War is hereby authorized to accept on behalf of the United States donations of land or rights pertaining thereto required for the above-mentioned purposes: And provided further, That nothing herein contained shall be construed to authorize an expenditure, or to involve the Government in any contract or contracts for the future payment of money, in excess of the sums appropriated therefor."5 Proceedings to condemn lands for fortifications and other works of defense, under this statute, are properly instituted in a District Court of the United States, although they may be instituted in a State court."

By the act of July 2, 1917, "the Secretary of War may cause proceedings to be instituted in the name of the United States, in any court having jurisdiction of such proceedings for the acquirement by condemnation of any land, temporary use thereof or other interest therein, or right pertaining thereto, needed for the site, location, construction, or prosecution of works for fortifications, coast defenses, military training camps, and for the construction and operation of plants for the production of nitrate and other compounds and the manufacture of explosives and other munitions of war and for the development and transmission of power for the operations of such plants; such proceedings to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the States wherein the proceedings may be instituted: Provided, That when the owner of such land, interest, or rights pertaining thereto shall fix a price for the same, which in the opinion of the Secretary of War shall be reasonable, he may purchase or enter into a contract for the use of the same at such price without further delay: Provided further, That the Secretary of War is hereby authorized to accept on behalf of the United States donations of land and the interest and rights pertaining thereto required for the above mentioned purposes: And provided further, That when such property is acquired in time of war, or the imminence thereof, upon the filing of the petition for the condemnation of any land, temporary use thereof or other interest

5 Ch. 797, 26 St. at L. 316; Comp. St., § 6911.

6 20 St. at L. 316; U. S. v. Engeman, 45 Fed. 546; Chappell v. U.

S., C. C. A., 81 Fed. 764; Chappell v. U. S., 160 U. S. 499, 40 L. ed. 510.

7 Ibid.

therein or right pertaining thereto to be acquired for any of the purposes aforesaid, immediate possession thereof may be taken to the extent of the interest to be acquired and the lands may be occupied and used for military purposes, and the provision of section three hundred and fifty-five of the Revised Statutes, providing that no public money shall be expended upon such land until the written opinion of the Attorney General shall be had in favor of the validity of the title, nor until the consent of the legislature of the State in which the land is located has been given, shall be, and the same are hereby, suspended during the period of the existing emergency." 8

By the Act of March 2, 1889, "That hereafter no plan shall be approved by the Secretary of the Treasury for any public building authorized by Congress to be erected, until after the site therefor shall have been finally selected; and he shall not authorize or approve of any plan for any such building which shall involve a greater expenditure in the completion of such building, including heating apparatus, elevators, and approaches thereto, than the amount that shall remain of the sum specified in the law authorizing the erection of such building excluding cost of site.

"That hereafter commissions shall not be paid for disbursements on account of sites for public buildings; nor on account of construction of public buildings except for moneys actually handled and paid out by disbursing agents; and payments for sites for public buildings under the control of the Treasury Department shall be made by the Treasury Department, at Washington, District of Columbia, by drafts or checks payable to the grantors of such sites or their legal representatives.

"That hereafter all legal services connected with the procurement of titles to site for public buildings, other than for life saving stations and pier-head lights, shall be rendered by United States district attorneys: Provided further, That hereafter, in the procurement of sites for such public buildings, it shall be the duty of the Attorney-General to require of the grantors in each case to furnish, free of all expenses to the Government, all requisite

8 Ch. 35, 40 St. at L. 241. As amended April 11, 1918, ch. 51, 40 St. at L.; Comp. St. § 6911a.

abstracts, official certifications, and evidences of title that the Attorney-General may deem necessary.

A telegraph company engaged in interstate commerce has no authority to institute condemnation proceedings in a Federal court,10 nor can it obtain such relief in a court of equity.11

It is doubtful whether, in the absence of express statutory authority, land used for a public purpose by a State or a subdivision thereof can be condemned by the United States. 12 In Massachusetts, a city may contest the condemnation of land used as a public park.13 In proceedings by the United States to condemn land within the boundaries shown by a plat for fortification purposes, together with all roads, ways, and avenues, and all buildings and structures thereon, and all interests therein, the constitutional rule of just compensation entitles a municipal corporation to be compensated for physical structures and improvements which, under the laws of State, it has, by means of taxation, placed or acquired on the lands or streets taken, for the use of its inhabitants or the local public, such as water or sewer pipes, curbing, or the like, of which it is deprived by the taking of the property.14

The United States in proceedings to condemn land for Governmental purposes, exercises its own right of eminent domain, subject to the limitation of the Federal constitutional law, and the right to compensation and the measure of compensation may be different from that in a State condemnation proceeding concerning property which had previously been appropriated to public or municipal uses under the State laws.15 The act of a State legislature authorizing the condemnation, by the United States, of property within the State, operates merely as a formal assent to the exercise by the United States of its own right of eminent domain, and does not entitle the United States to stand upon the local law concerning the rule of damages, where property

9 Ch. 411, § 1, 25 St. at L. 941, Comp. St., §§ 6917, 6907, 6904. 10 Western Union Tel. Co. v. Pennsylvania R. Co., 120 Fed. 362.

