432 F.2d 1286 (5th Cir. 1970), 28390, United States v. 2, 606.84 Acres of Land in Tarrant County, Tex.

Docket Nº:28390.
Citation:432 F.2d 1286
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. 2,606.84 ACRES OF LAND IN TARRANT COUNTY, TEXAS, and Frank Corn, et al., Defendants-Appellees.
Case Date:October 16, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1286

432 F.2d 1286 (5th Cir. 1970)

UNITED STATES of America, Plaintiff-Appellant,

v.

2,606.84 ACRES OF LAND IN TARRANT COUNTY, TEXAS, and Frank Corn, et al., Defendants-Appellees.

No. 28390.

United States Court of Appeals, Fifth Circuit.

October 16, 1970

Rehearing Denied Nov. 9, 1970.

Page 1287

Shiro Kashiwa, Asst. Atty. Gen., Eldon B. Mahon, U.S. Atty., Fort Worth, Tex., Claude D. Brown, Asst. U.S. Atty., Fort Worth, Tex., Roger P. Marquis, Robert McKee, George R. Hyde, Attys., Department of Justice, Washington, D.C., for the appellant.

Cantey, Hanger, Gooch, Cravens & Munn, R. Daniel Settle, Carlisle Cravens, Fort Worth, Tex., for appellees; Cantey, Hanger, Gooch, Cravens & Munn, Fort Worth, Tex., of counsel.

Before GEWIN, GOLDBERG and SIMPSON, Circuit Judges.

GOLDBERG, Circuit Judge:

In this condemnation proceeding the government appeals from a final judgment setting aside a declaration of taking 1 for the Benbrook Dam and Reservoir in Tarrant County, Texas. The judicial asides and interregnum of the Benbrook project cover a span of many years, and mere time has not laid its problems to rest. Now, more than twenty years after the land was taken by the United States and years after water began to flow over its spillway, we must test its birth and development for legitimacy.

The saga of Benbrook Dam began in 1944 when Congress was presented a report, later denominated House Document 403, containing plans and specifications for a proposed dam and reservoir to be built on the Clear Fork of the Trinity River near Forth Worth, Texas. Congress subsequently authorized the construction of the Benbrook project in

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Public Law 14, Act of March 2, 1945, Pub.L.No.79-14, § 2, 59 Stat. 10, which provided that

'The improvement of the Trinity River and tributaries, Texas, for navigation, flood control, and allied purposes is hereby approved and authorized in accordance with the reports contained in House Document numbered 403, Seventy-seventh Congress;'

Pursuant to this authorization, the United States in 1950 instituted condemnation proceedings to secure the land needed for the Benbrook project. Included in the land sought by the government were 1,207 acres from tract B-108 owned by Sid W. Richardson. The Secretary of the Army filed a declaration of taking stating that

'The public uses for which said land is taken are as follows: The said land is taken to provide for the construction and operation of Benbrook Dam and Reservoir on the Clear Fork of the Trinity River in Trinity River Basin, Texas.'

Richardson, the landowner, filed an answer objecting to the taking of his property on the grounds that the taking transgressed legislative purposes and that the proposed construction departed from authorized project specifications. Specifically, Richardson alleged first that the fee interest in his land above a certain level was not sought for the purposes sanctioned by Public Law 14 and espoused by the Secretary of the Army-- the construction and operation of Benbrook Dam-- but was earmarked for recreational use, a purpose not authorized by Congress. Second, Richardson argued that the dam and reservoir being constructed were a substantial departure from and at variance with the public work described in H.D. 403 and authorized by Public Law 14, and that the Secretary's attempt to take the land was arbitrary and capricious because unauthorized by law.

