United States of America, Plaintiff-appellant-cross Appellee, v. 22,680 Acres of Land in Kleberg County, Texas: Virginia Jones Mullin, et al., Defendants, v. Nicolas Balli et al., Intervenors-appellees-cross Appellants, 438 F.2d 75 (5th Cir. 1971)

This is an appeal by the United States and Nicolas Balli, et al (purported heirs of Nicholas Balli, claimed original grantee), from two final judgments and order to pay the deficiencies thereon.

The United States instituted this condemnation action on behalf of the Department of the Interior to acquire land for the Padre Island National Seashore Park, as authorized by Act of September 28, 1962, 76 Stat. 650. The original complaint and declaration of taking were filed June 16, 1965, and an amended complaint and second declaration of taking were filed December 22, 1965. Those named as defendants and ostensible owners were Virginia Jones Mullin, et al, Nicolas Balli, et al, were not named. The "ostensible owners" were those named in a certificate of title issued to the United States by a title guaranty company.

Two jury trials were held resulting in judgments totaling approximately $9,127,500.00. The first jury trial began September 12, 1966, and ended October 13, 1966. The second jury trial began May 9, 1967, and ended June 6, 1967. The respective judgments were entered November 14, 1966, and January 2, 1968.¹ 

Not until October 4, 1968, did Nicolas Balli, et al, file any pleading in the case. The United States moved for an adjudication of the claims of Balli, et al. Hearings were commenced before the court on March 6, 1969, which concluded with the final memorandum and order to pay deficiencies on April 11, 1969. The district court held that the claim of Balli, et al, came too late, after the case had been tried and judgments entered. The hearings developed that the United States had notice of a claim by Balli, et al, before the filing of its original complaint and declaration of taking, and that Balli, et al, and their attorneys, with full knowledge of the proceedings, stood silently by until the trials had been completed, then filed a claim as "unknown owners" asking that they participate in the verdicts.

There is evidence in the record that Balli employed an attorney to prosecute his claim as early as March, 1964, and that the claim of Balli was made known to the United States as early as September, 1964. But the United States disregarded the Balli claim and proceeded against the ostensible owners, Mullin, et al.² 

Timeliness is an important factor. This court in McKenna v. Pan American Petroleum Corporation, 303 F.2d 778 (5th Cir. 1962), denied an application to intervene for appellate purposes where the applicant knew of the case and simply waited too long before attempting to participate in the litigation. Quoting McKenna:

"He was not a party to the action in the district court and, although he was fully aware that the cause was pending and of his interest, he made no effort to intervene. A court of appeals may, but only in an exceptional case for imperative reasons, permit intervention where none was sought in the district court — Morin v. City of Stuart, 5th Cir. 1939, 112 F.2d 585. No sufficient reason is shown for allowing intervention in this appeal." 303 F.2d at 779 (Emphasis added.)

Even the United States itself does not have the right to participate in a case after "standing by" and doing nothing until the litigation is concluded. See, e g., Consolidated Gas E. L. & P. Co. of Baltimore v. Pennsylvania W. & P. Co., 194 F.2d 89 (4th Cir. 1952), cert. denied, 343 U.S. 963, 72 S. Ct. 1056, 96 L. Ed. 1360 (1952); Chemical Bank N.Y. Trust Co. v. Steamship Westhampton, 268 F. Supp. 169 (D. Md., 1967). In the Consolidated Gas case, supra, the Federal Power Commission applied to intervene in an appeal from a declaratory judgment holding invalid an electric power contract between three public utility companies. During the litigation, the Federal Power Commission had had knowledge of the proceeding and its attorneys even were present during the trial of the case, yet it took no steps to intervene until a short time before argument was made on appeal in the appellate court.

The Fourth Circuit rejected the application of the FPC as follows:

"There was no attempt in the District Court to comply with Rule 24 of the Federal Rules of Civil Procedure, 28 U.S.C.A., which require that an application for intervention shall be timely and shall be accompanied by a pleading setting forth the intervenor's claim or defense. The Commission's petition to intervene is therefore denied * * *." 194 F.2d at 91 (Emphasis added.)

And, contemporaneous with McKenna, the Eighth Circuit, in Janousek, et al v. Wells, et al, 303 F.2d 118, at page 122 (8th Cir. 1962), denied a motion to intervene by a party who knew of the action since its inception, stating:

"The legal principles applying to intervention in federal actions are settled and were thoroughly and adequately reviewed in Kozak, [Kozak v. Wells, 8 Cir.] supra, 278 F.2d 104. As we there pointed out, the application must be timely. Beyond peradventure of a doubt the instant application for intervention does not meet this test and for that reason alone the court was justified in denying the same."

In Alleghany Corporation v. Kirby, 344 F.2d 571 (2d Cir. 1965), cert. dismissed, 384 U.S. 28, 86 S. Ct. 1250, 16 L. Ed. 2d 335 (1966), certain shareholders of Alleghany Corporation petitioned the district court for permission to intervene for the purpose of petitioning derivatively, on behalf of the corporation, for a writ of certiorari from the Supreme Court to review a judgment affirmed by the court of appeals. The Alleghany Board of Directors determined and voted not to authorize a petition for a writ of certiorari. Several days after learning of this decision of the Alleghany Board, the shareholders filed their motion. The Court denied intervention, noting that the applicants had watched closely the course of the litigation from the outset "but sought to intervene only on the eve of the deadline for filing a certiorari petition." 344 F.2d at 573.

The cases relied upon by Balli, et al., and the Government are inapposite. Taken together, they merely establish the proposition that a federal district court may not decline to exercise its jurisdiction to determine the true owners of condemned land when such jurisdiction is timely invoked. No authority is cited which would require the district court to allow intervention by one claiming an interest in condemned property who, with actual notice of the proceeding, failed to submit his claim for adjudication until long after a final judgment had been entered on the issues of value and ownership of the property, and directing that payment be made therefor.

Furthermore, since the Balli heirs were not made parties to this action, their claims to compensation are not necessarily foreclosed. Nor is the title of the United States to the property in any way jeopardized by the existence of such claims, having been fully established by the exercise of the power of eminent domain. Rather, Balli, et al., merely have a claim against the United States for the value of their interest taken, to the extent such interest be a valid one, and subject to whatever other defenses the Government might raise in any action brought by the Balli heirs.

The district court was clearly and properly within the bounds of judicial discretion in ruling that the claim of Balli, et al., came too late, after the case had been tried and judgments entered.³ 

The district court is affirmed.