United States v. 4.43 ACRES OF LAND, ETC.

• Decision Date: 14 January 1956
• Docket Number: 3027,30017,Civ. A. No. 3005,30016,3073.
• Citation: 137 F. Supp. 567
• Parties: UNITED STATES of America v. 4.43 ACRES OF LAND, MORE OR LESS, SITUATE IN TARRANT COUNTY, STATE OF TEXAS, and Virgil S. Holbrook, et al. UNITED STATES of America v. 4.24 ACRES OF LAND, MORE OR LESS, SITUATE IN TARRANT COUNTY, STATE OF TEXAS, and G. H. Clanton, et al. UNITED STATES of America v. 5.08 ACRES OF LAND, MORE OR LESS, SITUATE IN TARRANT COUNTY, STATE OF TEXAS, and A. B. Cohron, et al. UNITED STATES of America v. 11.45 ACRES OF LAND, MORE OR LESS, SITUATE IN TARRANT COUNTY, STATE OF TEXAS, and Lois Mae Behnke, et al. UNITED STATES of America v. 24.53 ACRES OF LAND, MORE OR LESS, SITUATE IN TARRANT COUNTY, STATE OF TEXAS, and F. D. Icenhower, et al.
• Court: U.S. District Court — Northern District of Texas

137 F. Supp. 567

UNITED STATES of America v. 4.43 ACRES OF LAND, MORE OR LESS, SITUATE IN TARRANT COUNTY, STATE OF TEXAS, and Virgil S. Holbrook, et al.

UNITED STATES of America v. 4.24 ACRES OF LAND, MORE OR LESS, SITUATE IN TARRANT COUNTY, STATE OF TEXAS, and G. H. Clanton, et al.

UNITED STATES of America v. 5.08 ACRES OF LAND, MORE OR LESS, SITUATE IN TARRANT COUNTY, STATE OF TEXAS, and A. B. Cohron, et al.

UNITED STATES of America v. 11.45 ACRES OF LAND, MORE OR LESS, SITUATE IN TARRANT COUNTY, STATE OF TEXAS, and Lois Mae Behnke, et al.

UNITED STATES of America v. 24.53 ACRES OF LAND, MORE OR LESS, SITUATE IN TARRANT COUNTY, STATE OF TEXAS, and F. D. Icenhower, et al.

Civ. A. Nos. 3005, 30016, 30017, 3027, 3073.

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

January 14, 1956.

Heard L. Floore, U. S. Atty., Henry E. Wise, Asst. U. S. Atty., W. B. West, III, Asst. U. S. Atty., Fort Worth, Tex., for plaintiff.

Wingate Lucas, Joe Day, Jr., Harry Harris, Fort Worth, Tex., for defendants E. E. Coleman and others.

Frank B. Potter, Mack Taylor, Fort Worth, Tex., for defendants E. H. Brought and others.

Robert C. Green, Fort Worth, Tex., for defendants Henry L. Holbrook and another.

Wingate Lucas, Joe Day, Jr., Harry Harris, Fort Worth, Tex., for defendants W. E. Barton and others.

Wingate Lucas, Joe Day, Jr., Harry Harris, Fort Worth, Tex., for defendants John E. Burchfield and others.

Frank B. Potter, Mack Taylor, Fort Worth, Tex., for defendants C. E. Carlisle and others.

Dave T. Miller, Fort Worth, Tex., for defendants Peggy R. Grubbs and another.

Wingate Lucas, Joe Day, Jr., Harry Harris, Fort Worth, Tex., for defendants Russell Odom and others.

Frank B. Potter, Mack Taylor, Fort Worth, Tex., for defendants Hillcrest Baptist Church and others.

Robert C. Green, Fort Worth, Tex., for defendants Clyde E. Jones and another.

Frank R. Graves, Fort Worth, Tex., for defendants J. H. Weisenberger and another.

Clyde V. Sweeney, Fort Worth, Tex., for defendant B. Dorsett and another.

Wingate Lucas, Joe Day, Jr., Harry Harris, Fort Worth, Tex., for defendants Charles W. Lovil and others.

Frank B. Potter, Mack Taylor, Fort Worth, Tex., for defendant K. H. Withrow and another.

Charles Lindsey, Fort Worth, Tex., for defendant B. E. Gross and another.

Samuels, Brown, Herman & Scott (Ardell Young), Fort Worth, Tex., for defendant John H. Cook and another.

ESTES, District Judge.

These are condemnation proceedings in which the United States has acquired by right of eminent domain an easement extending outward from the ends of certain airport runways at Carswell Air Force Base and over-lying privately owned property. There are approximately thirteen tracts of land involved in Civil Action No. 3005, twelve tracts in Civil Action No. 3016, thirteen tracts in Civil Action No. 3017, twenty-three tracts in Civil Action No. 3027, and fifteen tracts in Civil Action No. 3073. Because the easement which the Government has condemned is the same in all five proceedings, except for the height of the "glide angle plane" above the ground, which varies from tract to tract, and because the Government has filed identical motions in each case, they may be conveniently disposed of together.

