Clark v. United States

Decision Date06 May 1946
Docket NumberNo. 13212.,13212.
Citation155 F.2d 157
PartiesCLARK et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Eighth Circuit

Roy K. Dietrich, of Kansas City, Mo. (Harvey Burrus, of Independence, Mo., and Gossett, Ellis, Dietrich & Tyler, of Kansas City, Mo., on the brief), for appellants.

George S. Swarth, Atty., Department of Justice, of Washington, D. C. (J. Edward Williams, Acting Head, Lands Division, Department of Justice, of Washington, D. C., Morgan M. Moulder, Sp. Asst. to U. S. Atty., of Kansas City, Mo., and Roger P. Marquis, Atty., Department of Justice, of Washingthon, D. C., on the brief), for appellee.

Before GARDNER, JOHNSEN and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal by landowners from a judgment entered in a condemnation proceeding instituted by the United States under the Military Purposes Act of July 2, 1917, c. 35, 40 Stat. 241, as amended, 50 U. S.C.A. § 171.

So far as here material the proceedings involved the taking of a tract of 320 acres of land in Jackson County, Missouri, in fee simple for the expansion of the Lake City Ordnance Plant and for related military purposes. Appellants, Charles E. Clark and his wife, Hencey M. Clark, were the owners of 500 acres of land of which the government has taken the west 320 acres, leaving a strip of 180 acres unappropriated. Appellant Charles E. Clark is an engineering contractor and president and principal owner of a construction company having some 600 or 700 employees. He desired to develop a tract of land as a stock farm and as a recreation center where cabins, fishing, camping and other similar facilities would be available to the employees of his company and others. With this purpose in mind, in 1937 he acquired a 500 acre tract of land located approximately 20 miles east of Kansas City, Missouri. County roads ran east and west along the north and south boundaries and a highway to the east was easily accessible. Long Branch Creek extended the full north and south length of the east 180 acres, which were not condemned. In the southwest corner of the tract there were about 60 acres of woods consisting of white oak timber. He employed a construction company to remove the brush and do clearing, and a herd of 500 goats was used to clear underbrush. When the property was purchased the improvements were practically worthless, so that when the property was condemned substantially all the improvements had been erected by appellants except the house which they substantially rebuilt.

Within the 320 acres, and in the fork of Long Branch Creek, a dam was constructed which created a lake with an area of about 15 acres. A peninsula was built into the lake four feet above the water, 300 or 400 feet wide, with a road traversing its length so that cars could be driven onto the peninsula. On the south side a shallow beach was built where those inexperienced in swimming could wade out a distance of 60 to 80 feet. The lake was bordered by a tract of tree land left as sites suitable for cabins and outdoor ovens. The entire 500 acre tract was fenced with woven wire from 24 to 50 inches in height, with a barbed wire at the bottom and two or three barbed wires at the top. The tract was cross fenced to divide it into appropriate fields and pastures. A strata of gravel was located in the southeast corner of the tract which contained what is referred to as an unlimited supply of water, and a well was constructed which had a capacity of 2500 gallons per hour. The well was enclosed by a pump house equipped with an electric pump. From the well and pump house a three inch water main was laid to a 30,000 gallon water tower erected in the western part of the tract at approximately the highest point on the land from which water flowed by gravity through pipe lines to all parts of the 500 acre tract. The pipe lines were laid to stock tanks in the various fields, the main pipe line going through the dam to the place where the cabins were to be erected. An electric power line was brought to the premises by the construction of 800 lineal feet of power line. 1700 lineal feet of rock road were constructed on the farm. Three ponds were developed and enlarged and nine new ponds were constructed, all stocked with fish. Two concrete silos, a scale and scale house, loading chute, large cattle shed, stock yards, a wash house, two garages, a corn crib, storm shed, bunk house, a chicken and brooder house, two chicken ranges, a large shop building, a cow shed, a cabin on the picnic grounds, a sheep shed, a sheep herder's house, and numerous small buildings were constructed by appellants and were on the premises when condemned.

