United States v. 12 Tracts of Land, Comprising 50.07 Acres, Civ. No. 487.

• Decision Date: 11 April 1967
• Docket Number: Civ. No. 487.
• Citation: 268 F. Supp. 125
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES of America, Plaintiff, v. 12 TRACTS OF LAND, COMPRISING 50.07 ACRES, MORE OR LESS, IN the COUNTY OF DARE, STATE OF NORTH CAROLINA, Fred W. Morrison et al., and Unknown Owners, Defendants.

268 F. Supp. 125

UNITED STATES of America, Plaintiff, v. 12 TRACTS OF LAND, COMPRISING 50.07 ACRES, MORE OR LESS, IN the COUNTY OF DARE, STATE OF NORTH CAROLINA, Fred W. Morrison et al., and Unknown Owners, Defendants.

Civ. No. 487.

United States District Court E. D. North Carolina, Elizabeth City Division.

April 11, 1967.

Robert H. Cowen, U. S. Atty., by William S. McLean, Asst. U. S. Atty., for plaintiff.

Bunn, Hatch, Little & Bunn, Raleigh, N. C., for defendants Fred W. Morrison and others.

Hubert Humphrey, of McLendon, Brim, Brooks, Pierce & Daniels, Greensboro, N. C., for defendant Jerome B. Griffin.

OPINION AND ORDER

LARKINS, District Judge:

SUMMARY

This cause comes before the Court for trial without the intervention of a jury upon a Complaint in Condemnation filed by the United States of America, pursuant to Title 40, United States Code, Section 257 et. seq., to enable the United States Department of the Interior to acquire certain land in Dare County, North Carolina, for use in connection with the Fort Raleigh National Historic Site of the National Park Service, United States Department of the Interior. Authority for the taking is established by Title 40, United States Code, Section 258a, and jurisdiction in this Court is provided for in Title 28, United States Code Annotated, Section 1358.

Complaint was filed December 20, 1963, and Order for Delivery of Possession of the original twelve tracts was filed December 27, 1963. A year later, the Government amended its Complaint on December 23, 1964, to add three more tracts (Park Tracts No. 25, 30 & 31), and the Order for Delivery of Possession as to these was filed December 28, 1964. The estate taken was "full fee simple title, along with all water rights and other rights, tenements, hereditaments and appurtenances thereunto pertaining," subject to easements for streets, highways, and public utilities not taken in the declaration. Park Tract No. 25 was taken subject to an access easement reserved to the owners of the remainder of the larger tract from which it was severed, subject to absolute termination upon a new access route being opened between the remaining portion and U. S. Highway No. 64-264. Such a route has since been opened, but the degree of adequate service it provides the remaining tract is in dispute.

All defendants—ostensible owners and other claimants, known or unknown— were served in accordance with Federal Rule 71A(d). Pursuant to Federal Rule 71A(j) and Title 40, United States Code, Section 258a, sums estimated by the Solicitor of the Department of the Interior as just compensation for the lands taken in this action were set forth in the First and Second Declarations of Taking and deposited with the Clerk of this Court (on December 20, 1963, and December 23, 1964, respectively). Of the amounts deposited, the Court has allowed several ostensible owners to withdraw a portion of the sums deposited to their credit without prejudice to their rights to a full hearing and final determination of the issue of just compensation for their property. The several tracts and park tract numbers, survey map tract numbers, names of ostensible owners, acreage, amount of estimated just compensation deposited, and amounts withdrawn in respect to each is as follows:

                PARK TRACT    SURVEY MAP       OSTENSIBLE                                     WITH-
                NUMBER        TRACT NUMBER       OWNERS                   ACREAGE      DEPOSIT          DRAWALS
                  2                3          Fred W. Morrison and
                                              wife, Emma Neal Morrison      11.93      $   1.00    $      1.00
                  3                4          L. V. Rogers and wife
                                              Matilda Dough Rogers           0.35       2750.00        2700.00
                  4                5          L. S. Dough, H. A
                                              Dough, C. Worden
                                              Dough, Matilda D
                                              Rogers, Glenn C
                                              Dough, and Wynn T
                                              Dough                          5.69       3150.00
                  5              6 & 13       Mary D. Craddock,
                                              William S. Pinner and
                                              wife, Aleta Pinner,
                                              Thomas M. Tillett
                                              and wife, Laura C.             5.41 &
                                              Tillett                        0.43       5100.00
                  6              7 & 12       Fred W. Morrison and
                                              wife, Emma Neal                4.04 &
                                              Morrison                       1.28          1.00           1.00
                  7              9            Ralph W. Umphlett
                                              and wife, Margarette
                                              M. Umphlett                    1.64       3120.00        2808.00
                  8              2            Fred W. Morrison and
                                              wife, Emma Neal
                                              Morrison                      11.02          1.00           1.00
                
