Welsh v. Department of Natural Resources

GETTY, Judge, dissenting. Respectfully, I dissent. The majority relies upon the decision in United States v. Chatham, 323 F.2d 95 (4th Cir.1963) and attempts to distinguish the holding of the Fourth Circuit in Fulcher v. United States, 604 F.2d 295 (4th Cir.1979). In Chatham , the United States sought to quiet title to land it allegedly acquired through condemnation.

Actual notice of the condemnation proceeding was not given by the government to the owners of the land despite the fact that the land was continuously occupied and farmed for more than twenty-five years prior to the con ⁷²³ demnation proceeding. The only published notice issued by the government was wholly deficient as to the true owners, because it related to land located on a different river and informed the reader that the lands being condemned belonged to the R.Y. McAden Estate; Chatham’s predecessors in title were never mentioned. The Fourth Circuit characterized the actions of the government as “outrageously inexcusable” in proceeding with the condemnation without any effort to develop full information as to the ownership of the land being acquired. Consequently, the petition to quiet title was denied.

I have no problem with the result reached in Chatham , but it seems clear to me that the result was dictated by the bizarre set of facts presented therein none of which are even remotely present in the case before us. The general rule, I submit, is set forth in Fulcher . An action to quiet title was brought by Fulcher pursuant to 28 U.S.C. Sec. 2409a to establish his title to a parcel of real property that was the subject of a condemnation proceeding eighteen years earlier. He alleged that a diligent title search would have revealed that the subject property was deeded to his ancestors ten years before the deed on which the condemnation was based.

He also established that the deed to his ancestors was recorded prior to the second deed. In support of his claim, Fulcher relied upon the holding in Chatham . The Fourth Circuit disagreed and pointed out that “Chat-ham is wholly distinguishable from plaintiff’s case,” due to “outrageously inexcusable” conduct by the government in Chatham . The Court reiterated the general rule that the power of government to extinguish private rights is an attribute of sovereignty and as such is superior to and independent of private rights of property.

The limitation on the sovereign right requires adherence to due process under the Fifth Amendment and just compensation. See Albert Hanson Lumber Co., v. United States, 261 U.S. 581 , 43 S.Ct. 442 , 67 L.Ed.2d 809 (1923). ⁷²⁴ Condemnation proceedings, the Court emphasized, are against property and do not constitute the taking of rights of designated persons. Where property is condemned, the amount paid for it stands in the place of the property and represents all interests in the property acquired. Shaffer v. Heitner, 433 U.S. 186 , 97 S.Ct. 2569 , 53 L.Ed.2d 683 (1977).

See Schroeder v. City of New York, 371 U.S. 208 , 83 S.Ct. 279 , 9 L.Ed.2d 255 (1962), a due process case where notice by publication was deemed insufficient, but the Supreme Court did not question the condemning body’s title to the property and limited its discussion to the due process required on a claim for compensation for the