United States v. 2,606.84 Acres of Land in Tarrant Co., Tex.

• Decision Date: 25 April 1969
• Docket Number: Civ. A. No. 2025.
• Parties: UNITED STATES of America v. 2,606.84 ACRES OF LAND IN TARRANT COUNTY, TEXAS (S. W. Richardson)
• Court: U.S. District Court — Northern District of Texas

309 F. Supp. 887

UNITED STATES of America v. 2,606.84 ACRES OF LAND IN TARRANT COUNTY, TEXAS (S. W. Richardson)

Civ. A. No. 2025.

United States District Court, N. D. Texas, Fort Worth Division.

April 25, 1969.

Robert M. McKee, Dept. of Justice, Washington, D. C., Eldon Mahon, U. S. Atty., and Claude Brown, Asst. U. S. Atty., Fort Worth, Tex., for the Government.

Carlisle Cravens and Daniel Settle, Fort Worth, Tex., for defendant.

MEMORANDUM OPINION AND FINDINGS OF FACT AND CONCLUSIONS OF LAW

BREWSTER, District Judge.

Opinion

This suit is one of several brought in this Court to condemn lands in Tarrant and Parker Counties, Texas in connection with the Benbrook Dam and Reservoir Project on the Clear Fork of the Trinity River¹ near the southwest outskirts of Fort Worth, Texas. Only Tract B-108 in this case and one other tract in another suit remain in issue. The owner of each such remaining tract² is urging the same grounds in contesting the right of the government to condemn a certain portion of his subject tract. By agreement of the parties the Court has severed the issue as to the amount of just compensation from that relating to the right to condemn; and the latter issue is the only one to be decided at this time. The dam has long since been completed and closed, and the reservoir formed thereby has been in operation for a number of years.

The landowner contests the right of the government to condemn the fee simple title to the 647 acres of Tract B-108 above the 697.1 contour line³ because the taking is unauthorized by law and is therefore arbitrary and capricious for each of the following reasons: (1) The 647 acres were actually taken for recreational use, when that was not one of the purposes for which private property could be condemned under the statutes governing this project at the time of taking. (2) The Benbrook Dam and Reservoir as actually built was radically and materially changed from the one approved by Congress, without any legal authority for such changes, resulting in the effort to condemn the present 1207 acres out of the Richardson 2500 acre tract instead of the 48 acres that would have been required for the project as authorized by Congress. He contends that the declaration of taking vested the United States with only a defeasible title to the land in question, leaving the right in him as the landowner to contest the validity of the taking in this judicial proceeding.

The landowner has never contested the right to take the fee simple title to the 560 acres below contour line 697.1, or to take a flowage easement in the portion of Tract B-108 above that line. In fact, he has offered and stood ready from the early stages to give the government the 560 acres in fee, a flowage easement in the remaining 647 acres, and a waiver of any damages due to flooding, all without cost. The government has steadfastly insisted on the fee title to the entire tract, even though it has been satisfied with flowage easements above elevation 697.1 in other lands in the area.

The government contends that the Benbrook Dam and Reservoir was a project authorized by an Act of Congress; and that since the decisions of the Secretary of the Army as to the subject tract were within the scope of such Act, they are conclusive on the question of the purpose of the taking. The government's position in that regard has not been consistent at all stages of the case. It has ebbed and flowed from conceding the right of judicial review to the present claim that it should be denied outright. In one place in its briefs,⁴ it stated that, "It is at least theoretically conceivable that a case of arbitrary, capricious or corrupt conduct might arise for judicial determination." That weakened to a "more or less" concession in another place where it said: "Some lower courts have, in dictum, asserted a limited power of judicial review, phrased in terms of determining whether the administrative official acted in `bad faith' or `arbitrarily or capriciously.' In truth, government counsel in earlier cases as here, have more or less conceded a limited exception, no doubt secure in the thought that no bad faith could be shown⁵ * * *" The government now argues that a landowner in a condemnation case is helpless to question the use declared by the administrative officer making the determination, and that the courts are powerless to get at the truth and grant relief. It says that the only remedy for an unauthorized, arbitrary or capricious condemnation of private property is political rather than judicial,^6a and that to hold otherwise "could be alarming to any administrator."^6b

In reply to the landowner's other contention, the government denies that the differences in the project as constructed and the one as originally authorized were substantial. It says that they were mere modifications permitted by the Act of Congress creating the project, and that they were at least impliedly authorized by subsequent appropriation acts.

