United States v. 1,000 ACRES OF LAND, ETC.

• Decision Date: 21 April 1958
• Docket Number: Civ. A. No. 3362.
• Citation: 162 F. Supp. 219
• Parties: UNITED STATES of America, Plaintiff, v. 1,000 ACRES OF LAND, MORE OR LESS, IN PLAQUEMINES PARISH, LOUISIANA, and I. D. Zander, et al., Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

162 F. Supp. 219

UNITED STATES of America, Plaintiff, v. 1,000 ACRES OF LAND, MORE OR LESS, IN PLAQUEMINES PARISH, LOUISIANA, and I. D. Zander, et al., Defendants.

Civ. A. No. 3362.

United States District Court E. D. Louisiana, New Orleans Division.

April 21, 1958.

Norton L. Wisdom, New Orleans, La., for the United States.

Deutsch, Kerrigan & Stiles, Ralph L. Kaskell, Jr., New Orleans, La., for defendants Hero Lands Co., Hero Wall Co., New City Co., Numa C. Hero, Jr., Mrs. Numa C. Hero, Alvin A. Hero, and Jefferson & Plaquemines Drainage Dist.

Monroe & Lemann, Ralph N. Jackson, New Orleans, La., for defendants Edwin W. Hodge, Alex T. Hunt, Stewart S. Hunt, Carolyn Hodge Kroner, Otis E. Hodge, Jr., Gladys Virginia Hodge, Nancy Kimble Hodge, Lois Hodge Glassell, Mary Margaret Hodge Sour, Jayne Hodge Turbeville, Mary Elizabeth Hodge Fleming.

Milling, Saal, Saunders, Benson & Woodward, David J. Conroy, New Orleans, La., for defendants Jefferson J. Rebstock and Robert H. Reeves.

J. SKELLY WRIGHT, District Judge.

These proceedings arise from the condemnation by the Government¹ of a strip of land, approximately 800 feet wide and nine miles long running from the Mississippi River to Bayou Barataria, for the purpose of constructing an alternate waterway connection below the harbor of the City of New Orleans on the Intra-coastal Waterway. Because the cutting of the new canal affected drainage problems in the area and cut off access to some roads, in addition to building the canal, the Government also has built on the land condemned a pumping station, a drainage canal and certain roadways.

On February 5, 1952, the Government filed these proceedings and on February 7, 1952, an order of immediate possession was signed. This action concerns land condemned in Plaquemines Parish, Louisiana. Other property, in Orleans Parish, condemned for the alternate water connection, is the subject of other proceedings. The land in question here is undeveloped, low-lying land close to the Louisiana marshes. Because of the many different lots, parcels and tracts expropriated, a Commission was appointed pursuant to Rule 71A(h), Fed.R.Civ.P., 28 U.S.C.A., to take testimony and to fix the value of the property condemned. The Commission consisted of Dean Paul M. Hebert, School of Law, Louisiana State University, Dean Antonio E. Papale, School of Law, Loyola University, and Leonard Oppenheim, Professor of Law, Tulane University. Testimony was taken for forty-five full days and two days were spent by the Commission viewing the property by boat, by automobile, by truck and on foot.

The Commission's report, in 207 pages, carefully meticulously and painstakingly canvasses the evidence contained in the 6,113-page transcript and 450 exhibits. The report, finding the facts of valuation, severance damage and special benefit as to each lot, parcel or tract condemned, awarded just compensation as to each such lot, parcel or tract. This Court must accept the Commission's "findings of fact unless clearly erroneous." Rule 71A(h), Rule 53(e) (2), Fed. R.Civ.P. And a determination in this respect must be made with due regard for the Commission's function in weighing the conflicting evidence and judging the credibility of the witnesses. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 689, 66 S.Ct. 1187, 90 L.Ed. 1515; Tilghman v. Proctor, 125 U.S. 136, 149-150, 8 S.Ct. 894, 31 L.Ed. 664.

I.

Although the objections to the Commission's report as filed by the landowners constitute a veritable broadside against practically every finding by the Commission, their major complaints may be distilled down to four in number. At the outset, the landowners challenge the constitutionality of Section 6 of the Rivers and Harbors Act² in that that section of the Act requires that special and direct benefits to the remainder of a lot, parcel or tract, arising from the Government improvement for which the land is taken, shall be considered "by way of reducing the amount of compensation or damages" awarded. They argue that while special benefits may reduce the amount of severance damage, they cannot in any way affect the amount of compensation for the part actually taken. In this argument, the landowners have some support from the cases interpreting condemnation laws of various states. But the Supreme Court of the United States has held many times,³ and with reference to this particular statute,⁴ that special benefits may be set off not only against severance damage but against the value of the part taken as well.

