United States v. Chamberlain Wholesale Grocery Co.

• Decision Date: 02 November 1955
• Docket Number: No. 15302-15305.,15302-15305.
• Parties: UNITED STATES of America, Appellant, v. CHAMBERLAIN WHOLESALE GROCERY COMPANY and W. G. Cozard, Appellees. UNITED STATES of America, Appellant, v. Walter NEUGEBAUER and Marie Neugebauer, Appellees. UNITED STATES of America, Appellant, v. William R. ELLIS and Esther M. Ellis, Appellees. UNITED STATES of America, Appellant, v. Andrew W. REIS and Millie Reis, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

226 F.2d 492 (1955)

UNITED STATES of America, Appellant, v. CHAMBERLAIN WHOLESALE GROCERY COMPANY and W. G. Cozard, Appellees.

UNITED STATES of America, Appellant, v. Walter NEUGEBAUER and Marie Neugebauer, Appellees.

UNITED STATES of America, Appellant, v. William R. ELLIS and Esther M. Ellis, Appellees.

UNITED STATES of America, Appellant, v. Andrew W. REIS and Millie Reis, Appellees.

Nos. 15302-15305.

United States Court of Appeals Eighth Circuit.

November 2, 1955.

Roger P. Marquis, Atty., Department of Justice, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., Clinton G. Richards, U. S. Atty., Sioux Falls, S. D., and John F. Cotter, Atty., Department of Justice, Washington, D. C., were on the brief), for appellant.

John F. Lindley, Chamberlain, S. D. (M. A. Brown, Chamberlain, S. D., was with him on the brief), for appellee Chamberlain Wholesale Grocery Co.

Donald J. Porter, Chamberlain, S. D., for appellees Andrew Reis and Millie Reis.

M. T. Woods, Sioux Falls, S. D. (G. F. Johnson, Gregory, S. D., was with him on the brief), for appellees Walter Neugebauer and Marie Neugebauer and William R. Ellis and Esther M. Ellis.

Before WOODROUGH, JOHNSEN and VOGEL, Circuit Judges.

WOODROUGH, Circuit Judge.

These four appeals are from judgments entered upon awards made by commissioners appointed by the District Court to determine compensation pursuant to Rule 71A(h) of the Federal Rules of Civil Procedure, 28 U.S.C.A.

The lands were among those taken for the Fort Randall Dam and Reservoir in South Dakota. In No. 15,302 the land taken (1.19 acres) is situated in the City of Chamberlain which is in the Southern Division of the District of South Dakota, for which court is held at Sioux Falls, about 145 miles distant. The land was part of the right of way of the Chicago, Milwaukee, St. Paul & Pacific Railroad Company, improved by buildings owned by and used by the Chamberlain Wholesale Grocery Company under a 25-year lease from the railroad company. Since the latter disclaimed any interest, the trial involved only the value of the lessee's improvements. In No. 15,303, 394.26 acres were taken from a stock-raising ranch of 2,090.98 acres owned by appellees, Mr. and Mrs. Walter Neugebauer. In No. 15,304, 689.43 acres were taken from a stock-raising ranch of 4,001.44 acres owned by appellees, Mr. and Mrs. William R. Ellis. In No. 15,305, 1,210.72 acres were taken from another stock-raising ranch of 5,815.95 acres owned by appellees, Mr. and Mrs. Andrew W. Reis.

In each case, the petition in condemnation contained a demand for trial by jury. Each appellee applied to the court for determination of the issue of compensation by commissioners. In each instance, the application was supported by affidavit of appellees or their attorney, and opposed by affidavit of the Special Assistant to the United States Attorney. The most detailed affidavit supporting an application for commissioners was that of Mr. and Mrs. Reis in No. 15,305. So far as material, it stated:

"The 1,210.72 acres to be condemned by the plaintiff in this proceeding are an integral part of a 5,815.95 acre ranch owned by affiants, and situated some 20 miles southwest of Chamberlain, South Dakota, and at a junction of the Missouri river and the White river, in Lyman County, South Dakota. The nearest Federal Court town is Pierre, South Dakota, which is approximately 125 miles distant from the ranch. Affiants intend to produce from five to ten neighbors and Chamberlain residents at the hearing on this matter, to give testimony concerning the value of said land being condemned and it will be expensive and inconvenient for such witnesses to be compelled to travel to Pierre, South Dakota in order to give their testimony in this matter. That part of the road to this ranch from the City of Pierre is impossible, or nearly so, in wet or snowy weather; that for a jury to travel from the City of Pierre to view the land at the times of the year it would sit on this case would be very expensive and might easily be impossible because of weather conditions and road conditions, this being particularly true as to any traveling about upon and within the ranch itself.

