United States v. Twin City Power Company of Georgia

• Decision Date: 16 April 1958
• Docket Number: No. 16743.,16743.
• Citation: 253 F.2d 197
• Parties: UNITED STATES of America, Appellant, v. TWIN CITY POWER COMPANY OF GEORGIA et al., Appellees. TWIN CITY POWER COMPANY OF GEORGIA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

253 F.2d 197 (1958)

UNITED STATES of America, Appellant, v. TWIN CITY POWER COMPANY OF GEORGIA et al., Appellees.

TWIN CITY POWER COMPANY OF GEORGIA, Appellant, v. UNITED STATES of America, Appellee.

No. 16743.

United States Court of Appeals Fifth Circuit.

February 28, 1958.

Rehearing Denied April 16, 1958.

Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, Harold S. Harrison, Dept. of Justice, Washington, D. C., William C. Calhoun, U. S. Atty., Augusta, Ga., W. Reeves Lewis, Asst. U. S. Atty., Savannah, Ga., for appellant.

David W. Robinson, Columbia, S. C., for appellees.

Before RIVES, TUTTLE and BROWN, Circuit Judges.

RIVES, Circuit Judge.

These are appeals from three judgments rejecting the findings and report of a commission appointed under Rule 71A(h),¹ and determining, by the district court itself, the compensation owed by the United States to the Twin City Power Company of Georgia for 2908.35 acres of land located in Lincoln County, Georgia and condemned for the construction of the Clark Hill Reservoir on the Savannah River in South Carolina and Georgia.

The district courts in South Carolina and in Georgia appointed the same commissioners. Pursuant to an opinion by Judge Wyche of the South Carolina District Court reported in United States v. 1532.63 Acres of Land, 1949, 86 F.Supp. 467, each district court originally ruled that the commission could value the lands for hydro-electric power development. The commission found that the highest and most profitable use for which the property was adaptable was that of a reservoir site for dams on the Savannah River, and that for such use the value of the lands in Georgia was $785,132.26. Each district court adopted the report of the commission as to the value of the lands in that State. See the opinion of Judge Wyche reported in United States v. 3,928.09 Acres of Land, D.C.1953, 114 F.Supp. 719. The Fourth Circuit affirmed, United States v. Twin City Power Co., 1954, 215 F.2d 592, as did this Court, 1955, 221 F.2d 299. The Supreme Court reversed on the ground that the United States did not have to pay the value of the lands for a reservoir site on a navigable river. United States v. Twin City Power Co., 1956, 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240; Id., 350 U.S. 956, 76 S.Ct. 346, 100 L.Ed. 832, rehearing denied 350 U.S. 1009, 76 S.Ct. 648, 100 L.Ed. 871.

At the request of counsel for the parties, the commission had made alternative findings of fact, and had determined an agricultural and wild forest valuation of the lands in Georgia to be $90,548.25, only about 11.7% of their value for power purposes. The district court had originally declined to pass upon that alternative valuation. On remand after the Supreme Court decision, the district court held that the commission's alternative findings based on agricultural and forest values were clearly erroneous, made its own findings, and entered judgments accordingly for a total of $222,710.95, more than twice the value for such uses as determined by the commission.² The South Carolina District Court likewise held the commission's findings clearly erroneous and made its own findings. Its judgment has been affirmed in an opinion by Chief Judge Parker of the Fourth Circuit in which that Court held:

"We review the District Judge, not the commissioners; and under Rule 52(a) we may not set aside his findings unless they are clearly erroneous. When he has set aside the findings of a master or commissioners, we must give consideration to the fact that they saw and heard the witnesses and that he did not, and we must pass upon his findings with this in mind; but, unless we can then say that his findings are clearly erroneous when viewed in this light, we must accept them. In the case before us, we cannot say that the findings of the judge were clearly erroneous. On the contrary, we think that he has demonstrated that they rest upon a reasonable basis and that his overruling of the report of the commissioners and adopting a valuation different from theirs should be sustained." United States v. Twin City Power Co., 1957, 248 F.2d 108, 112.

The Government insists that the question for this Court is whether the findings of the commission are clearly erroneous, and that "the Fourth Circuit has placed itself in direct conflict with established law in this respect."

