Brief for the Respondents in Opposition — Dillman v. United States

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INDEX

Page

Opinions below is . e . l

Jurisdiction : ; . I

Questions presented 2

Statement 2

Argument 6

Conclusion 13

CITATIONS

Cases:

Atlantic Coast Line R. Co. vy. United States, 132 F. 2d 959 7

Carlock v. United States, 53 F. 2d 926 11

Carter v. Kubler, 320 U. 8S. 2438 9,10

City of Denton v. Chastain, 156 8. W. 2d 554 10

Crystal City & U. R. Co. v. Boothe, 126 8. W. 700 10

Hormel v. Helvering, 312 U.S. 552 : 6

Kennedy v. United States, 115 F. 2d 624 13

Lower Colorado River Authority v. Burton, 170 8. W. 2d 783 10

Lynch v. Oregon Lumber Co., 108 F. 2d 283 8

McCandless v. United States, 74 F. 2d 596, reversed on other

grounds, 298 U, 8. 342 7,8

Meadows v. United States, 144 F. 2d 751 11

Moser v. Mortgage Guarantee Co., 123 F. 2d 423 ‘. 9,10

Rhodes v. Federal Land Bank of St. Paul, 140 F. 2d 612 9,10

St. Paul v. Certain Lands in St. Paul, 48 F. 2d 805 11

Sharp v. United States, 191 U.S. 341 a ee

United States v. Dunnington, 146 U.S. 338 : 11

United States v. 576.734 Acres of Land, Etc., 143 F. 2d 408_ 11

United States v. Forness, 125 F. 2d 928__- . 13

United States v. Harrell, 183 F. 2d 504 : 7

United States v. Lands in Hempstead, Nassau Cy, N. Y.,

129 F. 2d 918 11

University City, Mo. v. Home Fire & Marine Ins. Co., 114

F. 2d 288 : 8

Worcester v. Pure Torpedo Co , 127 F. 2d 945-_ - an 8

Statutes:

General Condemnation Act of August 1, 1888, 40 U. 8. C.

see, 258 ; : 9

(1)

II

Statutes—Continued.

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Texas Anno. Rev. Civ. Stat. (Vernon):

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PRUE Fo 6G Ck ek can eh enc desadcen ee eeaness

Miscellaneous:

Federal Rules of Civil Procedure:

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Inthe Supreme Gourt of the Wnited States

OcrToBER TERM, 1944

No. 1203

Grorce E, Dittman anp W. R. Hess, er ab,

PETITIONERS

v.

Untrep Statres or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the district court (R. 2147-2232)

has not been reported. The opinion of the circuit

court of appeals (R. 2340-2346) is reported in

146 F. 2d 572. The order denying application to

recall the mandate and amending one sentence

of the opinion (R. 2366-2367) is not yet reported.

JURISDICTION

The judgment of the circuit court of appeals

was entered on December 28, 1944 (R. 2347). A

(1)

2

petition for rehearing was denied on January 26,

1945 (R. 2356), and the petition for a writ of

certiorari was filed on April 25, 1945. The juris-

diction of this Court is invoked under Section

240 (a) of the Judicial Code, as amended by the

Act of February 13, 1925.

QUESTIONS PRESENTED

1. Whether in condemnation proceedings it was

not reversible error for the trial court (a) to

admit in evidence and consider offers to buy and

sell the condemned and other property; (b) after

the trial and without affording the Government

opportunity to cross-examine or offer rebuttal

testimony, to obtain information from a_ police

officer while viewing the premises; and (c) after

~ the trial and without affording the government

opportunity to cross-examine or present rebuttal

testimony, to interview condemnation commis-

sioners from whose awards the parties had ap-

pealed for a trial de novo.

2. Whether the court below could deny appli-

cation, made after reversal, to recall its mandate

and to take other steps to permit the trial judge

to amend his opinion, which constituted his find-

ings of fact and conclusions of law.

