United States v. 250 ACRES OF LAND, MORE OR LESS

• Decision Date: 26 March 1942
• Docket Number: 171.,No. 166,166
• Citation: 43 F. Supp. 937
• Parties: UNITED STATES v. 250 ACRES OF LAND, MORE OR LESS, IN NUECES COUNTY, TEXAS, et al. SAME v. 245.7 ACRES OF LAND, MORE OR LESS, IN NUECES COUNTY, TEXAS, et al.
• Court: U.S. District Court — Southern District of Texas

43 F. Supp. 937

UNITED STATES v. 250 ACRES OF LAND, MORE OR LESS, IN NUECES COUNTY, TEXAS, et al.

SAME v. 245.7 ACRES OF LAND, MORE OR LESS, IN NUECES COUNTY, TEXAS, et al.

Nos. 166, 171.

District Court, S. D. Texas, Corpus Christi Division.

March 26, 1942.

C. U. Landrum, Asst. to the U. S. Atty., of Detroit Lakes, Minn., Eugene J. Wilson, Sp. Asst. to the Atty. Gen. and Luther E. Jones, Jr., and Willett Wilson, Sp. Attys., both of Corpus Christi, Tex., for petitioner, United States.

William H. Shireman and Boone, Henderson, Boone & Davis, all of Corpus Christi, Tex., for defendants.

KENNERLY, District Judge.

These are suits filed November 14, 1941, and November 18, 1941, respectively, by the Government of the United States under Sections 257 and 258 and Sections 258a to 258e, of Title 40 U.S.C.A., to take for the public use, certain tracts of land in this District and Division. Upon the filing of a Declaration of Taking, and the deposit of funds in the Registry of the Court as provided in said Sections, a Decree vesting title in the Government, and placing the Government in possession, was entered, and Commissioners appointed to hold hearings, and find and report the value of the land, to the end that the funds so deposited be disbursed to the land owners. This is a Motion by the Government, filed March 5, 1942, to give instructions to the Commissioners with respect to the performance of their duties,¹ which Motion, and particularly Paragraph 3 thereof, prohibiting the valuing of separate ownerships, the land owners oppose.²

The suits are two of many similar suits at this Division, and the same Commissioners, a member of the Bar of this Court, a relator, and a lumber dealer, have been appointed in each case. In some of the suits, hearings have been held and full or partial reports made by the Commissioners, and in other suits, no hearings have been held. The procedure after reports are filed by the Commissioners is that any interested person may except to the report, which exception brings about a trial de novo before the Court or a Jury on the questions involved.

1. Under the Law (Sections 258 and 258d), the proceedings here and before the Commissioners, insofar as there is no applicable Statute of the United States, are governed by the Statutes of Texas relating to Eminent Domain (Title 52, Articles 3264 to 3271, Vernon's Civil Statutes of Texas), and the decisions thereunder. Whatever may be the procedure in other States, it is clear that the procedure in Texas Courts under such Texas Statutes is that instructions may be, but ordinarily are not, given by the Court to Commissioners. This is probably true because the Texas Statute is brief, plain and simple, and is of itself a sufficient guide to the Commissioners. Upon consideration of the applicable and similar United States Statutes and the decisions of the United States Courts and the Texas Statute and decisions thereunder, I am convinced that whether instructions should be given to the Commissioners in these cases is within the sound discretion of the Court.

2. Coming now to the question of whether the Court, in the exercise of its sound discretion, should give the instructions which the Government asks be given.

In the oral argument of the Government's motion, the matter of hearings and proceedings before the Commissioners and the nature of their report in other similar cases were gone into and discussed by counsel on both sides, and Judge C. O. Hamlin, Chairman of the Commission, appeared and outlined for the Court the procedure followed by the Commissioners.³ An examination of the Commissioners' reports in some of the other similar cases and a consideration of the whole matter convinces me that instructions need not be given in these two cases unless and until asked by the Commissioners, or deemed by the Court appropriate to do so.

3. This view makes it unnecessary to discuss the different matters covered by the proposed instructions, except that it seems appropriate to pass upon the following, found in proposed Instruction No. 3 in both cases:

"You are instructed that the United States of America in this case is condemning the fee simple title, subject to existing public utility easements, if any, and rights of way for public roads and highways along the north and east boundaries of the property described in the Declaration of Taking. It is your duty to assess the value of the land taken as an undivided fee simple absolute, without regard to whatever separate ownerships existed in the property on the date of the taking."

