United States v. 3,065.94 ACRES OF LAND, ETC.

• Decision Date: 28 September 1960
• Docket Number: Civ. No. 1767-ND (Tract A-104).
• Citation: 187 F. Supp. 728
• Parties: UNITED STATES of America, Plaintiff, v. 3,065.94 ACRES OF LAND in the COUNTY OF TULARE, State of CALIFORNIA, etc., et al., Defendants.
• Court: U.S. District Court — Southern District of California

187 F. Supp. 728

UNITED STATES of America, Plaintiff, v. 3,065.94 ACRES OF LAND in the COUNTY OF TULARE, State of CALIFORNIA, etc., et al., Defendants.

Civ. No. 1767-ND (Tract A-104).

United States District Court, S. D. California, N. D.

September 28, 1960.

Laughlin E. Waters, U. S. Atty., and Richard J. Dauber, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

Burford, Hubler & Burford, by Burke E. Burford, Porterville, Cal., for defendant Clemmie Gill.

HALL, Chief Judge.

The plaintiff United States and the defendant Clemmie Gill, as owner of Tract A-104, have each excepted to the report of the Commission fixing just compensation for said tract.

The Commission was appointed and acted under the provisions of F.R.Civ. P. 71A(h), 28 U.S.C. Its report is set forth in full in Footnote ¹ attached.

There are only three issues raised by the filing of a complaint in condemnation, viz.: (1) the right to take, i. e., "public use;" (2) "just compensation;" and (3) to whom the just compensation should be paid, i. e., the owners, lienholders, and the like.

What is "just compensation" is the only matter referred to the Commission in this case, and it is the only thing that can be referred to the Commission under F.R.C.P. 71A(h) as "trial of all issues shall otherwise be by the court."

The defendant raised three exceptions, one of which (Number 2) was withdrawn at the hearing on September 19, 1960, and the plaintiff raised what are designated as three exceptions. Except for one of defendant's exceptions to the ruling upon the admissibility of evidence, and two of the exceptions of plaintiff— one on the disqualification of a member of the Commission, and the other on the wrongful admission of testimony—the exceptions all, more or less, go to the form and contents of the report by the Commission, and its failure to include certain specified matters which are detailed in the exceptions.

Those exceptions which go to the form and content of the Commission's report are in effect exceptions that no special findings of fact were made. The ultimate fact to be found by the Commissioners was the amount of just compensation. It is the rule that just compensation in a proceeding of this kind represents the difference between fair market value of the entire unit of property of an owner at the time of taking, and the fair market value of the part remaining after the taking. United States v. Waymire, 10 Cir.1953, 202 F.2d 550, 554. That is just what the Commission did. Everything else before the Commission was evidentiary, collateral and subordinate to that ultimate conclusion.

It is the general rule that it is necessary and sufficient for the findings to state the ultimate facts found by the court, and a statement or setting-out of evidence, or probative, evidentiary or subordinate facts is neither necessary nor proper. 89 C.J.S. Trial § 611, p. 427. Such a finding may be as general as the verdict of a jury, and have the same effect. Aetna Life Ins. Co. v. Board of County Supervisors, 10 Cir., 79 F. 575; United States v. Atchison, T. & S. F. R. Co., 10 Cir., 270 F. 1; Ewert v. Thompson, 8 Cir., 281 F. 449-451; Pennok et al. v. Roxana Petroleum Co. of Okl. et al., 8 Cir., 289 F. 416, 419-420.

I see no reason for applying a different rule to the report of 71A(h) Commissioners.

Furthermore no special findings were requested of the Commission by either party, and while I find no cases relating to the failure to make such request to a master, it is logical that the same hornbook rule would apply where there is a limited reference, as here, which precludes a party from objecting to a general verdict where no special verdict or findings were requested.²

It must be kept in mind in considering the Commission's report that by Rule 71A an action in condemnation prescribes rules concerning the pleadings and conduct of the case which differ greatly from all other kinds of civil and equitable actions. Special provisions are made concerning the complaint, its contents, joinder of parties, process and its service, appearance and answer, amendment of pleadings, substitution of parties, dismissal of action, all of which are different than the rules applicable to the usual civil action. Subdivision (e) of this rule, which permits a property owner to appear at the trial and present evidence as to the amount of compensation to be paid for his property whether or not he has previously appeared or answered (a procedure unheard of in other civil actions), points up clearly the impossibility of applying many of the rules governing other civil actions to condemnation proceedings. No answer is required to be filed. Thus, for instance, no issue is or can be raised by the complaint as to the highest and best use of all or various portions of the property, or of severance and the like. Such issues are certainly not alleged in the complaint, and properly so. Indeed, the government has, in instances where such matters were alleged in an answer, moved to strike the answer.