The Court is of the opinion that the landowner's claims above set out are correct. The Benbrook project was authorized "for navigation, flood control, and allied purposes" by the River and Harbor Act of 1945 approved March 2, 1945 (Public Law 14 — 79th Congress, 59 Stat. 10). The construction, executive and administrative functions of this project have been at all pertinent times vested in the Engineer Corps, United States Army,⁷ under the direction of the Secretary of the Army. As a practical matter, the Secretary had no knowledge of this project, and the Corps of Engineers made all the actual decisions from beginning to end. At the time of the taking of the subject tract, there was no authority to acquire land in connection with flood control projects for purely recreational purposes. That authority did not come until 1958. Prior to that time, lands acquired for congressionally authorized purposes in connection with these flood control projects were permitted by law to be used incidentally for recreational purposes. Act of December 22, 1944, 58 Stat. 887, 889, as amended July 24, 1946, 60 Stat. 642, 16 U.S.C.A. Sec. 460d. The Corps of Engineers could not wait for legislative authority to condemn for recreational purposes. For several years prior to 1953, it followed the practice⁸ of enlarging upon the amount of property it had authority to acquire for flood control and other projects, so as to take land for purely recreational purposes.⁹ The use stated was always one which was authorized by Congress. The practice was general, well established and in force at the time of the taking of the land here involved, but Secretary of the Army Pace apparently first learned about it when the landowner in this case sought to take his deposition on the purpose of the taking. To stop the practice, the Department of the Army adopted the "1953 Policy for Land Acquisition". That policy limited the amount of land to be taken in fee to those areas required up to the conservation pool level, to land within 300 feet from the edge of that pool or which would be within the five year flood frequency level, to land required for permanent structures and for operation of the project as required by law, and to land required to provide limited access to the reservoir by the public. A permanent flowage easement was the greatest estate that could be acquired above the five year flood frequency line.¹⁰ The Department of Interior joined in that policy.

The following quotation is taken from a statement made by General Sturgis in 1957 before the Subcommittee last named in footnote 9 in regard to the land acquisition practice of the Corps of Engineers before the adoption of the 1953 policy (p. 422):

"That present practices on the liberal side to help fish and wild life and recreation, could and were being challenged by individuals through the courts with consequent potential and actual embarrassment and resulting adverse publicity. For example, a former Secretary of the Army, Mr. Pace, had been called personally to appear in court to justify certain takings which, under law, he alone was responsible for determining. He managed to avoid appearing in this case until Secretary Stevens replaced him, but it could have been very embarrassing to have justified his certification of the public need of all this particular taking." (Emphasis added).

"The 1953 policy for land acquisition resulted from the fact that there is no general authority for the Corps of Engineers to acquire land other than for basic project purposes (navigation, flood control, etc.) and access for the public. Yet practice in taking land had, in the interest of recreation and fish and wild life, which Congress had considered only to be incidental, became so extensive as to risk successful challenge by land owners in the courts. In its responsibility to Congress for carrying out the law and in its duty to protect the Secretary of the Army from improper certification of public necessity for taking land for project purposes, the 1953 policy was essential in order to modify current field practices." (Emphasis added).

In this case, the Corps took the portion of the subject tract in question for purely recreational purposes when that was a use not authorized by law, and for many years did everything in its power to keep the facts from coming to light. Such a taking was in violation of the provision of the Fifth Amendment to the Constitution of the United States that no person shall be deprived of his property without due process of law. A matter of such grave and serious import cannot be given the brush-off treatment insisted upon by the government. The Courts are not powerless to get at the truth and to protect the landowner's rights in such a situation.

The Benbrook project is part of the flood control system on the Trinity River. The Clear Fork of the Trinity River is the smallest of the three main tributaries which form the Trinity itself. The other two are the West Fork of the...