United States v. STATE OF SOUTH DAKOTA GAME, FISH & P. DEPT.

• Decision Date: 19 May 1964
• Docket Number: No. 17354.,17354.
• Parties: UNITED STATES of America, Appellant, v. STATE OF SOUTH DAKOTA GAME, FISH AND PARKS DEPARTMENT, Izaak Walton League, Boy Scouts of America, Girl Scouts of America and Pierre Country Club, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

329 F.2d 665 (1964)

UNITED STATES of America, Appellant, v. STATE OF SOUTH DAKOTA GAME, FISH AND PARKS DEPARTMENT, Izaak Walton League, Boy Scouts of America, Girl Scouts of America and Pierre Country Club, Appellees.

No. 17354.

United States Court of Appeals Eighth Circuit.

April 8, 1964.

Rehearing Denied May 19, 1964.

Edmund B. Clark, Atty., Dept. of Justice, Lands Division, Washington, D. C., made argument for appellant and Ramsey Clark, Asst. Atty. Gen., Washington, D. C., Harold C. Doyle, U. S. Atty., John L. Wilds, Asst. U. S. Atty., Sioux Falls, S. D., and Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., were with him on the brief.

John B. Wehde, Asst. Atty. Gen., State of South Dakota made argument for State of South Dakota and Warren W. May of Martens, Goldsmith, May & Porter, Pierre, S. D., made argument for lessee defendants-appellees. Frank L. Farrar, Atty. Gen., State of South Dakota; Fred Hendrickson, Asst. Atty. Gen., State of South Dakota were with them on the brief.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and DAVIES, District Judge.

RONALD N. DAVIES, District Judge.

This case reaches us on appeal from a judgment rendered in the United States District Court of South Dakota in eminent domain proceedings in which 848.26 acres of land had been taken and for which a jury awarded appellees a total of $1,062,250.00. Jurisdiction in the court below was invested under 28 U.S.C. § 1358. Jurisdiction in this court is based upon 28 U.S.C. § 1291.

There is here involved the condemnation of the indicated acreage of South Dakota land in conjunction with the Big Bend Reservoir project. The area is commonly described as Farm Island and has for a long time been used as a public park. Although the realty was originally an island in the Missouri river, it has been connected at both ends to the mainland by fill and accretion, thus forming a body of water between the connecting strips called Hipple Lake. The nature of the State's interest is adequately recited in appellant's brief, but we set out so much thereof here as may be necessary to an understanding of it.

By an 1889 Act of Congress, 25 Stat. 888, there was ended a series of negotiations with Sioux Indians which provided for a division of the Sioux Reservation and opened the lands to entry, with the exception of three islands in the Missouri which were withheld from entry in identical terms. The provision for Farm Island was as follows (p. 897):

"Farm Island, an island in the Missouri River near Pierre, in the Territory of Dakota, and now a part of the Sioux Reservation, is hereby donated to the said city of Pierre: Provided further, That said city of Pierre shall formally accept the same within one year from the passage of this act, upon the express condition that the same shall be preserved and used for all time entire as a public park, and for no other purpose, to which all persons shall have free access; and said city shall have authority to adopt all proper rules and regulations for the improvement and care of said park; and upon the failure of any of said conditions the said island shall revert to the United States, to be disposed of by future legislation only."

In 1937 by Act of Congress, 50 Stat. 648, Farm Island was designated as a Wild Game Refuge and provision was made for criminal penalties for violation of provisions of the Act. In June of 1940, 54 Stat. 405, the Congress specified that the City of Pierre, South Dakota, could own and operate certain recreation facilities and lease land for certain purposes, providing all receipts therefrom should be used for development and maintenance of the Island; and ultimately in August of 1947, 61 Stat. 740, the Congress authorized the City of Pierre to transfer its interest in Farm Island to the South Dakota Department of Game, Fish and Parks to be "used only for such purposes as are now or may hereafter be authorized by the laws of the State of South Dakota, exclusive of said Commission's right to sell the property."

The State of South Dakota resisted the condemnation on the grounds of lack of authority to condemn. The District Court denied the State's motion to dismiss. United States v. 929.70 Acres of Land, et cetera, D.C.S.D., 205 F.Supp. 456. We think the District Court correctly refused to dismiss the proceedings.

Appellant asserts that the District Court erred in rejecting market value as the method of compensation. We address ourselves first to that issue since in our view it is of paramount importance and its resolution determinative of our disposition of this appeal.

In Kimball Laundry Co. v. United States, 338 U.S. 1, 5, 69 S.Ct. 1434, 1437, 93 L.Ed. 1765, the United States Supreme Court, speaking through Mr. Justice Frankfurter, said:

"* * * `Value is a word of many meanings.\' Southwestern Bell Telephone Co. v. Public Service Comm., 262 U.S. 276, 310 43 S.Ct. 544, 554, 67 L.Ed. 981. For purposes of the compensation due under the Fifth Amendment, of course, only that `value\' need be considered which is attached to `property,\'2 but that only approaches by one step the problem of definition. The value of property springs from subjective needs and attitudes; its value to the owner may therefore differ widely from its value to the taker. Most things, however, have a general demand which gives them a value transferable from one owner to another. As opposed to such personal and variant standards as value to the particular owner whose property has been taken, this transferable value has an external validity which makes it a fair measure of public obligation to compensate the loss incurred by an owner as a result of the taking of his property for public use. In view, however, of the liability of all property to condemnation for the common good, loss to the owner of non-transferable values deriving from his unique need for property or idiosyncratic attachment to it, like loss due to an exercise of the police power is properly treated as part of the burden of common citizenship. See Omnia Commercial Co. v. United States, 261 U.S. 502, 508-509 43 S.Ct. 437, 438, 67 L.Ed. 773. Because gain to the taker, on the other hand, may be wholly unrelated to the deprivation imposed upon the owner, it must also be rejected as a measure of public obligation to requite for that deprivation. McGovern v. New York, 229 U.S. 363 33 S.Ct. 876, 57 L.Ed. 1228; United States ex rel. T. V. A. v. Powelson, 319 U.S. 266 63 S.Ct. 1047, 87 L.Ed. 1390.

"2. U.S.Const. Amend. V: `* * * nor shall private property be taken for public use, without just compensation.\'

"The value compensable under the Fifth Amendment, therefore, is only that value which is capable of transfer from owner to owner and thus of exchange for some equivalent. Its measure is the amount of that equivalent. But since a transfer brought about by eminent domain is not a voluntary exchange, this amount can be determined only by a guess, as well informed as possible, as to what the equivalent would probably have been had a voluntary exchange taken place. If exchanges of similar property have been frequent, the inference is strong that the equivalent arrived at by the haggling of the market would probably have been offered and accepted, and it is thus that the `market price\' becomes so important a standard of reference.<sup>3</sup> But when the property is of a kind seldom exchanged, it has no `market price,\' and then recourse must be had to other means of ascertaining value, including even value to the owner as indicative of value to other potential owners enjoying the same rights. Cf. Old South Association in Boston v. Boston, 212 Mass. 299, 99 N.E. 235."

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