texas. State-owned land sold for $.50 per acre, and for that price these frontier entrepreneurs bought and received title to the sections lying on the outside perimeter of a block of land. Then through the law of trespass they enjoyed the exclusive use of those lands contained within this perimeter. A cattleman could obtain the exclusive use of 100,000 acres of land for about $19,000.00 by such strategic purchases. Finally, the pressures of an increasing population and an aroused populace brought an end to such practise.

It appears, however, that the Congress of the United States, collectively, has taken a page from the biography of that doughty cattleman, Col. Goodnight. Certainly, Public Law 85-482, Act of Congress of July 2, 1958 (16 U.S.C. § 410j) is nothing more than an application of the land dealing that made fortunes for the late 19th century investor in Texas ranches and cattle.

Judge Jones finds nothing actionable in this legislation. I agree that his position has the force of considerable logic. Thus, his major premise is that Congress may at any time authorize the condemnation of any land. Followed by his minor premise that in the case at hand the right of condemnation has been restricted rather than enlarged, the conclusion that the Congress has taken nothing from the plaintiff is inescapable. However, rigid logic can sometimes produce sophistry rather than truth, and this I conclude is the result here. That portion of the Act which begins

“subject to the proviso that no parcel within the following described area shall be acquired without the consent of its owner so long as * * *»

is a red flag to any title lawyer, purchaser, developer, or investor. I did not need the testimony of John A. Kotte, Esq. to recognize the fact that the Congress has by the language of its legislation impaired the title of the subject lands. The owners of equally improbable south Florida land have reaped large rewards by imaginative development in the fifty year history of the area’s expansion. This Act of Congress has substantially impaired plaintiffs’ ability to develop or promote these lands. Thus, I *579 conclude that there has been a partial taking. It is one thing to have the sword of condemnation resting available but unpointed in the governmental sheath. It is another to have it suspended like that of Damocles directly above one’s property.

I concur in the result herein, because I find no justification for the relief sought by the plaintiffs. Although, in my opinion, the Act would violate the plaintiffs’ rights under the Fifth Amendment, if they are not compensated for a partial taking; plaintiffs have a remedy by which to seek compensation provided by statute. There is no reason, therefore, to reach the constitutional question as I would remit the plaintiffs to the Court of Claims or to an action under the Tucker Act.