United States v. Cunningham

• Decision Date: 18 July 1957
• Docket Number: No. 7402.,7402.
• Citation: 246 F.2d 330
• Parties: UNITED STATES of America, Appellant, v. Daisey L. CUNNINGHAM and Beatrice I. Cunningham, owners of Tract No. 10, and W. A. Worth and wife, Ethel E. Worth, and Oregon Inlet, Inc., owners of Tract No. 12, Appellees. In the Matter of UNITED STATES of America, Plaintiff, v. SOUTHERLY PORTION OF BODIE ISLAND, NAGS HEAD TOWNSHIP, DARE COUNTY, State of NORTH CAROLINA, and W. A. Worth, et al., and unknown owners, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

246 F.2d 330 (1957)

UNITED STATES of America, Appellant, v. Daisey L. CUNNINGHAM and Beatrice I. Cunningham, owners of Tract No. 10, and W. A. Worth and wife, Ethel E. Worth, and Oregon Inlet, Inc., owners of Tract No. 12, Appellees.

In the Matter of UNITED STATES of America, Plaintiff, v. SOUTHERLY PORTION OF BODIE ISLAND, NAGS HEAD TOWNSHIP, DARE COUNTY, State of NORTH CAROLINA, and W. A. Worth, et al., and unknown owners, Defendants.

No. 7402.

United States Court of Appeals Fourth Circuit.

Argued May 28, 1957.

Decided July 18, 1957.

Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen.; Julian T. Gaskill, United States Atty., Goldsboro, N. C., and Clyde E. Gooch, Asst. United States Atty., Salisbury, N. C., on brief), for appellant.

Hubert Humphrey, Jr., and L. P. McLendon, Sr., Greensboro, N. C. (Brooks, McLendon, Brim & Holderness, Greensboro. N. C., on brief), for appellees.

Before PARKER, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

PARKER, Chief Judge.

This is an appeal by the United States from a judgment awarding compensation in an action for the condemnation of land. Three questions are raised by the appeal: (1) whether it was error to appoint commissioners for the trial of the issue of just compensation in the face of a demand by the government for a jury trial; (2) whether the report of the commissioners was sufficient to furnish an adequate basis of review by the District Court and by this Court; and (3) whether the inadequacy of the report of the commissioners was cured by the findings of the District Judge. We think that all of these questions should be answered in the negative and that, while the appointment of the commissioners should be sustained, the judgment below should be vacated and the case remanded to the end that the commissioners may make adequate findings as to the basic and evidentiary facts upon which their valuations are based and that their report may then be reviewed by the District Judge in the light of such findings.

The property, which was taken on June 25, 1953, consists of a peninsula four miles long and one mile wide, containing approximately 1858 acres, lying on the outer banks of North Carolina between the Atlantic Ocean and Roanoke Sound. While the property was largely undeveloped, it was near the Nags Head beach area and was capable of development as beach property for residential and commercial use. There was much testimony as to the value of the ocean front lots and other lots and as to a portion not suitable for lots but for the development of a sport fishing area. A public highway had recently been built across the property which had enhanced its value; and its value had been enhanced also by the creation of an artificial lake. It had been used as a hunting club and there were a number of buildings on it including a dwelling house of twelve rooms, a smaller dwelling house, a boat house, a garage and stables. A mineral, ilmenite, had been found on the property and evidence was offered as to its value. The property owner himself testified that he thought that this increased the value of the property to the extent of $100,000.

The court found that, because of the character, location and quantity of the property, the contention as to the presence and value of minerals, the distance of the property from the nearest place where the court could sit, the importance of having the land viewed by those who were to value it and the convenience of parties and witnesses, it was in the interest of justice that the issues of compensation be determined by a commission of three persons rather than by a jury, and proceeded to appoint such commission, laying down in an order the principles which were to be observed by them in the discharge of their duties. The commissioners conducted a lengthy hearing and carefully examined the property, going over it by foot, by motor vehicle, by boat and by helicopter. They reported to the court the evidence which they had taken and the objections which had been entered thereto, without, however, ruling on the objections or indicating what parts of the evidence, if any, had not been considered or in what respect other portions had been considered in arriving at valuations. In their report, they made no findings as to the basic or evidentiary facts upon which their valuations were based, but reported merely that they found as a fact that the fair market value of the property at the time of taking was $488,000. The government filed exceptions to the report on the ground that it did not contain "conclusions of law and findings of evidentiary, basic or primary facts" and that the record contained irrelevant and incompetent testimony upon which no ruling had been made by the commission.

We think that there can be no question but that the District Judge was acting well within the limits of the discretion reposed in him by Rule 71A(h) Fed.Rules Civ.Proc., 28 U.S.C.A. in appointing the commission in this case and that no abuse of the discretion is shown. The pertinent portion of that rule provides:

"* * * any party may have a trial by jury of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix, unless the court in its discretion orders that, because of the character, location, or quantity of the property to be condemned, or for other reasons in the interest of justice, the issue of compensation shall be determined by a commission of three persons appointed by it."

It is true that the rule prescribes "trial by jury as the usual and customary procedure to be followed, if demanded, * * * and as authorizing reference to commissioners only in cases wherein the judge, in the exercise of a sound discretion based upon reasons appearing in the case, finds that the interests of justice so require". Report Judicial Conference of United States March 1952, pp. 8 and 9. The trial judge found here that the interests of justice required the appointment of the commission and this finding was made upon reasons appearing in the case and set forth in his order of appointment. There can be no question but that they were adequate. The quantity of the land, its availability for beach residential development, the elements of value presented by its availability for hunting and sport fishing, the question as to whether the discovery of ilmenite added to its value, the importance of its being carefully gone over by those who were to value it and the impracticability of having a jury do this in view of its distance from the place where the nearest federal court was held, — all these things taken together certainly...