Bank of Edenton v. United States, 5387.

• Decision Date: 05 November 1945
• Docket Number: No. 5387.,5387.
• Citation: 152 F.2d 251
• Parties: BANK OF EDENTON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

152 F.2d 251 (1945)

BANK OF EDENTON et al. v. UNITED STATES.

No. 5387.

Circuit Court of Appeals, Fourth Circuit.

November 5, 1945.

J. C. B. Ehringhaus, of Raleigh, N C., and W. D. Pruden, of Edenton, N. C. (P. W. McMullan, of Elizabeth, N. C., on the brief), for appellants.

John C. Harrington, Attorney, Department of Justice, of Washington, D. C., and R. Brookes Peters, Jr., Sp. Asst. to U. S. Atty., of Wilmington, N. C. (J. Edward Williams, Acting Head, Lands Division, Department of Justice, of Washington, D. C., J. O. Carr, U. S. Attorney, of Wilmington, N. C., and Roger P. Marquis, Attorney, Department of Justice, of Washington, D. C., on the brief), for appellee.

Before SOPER, DOBIE and NORTHCOTT, Circuit Judges.

DOBIE, Circuit Judge.

The Bank of Edenton and others, as executors of Julien Wood, deceased, brought this appeal from the judgment of the District Court of the United States for the Eastern District of North Carolina in condemnation proceedings brought under the Second War Powers Act of March 27, 1942, 56 Stat. 177, c. 199, § 201, 50 U.S.C. A. Appendix, § 632. The land in question was one of 45 tracts taken by the Government for the construction of a Marine Corps Glider Base in Chowan County, North Carolina. It was the largest single tract of those taken, including 1276.97 of the 2918.62 acres in the whole area, and, though farmed as a single unit for at least twenty-four years, it had originally been divided into two separate plantations.

Prior to the commencement of any condemnation proceedings, because of the urgency of the war emergency, the United States on August 10, 1942, obtained an irrevocable license from the owners granting the right of use, possession and occupation of the property for the purposes of survey and construction. This license further provided:

"The license shall in no sense be considered a conveyance of this property. The fee simple title to the same shall remain in the undersigned owner.

"It is expressly agreed that the said land shall be valued as of this date and all improvements placed on the premises after the date hereof, shall be and remain the property of the United States, and shall never be included in the value of said tract to be paid by the Government.

"This license shall be irrevocable by the grantors, and it is understood that if the United States of America shall see fit to purchase or otherwise acquire the title to said property, then all claims for damages due to use and occupation shall be waived."

Acting under this license, representatives of the Government entered and commenced immediate construction of the base. On November 30, 1942, a petition for condemnation was filed in the District Court, pursuant to the Second War Powers Act, and an order of possession was entered the same day. Thereafter, on January 26, 1943, a declaration of taking, executed by the Secretary of the Navy, was filed in accordance with the provisions of the Declaration of Taking Act, 40 U.S.C.A. § 258a. $62,000, the Government's estimate of the value of the property, was paid into court. Commissioners appointed shortly thereafter filed their report on May 18, 1944, fixing the value of the property at $95,772.75. Both parties excepted to this report and demanded a jury trial. At the trial of the cause, the court ruled that the value of the property should be fixed as of the date of the license, August 10, 1942, and declined to hear testimony as to the increase in its value between that date and January 26, 1943. Testimony as to the property's value on August 10, 1942, ranged from the $62,000 fixed by a Government appraiser, to $200,443, set by one of the witnesses for the owners. The jury determined the value to be $77,500, and from a judgment entered on this verdict, an appeal was taken by the owners, hereinafter referred to as appellants.

The issues raised on this appeal are the court's ruling that the date of the license was the determinative date for deciding the value of the property, a ruling that the burden of proof was upon the Government, certain rulings with respect to the admission and exclusion of evidence, and the court's instruction that the value of the property must be computed as a unit, without regard to what it might be worth if sold in separate parcels.

The majority rule, which has been generally adopted in the federal courts, places the burden of proof of value in condemnation proceedings upon the landowner. A number of jurisdictions, however, follow a contrary view and place the burden upon the condemnor. Lewis on Eminent Domain (3rd ed., 1909) § 645, 651; 29 C.J.S., Eminent Domain, § 271, p. 1257; United States ex rel. T. V. A. v. Powelson, 319 U.S. 266, 273, 63 S.Ct. 1047, 87 L.Ed. 1390. The record does not show which practice is customary in the State Courts of North Carolina. But, in any case, the assignment of the burden of proof to the Government is not a material error. Bethel v. Mathews, 13 Wall. 1, 80 U.S. 1, 20 L.Ed. 556; Audit Company v. Taylor, 152 N.C. 272, 67 S.E. 582. Appellants admit that the assignment of the burden of proof to the opposing party is normally considered to be an advantage and, in any event, a matter resting generally within the discretion of the trial court. They seek to avoid these rules, however, by complaining of the failure to receive the advantage of opening and closing the argument and of alleged inadequacies in the judge's charge to the jury on the question of the burden of proof. On the former point, the law is well established that the judge's discretion in allocating the opening and closing arguments is not reviewable on appeal. Day v. Woodworth, 13 How. 363, 370, 54 U.S. 363, 14 L.Ed. 181; Lancaster v. Collins, 115 U.S. 222, 225, 6...