In support of its insistence, the Government cites the following cases: Morris Plan Industrial Bank v. Henderson, 2 Cir., 1942, 131 F.2d 975, 976-977; National Labor Relations Board v. Remington Rand, Inc., 2 Cir., 1942, 130 F.2d 919, 925; Krinsley v. United Artists Corp., 7 Cir., 1955, 225 F.2d 579, 582. To that list many other persuasive decisions might be added. Judge Parker had himself in an earlier case, Mutual Savings & Loan Association v. McCants, 4 Cir., 1950, 183 F.2d 423, 426, 427, taken note of the conflict of authority on the question. In Phillips v. Baker, 5 Cir., 1948, 165 F.2d 578, 581, Chief Judge Hutcheson had said for this Court:

"Before proceeding to deal with the separate classes of appeals, a word or two of general application will be in order. The first and most important is that in dealing with the questions presented for our decision, we are not dealing with the ordinary situation of an appeal from findings of fact of a district judge which, under Rule 52(a), Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, `shall not be set aside unless clearly erroneous\'. We are, on the contrary, dealing with findings made by the district judge, adverse to those of the referee, in respect to matters primarily remitted for decision to the referee and as to which it is provided6 that `the judge shall accept his findings of fact unless clearly erroneous\'. Under that rule `we have the same duty as the district court to accept the referee\'s findings, unless they are clearly erroneous\'.7 Under that rule, we, of course, take into consideration the fact that the district judge has refused to accept the referee\'s findings. But we do so not in determining whether the district judge\'s findings are clearly erroneous for that is not the matter before us. We do it in determining whether the referee\'s findings are, and we do this with the clearest recognition that the duty to determine whether the referee\'s findings `must be accepted\' and whether the district judge has erred in not accepting them is not the district judge\'s but ours.

"6. General Order of Bankruptcy 47, 11 U.S.C.A. following section 53.

"7. Mergenthaler v. Dailey, 2 Cir., 136 F.2d 182, 184."

Finally, the Supreme Court in Anderson v. Mt. Clemens Pottery Co., 1946, 328 U.S. 680, 689, 66 S.Ct. 1187, 1193, 90 L. Ed. 1515, had said:

"* * * Our examination of the record leads us to acquiesce in these findings since they are supported by substantial evidence and are not clearly erroneous. And the court below correctly held that the District Court erred in failing to accept these findings and in creating a formula of compensation based upon a contrary view. Rule 53(e) (2) of the Federal Rules of Civil Procedure. * * * See Tilghman v. Proctor, 125 U.S. 136, 149-150 8 S.Ct. 894, 31 L.Ed. 664; Davis v. Schwartz, 155 U.S. 631, 636-637, 15 S.Ct. 237, 239, 39 L.Ed. 289."

The holdings of the Supreme Court in Anderson v. Mt. Clemens Pottery Co., supra, and of this Court in Phillips v. Baker, supra, are each fully sustained by the unquestioned requirement of the several rules (see footnote 1, supra, and the rule in bankruptcy referred to by Judge Hutcheson in Phillips v. Baker, supra) designed to govern the conduct of the trial court.³ All of the authorities agree that if the trial court has failed to observe that requirement its judgment cannot be sustained on appeal.⁴

The really difficult problem arises when the district court, presumably cognizant of the "unless clearly erroneous" requirement of Rule 53(e) (2),⁵ has rejected some or all of the commission's or the master's findings of fact, and in turn Rule 52(a) commands the appellate court not to set aside the district court's findings of fact "unless clearly erroneous." See 5 Moore's Federal Practice, 2d ed., Paragraph 53.124, p. 2987.

It must be remembered that the "clearly erroneous" burden, both under Rule 53(e) (2),⁶ and Rule 52(a),⁷ is not a single definite and certain burden, but varies in accordance with the differing opportunities and presumably different capacities of the several tribunals. Among other considerations, for example, that burden is especially strong when the commission has viewed and inspected the properties, or when credibility is questioned and the commission has had the opportunity to see and hear the witnesses, and is lighter when inferences for and deductions from opinion evidence may be drawn as well by the district court as by the commission, and still lighter when the appellate court in turn reviews the inferences drawn by the district court from the written transcript of evidence, though the "clearly erroneous" rule is still applicable. — See Galena Oaks Corporation v. Scofield, 5 Cir., 1954, 218 F.2d 217, 219.

There appears to be some similarity between the situation presented when the Supreme Court reviews a decision of a court of appeals denying enforcement to the order of an administrative tribunal⁸ and that presented when a court of appeals reviews a judgment of a district court setting aside the report or findings of a master, referee, or commission. The governing rules are not, however, precisely the same, and the analogy must be applied with caution.

The decisions of the state courts are similarly in conflict as to the scope or rule of appellate review when the trial court and the master or referee do not agree. 5 C.J.S. Appeal and Error § 1670. Much of that conflict can probably be explained by the differing statutes or rules in force in the several states.

Indeed, the elaborate discussion in which we have indulged would seem to be quite unnecessary when it is observed...