United States v. Phillips, 286
| Decision Date | 22 June 1943 |
| Docket Number | 290,291,301.,No. 286,286 |
| Citation | 50 F. Supp. 454 |
| Parties | UNITED STATES ex rel. and to Use of TENNESSEE VALLEY AUTHORITY v. PHILLIPS et al. |
| Court | U.S. District Court — Northern District of Georgia |
H. James Hitching, of Chattanooga, Tenn., and L. B. Bolt, Jr., of Knoxville, Tenn., for the United States.
Clint W. Hager, of Atlanta, Ga., and John M. Johnson, of Gainesville, Ga., for Charles V. Phillips et al.
Boyd Sloan, of Gainesville, Ga., and O. L. Foster, of Hiawassee, Ga., for Joseph S. Kimsey.
Before UNDERWOOD, RUSSELL, and LOVETT, District Judges.
These four proceedings for condemnation of lands, brought under the Tennessee Valley Authority Act, 48 Stat. 58, 16 U.S.C.A. § 831 et seq., are here on exceptions to the awards of Commissioners. The controlling question for determination is the value of the several parcels of land taken.
Commissioners were appointed pursuant to § 25 of the Act, 48 Stat. 70, 16 U.S.C.A. § 831x, who conducted hearings, heard testimony, viewed the premises and made their awards. Dissatisfied with their findings of value, the United States has filed exceptions, claiming, first, the compensation allowed in each case is excessive, and, secondly, that the Commissioners received evidence on the hearings that was inadmissible, and their findings were vitiated because influenced by that evidence. In this court, as before the Commissioners, motions to strike or exclude the evidence charged to have been illegally received are made.
As the statute requires this court to pass de novo upon the proceedings and to fix the value of the property sought to be condemned regardless of the award previously made by the Commissioners (16 U.S.C.A. § 831x), we may put to one side the urge that the findings of the Commissioners were tainted by consideration of inadmissible testimony. We can not blind ourselves, however, to the fact that the Commissioners lived near the community where the lands are located, and none of the members of this court do, and that they had the benefit of personal inspections of the land taken, and we have not as the lands are now entirely or partially inundated by the waters that flooded that area upon the construction of a dam by the Authority. Cf. United States ex rel. for the Use of T. V. A. v. Powelson, U.S., 63 S.Ct. 1047, 87 L.Ed. ___, decided May 17, 1943.
The cases are here on the records as made before the Commissioners. Orders were taken some weeks ago affording the parties, under named conditions, an opportunity to supplement the evidence heard by the Commissioners, but apparently all parties are satisfied that the facts were sufficiently developed, and no one asks for additional evidence to be heard.
We deal with the motion to exclude evidence first. The United States seeks to expunge from the record practically all of the oral testimony given by the witnesses for the land-owners, saying as reasons that the opinions of these witnesses touching the market value of the lands taken were shown to have been formed in one or more of several different inadmissible ways, i.e., capitalization of income, what is called the retail or summation method, comparisons of sales of dissimilar property, or prices paid by the T. V. A. for other lands. It is also argued that some of the witnesses included consequential damages not allowable, original cost of property taken, special value to the owner or the T. V. A., alleged offers, etc., in making up their estimates of market value, and that these facts rendered their testimony valueless. If these motions are sustained we are left only with the valuations placed on the lands by the government's witnesses.
The lands taken in condemnation are located in northeast Georgia, near the North Carolina line, in the Blue Ridge mountains. They consist chiefly of farm homesteads, occupied and cultivated by the owners. Homesites have been improved, the usual buildings erected, and in some of the cases the owners over a period of years have increased the yield of crops by intelligent planting, drainage, conservation and improvement of soils. Lands are infrequently sold in the community. Usually the homesteads pass from father to child by inheritance or will, and members of the same family for succeeding generations occupy and cultivate them. The most valuable lands are usually found in the valleys and are called bottom lands. They are very fertile. The next best grade is "second-bottoms" or "bench-lands". The higher one goes up the mountain side generally the less valuable the land becomes, especially if there is no timber or improvements of value located there. Here the lower and most valuable lands, where the whole homestead is not taken, are those which the power development inundates and which are therefore condemned.
The witnesses for the land-owners are chiefly neighbors living in the community, many of whom are also engaged in farming, owning lands somewhat similar if not identical, and familiar with the lands in controversy. Upon direct examination these witnesses after stating substantially the foregoing facts and asserting they were familiar with market values of land and after having explained to them what was meant by market value, gave in dollars and cents their opinions as to the values. Thereafter, upon cross examination, they were examined at length, and somewhat artfully, as to their opinions of the values of the constituent elements going to make up the whole farm unit, i.e., the value per acre of the different grades of land, value of improvements, orchards, timber, etc., and in some cases as to the productivity and income from annual crops as well as sales of other lands, and then summing it all up counsel would ask if the sum of the several values was the way the witnesses arrived at their valuations. Many answered yes; some qualified their answers. Upon re-direct examination, again being interrogated by skilled counsel, they would re-iterate their opinions of market value, i.e., what a willing buyer and willing seller would agree upon as value in fair negotiation, both fully informed as to all the elements making up value, neither acting under compulsion; and they would add that while the several factors about which government's counsel had inquired were given due consideration by them, they were not controlling, and they would also say they gave due effect to their general knowledge of values in that section of the state. Under these circumstances we regard the objections to the testimony as more properly going to its weight or effect than to its admissibility, its credit, not its competency.
Giving due recognition to the rules invoked, viz., that a landowner may not prove separately the values of various uses to which the land is adapted, and then add the separate items of value to obtain the compensation for the whole (Morton Butler Timber Co. v. United States, 6 Cir., 91 F.2d 884, 887, 888; United States v. Meyer, 7 Cir., 113 F.2d 387, 397; United States v. Wise, 4 Cir., 131 F.2d 851, 852), that uncertain, speculative, anticipated profits may not be capitalized to establish value (Welch v. Tennessee Valley Authority, 108 F.2d 95, 96 (14, 15, 16), 100, 101, certiorari denied Welch v. United States ex rel. for Use of Tennessee Valley Authority, 309...
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Southern Ry. Co. v. Miller
...that the inadmissibility of the evidence was beyond doubt.' We call attention to United States ex rel. and to Use of Tennessee Valley Authority v. Phillips, D.C., 50 F.Supp. 454, which originated in Georgia. In that case Judges Underwood, Russell and Lovett, held: 'The compensation to be aw......