Welch v. Tennessee Valley Authority

• Decision Date: 12 December 1939
• Docket Number: 7973,No. 8001.,No. 7972,7972,8001.
• Parties: WELCH et ux. v. TENNESSEE VALLEY AUTHORITY (two cases). LEWIS et al. v. SAME.
• Court: U.S. Court of Appeals — Sixth Circuit

108 F.2d 95 (1939)

WELCH et ux. v. TENNESSEE VALLEY AUTHORITY (two cases). LEWIS et al. v. SAME.

Nos. 7972, 7973, No. 8001.

Circuit Court of Appeals, Sixth Circuit.

December 12, 1939.

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S. E. Hodges and R. R. Kramer, both of Knoxville, Tenn. (C. K. Ellis, of Rutledge, Tenn., and Hobart Atkins, of Knoxville, Tenn., on the brief), for appellants Welch.

R. R. Kramer and J. V. Overton, both of Knoxville, Tenn. (Poore, Kramer & Cox, of Knoxville, Tenn., on the brief), for appellants Lewis and others.

William C. Fitts, Jr., of Knoxville, Tenn., and H. James Hitching, of Chattanooga, Tenn. (James Lawrence Fly, of Knoxville, Tenn., Herbert S. Marks, of Portland, Or., Alvin Ziegler, of Chattanooga, Tenn., Frank Montgomery, of Knoxville, Tenn., and Bessie Margolin and Philander Claxton, Jr., both of Washington, D. C., on the brief), for appellee.

Chas. I. Dawson and Woodward, Dawson & Hobson, all of Louisville, Ky., amici curiae.

Before ALLEN, HAMILTON and ARANT, Circuit Judges.

HAMILTON, Circuit Judge.

These three appeals are from awards rendered by a statutory three-judge Federal District Court in condemnation proceedings brought by the United States for the use and benefit of the Tennessee Vally Authority pursuant to Section 25 of the Act of its creation, 48 Stat. 58, 70, 16 U. S.C.A. § 831x. In Nos. 7972 and 7973, the appellants complain of the court's denial of their motions for a jury trial.

All of the appellants were owners of separate tracts of land fronting on the Clinch River, some alluvion, which was at times lost by abrasion due to the natural movement of the stream, and others fast, upland-bottom, rolling and hilly lands, some of it subject to annual and some to infrequent overflow. Part of it was covered with timber, part arable, some sterile and rocky, and all of it located in Grainger and Claiborne Counties, Tennessee. The property was condemned for use by the Government in the Norris Dam Reservoir.

The pertinent provisions of the applicable statutes, 48 Stat. 58, 71 as amended, 49 Stat. 1075, 16 U.S.C.A. § 831x provide that the corporation in the name of the United States may institute condemnation proceedings in the United States District Court in the district in which the property is located. Upon the filing of the petition the court shall appoint as commissioners, three disinterested persons who are not residents of the locality and who shall take an oath that they do not own or have any interest, direct or indirect, in the property.

Each commissioner receives compensation not exceeding $15 per day and in addition $5 per day subsistence, for the time actually spent in the performance of his duties. They are required to inspect personally the property sought to be condemned and, after notice to the parties in interest, to conduct hearings, receive evidence and generally take such appropriate steps as may be proper for the determination of value and are authorized to administer oaths and subpoena witnesses who shall receive the same fees as provided for witnesses in the Federal courts.

The commissioners are required to file their reports in writing with the Distrct Court setting forth their conclusions as to the value of the property, making a separate award and valuation as to each separate parcel. Upon the filing of the reports, the Clerk of the Court shall give written notice to interested parties of the award in such form as directed by the judge.

Any interested party may, within twenty days from the date of filing, take exceptions to the award which shall be heard before three Federal District Judges unless the parties stipulate in writing for a lesser number, the hearing being de novo.

Within thirty days from filing of the decision of the judges, any interested party may appeal to the Circuit Court of Appeals which shall, upon the hearing, dispose of the case upon the record without regard to awards or findings theretofore made by the commissioners or District Judges and fix the value of the property.

In No. 7972, appellee filed its petition on August 8, 1935, and its declaration of taking pursuant to Section 258a, Title 40 U.S. C.A., and paid into the registry of the court $2,713.13, the amount estimated by appellee as just compensation for the lands and the District Court entered an order putting it in full, immediate and quiet possession thereof and directed appellants to surrender their possession to the appellee. The court appointed commissioners who made their report May 16, 1936, and fixed the value of the land at the amount estimated by the appellee to be just compensation for its taking.

