Evans v. United States

• Citation: 326 F.2d 827
• Decision Date: 30 January 1964
• Docket Number: 17418.,No. 17417,17417
• Parties: Clarence EVANS and Katherine Evans, Appellants, v. UNITED STATES of America, Appellee. Chester PARKER, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

326 F.2d 827 (1964)

Clarence EVANS and Katherine Evans, Appellants, v. UNITED STATES of America, Appellee.

Chester PARKER, Appellant, v. UNITED STATES of America, Appellee.

Nos. 17417, 17418.

United States Court of Appeals Eighth Circuit.

January 30, 1964.

Edward L. Vogeltanz, Ord, Neb., for appellants.

Raymond N. Zagone, Attorney, Lands Division, Dept. of Justice, Washington, D. C., Ramsey Clark, Asst. Atty. Gen., Washington, D. C., Roger P. Marquis, Attorney, Dept. of Justice, Washington, D. C., and Theodore L. Richling, U. S. Atty., and Richard L. Edgerton, Asst. U. S. Atty., Omaha, Neb., for appellee.

Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.

VOGEL, Circuit Judge.

These are proceedings in condemnation brought by the United States of America to determine the just compensation to be paid for the taking of certain tracts of land belonging to the appellants and for its use in connection with the Sherman Feeder Canal and Arcadia Diversion Dam, Farwell Unit, Missouri River Basin Project. Tract No. 13, containing 15.67 acres, was part of a total of 370 acres of farm land owned by appellants Clarence and Katherine Evans. Tract No. 17, containing 38.08 acres, was part of a total of 160 acres owned by appellant Chester Parker. Pursuant to the Declaration of Taking Act, 46 Stat. 1421, 40 U.S.C.A. § 258a, the United States filed with the complaint an estimate of the just compensation for the taking of the tracts and deposited in the registry of the District Court the amount of such estimates, being $8,903.50 for Tract No. 13 and $5,984.80 for Tract No. 17.

The owners of Tract No. 13, Clarence and Katherine Evans, being dissatisfied with the estimated compensation deposited by the government, chose to have the amount of their damages fixed by a jury trial. On August 30, 1961, however, pursuant to order of court, they withdrew the sum of $7,567.97 from the amount deposited in the registry of the court. Upon trial the jury, by its verdict, fixed the just compensation for the taking of Tract No. 13 at $7,000. Judgment was entered accordingly and inasmuch as the amount withdrawn by the owners from the deposit exceeded the just compensation as fixed by the jury by $567.97, judgment was entered against the owners for such amount. The balance of the deposit was to be returned to the government and the judgment provided that the owners were entitled to no interest inasmuch as the funds on deposit had exceeded the jury award.

As to Tract No. 17, wherein the government had deposited as estimated compensation $5,984.80, the jury found the just compensation to be $5,200. The owner had made no withdrawal from the deposit. Accordingly the judgment provided that the owner was entitled to $5,200 thereof without interest and the excess was to be returned to the government.

Following the District Court's denial of motions for a new trial, the owners appealed to this court. Two grounds for reversal are urged: (1) That the amounts provided for by the jury's verdict as compensation for the lands taken are "absolutely inadequate" and "contrary to the evidence"; and (2) "The Court erred in sustaining the objection to the Offer of Proof of the amount of money received by the plaintiff's government's witness, Bossen, for 27.07 acres of land."

We think that Foster v. United States, 8 Cir., 1944, 145 F.2d 873, is decisive of appellants' first contention that the verdicts are inadequate. Therein this court, speaking through Judge Gardner, said at page 877 of 145 F.2d:

"It is finally urged that the court erred in not setting aside the verdicts because they were grossly inadequate. The government witnesses fixed the value of the Foster farm at from $21,625 to $25,000. Witnesses for the defendants, on the other hand, fixed its value at from $41,050 to $51,000. The jury determined the value at $31,365. As to the Buescher farm, government witnesses fixed the value from $13,500 to $19,100, while witnesses for the defendant fixed its value at from $33,625 to $39,025, and the jury determined the value at $21,250. The value so determined by the jury was within the scope of the testimony, and hence, it is sustained by substantial evidence. We do not pass upon the weight of the evidence, and the trial court has denied defendant\'s motion for a new trial. In these circumstances, the verdicts, being supported by substantial evidence, even though there may be a conflict in the evidence, must be sustained. Ramming Real Estate Co. v. United States, 8 Cir., 122 F.2d 892; Love v. United States, supra 8 Cir., 141 F.2d 981; O\'Donnell v. United States, 8 Cir., 131 F.2d 882." (Emphasis supplied.)

