United States v. CERTAIN LAND SITUATE IN WAYNE CO., ETC., 76-W

• Citation: 40 F. Supp. 792
• Decision Date: 18 September 1941
• Docket Number: 146-W.,128-W,No. 76-W,118-W,134-W,132-W,145-W,130-W,76-W
• Parties: UNITED STATES v. CERTAIN LAND SITUATE IN WAYNE COUNTY, STATE OF MISSOURI, WAPPAPELLO RESERVOIR, ST. FRANCIS RIVER PROJECT et al.
• Court: U.S. District Court — Eastern District of Missouri

40 F. Supp. 792

UNITED STATES v. CERTAIN LAND SITUATE IN WAYNE COUNTY, STATE OF MISSOURI, WAPPAPELLO RESERVOIR, ST. FRANCIS RIVER PROJECT et al.

Nos. 76-W, 118-W, 128-W, 130-W, 132-W, 134-W, 145-W, 146-W.

District Court, E. D. Missouri, Southeastern Division.

September 18, 1941.

Harry C. Blanton, U. S. Atty., of Sikeston, Mo., and M. Walker Cooper, Sp. Asst. to the U. S. Atty., of Bloomfield, Mo., for plaintiff.

Rush H. Limbaugh, of Cape Girardeau, Mo., for certain defendants.

James A. Finch and James A. Finch, Jr., both of Cape Girardeau, Mo., and Roy W. McGhee, of Piedmont, Mo., for certain defendants.

DAVIS, District Judge.

The above cases are condemnation proceedings to acquire property essential to the construction of the Wappapello Reservoir on the St. Francis River. This project is part of the Mississippi River flood control program, authorized by Act of May, 1928, 33 U.S.C.A. 702a et seq., and extended to tributary streams by Act of June, 1936, 33 U.S.C.A. §§ 702j—1, 702j—2 and 702k—1.

The applicable statute, § 702d, provides in part: "The Secretary of War may cause proceedings to be instituted for the acquirement by condemnation of any lands, easements, or rights of way which, in the opinion of the Secretary of War and the Chief of Engineers, are needed in carrying out this project, the said proceedings to be instituted in the United States district court for the district in which the land, easement, or right of way is located. In all such proceedings the court, for the purpose of ascertaining the value of the property and assessing the compensation to be paid, shall appoint three commissioners, whose award, when confirmed by the court, shall be final".

In due course Commissioners were appointed, awards were made, and exceptions thereto were filed by the plaintiff in all (withdrawn in one), and by the property owners in some, of the cases. The plaintiff contends that the awards are excessive and the defendants say that in some instances they are inadequate. The exceptions were heard upon the oral testimony of witnesses and certain documents and exhibits offered in evidence. The testimony in the main was the opinions of witnesses as to the value of the lands.

The question arises as to the function of the Court in these proceedings and the scope of the inquiry and hearing.

In the case of United States v. Hess, 8 Cir., 70 F.2d 142, rehearing denied, 8 Cir., 71 F.2d 78, it was determined that the parties were not entitled to a jury trial, and that the procedure provided by the Flood Control Act was adequate and exclusively controlling. However, the Court did say that in Missouri the procedure on the trial of exceptions should follow state practice in similar cases to the extent that testimony may be heard as to the adequacy of the award, and the Court may enter such order as justice may require, including the order of re-appraisement for good cause shown.

This latter statement, it has sometimes been thought, means that the filing of exceptions to an award in a flood control proceeding has the same result as in the Missouri condemnation practice; that is, the mere entry of the exceptions in effect sets aside the award; that the amount of compensation is to be determined in a trial de novo; that the award is to be regarded as having no probative value. This view has to some extent been aided by the decision in Frances-Ralph Realty Co. v. United States, 8 Cir., 52 F.2d 92, where the Court said that the Court may determine the value of the property taken, upon sustaining exceptions to the award of the Commissioners, where the parties have stipulated that such procedure should be followed. The situation has also been confused by the fact that at this time there are many condemnation proceedings being prosecuted in this Court under the State law, where the Missouri practice is being followed.

In the cases before the Court no stipulation has been made by the parties to the effect that the Court may determine the compensation in the event awards are not confirmed. The scope of the inquiry must be determined by the statute itself, aided by the decisions. The statute above quoted says that the value of the property and the amount of compensation shall be determined by the Commissioners. However, the Court may consider the award and determine whether it should be confirmed. The judgment that the Court is called upon to render is one confirming or disaffirming the award. If it confirms the award, the amount thereof shall...