The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
This is a motion made by Regis Holding Corporation for the payment of $12,000 deposited by the United States of America for Damage Parcel No. 19 in the above proceeding.
The Government does not oppose the motion in its entirety, it claims that "a sufficient sum" of money should remain on deposit with the Registry of the Court as security to cover contingencies.
The proceeding herein is for the condemnation of certain properties including property owned by the Regis Holding Corporation, which proceeding is based upon Title 40 United States Code Annotated, Sections 257, 258 and 258a.
Section 257 provides that where a proper officer of the Government deems it necessary and advantageous to the Government that certain property be condemned, he shall have the authority to institute condemnation proceedings through the Attorney General of the United States, in the United States district court of the district in which the property is located.
Sections 258 and 258a govern the nature of the practice and procedure. Section 258 provides as follows: "The practice, pleadings, forms and modes of proceedings in causes arising under the provisions of section 257 of this title shall conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in courts of record of the State within which such district court is held, any rule of the court to the contrary notwithstanding."
In an instance where there is a procedural question which is not expressly covered by the United States Statutes or the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, or otherwise covered by the Civil Rules of this district, Rule 45 of the Civil Rules would apply to such procedural question. Rule 45 is as follows: "Whenever a procedural question arises which is not covered by the provisions of any statute of the United States, or of the Federal Rules of Civil Procedure, or of these rules, it shall be determined, if possible, by the parallels or analogies furnished by such statutes and rules. If however, no such parallels or analogies exist, then the procedure heretofore prevailing in courts of equity of the United States, or in default thereof the procedure which shall then prevail in the Supreme Court of the State of New York shall be applied."
In view of the fact that the new Federal Rules of Civil Procedure do not apply to condemnation proceedings (See Rule 81(a) (7) which reads as follows "In proceedings for condemnation of property under the power of eminent domain, these rules govern appeals but are not otherwise applicable.") and that there is no Federal condemnation procedure, the law of the State where the property is situated, as near as may be, governs the practice, pleadings, forms and proceedings, therefore the New York State Condemnation Law, McKinney's Consolidated Laws, c. 73, Volume 9A, relating to practice, pleadings, forms and proceedings is to be followed in all proceedings to condemn lands in New York State, subject to the express provisions of Sections 257, 258 and 258a of Title 40 of the United States Code Annotated. Any provision of the New York State Condemnation Law relating to any subject other than practice, pleadings, forms and proceedings is therefore not applicable in a Federal condemnation proceeding. Under the New York law there is no provision for the taking of title prior to the termination of the condemnation proceeding.
Under Section 258a the Government acquired title to the property immediately after filing its petition in condemnation and is not required to wait until the final judgment.
Section 258a provides that in a condemnation proceeding of this character the Government may file with the petition or any time before judgment, a declaration of taking signed by the authority empowered by law to acquire the land described in the petition, declaring that said land is to be taken for the use of the United States. The declaration must contain a statement of the sum of money estimated to be just compensation for the land taken. Upon such filing and the deposit in court, to the use of the persons entitled thereto, of the estimated just compensation, the land is condemned and title vests in the Government. The court is thereupon empowered in its discretion to order the deposit or any part thereof to be paid for on account of the just compensation to the persons entitled thereto.
Section 258a provides that the Government is required to pay just compensation for the land and as part of the just compensation awarded, interest at the rate of 6% per annum on the amount finally awarded as the value of the property as of the date of taking, from that date to the date of payment, but interest shall not be allowed on so much thereof as shall have been paid into court, the deposit stands in place of the land taken.
Prior to the enactment of Section 258a the bill, which was subsequently enacted as Section 258a, was discussed in the House of Representatives on December 5, 1930, as appears from the appended excerpt from the Congressional Record, Volume 74, page 777.
A reading of these discussions clearly indicates that it was the intention of the Congress that the money deposited by the Government be paid immediately to those persons who are entitled to receive it.
Section 258a, as has been stated, provides for interest only on the excess over the amount deposited. The Congress could not deprive an owner of its property without just compensation.It was the intention of the Congress to provide that the amount deposited should be immediately paid in full to the persons entitled to receive the same, otherwise it would violate the Fifth Amendment to the Constitution of the United States. See ...