Harwell v. United States

• Decision Date: 11 April 1963
• Docket Number: No. 7108.,7108.
• Citation: 316 F.2d 791
• Parties: Robert HARWELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

316 F.2d 791 (1963)

Robert HARWELL, Appellant, v. UNITED STATES of America, Appellee.

No. 7108.

United States Court of Appeals Tenth Circuit.

April 11, 1963.

Ellis M. Brown, McAlester, Okl., (Preslie H. Brown, and Brown, Brown & Brown, McAlester, Okl., were with him on the brief), for appellant.

George R. Hyde, Atty., Dept. of Justice (Ramsey Clark, Asst. Atty. Gen., Edwin Langley, U.S. Atty., and Roger P. Marquis, Atty., Dept. of Justice, were with him on the brief), for appellee.

Before BRATTON, LEWIS and HILL, Circuit Judges.

BRATTON, Circuit Judge.

This case presents for determination questions arising in a condemnation proceeding. At the request of the Secretary of the Army, the United States instituted the proceeding to acquire by condemnation title to land to provide for the construction and operation of the Eufaula Dam and Reservoir, Canadian River, in Oklahoma for flood control and related purposes. Robert Harwell owned a farm consisting of one hundred and ninety acres. Sixty acres of such land, referred to in the proceeding as Tract No. B-215, was sought and acquired. It was located approximately a mile and a half from the closest property to be inundated in the reservoir and approximately four and a half miles from the nearest point of the dam site. The estimated compensation was deposited in the registry of the court, and an order was entered granting possession to the United States. By answer, Harwell sought just compensation. The cause was tried to a jury. The jury found that the fair cash market value of the tract taken, plus the damage to the acreage remaining, was $8,700.00; and judgment was entered accordingly.

The substance of the first ground of attack upon the judgment is that the land was not acquired for a public use and that the power of condemnation was exercised in an arbitrary and capricious manner. By 33 U.S.C. § 591, the Secretary of the Army is vested with authority to cause proceedings to be instituted in the name of the United States for the acquisition by condemnation of any land or material "needed to enable him to maintain, operate or prosecute works for the improvement of rivers and harbors for which provision has been made by law * * *." In a condemnation proceeding, the court may determine whether the nature of the proposed use is public or private. But in the absence of bad faith, if the use is a public one, the necessity for the desired property or the expediency of appropriating it thereto is not open to judicial determination. It is a matter for the legislative branch of the government, and its determination may be delegated. United States v. Threlkeld, 10 Cir., 72 F.2d 464, certiorari denied, 293 U.S. 620, 55 S.Ct. 215, 79 L.Ed. 708.

The tract around which this controversy revolves was not part of the area to be inundated, and it was not immediately contiguous or adjacent to the dam site. But extended surveys and tests had disclosed that it was underlaid with a large deposit, sometimes referred to in the record as rock and sometimes as stone, suitable for use as a constituent element in the production of mass concrete aggregate needed in the construction of the dam. The acquisition of the land was desired for the purpose of enabling the private contractor who had the contract with the government to use the rock or stone thereunder for that purpose; and that was the source of the rock or stone used. The condemnation of land for such purpose was an appropriate means of effecting a public end and therefore the determination of the Secretary of the Army of "need" therefor was well within the range of power delegated by the statute, supra. Highland v. Russell Car & Snowplow Co., 279 U.S. 253, 49 S.Ct. 314, 73 L.Ed. 688; United States v. Marin, 9 Cir., 136 F.2d 388. It also lay within the range of power vested in the Secretary to determine that the power should be exercised even though the rock or stone was to be used by the contractor rather than the government itself in effecting such public end. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27. And in these circumstances there is no basis for the contention that the exercise of the power was arbitrary or capricious.

Asserted error is predicated upon the action of the court in declining to...