United States v. Jaramillo, 4203.

• Decision Date: 21 June 1951
• Docket Number: No. 4203.,4203.
• Citation: 190 F.2d 300
• Parties: UNITED STATES v. JARAMILLO et al.
• Court: U.S. Court of Appeals — Tenth Circuit

190 F.2d 300 (1951)

UNITED STATES v. JARAMILLO et al.

No. 4203.

United States Court of Appeals Tenth Circuit.

June 21, 1951.

John C. Harrington, Washington, D.C., (A. Devitt Vanech, Washington, D.C., Lorenzo A. Chavez, William B. Robinson, Albuquerque, N.M., and Roger P. Marquis, Washington, D.C., on the brief), for appellant.

Claud S. Mann, Albuquerque, N.M., for appellees.

Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.

MURRAH, Circuit Judge.

Like United States v. Cox (United States v. Beasley), 10 Cir., 190 F.2d 293, this appeal involves the correct measure of just compensation for the taking for war purposes ranching lands in the State of New Mexico. The appellee, Manuel Jaramillo, was the owner of 33 acres of land in Bernalillo County, New Mexico. He was the lessee of 90 acres from the State of New Mexico, and held a grazing permit for 48 head of cattle on about 25 sections of public domain in the Cibola National Forest, which adjoined or touched the state land on the east.

By appropriate condemnation proceedings, instituted August 2, 1948, the Government took appellee's fee and leased land as a part of a total of 20,061 acres, to be used for war purposes. But, unlike the Cox and Beasley cases, the project did not contemplate the acquisition of the forest land covered by appellee's permit. His permit thereon was not revoked by the taking, and the Forest Service has issued him an amended grazing permit for 25 head of cattle in the same area.¹

In a trial to a jury on appeal from the Commissioners' award, the rancher introduced evidence to the effect that the fairest and best use of the properties at the time the Government took them was a small cattle ranch. Over the general objections of the Government the witnesses for the ranchers were permitted to separately evaluate the fee land, the leased land and the permit land. Thus, one witness estimated the value of the permit land at $5,635.00, another at $6,000.00, and they based their opinion of the fair value of the fee land taken on the aggregate of the separate valuation of the fee, leased and permit lands, plus the improvements.

The trial court instructed the jury, as it did in the Cox and Beasley cases, that in fixing the fair value of the fee land taken, they were not permitted to award the rancher any value for the permit land "because those lands belong to the United States and you cannot compensate Mr. Jaramillo for lands which already belonged to the United States." The jury was further instructed, however, that on the date of the taking of the lands, Mr. Jaramillo did have a grazing permit for 48 head of cattle, and that the jury should take that fact into consideration in determining the value of the fee lands and state lease, giving to the fee land and the leased land such added value as in its judgment should be given on account of the availability and accessibility of the permit land. No objections or exceptions were taken to these instructions.

On appeal, the Government takes the same position as it did in the Cox and Beasley cases, to the effect that since the ranchers had no compensable interest in the permit land, it cannot be taken into consideration in determining just compensation for the fee land. The position of the Government fails to take into account the fact that in this case, on the date of the taking,...