On June 4, 1936, the appellants filed their exceptions and demanded a trial de novo before a jury on the ground that if the Act be construed as dispensing with a jury, that part of it was violative of the Fifth and Seventh Amendments to the Constitution, U.S.C.A.

On August 23, 1937, the District Court overruled appellants' motion and refused to transfer the case to the jury docket to assess damages. On August 27, 1937, the cause was submitted to a statutory court of three Federal District Judges and, after hearing proof, the court declined to increase the award of the commissioners.

The same procedure and steps were taken in No. 7973, except in the declaration of taking filed by appellee, just compensation was estimated at $14,409.38 and was increased by the commissioners to $15,760 which was not disturbed by the court.

In No. 8001, the same procedure was also taken except no motion was made for a jury trial and appellee estimated that just compensation for the lands was $27,628.64, which the commissioners increased to $32,074.00 which was sustained by the court.

The Seventh Amendment to the Constitution of the United States provides that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved * * *." In order to ascertain the scope and meaning of this amendment, resort must be had to the practice at common law in similar proceedings when this amendment was adopted in 1791. Thompson v. Utah, 170 U.S. 343, 350, 18 S.Ct. 620, 42 L.Ed. 1061; Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263.

Jury trial at common law was not applicable to all common law actions, but was grudgingly conceded by the Crown as to some and when our Constitution was adopted, was inapplicable to cases at common law where property was taken for public use. Kohl v. United States, 91 U.S. 367, 376, 23 L.Ed. 449; Minneapolis & St. Louis R. & R. Co. v. Bombolis, 241 U.S. 211, 219, 36 S.Ct. 595, 60 L.Ed. 961; Bauman v. Ross, 167 U.S. 548, 593, 17 S.Ct. 966, 42 L.Ed. 270; Metropolitan R. & R. Co. v. District of Columbia, 195 U.S. 322, 328, 25 S.Ct. 28, 49 L.Ed. 219; Briscoe v. District of Columbia, 221 U.S. 547, 551, 31 S.Ct. 679, 55 L.Ed. 848. Federal judicial procedure in this field lies partly at equity and partly at law. Searl v. School District, 124 U.S. 197, 199, 8 S.Ct. 460, 31 L.Ed. 415.

The procedure applicable when private property is taken for public use is exclusively a product of our legislative and judicial systems. The phrase "eminent domain" appears to have originated with Grotius who carefully described its nature (Lewis on Eminent Domain, Section 3; Mills on Eminent Domain, Section 5; 1 Thayer, Cases on Constitutional Law, 945), and the power is universal and as old as political society. The American Constitution did not change its scope or nature, but simply embodied it in the fundamental law. Notwithstanding the recognition of its nature in our Constitution, it is procedurally unknown to the English law, there being no eminent domain in English Jurisprudence. The power to take was fundamentally included in its system of Government but the obligation to compensate was lodged in the absolutism of Parliament. 6 Halsbury Laws of England, 1.

Under the common law system prevailing at the time of the adoption of our Constitution, one seeking relief for injuries proceeding from the Crown was faced with the peculiar sanctity of the King, since it was a part of the fundamental law of England that he could do no wrong. However, it was recognized there might be something amiss in the conduct of public affairs because of misinformation or inadvertence, when the Crown invaded the private rights of his subjects and relief was granted the citizen by a petition of right. Cooley's Blackstone, 4th Ed., Vol. 2, p. 254. Stat. of Chas., I, approved June 7, 1768. This was a proceeding in chancery by which a subject might recover property in the possession of his King. Coke, 4th Inst. 419, 422; Cooper, Equity Pleading, 22, 23.

The maxim that "the King can do no wrong" has no place in American constitutional law. The State itself which is the sovereign people in corporate organization may no more wrong an individual with impunity than may any private person. However, the State is not suable except with its consent, it being inconsistent with its sovereignty that it should be brought against its will into courts which are created and exist at its pleasure. The State may also, when providing for its own needs under the right of eminent domain and taking for such purpose the property of individuals, give all necessary protection to its agents and relegate the owner to such remedy as it deems proper, provided it is adequate and accords to the citizen due process, and without any reference to the Seventh Amendment. Chappell v. United States, 160 U.S. 499, 510, 16 S.Ct. 397, 40 L.Ed. 510.

Courts of England, at the time of the adoption of the Constitution, did not lack the power to fix damages in many cases at common law. They frequently fixed the amount on judgment by default and on demurrer. Rolle's Abr. Title Damages. In 1770, Chief Justice Wilmot held as had been previously declared in 1764, that a writ of inquiry in an action of tort is an inquest of office to inform the conscience...