Henning v. Lake Charles Harbor and Terminal District

• Decision Date: 04 January 1968
• Docket Number: No. 24586.,24586.
• Citation: 387 F.2d 264
• Parties: Mrs. Josephine H. HENNING et al., Appellants, v. LAKE CHARLES HARBOR AND TERMINAL DISTRICT, Appellee. LAKE CHARLES HARBOR AND TERMINAL DISTRICT, Appellant, v. Mrs. Josephine H. HENNING et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

387 F.2d 264 (1968)

Mrs. Josephine H. HENNING et al., Appellants, v. LAKE CHARLES HARBOR AND TERMINAL DISTRICT, Appellee.

LAKE CHARLES HARBOR AND TERMINAL DISTRICT, Appellant, v. Mrs. Josephine H. HENNING et al., Appellees.

No. 24586.

United States Court of Appeals Fifth Circuit.

January 4, 1968.

James J. Cox, of Scofield, Cox & Bergstedt, Lake Charles, La., for appellants Mrs. Josephine H. Henning and others.

Everett R. Scott, Jr. of Kaufman, Anderson, Leithead, Scott & Boudreau, and Fred H. Sievert, Jr. of Stockwell, St. Dizier, Sievert & Viccellio, Lake Charles, La., for appellee Lake Charles Harbor & Terminal District.

Before COLEMAN and GOLDBERG, Circuit Judges, and HANNAY, District Judge.

COLEMAN, Circuit Judge.

The Lake Charles Harbor and Terminal District was created in 1924 as a political subdivision of the State of Louisiana.¹ It has constructed, developed, maintained, and operated harbor and terminal facilities since its inception. In connection with these facilities, it has, from time to time, issued bonds and other indebtedness for capital improvement of the Port facilities.

In 1965 the District filed its suit in State Court to expropriate (condemn) 26.62 acres of land, the property of the appellants.² The owners, being nonresidents of Louisiana, removed the case to the United States District Court for the Western District of Louisiana. In vigorously contested proceedings which developed a record of 1700 pages, that Court ordered the lands expropriated and fixed just compensation, 260 F.Supp. 756 (1966).

The landowners appeal and the District has cross appealed.³ The Judgment of the District Court will be vacated and remanded.

The landowner appellants challenge the constitutionality of the taking and the amount of compensation. The cross appellant complains that the compensation was excessive.

Quite logically, the hearing in the District Court was divided into two parts.

The first part, comprising 946 pages of the appellate record, considered the question of the right to expropriate. The paramount issue was whether the District intended to use the lands for the construction of a coke plant as alleged in its petition. Such a coke plant was held to be for a public use by the Louisiana Court of Appeals in a companion case, Lake Charles Harbor & Terminal District v. Farquhar, 196 So.2d 847 (1967). The proof raised very strongly the likelihood that the lands would not, in fact, be used for the purpose alleged in the petition. There was much talk about a bulk storage plant of some, undefined nature. The record reveals that on the witness stand two officials of the Harbor Board declined to state who might use the storage tank (if that were the facility constructed) or what might be stored in it.

After hearing the evidence as to the use to which the lands were to be put, the Court stated:

"I will write an opinion in this case and I will decide it the right to take along with the other just compensation * * * It is true that if the Court were to hold that there was no power to take, then, of course, there is no use putting on any evidence about the value * * * but I am going on with the question of value tomorrow * * * I will give counsel full opportunity to argue this matter at length * * *".

The Judge then proceeded to dictate "my thoughts into the record". After further comment, he stated:

"That brings us to the fundamental question in this facet of the case: Is the taking for the proposed facility within the accepted meaning of the word `public use\'? Well, my answer to that, from what I have heard, is in the affirmative * * * I think the paramount purpose is a public one * * * the private use that would be made of these facilities from the evidence, I would consider to be incidental".

The Court concluded these remarks by saying,

"So, I think that this property can be taken, but now I might change my mind on that. I am not foreclosing that proposition".

The next day the trial proceeded on the question of just compensation and when that phase of the case was concluded the Court made its findings of fact and conclusion of law which have been published, as aforesaid, 260 F.Supp. 756. In those formal findings and conclusions the Court stated, "the only issue is just compensation". The findings and conclusions as to the right to take were never finalized or formalized beyond the remarks of the Court dictated into the record and above excerpted.

This Court, therefore, is left without any specific findings or conclusions as to why the District Court was of the preliminary view that the taking was for a public use, and therefore permissible. We are not informed of the credibility choices or other factors considered as decisive of the question. The Court nowhere finds or adjudicates the use to which the lands are to be put.

In this state of the record, we are driven to the conclusion that the judgment must be vacated and remanded for specific findings of fact and conclusions of law as to what use the land is to be put to and whether that use is public. In performing this function the District Court will be free, of course, to consider the record already developed as well as any further evidence which may be heard upon remand. Rule 52 (a) Fed.Rules Civil Procedure; Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065.

Both sides appeal as to the amount of the compensation. The District relied on the testimony of two appraisers, one of whom valued the land at $3,700 per acre while the other valued it at $3,500 per acre. The landowners likewise offered two experts. One of them valued the land at $8,250 per acre and the other at $9,500 per acre. The District Court found, "Giving due consideration to all factors, the Court concludes that an award of $5,975 per acre should be made". The factors are not enumerated or described. The parties attack the award as being the result of an "averaging" which is impermissible under both Louisiana law and the prior decisions of this Court. While it is true that the result very nearly approaches an average the District Court did not in its findings or conclusions indicate the use of such a method. We make no effort to read the Court's mind. Since the case must be remanded for further findings and conclusions as to the use of the lands sought to be expropriated we likewise remand for full findings and conclusions as to the factors upon which the Court computed compensation.

There was undisputed testimony from an expert witness (geologist) that the minerals underlying...