214 F.2d 33 (9th Cir. 1954), 13312, State of Washington v. United States

Docket Nº:13312.
Citation:214 F.2d 33
Case Date:June 01, 1954
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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214 F.2d 33 (9th Cir. 1954)




No. 13312.

United States Court of Appeals, Ninth Circuit.

June 1, 1954

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Smith Troy, Atty. Gen., of State of Washington, Harold A. Pebbles, Sp. Asst. Atty, Gen., of State of Washington, Charles L. Powell, Sp. Atty., for the State of Washington, Kennewick, Wash., for appellant.

Perry W. Morton, Asst. Atty. Gen., Lands Division, John C. Harrington, Roger P. Marquis, Attys., D.C., Bernard H. Ramsey, Sp. Asst. to the Atty. Gen., for appellee.

Before ORR and POPE, Circuit Judges, and JAMES M. CARTER, District judge.

JAMES M. CARTER, District Judge.

In this condemnation action there is involved the taking by the United States of America, hereafter called the United States, of a secondary road belonging to the State of Washington, hereafter called the State. After trial before a jury, and the return of a verdict in favor of the State for $581, 721.91, the trial court determined that 'no substantial evidence was adduced in the trial of said cause establishing or tending to establish the necessity for a replacement' of the state highway taken. The trial court set aside the verdict, and directed judgment be entered for the State in the sum of $1.00 as nominal damages. 1 This ruling, and the judgment

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entered pursuant thereto presents the principal question in the case on appeal, namely:

Did the district court properly set aside the jury verdict, on the ground that there was not substantial evidence to support the jury's findings, that there was a reasonable necessity for the replacement of the highway taken by the United States?

Other questions raised, concern the exclusion of certain evidence, and a motion made prior to the argument of the appeal to remand the case for the purpose of taking other evidence as to the then (1953) availability of an additional proposed substitute route.


On July 21, 1943, at the request of the Secretary of War, this proceeding was instituted to acquire all highway easements within a specified area of the Hanford Engineering Works, including a portion of Secondary State Highway No. 11A, hereafter referred to as Highway 11A. A declaration of taking was filed and on the same day an 'order on declaration of taking' was signed by the district judge providing for the surrender of possession to the United States.

On March 2, 1944, a second declaration of taking and an amendment to the petition for condemnation was filed. On March 18, 1944, the district judge made an order for the surrender of possession to the United States under the new declaration, and the amendment to the petition in condemnation. 2

Prior to trial, in order to avoid questions concerning the applicable dates of taking, a stipulation was entered into that the date of taking would be considered to be July 23, 1943.

The sum of One Dollar was deposited in court as just compensation for the interest of the State of Washington for the highways taken.

A twenty-eight mile section of Highway 11A, so taken, is the subject of the litigation. Highway 11A was a gravel road, extending approximately ninety miles from Yakima in a general easterly direction, to Connell. The highway originally had been constructed and maintained in segments through the three counties in which it ran, until 1937, when the state of Washington established a secondary road system, and declared these county roads to be a secondary State highway, and a branch of primary state Highway No. 11, running from Pasco in a northeasterly direction to Spokane. Thereafter Highway 11A was not improved in any way by the State, but was maintained by the State and remained in approximately the same condition until the taking.

Prior to the taking, Highway 11A was the most direct route between Yakima and Connell. It was approximately thirty-three miles shorter than the paved route to the south, over primary Highways No. 3 and 11, via Pasco. Highway 11A was also the shortest route from Yakima to Spokane, being 16 miles shorter than the route through Ellensburg. There is no dispute that prior to the taking, the primary use and function of Highway 11A was to provide access to the towns of Hanford, White Bluffs and the Priest Rapids Irrigation District, all now included with the Hanford Project area.

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A word about that section of the State of Washington involved in this lawsuit will be of use in understanding the problem. A crude rectangle is bounded by lines running from Ellensburg, then east to Ritzville, then southwest to Pasco, then northwesterly to Yakima, then northerly to Ellensburg. As is shown by Exhibit 2, a highway map of the State of Washington dated in 1950, this area was, at the date of the map, one of the most thinly settled areas in the state. Exhibit 2 shows large spaces in that rectangular area without towns, or roads of any sort.

