Tennessee Valley Authority v. Easement and Right of Way in Cumberland County, TN Court Opinion

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UNITED STATES v. EASEMENT AND RIGHT-OF-WAY
Cite as 386 F .‘2d 769 (1967)

769

{ sited  STATES of America upon the 
relation /and for the Use of the TEN­
NESSEE VALLEY AUTHORITY, Plain­
tiff-Appellee,

v.
in EASEMENT AND RIGHT-OF-WAY 

100 Feet Wide and 747 Feet Long OVER 
CERTAIN LAND IN CUMBERLAND 
COUNTY, TENNESSEE, Vada Skaggs, 
Defendant-Appellant.

No. 17392.
United States Court of Appeals 

Sixth Circuit.
Nov. 17, 1967.

Condemnation action under Tennes­
see Valley Authority Act to acquire per­
manent easement for construction, opera­
tion and maintenance of electric power 
transmission line. The United States 
District Court for the Middle District 
of Tennessee, William E. Miller, J., 
entered judgment for the Authority and 
defendant appealed. The Court of Ap­
peals, Harry Phillips, Circuit Judge, held 
that exception filed on 21st day after 
filing of award of commissioners was not 
timely, even though it was mailed to 
eierk within prescribed 20-day period.

Affirmed. ,

». Courts ©=405(12.2)
Order of District Court sustaining 

motion filed by Tennessee Valley Author­
ity to strike exceptions to award filed by 
wmmissioners appointed to determine 
wmpensation in condemnation action to 
•squire permanent easement for con­
traction of electric power transmission 
-?n» was final and appealable and enter- 
"'■? of judgment was simply a matter of 
'-•rmality not required for appeal. Ten- 
^ see  Valley Authority Act of 1933, § 25, 
’* 9.S.C.A. § 83lx ; 28 U.S.C.A. § 1291.

' Courts ©=405(12.2)
Requirement of finality is matter to 

given practical rather than technical 
'^(ruction and does not necessarily 

that order to be appealable must be 
“ -ast possible one to be made in a case.

■ so F.2d—49

3. Eminent Domain 0=234(5)
Section of Tennessee Valley Author­

ity Act providing that either or both par­
ties may file exceptions to award of com­
missioners in condemnation case within 
twenty days after date of filing of award 
in court does not require that award be 
filed with district judge and filing with 
clerk of court was proper. Tennessee 
Valley Authority Act, § 25, 16 U.S.C.A.
§ 831x; 28 U.S.C.A. § 1291.

4. Eminent Domain ©=235
Inasmuch as time limitation, within 

section of Tennessee Valley Authority 
Act providing that either or both parties 
to condemnation may file exceptions to 
award of commissioners within twenty 
days from date of filing of award in 
court, is part of statute creating cause of 
action and establishing jurisdiction of 
court, it operates as jurisdictional condi­
tion as distinguished from a procedural 
limitation and therefore federal rule re­
lating to procedural time periods has no 
application. Fed.Rules Civ.Proc. rule
6(b, e), 28 U.S.C.A.

5. Eminent Domain ©=235
Federal rule providing for extension 

of time in situations where party is re­
quired to do some act or take some pro­
ceedings within prescribed period after 
service of notice or other paper on him 
was inapplicable with respect to filing 
pursuant to section of Tennessee Valley 
Authority Act relating to filing an ex­
ception to award in condemnation case. 
Tennessee Valley Authority Act of 1933, 

.§§ 1-31, 16 U.S.C.A. §§ 831-831dd; 
Fed.Rules Civ.Proc. rule 61 (b, e), 28 U.S. 
C.A.

6. Eminent Domain ©=235
Inasmuch as procedural step in filing 

exception to award of commissioners in 
condemnation case instituted by Tennes­
see Valley Authority was not one taken 
by rules or by notice given thereunder or 
by order of court but was set out in 
statute creating the right of action, rule 
providing for late filing in event of excus­
able delay was not applicable. Tennes­
see Valley Authority Act of 1933, § 25, 16

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r?rrs\ 4 i 0 386 FEDERAL REPORTER, 2d SERIES

U.S.C.A. § 831x; Fed.Rules Civ.Proc. 
rule 6(b), 28 U.S.C.A.

Before PHILLIPS, PECK and Me- 
CREE, Circuit Judges.

7. Eminent Domain ©=235
“Filing” within section of Tennes­

see Valley Authority Act providing that 
either or both parties may file exceptions 
to award of commissioners in condemna­
tion case within twenty days from date of 
filing of award in court takes place only 
when clerk acquires custody and act of 
depositing exception in mail is not a fil­
ing. Tennessee Valley Authority Act of 
1933, § 25,16 U.S.C.A. § 831x.

See publication Words and Phrases 
for other judicial constructions and 
definitions.

8. Eminent Domain ©=235
“From” in section of Tennessee 

Valley Authority Act providing that 
either or both parties may file exceptions 
to award of commissioners in condemna­
tion case within twenty days from date 
of filing of award in court does not cause 
first two days of time period to be omit­
ted. Tennessee Valley Authority Act of 
1933, § 25, 16 U.S.C.A. § 831x.

