293.080 ACRES OF LAND, ETC. v. United States

• Decision Date: 09 January 1959
• Docket Number: Civ. A. No. 12986 (T-1605-A),12988 (T-1605-C),12989 (J-846).,12987 (T-1605-B)
• Citation: 169 F. Supp. 305
• Parties: 293.080 ACRES OF LAND, more or less, SITUATE IN WESTMORELAND COUNTY, Commonwealth of PENNSYLVANIA, and Stanley Sulkosky, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

169 F. Supp. 305

293.080 ACRES OF LAND, more or less, SITUATE IN WESTMORELAND COUNTY, Commonwealth of PENNSYLVANIA, and Stanley Sulkosky, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. Nos. 12986 (T-1605-A), 12987 (T-1605-B), 12988 (T-1605-C), 12989 (J-846).

United States District Court W. D. Pennsylvania.

January 9, 1959.

John Gavin, Asst. U. S. Atty., Pittsburgh, Pa., for the United States.

Albert M. Nichols, Greensburg, Pa., Thomas L. Wentling, B. A. Karlowitz, Patterson, Crawford, Arensberg & Dunn, Pittsburgh, Pa., for plaintiffs.

WILLSON, District Judge.

These cases are before the court on exceptions filed by the United States to an award in plaintiffs' favor in the aggregate sum of $33,500 made by three commissioners in land condemnation proceedings. The Commission was appointed by this court under Rule 71A of the Federal Rules of Civil Procedure, 28 U.S.C. The Commission held hearings, took testimony and received other evidence, viewed the condemned property and in due course filed its report containing findings of fact and conclusions of law. The exceptions filed by the United States are timely and will be considered as objections as provided in Rule 53(e) (2). Although six objections were filed, the Government makes three contentions:

1. Plaintiffs' witnesses who testified to value were not qualified to so testify.

2. The Commission's findings as to value are based upon improper and erroneous measures of value.

3. The amount of the award was contrary to and against the weight of the evidence.

The United States requests a new trial or in the alternative that a remittitur be entered reducing the amount of the awards.

At the outset it is noticed that Rule 71A(h) provides that when a Commission is appointed, it shall have the powers of a master as provided in subdivision (c) of Rule 53. Its action and report shall be determined by majority and its findings and report shall have the effect, and be dealt with by the court in accordance with the practice prescribed in paragraph (2) of subdivision (e) of Rule 53. Rule 53 requires the court to accept the Commissioner's findings of fact unless clearly erroneous. It also provides that the court after hearing may adopt the report, or may modify it or may reject it in whole or in part, or may receive further evidence or may recommit it with instructions.

A hearing has been had on the Government's objections, counsel have been heard at oral argument and have filed briefs which have been considered. The court suggested and Government counsel has supplied, as evidence for the record, information as to the time of completion of the dam proper and time of the installation of the top gates of the Conemaugh Dam. This additional evidence in no wise affects the findings or the report of the Commission.

The plaintiffs are the owners of three contiguous tracts of subsurface coal property which were operated by them as a single coal mine, and Sulkosky and his wife own a fourth tract on which he operates a dairy farm. The Government concedes that title to the properties is not in dispute and is in plaintiffs.

The condemnation by the Government is pursuant to various acts of Congress, particularly the Flood Control Act of Congress, approved June 28, 1938, 52 Stat. 1215, 33 U.S.C.A. § 701b et seq., and other acts which authorized the construction, operation and maintenance of the Conemaugh Dam and Reservoir on the Conemaugh River, Pennsylvania, Ohio River Basin. Easements only were taken in these cases. The declaration of taking sets out that the estates taken for public uses are as follows:

"3(a) The perpetual right and easement to flood all the coal and mining rights in the Pittsburgh Vein or Seam in and underlying Tracts T-1605A, T-1605B and T-1605C, Conemaugh River Reservoir Project, as may be necessary and as is affected by and resulting from the construction, operation and maintenance of the Conemaugh River Dam and Reservoir, subject, however, to existing easements for public roads, streets, highways, public utilities, railroads and pipelines.

"Reserving, however, to the owners of said coal and mining rights, their heirs and assigns, all such rights and privileges that may be used and enjoyed in said property, subject, however, to the right of the United States to flood the same as aforesaid.

