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MIRACLE v. JACOBY

March 30, 1961

W.H. MIRACLE, PLAINTIFF,
v.
COLONEL A.M. JACOBY, INDIVIDUALLY, AND AS RESIDENT ENGINEER, U.S. ARMY ENGINEER DISTRICT, LITTLE ROCK, ARK., CORPS OF ENGINEERS, AND H.C. MCKINNEY, INDIVIDUALLY, AND AS CHIEF OF THE REAL ESTATE SECTION, U.S. ARMY ENGINEER DISTRICT, LITTLE ROCK, ARK., CORPS OF ENGINEERS, DEFENDANTS.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

On January 25, 1961, the plaintiff, W.H. Miracle, a resident of the City of Dallas and a citizen of Texas, filed his complaint against defendants, Colonel A.M. Jacoby, individually, and as Resident Engineer, U.S. Army Engineer District, Little Rock, Arkansas, and H.C. McKinney, individually, and as Chief of the Real Estate Section, U.S. Army Engineer District, Little Rock, Arkansas.

It is alleged that both defendants are residents of the City of Little Rock and citizens of Arkansas, and that the amount in controversy exceeds the sum of $10,000, exclusive of interest and costs. That the plaintiff is the owner of certain land in Johnson County, Arkansas, situate within the Western District of Arkansas; that the defendants, their agents, employees and assistants have trespassed upon the plaintiff's lands, asserting and claiming a right thereto; and have threatened, and are threatening, to trespass upon such lands in the future.

Plaintiff contends that the repeated trespasses of the defendants could form the basis of a perpetual easement, and will do irreparable harm and damage to his property rights for which he has no adequate remedy at law.

Personal service was obtained on defendant McKinney on January 26, 1961, and on defendant Colonel Jacoby on January 30, 1961. Thereafter, on February 20, 1961, the United States Attorney filed a motion to dismiss on behalf of the defendants. The motion sets forth numerous objections to the suit, which briefly are: (1) the United States is an indispensable party to the suit; (2) the defendants' acts are protected by governmental immunity, (3) venue is improper, and (4) the complaint fails to state a claim which warrants injunctive relief.

Briefs have been received from each of the respective parties and considered by the court, and the motion is now ready for disposition.

At the outset, the well-established doctrine of sovereign immunity is recognized by the court. The background of this doctrine is discussed in 3 Davis, Administrative Law Treatise, Sec. 27.02. It is also recognized that it is sometimes possible to escape the doctrine of sovereign immunity and thereby compel or enjoin governmental action by suing an individual government official. See United States v. Lee, 1882, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171; Ex Parte Young, 1908, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714. Compare Louisiana v. Garfield, 1908, 211 U.S. 70, 29 S.Ct. 31, 53 L.Ed. 92; and Morrison v. Work, 1925, 266 U.S. 481, 45 S.Ct. 149, 69 L.Ed. 394.

The unsettled state of the law on this question has been recognized by the United States Supreme Court. Speaking of its past decisions on the subject, the court said in 1947 that "as a matter of logic it is not easy to reconcile all of them." Land v. Dollar, 1947, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209. In his dissenting opinion in Larson v. Domestic & Foreign Commerce Corp., 1949, 337 U.S. 682, at page 709, 69 S.Ct. 1457, at page 1471, 93 L.Ed. 1628, Mr. Justice Frankfurter states:

    "The course of decisions concerning sovereign
  immunity is a good illustration of the conflicting
  considerations that often struggle for mastery in the
  judicial process, at least implicitly. In varying
  degrees, at different times, the momentum of the
  historic doctrine is arrested or deflected by an
  unexpressed feeling that governmental immunity runs
  counter to prevailing notions of reason and justice.
  Legal concepts are then found available to give
  effect to this feeling, and one of its results is the
  multitude of decisions in which this Court has
  refused to permit an agent of the government to claim
  that he is pro tanto the government and therefore
  sheltered by its immunity."

