United States v. 2,877.37 Acres of L. in Harris County, Tex.

• Decision Date: 18 November 1943
• Docket Number: Civil Action No. 687.
• Citation: 52 F. Supp. 696
• Parties: UNITED STATES v. 2,877.37 ACRES OF LAND IN HARRIS COUNTY, TEX., et al. (Tracts 46, 48, 49, 55).
• Court: U.S. District Court — Southern District of Texas

52 F. Supp. 696

UNITED STATES v. 2,877.37 ACRES OF LAND IN HARRIS COUNTY, TEX., et al. (Tracts 46, 48, 49, 55).

Civil Action No. 687.

District Court, S. D. Texas, Houston Division.

November 18, 1943.

Douglas W. McGregor, U. S. Atty., and H. L. Lewis, Sp. Asst. to U. S. Atty., both of Houston, Tex., for plaintiff.

Sewall Myer, Lewis Fogle, J. S. Bracewell, and Byron G. McCollough, all of Houston, Tex., for defendants.

KENNERLY, District Judge.

This is a suit by the Government of the United States of America to take for the public use approximately 2,877.37 acres of land located in Harris County west of the City of Houston, in this District and Division,¹ and a hearing on a motion by the Government to set aside the verdict of a jury finding the value of Tracts 46, 48, 49 and 55, aggregating 1,041.1 acres (without the minerals therein), and finding damages to tracts of the owners not taken, aggregating 384.7 acres, and to set aside the judgment entered on the Verdict, and for a New Trial.

The suit was filed under Section 257 et seq., Title 40 U.S.C.A.; Section 171, Title 50 U.S.C.A.; Section 591 et seq., Title 33 U.S.C.A.; and Section 632, Title 50 U.S.C.A.Appendix. Section 258, Title 40 U.S.C.A.,² provides that the practice, pleadings, forms, and modes of proceedings in suits of this character shall conform as near as may be to that of the Courts of record in similar cases in the State where the Court is held. The Texas procedure is set forth in Title 52, Vernon's Civil Statutes of Texas.³

In accordance with the Texas Statute, Commissioners were appointed, held hearings, and made their report, finding the compensation which they say should be allowed the landowners. The Government being dissatisfied with the decision of the Commissioners has excepted thereto,⁴ and the case has been tried here de novo (Olson v. United States, 292 U.S. 246, 250, 54 S.Ct. 704, 78 L.Ed. 1236), and as a civil action under the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c (United States v. 16,572 acres of land, D.C., 49 F.Supp. 556.)⁵

Under both the Texas Statutes⁶ and the Federal Statutes,⁷ the issue of the value of the tracts taken, and of the benefits and damages to the tracts of the owners not taken, was submitted to the jury.

The Government complains of the verdict of the jury as excessive, of certain evidence admitted and excluded at the trial, and of the Court's charge to the jury.

1. Rule 61 respecting motions for new trials is as follows: "No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."

The Government's 14th and 15th grounds for New Trial, etc. are as follows:

"14. Because the verdict of the jury is not sustained by the evidence as to any of the above listed tracts of land.

"15. Because the verdict of the jury is not supported by the preponderance of the credible testimony introduced in said cause, and is against the weight of the evidence."

It will thus be observed that there is complaint of the findings of value by the jury and of the amount of compensation awarded to the landowners, which brings forward the question of whether substantial justice has been done.

There was evidence that the land is situated in Harris County, approximately 20 miles west from the center or business district of the City of Houston, and approximately 12 miles from the city limits, between U.S. Highway 90 (a paved highway which runs east and west through Houston and across Texas) and West-heimer Road, a hard surfaced county road or highway which runs westwardly from Houston for approximately twenty-five miles, and that there are available to the land electric lights, rural mail delivery, schools, churches, and paved, hard surfaced, graded, and country roads, etc. There was evidence that there has been, and was at the time of trial, a rapid trend of residence development of Houston, particularly for country estates and homes, in the direction of and in some cases reaching the vicinity of the land, and that such land is valuable for residence subdivision purposes as well as for farm and dairy purposes.

