United States v. Hayes

• Decision Date: 14 February 1949
• Docket Number: No. 11900.,11900.
• Parties: UNITED STATES v. HAYES et al. HAYES et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

172 F.2d 677 (1949)

UNITED STATES v. HAYES et al. HAYES et al. v. UNITED STATES.

No. 11900.

United States Court of Appeals Ninth Circuit.

February 14, 1949.

A. DeVitt Vanech, Asst. Atty. Gen., Henry L. Hess, U. S. Atty., of Portland, Or., and John F. Cotter and Elizabeth Dudley, Attys., Dept. of Justice, both of Washington, D. C., for appellant the United States.

Edwin D. Hicks, J. W. McCulloch, Thomas H. Tongue, III, and Hicks, Davis & Tongue, all of Portland, Or., for appellants Hayes et al.

Before HEALY and ORR, Circuit Judges, and YANKWICH, District Judge.

YANKWICH, District Judge.

I.

Statement of the Case.

This is an appeal and cross-appeal, in a land condemnation case, from an order of the trial court striking the declaration of taking and dismissing the cause, after it had set aside the jury's verdict as excessive.

On April 22, 1946, the United States of America, to be referred to as "the Government," instituted proceedings to condemn 1,101.68 acres of land owned by Mary I. (Bell) Hayes and her husband Marcellus B. Hayes, to be called "the owners," in Harney County, Oregon, for the purpose of providing an addition to the Malheur National Wildlife Refuge of Oregon. An amended complaint, describing the land more particularly, was filed on August 13, 1946. On October 2, 1946, an answer was filed alleging that the land had a value of $55,084. On October 9, 1946, the landowners and their son, Adelbert, entered into an agreement with the Government whereby they agreed to the acquisition of title to the land by the Government, through judicial proceedings, subject to a reservation of certain grazing rights to the land for a period of five years. The Government agreed to pay to the owners $16,000 as consideration for the land and in settlement of a pending suit by them against the Government for damages to the land. On February 11, 1947, a declaration of taking was filed, alleging that $16,000 was the reasonable value of the interests to be condemned, and the sum of $16,000.00 was deposited in the registry of the Court. On February 13, 1947, a second amended complaint was filed (to conform with the declaration of taking), asking for condemnation of the fee simple title, subject to a five-year reservation in a portion of the lands. On February 26, 1947, judgment was entered on the declaration of taking, and an order made granting immediate possession. A reply to the answer of the owners was filed on September 11, 1947, alleging that the defendants had entered into an agreement to sell the lands for $16,000, and were, therefore, estopped from demanding any greater sum.

On September 24, 1947, the District Court heard testimony relating to the circumstances under which the agreement was made. The facts elicited by this testimony need not be gone into for reasons which will appear further on in the Opinion. The District Court declined to allow the agreement to go before the Jury.

On September 25, 1947, the issue of valuation was tried before a jury, who returned a verdict of $36,500. Judgment on the verdict in that amount was entered on September 25, 1947. On October 3, 1947, the Government moved to set aside the verdict and for a new trial. On October 20, 1947, an order was entered setting aside the verdict and judgment, striking the declaration of taking from the files, and dismissing the cause, which was worded as follows:

"Now at this day this cause coming on to be heard upon the Motion of the United States of America, plaintiff herein, for an order setting aside the verdict of the jury and the judgment on the verdict entered in the above-entitled cause on the 25th day of September, 1947, and granting a new trial therein, plaintiff appearing by Bert C. Boylan and Linus M. Fuller, Special Assistants to the United States Attorney, and the defendants appearing by Edwin D. Kicks of counsel for the defendants, and the motion having been duly presented by oral argument and the Court being fully advised in the premises, It Is Hereby Ordered and Adjudged that the verdict of the jury and the judgment on the verdict entered herein on the 25th day of September, 1947, be and the same are hereby set aside; And It Is Hereby Further Ordered and Adjudged on the motion of the Court that the Declaration of Taking filed in this cause on the 11th day of February, 1947, be and the same is hereby stricken from the files in this cause and that the judgment on the Declaration of Taking and the Order granting immediate possession be and the same is hereby vacated; And It Is Further Ordered and Adjudged that this cause be and the same is hereby dismissed."

On January 16, 1948, the United States filed notice of appeal from the portion of the order which struck the declaration of taking from the files, vacated the order granting immediate possession and dismissed the cause. On January 19, 1948, the owners filed a cross-appeal from that portion of the order which set aside the verdict of the jury and the judgment on the verdict.

