United States v. 116.00 ACRES OF LAND, ETC., BENTON COUNTY, ARK.

• Decision Date: 09 March 1964
• Docket Number: Civ. A. No. 474.
• Parties: UNITED STATES of America, Plaintiff, v. 116.00 ACRES OF LAND, MORE OR LESS, IN BENTON COUNTY, ARKANSAS, and Eli Leflar, et al., and Unknown Owners, Defendants.
• Court: U.S. District Court — Western District of Arkansas

227 F. Supp. 100

UNITED STATES of America, Plaintiff, v. 116.00 ACRES OF LAND, MORE OR LESS, IN BENTON COUNTY, ARKANSAS, and Eli Leflar, et al., and Unknown Owners, Defendants.

Civ. A. No. 474.

United States District Court W. D. Arkansas, Fayetteville Division.

March 9, 1964.

Charles M. Conway, U. S. Atty., Max Findley, Sp. Asst. to U. S. Atty., Ft. Smith, Ark., for plaintiff.

Eli Leflar, J. Wesley Sampier, Rogers, Ark., Wade & McAllister, Fayetteville, Ark., for defendants.

JOHN E. MILLER, Chief Judge.

On August 2, 1962, plaintiff filed its complaint to condemn and acquire title to the following tracts of land:

The fee simple title to Tract No. 1323, containing approximately 25 acres in the NE¼ of the SE¼ of Sec. 34, T 19 N, R 29 W, in Benton County, Arkansas. Earnest Wiseley and wife, Naomi Wiseley, owners.

The following tracts of land owned by Elzie McElhaney and wife, Opal McElhaney:

The fee simple title to Tract 1324-1, being the SW¼ of the NW¼ and that part of the NW¼ of the SW¼ lying north of the bluff, said bluff being on the south side of White River, all in Sec. 35, and part of the SE¼ of the NE¼ of Sec. 34, T 19 N, R 29 W, in Benton County, Arkansas, containing 75.5 acres, more or less.

The fee simple title to Tract 1324-2, being part of the NW¼ of the SE¼ of the NE¼ of Sec. 34, T 19 N, R 29 W, containing 0.94 acre, more or less.

Perpetual flowage easements on:

Tract No. 1324E-1, containing 1.0 acre, more or less.

Tract No. 1324E-2, containing 0.25 acre, more or less.

Tract No. 1324E-3, containing 0.25 acre, more or less.

The declaration of taking was filed August 2, 1962, and on the same date order was entered requiring the owners and all persons in possession or control of the property to surrender possession thereof to the plaintiff within five days from the date of the service of a copy of the order.

On September 17, 1963, Commissioners were appointed as provided by Rule 71A(h), Federal Rules of Civil Procedure.

A pretrial conference was conducted by the Commission at the City Auditorium in Rogers, Arkansas, on October 28, 1963, at which time the landowners and the White River Sand & Gravel Company, Inc., a lessee, appeared in person and by their attorneys. The case was set for hearing November 25, 1963, and continued for three days. During the course of the hearing 19 witnesses testified and 18 exhibits were introduced on behalf of the Government and 20 by the landowners and lessee.

During the course of the hearing it was announced by the parties in interest that the Government and Mr. and Mrs. McElhaney had reached an agreement with respect to the interest acquired in Tracts Nos. 1324-1, 1324-2, 1324E-1, 1324E-2 and 1324E-3, leaving insofar as those tracts were concerned only the question of just compensation of the leasehold estate of the White River Sand & Gravel Company, Inc., in said tracts.

The report of the Commission was filed on December 5, 1963.

White River Sand & Gravel Company, Inc., filed objections to the report on December 14, 1963. Earnest Wiseley filed objections to the report on December 17, 1963, and the plaintiff filed its response to the objections on January 9, 1964.

On December 18, 1963, following the filing of the objections to the report, the court addressed a letter to the attorneys for the landowner, Wiseley, and for the lessee, White River Sand & Gravel Company, Inc. In that letter the court stated:

"I have not examined the report and have only casually read the objections, but I shall give consideration to the report and objections as soon as the business of the court will permit, unless you should desire to procure and submit to me a transcript of the testimony taken at the hearing. In the event you desire to submit a transcript of the testimony for use by me in considering the objections and exceptions to the report, I shall thank you to advise as soon as you may reasonably do so."

On December 23, 1963, the attorneys for Wiseley advised that they were investigating the cost of obtaining a transcript of the testimony and would consult with the attorneys for White River Sand & Gravel Company, Inc., and decide whether to furnish a transcript of the testimony. On January 16, 1964, the attorneys for the White River Sand & Gravel Company, Inc., advised that the parties had been unable to agree to submit to the court a transcript of the testimony. They further stated:

"* * * We, therefore, request that you give consideration to the report and objections thereto in your review of the case at your convenience.

