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UNITED STATES v. 992.61 ACRES OF LAND

January 30, 1962

UNITED STATES OF AMERICA, PLAINTIFF,
v.
992.61 ACRES OF LAND, MORE OR LESS, IN JOHNSON AND LOGAN COUNTIES, ARKANSAS, AND KENNETH HESSE ET AL., DEFENDANTS. TRACTS NOS. 812, 812E-1, 812E-2. B.W. TROGLIN, FORMER OWNER AND CONDEMNEE.



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. James K. Young, attorney for Mr. Troglin, filed exceptions to the report, and therein asked that the court take such action on the objections as may be proper; that the findings of fact and conclusions of law of the Commissioners be set aside; that the court make its own findings of fact and conclusions of law upon the evidence reported herein, or, in the alternative, recommit the cause to the Commissioners with instructions to make new findings of fact and conclusions of law.

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
  clearly erroneous."

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 ...

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