International Paper Company v. United States, 15616.

• Decision Date: 23 January 1956
• Docket Number: No. 15616.,15616.
• Citation: 227 F.2d 201
• Parties: INTERNATIONAL PAPER COMPANY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

227 F.2d 201 (1955)

INTERNATIONAL PAPER COMPANY, Appellant, v. UNITED STATES of America, Appellee.

No. 15616.

United States Court of Appeals Fifth Circuit.

November 23, 1955.

Rehearing Denied January 23, 1956.

B. D. Murphy, James N. Frazer, Atlanta, Ga., Ben D. Turner, Mobile, Ala., J. Willis Conger, Bainbridge, Ga., Robert E. Coll, Atlanta, Ga., for appellant. Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., Conger & Conger, Bainbridge, Ga., McCorvey, Turner, Rogers, Johnston & Adams, Mobile, Ala., of counsel.

Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, John C. Harrington, Attys., Dept. of Justice, Washington, D. C., Frank O. Evans, U. S. Atty., Macon, Ga., for respondent.

Before RIVES, TUTTLE and JONES, Circuit Judges.

TUTTLE, Circuit Judge.

International Paper Company here appeals from an order of the District Court taking from the jury, in a condemnation of timber lands, the issue of severance damage to non-contiguous lands and paper mill situated some 136 miles away, and from the judgment of the court, after a jury trial, awarding condemnee the sum of $214,211.11 as just compensation for 9509.54 acres of land taken, and the sum of $23,676.76 as net severance damage to the contiguous lands not taken.

The principal contention of the appellant is that the court erred when it held, as a matter of law, that no issue should go to the jury as to damage to the paper mill property as a part of the "unitary tract" from which the 9509.54 acres were taken. A subsidiary question is whether procedurally the Court could withdraw such issue from the jury in the manner in which it acted. Other contentions made by appellant criticize the admission of evidence offered by the government and the rejection of evidence tendered by appellant touching the question of value and certain charges of the court, as well as the trial court's general "conduct of the trial."

The facts are not greatly in dispute. On November 19, 1952, the United States of America filed in the United States District Court for the Middle District of Georgia a Petition for Condemnation and a Declaration of Taking with respect to certain tracts of land owned by International Paper Company, said tracts being designated Tract K-1006, Parcels 1 and 2, and Tract I-801. This taking by condemnor involved, in the aggregate, 9509.54 acres of land. Condemnor deposited in the Registry of the Court the total sum of $223,946 as estimated just compensation for the taking of the lands involved.

The tracts of land of condemnee taken by condemnor were located in Decatur County, Georgia. In addition to these lands, condemnee owned 440,000 additional acres of land in this general area, several woodyards, one of which was located in Bainbridge, Decatur County, Georgia, and a large, modern paper mill located in Panama City, Bay County, Florida. Condemnee's paper mill in Panama City, Florida, was approximately 136 miles from the land condemned and from condemnee's woodyard in Bainbridge, Georgia.

One of the issues raised by the pleadings was condemnee's contention that because of integrated unitary use, the land taken by condemnor, the woodyard in Bainbridge, Georgia, and the paper mill in Panama City, Florida constituted a single unitary tract and, therefore, condemnee was entitled to receive as just compensation, compensation for the lands actually taken and severance damage to the contiguous land not taken, and also compensation in the nature of severance damage resulting from the decrease in market value of the non-contiguous woodyard and paper mill caused by the taking.

Condemnor filed a motion for summary judgment upon the issues raised by condemnee's answer with respect to the question of integrated unitary use of the land taken and the woodyard and paper mill. Condemnor had not complied with the requirement for notice prescribed in Rule No. 56 of the Federal Rules of Civil Procedure, 28 U.S. C.A., and the Court ruled that a hearing on the motion on that date would be premature.

The trial of the case before a jury commenced on the next day and was concluded on December 15, 1954. During the trial, condemnee presented evidence with respect to the value of the land taken, with respect to the integrated unitary use of all of condemnee's land (including the land taken) and the woodyard and paper mill, and with respect to the depreciation in market value of the unit, i. e., the woodland, the woodyard and the paper mill, resulting from the taking of this land.