STATEMENT

This is a condemnation proceeding brought by

the United States on March 21, 1942, to acquire

15,000 acres of farm land (together with improve-

3

ments and growing crops) in Carson County,

Texas, for the establishment of the Pantex Ord-

nance Plant (R. 2-8). Possession of these prop-

erties was delivered to the United States on or

about April 20, 1942 (R. 9-11, 2246). Under a

declaration of taking the Government deposited

in court $429,263 as estimated just compensation

for the 31 tracts involved here (R. 11-28, 2341).

Pursuant to a Texas statute,’ three commissioners

were appointed to hold hearings and value the

properties (R. 42), and on March 1, 1943, they

returned awards of just compensation for all the

land taken (R. 119-143). Objections to the

awards, totaling $665,556.49 for the 31 tracts,

were filed by the United States and several of

the landowners (R. 144-176). As a result, a

trial de novo* as to those tracts was had in July

and August 1943, at which the right to a jury trial

was waived by the parties (R. 231, 2147, 2247).

At the trial the court permitted the landowners

to introduce a large volume of evidence ‘relating

to and based upon the prices named in alleged

offers to buy and offers to sell the properties in

question and neighboring lands (R. 312, 313,

375-376, 396, 662, 688-689, 709, 711-715, 798,

801-802, 805, 1057, 1098, 1250-1251, 1389, 1398-

1399, 1497-1498, 1574, 1579, 2065-2066). The

*Texas Anno. Rev. Civ. Stat. (Vernon), Article 3264.

* Texas Anno. Rev, Civ. Stat. (Vernon), Article 3266.

4

Government's objections to this type of proof

were overruled (R. 376, 709, 1098, 2066), and

the court placed the burden upon the Govern-

ment to show, if it were able, the facts and cir-

cumstances surrounding each offer which would

affect its weight (R. 376-377). After all this

evidence as to offers and opinions based upon

offers had been received, counsel for some of the

landowners moved the court to withdraw the evi-

dence as to listings and ‘‘offers to purchase com-

parable property outside of the area’’ taken (R

2110). However, the withdrawal was not made

on behalf of all the condemnees, and it did not

include the alleged offers for the properties con-

demned or the opinion testimony based entirely

or largely upon offers (R. 2110).

After the taking of evidence was concluded, the

trial judge, at the request of government counsel

and counsel for some of the landowners, viewed

the properties condemned (R. 2195). He was ac-

companied by a government attorney and a police

sergeant on this inspection trip (R. 2221). In

the company of a government attorney, he also

interviewed the commissioners who had made the

original awards (R. 2227). On October 11, 1943,

the trial judge rendered an oral opinion which

he later adopted as his findings of facts and con-

clusions of law (R. 2147-2232, 2247). In the

opinion it was clearly indicated that he had con-

sidered offers as a basis for arriving at his awards

of just compensation (R. 2193, 2195) and that

0

witnesses, who had based their opinions largely,

if not completely, upon offers (Meaker, R. 396;

Mahler, R. 708-716; Wink, R. 1097-1098; Klinke,

R. 1250-1251, 1497; Gau, R. 1398-1399) were

accepted as entshaniiiied’ * witnesses on value

(R. 2193-2195). The opinion also revealed that

on his inspection tour the trial judge had obtained

information from the police officer as to the orig-

inal contours of the properties, which had under-

gone considerable change since the Government

went into possession, and used the information

thus obtained to discredit a government witness

(R. 2188, 2195-2196, 2221-2222). The opinion

disclosed too that, rather than arriving at inde-

pendent awards of just compensation for each

tract, the court merely determined from his in-

terview with the commissioners that they had

been too low by a certain percentage in their valu-

ations and that the awards should be adjusted

accordingly (R. 2227-2231). An accountant was

appointed to represent the court in computing

the awards in accordance with the findings (R.

2231). A judgment in the total sum of $783,-

907.73 for the 31 tracts was entered, the court

finding an overall value for each tract and order-

ing distribution of a part of the award to a

tenant for crops wherever necessary (R. 2234-

2291).

