United States v. 1160.96 ACRES OF LAND, HOLMES CO., MISS., 28232.

• Decision Date: 05 October 1970
• Docket Number: No. 28232.,28232.
• Citation: 432 F.2d 910
• Parties: The UNITED STATES of America, Plaintiff-Appellee, v. 1160.96 ACRES OF LAND, MORE OR LESS, Situate IN HOLMES COUNTY, STATE OF MISSISSIPPI and Mrs. Florence B. Fisackerly, C. K. Fisackerly, Jr. and Mrs. Grace Fisackerly, Defendants-Appellants-Landowner.
• Court: U.S. Court of Appeals — Fifth Circuit

432 F.2d 910 (1970)

The UNITED STATES of America, Plaintiff-Appellee, v. 1160.96 ACRES OF LAND, MORE OR LESS, Situate IN HOLMES COUNTY, STATE OF MISSISSIPPI and Mrs. Florence B. Fisackerly, C. K. Fisackerly, Jr. and Mrs. Grace Fisackerly, Defendants-Appellants-Landowner.

No. 28232.

United States Court of Appeals, Fifth Circuit.

October 5, 1970.

Robert Hauberg, U. S. Atty., Jackson, Miss., Shiro Kashiwa, Asst. Atty. Gen., S. Billingsley Hill, Charles N. Woodruff, Attys., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

John M. Grower, William Timothy Jones, Jackson, Miss., for defendants-appellants; John Sharp Holmes, Holmes & Cortright, Yazoo City, Miss., Brunini, Everett, Grantham & Quin, Jackson, Miss., of counsel.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and CLARK, Circuit Judges.

JOHN R. BROWN, Chief Judge:

As in most eminent domain cases, the controversy here is more principal than principle. The legal issue is the propriety of a Court ordered remittitur as a condition to denial of the Government's motion for new trial. We hold the remittitur to have been improper and reverse and remand.

On March 14, 1968 the United States Government filed a Declaration of Taking on 1160 acres of Defendants' land in the Mississippi Delta¹ to be used as a floodway for the Yazoo Basin Headwater Project. The Secretary of the Army deposited $277,700 into the registry of the Court, an amount the Government considered to be fair compensation. In April, 1968, landowners asked that a jury be impounded to hear the issue of damages. In March, 1969, a jury returned a verdict of $513,400.² The Government filed a motion for new trial, which expressly contained an alternative prayer for a remittitur to $294,200, and in April, 1969, the Court granted the trial unless Defendants consented to a remittitur of $38,400 which would reduce the compensation to $475,000. In May Defendants filed the remittitur under protest, reserving the right to cross-appeal should the Government appeal. On July 1 the Government filed notice of appeal, and on July 2, landowners filed their notice of cross-appeal. By June 2, the Government had deposited the full amount of the judgment (after remittitur) plus interest from the date of filing of the Declaration ($492, 976) which the landowners withdrew July 8. The appeal was dismissed by the Clerk of the Court on October 31 because the Government had failed to file a brief. As an afterthought, the Government filed a motion to dismiss the appeal on November 3.

Though all of the appraisers agreed that the best use of the property was for agricultural production, as might be anticipated, the estimates of reasonable compensation for the taking varied with the person who was asked. The landowners' experts gave opinions ranging from $512,400 to $582,000. The Government's experts attempted to put the figure in the neighborhood of $290,000.

The disparity was primarily based on the question of whether the tract had been floodland before the Hillside Floodway Levee (First Phase) had been completed in 1965. The land was taken as part of a floodway and the Government's contention was that the levee did not cause more flooding than had always taken place prior to 1965. Defendants however asserted that no flooding had occurred before, and that the floodland was due to the Government, and not to the geography.³ The jury by its verdict apparently took the landowners' witnesses to be the more credible.⁴

Before we delve into the propriety of the Court-ordered remittitur, we face the threshold contention that since the landowners have accepted the fruits of the judgment by receiving the reduced amount, they have therefore waived the right to attack the remittitur. The Government relies strongly on Woodworth v. Chesbrough, 1917, 244 U.S. 79, 37 S.Ct. 583, 61 L.Ed. 1005. There Plaintiff brought an action against bank directors whose malfeasance allegedly had caused him injury. The trial Judge found the verdict excessive and conditioned the denial of a new trial on a remittitur. After filing the remittitur, Plaintiff appealed. The Supreme Court held that it would be inequitable for one to accept a judgment and then seek to "retract the condition on which it was granted". 244 U.S. at 82, 37 S.Ct. at 584, 61 L.Ed. at 1007. We echoed this in Movible Offshore Co. v. Ousley, 5 Cir., 1965, 346 F.2d 870, 875.

