United States v. 342.81 ACRES OF LAND, ETC., Civ. A. No. 644.

• Decision Date: 06 August 1955
• Docket Number: Civ. A. No. 644.
• Citation: 134 F. Supp. 430
• Parties: UNITED STATES of America v. 342.81 ACRES OF LAND, MORE OR LESS, Situate IN HALL COUNTY, STATE OF GEORGIA, and Toy Minor, et al.
• Court: U.S. District Court — Northern District of Georgia

134 F. Supp. 430

UNITED STATES of America v. 342.81 ACRES OF LAND, MORE OR LESS, Situate IN HALL COUNTY, STATE OF GEORGIA, and Toy Minor, et al.

Civ. A. No. 644.

United States District Court N. D. Georgia, Gainesville Division.

August 6, 1955.

James W. Dorsey, U. S. Atty., Slaton Clemmons, Asst. U. S. Atty., Atlanta, Ga., for plaintiff.

Wheeler, Robinson & Thurmond, Gainesville, Ga., for defendants.

SLOAN, District Judge.

This proceeding was instituted at the request of the Secretary of the Army to acquire certain land in Hall County, Georgia to provide for the construction, repair, preservation of certain public works, rivers, harbors and waterways and for other uses incident thereto in connection with the establishment of the Buford Dam and Reservoir project, Georgia. Among the tracts which the Government seeks to acquire is Tract No. N-1401, described in the petition for condemnation and in the declaration of taking, both of which were filed on April 26, 1955, and the estimated just compensation was deposited in the Registry of the Court and title to the land vested in the United States of America to the extent of the interests sought to be acquired, that is, a fee simple title, subject to existing easements for public roads, highways, public utilities, railroads and pipe lines. The declaration of taking signed by the Secretary of the Army of the United States stated that the public uses for which the land was taken are as follows: "The said land is necessary adequately to provide for the construction, repair and preservation of certain public works, of rivers, harbors and waterways and for uses incident thereto. That said land has been selected by me for acquisition by the United States in connection with the establishment of the Buford Dam and Reservoir Project Georgia * * *".

An answer consisting of a First Defense and a Second Defense has been filed on behalf of E. F. Herman, J. B. Mundy and J. L. Meeks as to Tract No. N-1401, asserting first, that the acquisition of said tract, or at least portions thereof, is not necessary for the project and second, that no statement of the amount petitioner is willing to pay for said property has been alleged and that the amount deposited as estimated compensation is so grossly inadequate as to deprive defendants of the protection afforded by the Fourth and Fourteenth Amendments to the Federal Constitution, and on these grounds these defendants seek the dismissal of the complaint in so far as their claimed property is concerned, or in the alternative, that it be dismissed as to said portions of the property.

In support of this motion said defendants file an affidavit of J. B. Mundy and written arguments and briefs. Responsive arguments and briefs having been filed, these motions are before the Court for determination.

The defendants' motion to dismiss upon the ground that the petition does not contain a statement of the amount of money petitioner is willing to pay or offering to pay for the fee simple title to the property sought to be condemned is without merit and is overruled and denied. Opportunity of having just compensation lawfully determined is afforded the defendants and the amount deposited in the Court will not be inquired into. See Bailey v. Anderson, 326 U.S. 203, 205, 66 S.Ct. 66, 90 L.Ed. 3. The deposit is merely an estimate and the amount finally determined to be just compensation may be more or less than the amount of the deposit. See United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336.

The defendants' motion to dismiss the complaint in so far as Tract No. N-1401, or a portion thereof is concerned, on the ground that the same is not necessary for the project is likewise without merit and is overruled and denied. It is not for the courts to oversee the choice of the boundary lines nor to sit in review on the size of a particular project area once the question of public purpose has been decided. The amount and character of land to be taken for the projects and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch. See Berman v. Parker, 348 U.S. 26, 35, 36, 75 S.Ct. 98.

The plaintiff has filed its motions to strike certain designated paragraphs of the First Defense and of the Second Defense, as amended, and briefs in support of the motions to strike and responsive briefs having been filed, the motions to strike are likewise before the Court for determination.

In the First Defense the defendants allege that there is included in the area sought to be condemned 35 acres of river bottom land, 15 acres of upland capable of producing 6,000 bales of hay valued at $1.00 per bale, cost of producing 30¢, leaving a net value of $4,200 net annual production and that this acreage will be in the intrinsic value of $60,000; that the condemned land contains a rock quarry which defendants believe contains 400,000 tons of rock valued at 10¢ per ton on the ground for a total value of $40,000 and that there is a heavy deposit of gold capable of assaying gold to the amount and value of more than $20 per cubic yard, and while they have not been able to develop to the full extent the amount of the gold deposits, they believe the area sought to be condemned contains gold deposits in the value of $500,000, or more.

In arriving at just compensation of property taken for public use, all elements entering into the value of property taken must be considered. Therefore the fact that land may be fertile, productive and contains valuable deposits of minerals, are relevant. However, the manner in which the defendants undertake to plead these matters in undertaking to set up a method of values of property and interests therein are improper in a condemnation proceeding. The...