United States v. Buhler, 16752.

• Decision Date: 16 July 1958
• Docket Number: No. 16752.,16752.
• Citation: 254 F.2d 876
• Parties: UNITED STATES of America, Appellant, v. Frank S. BUHLER et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

254 F.2d 876 (1958)

UNITED STATES of America, Appellant, v. Frank S. BUHLER et al., Appellees.

No. 16752.

United States Court of Appeals Fifth Circuit.

April 29, 1958.

Rehearing Denied July 16, 1958.

Perry W. Morton, Asst. Atty. Gen., A. Donald Mileur, Roger P. Marquis, Washington, D. C., Malcolm R. Wilkey, U. S. Atty., Arthur L. Moller, Asst. U. S. Atty., Houston, Tex., for appellant.

Willard C. Williams, David T. Searls, Houston, Tex., Conde N. Anderson, Victoria, Tex., Jack D. Head, Jarrel D. McDaniel, Vinson, Elkins, Weems & Searls, Houston, Tex., Eastham & Williams, Houston, Tex., Stofer, Houchins, Anderson & Hartman, Victoria, Tex., for appellees.

Before RIVES, BROWN and WISDOM, Circuit Judges.

RIVES, Circuit Judge.

This eminent domain action involves six separate declarations of taking during the period from September 1952 to June 1955. The property condemned consists of approximately 1,471 acres out of a larger tract of approximately 4,417.59 acres of land, under the same ownership, near the City Limits of Victoria, Texas. The property was owned in fee simple by Frank S. Buhler, Orbin Buhler Beall and Mary Margaret Buhler Perry, subject to an existing rice lease on certain portions of the property owned by Frank S. Buhler, LeRoy Johnson and John H. Faubion. The appellant lists the questions presented for decision on this appeal as follows:

"(1) Whether the district court was justified in denying a demand for a jury trial and in appointing a commission under Rule 71A(h) F.R. C.P. 28 U.S.C.A. to determine just compensation for the taking of property located within 3½ miles of the city limits of a federal court town because the property contained some buildings, runways, swimming pools, roads and utilities from an abandoned air force base.

"(2) Whether the findings of fact and conclusions of law by the commission appointed pursuant to Rule 71A(h) Federal Rules of Civil Procedure are adequate when they fail to show how the commission reached the major points at issue and upon what evidence the award was based.

"(3) Whether the findings of just compensation by the commission were clearly erroneous because based on incompetent and irrelevant evidence and because the result was excessive and contrary to the clear weight of all the evidence."

1. Denial of Jury Trial.

The district court's opinion, concluding that the demand for jury trial should be denied and the case submitted to a commission, is reported sub nom United States v. 1146.32 Acres of Land in Victoria County, Texas, D.C., 132 F.Supp. 681 et seq.

The district court denied the demand for jury trial on July 22, 1955, the month following the sixth taking and the final amendment of the complaint. The commissioners were appointed on September 12, 1955, commenced hearings on October 11, and completed those hearings on January 13, 1956, after creating a record of over 2,600 pages of testimony in addition to multitudinous exhibits. The judgment of the district court confirming the commissioner's award was rendered on December 19, 1956. The proceedings in the district court have thus been stretched out over the better part of two years.

Jurisdiction is vested in the court itself.¹ There is no constitutional right to a jury trial in a condemnation proceeding.² The mode of trial, whether by the court, by jury, or by commission, is one of judicial administration, but nonetheless an important and a difficult question.

It may be noted that the more appropriate method of review of that question by this Court, that is whether by mandamus³ before the evidence is taken or by appeal after final judgment, has not been settled. The mode of review is not argued by the parties, and we comment upon it only because it is brought to mind by our reluctance to cause further delay and expense and to set at naught the nearly two years of work devoted by the district court and the commission to this case.

The provisions of the Rule expressly vest some discretion in the district court:

"* * * Any party may have a trial by jury of the issue of just compensation * * * 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. * * *."

The Advisory Committee was not able to formulate a more definite rule after spending more time and effort on Rule 71A than on any other rule, and after the Justices of the Supreme Court had also given serious and considered attention to it.⁴ That fact emphasizes the responsibility of the courts for a proper exercise of the discretion vested in them.