"Insofar as White River Sand & Gravel Company, Inc., owners of the leasehold interest is concerned, we do not desire to request oral argument unless requested by the Court. It is our understanding that the attorneys for the landowners have requested an opportunity for oral argument and we, of course, have no objections to their presenting oral argument to the Court. However, we have taken a position in behalf of White River Sand & Gravel Company, Inc., that unless the transcript of the testimony is furnished to the Court or unless the Court requests oral argument, we do not wish to present oral argument in behalf of our client unless a transcript of the testimony is available to the Court."

On January 20, 1964, the attorneys for Wiseley by letter advised the court as follows:

"Reference is made to your letter of December 18 and Mr. McAllister's letter of January 16. Since the parties have been unable to agree on furnishing the funds for supplying the quite expensive transcript, the landowner, Mr. Wiseley, joins the lessee, the White River Sand & Gravel Company, in its request that you give consideration to the report, the objections, the Government's response and the enclosed reply, at your convenience.

"The request of the landowner for an opportunity for oral argument is hereby withdrawn, the enclosed `Reply to Government's Response' being submitted in lieu thereof."

Accompanying the letter was the reply of Wiseley to the Government's response to the objections filed to the report.

Prior to the correspondence above quoted, the court had been called upon in other cases to determine whether it should order at the request of the landowners a transcript of the testimony introduced at the hearing. After considering the question, the court decided that it had no right or authority to order a transcript of the record furnished at the expense of the Government. Attorneys representing landowners were generally advised of such ruling, but nevertheless the court felt in this case that the landowners and the lessee should have an opportunity to procure and furnish a transcript for use by the court in considering the report of the Commission and the objections thereto.

In the objections to the report of the Commission, the response of the Government, and the reply thereto by Wiseley, the attorneys have included arguments and citations of authorities in support of their respective contentions. In other words, the objections, the response and the reply thereto are, in fact, briefs and arguments.

Tract No. 1323, Wiseley, consisting of 25 or 26 acres is situate in a bend of White River about seven miles from Rogers, Arkansas. The White River runs through the southern portion of the tract against a high bluff. North of the tract there is another bluff or escarpment, as described by the geologist who testified. Most of the tract is below mean sea level of 1,060 feet and floods on an average of once every two years, but has not been flooded to that level in the last three years. A large portion of the tract is underlaid with sand and gravel.

On May 12, 1956, Wiseley and wife executed and delivered to White River Sand & Gravel Company, Inc., a sand and gravel lease "for the sole purpose of exploring and operating for sand and gravel in and on the bed, bars and banks of the White River where said stream flows through the lessor's hereinafter described lands * * * for the term of two years from the date hereof, and as much longer as sand and gravel are being profitably produced thereon." The lease further provided that the landowner should have a lien upon any and all of lessee's machinery, appliances and equipment for any unpaid royalty due under the lease, which was fixed at 10 cents per ton, with a provision for a minimum payment of $150 per year regardless of the quantity of sand and gravel produced from the land.

On the same date, May 12, 1956, McElhaney and wife executed and delivered to the White River Sand & Gravel Company, Inc., a lease on the SE¼ NE¼ of Sec. 34 and the SW¼ NW¼ of Sec. 35, T 19 N, R 29 W, "for the term of two years from the date hereof and as much longer as the lessee is operating for sand and gravel" by reason of the Wiseley lease. The stated purpose of the McElhaney lease was "for the establishment and maintenance of storage space for sand and gravel preparatory to the sale and removal thereof; but it is expressly understood that the lessee will use not in excess of one acre of ground presently under cultivation." The lessee agreed to pay $100 each year during the term of the lease, and the lessor was granted a lien on any and all of the lessee's machinery, appliances and equipment for any unpaid rent.

On August 4, 1958, McElhaney and wife executed another lease to the sand and gravel company in identical terms with the lease of May 12, 1956, except that it permitted the lessee to use a maximum of five acres and fixed the rental at $160 per year.

The Commission described in some detail the procedure that was followed by the lessee in mining the sand and gravel. The operation was efficiently conducted by the lessee, and there was a ready market for the production. Approximately 111,000 cubic yards of sand and gravel were removed from the tract between 1956 and 1962, a period of 77 months. The District Geologist of the Corps of Engineers testified that the average depth of gravel on this tract was 10 feet, and that the number of...