Carlstrom v. United States

Citation275 F.2d 802
Decision Date15 February 1960
Docket NumberNo. 16128.,16128.
PartiesCharles W. CARLSTROM, Southern California Children's Aid Foundation, Inc., a Corporation, Southern California District Council of the Assemblies of God, Inc., a Corporation, and The Salvation Army, a Corporation, Appellants, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

COPYRIGHT MATERIAL OMITTED

H. G. Sloane, Rubin & Seltzer, James L. Focht, Jr., San Diego, Cal., for appellants.

Perry W. Morton, Asst. Atty. Gen., A. Donald Mileur, Roger P. Marquis, Attys., Dept. of Justice, Washington, D. C., Laughlin E. Waters, U. S. Atty., Albert N. Minton, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and JERTBERG, Circuit Judges, and JAMESON, District Judge.

BARNES, Circuit Judge.

This is an appeal from a final judgment of the district court in a condemnation proceeding, after a jury trial. The government action condemned first, on May 1, 1953, an estate for years, and secondly, on June 16, 1955 (by an amended complaint), fee title, both in a portion of an aircraft plant (Plancor # 20) at San Diego, California.

This plant, declared surplus after World War II, was purchased by Carlstrom from the government in May 1948 at a surplus property sale. He thereafter transferred title of various portions to the other plaintiffs and appellants herein.

Seventy acres were condemned, but by time of trial the just compensation for only forty-six and nine-tenths acres remained to be determined. For convenience, the property included in the term taking was described in "parcels"; the property in the fee taking described in "tracts."

The verdict the jury returned covered the fair market value of nine tracts, six fourteen month term parcels, and six options to renew — a total of twenty-one valuations.1 In addition, by the answer to special interrogatories, the jury determined the fair market value by which each parcel and tract was enhanced because of parking facilities appurtenant thereto, which values had been included in their larger general verdicts. This called for fifteen additional valuations. There were also three interrogatories as to the reasonable probability of unitization. Based on the jury's award for the fourteen month term, the court made a prorated and adjusted award for the second or twelve month extended term. Other awards had been made by agreement (United States v. 70.39 Acres of Land, D.C., 164 F.Supp. 451, 460) between the parties.

Error is alleged as follows:

(1) In permitting condemnation of the term and fee in one action; (2) in permitting condemnation of the term and fee before one jury at one time; (3) in rejecting or admitting certain evidence;2 and (4) by rejecting appellants' instructions with respect to the evidence so admitted or rejected.

Appellants' first two alleged errors are really one: that the case was too big for any one jury to swallow and digest. "Of course, appellants' basic grievance is that they did not receive sufficient compensation for the interests and title which the government took from them." (Appellants' Opening Brief, p. 3.)3

We would not deny that a difficult task was presented to the jury in this case. That would not render this case unique in legal history. But as the trial was handled by the trial judge; as he carefully and patiently explained in layman's language (as much as it was possible) the intricacies of condemnation to the jury, we felt an admirable task had been ably accomplished. And we also thought the jury indicated by its conclusions it had arrived at a rather sound understanding of the lawsuit and of the issues submitted to the jurors.

Here, say appellants, "the only figures available were supplied by hired experts, one group seeking to inflate values to the benefit of the owners, and the other seeking to deflate them to the benefit of the sovereign." If this be true, it is a truth applicable to all condemnation cases, and in fact, to all lawsuits involving partisan expert testimony. It would be ideal, of course, if experts were just experts, and not partisans nor advocates. Perhaps there are better ways to determine values of condemned land, or other factual disputes as to which experts give their opinions, but the adversary procedure — each side with its experts and occasionally aided by experts of the court's choosing — is as yet the best our law has found. It is practical, and acceptable to most litigants.

Whether the taking of the fee should be added to a lawsuit originally containing merely the taking of a term estate is a matter peculiarly within the discretion of the trial court, judicially exercised. Eagle Lake Improvement Co. v. United States, 5 Cir., 1947, 160 F.2d 182; Silberman v. United States, 1 Cir., 1942, 131 F.2d 715.

We find no abuse of discretion in permitting such an amendment. No case is cited by appellants as holding that it was.

