United States v. Merz

• Citation: 306 F.2d 39
• Decision Date: 06 September 1962
• Docket Number: No. 6772.,6772.
• Parties: UNITED STATES of America, Appellant, v. Louis T. MERZ, Leo J. Merz, Minard Henderson and Grace Henderson; W. E. Guthrie, Bernice Guthrie and Federal Land Bank of Wichita, Wichita, Kansas; John Kerkoff and Katherine H. Kerkoff; Robert E. Davis and Mamie Davis; E. E. Smith and Pearl T. Smith; Bertha Kinney Rogers, Juanita Kinney Nagel and Wanda Kinney Riggins; Charlie O. Rivers and Myrtle Rivers, Earl Leverton, Nettie E. Bryan, L. T. Armstrong, Wayne Armstrong, Mary Indiana Armstrong, a/k/a Mary I. Armstrong, a/k/a Mrs. T. H. Armstrong, Fay Kliewer; and Ella B. Hoover and Federal Land Bank of Wichita, Wichita, Kansas, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

306 F.2d 39 (1962)

UNITED STATES of America, Appellant, v. Louis T. MERZ, Leo J. Merz, Minard Henderson and Grace Henderson; W. E. Guthrie, Bernice Guthrie and Federal Land Bank of Wichita, Wichita, Kansas; John Kerkoff and Katherine H. Kerkoff; Robert E. Davis and Mamie Davis; E. E. Smith and Pearl T. Smith; Bertha Kinney Rogers, Juanita Kinney Nagel and Wanda Kinney Riggins; Charlie O. Rivers and Myrtle Rivers, Earl Leverton, Nettie E. Bryan, L. T. Armstrong, Wayne Armstrong, Mary Indiana Armstrong, a/k/a Mary I. Armstrong, a/k/a Mrs. T. H. Armstrong, Fay Kliewer; and Ella B. Hoover and Federal Land Bank of Wichita, Wichita, Kansas, Appellees.

No. 6772.

United States Court of Appeals Tenth Circuit.

July 7, 1962.

Rehearing Denied September 6, 1962.

Raymond N. Zagone, Dept. of Justice, Washington, D. C. (Ramsey Clark, Asst. Atty. Gen., Washington, D. C., B. Andrew Potter, U. S. Atty., Oklahoma City, Okl., and Roger P. Marquis, Dept. of Justice, Washington, D. C., on the brief), for appellant.

Denver W. Meacham, of Meacham, Meacham & Meacham, Clinton, Okl. (Crowe, Boxley, Dunlevy, Thweatt, Swinford & Johnson, William J. Holloway, Jr., and Paul R. McDaniel, Oklahoma City, Okl., with him on the brief), for appellees.

Before PHILLIPS, PICKETT and LEWIS, Circuit Judges.

PICKETT, Circuit Judge.

This is a proceeding by the United States to obtain by condemnation clearance easements¹ over neighboring lands for use as airplane approaches to Clinton-Sherman Air Force Base in Washita County, Oklahoma. The right to acquire the easements is not disputed. The district court referred the question of adequate compensation to a commission. This is an appeal from a judgment approving and confirming the commission's awards of compensation to be paid to the owners of the tracts of land affected by the taking.

Rule 71A(h), Fed.R.Civ.P., 28 U.S. C.A., authorizes the district court to appoint a commission of three to determine the issue of compensation to be paid by the United States in land condemnation cases. The commission has the powers of a master as provided for in Rule 53(c), Fed.R.Civ.P., and the proceedings are governed by paragraphs (I) and (II) of subdivision (d) thereof. The report and findings of the commission shall have the effect, and be dealt with by the court in accordance with the practice, set forth in Rule 53(e) (II). United States v. Waymire, 10 Cir., 202 F.2d 550. The court's order of reference did not require findings of fact and conclusions of law, and it limited the commission's duties to determining the amount of damages to be paid to the landowners.

Just compensation means the full equivalent in money for the property taken. United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336. Since the taking of the property by eminent domain is not a voluntary transfer the determination of just compensation is an informed guess or estimate based upon the best available criteria of value. Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765, 7 A.L.R.2d 1281. Usually it is described as the fair market value of the property when taken. United States v. Silver Queen Mining Co., 10 Cir., 285 F.2d 506. The determination, however, cannot be reduced to a rigid and fixed rule or formula. United States v. Commodities Trading Corp., 339 U.S. 121, 70 S.Ct. 547, 94 L.Ed. 707; United States v. Toronto, Hamilton & Buffalo Navigation Co., 338 U.S. 396, 70 S.Ct. 217, 94 L.Ed. 195; United States v. Cors, 337 U.S. 325, 69 S.Ct. 1086, 93 L.Ed. 1392. "The guiding principle * * * is reimbursement to the owner for the property interest taken." United States v. Virginia Electric & Power Co., 365 U.S. 624, 633, 81 S.Ct. 784, 5 L.Ed.2d 838.

