United States v. A Certain Tract or Parcel of Land

• Decision Date: 24 September 1942
• Docket Number: No. 155.,155.
• Parties: UNITED STATES v. A CERTAIN TRACT OR PARCEL OF LAND IN CHATHAM COUNTY, GA., et al.
• Court: U.S. District Court — Southern District of Georgia

47 F. Supp. 30

UNITED STATES v. A CERTAIN TRACT OR PARCEL OF LAND IN CHATHAM COUNTY, GA., et al.

No. 155.

District Court, S. D. Georgia, Savannah Division.

September 24, 1942.

COPYRIGHT MATERIAL OMITTED

Joseph F. McPherson, Asst. Atty. Gen., of Washington, D. C., and J. Saxton Daniel, U. S. Atty., and Green B. Everitt, Asst. U. S. Atty., both of Savannah, Ga., for the United States.

Edmund H. Abrahams and David S. Atkinson, both of Savannah, Ga., Chas. H. Griffiths, of New York City, and E. J. Phillips, of Cleveland, Ohio, for Savannah Shipyards, Inc.

LOVETT, District Judge.

The nature of these proceedings, the statutes under which instituted, conformity with state procedure, etc., are discussed in the opinion of this court of March 30, 1942 (44 F.Supp. 712) and will not be repeated.

Dissatisfied with the jury's verdict awarding compensation to the owner-condemnee, the government asks for a new trial. Thirteen grounds are set out in the motion. They will be considered in the order they are presented.

The first four grounds are the usual general grounds familiar under the Georgia practice, viz., that the verdict is contrary to evidence, against the weight of the evidence, without evidence to support it, and therefore contrary to law. There was ample evidence to justify the verdict. A verdict even for a larger amount would have been authorized by the evidence. I can not say the verdict is against the weight of the evidence. Nor do I consider it excessive, as contended in the fifth ground of the motion for a new trial.

In ground 5a it is said that the judgment providing for interest at the rate of 7 per cent per annum from the time of the taking of the property in condemnation¹ is also excessive. Under the Georgia practice an exception to a judgment, as distinguished from a verdict, is not to be made by motion for new trial. It should be made by motion to amend or to set aside the judgment, or by direct exception on appeal. See Magid Orchards Corp. v. Moody, 178 Ga. 222(3), 172 S. E. 464, and cases cited. On the trial of this case, by consent of counsel, the jury did not fix the rate of interest; they merely decided interest should be allowed, and the court fixed the rate at 7 per cent per annum, the legal rate in Georgia where the rate is not named in a contract. Ga. Code (1933) §§ 57-101, 110-304. Putting aside, however, any technical rule of state procedure, the complaint as to the rate of interest is without merit. Except in cases where the Declaration of Taking Act is invoked, and then only because that act fixes the rate of interest, the federal rule is well settled that interest runs from the date of taking, and federal courts are usually constrained to select the local rate of legal interest as the one proper and fair in condemnation proceedings, even though it be conceded that conformity does not so require. United States v. Rogers et al., 255 U.S. 163, 41 S.Ct. 281, 65 L.Ed. 566; Seaboard A. L. Ry. Co. v. United States, 261 U.S. 299, 43 S.Ct. 354, 67 L.Ed. 664; Brown v. United States, 263 U.S. 78, 44 S.Ct. 92, 68 L.Ed. 171; United States v. Sargent, 8 Cir., 162 F. 81; United States v. 20.08 Acres of Land, etc., D.C., 35 F.Supp. 265(4), 267. This rule may not be wholly logical, and has resulted in the payments of rates as low as 4% in some cases (United States v. 167.55 Acres of Land, etc., D.N.D.S.E.D. 1935, Law No. 812, unreported)² and as high as 7% (Brown and S. A. L. Ry. cases, supra) and 8% (United States v. First Nat'l Bank, D.C., 250 F. 299) in others, but it is hard to see what else the courts could do. If some more satisfactory guide than local law is available and is supplied, the courts may use that, i. e., the current interest rates or other satisfactory evidence as to a "reasonable rate of interest" (Cf. United States v. Creek Nation, 295 U.S. 103, 104(6) 111, 112, 55 S.Ct. 681, 79 L.Ed. 1331; United States v. 20.08 Acres of Land, etc., supra, 35 F. Supp. at page 267), but none has been furnished here.

