Frances-Ralph Realty Co. v. United States, 9150.

• Decision Date: 30 July 1931
• Docket Number: No. 9150.,9150.
• Citation: 52 F.2d 92
• Parties: FRANCES-RALPH REALTY CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

52 F.2d 92 (1931)

FRANCES-RALPH REALTY CO. v. UNITED STATES.^*

No. 9150.

Circuit Court of Appeals, Eighth Circuit.

July 30, 1931.

J. L. London, of St. Louis, Mo. (Leahy, Saunders & Walther, of St. Louis, Mo., on the brief), for appellant.

John C. Dyott, Sp. Asst. to the U. S. Atty., of St. Louis, Mo. (Louis H. Breuer, U. S. Atty., of Rolla, Mo., on the brief), for the United States.

Before STONE and GARDNER, Circuit Judges, and MARTINEAU, District Judge.

GARDNER, Circuit Judge.

The United States brought proceedings in the lower court, under the provisions of the Act of Congress of May 15, 1928 (33 USCA § 702a et seq.), to condemn certain lands. There were two proceedings brought, but they were consolidated, and the issues were the same in each case. No questions are raised as to the sufficiency of the pleadings. The Act of May 15, 1928, provides, among other things, as follows: "Sec. 4. The Secretary of War may cause proceedings to be instituted for the acquirement by condemnation of any lands, easements, or rights of way which, in the opinion of the Secretary of War and the Chief of Engineers, are needed in carrying out this project, the said proceedings to be instituted in the United States district court for the district in which the land, easement, or right of way is located. In all such proceedings the court, for the purpose of ascertaining the value of the property and assessing the compensation to be paid, shall appoint three commissioners, whose award, when confirmed by the court, shall be final. When the owner of any land, easement, or right of way shall fix a price for the same which, in the opinion of the Secretary of War is reasonable, he may purchase the same at such price," etc. 33 USCA § 702d.

Viewers were appointed for the purpose of ascertaining the value of the property and assessing the compensation to be paid, and they made their report and return of awards. The government filed exceptions to the awards, alleging, among other things, that they were excessive. At this stage of the proceedings, counsel for the respective parties filed a written stipulation containing the following provision: "Now, for the purposes of the trial of said exceptions, it is hereby stipulated by and between the parties to the said causes and their respective counsel, that if the court should sustain the exceptions of plaintiff, then instead of recommitting the said causes to the same or different viewers or commissioners, the court shall consider the evidence submitted by the plaintiff and the defendants upon such exceptions, and determine therefrom the amount of damages to be awarded in the said two causes, and to render judgments accordingly in favor of the defendants and against the plaintiff in the said causes, the parties hereto hereby agreeing to waive the recommitment of the said causes and that the finding of the court as to damages shall be substituted for and taken in lieu of a new finding by the viewers."

The matter was brought on before the court for hearing on plaintiff's exceptions, both the plaintiff and the defendant offering testimony going, not only to the engineering features of the contemplated project, but the value of the property to be taken, and the amount of damages resulting from the construction of the improvement. At the opening of this hearing, and before the introduction of any testimony, counsel for defendant filed a motion to affirm the award of the commissioners, and this motion was renewed at the close of the whole case. The commissioners had returned an award of $33,993 in one case, and an award of $25,484.38 in the other. On hearing before the court these awards were reduced to $11,988.60 in one case and to $23,579.80 in the other.

The judgment as entered recites a waiver of a jury, but it was contended in the lower court, and is...