"(b) The perpetual right and easement to flood tract J-846 as may be necessary by means of the construction, operation and maintenance of the Conemaugh Dam and Reservoir, and to clear by destruction and/or removal of trees, brush, fences, crops, buildings and any other vegetation, structures, or obstacles which may be detrimental to the operation and maintenance of said dam and reservoir, subject, however, (a) to all coal underlying said tract which became vested in the Maher and Graff Coal Company by deed from Thomas Maher et al. dated 5 November 1927 and recorded in the Recorder's office of Westmoreland County, Pennsylvania, in Deed Book Volume 865, page 203; (b) to the outstanding interest of third party lessee in the underlying oil and gas in said tract; and (c) to existing easements for public roads, streets, highways, public utilities, railroads and pipelines.

"Excepting and reserving from the easement herein taken in Tract J-846, all the oil, gas and other minerals underlying said tract;

"Reserving, however, to the owners of said Tract J-846, their heirs and assigns, all such rights and privileges that may be used and enjoyed in said land without interfering with or abridging the rights, privileges and easements acquired by the United States of America in this proceeding; provided, however, that no improvements, structures and obstructions of any kind shall be placed or constructed upon or within the said easement area without the prior written consent and approval of the United States; and

"Reserving further to the owners, their heirs and assigns, the right to maintain two powder magazines on said tract, subject to the right of the United States to flood the same."

In the Complaint, however, the Government says that the estate taken, that is with regard to the coal, is the perpetual right and easement to flood all the coal or mining rights in the Pittsburgh vein or seam in and underlying Tracts T-1605A, T-1605B and T-1605C, Conemaugh River Reservoir Project, as may be necessary and as is affected by and resulting from, etc. The Commission awarded damages to the landowners in the sum of $30,000 for the coal mine and $3,500 for the damages resulting from the flowage easement on the farm, Tract J-846, distributed among the various owners.

The easements acquired by the Government in these cases are in nearly all respects similar to the flowage easements acquired by the Government in two cases before the Court of Appeals of the Fourth Circuit, United States v. 2,648.31 Acres of Land, 218 F.2d 518, and United States v. 2979.72 Acres of Land, 218 F. 2d 524, in which the decisions were written by the late Chief Judge Parker. He discussed the law and indicated the measure of damages to be used in determining just compensation to the landowner. He said, at page 523:

"It is perfectly clear that all the government sought to acquire or did acquire by the taking here was an easement to flood the land for the purpose of the flood control dam, and we think it a clear case for the application of the rule that `where only an easement is taken, the fact that the fee remains in the landowner must be taken into consideration, the entire fee or rental value not being recoverable.' 20 C.J. p. 758, 29 C.J.S. Eminent Domain § 152, page 1011. `When land is flowed for the development of water power, the owner's damage for its taking is measured by the difference between the value of his land after the condemnor has flowed it and what it would have been worth on the date of its taking if the defendant's dam had not been built; that is the difference between the value of the land free from, and subject to the rights taken.' 18 Am.Jur. 890."

In the second decision, page 524, Judge Parker, however, is discussing a set of facts more analogous to the factual situation in the instant cases. What was taken in the second case before Judge Parker was the right to flood permanently the entire 1540 acres of land, leaving no interest of any value to the owner of the prior easement. He then said, page 525:

"* * * The trial judge was justified, therefore, in valuing the flowage rights of the power company over the 1540 acres which were destroyed by the government's taking as being measured by the fee simple value of the land which would be thus overflowed, since the value of flowage rights is the difference between the value of the land with and without the servitude imposed by the flowage easement. The fact that under the taking by the government there would be only an intermittent flooding of some portions of the 1540 acres is immaterial, since the flowage rights of the company were rendered worthless by the government's taking and their value must be the basis of the company's compensation. To state the matter simply, the power company is entitled to compensation for its flowage right easement which is destroyed by the government's taking."

In the cases before me perpetual easements are taken, but the Government claims and says that the flooding will be but intermittent, leaving to the landowners whatever use may be made of the property, except for the servitude of the easement. As to the farm tract, that is, Tract No. J-846, the rule is to be applied in the same manner as Judge Parker indicated in his first decision, that is the measure of damages is the difference in value before and after the taking and not the entire fee value.

However, unlike the cases cited, as to the Pittsburgh seam of coal the property owners have been compelled by the State of Pennsylvania to cease all operations because of the danger of the water rising to the 975 foot level. As a result and...