United States v. 679.19 ACRES OF LAND, ETC., Civ. No. 2128

• Decision Date: 11 March 1953
• Docket Number: 2400.,2169,Civ. No. 2128
• Citation: 113 F. Supp. 590
• Parties: UNITED STATES v. 679.19 ACRES OF LAND, MORE OR LESS, IN McLEAN COUNTY, N. D., et al. UNITED STATES v. 359.29 ACRES OF LAND, MORE OR LESS, IN MOUNTRAIL COUNTY, N. D., et al. UNITED STATES v. 11,993.32 ACRES OF LAND IN MOUNTRAIL AND McKENZIE COUNTIES, N. D., et al.
• Court: U.S. District Court — District of South Dakota

113 F. Supp. 590

UNITED STATES v. 679.19 ACRES OF LAND, MORE OR LESS, IN McLEAN COUNTY, N. D., et al.

UNITED STATES v. 359.29 ACRES OF LAND, MORE OR LESS, IN MOUNTRAIL COUNTY, N. D., et al.

UNITED STATES v. 11,993.32 ACRES OF LAND IN MOUNTRAIL AND McKENZIE COUNTIES, N. D., et al.

Civ. Nos. 2128, 2169, 2400.

United States District Court D. North Dakota, Northwestern Division.

March 11, 1953.

P. W. Lanier, U. S. Atty., of Fargo, N. D., for plaintiff.

Roy A. Ilvedson and Kenneth G. Pringle (of Ilvedson, Pringle & Herigstad), of Minot, N. D., Halvor L. Halvorson, Jr., of Minot, N. D., C. A. Waldron, of Minot, N. D., C. L. Foster (of Hyland & Foster), of Bismarck, N. D., and E. Hugh McCutcheon, of Minot, N. D., for defendants.

VOGEL, District Judge.

There is here for consideration a motion in behalf of the United States for a remittitur or in the alternative a new trial in a group of land condemnation cases. In the trial, some fourteen farms or tracts of land, condemned by the United States for public use in connection with the Garrison Dam, were grouped and tried together. In effect, then, we have fourteen separate cases tried before the same jury. The trial commenced on October 16, 1952, and terminated with jury verdicts on October 30, 1952. One day of such period was consumed by the jurors in viewing the fourteen tracts of land which they were to evaluate.

In the Government's original motion, some twelve separate grounds are set forth as a basis therefor. Government's counsel, however, in his brief, consolidates his argument into six points which will be discussed by the Court in the order in which they appear in the Government's brief.

Point I.

The verdicts are excessive.

In writing this memorandum, the Court must rely upon its memory of the testimony and its own notes, as no transcript of the evidence was made or supplied. Generally speaking, the expert witnesses who testified in behalf of the United States relied substantially upon what they termed sales of comparable land in the vicinity where these were located. Their estimates of market value run considerably below the verdicts found by the jury. As opposed thereto, the landowners and their expert witnesses claimed that there were very few sales of lands which were comparable and they relied, at least to a substantial extent, on use value. They did introduce evidence of the sales of school lands at public auctions, being unimproved quarter-sections of land owned by the State of North Dakota which sold for prices comparable to the estimates of value placed on these lands by the landowners' witnesses. The jurors' verdicts rest somewhere in between the values found by the Government witnesses and the values found by the landowners and their witnesses.

The Court views this situation, insofar as 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 that case is applicable to the situation with which we are here confronted.

The Government's counsel believes that the greater, if not the entire weight of the evidence should be placed on the valuations found by the Government experts in that they prefaced their findings upon alleged comparable sales. Witnesses for the landowners denied that the sales testified to by the Government witnesses were comparable and in turn used the sales of school lands at public auction heretofore referred to. This presents merely a question of how much weight should be given to the testimony of the witnesses and, of course, that is a jury question. The Court cannot find that the values found by the jurors were not supported by substantial testimony and even if the Court believed that such values might be somewhat high, the Court nevertheless does not have the right to set aside or reduce the verdicts because of a disagreement with the jurors on questions of fact where the findings of the jurors are supported.

In a very recent case, the Court of Appeals for this Circuit, in United States v. Ham, 187 F.2d 265, 267, stated, in connection with a similar problem:

"On the government side greater weight and importance was claimed for the element of sales value and on the owner's side the stress was on the probative force of the use value. To fairly try the issue and determine just compensation in this case it was necessary for the jury to consider both sides of the dispute and to weigh the evidence of use value which tended to enhance compensation for the taking against the evidence of the sales value which tended to diminish it, and the duty rested on the court to conduct the proceedings of the trial so as to obtain fair and impartial consideration of both sides."

The Court feels that that was exactly what was done in this group of cases and that it would be improper for this Court to set aside the jury verdicts as excessive where the jurors have had before them evidence on both sides of the question. Here landowners and the Government were allowed to present "all facts which an ordinarily prudent man would take into account before forming a judgment as to the market value of property he contemplates purchasing * * *." Clark v. U. S., 8 Cir., 155 F.2d 157, 162. To disturb the findings of the jury under such circumstances seems to the Court unjustified.

Point II.

The Court erred in refusing to strike the testimony of Andrew Sathe on the grounds that he failed to qualify as an expert and because his testimony was wholly incompetent and immaterial.

Andrew Sathe appeared as an expert witness in behalf of the landowners. He testified originally on the second day of the trial. He gave a long history of land appraisal experience with the Federal Land Bank, the Bank of North Dakota, the United States Department of Agriculture, the Farm Security Administration and the Department of Interior, Bureau of Reclamation. He had resigned his position with the Government not long before the trial of this group of cases and was then personally engaged in farming. He has appeared in this court as an expert witness testifying to land values in behalf of the Government in other cases. Originally, his qualifications to testify as to market value were not questioned by Government counsel. On the fifth day of the trial and after Sathe had, without objection, expressed his opinion as to market values regarding a number of other tracts, counsel for the Government subjected him to a belated and additional cross examination, the substance of which was to the effect that his estimates of value were not based upon what an informed seller and an informed buyer would agree to under the circumstances because he had not had sufficient opportunity to investigate. He then got into more or less of an argument in which he claimed that the more modern and efficient method of arriving at the value of lands was through evidence of use value instead of comparable sales, subsequently admitting, still on cross examination, that when he had testified in behalf of the Government at prior trials he had used numerous comparable sales upon which to base his then given estimates of value.

Sathe's testimony on cross examination did tend to diminish the weight that the finders of fact would give to his opinion, but it did not make his opinion completely incompetent nor at that time justify the Court in striking all of his prior testimony. The Court feels that no error was committed therein.

Point III.

The Court erred in permitting the witness Felix Adams to testify.

Felix Adams, at the time of...