The Government appealed (R. 2291-2301), and

on December 28, 1944, the circuit court of appeals,

with Judge Sibley dissenting, reversed the judg-

6

ment of the district court, holding that it was

prejudicial error for the court to have taken the

police officer on the inspection trip and to have

obtained information from him as to the lands;

that the trial court erred in going to interview

the commissioners «bout their report; and that the

consideration of evidence touching offers to buy and

offers to sell was clearly erroneous (R. 2340-2346).

A petition for rehearing was denied on January

26, 1945 (CR. 2356), and petitioners then filed an

application to recall the mandate, permit the trial

judge to amend his opinion, and to file a second

petition for rehearing (R. 2357-2365). This ap-

plication was denied on April 10, 1945, the court

amending one sentence of its opinion (R. 2367).

The petition for a writ of certiorari was filed on

April 25, 1945.

ARGUMENT

Petitioners’ complaint of the decision below is

largely based on assertions that the Government

did not object to or acquiesced in the various er-

roneous rulings and actions by the trial court (see,

e. g., Pet. 4, 8, 9, 20, 24, 26). It is clear that the

Government properly preserved objections to var-

ious erroneous rulings of the trial court. Even if

the petitioners’ assertions were well founded, the

argument lacks merit. An appellate court always

has power, absent an objection, to notice errors

apparent in the record in order to prevent a mani-

fest miscarriage of justice. Hormel v. Helvering,

DOE LE ee EE STG LONI IEE ISELIN ini a

7

312 U.S, 552, 556-559; United States v. Harrell,

133 F. 2d 504, 507 (C. C. A. 8) and eases there

cited.

1. Offers to purchase or to sell property are

hot competent evidence of market value. Sharp v.

United States, 191 U.S. 341, 848-350. Opinions

of value largely or completely based upon such

offers are likewise incompetent. Atlantic Coast

Line R. Co. v. United States, 132 F. 2d 959, 963

(C. C. A. 5); ef. McCandless v. United States, 74

F, 2d 596, 602-603 (OC. C. A. 9), reversed on other

grounds, 298 U. S. 342. In this case, a great

abundance of such testimony was introduced over

objection by government. counsel (R. 312, 313,

379-376, 396, 662, 688-689, 709, 711-715, 798,

801-802, 805, 1057, 1098, 1250-1251, 1389, 1398-

1399, 1497-1498, 1574, 1579, 2065-2066). Two of

the offers admitted in evidence in these 1942 con-

demnation proceedings were as remote as 1928 and

1929 (R. 1098, 1574). One witness, referred to

by the trial court as an “outstanding”? witness on

values (R. 2195), conceded that he had based

his opinions upon offers made in 1919 and 1929

(R. 1250-1251, 1497). The only valuation testi-

mony by another “outstanding”? witness (R. 2193)

concerned his refusal of an offer for the purchase

of his own property (R. 708-716). Other wit-

nesses for the landowners used offers and listings

as the basis of their opinions of value in prefer-

ence to known sales (R. 662, 688-689, 801-802,

8

1057, 1389-1390, 1579). The attorney for some

of the condemnees withdrew evidence as to offers

for lands outside the area taken, but he did not

withdraw the evidence as to alleged offers for the

very lands condemned or the opinion testimony

based on offers (R. 2110). But even the partial

withdrawal was ineffective, for it clearly appears

that the trial judge considered the offers in arriving

at his awards of just compensation (R. 2193-2195).

Under these circumstances, notwithstanding the

harmless-error statute (28 U. 8S. C. see. 391) or

Rule 61 of the Federal Rules of Civil Procedure,

the trial court committed error of so substantial a>

nature as to require reversal. McCandless v.

United States, 298 U. S. 342, 347-348; Lynch v.

Oregon Lumber Co., 108 F. 2d 283, 285-286

(C. C. A. 9); University City, Mo. v. Home Fire

& Marine Ins. Co., 114 F. 2d 288, 295 (C. C. A.