Despite the pervasive inconsistencies, the case law is dominated by one outstanding generalization that is usually followed but sometimes violated — that sovereign immunity does not prevent a suit against a state or federal officer who is acting either beyond his authority or in violation of the Constitution. 3 Davis, Administrative Law Treatise, Sec. 27.03, at page 552. This principle has been recognized by the Court of Appeals for this Circuit. Magruder v. Belle Fourche Valley Water Users' Ass'n, 8 Cir., 1914, 219 F. 72. There the court said at page 78:

    "If the acts of the defendants done and threatened
  were authorized by law, they might be the acts of the
  United States against which a court of equity would
  grant no relief. But if the averments of the
  complaint are true, and in deciding the question now
  under consideration they must be assumed to be so,
  these acts are unauthorized by and contrary to law.
  They are, therefore, not the acts of the United
  States, and a suit to enjoin their performance is not
  a suit against the United States,

  or a suit to interfere with its property, or a suit
  to compel specific performance of its contracts. It
  is a suit to enjoin officers of the United States
  from unlawfully interfering with and diverting its
  water from those persons lawfully receiving and
  entitled to receive it, from unlawfully preventing
  the United States from discharging its duties and
  performing its contracts, to the irreparable injury
  of the plaintiff and its shareholders. That an
  executive officer is committing or about to commit
  acts unauthorized by or in violation of law, to the
  irreparable injury of the property rights of the
  plaintiff, is a good cause of action against such
  officer for injunctive relief."

In Correa v. Barbour, 1 Cir., 1934, 71 F.2d 9, the plaintiffs brought an action against the Forest Supervisor of a National Forest in Puerto Rico, seeking to regain possession of certain lands held by the defendant in his official capacity. The District Court dismissed the action, but the Court of Appeals reversed, holding that the United States was not an indispensable party to the action. At page 12 of 71 F.2d the court said:

    "The second ground of demurrer stands no better. It
  is in substance and effect an assertion that the
  court is without jurisdiction because the United
  States is an indispensable party to the action; that,
  as between the plaintiffs and this defendant, no
  judgment can be entered determining their rights
  without a determination of the right and title of the
  United States. That this is not so is plainly pointed
  out in the cases above cited. The rights of the
  parties to this suit can be fully determined and
  judgment thereon entered without a judicial
  determination of the title of the United States. It
  is true that the defendant cannot prove that he was
  in possession under lawful authority without showing
  that the United States had good title to the land
  giving it authority to authorize him to enter and
  possess the land. But in establishing his authority,
  the right and title of the United States is not at
  issue in the suit, but is a mere matter of evidence
  going to prove the character of the authority under
  which he holds possession (Winnipiseogee Lake Cotton
  & Woolen Mfg., etc., Co. v. City of Laconia, 74 N.H. 82,
  84, 65 A. 378); and, as said in both of the
  Supreme Court cases above cited, a judgment in favor
  of the plaintiffs will not conclude the United States
  as to its title but only determine whether the
  defendant officer is or is not liable as a trespasser
  and should or should not be turned out of possession.
  The United States, therefore is not an indispensable
  party defendant."

Most, if not all, the cases concerning this problem are discussed in the recent case of Bowdoin v. Malone, 5 Cir., 1960, 284 F.2d 95. In the Bowdoin case, the plaintiff brought an action in ejectment against a federal Forest Service officer, involving some land of which he was in possession under color of his office. The District Court, 186 F. Supp. 407, dismissed the action, but the Court of Appeals reversed, holding that a judgment in the case would not involve title to the land, but involved merely a dispute between individuals for possession of the land. The court discussed thoroughly the opinion in the leading case of United States v. Lee, supra, and the effect of subsequent cases on the doctrine set forth by the Supreme Court in the Lee case. The Court of Appeals summarized its holding at page 105 of 284 F.2d with the following words:

    "In summary, it is clear that, however broad the
  apparent sweep of the limitations placed upon Lee by
  some of the courts may be, the Supreme Court has
  never questioned its controlling validity in
  possessory actions like ejectment, seeking to oust
  the government's agents from wrongful possession
  growing out of their tortious or illegal acts. That
  is all this case involves. The unanimity with which
  the principles here

  approved have been upheld springs, doubtless, from
  the conviction that the implied immunity of the
  government itself should be extended to its agents
  only with great caution; and from the realization
  that the government, in ...

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