United States v. Benning

• Decision Date: 11 May 1964
• Docket Number: No. 18557-18559,18630.,18557-18559
• Parties: UNITED STATES of America, Appellant, v. A. R. BENNING et al., Appellees. UNITED STATES of America, Appellant, v. John H. DUNSHEE et al., Appellees. UNITED STATES of America, Appellant, v. V-R RANCH COMPANY, a corporation, Appellee. UNITED STATES of America, Appellant, v. Dorothy D. BATTIN, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

330 F.2d 527 (1964)

UNITED STATES of America, Appellant, v. A. R. BENNING et al., Appellees.

UNITED STATES of America, Appellant, v. John H. DUNSHEE et al., Appellees.

UNITED STATES of America, Appellant, v. V-R RANCH COMPANY, a corporation, Appellee.

UNITED STATES of America, Appellant, v. Dorothy D. BATTIN, Appellee.

Nos. 18557-18559, 18630.

United States Court of Appeals Ninth Circuit.

February 14, 1964.

Rehearing Denied May 11, 1964.

COPYRIGHT MATERIAL OMITTED

Ramsey Clark, Asst. Atty. Gen., Roger P. Marquis, Elizabeth Dudley and Richard N. Countiss, Attys., Dept. of Justice, Washington, D. C., and Richard J. Dauber, Asst. U. S. Atty., Los Angeles, Cal., for appellant.

Angell, Adams, Gochnauer, Elder & Holmes, Philip H. Angell, and Mose Silverman, San Francisco, Cal., and Louis Le Baron, Honolulu, Hawaii, for appellees A. R. Benning, and others and John H. Dunshee and others.

Price, Postel & Parma and Robert M. Jones, Santa Barbara, Cal., Angell, Adams, Gochnauer, Elder & Holmes, and Philip H. Angell and Mose Silverman, San Francisco, Cal., for appellee Dorothy D. Battin.

Anson, Gleaves & Larson and John B. Anson, Los Angeles, Cal., for appellee V-R Ranch Co.

Before HAMLEY, HAMLIN and MERRILL, Circuit Judges.

MERRILL, Circuit Judge.

In these four condemnation cases the District court has, over objections of the United States, affirmed the report and findings of the Commission to which the issue of just compensation had been referred pursuant to Rule 71A(h), F.R. Civ.P. In each case the United States has appealed. Since substantially the same problem is presented by each appeal, the cases were consolidated for argument.

Three of the cases — Benning, Dunshee (under the name of Morrison), and V-R Ranch — have already been before this court on appeal. United States v. Lewis (9 Cir. 1962), 308 F.2d 453, 459, 462. In that appeal, upon certain of the Government's contentions, the district court was affirmed. Upon others, however, we remanded for partial rehearing. The district court there had proceeded to affirm the Commission without benefit of a transcript of the Commission proceedings. We ruled that certain of the Government's objections "could not receive the consideration required without a transcript in order to ascertain whether the judgment of the Commission * * * is clearly erroneous." Those rehearings have now been held and it is from the rulings of the district court made on the basis of the rehearings that these appeals are taken.

The Battin case is before us for the first time. It involves 3.28 acres of land in the same area of Ventura County as the properties in the other cases here consolidated and was taken for the same project: the Ventura River project known as the Casitas Dam and Reservoir Project.

As in the cases before us on the former appeal, the United States here objects that the Commission's report and findings in Battin are inadequate. For the reasons set forth in the Benning and Morrison appeals, 308 F.2d 459, 460, we find this contention without merit. The Battin case thus presents the same problem as the other cases: whether the award determination of the Commission was clearly erroneous.

Before we can reach the issues presented on the merits, however, we must, as we did in the former appeal, grapple with procedural problems.

At the outset we are faced with a dispute as to the function which this court is to perform on appeals of this sort. Appellees assert that our function is to review the manner in which the district court has acted upon the objections filed to the report and findings of the Commission; that our review is of the actions of the district court rather than of those of the Commission. The United States, on the other hand, asserts that our function is to review the Commission's report de novo.

Upon this dispute, we agree with the position of appellees.¹

As we view the matter should we take upon ourselves a de novo review of the Commission we would rob the district court of all significant participation in the case. Further, we would undertake for this court the burden of ascertaining, as in the first instance and in the light of the full record, whether the Commission's findings are clearly erroneous in the specified respects.

