United States v. CERTAIN LANDS IN JACKSON COUNTY, 763.

• Decision Date: 05 March 1942
• Docket Number: No. 763.,763.
• Citation: 48 F. Supp. 588
• Parties: UNITED STATES v. CERTAIN LANDS IN JACKSON COUNTY, MO., et al.
• Court: U.S. District Court — Western District of Missouri

48 F. Supp. 588

UNITED STATES v. CERTAIN LANDS IN JACKSON COUNTY, MO., et al.

No. 763.

District Court, W. D. Missouri, W. D.

March 5, 1942.

Maurice M. Milligan, U. S. Dist. Atty., and Charles J. Winger, Sp. Asst. U. S. Atty., both of Kansas City, Mo., for the United States.

Henry L. Jost, of Kansas City, Mo., for Harry G. Kyle.

John G. Madden and James E. Burke both of Kansas City, Mo., for Grant Dixon.

Sebree, Shook & Gisler, of Kansas City, Mo., for John O. Orear.

James E. Campbell, of Kansas City, Mo., for intervenor George Harrington, Collector of Revenue for Jackson County, Mo.

Richard Beeson, of Kansas City, Mo., for Missouri Pac. R. Co.

REEVES, District Judge.

This is a proceeding to condemn certain property in Jackson County, Missouri, for the use of the government in its war or military operations. It is not questioned but that an official of the government had the right to proceed as was done to acquire the immediate possession and use of the property involved, as authorized by section 258a, Title 40 U.S.C.A.

By this comparatively recent amendment to the law, the authorities of the government, empowered by law to do so, may acquire lands described in a proper petition by filing a "declaration of taking." In this instance it was done by declaration filed by the Secretary of War. The Secretary complied with the statute by making the required deposit, and thereafter the proceeding for the assessment of damages was made conformable under Section 258, Title 40 U.S.C.A., "as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record of the State within which such district court is held."

Pursuant to the prayer of the petition, commissioners were appointed to "assess the damages which the defendants, owners of the tracts or parcels of land in said petition described, respectively, may severally sustain by reason of the appropriation of said tracts or parcels of land by the plaintiff for the purposes named in said petition."

It was ordered that the commissioners "shall forthwith view the property of the above designated defendants * * * and forthwith return to the clerk * * * their assessment of damages to the defendants * * *."

The commissioners were duly instructed as to their method of procedure, involving of course a view of the property appropriated. The commissioners were appointed September 5, 1941, and on September 18, 1941, they filed their report, embodying an expression of their judgment as to the amount of damages accruing to each of the property owners by reason of the appropriation of the land owned by them.

The government, on September 22, filed exceptions to the report of the commissioners on Parcels Nos. 14, 15 and 31. Thereafter, the owners of said parcels, in like manner, filed exceptions to the Commissioners' Report. The government, by its exceptions, asserted that the damages assessed were excessive, prayed for a review by the court and for an order disapproving the awards. The government further sought "an order for a new appraisement, award and report by other Commissioners." Each of the excepting property owners prayed for an order granting a "new appraisement of said property by a jury, * * *." The property owners are Harry G. and Bertha B. Kyle, Grant and O. J. Dixon, John O. and Mary Orear. In due course the exceptions were presented for consideration.

A controversy arose under the law whether the property owners were entitled to an appraisal or assessment of damages by a jury. It was held by the Circuit Court of Appeals, this circuit, in United States v. Hess, 8 Cir., 70 F.2d 142, in a proceeding somewhat similar, that the property owner was not entitled to have his damages assessed by a jury. Other authorities being to the same effect, the parties thereupon orally requested the court to hear evidence on the subject of damages. Such evidence was heard in extenso with the thought that it could be considered as proper procedure would warrant.

The testimony covered the questions of the character, location, qualities of the lands, and such special benefits and values, advantages or disadvantages, as might attach to them. This was supplemented by the opinions of various and sundry persons as experts concerning their estimate of values in the properties appropriated. The values given by witnesses for the property owners tended to show damages more than double those assessed by the commissioners, whereas the testimony on behalf of the government tended to show that the values were less than one-half of that fixed by the commissioners. The variance between the testimony of the plaintiff's and defendants' witnesses was exceedingly wide.

The evidence adduced before the commissioners was not presented to the court, nor was it accessible for review. In fact the parties did not tender it but elected to present evidence independently of that offered to the commissioners. Important questions arise now as to what disposition may and should properly and legally be made of the case.

1. A brief reference to the fundamentals of the right of eminent domain would be helpful. See first the last line of the Fifth Amendment to the national Constitution. Section 21, Article 2, of the Constitution of Missouri, Mo.R.S.A., covers the subject of eminent domain. By recognizing the inherent right of a sovereign to appropriate private property, this section of the constitution puts a restriction upon the exercise of the right by saying that private property shall not be appropriated "without just compensation."

The procedure for estimating such just compensation is outlined by the section; it says: "Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law."

Section 258 of said Title 40 U.S.C.A. hereinbefore set out requires conformity, where the government seeks to appropriate land, to the state practice and procedure. The practice...