Wilson v. United States, 7867.

• Decision Date: 01 September 1965
• Docket Number: No. 7867.,7867.
• Citation: 350 F.2d 901
• Parties: Wendell S. WILSON and Mary Ellen R. Wilson, his wife, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

350 F.2d 901 (1965)

Wendell S. WILSON and Mary Ellen R. Wilson, his wife, Appellants, v. UNITED STATES of America, Appellee.

No. 7867.

United States Court of Appeals Tenth Circuit.

September 1, 1965.

COPYRIGHT MATERIAL OMITTED

Clifford L. Ashton, Salt Lake City, Utah (Payson W. Spaulding, Evanston, Wyo., and Clifford L. Ashton, Salt Lake City, Utah, on brief), for appellants.

George R. Hyde, Washington, D. C. (Edwin L. Weisl, Jr., Asst. Atty. Gen. of the United States, Robert N. Chaffin, U. S. Atty. for the District of Wyoming, and S. Billingsley Hill, Atty., Dept. of Justice, Washington, D. C., on brief), for appellee.

Before MURRAH, Chief Judge, SETH, Circuit Judge, and TEMPLAR, District Judge.

TEMPLAR, District Judge.

A condemnation proceeding was instituted by the United States of America at the request of the Solicitor for the Department of the Interior for the taking of land under the power of eminent domain for use in connection with the construction, operation and maintenance of Flaming Gorge Reservoir, Colorado River Storage Project, the lands being allegedly required for the immediate use of the Bureau of Reclamation.

The interest in the lands sought to be acquired was a fee simple title excepting and reserving therefrom gas and oil which may be prospected for and removed under regulations imposed by the Secretary of the Interior and reserving the right of ingress and egress over parts of Parcels 8 and 40 which were not hereafter designated for recreational use, to water livestock in the reservoir created.

Parcel No. 40 is a tract of 194.01 acres and Parcel 8 is a tract of 973.13 acres, both were described in the complaint by the survey plat description together with appurtenances which included a water right amounting to 1.89 c. f. s. from Current Creek through the Frank Tow and Holmes ditch. Appellants are the owners of the land sought to be acquired.

To the pleading of the United States, landowners filed their objections and answers, alleging that:

"The lands described (Parcels 40 and 8) are part of a ranch property operated by landowners including in addition to the lands described * * * as parcel 8 approximately 14,195 acres of deeded lands * * * described as the `Bosler purchases\'.

"That said lands, including * * Parcel 40 and * * * `Holmes purchases\', constitute, comprise and are an economical and compact livestock raising ranch, well balanced as to arable, forage and grazing lands and are adapted to and adequate for year round operations.

"Approximately 960 acres of land of said Parcels 8 and 40 are arable and have appurtenant thereto permanent water rights sufficient for their irrigation and produce or are capable of producing hay, feed and forage for winter feeding of the livestock run on said ranching property up to 2100 head of cattle and 200 head of horses for a year round operation. Approximately 834 of said 960 acres are included in Parcel 8 and the balance thereof are included in Parcel 30, and the present fair value of said 834 acres is $120 per acre or $100,080.00. That the present fair value of the remaining lands in Parcel 8, approximately 139 acres, is $15 per acre or $2,085.00, and the present fair value of the 194.01 acres of Parcel 40 is $21,000.00.

"Said ranch property is so situated that there are no other lands which can be obtained to replace the arable lands thereof and there is no convenient or economical way of replacing the feed crops and forage thereon and thereby utilizing said 14,145 acres for range purposes to full capacity and the value of said 14,145 acres remaining will thereby and on account thereof be reduced not less than five dollars per acre to landowners\' damage in the sum of $70,625.00."