Furthermore, it is to be noted that subdivision (a) of Rule 71A makes applicable the Rules of Civil Procedure for United States District Courts except as otherwise provided in this Rule. Rule 71A(h), which provides for the appointment of a Commission, makes only specified rules applicable when a Commission is appointed, as follows:

"If a commission is appointed it shall have the powers of a master provided in subdivision (c) of Rule 53 and proceedings before it shall be governed by the provisions of paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action and report shall be determined by a majority and its findings and report shall have the effect, and be dealt with by the court in accordance with the practice, prescribed in paragraph (2) of subdivision (e) of Rule 53. Trial of all issues shall otherwise be by the court." (Emphasis added.)

The italicized portion of the above rule is of significance in its omission of paragraph (1) of subdivision (e) of Rule 53 which prescribes the contents and filing of a master's report.

The purpose of Rule 71A was to make uniform and to simplify condemnation proceedings. And the fact that the rule thus omits paragraph (1) of subdivision (e) of Rule 53 leads me to the conclusion that it is not and was not intended to be applicable to the reports of Commissioners appointed under Rule 71A(h).

Thus I do not agree with United States v. Cunningham, 4 Cir.1957, 246 F.2d 330; United States v. Buhler, 5 Cir.1958, 254 F.2d 876; United States v. Certain Parcels of Lands in City of Philadelphia, 3 Cir.1954, 215 F.2d 140, so heavily relied on by the government insofar as they deal with the form and contents of the Commissioners' report.

I am satisfied that it is clearly the law that the findings and awards of the Commission must be accepted by the court unless they are clearly erroneous, F.R.C.P. 53(e) (2) made specially applicable by F.R.C.P. 71A(h) reads in part as follows: "in an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous." United States v. Waymire, 10 Cir.1953, 202 F.2d 550, 553; United States v. 1,000 Acres of Land, More or Less, in Plaquemines Parish, La., D.C.E.D.La.1958, 162 F.Supp. 219; United States v. 15.3 Acres of Land in City of Scranton, Pa., D.C.N.D.Pa.1957, 154 F.Supp. 770.

Furthermore, no exception was made by either party to the finding of the Commission that the just compensation for taking of Tract A-104 was $37,250.

It would thus seem to me that no exception being made to the end result, neither party is in a position to raise any question concerning the form or contents of the report.

The general conclusions I have heretofore set forth would not apply to the plaintiff's Exception Number 2 as to the alleged disqualification of the Chairman of the Commission, or to defendant's Exceptions Number (1) and Number (3) which will be shortly dealt with, as will plaintiff's Exception Number (3) which partly goes to the form and contents of the report, but which I will consider as if it did not.

Exception Number (1) of plaintiff, assigning seven matters which it contends the report should have dealt with, goes entirely to the form and content of the Commissioners' report. Such matters have no place therein. They all deal with matters which are evidentiary, subsidiary, and collateral to the ultimate conclusion of the amount of just compensation.

In substance, the government contends by Exception Number (1) that the Commission should set forth what use it made of the testimony in arriving at its valuation, and asserts, among other things, that the Commission failed to recite to what extent, if any, the Commission considered the testimony of experts in assigning different values to different portions of the property, and the severance damages.

If the government, without requesting special findings, is correct in this contention, there would be no limit to what should be included in the Commissioners' report. The report would have to indicate, for instance, what weight was given to each of the many so-called comparable sales used by an expert; what the value of each fence, gate and well was; the replacement cost of a well or other water supply; the amount of water consumed by a grazing adult animal, or cow-and-calf operation, when there is no shade, and the value assigned to shade trees for grazing cattle, and the amount, if any, used as replacement cost of artificial shade, the value assigned to the different grasses (six of them) which naturally grow on the property, and their relative quality as feed for grazing cattle; and many other things, all of which, as well as severance damage, are purely evidentiary and collateral to the issue of just compensation, and are but some of the numerous things which go to the final expression of opinion by each expert on the total sum necessary to make just compensation.

The above are just a few of the things which point...