dissenting.
Respectfully, I dissent. The majority relies upon the decision in United States v. Chatham, 323 F.2d 95 (4th Cir.1963) and attempts to distinguish the holding of the Fourth Circuit in Fulcher v. United States, 604 F.2d 295 (4th Cir.1979). In Chatham, the United States sought to quiet title to land it allegedly acquired through condemnation. Actual notice of the condemnation proceeding was not given by the government to the owners of the land despite the fact that the land was continuously occupied and farmed for more than twenty-five years prior to the con*723demnation proceeding. The only published notice issued by the government was wholly deficient as to the true owners, because it related to land located on a different river and informed the reader that the lands being condemned belonged to the R.Y. McAden Estate; Chatham’s predecessors in title were never mentioned.
The Fourth Circuit characterized the actions of the government as “outrageously inexcusable” in proceeding with the condemnation without any effort to develop full information as to the ownership of the land being acquired. Consequently, the petition to quiet title was denied.
I have no problem with the result reached in Chatham, but it seems clear to me that the result was dictated by the bizarre set of facts presented therein none of which are even remotely present in the case before us. The general rule, I submit, is set forth in Fulcher. An action to quiet title was brought by Fulcher pursuant to 28 U.S.C. Sec. 2409a to establish his title to a parcel of real property that was the subject of a condemnation proceeding eighteen years earlier. He alleged that a diligent title search would have revealed that the subject property was deeded to his ancestors ten years before the deed on which the condemnation was based. He also established that the deed to his ancestors was recorded prior to the second deed. In support of his claim, Fulcher relied upon the holding in Chatham.
The Fourth Circuit disagreed and pointed out that “Chat-ham is wholly distinguishable from plaintiff’s case,” due to “outrageously inexcusable” conduct by the government in Chatham. The Court reiterated the general rule that the power of government to extinguish private rights is an attribute of sovereignty and as such is superior to and independent of private rights of property. The limitation on the sovereign right requires adherence to due process under the Fifth Amendment and just compensation. See Albert Hanson Lumber Co., v. United States, 261 U.S. 581, 43 S.Ct. 442, 67 L.Ed.2d 809 (1923).
*724Condemnation proceedings, the Court emphasized, are against property and do not constitute the taking of rights of designated persons. Where property is condemned, the amount paid for it stands in the place of the property and represents all interests in the property acquired. Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). See Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962), a due process case where notice by publication was deemed insufficient, but the Supreme Court did not question the condemning body’s title to the property and limited its discussion to the due process required on a claim for compensation for the taking.
The Court in Fulcher recognized that the substance of the plaintiff’s complaint was that payment was made to the wrong party; the proper remedy, the Court concluded, was a claim for compensation under the Tucker Act. The same reasoning is appropriate herein. Nothing the State did was unreasonable, it relied upon a title search and gave notice to the parties who were listed as the record owners of the property. In condemning some 1200 acres, the State was unaware, as was' everyone else involved, that 33 acres had been conveyed from the larger tract in 1877 and that the deed therefor was recorded in 1878 five days prior to the recording of the deed conveying the remainder of the property.
The 33 acres was not improved and bore no outward indicia of adverse ownership. The condemnation occurred in 1966 and the plaintiff’s herein did not discover the State’s claim until 1983 in a chance discussion with a forester concerning timber. In the interim, nineteen years have elapsed, Rocky Gap State Park has been fully operational for many years. In my view, the facts of this case track Fulcher1 and are completely foreign to the situation before *725the court in Chatham. Accordingly, I would hold that the State has title to the parcel in question and that the plaintiff’s are entitled to compensation for the taking. It makes no sense to me to require a second condemnation proceeding where the appropriate remedy is reimbursement.
Even Chatham recognizes that which I consider to be the proper result. That Court stated:
“In other situations where the land has actually been seized by the condemning authority, particularly if it has been improved or devoted to public use, the public interest may be protected without sacrifice of private rights by affording a present remedy for the determination of just compensation.”
For the benefit of the parties, I suggest the following: The State obtained 1181 acres for $82,000.00; thirty-three acres of that total were owned by the plaintiff’s predecessors. The price paid for this mountain land was approximately $69.44 per acre. The plaintiffs are entitled to that sum plus interest from the taking, September, 1966, until February, 1985, when judgment was entered by the Circuit Court which, had the claim been for reimbursement rather than to establish title, would have been just compensation.
. In a revision of its opinion, the majority dwells upon the rehearing in Fulcher, cited as 632 F.2d 278, which was heard by the Court en banc. My brothers quote at length from the dissent in Fulcher 2 which represents the views of only three of the nine member en banc *725Court. The majority of six held that the government held indefeasible title to the property in question and the claimant was entitled to a claim for just compensation plus interest. The majority then suggests that the language of the federal statute, 40 U.S.C. 258a, is different than that set forth in Article 33A, Sec. 9, and that the present case is thereby different from Fulcher 2. The difficulty I encounter with this reasoning is that the federal statute cited by the majority was enacted in 1931 and was the existing law in Chatham and in both Fulcher cases. I fail to see how it can be disregarded as to Chatham and employed to distinguish Fulcher 1 and 2.