PHILLIPS, Circuit Judge.
This is a condemnation action initiated 

by appellee under the Tennessee Valley 
Authority Act, 16 U.S.C. §§ 831-831dd, to 
acquire a permanent easement over cer­
tain property in Cumberland County, 
Tennessee, for the construction, opera­
tion and maintenance of an electric power 
transmission line.

District Judge William E. Miller en­
tered an order appointing commissioners 
to determine just compensation. The 
commission conducted hearings and filed 
an award for $150. Appellant thereafter 
filed exceptions to the award. A motion 
was filed by appellee to strike the excep­
tions on the ground that they were not 
filed within the twenty-day period pre­
scribed by 16 U.S.C. § 831x. The Dis­
trict Court entered an order sustaining 
the motion and striking the exceptions. 
Appellant appeals from that order.

9 Eminent Domain ©=235 
That award of commissioners in con­

demnation case instituted by Tennessee 
Valley Authority was sent to condemnee’s 
lawyer by mail did not give condemnee 
three extra days to file an exception as 
provided by federal rule to effect that 
whenever party is required to do some act 
within prescribed time after service of 
notice and notice is served upon him by 
mail, three days should be added to the 
prescribed period. Tennessee Valley Au­
thority Act of 1933, § 25, 16 U.S.C.A. 
§ 831x; 28 U.S.C.A. § 1291; Fed.Rules 
Civ.Proc. rule 6(b, e), 28 U.S.C.A.

[1 ,2 ] The TVA filed a motion to dis­
miss on the ground that the order of the 
District Court is interlocutory and is not 
a final appealable order. We consider

ufSHMIH

’he requirement of finality is tot 
practical rather than a technicaT~con- 

do!sEFHcflon and 
that an o

W. Hayes Pettry, Charleston, W. Va., 
for appellant.

Beauchamp E. Brogan, Tennessee Val­
ley Authority, Knoxville, Tenn., Charles 
J. McCarthy, General Counsel Tennessee 
Valley Authority, Knoxville, Tenn., 
Thomas A. Pedersen, Asst. General Coun­
sel, Charles W. Van Beke, Knoxville, 
Tenn., on brief for appellee.

oes no
rnat an order to be appeal 
t ^ r la^*'po’ssftle one fo b'e^n 
Gi Hesp ie v, Uni ted States Steel
u g l
Cohen^
33TC:S. 541, 69^ B S 5  
1528. We_consider this case to be dis­
tinguishable from an em ine^JJjB^in  
action where, prior to a determination of 

ges, the landowner undertakes

p k

L n it ,_____
65 S.Ct. 631, 33 L.E,
\291-

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UNITED STATES v. EASEMENT AND RIGHT-OF-WAY
C ite a s 386 F.2d 769 (1967)

771
[3] Appellant also contends that the 

proceeding was void because the order 
of the District Court appointing the Com­
missioners directed that the Commis­
sioners report their award “to the court 
or to the clerk of the court,” whereas 
Section 25 of the TVA Act, 16 U.S.C. 
§ 831x, provides that “Either or both 
parties may file exceptions to the award 
of said commissioners within twenty days 
from the date of filing of said award 
in court.” Appellant contends that this' 
provision of the statute requires that the 
award be filed with the District Judge 
and not with the clerk of the court.

the following language of the memoran­
dum prepared by D istrict Judge Miller, 
which we approve and adopt as a part of 
this opinion:

We find this contention to be without 
merit and that the proper procedure was 
followed in filing the report with the 
clerk. The record shows that appellant’s 
attorney in Crossville, Tennessee, re­
ceived a copy of the report of the Com­
missioners on the day following the filing 
with the clerk of the District Court, j

The award of the Commissioners wasj 
filed November 15, 1961. Appellant filed 
an exception to this award on December 
6, 1961, alleging that the amount was 
insufficient and did not constitute just 
compensation. The exception was filed 
on the twenty-first day after the filing 
of the award. The District Judge sus­
tained a motion by the TVA to strike the 
exception on the ground that it was not 
timely, holding the twenty-day limit 
prescribed by the statute to be jurisdic­
tional in nature.

Appellant contends that Rules 6(b) and 
6(e), Fed.R.Civ.P., should be applied 
to make the filing of the exception timely. 
In the alternative, appellant asserts that 
the District Court should have held the 
statute to be satisfied since the exception 
was mailed to the clerk within the pre­
scribed time. Specifically, appellant 
claims that since the award was sent to 
her lawyer by mail, she should have had 
three extra days to file an exception as 
provided in Rule 6(e). In any event ap­
pellant asserts that there was “excusable 
delay” as contemplated by Rule 6(b).