After a fifteen-year delay 2 and the death of the landowner, proceedings on this claim were finally held before the district court sitting without a jury. The court made copious findings of fact and concluded that the land lying above 697.1 foot elevation (647 acres) was taken for a recreational purpose and that condemnation for such a purpose was not authorized by Public Law 14. The trial court further concluded that the entire taking was without authority because the dam and reservoir as actually built were materially changed from the project authorized by Congress. The court determined, however, that the landowner had validly waived his right to contest the taking of the area below elevation 697.1. Accordingly, the court vested title to the 560 acres below elevation 697.1 in the United States. Title to the 647 acres above elevation 697.1 was vested in the Estate of Sid W. Richardson. The United States appealed from this determination. Disagreeing with the conclusion of the trial court, we are compelled to reverse.

I.

The landowner's first contention is that the government, through the Secretary of the Army, attempted to condemn land for recreation, a purpose not authorized by Congress. The trial court agreed, finding that the land above elevation 697.1 was taken solely for recreation and that recreation was a purpose not authorized by Congress in Public Law 14. The trial court apparently reached this conclusion because it found evidence in the record that the Corps of Engineers had some recreational facilities planned for the area and further found that Richardson's land was not necessary for either the construction or operation of the Benbrook Dam and Reservoir. In other words, the trial court found that the Secretary's stated purpose for the taking-- the construction and operation

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of the project-- was not the real purpose for which the land was condemned. The court reached this conclusion by finding that the land was not necessary to achieve that stated purpose. We think that in so finding the court overstepped the bounds of judicial review in condemnation cases.

The argument that land sought to be condemned is not really necessary for the consummation of a plan is frequently made in condemnation cases in an attempt to defeat the taking. This argument, however, has been unanimously rejected by every court which has considered the matter. It is perfectly clear that the judicial role in examining condemnation cases does not extend to determining whether the land sought is actually necessary for the operation of the project. As the Supreme Court explained in Berman v. Parker, 1954, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27

'* * * The argument pressed on us is, indeed, a plea to substitute the landowner's standard of the public need for the standard prescribed by Congress. But as we have already stated, community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis-- lot by lot, building by building.

'It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch. See Shoemaker v. United States, 147 U.S. 282, 298, 13 S.Ct. 361, 390, 37 L.Ed. 170, 184; United States ex rel. Tennessee Valley Authority v. Welch, supra, 327 U.S. (546) at page 554, 66 S.Ct. (715) at page 718 (90 L.Ed. 843); United States v. Carmack, 329 U.S. 230, 247, 67 S.Ct. 252, 260, 91 L.Ed. 209, (220.)' 348 U.S. at 35, 36, 75 S.Ct. at 104.

This court later made the same observations in West, Inc. v. United States, 5 Cir. 1967, 374 F.2d 218, wherein we said:

'Appellants here contend that the taking of a fee interest by the United States was without authority when a flowage easement would have sufficed for the purpose intended. This argument is without merit. Provided that land can be reasonably related to a public purpose, the United States, in eminent domain proceedings, is not limited to taking in fee the amount of property which will be physically occupied by the public or actually submerged in a flood control operation. If Congress wanted to dot every i and cross every t in the pursuit of a legislative command, it would have the power and right to do so; but the courts should only sparingly deny governments an operable orbit to accomplish a legislative end. Numerous cases sustain the proposition that the purpose intended being valid, the necessity of the taking and the character of the title to be taken are decisions vested exclusively in the Secretary. E.g., Berman, supra; Welch, supra; Shoemaker, supra; United States v. Agee, 322 F.2d 139 (6 Cir. 1963). See also In re United States, 257 F.2d 844 (5 Cir. 1958).

'The Supreme Court in Berman, supra, 348 U.S. at 36, 75 S.Ct. at 104, 99 L.Ed. at 39, discussing the Agency's right to take full title to property pursuant to a redevelopment project concluded that if the Secretary considers it necessary in carrying out the project to take fee title to property involved, it may do so. The Court stressed its opinion that it is not for the judiciary to determine what is necessary for successful consummation of a project any more than it is the court's function to select the precise parcels to be condemned. Compare United States v. 6.74 Acres of Land, etc.,...

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