Atlantic Coast Line R. Co. v. United States, 10423.

• Decision Date: 10 February 1943
• Docket Number: No. 10423.,10423.
• Citation: 132 F.2d 959
• Parties: ATLANTIC COAST LINE R. CO. et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

132 F.2d 959 (1943)

ATLANTIC COAST LINE R. CO. et al. v.UNITED STATES.

No. 10423.

Circuit Court of Appeals, Fifth Circuit.

January 13, 1943.

Rehearing Denied February 10, 1943.

COPYRIGHT MATERIAL OMITTED

John B. Sutton and G. L. Reeves, both of Tampa, Fla., for appellants.

Roger P. Marquis, Joseph F. McPherson, and Vernon L. Wilkinson, Attys., Department of Justice, and Norman M. Littell, Asst. Atty. Gen., all of Washington, D. C., and H. S. Phillips, U. S. Atty., of Tampa, Fla., for appellee.

Before SIBLEY, HOLMES, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

A narrow peninsula about ten miles long extends southwardly from the City of Tampa, Florida, between Tampa Bay and Hillsboro Bay.At its southwestern corner is Port Tampa, a town of 1100 inhabitants, which is reached by a paved highway and the tracks of the Atlantic Coast Line Railroad Company, and there the railroad tracks stop, and the depots and terminals of the railroad are.Beyond these, and extending continuously some four miles across the south end of the peninsula is a strip of land of 986 acres which is still in a state of nature, mostly low and marshy, unused, and in its present condition good only for hunting and fishing.The title to this land appears to be in Atlantic Land and Improvement Company, a corporation said to be wholly owned by the Railroad Company.The United States desired to use the southern end of the peninsula as an army air base, and on October 9, 1939, filed proceedings to condemn it, and in due course paid into court $173,000 as the compensation estimated to be due for the 986 acres and about 5,000 acres belonging to others, and under an order of possession took the land over.Several landowners contested the value estimated for their lands, among them the Railroad company and the Improvement Company, and a jury was impanelled to try the issues.The two named Companies, with a mortgagee of their lands, asked a separate trial, which was denied.A portion of their answer was stricken.However, a separate period for the hearing of the testimony about their land was accorded, the jury found compensation for it separately, (aggregating about $7,000), and a separate judgment was entered.On the trial the judge admitted over objection the testimony of three expert appraisers for the government, who thought the coastal lands of little value, and hardly usable at all, but that if usable the best use was for residential purposes, and, giving fully their reasons, they thought a fair value was from $5 to $10 per acre.For the owners three expert appraisers were offered who had made a very elaborate study of the surroundings, including the whole of the coasts of Hillsboro Bay, and found that such lands had changed hands but seldom, the land in controversy having been held for the Railroad Company and its predecessor for fifty years; and no tract of like character and size had been sold within ten years before this taking except one in 1929 and one in 1932.The sale in 1929they thought was influenced by the boom conditions which had obtained in Florida, and ought not to be considered as comparable to present conditions, but that in 1932 was in the depression and general conditions were more like those in 1939.The prices paid in these sales were not stated.They considered also "offerings of similar lands", without stating what the offers were, by which the judge said he understood was meant the prices which the owners were definitely offering to take.These appraisers also considered the history and development of Port Tampa's waterfront properties, the rate of absorption of them since 1915, leases of them after development, sales and offerings as undeveloped, the cost of development of these lands, their nearness to the existing ship channel and to a supply of labor, and the size of the whole tract as affecting its desirability, and the time of probable demand for it.They did not consider its value as railroad terminal property, not thinking themselves competent to deal with that, but considered it mainly as for prospective deepwater industrial sites, especially for fertilizer and chemical and oil plants and the like, which might be a nuisance nearer to the City of Tampa.They were not allowed to state an opinion as to value at the time of the taking because the court thought that some of the things considered, mentioning especially the "offerings" of like property, could not be considered by the jury, and ought not to be considered by these witnesses, and that an opinion founded in part thereon ought not to be expressed.The witnesses were not asked to eliminate the objectionable factors and express an opinion not based on them.Their opinions were allowed, however, as to the value ($15 to $30 per acre) of some lands which these witnesses thought usable for residential purposes, but not the major portion whose best and most probable use they thought was industrial.

Other witnesses were offered to show the peculiar value of this land to the railroad system and as a part of it, because of which it had been acquired, and held for fifty years, and the practice of railroads to have such land reserves to produce and control industrial traffic in the long future.Proof of a value for this purpose was refused.The real estate agent of the Railroad Company also was not allowed to testify to a value for that purpose, but did testify that in view of circumstances which he detailed similar to those mentioned by the expert appraisers, (except that he did not consider offers of this or other lands), the land was suitable for industrial purposes and of a value for those purposes of $858,445.It developed that he was including a "severance damage" of $429,222, which he thought would be visited upon the railroad system by depriving it of the prospective traffic likely to be developed by industries, and that he was valuing the land alone at $429,222.All of his testimony was finally stricken out as immaterial and not probative.Other railroad officials offered to testify to a practice of railroads to have reserve lands like these, and as to the investment in the Coast Line System and its traffic in Florida, and that Florida is a fast growing State; that in recent years the tendency of industries was to remove to the South, and into Florida.The General Manager offered to testify that in the five years prior to Oct. 9, 1939, Florida had experienced a phenomenal development both inland and on the waterfront.All this was ruled out as irrelevant.The result was that all the evidence offered for the United States was admitted and all offered for the owners, except the value of some of the land for residential purposes, was ruled out, and the jury found values in line with the contentions of the United States.Because none of the $173,000 deposited in court was specifically for this land and nothing had been received for it by these owners, full interest was claimed since the taking, but was denied.This appeal followed.

The specified errors are very numerous.We announce conclusions which cover those of them which we regard as necessary to be decided.The portions of the answer stricken were argumentative and pleaded evidence, so that we will not reverse their elimination, but the striking of them will not be taken as an adjudication of...