The opinion of the court was delivered by: John E. Miller, Chief Judge.
The complaint in this case was filed October 17, 1960, along
with a declaration of taking. On October 19, 1960, the court
entered an order delivering the possession of the various tracts
included in the suit to the plaintiff.
On December 15, 1960, Commissioners were appointed as provided
by Rule 71A, Fed.R.Civ.P., 28 U.S.C.A., and on March 15, 1962,
filed their report herein.
On March 30, 1962, the landowners filed their exceptions to the
report of the Commissioners, which included their brief and
argument in support of their primary contention that the award of
just compensation made by the Commissioners is entirely
inadequate. In addition to the contention that the award is
inadequate, the landowners contend that the award is contrary to
the evidence; the damages awarded were greatly less than the
actual amount of the damages caused by the taking of the land,
and they are entitled to an award of damages greatly in excess of
the amount awarded by the Commissioners.
Their argument is divided into three parts:
(1) "The report of the Commission is nothing more
than a simple conclusion as to the value of the lands
and is inadequate for forming a basis for review and
should be stricken in its entirety."
(2) "The Commission erred in determining just
compensation upon the basis of `the value of the
entire tract, exclusive of the mineral interest.'"
(3) "That the Commission erred in failing to award
to the defendants an amount equal to the reasonable
market value of the land at the time of the taking."
The Government has not submitted a brief in opposition to the
exceptions, but in view of the conclusion of the court, it does
not appear necessary to delay the disposition of the exceptions.
In support of the first contention made in the argument, the
landowners cite United States v. Cunningham, (4 Cir. 1957),
246 F.2d 330; and United States v. 2,477.79 Acres of Land, etc., in
Bell County, Texas, (5 Cir. 1958), 259 F.2d 23, and cases therein
The court has studied the decisions and has no quarrel with the
general principle announced therein, but a comparison of the
report of the Commissioners in the cases relied upon with the
report of the Commissioners in the instant case discloses at once
that the report of the Commissioners in the instant case is
The second and third arguments are completely answered by a
consideration of the instant report, which discloses that the
entire ownership of the landowners was 370.36 acres, from which
the fee in 126.06 acres, with minerals reserved to the owners
subordinated to the right of the Government to flood, was taken.
The tract was viewed by the Commissioners on December 4, 1961,
after notice to the landowners of the date that the land would be
viewed, but neither of the owners accompanied the Commissioners
in their view of the property.
A hearing was held at the Courthouse at Clarksville, Arkansas,
on March 6, 1962, for the purpose of fixing just compensation.
The Government appeared by Robert E. Johnson, Assistant U.S.
Attorney, and the landowners appeared by their attorneys, Mr. Sam
Sexton and Mr. Marvin Holman.
The land, its location, improvements and characteristics were
fully described by at least one witness for the landowners and
one for the Government.
Beatrice Johnson, one of the owners, testified that a part of
the tract was acquired from her parents who had owned it since
1900 or 1901; that the land thus acquired was creek bottom land
on which there were five water wells, all of which were taken by
the Government. She valued the land taken at $150.00 per acre, or
$18,909.00, and the value of the land remaining before the taking
at $50.00 per acre, or $12,215.00, and the value after the taking
at $25.00 per acre, or $6,107.50.
John Johnson, the other owner of the land, testified that he
had been a farmer and a construction worker, but that he was
presently engaged in farming; that he had 71 head of cattle upon
the whole tract, and that the best use of the tract is for a
cattle ranch. He valued the tract taken at $175.00 per acre, or
$22,060.50, and testified that the value of the part not taken
was $80.00 per acre before the taking of the 126.06 acres, ...