Once the issues are framed by the pleadings, it again is a part of the judicial discretion of the trial judge as to how the several issues are to be tried. It might well be that one jury could more accurately pass on one parcel of realty, and another on a second. Or, one jury better pass on five parcels, or ten, rather than one, and another on the next five or ten. The converse may be true. Here there were thirty-six valuations determined by the jury involving ten buildings on nine "tracts" of land — actually nine subdivisions of one contiguous piece of industrial property being used fundamentally for its one undisputed best purpose, but capable of several uses. We cannot find as a matter of law that one jury is incapable of deciding thirty-six property valuations in four differing types of estates (nine in ordinary fee title, six in value of leaseholds, six in value of options, and fifteen in value of parking facilities appurtenant to leasehold and fee). None of these four concepts of property ownership is bizarre or occult concepts of rights in real property. The average lay person during his life time has some dealing with leaseholds, options, title in fee, and, in Southern California at least, a great deal of experience with parking facilities. Under careful supervision, explanation and instruction (and no specific instruction given below is here criticized), there seems no reason why an ordinary jury could not ascertain the values herein required of this jury. As a matter of law, there was no abuse of the district court's discretion in permitting it to do so.

Appellants urge that the case here is so complicated that to require one jury to find the answer deprives them of due process of law. They rely on Gwathmey v. United States, 5 Cir., 1954, 215 F.2d 148. This is the only case on the subject cited by appellants in either their opening or closing briefs. For that reason we consider it at some length.

Gwathmey, supra, involved the condemnation of the Cape Canaveral area in Florida. Appellant points out that in the instant case, the trial took seventeen weeks as compared to three in Gwathmey; that the jury deliberated fifteen days in this case and three days in Gwathmey; that here there were seven forms of verdicts while in Gwathmey but one. In Gwathmey the appellate court believed

"the very size of the case as tried, without the additional complexities added by a "value zone system" used by government appraisers, was such that the jury must have been overwhelmed. In fact, during the trial there were so many tracts and so much evidence that the witnesses, the attorneys and even the judge himself seemed to be confused at times."

215 F.2d 148, at pages 155-156. Therefore, say appellants here, if Gwathmey was a denial of due process in a condemnation case, then the instant case was doubly so.

We do not find the Gwathmey case controlling. We say this for several reasons.

(1) As the court says in Gwathmey, "Whether or not there has been an abuse of discretion, whether or not there has been a denial of due process, are questions which turn on the circumstances of each case." Id., at page 157.

(2) Here there were at the most thirty-six "tracts;" in Gwathmey there were originally nine hundred and thirty-three separate tracts and ultimately two hundred and thirty-eight separate tracts and verdicts.

(3) In Gwathmey the government appraisers developed a theory of arbitrarily assigning tracts to certain "value zones," which "added greatly to the confusion and to the mass of evidence with which the jury was burdened." Id., at page 154.

(4) In Gwathmey attorneys and owners of property were excused from attendance at the trial, yet evidence as to value of their property was introduced during their absence. "Cross-examination was either not allowed at all or allowed so long after direct examination that it was totally ineffective." Id., at page 154.

(5) In Gwathmey the appellate court conceded that inasmuch as but fifty separate tracts remained in the case after appeal, "It may well be that * * * this case can be fairly tried in one proceeding before one jury." Id., at page 158.

(6) We note not only that Gwathmey is a decision of the fifth circuit, not binding on this circuit, but that the opinion was the product of agreement between one circuit judge and one district judge, and that the third member of the panel, before his death, "felt very strongly and insisted this case should be affirmed."

(7) But one case is cited in the entire Gwathmey opinion. It is Atlantic Coast Line R. Co. v. United States, 5 Cir., 1943, 132 F.2d 959, where the fifth circuit found no confusion or prejudice in seriatim trials of different tracts before one jury.

But the primary reason we do not find the Gwathmey case controlling is that we find no abuse of the court's discretion in supervising the introduction of the evidence. To the contrary we think it was a difficult job well done. We adopt the language used in appellee's brief as pertinent.4

Appellant urges that the obvious mistake made by the jury as to Tract...

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