United States v. Waymire, 4517.

Decision Date28 February 1953
Docket NumberNo. 4517.,4517.
Citation202 F.2d 550
PartiesUNITED STATES v. WAYMIRE et al.
CourtU.S. Court of Appeals — Tenth Circuit

Edmund B. Clark, Attorney, Department of Justice, Washington, D. C. (James M. McInerney, Asst. Atty. Gen., John J. Hickey, U. S. Atty., Cheyenne, Wyo. and John F. Cotter, Attorney, Department of Justice, Washington, D. C., on the brief), for appellant.

H. F. Fellows, Rapid City, S. D. (Pat Morrison, Mobridge, S. D., and George F. Guy, Cheyenne, Wyo., on the brief), for appellees.

Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

Needed for the construction of a dam and appurtenant facilities, a reservoir site, and roadways, all in connection with the Keyhole project of the Bureau of Reclamation, Department of the Interior, the United States instituted this proceeding to acquire by condemnation the fee title to certain lands, save the mineral rights therein, flowage easements in certain lands, and roadway easements in certain lands in Crook County, Wyoming. Contemporaneously with the institution of the proceeding, the Government filed a conventional declaration of taking and deposited in the registry of the court the sum estimated as just compensation for the estate taken in the lands. On July 30, 1951, the Government filed in the proceeding an application for the appointment of commissioners to ascertain and determine the compensation to be paid to the owners and others interested in the lands taken; and on the same day, an order was entered pursuant to the laws of Wyoming appointing commissioners. On August 10, the Government filed a demand for jury trial of the issue of just compensation. On August 22, defendants Bertha Waymire, Emmaline E. McKean, Paul J. McKean, Clifford E. Sward, Francis E. Sward, John E. Schuricht, and Benjamin H. Buckmiller, owners of certain tracts of the land taken, filed an application for the appointment of a commission in accordance with the pertinent provision of Fed.Rules Civ. Proc. rule 71A, 28 U.S.C.A.; and on September 5, the court entered an order vacating the previous order appointing commissioners and appointing a commission under Rule 71A. The commission consisted of the same persons previously appointed as commissioners. The commission conducted extended hearings and filed awards. The Government filed exceptions to the awards. The court set aside an award to Bertha Waymire and her husband for severance damages to the land owned by them, reduced the awards made for four tracts, and sustained the remaining awards. Judgment was entered accordingly, and the United States appealed.

The judgment is assailed on the ground that the court erred in denying the Government's demand for a jury trial of the issue of just compensation. It is said that the action of the court in granting the application of the owners of land for the appointment of a commission amounted to the wrongful denial of the demand for a jury trial. Subdivision (h) of Rule 71A provides in substance that any party to a condemnation proceeding pending in the United States Court may have a trial by jury of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix, unless the court in its discretion orders that, because of the character, location, or quantity of the property to be condemned, or for other reason in the interest of justice, the issue of just compensation shall be determined by a commission of three persons appointed by the court. Under such provision in the rule, any party to a condemnation proceeding is ordinarily entitled as a matter of right to trial by jury of the issue of just compensation for the property taken if demand therefor is made within the time fixed in the rule. And where the demand is seasonably made, its denial constitutes error unless, due to the character, location, or quantity of the property to be condemned, or some other reason in the interest of justice, the court in the appropriate exercise of its sound judicial discretion appoints a commission. United States v. Theimer, 10 Cir., 199 F.2d 501. But in the exceptional case where extraordinary circumstances or conditions exist with respect to the character, location, or quantity of the property to be condemned, or for other reason in the interest of justice, the court may in its discretion appoint a commission to determine the issue of just compensation. United States v. Wallace, 10 Cir., 201 F.2d 65.

This was not a proceeding for the condemnation of a single tract of land or a single unit of property uniform in kind, easy of description, and located reasonably adjacent to the place at which the court sits. In addition to other small tracts, it had for its purpose the taking of property and property rights from five ranches including various and varying improvements located more than one hundred and fifty miles from the nearest place at which the court sits. The land varied in kind, character, and adaptability. Some was bottom land, some meadow land, some bench land, and some pasture or grazing land. Some of the bottom land produced alfalfa, some was devoted to the production of alfalfa seed, and some was used for the growing of other crops. And due to its location and other natural conditions, some of the land furnished excellent shelter and protection for livestock in the winter. In the nomenclature of those engaged in the livestock industry, the several properties constituted balanced ranches, containing bottom or meadow land for the production of crops and the running of livestock in the winter, land furnishing natural shelter and protection for livestock in the winter, and land adapted to grazing livestock in the spring, summer, and autumn. Not all of the land was taken. In some instances, not all of the land of the same kind was taken. In some instances only part of the bottom land was taken, in some only part of the meadow land was taken, in some only part of the bench land was taken, in some only part of the grazing land was taken, and in some the land not taken was left in the form of a small, separated, and isolated tract or strip almost useless and of little value as a constitutent part of the ranch to which it previously belonged. The properties were no longer balanced ranches, well suited and adapted to the production, maintenance, and sale of livestock. The situation presented multiple circumstances calling for the consideration of various elements in arriving at just compensation. These elements included the value of land taken in fee, severance value, flowage easement value, value of improvements, and other factors inhering in the situation. In view of all these facts and circumstances considered in their totality, it cannot be said that the court erred in appointing a commission to fix just compensation for the various properties and rights in properties to be condemned.

The next ground of attack upon the judgment is that even if a jury trial were rightly denied, the court erred in limiting the scope of its review of the testimony taken before the commission. Certain statements contained in the...

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    ...law, or because it is unsupported by substantial evidence or contrary to the clear weight of the evidence. United States v. Waymire, supra, 202 F.2d at pages 553-554. A conclusion of law must have a proper legal basis. Busser v. United States, 3 Cir., 1942, 130 F.2d 537, at page 539; Duques......
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