United States v. CERTAIN LAND, ETC.

• Decision Date: 14 February 1963
• Docket Number: Civ. A. No. 1832-N.
• Citation: 214 F. Supp. 148
• Parties: UNITED STATES of America, Plaintiff, v. CERTAIN LAND, Together With Improvements Thereon LOCATED AT 400 LEE STREET, MONTGOMERY, ALABAMA, and the Security Life and Accident Insurance Company, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

214 F. Supp. 148

UNITED STATES of America, Plaintiff, v. CERTAIN LAND, Together With Improvements Thereon LOCATED AT 400 LEE STREET, MONTGOMERY, ALABAMA, and the Security Life and Accident Insurance Company, et al., Defendants.

Civ. A. No. 1832-N.

United States District Court M. D. Alabama, N. D.

February 14, 1963.

Ben Hardeman, U. S. Atty., and Rodney R. Steele, Asst. U. S. Atty., Montgomery, Ala., for plaintiff.

William M. Acker, Jr., W. Bruce White (of Smyer, White, Reid & Acker), Birmingham, Ala., and Jack Crenshaw (of Crenshaw, Wright, Long & Franco), Montgomery, Ala., for Security Life.

Walter J. Knabe, Montgomery, Ala., for W. C. Jennings and the City of Montgomery.

JOHNSON, District Judge.

This is a condemnation case filed July 30, 1962, in which the United States of America took as of August 1, 1962, under its power of eminent domain for public use, a building located in Montgomery, Alabama, known as the Veterans Administration Building; the estate taken was a leasehold interest for a five-month term commencing August 1, 1962, and ending December 31, 1962, with the Government's having the option to extend the use and occupancy of the premises for the month of January 1963 upon thirty days' written notice, together with the option of the Government to remove within a "reasonable time" after the expiration of the initial five-month term or any extended term, the improvements and structures placed therein or thereon by the United States during its use and occupancy of the property. For this taking, the United States paid into the registry fund of this Court $45,200.

The pretrial order made and entered in this case in September 1962, by agreement of the parties, defined the sole issue as being, "What is the just compensation to be awarded for the estate taken, the just compensation being the fair market value of said estate as of August 1, 1962." As is reflected by the pretrial order, it was understood and agreed between the parties that the "estate taken" included the option of the United States to extend the use and occupancy for the month of January 1963, together with the option in the United States to remove certain fixtures and furniture within a reasonable time after the expiration of the initial term or the extended term. It was further understood and agreed that the estate taken did not include any services and did not include any compensation for occupancy for any period prior to August 1, 1962, or any period subsequent to December 31, 1962. It was further understood that the "estate taken" did not include the cost, if any, of restoring the premises after the premises were vacated by the United States.

The case came on to be heard before the Court and a jury, and on November 19, 1962, a jury returned a verdict determining that the just compensation to be awarded for the estate taken was $118,800. This Court on November 30, 1962, entered a formal order and judgment on the jury verdict.

The matter is now presented upon the motion for a new trial timely filed herein by the United States of America. The grounds relied upon by the United States in its motion which this Court considers decisive of the matter are (1) that the verdict as returned by the jury was excessive and (2) that there was no credible testimony upon which the jury could base the verdict which it rendered in this case. For the reasons hereinafter stated, this Court is of the opinion that the verdict as rendered by the jury in this case in the amount of $118,800 is grossly excessive, that there was no credible testimony to support this award for the five-month rental period and for the two options which were taken by the United States in this proceeding, and therefore it is necessary and appropriate for this Court to meet its duty and responsibility in such instances by setting aside the excessive verdict as rendered by the jury in this case and to conditionally grant a new trial. The granting of a new trial will be conditioned upon the failure of the Security Life and Accident Insurance Company's filing a remittitur with this Court within twenty days from the date of this order, said remittitur to be filed down to $83,200. In other words, the granting of a new trial in this case will be conditioned upon the Security Life and Accident Insurance Company's failing and refusing to accept the sum of $83,200 as full and just compensation in this case. Its failure to do so will necessitate this Court's making and entering an order in this case granting the motion of the United States, wherein it seeks to have a new trial ordered.

In cases such as this one, the burden of proving just compensation rests upon the owners of the land and not upon the Government. Westchester County Park Commission, et al. v. United States, 2 Cir., 143 F.2d 688, cert. denied 323 U.S. 726, 65 S.Ct. 59, 89 L.Ed. 583. The jury must make a determination as to just compensation solely from the evidence as presented on the trial of the case. United States v. Dillman, et al., 5 Cir., 146 F.2d 572, cert. denied 325 U.S. 870, 65 S.Ct. 1409, 89 L.Ed. 1989. Where the testimony submitted to the jury and relied upon by the landowners in their efforts to establish just compensation is testimony from expert witnesses, the opinions as expressed by the experts must be founded upon substantiated evidence and must not be based upon unsupported assumption, conjecture or speculation. As the United States Court of Appeals for the Fifth Circuit said in United States v. Cooper, 277 F.2d 857:

"An expert witness may give his opinion based on assumptions stated by him. However, if the assumptions needed to support the opinion are not proved, or at least testified to, and are not otherwise taken to be true, the opinion is worthless. See International Paper Co. v. United States, 5 Cir., in which we stated: `Of course, opinion evidence may of itself be substantial enough to take a case to the jury. However, an opinion is no better than the hypothesis or the assumption upon which it is based.' 227 F.2d 201, 205."

As was stated by Circuit Judge Frank in the Westchester County Park case, supra:

"But that guess must have a rational foundation. And the owner of the land must supply the court with materials for a guess having such a foundation. For on the owner, and not on the United States, rests the burden of establishing the value.

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