The opinion of the court was delivered by: John E. Miller, District Judge.
On April 16, 1951, a declaration of taking was executed by the
Secretary of the Army and filed in this proceeding wherein the
land now involved along with other land was designated as Tract
No. 0-1449, containing 111 acres. Judgment on the declaration of
taking was duly entered and the title in fee simple was vested in
the Government in Tract No. 0-1449 as then constituted, subject
however to existing easements for public roads and highways.
Subsequent to the filing of that declaration of taking a
re-survey was made of the land embraced in Tract No. 0-1449, and
it was determined that the acreage therein should be divided into
two tracts to be designated as 0-1449 (Rev.), containing 101.9
acres, and 0-1470, containing 9.1 acres. Accordingly a new
declaration of taking was filed and a judgment vesting title in
Tract No. 0-1470 was entered.
The division of the original Tract No. 0-1449 was necessary
because Jeanette Frances Tucker had become the owner of a portion
thereof, now Tract No. 0-1470, by warranty deed dated August 17,
1950, and recorded on the same date. The tract now involved,
0-1470, is 300 feet wide East and West and 1320 feet long North
and South and contains 9.1 acres, more or less.
In the answer filed by the present owner of the tract, 0-1470,
she alleges, inter alia:
"She would respectfully deny that the Secretary of
the Army has the authority to take the North 660 feet
of the West 300 feet of the NE¼ of the SE¼ of Sec.
25, Twp. 21 North, Range 19 West, South of White
River in Boone County, Arkansas."
The Government filed a motion to strike the above quoted
paragraph from the answer and on August 28, 1951, a hearing was
held on that motion, and the court now makes and files herein its
findings of fact and conclusions of law, separately stated.
Jeanette Frances Tucker is the owner of the tract of land
involved herein. Situated thereon are valuable buildings
consisting of a dwelling house, barn and other necessary
outbuildings. State Highway 14 runs across the tract near the
middle thereof in a Northwesterly and Southeasterly direction.
All of the buildings and improvements are located north of the
highway. A county highway, unnumbered, leaves State Highway 14
near the Northwest corner of the tract and extends Northward into
and serves land belonging to individuals that has not been taken
by the Government and which will not be taken.
The land immediately North of the tract and West of the tract
has already been acquired by the Government, and the land
immediately East and South of the tract has been acquired as
Tract No. 0-1449 (Rev.).
State Highway 14 will be relocated when the project has been
completed, but it is not known definitely where its new location
The only means of ingress and egress to the tract after State
Highway 14 is relocated, if it is removed entirely from the
tract, which is indicated because of the location of the contour
lines, will be along and upon the county highway running
Northward, but in order to reach that highway the landowner would
have to go 40 steps across land owned by the Government.
The contour line of 700 feet is 425 feet East from the West
line of the tract and 125 feet East of the East line. The
dwelling house on the tract, as well as most of the other
buildings, is 50 feet higher than the 700 foot contour line.
The testimony did not reveal the distance of the 700 foot
contour line West of the West line of the tract, but the map
introduced in evidence shows that the 700 foot contour line that
runs East of the tract bears Westerly until it comes back
immediately North of the East ...