United States v. Alcorn

• Decision Date: 13 January 1936
• Docket Number: No. 7945.,7945.
• Citation: 80 F.2d 487
• Parties: UNITED STATES v. ALCORN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

80 F.2d 487 (1935)

UNITED STATES v. ALCORN et al.

No. 7945.

Circuit Court of Appeals, Ninth Circuit.

December 6, 1935.

Rehearing Denied January 13, 1936.

Carl C. Donaugh, U. S. Atty., of Portland, Or., and J. W. McCulloch, Sp. Asst. to the Atty. Gen., for the United States.

Dorothy M. Lee and John F. Cahalin, both of Portland, Or., for appellees.

Before WILBUR, DENMAN, and HANEY, Circuit Judges.

WILBUR, Circuit Judge.

The government appeals from a judgment of condemnation on the ground that the award of damages ($5,750) is excessive owing to certain rulings of the trial court favorable to the defendants upon the introduction of evidence and the instructions.

The land in question (8.96 acres) is desired by the government for a railroad right of way for a railroad whose existing right of way and tracks are to be flooded by the waters impounded by the Bonneville Dam across the Columbia river flowing along the boundary between the state of Washington and the state of Oregon. Proceedings for condemnation were instituted by the filing of a complaint on October 2, 1934. The purpose of the government to proceed with the project involving an expenditure of from thirty-one to fifty million dollars was announced in September 1933. The defendants' property at once increased in value from a nominal figure of not to exceed $100 per acre to a speculative value variously estimated at $11,729, $19,000, and $25,000, with damages to the four acres not taken estimated at $2,400, and $6,000 by the defendants' witnesses and at $1,500, $800 and $1,795 with damages to the balance estimated at $400 and $120 by the government's witnesses. The jury fixed the amount of recovery at $5,750 without segregating the amount for the land taken from the amount awarded as damages to the land retained by the defendants. The government contends that the increase in value of the property due to the announcement of the Bonneville project should be deducted from the amount of the award, and that the rulings and instructions of the court to the jury, and the rejection of the government's evidence and instructions on that subject were erroneous. It was conceded at the trial that the value of the property on October 2, 1934, plus the amount of damages to the land not taken was the amount to which the defendants were entitled subject to a deduction of any special and direct benefits to the remainder arising from the improvement. 33 U.S.C.A. § 595. It was held by the trial court that the improvement in question was the whole Bonneville project, and not merely the railroad for which the property of defendants was to be taken. This ruling is not questioned. Hence the question presented for our consideration is whether or not the addition to the market value of the property by reason of its speculative value arising from its proximity to so great a project is a "special and direct benefit" within the meaning of 33 U.S.C.A. § 595. The government's claim is best stated in the words of the brief filed on its behalf:

"Special benefits are such as are enjoyed by one, or a limited number of persons, and not enjoyed by the public generally. Such special benefit usually arises from the location of the property and the peculiar advantages enjoyed by the owner. The evidence in this case shows that the Alcorn property prior to the announcement of the Bonneville project was steep, hillside property in its natural state, covered with timber and brush, 42 miles from Portland, and not near any other town or settlement. There is no evidence that it had any value, or that there was a demand for it for any use or purpose before the announcement of the Bonneville project.

"Immediately after the announcement of the project, and because of the project, its value was $6,000 per acre, or $3,000 per acre, or $1,500 per acre, according to the testimony of the different witnesses. The increased value, and great demand for it, was by reason of its peculiar location, being within one-quarter mile of a project on which the government was spending millions of dollars, and which would cause industrial development which would require the Alcorn property for residence purposes, business purposes and industrial sites. Private property available for such purposes was very restricted and only a few places could be had for such purposes, and a great deal of property would be needed for business, residences and industrial sites. If valueless property before the announcement of the project became worth thousands of dollars per acre after the...