The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
This is a motion to set aside a decision for the United States of America, the petitioner-plaintiff, after a trial before the Court without a jury.The defendant is not entitled to a jury trial as a matter of right in a condemnation proceeding. See opinion in this case filed October 31, 1941, D.C., 41 F.Supp. 805.
On December 19, 1940, the petitioner-plaintiff filed in the office of the Clerk of this Court in the manner prescribed by law a Declaration of Taking dated December 17, 1940, signed by Hon. Henry L. Stimson, Secretary of War. This Declaration of Taking contains a recital to the effect that the above mentioned land which is the subject of this condemnation proceeding is necessary for immediate public use, that the estate acquired in this proceeding is in fee simple absolute, and that the taking is pursuant to the authority of the Act of Congress approved July 2, 1940, 54 Stat. 712, Public 703 -- 76th Congress, 41 U.S.C.A. preceding section 1, and the Act of Congress approved February 26, 1931, 46 Stat. 1421, 40 U.S.C.A. §§ 258a-258e. It is further stated in the Declaration of Taking that the purpose thereof is to expedite the building up of national defense. The Declaration contains a provision that the ultimate award of damages for the taking of the property will be within the limits prescribed by Congress to be paid as a price therefor. Attached to the Declaration, Schedule A, is a description of the property.
The petitioner-plaintiff deposited in the office of the Clerk of this Court the sum of $111,809.40 as the gross sum ascertained by the petitioner-plaintiff to be the fair and just compensation for the taking. The amount of deposit is to be determined by the Secretary of War and is not subject to review by the Court.
Simultaneously with the filing of the Declaration of Taking, the petitioner-plaintiff filed a notice and petition in condemnation (in the usual form) reciting the authority for the taking and praying that this Court may adjudge that the public use requires the condemnation of the property.
On December 20, 1940, a judgment on the Declaration of Taking was duly made by this Court, which judgment decreed that the possession of the property be delivered to the petitioner-plaintiff immediately. Possession was obtained thereafter by the petitioner-plaintiff.
Subsequently, and on the 24th day of September, 1941, the petitioner-plaintiff filed an amended notice and petition in condemnation which is in substance the same as the original petition. Upon the return day of the application for a judgment of condemnation an answer was interposed by the defendant Lambert. A meager memorandum consisting of six pages has been submitted by defendant's attorney in which the following two points are made:
"Point I. The Courts have the right to decide whether land is taken for a public use.
"Point II. The Court erred in excluding the proof offered through Lambert and Kellett."
There is very little discussion and the arguments are skeletonized.
The petitioner-plaintiff's attorney claims, and it is perhaps correct, that the answer to the amended notice and petition places in issue the following questions:
"(1) Denies that this Court has jurisdiction of the cause and subject matter of the action.
(2) Denies that the lands as described in Paragraph IV of the petition are necessary to be acquired for the public use for military purposes.
"(3) Denies that the Secretary of War has found and determined after negotiations that he is unable to purchase said land at prices which he deems the fair and reasonable market value of said lands.
"(4) Denies that it is necessary and advantageous to acquire an estate in fee simple by condemnation under judicial process for the public use as above stated.
"(5) Alleges that the property sought to be acquired for the public use is actually being acquired for the use and benefit of the Republic Aviation Corporation.
"(6) Alleges that the petitioner-plaintiff, upon taking title, transferred and set over the beneficial use and enjoyment of the property to the Republic Aviation Corporation.
"(7) Alleges that any and all negotiations to acquire title for a fair price will not be engaged in by the Secretary of War but by the Republic Aviation Corporation.
"(8) Alleges that upon failure of negotiations to purchase said property at a private sale, the Secretary of War, at the instance and request of the Republic Aviation Corporation, filed the Declaration of Taking and instituted the condemnation proceeding herein referred to.
"(9) Alleges that upon acquiring title, pursuant to the Declaration of Taking aforesaid, the petitioner-plaintiff intends to transfer said title to the Republic Aviation Corporation in that the said Republic Aviation Corporation has the option of purchasing the property at a ...