Severing the west 320 acres left the 180 acre strip of land on the east one mile in length and a quarter of a mile in width, with a 20 acre tract to the east of the northeast corner, making up the 180 acres. The well, pump house and water facilities had been constructed on the south end of the 180 acre tract and were not necessary when the west 320 acres were taken as there was ample water in the Long Branch Creek for all the cattle that could be maintained on this 180 acre tract.

Appellants sought to prove that the reasonable depreciated value of the various improvements on the tract at the time of the taking was $46,366. The court sustained objections to the testimony and to an offer of proof. There was an offer to prove the value of the tract of white oak in the southwest corner of the property taken, but this also was rejected. There was no evidence of sales of similar property in the vicinity of the tract condemned but values were sought to be established by opinions of expert witnesses as to the market value of the property. Six witnesses testifying for appellants each placed a value on the premises or an estimate as to the amount of damages, these opinions or estimates ranging from $60,000 to $110,000. Three witnesses called by the government each fixed the value of the property or extent of the damages, the opinions ranging from $25,000 to $28,500.

The petition in condemnation was filed June 11, 1942, and an order of immediate possession was signed and filed on the same date. The real estate project manager for the government notified Mr. Clark that the government had to have actual physical possession of the 320 acre tract by midnight of July 11, 1942. Clark desired apparently to remove certain improvements and was proffered a written instrument for his signature, purporting to be an "Agreement for Removal of Property." The instrument in form agreed that Clark might remove certain designated improvements at an agreed value of $1,800. It was signed by Mr. Clark but was not signed by any one on behalf of the United States. Clark then went to the Commandant at Lake City with reference to his purported agreement and was advised that there would be ample time for him to remove the improvements. The improvements mentioned in the instrument were removed by Clark. A witness for the government over objection of defendants was permitted to testify that the improvements removed were worth $3,000. The court in its instructions permitted the jury to find the value of the improvements removed, less the costs of removal, and deduct that amount from the award and did not limit the value to $1,800. The jury returned a verdict of $31,200, and from the judgment entered thereon this appeal is prosecuted.

In seeking reversal appellants contend that: (1) the trial court erred in refusing to permit evidence to be offered as to the separate value of the improvements; (2) the trial court erred in refusing to permit a separate valuation of the white oak timber lands; (3) the court erred in not recognizing the contract for removal of the improvements as binding; (4) the verdict is inadequate in amount.

Under the Fifth Amendment to the Constitution private property may not be taken for public use without just compensation. What is meant by just conpensation has been defined by the Supreme Court as, "the full and perfect equivalent in money of the property taken." United States v. Miller, 317 U. S. 369, 63 S.Ct. 276, 279, 87 L.Ed. 336, 147 A.L.R. 55. Appellants owned the structures which they had placed on this land as much as they owned the land, and these structures had an intrinsic value. They were reasonably adapted to the purposes for which the land was being used and they added to the value of the land, and they should be considered in determining just compensation to the extent that they enhanced the value of the land. As said by us in United States v. Becktold Co., 8 Cir., 129 F.2d 473, 476, the government "* * * is liable for the value of the land as enhanced, if at all, by any permanent structure that is upon it. * * * The question is not what value the property may have to the Government, but what damage defendant suffers by the taking of the property."

Here it appears that there had been no recent sales of similar property in the vicinity of this land and it can not be said that the property in a technical sense had a market value. In such circumstances the opinion of expert witnesses unsupported by other facts and circumstances is of little value, and resort should be had to such other available evidence as may throw light upon the question of value. As said by the Supreme Court in United States v. Miller, supra, "Where, for any reason, property has no market value, resort must be had to other data to ascertain its value; and, even in the ordinary case, assessment of market value involves the use of assumptions, which make it unlikely that the appraisal will reflect true value with nicety. It is usually said that market value is what a willing buyer would pay in cash to a willing seller. Where the property taken, and that in its vicinity, has not in fact been sold within recent times, or in significant amounts, the application of this concept involves, at best,...

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