United States v. Harrell

• Decision Date: 01 March 1943
• Docket Number: No. 12316.,12316.
• Citation: 133 F.2d 504
• Parties: UNITED STATES v. HARRELL et al.
• Court: U.S. Court of Appeals — Eighth Circuit

133 F.2d 504 (1943)

UNITED STATES v. HARRELL et al.

No. 12316.

Circuit Court of Appeals, Eighth Circuit.

February 3, 1943.

Rehearing Denied March 1, 1943.

John P. Hearne, Atty., Department of Justice, of Washington, D. C. (Norman M. Littell, Asst. Atty. Gen., and Vernon L. Wilkinson, Atty., Department of Justice, of Washington, D. C., on the brief), for appellant.

H. B. Stubblefield, of Little Rock, Ark. (Tom F. Digby, of North Little Rock, Ark., on the brief), for appellees.

Before STONE, SANBORN, and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

On December 16, 1940, the United States brought a suit in the United States District Court for the Eastern District of Arkansas, the purpose of which was to acquire the exclusive temporary use of approximately 40,000 acres of land in Pulaski and Faulkner Counties, Arkansas, in connection with national defense. An order granting the government possession of the land upon the terms set out in the complaint was entered on the same day. The government asked exclusive use and possession of the land for the calendar year 1941, with an option to renew annually its possession of "any or all of said lands" for an additional five years, the option for renewal to be exercised on or before January 1st of the year of renewal.

On March 20, 1941, appellees, with leave of the District Court, filed an intervention in the proceedings, elaborated somewhat by an amendment filed on November 17, 1941, setting up that they owned oil, gas, and mineral leases on approximately 6,000 acres involved in the government's condemnation suit and that the exclusive use and possession of the lands granted to the government "has resulted and will result in a cancellation and destruction" of the leases of the appellees to their damage in the sum of $14,000. Before the intervention came on for trial, the government and the owners of the fee of the lands reached a settlement, and that part of the suit was dismissed. We are not advised as to the terms of this settlement by anything in the record before us. Whether it in any way affected the character or term of the use granted the government is not revealed.

In answer to the intervention, the government denied that interveners were the owners of the leases as alleged in the intervention, or that the government's acquisition of the exclusive use of the lands had resulted in the cancellation or destruction of interveners' rights under the leases, or in any damage to interveners, and denied that the leases were of any value.

Apparently both parties proceeded at the trial upon the assumption that if the leases involved were of any value, the plaintiff was entitled to recover that value by reason of the use and possession by the government of the lands covered by the leases. This is illustrated by the following colloquy which occurred between the court and counsel representing the interveners:

"Mr. Digby, Sr. Will the Court instruct the jury that whatever value there is to these leases as shown in the evidence has been destroyed by the government?

"The Court. No, I won't say that, I won't say the government has destroyed these leases, that is a question left to the jury, I will state the government has taken these leases and if they have destroyed their value you are entitled to the value.

"Mr. Digby, Sr. That is all we want.

* * * * *

"The Court. I am going to say to the jury the Government has taken these leases and whatever you believe the market value is from all the evidence and the circumstances in this case, you are entitled to that damage.

"Mr. Digby. I think that is all we want."

Counsel for the government raised no objection to this declaration of law, apparently conceding that the government had taken the leaseholds of interveners by the temporary acquisition of the land on which the leases were held. This understanding of the parties is further shown by the court's charge to the jury. Neither party requested instructions. The court, on its own motion, after stating that the comdemnation suit brought by the government "was designed to acquire a lease for the calendar year 1941, with the option to renew for five additional years" on certain lands on part of which the interveners held oil and gas leases continued as follows: "You are told, as a matter of law, that the United States has the right to condemn and take the lands for the aforesaid uses, but it is the duty of the Government to pay those owning the lands and the owners of the leaseholds thereon the fair market value thereof, and you are called upon here to determine the fair market value of the oil and gas leases held by the interveners on the date of the taking, that is, December 16, 1940. You are further told that the burden of proof in this case is on the interveners to establish the market value of their leases by a fair preponderance of the evidence." Counsel for the government again made no objection, nor did counsel, at the close of all the evidence, move for a directed verdict. Instead, more than ten days after the jury had returned a verdict for interveners in the sum of $8,000, the government moved for an order setting aside the verdict on the ground that it was without evidence to support it. The record does not show any action by the court upon this motion except such as may be inferred from the fact that judgment was afterwards entered in accordance with the verdict. The government then moved the court to set aside the judgment on the ground that the court had erred in failing to sustain the government's motion to set aside the verdict. This motion was overruled, and the government has appealed from the judgment in favor of interveners.

