Hembree v. United States

• Decision Date: 23 June 1965
• Docket Number: No. 17848.,17848.
• Citation: 347 F.2d 109
• Parties: Willa HEMBREE, Helen Garrett and Alberta Chancellor, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

347 F.2d 109 (1965)

Willa HEMBREE, Helen Garrett and Alberta Chancellor, Appellants, v. UNITED STATES of America, Appellee.

No. 17848.

United States Court of Appeals Eighth Circuit.

June 23, 1965.

J. A. Appelquist, Springfield, Mo., made argument for appellants and filed brief with Joe W. Collins, Stockton, Mo Robert M. Perry, Atty., Dept. of Justice, Washington, D. C., made argument for appellee and filed brief with J. Edward Williams, Acting Asst. Atty. Gen., Washington, D. C., Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., F. Russell Millin, U. S. Atty., Kansas City, Mo., and David M. Proctor, Jr., Asst. U. S. Atty., Kansas City, Mo.

Before VOGEL, MATTHES and RIDGE, Circuit Judges.

MATTHES, Circuit Judge.

This proceeding was instituted by the United States on June 27, 1963, to condemn the fee simple title to certain land in Cedar County, Missouri, for use in connection with the construction of the Stockton Dam and Reservoir Project on the Sac River. Two of the tracts taken are involved here. Tract 109, consisting of 20 acres, a part of a larger tract, was owned by Willa Hembree. Tract 112, consisting of 40 acres, all of which was taken, was owned by appellants Helen Garrett and Alberta Chancellor. The appeal was taken from the final judgment filed August 20, 1964, awarding appellant Hembree $600 ($30 per acre) as just compensation for Tract 109, and awarding Garrett and Chancellor $1,200 ($30 per acre) for Tract 112.

At issue is the question whether appellants "made a prima facie case" in support of their claims of highest and best use. The Government's position from the outset has been that the highest and best use of the two tracts was limited to grazing purposes, whereas appellants asserted and claimed that the highest and best use was either that of quarrying for limestone or for residential development.

After appellants filed their answers, in which they requested a jury trial of the issue of damages and just compensation, there were several pre-trial conferences. The court by pre-trial order filed June 5, 1964, directed that a hearing be held for the purpose of determining whether there was a factual foundation requiring the submission of evidence to a jury as to the fair market value of the subject tracts for "quarrying purposes or for residential development."

Pursuant to and in accordance with that order the court, on June 30 and July 1, 1964, held a hearing, heard the testimony of a number of witnesses, and admitted and considered numerous exhibits. At the conclusion of appellants' evidence, they having assumed the laboring oar, the Government moved the court to find that "such evidence was insufficient to warrant the submission thereof to a jury, on the issue of just compensation." The motion was granted. Thereafter, at the suggestion of the court, appellants and the Government stipulated for the entry of a judgment for $600 and $1,200 as just compensation for Tracts 109 and 112, respectively, on the basis that the highest and best use of the tracts was for grazing purposes, without prejudice, however, to the right of appellants to appeal from the judgment entered pursuant to the stipulation.

Because of the nature of the issue presented, we deem it essential to review in some detail the evidence which the court ruled was inadequate to provide a sufficient factual foundation for submission to the jury. Before attending thereto we take note of the legal principles that have controlling effect in condemnation proceedings.

We begin with the Fifth Amendment to the Constitution of the United States, which provides that private property shall not be taken for public use without just compensation. "Such compensation means the full and perfect equivalent in money of the property taken. The owner is to be put in as good position pecuniarily as he would have occupied if his property had not been taken." United States v. Miller, 317 U.S. 369, 373, 63 S.Ct. 276, 279, 87 L.Ed 336 (1943). See also Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236 (1934); Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206 (1878); Clark v. United States, 155 F.2d 157, 160 (8 Cir. 1946). Elaborating further on the rule, Olson, supra, states at pp. 255-256, 54 S.Ct. pp. 708-709:

"Just compensation includes all elements of value that inhere in the property, but it does not exceed market value fairly determined. The sum required to be paid the owner does not depend upon the uses to which he has devoted his land but is to be arrived at upon just consideration of all the uses for which it is suitable. The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered, not necessarily as the measure of value, but to the full extent that the prospect of demand for such use affects the market value while the property is privately held. (Citing authorities). * * * But the value to be ascertained does not include, and the owner is not entitled to compensation for any element resulting subsequently to or because of the taking. Considerations that may not reasonably be held to affect market value are excluded.

