413 F.2d 733 (10th Cir. 1969), 10199, United States v. Brinker

Docket Nº:10199.
Citation:413 F.2d 733
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Francis W. BRINKER and Julia T. Brinker, Defendants-Appellants, Carlos F. Bingesser and Marjorie L. Bingesser, Defendants-Appellees.
Case Date:June 25, 1969
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 733

413 F.2d 733 (10th Cir. 1969)

UNITED STATES of America, Plaintiff-Appellee,

v.

Francis W. BRINKER and Julia T. Brinker, Defendants-Appellants, Carlos F. Bingesser and Marjorie L. Bingesser, Defendants-Appellees.

No. 10199.

United States Court of Appeals, Tenth Circuit.

June 25, 1969

Rehearing Denied Aug. 4, 1969.

Page 734

Paul L. Aylward, of Miner & Aylward, Ellsworth, Kan., for appellants.

William M. Cohen, Attorney, Department of Justice, Washington, D.C. (Clyde O. Martz, Asst. Atty. Gen., S. Billingsley Hill, Attorney, Department of Justice, Washington, D.C., Benjamin E. Franklin, U.S. Atty., and Clarence J. Malone, Asst. U.S. Atty., Topeka, Kan., on the brief), for appellee.

Before MURRAH, Chief Judge, and PHILLIPS and HILL, Circuit Judges.

HILL, Circuit Judge.

The United States filed a declaration of taking on June 24, 1964, to condemn a 347-acre farm in Mitchell County, Kansas. Fee title in the land was held by Carlos and Marjorie Bingesser who had granted a fifteen year lease to the appellants Francis and Julia Brinker, husband and wife. Although the lessors and the Government requested a jury trial on the issue of just compensation, the district court convened a commission pursuant to Rule 71A(h), F.R.Civ.P. Over objection, the court approved the report of the commission and awarded $203, 183 to the lessors and $5, 526 to the lessees. The lessees consider the award to be inadequate and prosecute this appeal.

At the outset we are confronted with the Government's contention that this court is without jurisdiction because the lessors did not appeal. This assertion is apparently predicated upon the established rule that the United States has no interest in the division of a condemnation award between the respective estates. 1 We have no quarrel with the Government's premise, but that proposition is hardly authority, and no other has been cited, for precluding the lessee from questioning the propriety of the total award. It would be absurd to condition the lessee's right to appeal upon his success in persuading the lessor to join him. The parties have independent interests which each is entitled to assert in his own right.

Another preliminary issue concerns the appellants' objection to the use of a commission rather than a jury in assessing just compensation. Suffice it to say that appellants did not seek a jury trial in the...

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