[4-9] We hold this contention to be 
without merit for the reasons stated in

' . . ' - ■

“Since the time limitation of twenty 
days is a part of this statute creating 
the cause of action and establishing 
jurisdiction in this Court, the time 
limitation operates as a jurisdictional 
condition as distinguished from a pro­
cedural limitation. See Robinson v. 
Celebrezze, 237 F.Supp. 115 (E.D. 
Tenn.1964), and Ewing v. Risher, 176 
F.2d 641 (10th Cir. 1949). For this 
reason, Rule 6(e), relating to procedur­
al time periods, has no application. 
Rule 6(e) is also unavailable to the 
defendant for quite another reason. 
The rule provides for extension of 
time in situations where a party is 
required to ‘do some act or take some 
proceedings within a prescribed period 
after the service of a notice or other 
paper on him.’ Under the section in 
question, however, a party is required 
to file an exception on the filing  of the 
Commissioners’ award. Although the 
Clerk may send a copy of the award 
by mail, the Rule clearly contemplates 
situations in which actual service is 
offered by mail.

“Rule 6(b) is likewise not available 
to the defendant. In the first place, 
no sufficient cause for the delay has 
been shown as required by the Rule 
itself. Further, by its terms, Rule 
6(b) applies to procedural steps to be 
taken ‘by these rules or by a notice 
given thereunder or by order of court.’ 
Here, the procedural step was not of 
that class but was set out in the statute 
creating the right of action.

“Finally, defendant’s contention that 
mailing of an exception constitutes 
filing is also without merit. The act 
of depositing the exception in the mail 
is not a filing. A filing takes place 
only when the Clerk acquires custody. 
Kahler-Ellis Company v. Ohio Turn­
pike Commission, 225 F.2d 922 (6th 
Cir. 1955). Likewise, defendant’s con­
tention that the word ‘from’ in the

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772 386 FEDERAL REPORTER, 2d SERIES

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statute causes the firs t two days of the 
time period to be omitted is without 
merit.”
Affirmed.

( O  |  KEY NUMBER SYSTEM)

Hazel GADDY, Administratrix of the Es­
tate of James Brown Gaddy, deceased, 

Plain tiff-Appellee, 
v.

LOUISVILLE & NASHVILLE RAIL­
ROAD CO., Defendant-Appellant, 

and
Dorothy M. Gaddy, Intervenor-Appellee 

(two cases).
Nos. 17425, 17426.

United States Court of Appeals 
! Sixth Circuit.

Nov. 30, 1967.

Action by decedent’s alleged widow 
as administratrix against railroad com­
pany under Federal Employers’ Liability 
Act wherein an intervening complaint 
for a declaratory judgment was filed to 
determine that decedent’s first wife, the 
intervenor, was his true legal and sur­
viving widow. The United States Dis­
trict Court for the Eastern District of 
Kentucky, Mac Swinford, Chief Judge, 
249 F.Supp. 305, after verdict in favor 
of administratrix allowed the interven­
tion and ruled that first wife was sur­
viving widow and transferred award to 
the first wife and administratrix and 
employer appealed. The Court of Ap­
peals, Harry Phillips, Circuit Judge, held 

■-that trial court erred in not permitting 
first wife who claimed to be lawful widow 
to intervene prior to jury trial and that 
trial court erred in transferring award 
to first wife.

Affirmed in part; reversed in part; 
remanded with directions.

1. Federal Civil Procedure .©=>331
Where woman whom decedent mar­

ried and with whom decedent was living 
at time of his death brought action under 
Federal Employers’ Liability Act, trial 
court erred in not permitting first wife 
who claimed to be lawful widow to inter­
vene prior to jury trial. Federal Em­
ployers’ Liability Act, § 1 et seq., 45 
U.S.C.A. § 51 et seq.

2. Death ©=101
Where woman whom decedent mar­

ried and with whom decedent was living 
at time of his death brought action under 
Federal Employers’ Liability Act and 
trial court denied first wife the right to 
intervene prior to jury trial, and jury 
brought in verdict in favor of woman 
who brought action, trial court erred in 
determining issue of identity of the law­
ful widow after jury returned its verdict 
and in transferring award to first wife. 
Federal Employers’ Liability Act, § 1 
et seq., 45 U.S.C.A. § 51 et seq.

3. Death ©=58(2)
In order for jury to render appro­

priate verdict in action under Federal 
Employers’ Liability Act, jury must 
know beneficiary for whom verdict is 
intended and facts and circumstances 
surrounding relationship between bene­
ficiary and decedent. Federal Employ­
ers’ Liability Act, § 1 et seq., 45 U.S.C.A.
§ 51 et seq.

G. Wayne Bridges, Covington, Ky., for 
Hazel Gaddy, Bridges & Nelson, Coving­
ton, Ky., Lohren F. Martin, Jr., of Sutton, 
Martin & Forcht, Corbin, Ky., on brief.

Charles S. Adams, Covington, Ky., for 
Louisville & Nashville Railroad Co.. M 
D. Jones, J. M. Terry, Louisville, Ky.. on 
brief.

James N. Stein, Covington, Kv„ for 
Dorothy M. Gaddy, Ralph P. Rich. Cov­
ington, Ky., on brief.

Before PHILLIPS, CELEBREZZK 
and McCREE, Circuit Judges.