Georgia Power Co. v. 138.30 Acres of Land

• Citation: 596 F.2d 644
• Decision Date: 06 June 1979
• Docket Number: Nos. 77-1775,s. 77-1775
• Parties: GEORGIA POWER COMPANY, Plaintiff-Appellee, v. 138.30 ACRES OF LAND, situate, lying and being in Land Lot 327 of the 3rd LandDistrict 389th G. M. District, Putnam County, Georgia, Defendants, Mildred B. SANDERS, a/k/a Mrs. Karl D. Sanders, Jr., et al., Defendants-Appellants. GEORGIA POWER COMPANY, Plaintiff-Appellee, v. 377.61 ACRES OF LAND, situate, lying and being in Land Lots 367, 368, 369, 377,378, 379, 380, 381, 382 and 383 of the Third Land District, 389th G. M.District, Putnam County, Georgia, Defendants, Mrs. Nellie W. Larman et al., Defendants-Appellants. GEORGIA POWER COMPANY, Plaintiff-Appellee, v. 532.82 ACRES OF LAND, situate, lying and being in the 145th G. M. District, Greene County, Georgia, Defendants, Clifford H. Dyar, Jr., et al., Defendants-Appellants. to 77-1777.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 644

596 F.2d 644

GEORGIA POWER COMPANY, Plaintiff-Appellee, v. 138.30 ACRES OF LAND, situate, lying and being in Land Lot

327 of the 3rd LandDistrict 389th G. M. District,

Putnam County, Georgia, Defendants,

Mildred B. SANDERS, a/k/a Mrs. Karl D. Sanders, Jr., et al.,

Defendants-Appellants.

GEORGIA POWER COMPANY, Plaintiff-Appellee, v. 377.61 ACRES OF LAND, situate, lying and being in Land Lots

367, 368, 369, 377,378, 379, 380, 381, 382 and 383

of the Third Land District, 389th G.

M.District, Putnam County,

Georgia, Defendants,

Mrs. Nellie W. Larman et al., Defendants-Appellants.

GEORGIA POWER COMPANY, Plaintiff-Appellee,

v.

532.82 ACRES OF LAND, situate, lying and being in the 145th

G. M. District, Greene County, Georgia, Defendants,

Clifford H. Dyar, Jr., et al., Defendants-Appellants.

Nos. 77-1775 to 77-1777.

United States Court of Appeals, Fifth Circuit.

June 6, 1979.

George D. Lawrence, Jr., Eatonton, Ga., for defendants-appellants in all cases.

Charles H. Brown, Statesboro, Ga., for defendants-appellants in No. 77-1775.

Wallace Miller Jr., W. Warren Plowden, Jr., Macon, Ga., for plaintiff-appellee in all cases.

Kenneth L. Millwood, Bruce H. Beerman, Atlanta, Ga., for defendants-appellants in No. 77-1776.

Appeals from the United States District Court for the Middle District of Georgia.

Before MORGAN, FAY and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The owners of three properties were required to render unto the sovereign portions of their land for the Lake Wallace hydroelectric project in Georgia; they protest that they did not receive in return their constitutional due, and appeal from commission determinations of just compensation for the property taken. The owners, we conclude, were not constitutionally guaranteed a jury trial; the district court acted within the range of its discretion in appointing a commission; and the commission properly applied federal rather than state law in determining the amount of compensation. However, the commission made clear errors in, or failed adequately to explain the basis for, its conclusions determining the amount of compensation due each of the owners. Therefore, the judgments of the district court approving the reports are vacated, and the cases remanded for further proceedings consistent with this opinion.

I. Right to a Jury Trial.

The landowners assert that their right to just compensation includes the right to have the amount of compensation fixed by a jury, and urge that the Supreme Court has never squarely denied the right to a jury trial on the issue of just compensation in an eminent domain action brought by the United States. The premises of the appellants' argument are mistaken.

In ruling on a challenge to a jury determination of the scope of a condemnation project, the Supreme Court recently said, "it has long been settled that there is no constitutional right to a jury in eminent domain proceedings." United States v. Reynolds, 1970, 397 U.S. 14, 18, 90 S.Ct. 803, 806, 25 L.Ed.2d 12, 17 (denial of jury trial on issue of project's scope). That case did not directly present the issue of the right to have the amount of compensation determined by a jury, but the Court's determination that no constitutional issue was presented is consistent with prior decisions in which it has implicitly held or stated in dicta that there is no right to a jury trial in condemnation proceedings. See, e. g., Bauman v. Ross, 1897, 167 U.S. 548, 591, 17 S.Ct. 966, 983, 42 L.Ed. 270, 289; Long Island Water-Supply Co. v. Brooklyn, 1897, 166 U.S. 685, 694, 17 S.Ct. 718, 722, 41 L.Ed. 1165, 1168; United States v. Jones, 1883, 109 U.S. 513, 519, 3 S.Ct. 346, 350, 27 L.Ed. 1015, 1017; Curtiss v. Georgetown and Alexandria Turnpike Co., 1810, 10 U.S., (6 Cranch) 233, 3 L. Ed. 209. See also 12 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 3051 at 120 (1973); 5 Moore's Federal Practice P 38.32(1) at 240-49 (2d ed. 1978). In promulgating subdivision (h) of Rule 71A of the Federal Rules of Civil Procedure, the Supreme Court also expressly approved use of a commission to determine just compensation in certain cases.