The sixth ground of the motion complains of evidence, received over objection, of the cost to the condemnee of the property condemned. It is conceded that cost may be relevant in some cases, but it is said no proper predicate was laid to justify receiving this evidence, and that the costs were excessive. The jury, under the instructions given, were left to determine whether the cost represented, illustrated or tended to establish fair market value at the time of the taking. That was their function, not the court's. The court could not say the cost was excessive. It must be remembered the property taken was a shipyard in course of construction, with the land on which it was being built and the machinery and personal property used or usable in connection with it. There was no established market for property of this kind. The officers of the company owning it testified the costs were reasonable, proper and necessary under the conditions existing. The shipyard was being built for war purposes, the U. S. Maritime Commission had let a contract to the owner to build ships, and the need for haste was great. Material and machinery were hard to get. Perhaps more was paid for some of these things than they would have cost in normal times. But there was no satisfactory evidence of any padding of accounts or false entries in the records of costs, and I am unable to see why the jury should not have had the benefit of the figures showing the cost, recent as it was, to consider along with all the other evidence in reaching a conclusion as to fair market value. While there is some authority to the contrary, evidence as to the price paid for property sought to be taken is generally held to be admissible as some evidence of its market value, except where the purchase was so remote in point of time from the condemnation proceedings as to afford no fair criterion of present value or it is otherwise shown to have no probative value. See 29 C.J.S., Eminent Domain, § 273, p. 1267 and note 31; 18 Am.Jur. (Eminent Domain) § 351, p. 994, note 10.

The seventh and eighth grounds of the motion for new trial may be considered together. They relate to the court's rulings on the burden of proof. The government alleged no market value or just compensation in the petition for condemnation. Several months before the case was called for trial the condemnee formally asked that the condemnor be required to make and file some pleading setting out the estimate of just compensation on which reliance would be placed and as to which an issue could be properly framed. The government claimed at that time its appraisal had not been completed. Later, in advance of the trial, government's counsel was informed if the petition in condemnation was not amended before or at the time of trial so as to allege the value claimed by the condemnor to represent the fair market value or just compensation to be paid to the owner, the latter would offer to assume the burden of proof. When the case was called for trial, government's counsel was again given an opportunity to amend, the court informing him that unless he named some value, or an amount not exceeding which he would claim the jury could not find, the burden of proof would be placed upon the defendant, as it had formally presented an amendment admitting all of the government's allegations and offering to assume the burden. Counsel for the government declined to amend, stating the government was unwilling to commit itself to any definite amount until the evidence was submitted, though (and this is hard to understand) within a very few minutes thereafter in his opening statement to the jury he orally named a maximum above which he said the evidence for the government would show the jury should not go in awarding compensation. Upon the refusal to amend the court allowed the condemnee's amendment, ruled the burden of proof was on it, and allowed the condemnee to go forward with evidence and to have the opening and concluding arguments to the jury.

All parties here seem to agree that burden of proof is procedural, and under the conformity section of the Condemnation statute³ is to be determined by the laws of Georgia. The Georgia courts generally hold the burden of proof is on the condemnor, and this court has held the same where the Declaration of Taking Act was invoked and the pleadings showed the value claimed by the government. See Streyer v. Georgia So. & Fla. Ry. Co., 90 Ga. 56, 15 S.E. 637; Georgia Power Co. v. McCrea, 46 Ga.App. 279, 167 S.E. 542; State Highway Board v. Shierling, 51 Ga.App. 935, 936(3), 181 S.E. 885; United States v. 76,800 Acres, More or Less, of Land, etc., D.C., 44 F. Supp. 653.⁴ In none of these cases, however, does it appear that the condemnor refused to allege a value, or that the condemnee in his pleadings admitted all the allegations of his adversary's complaint and offered to assume the burden of proof. Moreover, these Georgia cases seem to have been brought under Ga.Code (1933), §§ 36-201 to 36-607 et seq., while this proceeding may be governed by the later Act of 1914, Ga.Laws 1914, p. 92, as amended, Ga.Laws Ex.Sess.1937-38, pp. 251, 253, now embodied in Ga.Code, § 36-1104 et seq., and the procedure is not identical under the different sections. However that may be, the Georgia courts have long recognized that a defendant in his plea may admit a prima facie case for the plaintiff, and if he does so before the plaintiff introduces evidence, the burden of proving his defense is on him, and he is entitled to open and conclude. Ga.Code (1933), § 38-103, and annotations; Broach v. Kelly, 71 Ga. 698(4); Widincamp v. Widincamp, 135 Ga. 644, 70 S.E. 566; Roberson v. Weaver, 145 Ga. 626(3), 630, 631, 89 S.E. 769; Norman v. McMillan, 151 Ga. 363(1a), 364(3), 107 S.E. 325; Wood v. Davis, 161 Ga. 690, 131 S.E. 885; Payne v. Thebaut, Ex'x, 180 Ga. 758(1), 180 S.E. 725; Tilley v. King, 190 Ga. 421(3), 426, 427, 9 S.E.2d 670; Richter Bros. v. Atlantic Co., 59...