United States v. Willis, 14827.

• Decision Date: 07 June 1954
• Docket Number: No. 14827.,14827.
• Parties: UNITED STATES v. WILLIS.
• Court: U.S. Court of Appeals — Eighth Circuit

211 F.2d 1 (1954)

UNITED STATES v. WILLIS.

No. 14827.

United States Court of Appeals Eighth Circuit.

March 18, 1954.

Rehearing Denied April 2, 1954.

Writ of Certiorari Denied June 7, 1954.

S. Billingsley Hill, Atty., Department of Justice, Washington, D. C. (J. Edward Williams, Acting Asst. Atty. Gen., R. S. Wilson, U. S. Atty., Hugh M. Bland, Sp. Asst. to U. S. Atty., Fort Smith, Ark., and Roger P. Marquis, Atty., Department of Justice, Washington, D. C., with him on the brief), for appellant.

Virgil D. Willis and W. S. Walker, Harrison, Ark., submitted brief for appellee.

Before JOHNSEN and COLLET, Circuit Judges, and NORDBYE, District Judge.

Writ of Certiorari Denied June 7, 1954. See 74 S.Ct. 871.

JOHNSEN, Circuit Judge.

The District Court, on motion of a landowner, set aside a judgment of taking, as to a tract of 80.9 acres, which it had previously entered upon a petition and declaration of the United States seeking to condemn the tract as part of the approximately 101,000 acres of land to be used for the construction and operation of Bull Shoals Dam and Reservoir on the White River in Arkansas and Missouri, and, further, it dismissed the petition and declaration of taking as against the tract. The Government has appealed.

The question which the court purported to resolve, as a basis for its action, was, as stated in its reported opinion 108 F.Supp. 454, 460, "whether the Secretary of the Army and the Corps of Engineers acted in bad faith or so capriciously and arbitrarily in taking the defendant's land that their action was without adequate determining principle or was unreasoned."

The court held that these officials had so acted, in having included the 80.9-acre tract in the project. It said that their act of inclusion had been without "adequate determining principle", in that the general contour line which they had used in selecting and acquiring land for the project had been 700 feet mean sea level, while the tract involved had an elevation of over 800 feet, except for three small ravine-areas of not more than one-quarter acre each, which were below 700 feet mean sea level, and further that "at no place in the project did the government take land, lying above the 700 foot contour line, in any such amounts as that which it seeks to take in this action" — remnants or fringe parcels, not over 10 acres in area, lying above the 700 foot contour line, "were taken along with the adjoining land when in the same ownership", but otherwise, "when the taking line crossed the 700 foot contour line the small areas lying in ravines and other such places were disregarded and not taken." 108 F.Supp. at page 458.

The court further said that the action of the officials had also been "unreasoned", in that "they utterly disregarded the location of the land¹ and the admitted fact that it would never be inundated²; that it was a compact tract; that standing alone it was an economic unit³, aside from its use with other adjoining land in Missouri owned by defendant; that there were ample means of ingress and egress⁴; that it was not a remnant or portion of a tract but was an entire tract and a separate unit in itself." 108 F.Supp. at pages 462 and 463.

The court thus undertook to review the administrative determination of necessity and quantity which had been made, within the qualification of bad faith or arbitrariness and capriciousness, which has sometimes been said — mostly by way of dictum⁵ — to warrant judicial overthrow of administrative judgment as to condemnation taking, in relation to the legislative authority granted, and which the Supreme Court itself apparently left open in United States v. Carmack, 329 U.S. 230, 67 S.Ct. 252, 91 L.Ed. 209, when it said, "In this case, it is unnecessary to determine whether or not this selection could have been set aside by the courts as unauthorized by Congress if the designated officials had acted in bad faith or so `capriciously and arbitrarily' that their action was without adequate determining principles or was unreasoned." 329 U.S. at page 243, 67 S.Ct. at page 258.

Underlying the court's decision here seems to have been a belief on the part of the trial judge that the 80.9-acre tract was being taken, not for any purpose of relationship to the dam and reservoir project itself, but for some collateral use. Thus, the court declared that "the facts unmistakably show that someone connected with the government has an idea that the tract of land, situated as it is, is an excellent site for the erection of private homes and clubs, and no doubt the government could recoup some of the cost of constructing the dam by taking land so situated and * * * later using it for reforestation, agricultural, grazing and recreational purposes." 108 F.Supp. at page 461.

There was evidence showing that, prior to the institution of condemnation for the dam and reservoir project, the Corps of Engineers had exhibited a map of the entire reservoir area to the public at Harrison, Arkansas, on which the 80.9-acre tract was designated as the "Blue Hole Home and Club Sites", and that an informational bulletin also...