Where there are separate ownerships in the land as, for instance, where one person owns the minerals and another person owns the surface, or one person owns a farm or pasture lease and another person owns the balance of the title, the proposed instruction is clearly wrong.

The Statutes of the United States and of Texas, indeed the Federal Constitution itself, contemplate that when private property is taken for public use, the owner or owners, if there be more than one owner, must be compensated, and such compensation cannot be made except by determining under the Statutes the value of the property taken from each owner. It is clear that in all cases, the Commissioners should hear and report not only the value of the entire title taken in a tract of land, but also the value of each separate interest, ownership, or claim therein. The assumption that the Commissioners in so doing would find a greater value for the whole tract than they would if they proceeded as indicated by the suggested rule is without merit.

I think the motion for instructions should be denied, but the way left open for the Court to give instructions if, as, and when the Commissioners ask instructions, or it is deemed by the Court appropriate to give them.

Let an order be presented, disposing of the motion accordingly.

1 The authorities cited by the Government are as follows: Devou v. City of Cincinnati, 6 Cir., 162 F. 633; Carlock v. United States, 60 App.D.C. 314, 53 F. 2d 926; United States v. Meyer, 7 Cir., 113 F.2d 387; Guste v. United States, 5 Cir., 55 F.2d 115, 116.

2 The authorities cited by the land owners are as follows: Sections 257, 258, and 258a, et seq., Title 40, U.S. C.A.; 16 Texas Jurisprudence 696 (Paragraphs 93, 95, 97, 98 and 99); Rhine v. City of McKinney, 53 Tex. 354; City of Paris v. Tucker, 101 Tex. 99, 104 S.W. 1046; Articles 3264 and 3265, Vernon's Civil Statutes of Texas; County School Trustees v. Free, Tex. Civ.App., 154 S.W.2d 935; U.S. Constitution, Amendment 5; Rabb v. La Feria Mut. Canal Co., 62 Tex.Civ.App. 24, 130 S.W. 916; Easter Oil Corp. v. Wilbarger County, Tex.Civ.App., 30 S. W.2d 438; Olson v. United States, 8 Cir., 67 F.2d 24; Id., 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236; Texas Co. v. Daugherty, 107 Tex. 226, 176 S.W. 717, L.R.A.,1917F, 989; Article 3265, Revised Civil Statutes of Texas; Wilson v. Newton County, Tex.Civ.App., 269 S. W. 227; City of Mart v. Hasse, Tex. Civ.App., 281 S.W. 318; State v. Lowrie, Tex.Civ.App., 56 S.W.2d 676.

3 Mr. Hamlin's statement is as follows:

"Mr. Hamlin: If your Honor, please. I am C. O. Hamlin, one of the Commissioners. Would it be out of line for me to state the Commissioners' position before your Honor at this time?

"The Court: Yes, sir. Go right ahead.

"Mr. Hamlin: If your Honor, please, let me state at the outset that we Commissioners appointed by this Court will welcome any instructions this Court sees fit to give us, but I do think Mr. Wilson has made some rather unfair reflections upon this Commission. It so happens that I am the only attorney on the Commission. As your Honor knows, one of the other two is in the real estate business and the other in the lumber business. There are questions of admissibility of evidence that come up from time to time, and I have never seen fit to override my colleagues on the Commission. If they want to hear certain evidence, I feel, in fairness to them and to the parties concerned, that I should let that testimony in. May I illustrate it this way: This land has been taken from farmers. They come in here, some of them not represented by counsel. They feel that they are entitled to state to the best of their knowledge the value of their land, its market value.

"Now we have been instructed to find, and we have consistently found, the values as the market value at the date the Government took the land. Those instructions have previously been given to us and that is the only instruction, as I remember in the case stated by Mr. Wilson, that the Court gave to the Commissioners.

"The Court: Did we give instructions in this case?

"Mr. Hamlin: Yes, sir. Mr. Wilson prepared at great length some instructions as to market value as of the date of taking and the decisions holding what `market value' was. I am not sure whether your Honor gave that, but I do remember your Honor stated at the time you swore us in that you would not give instructions in detail and you told the story about the Alcalde; if we...