"* * * The determination is to be made in the light of all facts affecting the market value that are shown by the evidence taken in connection with those of such general notoriety as not to require proof. Elements affecting value that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable, should be excluded from consideration, for that would be to allow mere speculation and conjecture to become a guide for the ascertainment of value — a thing to be condemned in business transactions as well as in judicial ascertainment of truth."

In accord: McCandless v. United States, 298 U.S. 342, 56 S.Ct. 764, 80 L.Ed. 1205 (1936); United States v. Foster, 131 F.2d 3, 5 (8 Cir. 1942), cert. denied 318 U.S. 767, 63 S.Ct. 760, 87 L.Ed. 1138 (1943); Cade v. United States, 213 F.2d 138 (4 Cir. 1954).

The enhanced value created by the condemnor's need for and use of the property is not to be considered in determining the fair market value of the property that has been taken. United States v. Cors, 337 U.S. 325, 332, 69 S.Ct. 1086, 93 L.Ed. 1392 (1949); United States v. Miller, supra; United States v. Rayno, 136 F.2d 376, 378, 379 (1 Cir. 1943), cert. denied 320 U.S. 776, 64 S.Ct. 90, 88 L.Ed. 466 (1943); United States v. Crance, 341 F.2d 161 (8 Cir. 1965).

In addition to showing physical adaptability to a different use for the purpose of ascertaining fair market value, a landowner must show that a market existed on the date of taking or is reasonably likely to exist in the near future and mere physical adaptability is insufficient to discharge the burden of proving the existence of a market. Olson, supra; United States ex rel. and for Use of Tennessee Valley Authority v. Powelson, 319 U.S. 266, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943); Cameron Development Co. v. United States, 145 F.2d 209 (5 Cir. 1944).

We now revert to the evidence.

Limestone Issue.

The subject tracts are contiguous, and are located approximately one mile west of the city limits of Stockton, Missouri. In a "Stipulation for Pre-Trial Order" the parties agreed that a deposit or stratum of limestone of the compton variety is located within and beneath both tracts. In answer to interrogatories propounded by appellants, the Government stated that borings had been made on both tracts; that a stratum of limestone 8 feet thick known as "Zone B" of the compton formation lies at a depth of approximately 832 to 840 feet m.s. 1. within Tract 109; that an 8-foot stratum of limestone of the compton formation underlies Tract 112 at an elevation of approximately 860 feet m.s. 1. A laboratory analysis established that Tract 109 limestone contains 41.19% calcium carbonate, a plant food, and 39.08% magnesium carbonate, which is a sweetening agent to the soil; that Tract 112 limestone contains 47.30% to 55.33% calcium carbonate and 26.05% to 39.38% magnesium carbonate. From September, 1953 to the latter part of 1957 the quarry was operated on Tract 109 by one Preston under a lease from the owners. Appellants' proof of a market for the limestone in question is found largely in the testimony of two expert witnesses and in the testimony of Mr. Preston. The qualifications of the expert witnesses were not questioned and need not be detailed here. Mr. Hopper is the production and sales manager of the McQuerter Chemical Company located at Mt. Vernon, Missouri. Based upon an inspection of the analysis made of samples taken from both tracts and upon his knowledge of the use of and demand for the quality of limestone under consideration, this witness stated that there is a "market today" and a "growing market" for such limestone. The other expert witness, the co-owner and operator of a limestone quarry located reasonably near Tracts 109 and 112, made an inspection of the limestone quarry located on Tract 109 and testified unequivocally that there is a market existing for dolomite limestone.¹ From the testimony of appellants' witnesses it was developed that the limestone is adapted principally for agricultural purposes but it is also suitable and desirable for use as a filler in making fertilizer.

It is clear that the court was convinced that there was and is a "general market" for the subject dolomite limestone.² Indeed, we are satisfied that it would be difficult to reach a contrary conclusion from this record. What obviously troubled the court was whether it would be economically feasible to quarry, process...