In the construction of the rule, we have the benefit of its discussion by the Advisory Committee, of the opinion of the district court at 132 F.Supp. 681, of several decisions of the Tenth Circuit,⁵ and of several other district court decisions.⁶ Most of these, together with other authorities, are ably discussed by Professor Moore in 7 Moore's Federal Practice (2nd ed.) Paragraph 71.90, pages 2787-2799.

The Department of Justice has almost always advocated the jury system because of its claimed expedition and economy. In a report to the Supreme Court in May 1948, a majority of the Advisory Committee recommended a rule reading in part: "* * * if there is no such specially constituted tribunal any party may have a trial by jury of the issue of just compensation by filing a demand therefor * * *." The Advisory Committee's Note states that: "The effect of this was to preserve the existing systems in the District of Columbia and in TVA cases, but to provide for a jury to fix compensation in all other cases." 28 U.S.C.A. Pocket Supplement at p. 274. The Justices of the Supreme Court were, however, impressed by the minority views of Judge John Paul calling attention to the reasons which had convinced the Advisory Committee that the use of commissioners instead of juries is desirable in TVA cases.⁷ Judge Paul pointed out that the same considerations applied "to other large governmental projects, such as flood control, hydroelectric power, reclamation, national forests, and others." The Advisory Committee finally recognized the inconsistency between the acceptance of the TVA system and the provision for a jury in all other cases, and in its March 1951 report to the Court, following its tentative June 1950 report, recommended subdivision (h) of the Rule in the form in which it was finally adopted.

There can be no doubt that Rule 71A(h) should be properly interpreted:

"* * * as prescribing trial by jury as the usual and customary procedure to be followed, if demanded, in fixing the value of property taken in condemnation proceedings, and as authorizing reference to Commissioners only in cases wherein the judge in the exercise of a sound discretion based upon reasons appearing in the case finds that the interests of justice so require."

That was the interpretation expressed in its report of March 18, 1952 by the Committee appointed by the Judicial Conference to give study to Rule 71A(h) and the change therein proposed by Senate Bill 1958 of the 82nd Congress. The Report of the Proceedings of a Special Meeting of the Judicial Conference of the United States held March 20 and 21, 1952, transmitted to the Speaker of the House by the Chief Justice under date of June 4, 1952 (H.Doc. No. 490, 82 Cong., 2nd Session), repeats that same interpretation, and contains the following:

"The Committee recommended that the Conference approve of its views and interpretation of the rule.

"The Conference approved of the recommendations of the Committee, including its interpretation of the rule, and directed that the Director inform the Congress of this action."

The language of the rule was carefully chosen to express that meaning. Any party is given a right to a jury trial on timely demand, "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." (Emphasis supplied.) To justify denial of a timely demand for jury trial, it is essential that the exercise of the court's discretion be based upon some exceptional reasons in the interest of justice, such as the character, location, or quantity of the property to be condemned.

An unsupported conclusion, that the appointment of a commission will avoid delay and be in the interest of justice, clearly will not suffice. United States v. Theimer, 10 Cir., 1952, 199 F. 2d 501. The cases in which denial of a timely demand for jury trial are justified certainly include those similar to TVA cases (see Footnote 7, supra: that is, where large areas held by many small landowners, or property too distant for a jury to view the premises are involved. In such cases, the court's discretion is exercised because of the location or quantity of the property to be condemned. The present case is not similar to a TVA case, for the district court found that the property condemned was exceptional neither in location⁸ nor in quantity. It held that the appointment of a commission was warranted because of the exceptional character of the property, thus described in its opinion:

"The land in question is that taken and used by the United States Air Forces as Foster Air Force Base in Victoria County, Texas. Foster Air Force Base was originally built by the United States Army Air Corps about 1940 or 1941 upon the tract of land described in plaintiff\'s Declaration of Taking No. 1 recited to contain 1,144.71 acres of land, under a temporary lease from the defendant landowners. At the conclusion of World War II the air base was abandoned, the lease terminated, and the land returned to the defendant landowners with the permanent improvements thereon. Such improvements include `a

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