8); Worcester v. Pure Torpedo Co., 127 F. 2d

945 (C. C. A. 7). Although the presumption is

that the trial court has disregarded all improper

evidence, the presumption cannot have any effect

where, as here, the contrary is apparent (R. 2193-

2195). Since the consideration of the improper

evidence rendered the findings ‘“‘clearly errone-

ous”’, Rule 52 (a) of the Federal Rules is no

obstacle to a reversal. Hence, it is plain that

solely on the ground of the consideration of evi-

dence relating to offers the judgment of the dis-

trict court was properly reversed.

EE I IS IGOR SE MIELE EVENING EON TO IES ARE IG ae Ree NTL owe ore

9

2. The circuit court of appeals did not decide

whether or not it was error for the trial judge

to inspect the lands after the trial, but did hold

that it was prejudicial error to receive informa-

tion from the police officer concerning the topog-

raphy of the land as it was before the Government

went into possession (R. 2342-2343). While the

Government requested the inspection by the judge,

it did not invite or acquiesce in the examination

of the police officer (R. 2195, 2221). The infor-

mation so obtained is not included in the record

and the Government was afforded no opportunity

to cross-examine or offer rebuttal testimony. The

trial had ended. Since it appears that the infor-

mation strongly influenced the judgment of the

trial court (R. 2195-2196, 2221-2222), it follows

that the judgment was properly reversed on this

ground also. Carter v. Kubler, 320 U. 8. 243, 247;

Rhodes v. Federal Land Bank of St. Paul, 140

F. 2d 612, 614 (C. C. A. 8); Moser v. Mortgage

Guarantee Co., 123 F. 2a 423, 425 (C. C0. A. 9).

3. In view of the conformity provisions of the

General Condemnation Act of August 1, 1888, 40

U.S. C. sec. 258 and of the Texas law, the Govern-

ment was entitled to a trial de novo after objecting

to the commissioners’ awards (see Statement,

supra, p.3). Texas Anno. Rev. Civ. Stat., Article

3266. At such trial it is error to admit or con-

sider the amounts previously awarded by the

commissioners. Sharp v. United States, 191 U.S.

ET See Sete PLE Pi 0 SPE OLLI NET OT =

RGR

10

341, 357; Lower Colorado River Authority v.

Burton, 170 S. W. 2d 783, 785 (Tex. Civ. App.) ;

Crystal City & U. R. Co. v. Boothe, 126 8. W.

700 (Tex. Civ. App.) ; City of Denton v. Chastain,

156 S. W. 2d 554 (Tex. Civ. App.). Yet, after the

trial, the trial judge interviewed the commission-

ers, discussed with them the land and their value,

and how they had arrived at their awards for

land and crops (R, 2227-2231). Although the

judge was accompanied by a government attor-

ney, the record is silent as to whether the latter

objected to or acquiesced in the judge’s visit to

the commissioners. In view of the lack of op-

portunity to cross-examine the commissioners and

offer rebuttal testimony and the apparent influ-

ence that the evidence received outside the record

had on the trial judge (R. 2227-2231), the inter-

viewing of the commissioners was reversible error.

Carter v. Kubler, 320 U. S. 248, 247; Rhodes v.

Federal Land Bank of St. Paul, 140 F. 2d 612,

614 (C. C, A. 8) ; Moser v. Mortgage Guarantee Co.,

123 F. 2d 423, 425 (C. C. A. 9). It clearly ap-.

pears that the trial judge arrived at his awards

by mathematically adjusting the commissioners’

awards by a fixed percentage (R. 2230-2231).

This was not the trial de novo to which the Gov-

ernment was entitled.

Petitioners urge that in any event the awards

to tenants for crops should stand because they

were not affected by the erroneous evidence (Pet.

