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July 18, 1962


The opinion of the court was delivered by: John E. Miller, Chief Judge.

On October 17, 1960, the plaintiff at the request of the Secretary of the Army filed this action for the taking of property under power of eminent domain and for the ascertainment and award of just compensation to the owners and parties in interest. The use for which the property was taken is in connection with the Dardanelle Lock and Dam on the Arkansas River and such other uses as may be authorized by Congress or by Executive Order.

Simultaneously with the filing of the complaint, the conventional declaration of taking was filed and estimated just compensation for each tract and interest taken was deposited. On October 19, 1960, the court entered the usual order for delivery, effective five days from date of service of the order, of the possession or control of the lands described in the complaint and the declaration of taking, to the extent of the estate being condemned.

A total of 23 tracts was included in the complaint and the declaration of taking, but the controversy now before the court relates only to Tract 821 containing 159.0 acres situated in Johnson County, Arkansas, and being that part of the SW ¼ SE ¼ lying southwest of the center line of the Missouri Pacific Railroad right of way of Sec. 9, and the E ½ NW ¼, and W ½ NE ¼, except that part lying northeast of the centerline of U.S. Highway No. 64 of fractional Sec. 16, all in Township 8 North, Range 22 West.

The fee simple title to Tract 821 was taken, "excepting and reserving to the owners and lessees, all coal, oil, gas and other minerals in and under said lands, but without right to enter upon or over the surface of said land for the purpose of drilling thereon and extracting therefrom said coal, oil, gas and other minerals; subject, however, to existing easements for public roads and highways, public utilities, railroads and pipelines."

On November 8, 1960, the landowners, Mr. and Mrs. J.W. Savage and Mr. and Mrs. L.R. Roberts, through their attorney, the late Mr. J.M. Smallwood of Russellville, Ark., filed their answer, in which they stated that they were the owners of the premises described as Tract 821; "that they have no objection or defense to the taking of said property but state that the amount of deposit in said court is not an amount of fair compensation to be paid for the property sought to be condemned." Wherefore they prayed "that just compensation be fixed for said property."

It will be noted that the plaintiff acquired title to the land on October 17, 1960. On December 15, 1960, the court appointed Commissioners under Rule 71 A(h), Fed.R.Civ.P. 28 U.S.C.A., for the reasons stated by the court in United States v. 561.14 Acres of Land, More or Less, in Johnson and Logan Counties, Arkansas (Tract 915), (W.D.Ark. 1962), 203 F. Supp. 673, 677-680.

A hearing before the Commission was originally fixed for August 24, 1961, and two days prior thereto the Commission as a body viewed the tract involved together with other lands owned by the same owners and formerly used as a registered Hereford breeding farm located in Pope County, Arkansas. Upon request of the landowners the hearing was continued to December 6, 1961, on which date the hearing was held at the Courthouse in Clarksville, Arkansas. The plaintiff appeared by Assistant U.S. Attorney Robert E. Johnson, and the landowners appeared in person and by their attorneys, J.M. Smallwood (now deceased) and I.A. Laws.

The testimony adduced by the plaintiff and the landowners at the hearing was taken by a court reporter and later transcribed and filed as part of the record in the case. The transcript consists of 119 pages, exclusive of Government Exhibit 1, which is a tract map of Tract 821, and Exhibit 2, which is an aerial photo of Tract 821; the landowners' Exhibit A, which is an aerial photo of Tract 821, and Exhibit B, which is an aerial photo of lands owned by the same landowners situated in Pope County, Arkansas, in Secs. 18 and 19, Township 8 North, Range 21 West. The exhibits have been filed as part of the record. The Pope County lands were not taken.

The landowners in 1945 purchased three 40-acre tracts in Pope County, 80 acres of which had formerly been farm land and one forty of which was still in timber. Later they purchased a 40-acre tract adjoining on the east of the south offset 40. Still later they purchased two additional 40's adjoining on the north the other land, and still later they purchased another 40-acre tract lying one mile south of the other lands. Thus, at the time of the hearing the landowners owned approximately 280 acres of land in Pope County, Arkansas, but counsel for the landowners refer to the Pope County lands as containing 270 acres.

