United States v. 2,477.79 ACRES OF LAND, ETC., 16980.

• Decision Date: 29 August 1958
• Docket Number: No. 16980.,16980.
• Citation: 259 F.2d 23
• Parties: UNITED STATES of America, Appellant, v. 2,477.79 ACRES OF LAND, MORE OR LESS, SITUATE IN BELL COUNTY, TEXAS, and Tom G. Bowles, Jr., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

259 F.2d 23 (1958)

UNITED STATES of America, Appellant, v. 2,477.79 ACRES OF LAND, MORE OR LESS, SITUATE IN BELL COUNTY, TEXAS, and Tom G. Bowles, Jr., et al., Appellees.

No. 16980.

United States Court of Appeals Fifth Circuit.

August 29, 1958.

Elizabeth Dudley, Roger P. Marquis, Attys. Dept. of Justice, Washington, D. C., Perry W. Morton, Asst. Atty. Gen., John W. McDonald, Asst. U. S. Atty., Land Acquisition Sec., Waco, Tex., Russell B. Wine, U. S. Atty., San Antonio, Tex., for appellant.

Wilford W. Naman, Naman, Howell & Smith, Waco, Tex., for appellees.

Before RIVES, JONES and BROWN, Circuit Judges.

JONES, Circuit Judge.

The United States instituted a proceeding for the condemnation of sixteen parcels of land aggregating 2,477.79 acres, situate in Bell County, Texas. Several of these tracts were to be used for the establishment of Belton Dam and Reservoir in the Brazos River Basin. The other tracts were to be used for the expansion of Fort Hood. Three tracts taken in the condemnation were owned by Tom G. Bowles, Jr. The general layout of the Bowles land is shown by the following sketch:

Tract 805, containing 469.48 acres, was taken for the Fort Hood expansion. Tract B-113-1, of 145.5 acres, and Tract B-113-2, containing 8.70 acres, were taken for the dam and reservoir project. Only these three parcels are involved in this appeal.

The United States made a demand for a jury trial of the issue of just compensation. The court entered an order reciting its conclusion that, "because of the character, location and quantity of the land" and because "it would be in the interest of justice", the compensation to be paid should be determined by a commission of three persons as provided by Rule 71A, Federal Rules of Civil Procedure, 28 U.S.C.A.¹ By the order commissioners were appointed. The United States excepted to the order. The exception was overruled, and one of the specifications of error is predicated upon this ruling.

The court gave instructions to the commissioners, including one which is set forth in the margin,² regarding damages to land not taken and the offset of enhancement of value to the remainder of the land against such damage. A request was made by Bowles that the commissioners be instructed that the location of Tract 805 as lakefront property could be considered in determining its value. The motion was overruled. The Government did not object to any of the instructions given or make any request for additional instructions.

Prior to and at the time of taking the land was useful for farming and ranching. It was a rolling and hilly tract. Most of it was cleared. There was some timber land. A small area was in cultivation. Before the commission it was stated by counsel for Bowles that "this was just raw land, undeveloped, and not used for any purpose than agricultural purposes." The building of the dam gave to Tract 805 a substantial water frontage, a mile more or less, along the newly created lake. The land sloped back from the lake so that there was a view of the water from nearly all of the tract. Without the lake the value of the land would be determined by its use for ranching and agricultural purposes.

There was a considerable divergence of opinion among the experts who testified as to values. The witness Ray, testifying for Bowles, placed a value on Tracts B-113-1 and B-113-2 of $125.00 per acre as agricultural lands, or $19,275. But for the lake he would have placed a like valuation on all but ninety acres of uncleared land and this he would have appraised at $50 per acre. His aggregate of the values of Tract 805 without the lake was $51,935. Giving effect to the presence of the lake, Ray valued Tract 805 at $500 per acre, or approximately $235,000. The witness Lanham, also called on behalf of Bowles, valued Tract 805, with the lake, at $120,000. Had there been no lake he would have valued Tract 805 at $50,000. The appraiser for the Government testified that, in his opinion, the presence of the lake made thirty-two acres of Tract 805 available for subdivision purposes and this area he thought was worth $225 per acre. Without the lake he would have placed a $60 per acre value on the thirty-two acres. His aggregate value of Tract 805, giving effect to the presence of the lake, was $32,160.80, and without the lake it would have been $26,880.80. He valued Tracts B-113-1 and B-113-2 at $100 per acre for 46.4 acres of crop land and $60 per acre for the rest, making a total value of $10,708³ for the two parcels.

