United States v. Mischke

• Decision Date: 18 January 1961
• Docket Number: No. 16444.,16444.
• Citation: 285 F.2d 628
• Parties: UNITED STATES of America, Appellant, v. Louise MISCHKE, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

285 F.2d 628 (1961)

UNITED STATES of America, Appellant, v. Louise MISCHKE, Appellee.

No. 16444.

United States Court of Appeals Eighth Circuit.

January 18, 1961.

Roger P. Marquis, Attorney, Lands Div., Dept. of Justice, Washington, D. C., Perry W. Morton, Asst. Atty. Gen., and Claron C. Spencer, Attorney, Lands Div., Dept. of Justice, Washington, D. C., and William C. Spire, U. S. Atty., Omaha, Neb., and Guy J. Birch, Asst. U. S. Atty., Lincoln, Neb., on the brief, for appellant.

John A. Engel, Avon, S. D., Henry A. Gunderson, Fremont, Neb., on the brief, for appellee.

Before SANBORN, WOODROUGH and MATTHES, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from an order in a condemnation proceeding instituted by the United States in 1955 to acquire 1,712.89 acres of land in Knox County, Nebraska, for purposes of flood control in the Missouri River and for use in connection with the construction and operation of the Gavins Point Dam and Reservoir. The effect of the order appealed from was to return to Louise Mischke 42.5 acres of a 700-acre tract designated in the proceeding as Tract B-208-1, which had been taken by the Government.

The complaint in condemnation, the Declaration of Taking signed by the Secretary of the Army, and his letter asking that the Attorney General take action to acquire the lands which the Secretary had determined to be necessary and advantageous for use in connection with the construction and operation of the Gavins Point Dam and Reservoir Project, were filed on April 5, 1955. The deposit of estimated compensation was made at the same time. The District Court thereupon entered judgment on the Declaration of Taking, vesting title to the lands, subject to certain easements, in the United States. Included in the taking was Tract B-208-1.

On May 19, 1955, Louise Mischke filed an answer in which she alleged:

"Defendant denies specifically that it is necessary for the plaintiff to take the quantity of land sought to be condemned in said complaint and alleges that a portion of said tract sought to be condemned by the plaintiff is to be used for recreational purposes and is not authorized under the Acts of Congress cited in the complaint and notice in condemnation, and that as to that portion of land to be used for recreational purposes the condemnation of said tract is not authorized by law; `that the taking of additional land The original shows the word "Amendment" in the margin opposite the last three lines. was arbitrary and capricious and beyond the discretion of the Secretary of the Army.\'"

The Government on October 31, 1955, moved to strike this allegation of the answer and the demand that its complaint be dismissed as to that portion of the land allegedly "taken for recreational purposes and which is not authorized by law," as raising an insufficient defense. Other former owners of lands taken for this dam and reservoir project had also filed answers containing similar defenses, which the Government had moved to strike. The motions, including that of Louise Mischke, were heard by Judge Delehant. In a comprehensive memorandum opinion filed January 14, 1956, he said:

"Briefly evaluated, the challenged material in the several answers has as its objective, in the case of each tract involved, the final denial on its merits of the right of the plaintiff to take in condemnation in the proceeding actually pending a part of the land described in the Declaration of Taking and in the complaint; and each motion attempts summarily to strike that issue and position from the case."

He concluded that the issues raised by the motions to strike should not be disposed of summarily but should be set for trial by the court without a jury, and that

"At such trial the defendant former owner or owners of each tract in respect of which the point shall continue to be urged will be required to go forward with evidence considered to support the factual position taken in the answer and plaintiff will be required to produce any evidence on which it may rely in opposition."

The issue raised by Louise Mischke's answer came on for trial in June, 1959, before Judge Van Pelt, without a jury. Evidence was introduced, as directed in Judge Delehant's opinion of January 14, 1956, — that of Louise Mischke, in support of her allegation, tending to prove that, of the 700-acre tract taken from her by the Government, 42.5 acres were not needed for use in connection with the construction or operation of the dam and reservoir and were intended to be used for recreational purposes. There was evidence on behalf of the Government that the 42.5 acres were needed for use as means of access to the reservoir, as well as a place for the parking of cars and the launching of boats by persons visiting the reservoir for purpose of recreation.