Admitting that these cases may be persuasive on the point, the landowners then argue that here, as to some lots, parcels or tracts, special benefits set off against the value of the part taken, as well as against severance damage, resulted in no award in money to the landowners. Certainly, they say, since they get no money at all for the part taken, they have been denied just compensation therefor. But the Fifth Amendment does not require payment in money. The constitutional command is "just compensation." And the Supreme Court has held that special benefits to the remainder of a lot, parcel or tract is just compensation for the part taken. Merely because the value of the special benefits is the same as, or greater than, the sum of the value of the part taken and severance damages to the remainder, thereby requiring no payment in money to the landowner, that does not mean, logically and mathematically it cannot mean, that just compensation has not been awarded to the landowner for the part taken. Money is but a medium of exchange. When just compensation is obtained through direct benefits to the remainder, use of the medium becomes unnecessary. The quotations, urged by landowners, from certain cases⁵ which indicate that just compensation means money are aberrations which become clear when the full text of the opinions are read.

II.

The landowners object to the Commission's refusal to consider the evidence proffered by them under Rule 43(c) concerning the question of seepage. They claim to have proved to a reasonable probability that seepage through the levees erected to contain the canal would, some time in the future, damage their land adjacent thereto. In a preliminary hearing prior to submission of the case to the Commission, this Court held that seepage damage to a lot, parcel or tract, no part of which was condemned for the project, is consequential damage and not recoverable in the condemnation proceeding. United States v. Miller, supra, 317 U.S. at page 376, 63 S.Ct. at page 281; Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, 48 L.Ed. 211. Such damages are, under some circumstances, recoverable under the Tucker Act.⁶ See United States v. Dickinson, 331 U.S. 745, 67 S. Ct. 1382, 91 L.Ed. 1789.

In its charge to the Commission on seepage damage to the remainder of a tract, part of which was taken in these proceedings, the Court stated, "In determining just compensation you should entirely exclude from consideration any elements affecting value which depend upon conditions or a combination of occurrences which, while within the realm of possibility, are not shown to be reasonably probable. In other words, you should exclude from consideration pure speculation or conjecture, basing your findings upon the relevant evidence." Landowners do not quarrel with this instruction. They simply maintain that seepage damage was proved to a reasonable probability.

The evidence on seepage, recorded but excluded, shows that in the opinion of at least one expert hired by the landowners, damage from seepage was "a reasonable probability" with respect to certain tracts, parts of which were condemned in these proceedings. Landowners, citing United States v. Dickinson, supra, suggest that this probability reduces the value of the remainder and should be considered in determining just compensation.

The "reasonable probability" of seepage damage foreseen by landowners' expert apparently does not take into consideration the fact that the U. S. Engineers are the foremost builders and maintainers of levees in the world and that this experience will minimize, if not entirely eliminate, the possibility of a levee built and maintained by them allowing seepage. Consequently, any claim for seepage at this time is not only conjectural but is predicated on the unlikely assumption that the U. S. Engineers will be unable to prevent it. The Court, therefore, having considered the evidence on seepage excluded by the Commission, finds as a fact that there is no present proof thereof and that evidence of future seepage is conjectural and entitled to no weight in determining just compensation. Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236; United States v. Chandler-Dunbar Water Power Company, 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063. In the event damage from seepage is suffered some time in the future, if both the Tucker Act⁷ and the Federal Tort Claims Act⁸ are unavailable, these landowners may apply to Congress for relief. Such procedure would not be unfamiliar to these landowners. They are experienced and effective Congressional pleaders.⁹

III.

One of the claimants, the Jefferson-Plaquemines Drainage District, objects to the Commission's report because the report fails to award the District compensation for loss of assessments on the land condemned. The District argues that this land is "burdened with the obligation, in the form of an encumbrance, to pay the future assessments for maintenance and operation of the dikes, ditches and water pumps of the Drainage District." Citing two Oregon cases, United States v. Aho, D.C., 68 F.Supp. 358, and United States v. Florea, D.C., 68 F.Supp. 367, the Drainage District contends that its assessments are encumbrances on the land, and since the United States is taking the land, it must liquidate the encumbrances.

The short answer to this objection may be that the United States here, as distinguished from United...