The commissioners reported to the court:

                    "The cash market
                  value of Tract Nos. B-113-1
                  and B-113-2, consisting
                  of 154.2 acres, on
                  the date of taking for the
                  Belton Dam and Reservoir
                  Project was ................  $15,420.00
                    "The cash market
                  value of Tract No. 805
                  consisting of 469.48
                  acres, on the date of taking
                  for the Ft. Hood
                  Project was ................  $94,253.20."
                

No other findings were made. The United States objected to the report upon the ground, among others, that it did not contain sufficient findings of fact and conclusions of law upon which to base a judgment. The Government moved that the commissioners be required to make the following additional findings:

"The amount of increment, if any, to Tract No. 805, consisting of 469.48 acres, derived from and by virtue of the construction and operation of Belton Dam and Reservoir Project, for which Tracts Nos. B-113-1 and B-113-2 were taken.

"If the benefit of Tract No. 805, if any, was a result of the construction and operation of Belton Dam and Reservoir Project.

"What the highest and best use was of the 623.68 acres on the date of taking and immediately prior thereto.

"What the highest and best use was of Tracts Nos. B-113-1 and B-113-2 at the date of taking for Belton Dam and Reservoir Project.

"What the highest and best use was of Tract No. 805 at the date of taking."

The court entered judgment for the amounts set forth in the report of the commissioners. By the judgment the exceptions to the order appointing commissioners, the objections to the report of the commissioners, and the motion for additional findings were each overruled. The Government appealed.

In order to justify the appointment of commissioners and the refusal of a demand for a jury to try the issue of compensation some exceptional circumstance must exist. The recent consideration of this question by this Court makes it unnecessary that there be any extended discussion of it in this case. United States v. Buhler, 5 Cir., 1958, 254 F.2d 876. The discretion to appoint commissioners may be exercised "because of the character, location, or quantity of the property to be condemned, or for other reasons in the interests of justice." Although the record before us is pretty well limited to the portion of the proceedings affecting the Bowles lands, it is shown that, at the time of the jury demand, the suit involved sixteen separate tracts and eight or more separate ownerships. On two of the tracts the Government had purchase options. Of the other parcels, eight were taken for the reservoir project and six for the expansion of Fort Hood. Most, perhaps all, of the tracts acquired for the extension of Fort Hood were, like the Bowles property, changed into lakefront property by the building of the reservoir. The order appointing commissioners covered, not only the Bowles land, but all of the tracts for which compensation was to be determined. On the record before us we cannot say that there was an abuse of discretion in the appointment of commissioners. The Government urges that the trial court should have made factual findings upon which it based its determination to appoint commissioners. The rule does not so require and, desirable as it may be that such a recital of findings be made, failure to do so is not error.

The United States asserts that the trial court erred in entering judgment for the amounts fixed by the commissioners for the tracts taken for the reservoir and for the tract taken for the expansion of Fort Hood without reducing the award for the reservoir tracts to the extent that the reservoir had increased the value of the Fort Hood tract. The landowner, Bowles, insists that no right of offset exists and this, he says, is so for more than one good reason. First, it is contended that the contour line of the reservoir had been established and the dam had been completed before the proceedings in condemnation were commenced and these factors, not the taking of Tracts B-113-1 and B-113-2, enhanced the value of Tract 805. The argument seems fallacious. It is the creation of the improvement and not the incident of the taking to which we look in determining whether there has been a benefit to neighboring land that is to be reckoned as a factor in measuring just compensation. The three Bowles tracts were taken at the same time but for different purposes and by virtue of different statutory authorizations. The rights of the landowner should be no greater and no less, and the obligations of the Government should neither be lessened nor increased because a single declaration of taking was filed and a single action brought to determine compensation than would have resulted if the two projects had been made the subjects of separate judicial proceedings. If, by reason of the creation of the reservoir or lake the value of Tract 805 which then became lakefront property instead of agricultural or ranching property, was thereby increased, such right as there might otherwise be to set off the benefit so...