                

                PARK TRACT    SURVEY MAP       OSTENSIBLE                                              WITH-
                NUMBER        TRACT NUMBER       OWNERS                    ACREAGE      DEPOSIT       DRAWALS
                  9              16            L. S. Dough, H. A.
                                               Dough, C. Worden
                                               Dough, Matilda D.
                                               Rogers, Glenn C.
                                               Dough and Wynn T.
                                               Dough                        4.60      $13500.00      $10125.00
                 15              15            George C. Trautwein          0.33        1300.00
                 27               8            John T. Garrison and
                                               wife, Dorothy S. Garrison    0.36        1200.00
                 28              11            Muriel G. Daniels            1.52        3200.00
                 29              10            John T. Garrison and
                                               wife, Dorothy S. Garrison
                                               and Edgar A.
                                               Perry and wife, Mary
                                               F. Perry                     1.47        2250.00
                 25               -            Estate of Jerome B.
                                               Griffin                     49.00       34700.00       26025.00
                 30               -            Dare County                 Streets         1.00
                 31               -            State of North Carolina      State
                                                                           Highway
                                                                           No. 345
                                                                           (portion)       1.00
                

A motion by the original defendants that the Court appoint three Commissioners to hear the evidence and determine the amounts of just compensation for each tract was allowed but subsequently rescinded upon further motion of the defendants, waiving trial by jury and requesting instead that the Court sit as both Judge and Jury, hear the evidence, and determine the amount of just compensation in respect to each tract taken. This latter motion was allowed, and the trial was held at a special term on Roanoke Island at Manteo, North Carolina, for the convenience of all parties and witnesses and to afford the Court an opportunity to view and inspect the respective tracts of land under consideration.

At the four-day trial, the owners of eight of the original tracts condemned were represented by counsel. As to the other four tracts, George C. Trautwein, ostensible owner of Park Tract No. 15 (Survey Tract No. 15), and Fred W. Morrison and wife, ostensible owners of Park Tract No. 2 (Survey Tract No. 3), Park Tract No. 6 (Survey Tract No. 7 & 12), and Park Tract No. 8 (Survey Tract No. 2), were all identified at the trial but were not present nor represented by counsel. They were, however, notified of the time and place of trial and indicated that they had no desire to be present. The ostensible owners of the three additional tracts taken (Park Tracts No. 25, 30 and 31—no survey map tract numbers were assigned), the Estate of Jerome B. Griffin, Dare County, and the State of North Carolina, respectively, were, with the exception of Dare County, represented by counsel.

Numerous exhibits were offered by the Government and by the landowners, some of which were admitted over objection, including abstracts of title, maps, surveys, aerial photographs, certified copies of deeds and deeds of trust, appraisal reports and memorandums of qualifications of witnesses, photographs and slides, brochures, postcards, and a Congressional Committee Report from the House Committee on Interior and Insular Affairs (Report No. 644). The slides, brochures, photographs, and postcards were admitted for the limited purpose of illustrating the testimony of witnesses. Testimony of expert witnesses was adduced on behalf of the Government and the landowners as to the location, nature, and description of the lands involved and their expert opinions as to the highest and best use and fair market value of the tracts on the date of the taking. The Court also made a personal inspection of the tracts involved, mindful, however, that two years had elapsed from the date of taking to the date of the trial, and that the physical characteristics of many of the tracts had changed substantially during that time (some of the hearings were held upon part of the land taken, in the auditorium of the Park Service Administration Building erected thereon). For this reason, although it was of some aid to the Court to have an opportunity to view the boundaries of the respective tracts and their positions with reference to streets, highways and watercourses, little or no substantive weight was given to this viewing in reaching the Court's determination of values (the Court did not have the benefit of a view of the premises on or about the date of taking).

Following the trial of this action, final judgment was entered upon stipulation of compromise and set...