St. Bernard Cypress Co. v. United States, 6668.

• Decision Date: 20 June 1933
• Docket Number: No. 6668.,6668.
• Citation: 65 F.2d 711
• Parties: ST. BERNARD CYPRESS CO., Limited, et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

65 F.2d 711 (1933)

ST. BERNARD CYPRESS CO., Limited, et al. v. UNITED STATES.

No. 6668.

Circuit Court of Appeals, Fifth Circuit.

June 20, 1933.

R. C. Milling and William J. Guste, both of New Orleans, La., for appellants.

E. E. Talbot, U.S. Atty., and J. W. Hopkins, Sp. Asst. to U.S. Atty., both of New Orleans, La.

Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

This appeal, like that in Guste v. U.S. (C.C.A.) 55 F.(2d) 115, attacks a spillway condemnation award. The proceedings were conducted under the authority of the Mississippi River Flood Control Act of May 15, 1928 (33 USCA § 702a et seq.). Section 4 of the act (33 USCA § 702d), authorizing the Secretary of War to cause condemnation proceedings to be instituted, provides: "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."

As in the Guste Case, two sets of commissioners were appointed. Here, however, the attack is on the second award. No complaint is made of the setting aside of the first. Upon the issues made in the condemnation suit, full instructions in regard to ascertaining the value of the land to be taken, and the damage if any, to the remainder, were given the commissioners.¹ No exceptions were taken. The award, after describing the property, declaring the ownership, and stating the amount of land taken, took the form of a finding "that the fair market value of said land on the date of first condemnation, to wit, June 26, 1929, was Forty-four Thousand, Nine Hundred Ninety and 92/100 ($44,990.92) Dollars. This amount includes interest at the rate of five (5%) per cent per annum from the date of first condemnation to the date of this finding, on the amount of the valuation of the entire acreage involved, as the Commission considers that the condemnation for guide levee sites practically amounted to a taking of all the property included between the guide levees. The Commission leaves to the Court the question of interest after the date of this finding."

Appellants filed sixteen exceptions to the award, all attacking it generally as unjust, inadequate, and arbitrary, the result of gross prejudice and incompetence. None of these exceptions pointed to any specific act of corruption or partiality or to any definite thing of the kind. All of them, except the first, which complained of the failure to allow damages for that part of the land not actually taken, asserted in general terms that the commissioners had failed to observe and follow the law and the evidence. They were in substance and in effect merely general complaints that the award was unsatisfactory as opposed to the law and the evidence. They were as general as an exception to a jury verdict would be if it complained only that the verdict was contrary to the law and the evidence. The first, though specific as to the particular item referred to in it, the failure to award damages for part of the land not taken, was as general as the rest in its dependence for the determination of its correctness, upon a reading of the whole record in the case. It was not urged before the District Court, as it is sought to be urged here, that the award was ambiguous or incomplete, nor was any request made of that court to refer the matter back for further findings.

The position taken there was in effect that the award was contrary to the great preponderance of the evidence; that it had been arrived at through the failure of the commissioners to consider controlling principles of law and controlling testimony of facts. It was attempted by an examination of some of the commissioners to have the court inquire into and determine how they had reached their award, and whether they had acted correctly in so doing. No plain errors of law were shown, no facts were alleged showing either misconduct or grave error of fact, indicating partiality or corruption. What was undertaken to be instituted and tried out before the District Judge was a mere fishing expedition through an inquisition against the commissioners, to find out how they had performed their task, as a predicate to then having the judge hear and dispose of the matter, which the statute had commended to the commissioners. This excursion the judge properly declined to join or permit, and the exceptions pointing out no specific wrong, injustice, or error of fact or of law authorizing the award to be disturbed, he rightfully overruled them.

Appellants come here vigorously urging error in the confirmation of the award, and asking the reversal of the judgment on the grounds, first, that it appears...