United States v. 40.60 Acres of Land, More or Less, in the County of Contra Costa, State of California, Contra Costa County Water District

Does a district court have jurisdiction in a condemnation action brought by the United States to entertain the counterclaim of a public utility whose facilities are expressly excluded from condemnation?

In 1968, the United States condemned the entire community of Port Chicago, California, for use as part of the Concord Naval Weapons Station. Excepted from the condemnation were all public utility easements. Appellant Water District is the owner of certain of those easements.

Although not named as a defendant in the condemnation suit appellant filed a notice of appearance and counterclaim for compensation. The United States moved to dismiss the counterclaim for failure to state a claim upon which relief may be granted. Rule 12(b)(6), F. R.Civ.P. The district court granted the motion, relying on the decision in Southern Counties Gas Co. v. United States, 157 F.Supp. 934 , 141 Ct.Cl. 28 (1958). See United States v. 40.60 Acres of Land, 324 F.Supp. 573 (N.D.Cal.1971).

Southern Counties Gas is directly on point on the merits of appellant’s claim, but the district court should not have reached the merits. The declaration of taking expressly excluded all public utility easements. The…