Rapid Transit Company v. United States, 6679.

• Decision Date: 13 November 1961
• Docket Number: No. 6679.,6679.
• Citation: 295 F.2d 465
• Parties: RAPID TRANSIT COMPANY, a corporation, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

295 F.2d 465 (1961)

RAPID TRANSIT COMPANY, a corporation, Appellant, v. UNITED STATES of America, Appellee.

No. 6679.

United States Court of Appeals Tenth Circuit.

October 10, 1961.

Rehearing Denied November 13, 1961.

H. Gordon Angwin, Pittsburg, Kan., and Clifford L. Malone, Wichita, Kan. (Charles E. Jones, Wichita, Kan., and Ben W. Weir, Pittsburg, Kan., were with them on the brief), for appellant.

Raymond N. Zagone, Washington, D. C. (Ramsey Clark, Asst. Atty. Gen., Newell A. George, U. S. Atty., Milton P. Beach, Asst. U. S. Atty., Kansas City, Kan., and Roger P. Marquis, Washington, D. C., were with him on the brief), for appellee.

Before PICKETT, LEWIS and BREITENSTEIN, Circuit Judges.

LEWIS, Circuit Judge.

The United States initiated this action in the United States District Court for the District of Kansas to condemn for its use some 5.21 acres of land located within the city of Lawrence, Kansas. 28 U.S.C.A. § 1358. The sole original and now continuing issue was and is the ascertainment of just compensation to the owner, Rapid Transit Company, appellant. The government estimated the value of the acreage to be $16,000 and deposited such sum with the court, which sum was repudiated by the owner as being inadequate. The trial court then appointed commissioners to appraise and fix the value of the property taken. After full hearing the commissioners set the fair market value of the property to be $17,500 as of the time of taking and the trial court, although indicating some personal dissatisfaction with the amount set,¹ approved and adopted the report of the commissioners as capable of support under the evidence and therefore binding upon the court.

The trial court's recognition that the findings of the commissioners must be upheld unless clearly erroneous is manifestly a correct limitation upon that court's review of such findings. Leader Clothing Co. v. Fidelity & Casualty Co. of N. Y., 10 Cir., 237 F.2d 7. And, in turn, we recognize the same limitation upon appellate review. This court will not set aside the judgment of a trial court, based upon findings, unless a review of the evidence results in a definite and firm conviction that substantial justice has been defeated by a manifest mistake. H. F. Wilcox Oil & Gas Co. v. Diffie, 10 Cir., 186 F.2d 683; Onego Corporation v. United States, 10 Cir., 1961, 295 F.2d 461.

Although the form of the landowner's appeal has several facets it is essentially an attack upon the commissioners' finding that

"* * * the landowner did not sustain the burden of establishing the fact that there was reasonable probability a change could be made in the Zoning Ordinance of the City of Lawrence, permitting the tract taken to be used for multiple dwelling purposes in the near future."

and the conclusion that

"At the time of taking the land by the United States of America on February 6, 1958, the best and most advantageous use of said land was * * * for single family residences in Zone A as described by the Zoning Ordinances of the City of Lawrence. * * *."

At the time of actual taking the land was zoned as "A" restricting its then use to single family residences; an attempt to rezone to "D" had failed² and no other efforts to obtain reclassification had been made. However the landowner called several witnesses who were familiar with the policy and attitude of the Lawrence zoning commission each of whom expressed the opinion that an application to rezone to "C" (multiple dwellings) would be favorably considered and that the land had a higher potential for successful development as a site for two and four unit housing. This opinion evidence indicating a reasonable probability that a favorable rezoning classification could be obtained was not directly contradicted and was a proper and indeed necessary factor for the trier of the facts...