There was also evidence that the Miles land, before Tract 49 containing 490.1 acres was taken therefrom, had thereon all necessary houses and other improvements for, and there was thereon, one of the largest and best equipped dairies in South Texas, keeping thereon a very large number of milk cows, which were milked in barns, etc., on, grazed on and fed from food raised on the land. The Brandenberger land also had improvements for a dairy and a dairy thereon before Tract 55 was taken therefrom.

A large number of witnesses testified as to the reasonable market value at the time of taking (January 10, 1942) of the tracts and improvements thereon taken and the damages to the tracts and improvements thereon that remained. The values given in this testimony range from quite below to quite above the values found by the jury. In other words, the values found by the jury are well in between the highest values and the lowest values named by the witnesses.

The jury found the value of Tract 46 of 99.2 acres with improvements thereon (without the minerals) to be $5,952, or approximately $60 per acre, and the damage to the tract of 213.5 acres with improvements that remained to be $1,067.50. It found the value of Tract 48 of 259.5 acres and improvements thereon (without the minerals) to be $18,165, or approximately $70 per acre. There was no tract remaining. It found the value of Tract 49 of 490.1 acres with improvements thereon (without the minerals) to be $61,262.50, or approximately $125 per acre, and the damage to the tract of 106.2 acres and improvements that remained to be $26,637.50. It found the value of Tract 55 of 192.3 acres with improvements thereon (without the minerals) to be $19,230, or approximately $100 per acre, and the damage to the tract of 65 acres with improvements that remained to be $650.⁸

It will be observed that the acreage value of the land and improvements of the different tracts found by the jury is in substantial harmony, but that as to Tracts 49 and 55, the values found were larger because of more valuable improvements.

The Jury was cautioned to scan carefully all the testimony as to value,⁹ and taking into consideration all the evidence, I have reached the conclusion that the values fixed by the jury are not such as to be inconsistent with substantial justice.

2. In considering the complaints of the Government with respect to the admission of evidence and the charge to the jury, it should perhaps be said that in view of the fact that Section 258, Title 40 U.S.C.A., directs that in a suit of this kind the Court shall follow the procedure, etc., with respect to eminent domain in the State in which the Court is held, and of the fact that the procedure is, generally speaking, different in the several States, and of the fact that there are several different Federal Statutes making provision for the taking of property for public use for different purposes, there is some diversity and conflict of opinion in the Federal cases on eminent domain. There is likewise some conflict in the Texas cases on eminent domain.

3. There is one complaint by the Government as to the exclusion of evidence offered by the Government. It is as follows: "The Court erred in not allowing witnesses offered by the Government to testify as to sales of similar and/or comparable land in the vicinity wherein the tracts on trial are located, such testimony having been excluded on the theory that said witnesses were neither the buyer, seller or agent who conducted the sale and, therefore, had no personal knowledge of the transaction. The exclusion of this evidence was highly prejudicial to petitioner and precluded the submission of photostats and certified copies of deeds to or sales of similar and/or comparable lands."

No evidence of specific sales of similar or comparable land was excluded where the witness was able to testify from personal knowledge. Where the knowledge of the witness was derived from the seller or buyer or others, it was excluded, the holding being that such seller or buyer or other person having personal knowledge should be called, permitting cross examination by the Landowners. The cases cited by the Government support the view that evidence of sales of comparable lands is admissible, but I find nothing therein to support the Government's view that hearsay evidence is admissible.¹⁰ The motion also mentions photostats and certified copies of deeds, the submission of which by the Government was "precluded" and which presumably were not offered in evidence. If such photostats and copies were not offered, the Government is, of course, not in position to complain.

4. There is complaint with respect to the testimony of the landowners' witnesses Carl Ehman, J. G. Miller, Ben F. Greenwood, Harry Richards, and R. W. Gillette, as follows: "The Court erred in allowing the jury to consider the testimony of the witnesses Carl Ehman, J. G. Miller, Ben F. Greenwood, Harry Richards and R. W. Gillette, as the evidence clearly showed that such witnesses were not familiar with and did not know the condition of any of the lands involved herein at or before the date of taking, January 10, 1942, and none of said witnesses had appraised the land until about two or three weeks before they testified in the case."

All these witnesses showed themselves sufficiently qualified to permit their testimony as to...