The opinion of the court was delivered by: John E. Miller, Chief Judge.
On August 31, 1961, the Commissioners heretofore appointed to
hear the testimony and determine just compensation for the
above-named tracts, filed their report herein.
In the concluding paragraph numbered 8, the Commissioners
stated their conclusion as follows, "that the fair and reasonable
market value of the one hundred fifty-three acre tract as of the
date of taking is the sum of Nineteen Thousand Five Hundred
Dollars ($19,500.00) and that the value of the remainder is
Forty-five Hundred ($4,500.00) and that the just compensation for
the lands taken is the sum of Fourteen Thousand Dollars
($14,000.00)." It is apparent that a mathematical error was
committed in subtracting the value of the remainder, $4,500.00,
from the value of the tract prior to the taking, and the just
compensation actually intended to be awarded is $15,000.00.
On September 11, 1961, Mr. Young filed a motion asking that the
court fix a date for a hearing on the objections. Accordingly a
hearing was set for November 15, 1961, and at the hearing the
United States Attorney and Mr. Young agreed that the report of
the Commissioners and the objections thereto should be submitted
to the court upon a transcript of the testimony and upon briefs
for the parties.
The transcript of the testimony has been received along with
the briefs of the attorneys for the respective parties, and the
court has read with interest and care the transcript and has
considered the objections to the report, which have been ably and
earnestly presented by the attorney for the defendant.
There does not seem to be any conflict between the parties as
to the status of the report of the Commissioners and the
limitations upon the court in the consideration of the report.
In United States v. Waymire, 202 F.2d 550 (10 Cir. 1953), the
court, after reviewing the provisions of Rule 71A (h) of the
Federal Rules of Civil Procedure, 28 U.S.C.A. in connection with
Rule 53, held at page 553:
"It is thus clear that the report of the commission
in a case of this kind shall be dealt with in the
same manner as that of a master appointed under Rule
53. It is historic practice of long standing to call
to the assistance of courts masters to pass upon
certain classes of questions, one of the most common
being the amount of damages. While the report of a
master is essentially advisory in nature, it has not
been the practice to disturb his findings when they
are properly based upon evidence, unless there be
errors of law. And prior to the adoption of the rules
of civil procedure a party did not have the absolute
right to demand that the court redetermine the facts
thus found. Under the plain language of Rule 53, it
is the duty of the court to accept the findings of
fact made by a master unless they are clearly
erroneous. But the findings of a master may be
modified in part, or rejected in toto, if they are
clearly erroneous. In like manner, under the equally
clear language of Rule 71A(h), the findings and
awards of a commission shall be accepted unless they
are clearly erroneous. But they may be modified in
part, or rejected in toto, if they are clearly
erroneous. And even though there is evidence to
sustain findings of a master or a commission, as the
case may be, they are clearly erroneous if the
reviewing court on the entire evidence has the
definite and firm conviction that a mistake has been
committed. United States v. United States Gypsum Co.,
333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746; United
States v. Oregon State Medical Society, 343 U.S. 326,
339, 72 S.Ct. 690, 96 L.Ed. 978."
In this connection, see Cunningham v. United States,
270 F.2d 545 (4 Cir. 1959); United States v. Certain Parcels of Land in
the City of Philadelphia, 215 F.2d 140 (3 Cir. 1954); 7 Moore's
Federal Practice, 2d Ed., p. 2798.
It should be remembered that Rule 71A (h), Fed.R.Civ.P.,
provides that the commission shall have the powers of a master as
provided in subdivision (c) of Rule 53, and paragraph 2 of
subdivision (e) of Rule 53 provides:
"In an action to be tried without a jury the court
shall accept the master's findings of fact unless
In McGraw-Edison Co. v. Central Transformer Corp., (E.D.Ark.
1961), 196 F. Supp. 664, Judge Henley completely and thoroughly
outlined the duties of a court in considering exceptions or
objections to a master's report. It is a succinct statement of
the duties and responsibilities
of a court in considering exceptions.
See also footnote 3 in Bynum v. Baggett Transportation Co.,
228 F.2d 566 (5 Cir.), where at page 569 the court said:
"The district court does not have the right to
reconsider, weigh and evaluate evidence to arrive at
its own independent conclusions, but must accept
those of the Master ...