United States v. 1146.32 Acres of Land, Civ. A. No. 192.

• Decision Date: 22 July 1955
• Docket Number: Civ. A. No. 192.
• Citation: 132 F. Supp. 681
• Parties: UNITED STATES of America, Plaintiff, v. 1146.32 ACRES OF LAND IN VICTORIA COUNTY, TEXAS, and Frank S. Buhler, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

132 F. Supp. 681

UNITED STATES of America, Plaintiff, v. 1146.32 ACRES OF LAND IN VICTORIA COUNTY, TEXAS, and Frank S. Buhler, et al., Defendants.

Civ. A. No. 192.

United States District Court S. D. Texas, Victory Division.

July 22, 1955.

Malcolm R. Wilkey, U. S. Atty., Arthur L. Moller and John D. Richardson, Asst. U. S. Attys., Houston, Tex., for plaintiff.

Stofer, Proctor, Houchins & Anderson, John G. Stofer, Victoria, Tex., and Vinson, Elkins, Weems & Searls, David T. Searls and Jack D. Head, Houston, Tex., for defendants.

INGRAHAM, District Judge.

This is a suit for the condemnation of land by the Government. There have been six Declarations of Taking of six contiguous tracts of land consisting of approximately 1,471 acres, all out of the same parent ownership which we will refer to as the Buhler land. The dates of the respective Declarations of Taking range from September 22, 1952, to June 30, 1955. The right of the Government to take the land is not disputed by defendants and the parties have agreed that the only matter in dispute to be litigated is the right of defendants to just compensation.

The matter is now before the court on defendants' motion for the appointment of a commission of three persons to determine the issue of just compensation pursuant to Rule 71A(h) of the Federal Rules of Civil Procedure, 28 U.S.C.A. It appears that plaintiff filed a demand for trial by jury in due form and time and plaintiff opposes the motion of defendants and questions the propriety of the court to appoint a commission pursuant to the provisions of Rule 71A(h).

Rule 71A(h) of the Federal Rules of Civil Procedure is quoted in part as follows:

"* * * any party may have a trial by jury of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix, unless the court in its discretion orders that, because of the character, location, or quantity of the property to be condemned, or for other reasons in the interest of justice, the issue of compensation shall be determined by a commission of three persons appointed by it. * * *" (Italics mine.)

Where demand for trial by jury is seasonably made its denial would be error unless exceptional and extraordinary circumstances or conditions exist with respect to character, location, or quantity of the property condemned or for other reasons in the interest of justice, the court may in its discretion appoint a commission to determine the issue of just compensation. United States v. Theimer, 10 Cir., 199 F.2d 501. United States v. Wallace, 10 Cir., 201 F.2d 65. United States v. Waymire, 10 Cir., 202 F.2d 550.

The quantity (1,471 acres) is not exceptional or extraordinary. The location is not exceptional or extraordinary as the land is located within five or six miles of the Federal Court House in Victoria. This leaves for consideration the question of whether the character of the land condemned presents such exceptional or extraordinary circumstances or conditions which would impel the court, in its sound discretion, to apply the provisions of Rule 71A(h) authorizing the appointment of a commission to determine the issue of just compensation.

The land in question is that taken and used by the United States Air Forces as Foster Air Force Base in Victoria County, Texas. Foster Air Force Base was originally built by the United States Army Air Corps about 1940 or 1941 upon the tract of land described in plaintiff's Declaration of Taking No. 1 recited to contain 1,144.71 acres of land, under a temporary lease from the defendant landowners. At the conclusion of World War II the air base was abandoned, the lease terminated, and the land returned to the defendant landowners with the permanent improvements thereon. Such improvements include "a residence occupied by the defendant Frank S. Buhler, two barns, an incinerator building, seven warehouses, an airplane hangar building, three swimming pools, 120,000 square yards of paved roadways, 970,700 square yards of concrete airfield runways and pavement, a storm sewer system, a sanitary sewer system, complete water distribution plant and water mains, two water wells, gas lines, fences, and 3,500 linear feet of railroad tracks. The portion of such property occupied by the warehouses, airplane hangar, and railroad tracks was being used as an industrial warehouse area at the time of the taking. That portion of the tract...