It was stipulated that the highest and best use of the eight tracts of land involved on this appeal was for general agricultural purposes. There was no evidence that the land had any other value except for minerals. The owners of the different tracts testified as to the value of their lands and the amount of damages which the easements caused to them. Appraisers for the United States determined the values, including the mineral values, of the tracts to be substantially less than that fixed by the respective landowners, and their opinions as to damages were comparably smaller. In addition, an appraiser, A. L. Willcox, testified on behalf of the landowners, and, using a formula of his own development, he arrived at an opinion as to the damages to the land by equating the taking of the air space above it to the taking of an undivided portion of the surface.² The application of this formula resulted in damages substantially higher than those arrived at by the landowners or the appraisers for the United States.

The commission, after viewing the premises, filed a report which cited the order of reference, and contained ultimate findings as to the amount of compensation to be paid to each landowner. The United States objected to the adequacy of this report, but made no request for specific findings. Thereafter an additional and supplemental report, which included findings of fact, was filed.³ In objecting to this report, the United States alleged that the commission had failed to make specific findings as to the facts upon which the valuation was based, and further that the report wholly failed to show how conflicting evidence was resolved.⁴ Relying on United States v. 2,477.79 Acres of Land, 5 Cir., 259 F.2d 23; United States v. Buhler, 5 Cir., 254 F.2d 876; and United States v. Cunningham, 4 Cir., 246 F.2d 330, it contends that the findings are inadequate for a proper review of the proceedings and that the case should be remanded for more adequate findings.

The parties were in agreement as to the type of land over which the easements were taken, and its highest and most profitable use. Generally, the witnesses arrived at their estimates of damages to the land by determining the difference between the market value before the taking of the easement and the market value thereafter. This is the normal method of valuing damages for the taking of an easement by the United States. United States v. Virginia Electric & Power Co., supra. The report of the commissioners shows that its conclusions were arrived at in the same manner. There was a sharp conflict in the evidence as to the amount of these damages. The commissioners' awards are well within the range of this conflicting testimony, and it is settled in this circuit that such findings shall be accepted unless clearly erroneous. Rapid Transit Co. v. United States, 10 Cir., 295 F.2d 465; Buena Vista Homes, Inc. v. United States, 10 Cir., 281 F.2d 476; United States v. Waymire, supra.⁵

"The primary and basic test as to the adequacy of findings is whether they are sufficiently comprehensive and pertinent to the issues in the case so as to provide a basis for purposes of decision." Shapiro v. Rubens, 7 Cir., 166 F.2d 659, 665. See United States v. Tampa Bay Garden Apartments, Inc., 5 Cir., 294 F.2d 598; United States v. Pendergrast, 4 Cir., 241 F.2d 687; 5 Moore's Fed. Practice Par. 52.061, at 2656 (2d Ed. 1951). The extent of exactness which is required in findings depends upon the nature of the matter involved. Kelley v. Everglades Drainage Dist., 319 U.S. 415, 63 S.Ct. 1141, 87 L.Ed. 1485. The evidence presented to the commission in this case related entirely to the diminution in value of the lands after the easements were taken, and a general finding as to this amount was made.

We are satisfied that, considering the record as a whole, including all the evidence, our power to review the awards can be properly exercised, and that more specific findings would not be helpful. The situation might be different if there were numerous elements to be considered in arriving at just compensation, as there were in the cases from the Fourth and Fifth Circuits which the United States relies upon.⁶ The issues in this case are not complicated, however, and the findings are entirely adequate to permit us to review them and conclude that they are not clearly erroneous.

The United States also asserts error arising out of the failure of the commission to grant its motion to strike the entire testimony of the landowners' expert witness, A. L. Willcox. While other grounds were asserted in its motion the United States now relies on only two of these:

"(1) the consideration by Willcox of the managerial skill of individual landowners in appraising fair market value prior to the taking, and

"(2) the impropriety of his testimony as to damages which were computed pursuant to a formula."

Willcox was employed by an insurance company as district manager in charge of making farm and ranch loans in the southwest part of the United States. He had been engaged in similar employment since about 1926, and his duties included making appraisals and determining values of farm and ranch properties. He testified that he had appraised property in Washita County since 1935, and knew its value. He stated that he was familiar with the particular tracts involved in this proceeding and with the easement which the government took, and he fixed the values of the lands prior to the taking. An examination of the testimony concerning managerial skill reveals that Willcox was considering that managerial skill which had contributed to the future profitability of the property. Such evidence was...