11 Western Union Telegraph Co. v. Louisville & N. R. Co., 229 Fed. 234.

12 U. S. v. Certain Land in Town

of New Castle, C. C. A., 165 Fed. 783, 788.

13 Re Certain Land in Lawrence, 119 Fed. 453.

14 Town of Nahant v. U. S., C. C. A., 136 Fed. 273.

15 Nahant V. U. S., C. C. A., 69 L.R.A. 723, 136 Fed. 273.

taken by the State for a second public use is connected with a prior public use of the same authorized by such State.16 A proceeding by the United States for the condemnation of land is not a proceeding to collect an account or claim against the United States, and it has consequently been held that the statute forbidding the recovery of interest against the United States does not apply thereto.17

Where a condemnation proceeding in a State court arises under the Constitution or laws of the United States,18 or is instituted in the name or for the benefit of a corporation between whom and the respondent the requisite difference of citizenship exists,1 19 it may be removed to the Federal court if the matter in dispute exceeds the jurisdictional amount and the application is made at the proper stage of the proceedings.20 A condemnation proceeding, although the necessary difference of citizenship exists between the parties interested, cannot be removed to a Federal court when it is a mere administrative proceeding before commissioners of appraisal; but when an appeal is taken to a court, and litigation is then instituted between the parties, the proceeding thereupon becomes a suit which may be removed.21

A conveyance of the land to a citizen of another State before the institution of condemnation proceedings but after public notice that they would be instituted had been given by publication in newspapers posting notices on the land and filing maps will not prevent a removal when there is no proof of fraud or collusion.22

The pendency of condemnation proceedings in a Federal court does not deprive the State court of jurisdiction over a subsequent suit, to which the United States are not parties, to try the title to the land and to the award for its condemna

16 Nahant v. U. S., C. C. A., 69 L.R.A. 723, 136 Fed. 273.

17 U. S. v. Sargent, C. C. A., 162 Fed. 81.

18 Pacific Railroad Removal Cases, 115 U. S. 1, 29 L. ed. 319; Helena Power Transmission Co. v. Spratt, 146 Fed. 310.

19 Boom Co. v. Patterson, 98 U. S.

403, 25 L. ed. 206, and other cases cited infra, § 538.

20 See infra, §§ 538, 543.

21 Upshur County v. Rich, 135 U. S. 467, 475, 34 L. ed. 196, 199, and authorities cited infra, § 537.

22 Re Bensel, C. C. A., 206 Fed. 369, reversed on another point. City of N. Y. v. Sage, 239 U. S. 57.

tion, in which the right of the national government to condemn is not questioned, nor the value considered.23

The petition should be brought in the name of the United States; 24 but if originally filed in the name of the Secretary of the Treasury it may be amended accordingly.25 The proceeding is in substance and effect, an action at common law.26 It is essentially a proceeding in rem.27 The Constitution requires nothing more than that the owner have notice of the proceedings, and an opportunity to appear and protect his rights upon a fair hearing and payment of the value of his property as assessed by the proper tribunal.28 The legislature can provide for notice by publication.29 Personal notice to the owner is not required.30 Where the statute is silent as to the notifier, he may be the party that institutes the proceedings.31 The notice is sufficient, in the absence of statutory requirements where it contains the material facts of which the land owner is entitled to be notified and is in substantial conformity with the petition.32 When the notice has been given the owners are bound to take cognizance of all further steps without notice.33

The State practice should be followed in substance; but not necessarily in all details.34 A Territorial statute, providing that unless an award of damages made in condemnation proceedings shall be paid within two years the owner shall be entitled to recover his costs, reasonable expenses and damages,35 does not apply to a proceeding by the United States to condemn property for a public use.36 The New Hampshire statute providing that condemnation proceedings shall be instituted in a special tribunal does not apply to the Federal courts.37 In the districts of New York, condemnation proceedings should follow the prac