United States v. A Certain Tract or Parcel of Land, No. 155.

CourtUnited States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
Writing for the CourtLOVETT
PartiesUNITED STATES v. A CERTAIN TRACT OR PARCEL OF LAND IN CHATHAM COUNTY, GA., et al.
Decision Date24 September 1942
Docket NumberNo. 155.

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.


47 F. Supp. 31
COPYRIGHT MATERIAL OMITTED
47 F. Supp. 32
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

47 F. Supp. 33
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...

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7 practice notes
  • Bern-Shaw v. Baltimore, No. 1
    • United States
    • Court of Appeals of Maryland
    • October 8, 2003
    ...given the jury no proper estimate of its value "immediately before the taking."); United States v. A Certain Tract or Parcel of Land, 47 F.Supp. 30, 33 (D.Ga.1942) (stating that price paid for property sought to be taken is generally admissible as evidence of fair market value, "except wher......
  • Thornton v. City of Birmingham, 6 Div. 620.
    • United States
    • Alabama Supreme Court
    • May 27, 1948
    ...St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149(13); United States v. A Certain Tract or Parcel of Land, D. C. Ga., 47 F.Supp. 30(6); Hanson Lumber Co., Ltd., v. United States, 261 U.S. 581(5), 43 S.Ct. 442, 67 L.Ed. 809. And, on the question of the remoteness of time ......
  • United States v. 40,379 SQUARE FEET OF LAND, ETC., No. 6728.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 17, 1944
    ...In earlier years the judges may have thought that while not unprecedented (see United States v. A Certain Parcel of Land, D.C.S. D.Ga., 47 F.Supp. 30, 33) the 4% rate was so much lower than the going rate throughout the nation that it more clearly reflected Yankee thrift than national prote......
  • Housing Authority of City of Calhoun v. Spink, No. 35331
    • United States
    • United States Court of Appeals (Georgia)
    • November 4, 1954
    ...Power Co. v. McCrea, 46 Ga.App. 279, 167 S.E. 542; United States v. A Certain Tract or Parcel of Land in Chatham County, Ga., D.C., 47 F.Supp. 30. Special ground 2 of the amended motion complains of an excerpt from the charge which states: 'In all actions for the condemnation of real proper......
  • Request a trial to view additional results
7 cases
  • Bern-Shaw v. Baltimore, No. 1
    • United States
    • Court of Appeals of Maryland
    • October 8, 2003
    ...given the jury no proper estimate of its value "immediately before the taking."); United States v. A Certain Tract or Parcel of Land, 47 F.Supp. 30, 33 (D.Ga.1942) (stating that price paid for property sought to be taken is generally admissible as evidence of fair market value, "except wher......
  • Thornton v. City of Birmingham, 6 Div. 620.
    • United States
    • Alabama Supreme Court
    • May 27, 1948
    ...St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149(13); United States v. A Certain Tract or Parcel of Land, D. C. Ga., 47 F.Supp. 30(6); Hanson Lumber Co., Ltd., v. United States, 261 U.S. 581(5), 43 S.Ct. 442, 67 L.Ed. 809. And, on the question of the remoteness of time ......
  • United States v. 40,379 SQUARE FEET OF LAND, ETC., No. 6728.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 17, 1944
    ...In earlier years the judges may have thought that while not unprecedented (see United States v. A Certain Parcel of Land, D.C.S. D.Ga., 47 F.Supp. 30, 33) the 4% rate was so much lower than the going rate throughout the nation that it more clearly reflected Yankee thrift than national prote......
  • Housing Authority of City of Calhoun v. Spink, No. 35331
    • United States
    • United States Court of Appeals (Georgia)
    • November 4, 1954
    ...Power Co. v. McCrea, 46 Ga.App. 279, 167 S.E. 542; United States v. A Certain Tract or Parcel of Land in Chatham County, Ga., D.C., 47 F.Supp. 30. Special ground 2 of the amended motion complains of an excerpt from the charge which states: 'In all actions for the condemnation of real proper......
  • Request a trial to view additional results

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