City of Fort Worth, Tex. v. United States, 13065.

• Decision Date: 11 April 1951
• Docket Number: No. 13065.,13065.
• Citation: 188 F.2d 217
• Parties: CITY OF FORT WORTH, TEX. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

188 F.2d 217 (1951)

CITY OF FORT WORTH, TEX. v. UNITED STATES.

No. 13065.

United States Court of Appeals Fifth Circuit.

April 11, 1951.

R. E. Rouer, Fort Worth, Tex., for appellant.

John C. Harrington, Roger P. Marquis, Attorneys Dept. of Justice, A. Devitt Vanech, Asst. Atty. Gen., Washington, D. C., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges.

RUSSELL, Circuit Judge.

By this appeal the City of Fort Worth complains that the trial Court misapplied the law and rendered a patently insufficient award for the just compensation due it by the United States as the result of the condemnation of a portion of Hemphill Street and State Highway 81, lying within its city limits.

Hemphill Street, leading into Highway 81, has been for years one of the main traffic arteries entering and running through the City and muchly used by through and local traffic. It and Highway 81 form one of the main outlets from and means of entrance into the City for a heavy volume of traffic from the South. The United States Government, on land acquired by private purchase, erected the Fort Worth Quartermaster Depot of the United States Army on a rectangular tract running North and South, East of Highway 81 and extending Eastward to the right-of-way of the MK&T Railroad, and subsequently acquired by condemnation a larger tract of land on the West side of said Highway for quartermaster depot purposes. The boundary as thus enlarged constituted a parallelogram approximately one mile wide extending across Hemphill Street (at the point where it then opened into Highway 81), and the highway. Shortly after the beginning of World War II, as a matter of safety and in furtherance of the national defense, the Army and municipal and State Highway authorities agreed that the highway through the quartermaster depot area should be closed. This was a temporary arrangement, but the highway has been kept closed continuously, and after the termination of actual hostilities, the Government proceeded to condemn the highway in the cause from which this appeal arises. At the time the highway was originally closed, and thus the entrance into Hemphill Street likewise rendered useless for through traffic, the Northern boundary of the depot area was approximately along the then city limits of Fort Worth, but thereafter, and prior to the institution of the condemnation proceeding, the city limits were extended beyond the Southern boundary of the depot. It is unnecessary to detail the location of streets and highways adjacent to the quartermaster depot area except to remark that prior to its closing the highway had been largely used by traffic approaching and leaving the city by means of a county road known as Crowley road and to further state that seven blocks North of the depot area there was what is known as Kellis Street which crossed Hemphill Street and proceeded at a grade crossing with the MK&T Railroad to what is known as Highway 81A which ran roughly parallel with Highway 81 but to a junction with it South of the depot area. This highway was not completely improved and was actually upon what is known as Pecan Street. On Highway 81, at a point South of the depot area, there was an underpass under the MK&T Railroad having a cleared opening of forty feet in width, and this underpass furnished a means of travel along Highway 81 for traffic into the city without delay and danger of a grade crossing prior to the closing of such highway. This underpass was within the city limits as extended. At the time James Street, running along the West boundary of the depot area was already in existence, and after the closing of Highway 81 it was used as a substitute route for what we denominate the Crowley Road traffic which had been diverted from Highway 81 by the closing. There is no genuine dispute as to the facts, and this broad outline of the situation is presented only to give some factual background which might assist in understanding and determination of the legal question involved, as well as to afford some explanation of references to streets and highways hereinafter to be made.

The facts were fully and fairly found by the trial Court, and the substantial question now presented for our determination in adjudging the propriety of the award made by that court is whether he accepted and applied the proper rules of law in order to award the City just compensation under the circumstances.

The issues presented by the parties were sharply defined. On behalf of the Government, it was contended and strenuously urged (as it is now before us), that as the result of improvements already made by the Government in 1942, at the time the highway was informally and temporarily closed, at an expense of some sixty-eight thousand dollars, the United States had already provided adequate substitute facilities, that is, the route turning off Hemphill Street at Kellis Street proceeding Eastwardly by a grade crossing across the railroad, thence to a point where a connection had been built between Kellis Street and South Pecan Street (a distance of approximately seven blocks), and thence proceeding by South Pecan Street (which the Government at that time had widened from twenty to twenty-four feet), to the junction of that street with Highway 81. As to the Crowley Road traffic, it was the contention that adequate substitute facilities were available by streets already in existence running East and West between James Street and Hemphill Street. The position thus taken, especially illustrated by the contention with reference to the Crowley Road traffic, is based fundamentally upon the legal proposition asserted that if there are adjacent facilities which can in some fashion carry the total traffic, the Government is not obligated to provide any additional facilities, since such are not "necessary." As to the far greater proportion of Hemphill Street traffic which travels Eastwardly therefrom, this fundamental issue is modified by reliance upon the improvements already afforded by the Government which it is urged gave the city "necessary" substitute facilities. Vigorously contesting the legal position of the United States, the City contends that it was entitled to an award of compensation sufficient in amount to enable it to provide substitute routes which will restore the traffic facilities of the city to a state of utility equal to that existing before the condemnation, as far as reasonably possible. Much stress is laid upon the value for traffic handling purposes of the underpass South of the depot boundary on Highway 81, as well as the loss of seven blocks of Hemphill Street between Kellis Street and Felix Street, which runs along the North boundary of the depot area. It was also contended that it is necessary, if the city is to have compensation necessary to restore comparable traffic facilities, that an award be made in an amount sufficient to provide for the improvement of a road from James Street to Hemphill Street which should be graveled, as was Crowley Road, in order to give access to Hemphill Street at the first possible location beyond the depot. As concerns the major feature of its claim for substitute facilities, the city contended that this could be no less than improvement of Felix Street Easterly across the railroad tracks, with provision for an overpass to take the place of the underpass rendered useless for such traffic by the condemnation of the highway, and proceeding from a point across the railroad by the shortest distance to the South to join Highway 81. This in effect would provide the nearest possible exact location as a substitute for that segment of Highway 81 taken by condemnation. It is urged that even with such compensation and improvement the city would not have its traffic facilities restored to the condition existing at the time of the taking because it would nevertheless lose a straight and direct route theretofore existing via Highway 81, and James Street would be subjected to an additional traffic load for the distance from the Crowley Road along the Western...