United States v. Bobinski, 324

• Decision Date: 09 May 1957
• Docket Number: No. 324,Docket 24290.,324
• Citation: 244 F.2d 299
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maxim BOBINSKI et al., Defendants-Appellants. In re condemnation of 4,475.23 acres of land, more or less, in the Town of Riverhead and Brookhaven, County of Suffolk, State of New York.
• Court: U.S. Court of Appeals — Second Circuit

244 F.2d 299 (1957)

UNITED STATES of America, Plaintiff-Appellee, v. Maxim BOBINSKI et al., Defendants-Appellants In re condemnation of 4,475.23 acres of land, more or less, in the Town of Riverhead and Brookhaven, County of Suffolk, State of New York.

No. 324, Docket 24290.

United States Court of Appeals Second Circuit.

Argued April 4, 1957.

Decided May 9, 1957.

Edgar G. Brisach, New York City (John H. Finn, New York City, Gordon M. Lipetz, Solomon Raffe, Riverhead, N. Y., and Remsen Brinckerhoff, New York City, on the brief), for defendants-appellants.

Harry T. Dolan, Sp. Asst. to Atty. Gen. (Perry W. Morton, Asst. Atty. Gen., and Roger P. Marquis and A. Donald Mileur, Attys., Dept. of Justice, Washington, D. C., on the brief), for plaintiff-appellee.

Before CLARK, Chief Judge, LUMBARD, Circuit Judge, and LEIBELL, District Judge.

CLARK, Chief Judge.

This appeal is from the modification and reduction of values stated in the report of commissioners appointed under F.R. 71A(h) of parcels of property of defendants-appellants taken in condemnation by the United States of America. The property in question is largely farm land in Eastern Long Island taken in proceedings commenced in February 1952. In December 1953 the court appointed three commissioners — two lawyers and a real estate man — under F.R. 71A(h); and they filed their initial report as to the fair value of some twelve parcels of land in February 1955, the real estate member dissenting on the ground that the values were set too high for six parcels. In April 1955 the court remanded this report to the commissioners for more specific findings and conclusions of law; and they filed a Revised, Amended and Supplemental Report in December 1955. On March 27, 1956, the district court rendered its decision, setting aside the findings of the majority of the commission as to the value of the six parcels and also setting aside a finding that certain buildings were taken. The court substituted its own findings as to the value of the land in the six parcels and made its own finding that no buildings were taken on the lot in question. From this judgment the present appeal is taken.

Both the claimants and the Government presented the testimony of expert witnesses on the value of all or some of the parcels involved on this appeal, with the usual spread from the low of the Government witnesses to the high of defendants' witnesses. The findings of the commissioners, in both majority and dissenting opinions, and the findings of the court were, however, all within the range of testimony of some of the witnesses, though none of the fact-finders set values identical with those of any particular witness. The commissioners personally examined the land, and Judge Inch indicated that he was "not unaware of the general nature of this property under consideration." The valuations of the various witnesses and finders are appended in the margin.¹

Although the issue has not been raised on this appeal, we are concerned as to the appointment of commissioners here. Both the language and the history of F.R. 71A(h) amply demonstrate that trial to the court is to be the usual method of settling values in Government condemnation, subject to a right in either party to make timely claim for a jury, and that reference to commissioners is to be an exception for special situations. Notes of Advisory Committee on Rules, 28 U.S.C. (1952 Ed.) pages 4355-4361; Moore's Federal Rules 351-358 (1956); 7 Moore's Federal Practice 2790-2799 (2d Ed. 1955). Thus the usual trial must be had "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." As is carefully detailed in the Advisory Committee's Supplementary Report, March 1951, the purpose here was to provide some means of insuring uniformity of treatment of property owners in large and far-reaching developments, of which the TVA was a notable example. Although the court here made the findings required by the rule in its order of appointment, it is hard to see the basis here, for the project was neither so large nor so distant as to make decision by the court at all difficult. The court points out that no defendant had claimed trial by jury; and since the United States had not done so, then there was applicable the provision of F.R. 71A(h) that "trial of all issues shall otherwise be by the court." Unwarranted use of commissioners, like similar use of masters, is an "effective way of putting a case to sleep for an indefinite period." La Buy v. Howes Leather Co., 352 U.S. 249, 253, note 5, 77 S.Ct. 309, 312, 1 L.Ed.2d 290, quoting Chief Justice Vanderbilt. Certainly the misadventures of this case and of United States v. 44.00 Acres of Land, 2 Cir., 234 F.2d 410, certiorari denied Odenbach v. United States, 352 U.S. 916, 77 S.Ct. 215, 1 L.Ed.2d 123, do not speak well for a course substantially repudiated in the state as well as federal procedure.

But the order here under the circumstances can be at most only erroneous, not beyond jurisdiction; and since no party is attacking it directly, we must accept the salvage operation conducted by the judge when his appointments presented more problems than they solved. By referring the matter back to the commissioners he obtained findings sufficiently detailed to afford him an opportunity for intelligent review; and that review convinced him that the findings of the majority as to land value were clearly erroneous. A finding is clearly erroneous, although there may be some evidence to support it, if the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746; Gindorff v. Prince, 2 Cir., 189 F.2d 897; Iravani Mottaghi v. Barkey Importing Co., 2 Cir., 244 F.2d 238. A running controversy divided the commissioners on both their reports, and divided the parties in the court below as well as here: whether certain other parcels of land located in Eastern Long Island were comparable to the condemned lands so that the sales price of those parcels should be considered in determining the fair value of the condemned tracts. At the heart of the Government's case was the thesis that the condemned farm land should be compared with parcels of similar soil composition, rather than with parcels of higher natural productivity. The minority commissioner — the real estate man, significantly — accepted this contention; but the majority attempted to...