United States v. Lee
| Decision Date | 17 June 1966 |
| Docket Number | No. 22686.,22686. |
| Citation | 360 F.2d 449 |
| Parties | UNITED STATES of America, Appellants, v. Thomas F. LEE and wife Ola Mae Lee, etc., Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Wm. Wayne Justice, U. S. Atty., Richard Trickey, Asst. U. S. Atty., Beaumont, Tex., Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis, Elizabeth Dudley, Attys., Dept. of Justice, Washington, D. C., for appellant.
Leonard E. Choate, Dallas, Tex., for appellees.
Before RIVES and THORNBERRY, Circuit Judges, and GARZA, District Judge.
This condemnation case is before us on the narrow point of whether or not the District Court erred in taxing against the United States, as costs, the cost of a survey ordered by the landowners of the land condemned.
Considering, under the facts in this case, the cost of the survey to be part of the just compensation contemplated under the Fifth Amendment to the Constitution, the action of the District Court was correct, and we affirm.
A recitation of the facts below will show that the cost of the survey was actually part of the just compensation contemplated under the Constitution. These facts are as follows:
On August 14, 1961, the United States instituted condemnation proceedings to acquire certain lands in Jasper and Sabine Counties, State of Texas, for use in connection with the establishment of the McGee Bend Reservoir on the Angelina River. Part of the lands of the Appellees were to be taken in fee and perpetual easements occasionally to overflow, flood and submerge part of the Appellees' lands were also to be taken.
The taking in question here on which the Government was to take a fee was Tract No. 1100. The complaint of the Government and the declaration of taking filed simultaneously therewith described said Tract No. 1100 of the Appellees by metes and bounds, and the Government alleged that the acreage being taken was 1151.56 acres.
Before the actual trial, the Government stipulated that the acreage actually being taken in fee amounted to 1182.06 acres.
While the jury was deliberating the case, the District Court held a hearing on the motion of the Appellees to tax the cost of the survey in question to the Government.
Mr. Lee, the landowner, testified, generally, that while he was out at sea on a ship the Corps of Engineers had called his wife and informed her that Mr. Lee did not have the acreage that they thought he had; that upon coming back to the States he informed his attorney that he had deeds that called for 1186 acres; that he contacted the Corps of Engineers and showed them his deeds and his tax receipts showing that he was paying taxes on that amount of land in Tract 1100; that he asked the Corps of Engineers, "Well, how can we work it out?" and the people representing the Corps of Engineers said that a survey had to be made; that he asked the Corps of Engineers to make the survey on the ground, and they told him that he would have to furnish the survey himself.
Mr. Lee further testified that before the Government stipulated that they were actually taking 1182.06 acres, they were contending that he only had about 1100 acres, instead of the 1151.56 that they claimed they were taking in their complaint and declaration of taking.
The Government explains that the usual procedure of the Corps of Engineers in the initial steps of a condemnation proceeding is to estimate the acreage in the various tracts by the use of a planimeter.
Attorneys representing the Government were asked from the bench at the hearing before this Court if the field notes used in the condemnation proceedings and the declaration of taking were the same as shown by the survey on the ground, and the admission was made that they were.
Although the Government was given ample opportunity, as reflected by the record, by the court below to put on evidence to dispute Mr. Lee's testimony, this was never done, and, as the court below, we must take his testimony as true as to the genuine dispute over the acreage actually being taken.
The Government makes the argument that when it accepted the increased acreage, the Appellees certainly improved their case by having the survey made, as they were paid some $6,800.00 more for the increased acreage. The government makes the further argument that the Appellees did not have to have a survey made that they could have presented the deeds and...
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...in retaining an expert, Robert L. Bien, to ascertain the rentable area of the property condemned by the government. Cf. United States v. Lee, 360 F.2d 449 (5th Cir. 1966) (where condemnee is put to expense of showing correct acreage condemned, it violates constitution to make him bear the c......
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