US v. 1,378.65 ACRES OF LAND, VERNON CTY., MO., 80-5001-CV-SW-1.
| Decision Date | 12 June 1985 |
| Docket Number | No. 80-5001-CV-SW-1.,80-5001-CV-SW-1. |
| Parties | UNITED STATES of America, Plaintiff, v. 1,378.65 ACRES OF LAND, MORE OR LESS, SITUATE IN VERNON COUNTY, STATE OF MISSOURI; and Laurance C. Phister, et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Robert G. Ulrich, U.S. Atty., Kenneth E. Weinfurt, Asst. U.S. Atty., Kansas City, Mo., Charles J. Brennan, Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for plaintiff.
S. Preston Williams, North Kansas City, Mo., for defendants.
MEMORANDUM AND ORDERS
This case pends on defendants' "motion to amend judgment to include an award of costs, fees and expenses under 28 U.S.C. § 2412, as amended by The Equal Access to Justice Act or, in the alternative defendants' application for recovery of costs, fees and expenses against the United States under the Equal Access to Justice Act." Determination of that motion was delayed because of the pendency of appeals in the Eighth Circuit Court of Appeals in two condemnation cases consolidated on appeal as Case Nos. 82-1919, 83-1519.
After the Court of Appeals handed down its initial decision in the consolidated cases on August 14, 1984, counsel for both sides in response to Court inquiry stated that the pending motion could be decided on stipulations and the other data before the Court. Determination of the pending motion, however, was again delayed pending the Court of Appeals' grant of a rehearing in the consolidated cases.
The Court of Appeals handed down its final decision in the consolidated cases on December 28, 1984. United States v. 341.45 Acres of Land, St. Louis County, Minn., Edward M. Essling and United States v. 234.55 Acres of Land, Union County, Ark., 751 F.2d 924 (8th Cir.1984). That decision substantially modified the Court of Appeals' original decision in the consolidated cases. Both parties again, after inquiry by the Court, stated that the pending motion should be decided on the present record.
The parties stipulated to the following facts which we adopt as findings of fact:
1. The total fees and expenses appropriate to be awarded in this action to defendants should they prevail on their pending motion filed herein on May 2, 1984, is $22,380.
2. On December 6, 1978, the government extended an offer to the landowners in this case in the amount of $140,000. Subsequently, on August 8, 1979, the government extended to the landowners a final settlement offer in this case in the amount of $211,000.
3. On August 8, 1979, the landowners advised the government that they thought they could obtain an additional $100,000 over the appraisal of $211,000 if they went to Court.
4. Upon the trial of the issue of just compensation in this case, the landowners were awarded damages in the total amount of $325,000, said amount representing $114,000 more than the government's final settlement offer made to the landowners.
5. The appraisers employed and used by the government in this case, namely, James L. Sawyers, Oliver L. Dane and Allen Clark, have been used and employed by the government in numerous other condemnation cases and have regularly appraised property for the government in condemnation cases.
6. The government's evidence during trial as testified to by James L. Sawyers, was that the amount of just compensation due the landowners herein was $115,000, said amount being $96,000 below the government's final settlement offer and prior estimate of just compensation.
7. The government's ability to take the easements in question herein was not actively litigated by the parties.
8. The landowners, on the date of taking and subsequently, operated the subject property as a grain farm and for the harvesting of hardwood timber.
9. The landowners do not presently live on the subject property nor did they live on the subject property on the date of taking.
10. The landowners have employed tenant farmers for the operation of the farming business on the subject property.
11. The landowners have periodically hired a commercial logger to harvest and remove hardwood timber from the subject property, and the hardwood timber so removed is sold commercially.
12. There are two sets of improvements on the subject property.
13. On the date of taking, the combined net worth of Laurance C. Phister and Alice B. Phister, husband and wife, was greater than Two Million Dollars ($2,000,000) and less than Five Million Dollars ($5,000,000). On the date of taking, Harriet T. Phister had a net worth of less than One Million Dollars ($1,000,000).