TERE LE PLIERS EE WR Pe WASPS SO WEE eaicrpmerrn.. PARA A

1]

25-26). However, it is evident from the opinion

that the trial judge discussed with the com-

missioners their crop valuations and determined

therefrom that their valuations were 50% too low

(R. 2229-2231), so that the awards for crops were

based upon information gained from the com-

missioners. Furthermore, the court made a find-

ing of value for each tract, including land, im-

provements and growing crops thereon, and then

ordered distribution of the total award between

the owner and tenant wherever necessary (R.

2248-2287). This being so, the awards for crops

are inextricably bound up with the overall judg-

ments and must fall with them.

4. After the circuit court of appeals had ren-

dered its decision and denied a petition for re-

hearing, petitioners filed a motion in that court

for the purpose of permitting the trial judge

* When a tract of land in which various persons have sepa-

rate interests is condemned, just compensation is determined

as if the property were a unit in separate ownership, without

reference to conflicting claims, and then apportioned among

the parties according to their respective interests. United

States v. Dunnington, 146 U. S. 338, 351; Meadows v. United

States, 144 F, 2d 751, 752-753 (C. C. A. 4) ; United States v.

576.734 Acres of Land, etc., 143 F. 2a 408, 409 (C. C. A. 3);

Carlock v. United States, 53 F. 2a 926, 927 (App. D. C.).

The condemnor is interested only in the total award and is

not legally concerned with the distribution between the vari-

ous claimants. United States vy. Dunnington, 146 U. 8. 338,

352-353; United States v. Lands in Hempstead, Nassau, Cy,

N. ¥., 129 F. 2d 918, 919-920 (C. C. A. 2); St. Paul vy. Cer-

tain Lands in St. Paul, 48°F. 2a 805, 807 (C. C. A. 8).

12

to amend his opinion, which he had adopted

as his findings of fact and conclusions of law

(R. 2247), in order to show that his awards of

just compensation had not been affected by any

erroneous evidence, but had been based solely

on competent testimony (R. 2357-2365). Rely-

ing upon Rule 75 (h) of the Federal Rules of

Civil Procedure,’ petitioners now assert that the

circuit court of appeals erred in denying the

motion (Pet. 9-10, 19, 27-28). This rule permits

the courts to make additions or corrections in

the record on appeal so that it will truly and com-

pletely conform to the record in the trial court.

Petitioners do not deny that the copy of the dis-

trict court’s opinion appearing in the record at

pages 2147-2232 is a correct transcript of the

court’s oral statement. While petitioners rely

upon the power to correct the record upon ap-

peal, they, in fact, are attempting to secure a

*Rule 75 (h) provides: “It is not necessary for the record

on appeal to be approved by the district court or judge

thereof, but, if any difference arises as to whether the record

truly discloses what occurred in the district court, the dif-

ference shall be submitted to and settled by that court and

the record made to conform to the truth. If anything ma-

terial to either party is omitted from the record on appeal

by error or accident or is misstated therein, the parties by

stipulation, or the district court, either before or after the

record is transmitted to the appellate court, or the appellate

court, on a proper suggestion or of its own initiative, may

direct that the omission or misstatement shall be corrected,

and if necessary that a supplemental record shall be certified

and transmitted by the clerk of the district court.”

ITS LRN LOOM EE ELLE PE APTN ARS FS RIAN NTU YEAR RT a " ntl

13

revision of the opinion in order to prevent a

reversal for the errors appearing therein (ef. R.

2360). Plainly Rule 75 (h) does not compel or

even justify such action. Kennedy v. United

States, 115 F, 2d 624 (C. C. A. 9); United States

V. Forness, 125 F. 2d 928, 931 (C. C. A. 2).

CONCLUSION

The decision below is correct and involves

neither a conflict of decisions nor a question of

general importance. It is, therefore, respectfully

submitted that the petition for a writ of cer-

tiorari should be denied.

Hucu B. Cox,

Acting Solicitor General.

J. Epwarp WILLIAMS,

Acting Head, Lands Division.

Rocer P. Marauts,

JoHN C. HarrIncTon,

Watter J. CuMMINGs, Jr.,

Attorneys.

May 1945.

U.S. GOVERNMENT PRINTING OFFICE 1945