In summary, the Government seeks to restore the declaration of taking and the order granting immediate possession, the owners, in effect, ask us to reinstate the judgment on the verdict, which awarded them the sum of $36,500 as compensation for the taking of the property.

II.

The Legal Questions Involved.

Three questions are presented on this appeal:

1. Whether the District Court can strike a declaration of taking and dismiss the condemnation proceeding in which it is filed.

2. Whether the District Court can refuse to give effect to an agreement of purchase which determined the value of certain property upon the ground that the agreement was entered into under circumstances which the Court considered inequitable and as amounting to an "over-reaching".

3. Whether the action of the trial court after a verdict in a condemnation proceeding in setting it aside on the ground that the award was excessive can be interfered with by this Court.

(A) The Effect of the Declaration of Taking.

It is conceded by the owners that the District Court was without power to set aside the declaration of taking and dismiss the proceeding. Rightly. For, upon the filing of the declaration of taking, title passes to the Government, and the District Court is powerless to dismiss the proceeding. 40 U.S.C.A. §§ 257, 258a; City of Oakland v. United States, 9 Cir., 1942, 124 F.2d 959; United States v. Sunset Cemetery Co., 7 Cir., 1942, 132 F.2d 163; United States v. 150.29 Acres of Land, 7 Cir., 1943, 135 F.2d 878; United States v. Catlin, 7 Cir., 1944, 142 F.2d 781; United States v. Carey, 9 Cir., 1944, 143 F.2d 445, 450; Saucier v. Crichton, 5 Cir., 1945, 47 F.2d 430; United States v. 6.74 Acres of Land, 5 Cir., 1945, 148 F.2d 618, 619. And see, United States v. Miller, 1943, 317 U.S. 369, 380, 381, 63 S.Ct. 276, 87 L.Ed. 336, 147 A.L.R. 55.

(B) The Discretionary Power as to Excessive Verdicts.

An order granting a new trial is not appealable. However, the ruling is reviewable on an appeal from the final judgment. Here, the final judgment of dismissal brings the ruling on the motion for a new trial before us for review. We cannot disturb it unless we find an abuse of discretion. 28 U.S.C.A. §§ 1291, 1292; Teche Lines v. Boyette, 5 Cir., 1940, 111 F.2d 579, 580, 581; Marshall's U. S. Auto Supply, Inc., v. Cashman, 10 Cir., 1940, 111 F.2d 140. And see, Arkansas Valley Land & Cattle Co. v. Mann, 1889, 130 U.S. 69, 74, 9 S.Ct. 458, 32 L.Ed. 854; Southern Railway-Carolina Division v. Bennett, 1914, 233 U.S. 80, 87, 34 S.Ct. 566, 58 L.Ed. 860; Fairmount Glass Works v. Club Fork Coal Co., 1933, 287 U.S. 474, 481, 53 S.Ct. 252, 77 L.Ed. 439; Swift & Co. v. Ellinor, 5 Cir., 1939, 101 F.2d 131.

As the conclusion, in a condemnation suit, that a verdict is excessive involves a determination by the trial court, in the light of the evidence in the case, the expert testimony offered, the configuration of the land as shown by the evidence or by a view of the premises, the uses to which it is adapted, it can rarely happen that a reviewing court will be justified in substituting its judgment, derived from a cold record, for the inferences to be drawn from the circumstances just alluded to.

For this reason, this Court said, in Murphy v. United States District Court, 9 Cir., 1944, 145 F.2d 1018, 1020, in discussing the power of the trial judge to set aside the verdict of a jury in a condemnation proceeding as excessive:

"A Federal District Judge not only has the power and authority but is charged with a duty and responsibility to set aside the verdict of a jury and to grant a new trial when in his judgment and discretion the amount of compensation awarded is excessive. The granting of a new trial is discretionary with the court and subject to no fixed rule except a consideration of what is just."

And certainly here, an order setting aside a verdict of $36,500 for the taking of lands for which an agreement to sell for $16,000 had been made, and the value of which Government appraisers had placed at a figure as low as $9,922 and which one of the two appraisers of the owners had placed at $23,885.40, cannot be said to involve an abuse of judicial discretion. This is especially true when we bear in mind that the Judge who granted the motion had ruled in favor of the owners in refusing to give recognition to the agreement of purchase. A trial judge so minded is not likely to grant a new trial on the ground of excessiveness unless convinced that the verdict is shockingly excessive. So, while we are satisfied that it, concededly,...