Through this area the Columbia river flows first in a southerly direction. At about Priest Rapids it turns and flows in an easterly direction. At Ringold it resumes a southerly direction to Richland. There it again turns east to Pasco, then turns west to the sea.

The Hanford Project lies both astride of the Columbia as it makes it flow towards the east, and westerly of the river as it flows southeasterly and southerly to Pasco.

Highway 11A ran across the crude rectangle described above in a general easterly and westerly direction for about ninety miles, from Yakima to Connell, formerly crossing the Columbia by ferry at Hanford.

The Columbia Basin Project (about which we will hear later) will provide irrigation for much but not all of the land lying within the bounds of the Basin. This 'Basin' lies largely within the rectangle described, although a small portion of it lies north of the rectangle, and another small portion lies south and east of Pasco at the lower right hand corner of the rectangle. Generally, the 'Basin' lies east and north of the river, and extends, roughly, from Soap Lake to Pasco. Its easterly boundary runs in a line through Adrian, Wheeler, Warden and Connell. Of course the area embraced in the Hanford Project is not ordinarily referred to as part of the 'basin.' Nor are all other portions of the rectangle within the 'Basin.'

In 1943, the United States established the Hanford Engineering Works, now known as Hanford Atomic Energy Project, (referred to herein as the Hanford Project) and all roads within the Project area were closed to the general public. All residents in the Project area, including the towns of Hanford, White Bluffs and the Priest Rapids Irrigation District were moved, leaving only employees of the government and employees of government contractors.

The twenty-eight mile segment of Highway 11A, involved in this action, was thus closed, leaving open and usable however, both ends of the original Highway 11A, that is, the highway running easterly from Yakima to the west boundary of the project and the highway running westerly from Connell to the east boundary of the project. After the taking, these portions were substantially improved at the expense of the government.

The area taken by the Hanford Atomic Energy Project, extends almost to Pasco on the south. Clearly, no alternate route could be built to the south of Highway 11A, since it could not cross the Project area. The Project area extends almost to Corfu and Crab Creek on the north. The northern portion of the Project area is known as the 'Wahluke Slope.' Until January 5, 1953, (long after the taking in 1943) and the trial of this action in May of 1951, no route was available across the Project over the Wahluke Slope. 3 Thus, the only available substitute route considered at the trial was one known as Route 3, running westerly above the north edge of the Project, and then southerly to connect with a remaining portion of Highway 11A, east of Cold Creek.

The case finally came to trail before a jury in May of 1951. This delay was not the fault of either party, but was

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occasioned by negotiations carried on by the parties over a period of years, concerning final determination as to whether the government would take a fee or an easement, concerning the plans and needs of the Hanford Atomic Energy Project, and concerning a possible re-location of the highway, etc. It was not until September 2, 1949, that the State officials were finally and definitely advised by the United States that the highway could not be re-located across a firing range lying west of the Hanford Atomic Energy Project, or across Wahuke Slope, constituting the northern portion of the Project.

The State offered evidence as to the proposed substitute Route 3, to be constructed partly over existing county roads from the junction of 11A at the west boundary of the Hanford Project area, in a northerly direction to Vernita on the Columbia River, across the river at that point by free ferry, then northerly to Beverly, easterly to Othello, and thence southerly to Connell, at an estimated cost of $1, 117, 556.58. This proposed substitute road, Route 3 between Yakima and Connell, would be substantially longer than the original Highway 11A, would be longer than the primary route between Yakima and Spokane, the proposed substitute was one mile longer than the paved road through Ellensburg.

General Rule in Highway Condemnation

There is no real dispute about the applicable law concerning condemnation of roads and highways. Both parties cite and rely upon many of the same cases. 'The overwhelming weight of modern authority is to the effect that a municipality, a county, a State or other public entity is entitled to compensation for the...

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