The exact estate which has been condemned is set forth in the Declaration of Taking which has been filed in each case, and consists of the following rights in and to the land in question:

"(1) The continuing perpetual right to cut to ground level and remove trees, bushes, shrubs, or any other perennial growth or underbrush infringing upon or extending into or above the glide angle plane * * *

"(2) The continuing perpetual right to cut to ground level, remove and prohibit the growth of such trees, bushes, shrubs, or any other perennial growth or underbrush which could in the future infringe upon or extend into or above the glide angle plane * * *

"(3) The right to remove, raze, or destroy those portions of buildings, other structures, and land infringing upon or extending into or above the glide angle plane * * *

"(4) The right to prohibit the future construction of buildings or other structures from infringing upon or extending into or above the glide angle plane * * *

"(5) The right of ingress to and egress from and passage on and over said tracts to effect and maintain the necessary clearances.

"Reserving, however, to the landowners, their heirs, executors, administrators, successors, and assigns, all right, title, interest, and privileges as may be exercised and enjoyed without interference with or abridgment of the easement and right hereby taken for said public uses."

The land subjected to this burden is particularly described in exhibits, which are attached to each Declaration of Taking, as is the "glide angle plane". For the purpose of the motions before the Court, it is sufficient to define the "glide angle plane" as an imaginary plane extending over the described land, much as the ceiling of a room, but sloping upward at the rate of one foot vertically for each fifty feet horizontally as the distance from the airfield runways increases. A careful reading of each Declaration of Taking reveals that such plane has but one function, insofar as these condemnation proceedings are concerned, and that is to serve as the ceiling over the land in question beyond which obstructions or structures may not be allowed to extend upward into the adjacent air space. Its nomenclature is unimportant.

The Government has filed motions asking that each of these proceedings be referred to a commission under Rule 71 A, Federal Rules of Civil Procedure, 28 U.S.C.A. The Government has also filed in each suit a motion asking that the Court, in the event that it does order a reference, instruct its commissioners that just compensation extends only to the estate acquired, as such estate is described in the Declaration of Taking on file in each proceeding, and that the commissioners in determining the amount of just compensation may not award the condemnees anything for damages or diminution in value, if any, of their land resulting from the flight of aircraft over such property, for the reason that the Government in these proceedings has not condemned a right to fly aircraft over the land of the condemnees but has acquired simply an easement or right to prevent obstructions or structures on the land from extending into the air space above the "glide angle plane." The condemnees, on the other hand, contend that the Government has already used the air space above their land for aircraft flight, at low altitudes and with great frequency, that the air space is presently being used in such manner, that it will be so used in the future and that this is the purpose of the easement or rights which the Government has condemned in these proceedings. They therefore say that they are entitled to show, and to have the commissioners consider in arriving at the amount of just compensation due in each case, the use which the Government will make of the air space above the "glide angle plane".

We shall consider first the question of whether or not these proceedings, or any of them, should be and properly may be referred to a commission under Rule 71A, and second, whether or not the instructions to the commissioners, if same are appointed, should exclude from their consideration any damages resulting from the flight of aircraft or other use of the air space above the glide angle plane described in the Declaration of Taking, as requested by the Government in its motions.

Prior to the adoption of Rule 71A, which became effective August 1, 1951, the Federal Rules of Civil Procedure were inapplicable to condemnation proceedings. Such proceedings followed the practice established by the law of the state where the action was brought, under the General Conformity Statute, 40 U.S.C. § 258, 36 Stat. 1167. The issue of just compensation was normally determined by one of three methods: by commissioners, which was the practice followed in seven states; by commissioners, with a right of appeal to and trial de novo before a jury, which was used in twenty-three states; and by a jury without a commission, which was the method in eighteen states. Rule 71A was adopted to eliminate the confusion in Federal Courts caused by the application of so many different statutes and to create a uniform procedure for all condemnation actions brought under Federal law. A complete history of the rule, including the Advisory Committee's report to the Supreme Court, is set forth in the annotations to Rule 71A in Title 28 U.S.C.A.

Subsection (h) of Rule 71A reads as follows:

"Trial. If the action involves the exercise of the power of eminent domain under the law of the United States, any tribunal specially constituted by an Act of Congress governing the case for the trial of the issue of just compensation shall be the tribunal for the determination of that issue; but if there is no such specially constituted tribunal any party may have a trial by jury of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix, unless the court in its discretion orders that, because of the character, location or quantity of the property to be condemned, or for other reasons in the interest of justice, the issue of compensation shall be determined by a commission of three persons appointed by it. 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

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