Similarly, it was said in Love v. United States, 8 Cir., 1944, 141 F.2d 981, 982:

"Clearly the verdict was within the scope of the testimony. It can not be said, therefore, that it is not supported by substantial evidence. The record also discloses that the judge who heard all the testimony refused to grant a new trial. It is the law in the federal courts that verdicts based upon substantial evidence are conclusive of the facts on appeal. Under these circumstances we know of no rule which would authorize this court to hold that the verdict is inadequate and to reverse the judgment for that reason. Herencia v. Guzman, 219 U.S. 44, 31 S.Ct. 135, 55 L.Ed. 81; Ramming Real Estate Co. v. United States, 8 Cir., 122 F.2d 892, 895; O\'Donnell v. United States, 8 Cir., 131 F.2d 882, 884."

In applying the rule of the above cases to the facts in the instant controversies, we point out that the valuation testimony may be summarized from the record as follows: Clarence Evans, A. H. Easter-brook and John L. Andersen testified in behalf of the owners. They testified as to the difference in the market value of the entire property involving Tract No. 13 before and after the taking which included severance damages to the remaining ownership. Their estimates of the difference were $17,600, $14,400 and $16,000 respectively.¹ The government's valuation witnesses were Floyd Bossen, who testified to a difference in value of $5,840.15, and Robert C. Walters, who believed the damages to be $5,660. The jury verdict was for $7,000, well within the range of the testimony.

As to Tract No. 17, the landowner's witnesses Parker and Andersen testified to damages of $9,650 and $8,500 respectively, while Bossen and Walters believed the difference in value to be $3,550.10 and $3,390 respectively. Thus the jury's award of $5,200 as to Tract 17 was also clearly within the scope of the evidence. The two awards, accordingly, may not be disturbed by this court as being allegedly inadequate. Solomon Dehydrating Co. v. Guyton, 8 Cir., 1961, 294 F.2d 439; Myra Foundation v. United States, 8 Cir., 1959, 267 F.2d 612; Foster v. United States, supra; and Love v. United States, supra. As was said in Stephens v. United States, 5 Cir., 1957, 235 F.2d 467, 471:

"* * * Since the award is within the range of the credited testimony, and the commission was not bound to accept the valuation of any particular witness, we may not reweigh the evidence in a de novo review or reverse merely because the commission found a valuation more closely based upon the testimony of the Government appraisers than upon that of the landowners\' witnesses."

Appellants make much of the fact that the jury's awards were below the government's estimate of just compensation for the taking as represented by the government's deposit in the registry of the court of its estimates which were subject to withdrawal prior to trial at the option of the owners. The deposit of estimated compensation by the government is "no evidence of value" and has "no bearing whatsoever on value." Chapman v. United States, 10 Cir., 1948, 169 F.2d 641, 644. See, also, In re United States, 5 Cir., 1958, 257 F.2d 844, 849, certiorari denied, Certain Interests in Property, etc. v. United States, 358 U.S. 908, 79 S.Ct. 234, 3 L.Ed.2d 228; United States v. 9.85 Acres in Hampton, Virginia, E.D.Va., 1959, 183 F.Supp. 402, 404-405, affirmed sub nom. Tidewater Development & Sales Corp. v. United States, 4 Cir., 1960, 279 F.2d 890. Nor, for that matter, does the deposit of estimated compensation by the government establish a minimum for an award. This has been conclusively determined by the Supreme Court in United States v. Miller, 1943, 317 U.S. 369, 381, 382, 63 S.Ct. 276, 283, 284, 87 L.Ed. 336:

"The purpose of the * * * Declaration of Taking Act, 46 Stat. 1421, 40 U.S.C.A. §§ 258a-258e is twofold. First, to give the Government immediate possession of the property and to relieve it of the burden of interest accruing on the sum deposited from the date of taking to the date of judgment in the eminent domain proceeding. Secondly, to give the former owner, if his title is clear, immediate cash compensation to the extent of the Government\'s estimate of the value of the property. The Act recognizes that

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