The government demanded a jury trial but the trial court, under the provisions of F.R.Civ.P. 71A(h), appointed a Commission to determine the issue of just compensation, and instructed it on its duties, responsibilities and the principles of law under which it should determine just compensation. The Commission convened, heard the evidence submitted by the parties, and filed its report. The report discloses the following determination of compensation awarded the landowners:

"Wherefore we, the Commissioners, pursuant to the Instructions of the Court, find the fair and true market value of the property, as follows:

                   66 acres Irrigated at $150.00 per acre                  $ 9,900.00
                   61 acres Arable, with water rights at $35.00 per acre     2,135.00
                  769 acres Arable, with water rights pending at
                      $35.00 per acre                                       26,915.00
                  204 acres, grazing at $20.00 per acre                      4,080.00
                   67 acres west of River, grazing at $10.00                   670.00
                               Total Value of Lands Taken                   43,700.00
                  Severance damage to balance of land not taken             25,461.00
                                                                           ___________
                                  TOTAL                                    $69,161.00"
                

No objection is raised or exception taken to the form and content of the report. The principle objection of the landowner is that the findings of the commission are not supported by and are contrary to the evidence.

After the commissioners' report was filed, the district judge entered a final judgment approving the findings. Landowners then filed a motion for a new trial. The district judge treated the motion for a new trial as objections to the findings of the commissioners. He stated, in his order overruling the motion for a new trial that he had reviewed the commission proceedings and that he had heard argument on the law and evidence. He found no merit to the appellants' objections to the recreational use of the property, to the provision for watering livestock, or to the provisions for prospecting for oil and gas. He found that the evidence and exhibits entered in this case upon which the commissioners based their findings provided a sound basis for their findings and conclusions and that none of the instructions objected to by the appellants prejudicially affected the substantial rights of the landowners. This appeal followed.

This brings into focus the question of whether the commission heard and considered sufficient evidence in order that its members, as reasonable men confronted with the necessity of acting in a matter of like importance to themselves, could make a reliable decision on the issue it was necessary for them to determine — that is, the amount of just compensation to be allowed the landowners for the property taken by the government?

The landowners contend that the witnesses of the government based their testimony as to values on inaccurate standards of comparable sales; that they assumed a sale price on a tract, referred to in the evidence as the Holmes place, to be $14,000 when undisputed evidence disclosed that the actual sales price was $20,000. Landowners further contend that the commission in making its award, substantially adopted the mistakenly grounded opinion evidence offered by the government's witnesses and followed it almost to the letter in making the award. Landowners also insist that government witnesses appraised the property taken on a piecemeal basis and not as a whole. However, an examination of the record discloses that the witness Virden testified that the value of the whole property — 15,312.26 acres — before the taking was $352,000; that the value of the remaining property after the taking consisting of 14,145.12 acres was $296,000, and that the difference was $56,000. He stated the different comparable sales which he took into consideration in forming his opinion of values and was vigorously cross-examined. Likewise, the witness Englehorn testified to several sales of land which he considered comparable as a basis in forming an opinion of the value of the Wilson land. His "before value" was $354,000 and the "after value" was estimated at $286,000, a difference of $68,000. Each of the three appraisal witnesses of the landowner estimated just compensation to be in excess of $138,000. It is true that the witnesses in presenting testimony used a breakdown by soil types and location and that in explaining the process by which they arrived at their opinions, they disclosed valuations of separate parts of the land in terms of how much these contributed to the value of the whole, not as separate, unrelated entities. There is nothing improper about this procedure. Expert witnesses must be allowed to explain their qualifications as experts and the reasoning by which they have arrived at an opinion to which they testify. Unless they may state the grounds for these opinions, their testimony would be of little value.¹

The award of the commission was within the range of sharply conflicting evidence. A larger award could have found support from the evidence but it was the function of the commission to hear the evidence and make the findings its members were persuaded to believe were proper. The trial court determined that the evidence in the record provided a sound basis for the findings and conclusions reached by the commission and overruled the landowners' objections that the award was inadequate.

After reviewing the record of evidence on valuation, this court cannot say that the trial court committed reversible error in so concluding. On the contrary, findings of a commission in a condemnation case shall be accepted by a trial court unless they are clearly erroneous.² This court will not retry the facts and a finding based on sharply conflicting evidence is conclusively binding here.³

The landowners, among other objections raised and presented, contend that:

(a) The government seeks to condemn more land than was necessary for reservoir purposes.

(b) The complaint does not adequately and realistically describe the land which can properly be taken.

(c) The trial court erred in vesting the government with lands described in the

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