The ground for reversal assigned by the government is that the verdict and judgment below are not supported by any evidence. Interveners contend that the parties having tried the case upon the theory stated above, and the government having failed to object to the court's declaration of law or to raise the question of the sufficiency of the evidence to support the verdict in the manner and within the time provided by the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the court's charge became the law of the case, and the question of the sufficiency of the evidence to support the verdict is not open for review on this appeal.

In support of its right to have the question of the sufficiency of the evidence reviewed by this court, the government relies on the federal statutes, 40 U.S. C.A. §§ 257, 258; 50 U.S.C.A. § 171, providing that in trials of condemnation suits brought by the United States, the Federal District Courts will follow the procedure of the courts of the State in which the suits are instituted, and on Rule 81(a) (7) of the Rules of Civil Procedure, expressly excluding the application of those rules in condemnation proceedings. It is true, as the government contends, that for the purposes of the trial in the district court, the proper procedure was that prevailing in the courts of Arkansas in condemnation proceedings; and also that under Arkansas practice, treating the government's motion to set aside the judgment below as a motion for a new trial, the question of the sufficiency of the evidence was properly preserved. 1 Pope's Digest of the Statutes of Arkansas § 1536; Fitzhugh v. Norwood, 153 Ark. 412, 241 S.W. 8; Bank of Hatfield v. Clayton, 158 Ark. 119, 250 S.W. 347; Driver v. Treadway, 175 Ark. 1028, 1 S.W.2d 84; Northcross v. Miller, 184 Ark. 463, 43 S.W.2d 734. But by Rule 81(a) (7), relied on by the government, it is expressly provided that the Rules of Civil Procedure, while not applicable in the trial of condemnation proceedings, shall govern on appeals from judgments of district courts in those proceedings. If the requirement that the Rules of Civil Procedure shall govern appeals from judgments in condemnation cases is to be given effect, questions for review by federal appellate courts must be preserved in the manner prescribed by those rules. The required procedure for testing on appeal the sufficiency of the evidence is by moton for a directed verdict at the close of all the evidence. Rule 50, Rules of Civil Procedure. It has been held in a case tried under the Conformity Act, 28 U.S.C.A. § 724, that Rule 50 "does not do away with but emphasizes the necessity of a motion for a directed verdict to raise on appeal the legal question whether the evidence is sufficient." Baten et al. v. Kirby Lumber Corp., 5 Cir., 103 F.2d 272, 274. And see Austin-Western Road Machinery Co. v. Veal et al., 5 Cir., 115 F.2d 112, 113; F. W. Woolworth Co. et al v. Seckinger, et al., 5 Cir., 125 F.2d 97.

Since the government failed to move the trial court, at the close of the evidence, for a directed verdict on the ground that the evidence was insufficient to sustain a verdict for the appellees, and since the government took no other equivalent action, it is not entitled as of right to a review of the question of the sufficiency of the evidence to support the judgment. See and compare Ayers v. United States, 8 Cir., 58 F.2d 607, 608; Combs v. United States, 8 Cir., 65 F.2d 787; Emanuel v. Kansas City Title & Trust Co., 8 Cir., 127 F.2d 175, 176. It was held that, under the Conformity Act, supra, before its provisions were superseded by the Rules of Civil Procedure, appellate proceedings in a circuit court of appeals were not affected by that Act. Camp et al. v. Gress, ...