United States v. Harrell, No. 12316.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: STONE, SANBORN, and RIDDICK, Circuit
• Citation: 133 F.2d 504
• Parties: UNITED STATES v. HARRELL et al.
• Docket Number: No. 12316.
• Decision Date: 01 March 1943

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.

133 F.2d 505

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

133 F.2d 506

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....