After the introduction of all evidence and after both sides had closed, condemnor moved for summary judgment with respect to the issues of the case pertaining to the integrated unitary use of condemnee's lands, woodyard and paper mill, and with respect to severance damage to the non-contiguous lands and property. The Court sustained this motion and withdrew from the jury the issues and evidence relating to integrated unitary use and severance damages with respect to non-contiguous land and property of condemnee,¹ leaving for their consideration only the question of value of the 9509.54 acres actually taken and the question of severance damages to the remaining portion of the contiguous lands not taken in Tract K-1006 and Tract I-801, which tracts contained a total of some 24,500 acres and from which the 9509.54 acres were taken.

Turning first to the procedural point, we think it plain that the trial court in effect merely withdrew from the jury's consideration all evidence as to severance damage to the paper mill and thus withdrew that issue from the jury. The use by the trial judge of the term "summary judgment" in his announcement is immaterial. His action was effectuated by making a statement to the jury withdrawing the matter² and by an order entered after the jury had retired.³ Thus, unless we magnify form and ignore substance, we must conclude that the court merely ruled as a matter of law that there was no evidence to support any theory of severance damage to the paper mill, and that this issue was withdrawn.

Regardless of the form in which this ruling was made, appellant made its objection known to the court and the issue is presented to us for our review.

If the court properly construed the law touching this matter, then there is no basis for a reversal on this ground. If it erred, then it would, of course, be necessary for us to send the case back for submission of this issue to a jury.

For the reasons assigned below, we are satisfied that the court's rulings were correct as to this, the principal issue on appeal.

There is no need to discuss the principle that is known and referred to by both parties, and that was certainly observed by the trial court, to the effect that where a verdict is directed against a party or where a non-suit is granted as to a particular issue because of a failure of proof "the evidence adduced by the aggrieved party shall be taken as true and all reasonable inferences deducible therefrom shall be given their most favorable intendment."⁴ But if all the evidence introduced on behalf of the aggrieved party with all inferences properly to be drawn therefrom, does not total up to that degree of substantiality that would support a favorable verdict if rendered, then it is the duty of the trial court to eliminate the matter from the jury's consideration.

Here appellant argues that the evidence was susceptible of a finding that this was a "unitary tract" and that even though the particular 9509.54 acres taken were some 136 miles away from the paper mill and in a different state, a severance of this tract was a severance from the very unit of which the mill was a part. Appellant then contends that the taking of this small tract actually damaged the unit in a particular that was related to the paper mill itself. It says that the realty of which the paper mill was a part would be worth less after these 9509.54 acres were taken than before, and that this loss in Florida would flow automatically and directly from the taking.

Assuming for the moment that there was sufficient evidence to warrant submission to the jury of the question as to whether the entire operation made of all the lands and plant of appellant a unitary tract, we must agree with the trial court that there was no evidence that would warrant submission to the jury of the question of damages to the paper mill. Appellant's proof of this damage was in the nature of opinion evidence by which expert witnesses stated that in their opinion the mill itself would be worth between $519,037 and $771,000 less by reason of the taking by the government of this acreage.

Of course, opinion evidence may of itself be substantial enough to take a case to a jury. However, an opinion is no better than the hypothesis or the assumption upon which it is based.⁵

We think it quite doubtful that a sufficient case was made to warrant submission to the jury the question "Was this acreage in Georgia at a distance of 136 miles from the paper mill in Panama City part of a single tract which also included the mill?" The basic rule as to the considerations touching on this question is set down in United States v. Miller, 317 U.S. 369, on page 376, 63 S.Ct. 276, on page 281, 87 L.Ed. 336, where the Court says:

"If only a portion of a single tract is taken the owner\'s compensation for that taking includes any element of value arising out of the relation of the part taken to the entire tract. Such damage is often, though somewhat loosely, spoken of as severance damage."

The Court further says:

"As respects other property of the owner consisting of separate tracts adjoining that affected by the taking, the Constitution has never been construed as requiring payment of consequential damages."

The Third Circuit Court of Appeals, in Sharpe v. United States, 112 F. 893, at page 896, 57 L.R.A. 932, in language approved by the Supreme Court on writ of error, 191 U.S. 341, 354, 24 S.Ct. 114, 48 L.Ed. 211, stated the rule as follows:

"It is

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