United States v. Brinker
| Decision Date | 04 August 1969 |
| Docket Number | No. 10199.,10199. |
| Parties | 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. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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.
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 district court and will not be heard to request a jury trial for the first time on appeal. United States v. Waymire, 202 F.2d 550 (10th Cir. 1953).2
The lessees' primary contention is that the commission erred in rejecting the income capitalization approach in determining fair market value. The record reflects that the lease, which was to expire January 1, 1973, provided for the production of grass seed and granted the lessors a one-third interest in the crops. Accordingly, the lessees had planted grass seed and attempted to establish the past and future profits from the sale of the seed as the best indication of market value. The Government's experts testified that the market for grass seed was too speculative, that grass was not the highest and best use of the property, and that market value was best exemplified by sales of comparable land for general farming purposes. The commission chose to place a greater weight on the testimony of Government experts and concluded that anticipated profits from the production of grass seed were too speculative to be determinative. Appellants thus assert that the commission's reliance was misplaced.
The findings of a commission will be accepted unless clearly erroneous for this court will not retry the facts, which when based on sharply conflicting evidence are conclusively binding here. Thetford v. United States, 404 F.2d 301, 303 (10th Cir. 1968). Inasmuch as the lessees' objection to the commission's valuation is merely an attempt to induce this court to reweigh the evidence, we are not persuaded to invalidate the award.
The Government experts based their valuation testimony upon three sales of comparable farm properties in the area. As this court has indicated, "it is generally recognized that the best evidence of market value is found in sales of comparable property * * *." United States v. Sowards, 370 F.2d 87, 89 (10th Cir. 1966). Moreover, the income capitalization figures adopted by the lessees' experts were rejected because the highly volatile character of the grass seed market and the unspectacular past profits from this particular farm, operated to render...
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