United States v. 1,378.65 Acres of Land, More or Less

614 F. Supp. 594, 1985 U.S. Dist. LEXIS 21573
CourtDistrict Court, W.D. Missouri
DecidedMarch 20, 1985
DocketNo. 80-5001-CV-SW-1
StatusPublished
Cited by1 cases

This text of 614 F. Supp. 594 (United States v. 1,378.65 Acres of Land, More or Less) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. 1,378.65 Acres of Land, More or Less, 614 F. Supp. 594, 1985 U.S. Dist. LEXIS 21573 (W.D. Mo. 1985).

Opinion

MEMORANDUM AND ORDERS

JOHN W. OLIVER, Senior District Judge.

I.

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.

II.

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 eases.

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.

[596]*59610. 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 eases 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.

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Bluebook (online)
614 F. Supp. 594, 1985 U.S. Dist. LEXIS 21573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-137865-acres-of-land-more-or-less-mowd-1985.