United States v. 443.6 Acres of Land, Civil Action No. 1505.
| Decision Date | 29 January 1948 |
| Docket Number | Civil Action No. 1505. |
| Citation | 77 F. Supp. 84 |
| Parties | UNITED STATES v. 443.6 ACRES OF LAND IN BARNES COUNTY, N. D., et al. |
| Court | U.S. District Court — District of North Dakota |
COPYRIGHT MATERIAL OMITTED
P. W. Lanier, U. S. Dist. Atty., of Fargo, N. D., and J. P. Stevens, Asst. U. S. Dist. Atty., of Minot, N. D., for plaintiff.
C. F. Kelsch and John F. Lord, of the firm of Sullivan, Fleck, Kelsch & Lord, all of Mandan, N. D., for defendants Wallace Lee, Laura Lee, and Roger W. Lee.
This is a land condemnation case wherein the sole question involved is the amount of damage to be recovered by landowners as the result of a taking of a portion of their lands for Governmental use in connection with what is known as the Baldhill Dam Project. The case was tried to a jury and resulted in a jury's determination of damage in the amount of $24,000. The land actually taken by the Government totaled 320.4 acres. Such land was a portion of an entire unit consisting of 522 acres. The jury's verdict of $24,000 contemplates not only the value of the 320.4 acres, but also any damage resulting to the landowners in decreased market value of the portion of the tract still remaining to them. The Court is presently concerned with a motion for a new trial or in the alternative a remittitur made in behalf of the United States.
The burden of proof of establishing the amount of damages sustained by the landowners rested upon the owners themselves. In their behalf, they introduced the testimony of four witnesses, three of whom were the three owners themselves. An owner of property is recognized in the law as a proper person to testify and express an opinion as to its market value or the amount of damage sustained by reason of the taking of a portion of such property. The weight to be given an owner's testimony is for the jury's determination. In addition to their own testimony, the owners offered the testimony of one G. E. Nelson who, for the past number of years, has been engaged in the real estate business at Valley City in the same county in which the land involved is situated. Prior thereto, he had been an appraiser for the Farm Credit Administration. At the request of the owners, he appraised the farm involved in August, 1947. He gave his opinion of the market value of the entire unit as $28,550, and the value of the remaining land, after the taking, as $2,616, or a damage of $25,934. He buttressed his opinion of market values by breaking down the various elements involved, testifying to the value of the improvements to the farm, the value of cultivated land and the value of pasture land. The three individual owners testified to damage by reason of the taking, their opinions varying from $31,450 to $32,843.
In support of their estimates of damage, which was the difference between the market value of the entire unit before the taking and the market value of the tract remaining after the taking, the owners testified to values of the various improvements, the values of different portions of the unit, such as crop land and pasture land, and also gave figures showing net income received as a result of operating the farming unit over the past number of years.
The entire farming unit is mainly valley land, following the Sheyenne River on both sides, the flat lower areas being used for crop land and the rough higher portions being used for pasture. That portion condemned by the Government and taken herein follows the course of the river, taking most of the more valuable land and leaving strips or portions unconnected. In other words, the condemnation proceedings cut the heart out of the farming unit, resulting in what is sometimes termed serious severance damage to the remaining portions. Subsequent to the taking, and in order to replace the land condemned, the owners testified to purchasing other nearby land at a cost of $50 per acre. There was testimony that the land purchased for $50 per acre was not nearly so well improved as that taken, was overrun by foul weeds, and would have to be worked before it became really good farm land. There was other testimony in the record to the effect that the land purchased by the owners for $50 per acre was some of the best land in Barnes County.
The Government introduced the testimony of three experts on land values. The first was C. A. Jenkins, of St. Paul, Minnesota, who had enjoyed many years of experience as an appraiser of farm property and is employed at the present time by the United States Corps of Engineers. He had formerly been employed in the capacity of appraiser by the Union Central Life Insurance Company, by the Federal Housing Administration and by the Federal Land Bank of St. Paul. He testified to familiarity with land values in Barnes County. He made his examination and appraisal of this tract in August, 1947, and arrived at a total damage of $15,300, which included, as he stated, severance damage to the land remaining after the taking.
The Government's second witness was William Toussaint, of Fargo, North Dakota, who for some years has been engaged in the farm loan and real estate business. He examined the land in November, 1947. He estimated the market value of the land taken at $12,000 and the damage to the land not taken at $3,970, or a total damage of $15,970.
The Government's third witness was Gust Hoberg, of Fargo, North Dakota, who also has been in the real estate business for a number of years. He examined the lands involved in November, 1947. He arrived at a total damage to the landowners of $16,168.
Through cross examination of the owners, the Government was able to bring out that the farm in question was purchased by them from the Federal Land Bank of St. Paul in 1940 for the sum of $6,000. Prior to the time of purchase, the owners had been renters, residing on and operating the land.
The jurors had before them, then, the testimony of four witnesses representing the landowners and three witnesses representing the Government, with a range of damage extending from a low of $15,300 to a high of $32,843, and made up as follows:
Landowners' witnesses
G. E. Nelson .................. $25,934.00
Roger Lee (owner) ............. 32,843.00
Wallace Lee (owner) ........... 32,830.00
Laura Lee (owner) ............. 31,450.00
Government witnesses
C. A. Jenkins ................. 15,300.00
William Toussaint ............. 15,970.00
Gust Hoberg ................... 16,168.00
In the motion for a new trial or in the alternative a remittitur, the Government assigns some thirteen grounds as a basis therefor. The Government's main complaint, of course, is that the verdict is excessive and it asks for a new trial or in the alternative a remittitur of $8,000, thus cutting down the amount of damage from $24,000, as assessed by the jury, to $16,000, which approximates the values testified to by the three Government witnesses.
The landowners were entitled, under the law, to have a jury assess the amount of damages sustained by them as a result of the Government's exercise of its right of eminent domain through the taking of a portion of their lands. The jury's verdict assessing that damage may not be disturbed by the Court unless it is clearly erroneous, is unsupported by substantial testimony, is clearly contrary to the weight of the competent testimony, is based upon error, or is the result of passion, prejudice or caprice.
Regardless of the Court's own opinion of the amount of damages sustained by the landowners, the Court could not, in the...
To continue reading
Request your trial
-
Meyer v. Hansen
...deficiencies or inconsistencies in Meyer's testimony went to the weight the trial court accorded the evidence. United States v. 443.6 Acres of Land, 77 F.Supp. 84 (D.N.D.1948); Furtek v. West Deer Township, 191 Pa.Super. 405, 156 A.2d 581 (1960); Richards v. Village of Edinburg, 97 Ill.App.......
-
United States v. Sowards
...10 Cir., 122 F.2d 143; Kinter v. United States, 3 Cir., 156 F.2d 5; Bateman v. Donovan, 9 Cir., 131 F.2d 759; United States v. 443.6 Acres of Land, (D.C.N.D., W.D.), 77 F.Supp. 84; Nichols on Eminent Domain, 3d Ed. Vol. 5, § 18.4(2), p. 198; 32 C.J.S. Evidence § 546(116); 20 Am.Jur. Evidenc......
-
United States v. 679.19 ACRES OF LAND, ETC., Civ. No. 2128
...the claimed excessiveness of the verdict is concerned, as it viewed a similar situation in the case of United States v. 443.6 Acres of Land in Barnes County, N. D., D.C., 77 F.Supp. 84. The Court can add little to what it said in that case and the Court feels that the opinion expressed in t......