"That since part of this land adjoins the Missouri River and the White River, and since said land is located in a fly-way of Canada geese that rest on sand-bars in said Missouri and White rivers in and during the migratory flight of such geese from Canada and North Dakota to the southern states, part of the tract involved herein is peculiarly valuable as geese and duck hunting grounds. Said fly-way involved in this tract is one of the best Canada geese hunting grounds in the central part of the United States, and the value of the hunting rights upon said land is real and substantial; part of said tract has been released by affiants from the plaintiff, but they are prevented by such lease terms from leasing said hunting rights to others, and are prevented from themselves hunting upon said lands unless they will agree in turn to permit the public to hunt thereon without any permission from affiants as lessees and former owners.

"The 1,210.72 acres being condemned by the plaintiff are made up as follows: about 140 acres of river bottom crop land, about 60 acres of tillable bottom meadow land, about 23 acres of upland crop land, about 400 acres of creek and timber pasture land, about 100 acres of valley pasture, about 60 acres of accretion land, about 90 acres of willow bar, and about 300 acres of upland pasture. Some of the bottom land produces alfalfa, and some is devoted to the production of alfalfa seed, and some is used for the growing of small grain, corn and cane crops. Due to its location and other natural conditions, the said timber land furnishes excellent shelter and protection for livestock in the winter. In addition, there are two flowing wells on the property being taken, such wells providing year round water in ample quantity for the livestock herd on the ranch. The property being taken is well improved, containing a two story residence, barn, machine shed, hen-house, granaries, garage, corrals, brooder house, cribs, and concrete stock tank, and other miscellaneous improvements. Affiants are being left with about 4,600 acres of the original 5,800 acre ranch. The acres remaining are in part upland pasture and in part crop land. Before the condemnation, the ranch was a balanced ranch, being properly equipped for the raising of livestock and caring for the same on the ranch the year around, and raising on the ranch all feed necessary for such stock the year around. The 1,210.72 acres being taken by the plaintiff are property which provided much of the winter feed and all the winter shelter for the stock, thus the ranch is no longer a balanced ranch, and it is questionable that successful operations could be conducted at all on the remaining acreage because of the loss of winter quarters, as aforesaid.

"To fix a just compensation in the proceeding for the 1,210.72 acres taken by the plaintiff, multiple circumstances are presented, which call for the consideration of various elements. These elements include the value of the land taken in fee, severance value, flowage easement value, value of improvements, value of hunting rights, and numerous other factors. This ranch is located within a few miles of several other similar ranches, as to which ranches the Court has recently granted similar motions for reference to Commissioners. Affiants respectfully submit that it is both important and fair and just to both plaintiff and defendants herein that all of the ranches in this immediate area which are being taken at this time for the Fort Randall re-location be compensated for on a uniform basis. Reference of this case as well as the several others recently already referred, will tend to prevent discrimination and will provide for uniformity of compensation. It is for just such reasons that in its 1951 supplementary report, the Advisory Committee Notes on Rule 71A(h) recommend the use of a reference to Commissioners, not only in TVA projects, but also in other large governmental projects such as flood control, hydroelectric power, reclamation, and others."

The opposing affidavit of the Special Assistant to the United States Attorney stated:

"That said tract which is being acquired by the Government consists of 1,210.72 acres of land used principally for agricultural purposes, and that said tract is a part of a larger acreage totalling 5,815.95 acres. Said tract is located about fourteen miles southwest of Chamberlain, South Dakota, at the west side of the mouth of the White River. Chamberlain, South Dakota, is approximately ninety miles from Pierre, South Dakota, and approximately one hundred forty-five miles from Sioux Falls, South Dakota, both of which are Federal Court towns, and there is a good hard surface oiled and paved road and mainly traveled highway to both Sioux Falls, South Dakota, and Pierre, South Dakota. That the next regular jury term in Pierre, South Dakota, will commence on May 11, 1954.

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