That burden, in our view, must remain with the district court. Our function is the more restricted one of determining, under a proper assignment of errors, whether the district court has committed error or has otherwise failed in its judicial function in the manner in which it has resolved the disputes raised by the objections filed with it.

Our preliminary problem arises from the fact that in these cases we cannot adequately perform that function without a remand.

In the first place, in several respects the assignment of errors by the United States is not keyed to the objections filed below nor directed to the manner in which the district court has acted upon them. It amounts, in substantial part, to a new and original set of objections to the commission's report and findings, upon which we are asked to act de novo.

In the second place, the district court has given us nothing to review. It has filed no opinion. It has simply ordered the objections overruled and the report confirmed and adopted.

We are not here determining the sufficiency of the evidence to support a jury's verdict. We are reviewing the manner in which the district court has performed its function "as a reviewing court." United States v. Lewis, supra, 308 F.2d at 456. We recognize that district courts may not (and need not) all act in precisely the same procedural fashion upon the report and findings of a commission. We do not mean to suggest otherwise. Under Rule 71A(h), the Commission's findings and report shall "be dealt with by the court in accordance with the practice prescribed in paragraph (2) of subdivision (e) of Rule 53" dealing with masters.² Such procedural variations in practice as are proper in dealing with masters' reports would therefore appear to be appropriate here. However, since the manner in which the district court acts upon the Commission's report is in turn made subject to review by this court, the district court is as much obliged as is the Commission (see our earlier opinion) to express, by opinion, findings and conclusions, or otherwise, the reasons for its action.

These deficiencies, precluding us from the exercise of our appellate function as we view it, are ample grounds for our remanding the case to the district court with instructions that an opinion be filed.

Yet, in this case we feel that a remand should be avoided if possible. Much time and money have already been expended here. We should be especially reluctant to remand for no purpose other than to effectively hammer home our views as to our proper function and as to what is necessary if we are to perform it. Since this is the first occasion on which we have expressed these views, we are hopeful that such announcement can satisfactorily serve the ends of precedent. We shall, it should be apparent, be less relucant to remand in the future.

In this case we shall (with one exception later noted) accept the assignment of errors by the United States as a paraphrase of the objections filed below. Further, the issues thus presented by the United States place no undue burden upon us, and we can rationally presume that the district court, in rejecting the contentions of the United States, did so for reasons which to us seem clearly apparent. Accordingly we turn to the merits.

In our opinion upon the earlier appeal we stated in reference to these cases (308 F.2d at 461):

"The problem presented by these cases, in essence, is that the present character of the land, as determined by the commission, is not to be found in its present use. The highest and best use is not found from the past history or present use of these lands but from reasonable future probability in the light of the history of the region in general in its transition from agricultural to residential character.

"The position of the United States, in brief, is that regional transition is still too remote from these particular lands and their particular location and that these lands are not suitable to partake, as residential land, in such a transitional process."

In all of these cases the Commissioners have found the highest and best use of substantial portions of the lands to be for development and use as residential subdivisions and as rural or view or country-estate homesites. The Government's attack is principally leveled at this determination. We know from Commission findings in Battin that the valleys of Santa Ana and Coyote Creeks, in which the condemned parcels are located, were wholly rural with no existing residential subdivisions. The Government insists that under these circumstances the Commissions were compelled to accept the views of the Government witnesses to the effect that the highest and best use was agricultural with some possibility of country estates.

But the Commission, in determining market value, was not confined to a consideration of present use. As we suggested in our earlier opinion as it has been quoted here, highest and best use of the land can be based upon reasonable future probability. United States ex rel. Tennessee Valley Authority v. Powelson (1943), 319 U.S. 266, 275-276, 63 S.Ct. 1047, 87 L.Ed. 1390; Olson v. United States (1934), 292 U.S. 246, 255-257, 54 S.Ct. 704, 78 L.Ed. 1236.

That this is the basis upon which the Commissions proceeded is implicit in their findings. It was found in each case that many lands in Santa Ana and Coyote Valleys, and in immediately surrounding areas "were in the transition stage from dry farming and more extensive agriculture to development for small rural estates and residential subdivisions." It was found in each case that "properties in Ventura County and in the area of the lands condemned were at the time of the take greatly in demand,...