The Fourth Circuit has, apparently, reconsidered Beatty v. United States, 4 Cir. 1913, 203 F. 620, Dismissed for want of jurisdiction and cert. denied, 1914, 232 U.S. 463, 34 S.Ct. 392, 58 L.Ed. 686, which recognized the right to a jury trial. See United States v. 21.54 Acres of Land, 4 Cir. 1973, 491 F.2d 301, 304; Atlantic Seaboard Corporation v. Van Sterkenburg, 4 Cir. 1963, 318 F.2d 455, 459; United States v. Cunningham, 4 Cir., 246 F.2d 330, 332. For example, in 21.54 Acres of Land, supra, 491 F.2d at 304, the court noted that a landowner is not entitled to a jury trial if the trial judge determines that valuation should be by a commission or if Congress establishes a tribunal to determine the amount of compensation due. See 40 U.S.C. § 258a; Fed.R.Civ.P. 71A(h). If there were a constitutional right to a jury trial on just compensation, the judiciary and Congress would have no power to deny landowners a jury trial.

II. Discretion to Appoint a Commission.

The landowners contend that it was an abuse of discretion for the court to appoint a commission in their cases because only a small amount of property possessing unique characteristics was involved, a jury trial would not have occasioned them hardship, and a jury would have been more sympathetic than a commission to small landowners. Yet it was precisely because the Supreme Court considered use of a commission to be more equitable to small property owners that it authorized commission appointment.

Subdivision (h) of Rule 71A of the Federal Rules of Civil Procedure gives the court discretion, "because of the character, location, or quantity of property to be condemned, or for other reasons in the interest of justice," to order the use of a commission to determine the compensation due. The advisory committee that formulated the present rule had previously proposed a rule requiring a jury trial on the issue of just compensation in all cases except when existing statutes provided to the contrary. ¹ The Supreme Court directed the committee to reconsider in view of assertions that: (1) a provision for jury trial would be unfair in the case of many small landowners who lived at distances remote from the place where court would be held; (2) such a trial would be expensive and burdensome to them; and (3) commissions are less likely than juries to make disproportionate awards when the government is condemning great acreages. See generally 12 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 3051; 5 Moore's Federal Practice P 38.32(2).

In presenting its revised proposal, now subdivision (h), the Advisory Committee noted that the reasons justifying use of a commission for TVA cases "applied not only to the TVA but to other large governmental projects, such as . . . hydroelectric power . . . national forests, and others." Supplementary Report to the Court of the Advisory Committee, March 1951, Reprinted in 7 Moore's Federal Practice P 71A.06(2) at 71A-172. The Committee further noted that the rule as drafted met the Court's concerns: "(i)n large projects like the TVA the court may decide to use a commission." Id. at 71A-173.

The Lake Wallace project embraces 21,215 acres, composed of 225 tracts held by 197 different owners. The property taken is located in five counties, all of which are some distance from where the district court sits. At the time these cases were commenced, it was estimated by Georgia Power Company's land department manager that it would be necessary to file about 40 condemnation cases to acquire the property; coincidentally, 40 cases had been brought by the time this appeal was briefed. The district court noted each of these factors in denying a jury trial.

Our prior cases applying Rule 71A support the district court's decision. Although we have previously stressed that a commission is to be used only for exceptional reasons, See United States v. Leavell & Ponder, Inc., 5 Cir. 1961, 286 F.2d 398, 407-08, Cert. denied, 366 U.S. 944, 81 S.Ct. 1674, 6 L.Ed.2d 855 and United States v. Buhler, 5 Cir. 1958, 254 F.2d 876, 880, we have recognized that Rule 71A(h) permits denial of a jury trial and appointment of a commission in cases involving "large areas held by many small landowners, or property too distant for a jury to view the premises . . . ." Id. We have also upheld the use of a commission in a project involving only sixteen parcels of land. United States v. 2,477.79 Acres of Land, 5 Cir. 1958, 259 F.2d 23.

The fact that the property of the particular landowners involved in these cases was small and possessed unique characteristics, or that the landowners desired a jury trial, is not controlling; the rule focuses on the character, location or quantity of the entire property being condemned, hence on the overall scope of the project. See Buhler, supra, 254 F.2d at 880. A tremendous undertaking may embrace particular tracts of small size whose appraisal is relatively easy. The commission is appointed for the entire project, not simply for specific parcels whose value is difficult to determine. If, indeed, these properties are so singular as to require complex analysis, that factor would weigh in favor of, rather than against, the appointment of a commission. See Leavell & Ponder, supra, 286 F.2d at 408-09; United States v. Cunningham, 4 Cir. 1957, 246 F.2d 330, 333.

III. Applicability of Federal Law.

Although the constitution requires the payment of just compensation when private property is taken for a public purpose, whether the taking is by federal or state authority, different standards for determining just compensation may be established by state and federal laws. See Grand River Dam Authority v. Grand-Hydro, 1948, 335 U.S. 359, 69 S.Ct. 114, 93 L.Ed. 64. Under federal common law, which was applied by the commission, just compensation is...