14. On the date of taking, the defendants herein had less than 500 employees employed at the farming operation.
Thomas E. Barzee, Jr., an attorney with the law firm of Williams & Barzee, filed an affidavit on September 7, 1984 which catalogued that firm's record of its trials involving the condemnation of property for the Harry S. Truman Dam and Reservoir project. That affidavit, which is attached hereto as Appendix A, detailed the consistently higher Commissioners' award as compared to the government's estimated compensation as evidenced by the deposit placed with the Court pending ascertainment of just compensation. See Rule 71A(j), Federal Rules of Civil Procedure. The increase ranges from 14% to 3,316% with 5 of the 41 awards increased over 1000% and 17 more of the awards increased over 100%. Only 7 of the awards were increased by less than 50%.
On September 7, 1984 the government filed an affidavit of B.E. Upschulte, Chief, Real Estate Division, Kansas City District, Army Corps of Engineers, in response to the Barzee affidavit. Mr. Upschulte's affidavit stated that the offers made to defendants on December 5, 1978 and August 8, 1979 were based upon an approved Appraisal and Supplemental Appraisal Report, respectively, made by Mr. Oliver L. Dane. The affidavit further stated that Mr. Dane has testified in numerous condemnation hearings on the Truman Project after being found by the Land Commission as qualified to express his opinion concerning land values.
On October 31, 1984 the government filed a second affidavit of B.E. Upschulte. That affidavit provided information on eight separate projects in the Kansas City District and listed the years between 1965 and 1984 in which the government acquired property on each project, the total number of tracts acquired (10,560), the tracts acquired by purchase and the number of tracts acquired by condemnation (2,297). The chart included in the affidavit shows that 1,897 tracts in the Truman Project were subject to condemnation proceedings and that 1,029 of those 1,898 tracts were actually tried before the Land Commission or a Special Master. The second affidavit established that only 596 of the 1,898 tracts were settled by stipulation.
Mr. Upschulte's second affidavit also included an attached list of more specific information in regard to the 41 cases catalogued in Mr. Barzee's affidavit. That list included information for each case in regard to the deposit, the award, the percentage of award over deposit, the names of the appraisers and landowners who testified to value, the estimates of compensation, and the difference between the estimated value and the amount of the award.
The data furnished by the government established that in all 41 cases the government's testimony as to the amount of just compensation was substantially less than the Land Commission award. In only three cases was the government appraiser's testimony in regard to the amount of just compensation closer to the award than the landowner's appraiser's testimony. In all 41 cases the government's deposit at the time it filed its declaration of taking was far below the Land Commission's eventual award. In many of the cases the government offered testimony that its deposit either reflected the amount of just compensation that should be awarded or offered testimony that an amount less than the deposit should be awarded.
As will be apparent from the list of cases which we attach hereto as Appendix B, the government, for the most part, offered testimony which attempted to justify the deposit made under the Declaration of Taking Act as the amount of just compensation to be awarded. In only a handful of cases did the government adduce testimony which recognized that the amount of the deposit did not come close to reflecting the fair market value of the tract condemned.
Mr. Oliver Dane, the government's appraiser in this case, also testified in five of the cases on the list. Mr. Dane's testimony ranged from an evaluation of $14,600 to $79,550 below the award in the five listed cases. The government did not submit any data on cases other than those catalogued by Mr. Barzee. The data presented in the government's affidavit establishes that the testimony of the government's appraisers in general and that of Mr. Dane in particular has consistently been substantially lower than the Land Commission award.
The Eighth Circuit Court of Appeals concluded in the decision of two land condemnation cases consolidated for appeal that "the EAJA does apply to condemnation actions" and that "for purposes of § 2412(d) the term `prevailing party' may include a property owner who wins by judgment or negotiation and settlement more than the government offered or admitted liability for in a condemnation case." United States v. 341.45 Acres of Land, supra, 751 F.2d at 936 and 937, respectively.
The Court of Appeals further concluded that, dependent upon the totality of the prelitigation and trial circumstances of the case, the government's position in refusing to offer more money as just compensation could, in a particular case, be said to be substantially justified "if its offer is consistent with appraisals upon which the government is reasonably entitled to rely." (Emphasis ours) Id. at 942. The Court of Appeals reaffirmed and quoted the...
To continue reading
Request your trial
-
U.S. v. 1,378.65 Acres of Land, More or Less, Situate in Vernon County, State of Mo.
...second offer, stating that they believed they could secure $100,000 more through a court proceeding. See United States v. 1,378.65 Acres of Land, 614 F.Supp. 594, 595 (W.D.Mo.1985) (stipulated findings of fact) (1,378 Acres ). The Government then proceeded to file a declaration of taking in......