"`The plaintiff, by not insisting on the alternative allowed him by the court, of having a new trial of the whole case, but electing the other alternative allowed, of filing a remittitur of half the amount of the original judgment, and thereupon moving for and obtaining an affirmance of that judgment as to the other half, waived all right to object to the order of the court, of the benefit of which he had availed himself.\' Koenigsberger v. Richmond Silver Mining Co., 158 U.S. 41, 52, 15 S.Ct. 751, 756, 38 L.Ed. 889 (1895), and cases cited. See also Woodworth v. Chesborough, 244 U.S. 79, 37 S.Ct. 583, 61 L.Ed. 1005 (1917)."

But Woodworth implies that the judgment creditor has a real choice between taking a sure sum and putting the case to another trial and that the only detriment suffered is the risk that on the conditionally ordered retrial, the recovery will be even less than the reduced amount of the remittitur.

In a number of recent cases we have held that acquiescence in the remittitur as a condition to avoid a certain retrial does not amount to a waiver of the right to appeal and the subject of the appeal may be the remittitur itself. In Delta Engineering Co. v. Scott, 5 Cir., 1963, 322 F.2d 11, the plaintiff accepted the remittitur conditionally to enable him to appeal the validity of the remittitur which the partially successful plaintiff had protested at every stage. In allowing the appeal over the same contention urged by the Government here we had this to say:

"It would be a strange rule that would keep a plaintiff from challenging the legal correctness of any action having such portentous consequences."

322 F.2d at 15.

We spelled it out in our holding in Steinberg v. Indemnity Insurance Co., 5 Cir., 1966, 364 F.2d 266:

"By her appeal plaintiff seeks to set aside the order of remittitur and reinstate the verdict awarding her $49,000. In Delta Engineering Corp. v. Scott, supra, we assumed without deciding that until such time as plaintiff actually has obtained the fruits of a judgment he or she is free to challenge the legal correctness of the Court-enforced remittitur. In the case here presented we are faced with that issue squarely, and we hold that plaintiff here, who was refused an appeal on the interlocutory order of remittitur and who has consented to entry of the reduced judgment only conditionally, as a means to facilitate this appeal, has suffered a sufficiently adverse adjudication to allow an appeal."

364 F.2d at 268.

So the right to maintain the appeal turns on whether the remittitur is accepted without protest, as we pointed out in Minerals and Chemicals Phillip Corp. v. Milwhite, 5 Cir., 1969, 414 F.2d 428, 431:

"There remains the issue of appellee\'s cross-appeal. It is established that appellee accepted the remittitur. This Court made it unequivocally clear in Movible Offshore Company v. Ousley, 5 Cir., 346 F.2d 870 (1965) that once a remittitur has been accepted it may not later be appealed unless the acceptance was made under protest. No element of protest is present in the acceptance in this case."

There was nothing free about this acceptance of the remitted amount. First, the Fifth Amendment assures a citizen of just compensation. The citizen is the pursued, not the pursuer. He is entitled either to his property or to just compensation. The landowners had been deprived of the use of their property for one year when the trial began. And then, after being put to a trial which resulted in an award of $197,000 more than the Government's initial deposit, the Government filed its notice of appeal which landowners were entitled to treat as a good faith intention on the part of the sovereign to contest even the reduced judgment as excessive. Not until the Government had completely failed to comply with the most rudimentary rules of this Court, a failure that resulted in the dismissal for want of prosecution (and the belated motion of the Government to dismiss the appeal) could anyone — landowner or otherwise — divine the purpose of the Government. No one would seriously question that had the appeal been prosecuted with a reversal in favor of the Government that the landowners would have been subject to an action for recoupment on equitable principles of assumpsit, money had and received or the like.⁵ Unless landowners would have performed a highly unlikely feat by profligately spending nearly a half million dollars, their receiving the money made them little more than temporary stakeholders.

More than that, unless the funds were withdrawn from the registry, the landowners would have lost all interest during the time of the Government's appeal or their cross appeal since interest ceases on making the deposit.⁶ See Bishop v. United States, 5 Cir., 1961, 288 F.2d 525, 527. Thus, adopting the Government's contention would have meant that to maintain the attack on the validity of the remittitur the landowners would have had to (i) continue to lose the use of the property and (ii) also the use of the funds in lieu of the property. This would hardly square with the Fifth Amendment.

On the merits the decision can be quickly stated. The remittitur was erroneous because it was based on an incorrect legal standard. Whatever doubt there might have been before, this Court has now adopted the rule which limits reduction to the highest amount which the jury could have found.⁷

In Gorsalitz v. Olin Mathieson Chemical Corp., 5 Cir., 1970, 429 F.2d 1033, we chose the maximum recovery rule.⁸ We had this to say:

"* * * We agree with Gorsalitz\'s over-all attack that the court

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