The trial judge was fully aware that it was doubtful that the issue of the need or expediency of taking the 42.5 acres in controversy was subject to judicial review. In his unreported memorandum opinion, filed October 1, 1959, he said: "The difficult question is the Court's right, if any, to go behind the decision of the Secretary of Interior the Army." That presents the sole question which this Court is called upon to decide. There can be no question that the 1,712.89 acres were being acquired for a public purpose; that Congress had authorized the taking and had delegated to the Secretary of the Army the authority to select the lands necessary to be taken; and that among the lands selected by him was the 700-acre tract B-208-1 belonging to Louise Mischke.

As evidenced by his memorandum opinion, the trial judge gave careful consideration to the issue raised by the answer of Louise Mischke. We quote the following from the opinion:

"Under Section 40 U.S.C.A. 258A it is necessary for the United States of America to set forth the public use for which these lands are taken.

"Paragraph 3 of the Complaint alleges: `The use for which the property is to be taken is to adequately provide for flood control in the Missouri River Basin and for uses incident thereto. The land to be taken has been selected for acquisition by the United States for use in connection with the construction and establishment of the Gavins Point Dam and Reservoir in the Missouri River, and for such other uses as may be authorized by Congress or by Executive Order.\'

"The 42.5 acres is not needed for flood control and the Court so finds.

"It is not needed for a use authorized by Congress or Executive Order. This is substantiated by the fact that the Complaint has not attempted to set forth such a use. It is clear that its use is to be for recreation. It is clear that Plaintiff does not intend to develop that use but is going to turn it over to the State of Nebraska. The Court believes it clear that originally it was not contemplated to take land for or develop recreational areas.

"Without the request of Governor Crosby of Nebraska and Paul T. Gilbert Secretary of the Game, Forestation and Parks Commission of Nebraska the 42.5 acres would not be included in the taking. The taking is against the judgment of the Chief of the Real Estate Division in Omaha. This Court feels that the Secretary bowed to the Governor and Mr. Gilbert\'s wishes and therefore there was no adequate determining principle used in the taking. The result is, this Court believes, that the Secretary\'s action is thereby arbitrary and capricious.

"The Court finds that the landowner has maintained the burden on her of showing that the action was arbitrary and capricious and without an adequate determining principle. The facts of this case distinguish it from United States v. Willis 8 Cir., 211 F.2d 1, and that case is therefore not controlling here except on the burden of proof."

Based upon this determination, the trial court ordered that the Judgment on Declaration of Taking insofar as it affects Tract B-208-1 be modified so that the complaint in condemnation and the Judgment be dismissed as to the 42.5 acres, and that those acres be revested in Louise Mischke. This appeal by the Government followed.

If the trial judge had jurisdiction to review the determination of the Secretary of the Army relative to the necessity or expediency of the Government's acquisition of the lands which he had selected for condemnation, we would be of the opinion that the redetermination of the question by the judge had evidentiary support. It may be inferred from the evidence that, whatever use the 42.5-acre tract may have as a means for furnishing or improving access to the reservoir, that tract would largely be used and useful as a recreational area for persons visiting the reservoir.

For the purposes of this opinion, it may be assumed that it was unnecessary to include the 42.5 acres in Tract B-208-1; that the inclusion of them in that tract by the Secretary of the Army was due to the request of the Governor of Nebraska and the Secretary of its Game, Forestation and Parks Commission; and that the Government may intend to turn the 42.5 acres over to the State of Nebraska. Those, we think, properly are matters to be taken into consideration by the Secretary of the Army, and which could be of concern to Congress. We think they are not matters which would justify the entry of the order under review.

It is true that there are cases from which implications may be drawn...