United States v. 2,872.88 ACRES OF LAND, ETC.

• Decision Date: 03 January 1963
• Docket Number: 19345.,No. 19344,19344
• Citation: 310 F.2d 775
• Parties: UNITED STATES of America, Appellant, v. 2,872.88 ACRES OF LAND, MORE OR LESS, Situate IN CLAY AND QUITMAN COUNTIES, STATE OF GEORGIA, and Frank Humber et al., and Unknown Owners, Appellees. UNITED STATES of America, Appellant, v. 1,361.09 ACRES OF LAND, MORE OR LESS, Situate IN CLAY COUNTY, STATE OF GEORGIA, and Carolyn Gavin Gibson, et al., and Unknown Owners, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

310 F.2d 775 (1962)

UNITED STATES of America, Appellant, v. 2,872.88 ACRES OF LAND, MORE OR LESS, Situate IN CLAY AND QUITMAN COUNTIES, STATE OF GEORGIA, and Frank Humber et al., and Unknown Owners, Appellees.

UNITED STATES of America, Appellant, v. 1,361.09 ACRES OF LAND, MORE OR LESS, Situate IN CLAY COUNTY, STATE OF GEORGIA, and Carolyn Gavin Gibson, et al., and Unknown Owners, Appellees.

Nos. 19344, 19345.

United States Court of Appeals Fifth Circuit.

December 5, 1962.

Rehearing Denied January 3, 1963.

Ramsey Clark, Asst. Atty. Gen., Roger P. Marquis, S. Billingsley Hill, Hugh Nugent, Attys., Dept. of Justice, Washington, D. C., Truett Smith, Asst. U. S. Atty., Macon, Ga., for appellant.

Jesse G. Bowles, Cuthbert, Ga., Forrest L. Champion, Jr., Columbus, Ga., W. L. Stone, Blakely, Ga., for appellees.

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and JOHNSON, District Judge.

TUTTLE, Chief Judge.

These appeals by the United States from District Court judgments approving valuation awards of condemnation commissioners present the question whether the reports of the commissioners were sufficiently detailed as to findings of fact, and in giving the basis on which they were bottomed to permit adequate review by the district court, and thereafter by this Court.

These condemnation suits are a part of a program of land acquisition for the Walter F. George Lock and Dam project on the Chattahoochee River in Georgia and Alabama. The three series of tracts involved are all tracts of ordinary farm, timber and pasture land. While the government requested a jury trial, it does not now contend that the submission of the issues to commissioners by the trial court constituted reversible error. Neither does the government, on the record before us, assign any specific error in the hearings before the commissioners as a basis for attacking the judgment of the district court in affirming the report of the commissioners. Instead, the government takes the position that the reports of the commissioners are in such general and vague terms as to make it impossible for the district court or for this Court on appeal to determine whether the commissioners' ultimate conclusions of value were based on legally correct principles or on legally sufficient evidence.

The appellees here, first, claim that the Court of Appeals cannot take notice of the government's appeal, because it does not expressly contend that the awards are excessive. They take the position, therefore, that any claim by the government that there was error in the form or substance of the commissioners' reports falls within the "harmless error" rule of the Federal Rules of Civil Procedure, Rule 61 F.R.C.P. We think this contention is without merit. It is apparent from the findings of the commissioners that the awards made by them and approved by the trial court are substantially in excess of the amounts deposited in court upon the declaration of taking. It thus appears that if errors occurred in the proceedings below, as a result of which judgments were awarded in excess of the amounts contended for by the United States, such errors would not be harmless in the sense of the Rule.

In general, the report of the commissioners recited the substance of the valuation testimony given by the several witnesses tendered by the landowners, on the one hand, and by the government on the other, and they made ultimate findings of the market value of the property taken and of severance damages to lands not taken and make certain specific findings as to the value of easements and fences taken, or the cost of fencing the remaining tracts. The reports did not in any manner whatever indicate which evidence the commission credited and which evidence it discredited. The reports gave no indication as to the degree to which it based its findings upon those opinions that were based on knowledge of comparable sales, nor did they give any indication as to whether indicated sales were truly comparable. The reports did not indicate to what extent it gave credence to the opinions of witnesses who, according to the summary of evidence given in the reports themselves, had little or no familiarity with the ordinary ingredients that are generally considered by the courts to be required to support an opinion of value in a condemnation case.

Part of the basis for this Court's repeatedly stating that the trial of condemnation valuation issues is typically for a jury, and the appointment of commissioners is proper only in the exceptional case, United States v. Buhler, 5 Cir., 254 F.2d 876, United States v. Leavell & Ponder, Inc., 5 Cir., 286 F.2d 398, 408, United States v. Buhler, 5 Cir., 305 F.2d 319, 331, is that where a trial is had before a jury, the trial judge is charged with the responsibility of determining the qualifications of so-called expert witnesses and of others who undertake to express opinions as to land values and to determine initially whether so-called "comparable sales," about which witnesses propose to testify, are sufficiently comparable to justify their consideration by the fact-finder, and because, further, the trial judge is able, by correctly charging the jury, to point out the defects and weaknesses in the testimony of interested parties to the proceedings, such as the owners of the land involved, and to stress the importance, as courts have always done, Baetjer v. United States, 1 Cir., 143 F.2d 391, 397; International Paper Co. v. United States, 5 Cir., 227 F.2d 201, 208; United States v. Leavell & Ponder, Inc., 5 Cir., 286 F.2d 398, 407, cert. denied 366 U.S. 944, 81 S.Ct. 1674, 6 L.Ed.2d 855, of opinion evidence based on comparable transactions. In a trial to a jury under such supervision by a trial judge, it can well be understood why a general verdict of value, plus a general verdict of severance damages can suffice, whereas a hearing before a commission must result in findings much more detailed than a general verdict.

The Courts of Appeals of the several circuits are not of a uniform mind as to this, but we find ourselves fully in accord with the reasoning of the Court of Appeals for the Fourth Circuit in United States v. Cunningham, 4 Cir., 246 F.2d 330, 333, where it is said:

"The very reasons which justify the appointment of the commission, however, demonstrates the inadequacy of the commission\'s report. The justification of the appointment is the variety and complexity of the matters to be considered on the question of valuation and the importance of having these adequately set forth in a report so that they may be subjected to the scrutiny of the District Court and of this court

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