On June 7, 1946, the landowners purchased the 159 acres situated in Johnson County, Arkansas, now designated as Tract 821. The Johnson County land (the tract involved herein) is situated 3½ miles in a generally westerly direction from the Pope County lands. The tract lies south of U.S. Highway 64 and south of the Missouri Pacific Railroad. It is about 2 miles southeast of Knoxville, Arkansas. It is accessible and is reached by going from U.S. Highway 64 over a grade crossing of the Missouri Pacific Railroad. The Pope County lands are accessible from the tract involved herein by proceeding in a southeasterly direction along U.S. Highway 64 to the intersection of a county road running north about one mile from the said U.S. Highway.

Approximately 90 acres of Tract 821 is considered as open land, some of which lies along a small creek that traverses the tract from northwest to southeast. Southwest of the creek there appears what some of the witnesses described as a hogback that runs through the tract. The topography generally is rolling with some areas fairly level. There were two types of soil — a black soil next to the creek and lying along and northeast of the creek. The southern and southwest portion of the land is red, sandy clay soil. The portion of the tract lying along the creek is fairly productive, and the highest and best use of that part of the tract is for general row crops. The other portion is probably best adapted for hay crops. The west portion of the land is timberland. There were and are no structural improvements other than three dug wells and one drilled well on the tract. It was partially fenced but not adequately fenced to hold livestock.

The Commission's Findings of Fact, subparagraphs Nos. 3 to 10, both inclusive, of paragraph VI of the Report, are as follows:

    "3. The Pope County lands of the owners had, prior
  to 1959, been developed as a Hereford breeding farm,
  and the pasture lands were highly developed, and the
  improvements were made with the view of establishing
  a Hereford breeding farm. Fences were built with
  seven wires, whereas in ordinary commercial
  operations, only five wires are used. The buildings,
  barns and sheds were of a character to be
  particularly suitable for a Hereford breeding farm.
    "4. In the operation of a breeding farm, hay is
  necessary (as it is for most cattle-raising during
  the winter months), and hay for the breeding farm was
  obtained from Tract No. 821 where some alfalfa was
  grown and the bermuda grass was over-seeded with
  lespedeza and sometimes oats. The hay so produced was
  transported to the Pope County lands, and there used
  in connection with that operation. On occasion oats
  would be combined from Tract No. 821, and sometimes
  lespedeza would be combined for the purpose of
  obtaining seed. The oats were used as grain feed for
  cattle on the Pope County lands. Tract 821 produced
  the hay requirements of the Pope County breeding farm
  except in unusual periods of drought.
    "5. The owners also, on occasion, leased other
  lands which were used for the purpose of producing
  grain crops to be used as feed for the cattle on the
  Pope County lands. Likewise, they on occasion leased
  lands for pasture usage.
    "6. The landowners knew in 1957 that Tract No. 821
  might be taken by the Government for the Dardanelle
  Lock & Dam Project.
    "7. In June, 1959, the owners definitely decided to
  disperse their breeding herd by sale. In October,
  1959, the dispersion sale was held disposing of a
  total of 220 head, including 33 bulls, 118 cows, and
  the remainder as calves. Thereupon, Tract No. 821 was
  placed in the Soil Bank.
    "8. On January 1, 1960, the owners leased the Pope
  County lands to Arkansas Valley Industries, with whom
  one of the owners is associated as manager of that
  unit. The lands have since been used as an
  experimental breeding farm where approximately 100
  head of cattle are kept, including 37 head acquired
  by Arkansas Valley Industries at the dispersion sale.
    "9. The success of a breeding farm depends upon:
  (a) the quality and desirability of the line of
  cattle developed; (b) the reputation and ability of
  the operator, and (c) the

  physical plant of the breeder, at least to the extent
  that it is adequate to protect the integrity of the
    "10. There is no market for breeding farms, as
  such, either with or without cattle. Governor Turner,
  Mr. Lewis, and Mr. Savage, in all their experience,
  had not heard of the sale of land as a breeding farm,
  except that Governor Turner knew of one very large
  breeding farm at Cheyenne, Wyoming, that had been
  sold land and cattle together. Usually cattle are
  sold at a dispersion sale as was done in this
  instance, and subsequently the land sold for other
  uses, as in this instance it was leased for an
  experimental breeding farm."

Mr. Savage, one of the landowners, testified that he and his co-owner were unable to locate and purchase other lands in the Arkansas River Valley suitable for raising hay for the operation of the Pope County lands. Apparently an effort was made to purchase bottomland only because such land is more suitable for the growing of alfalfa. However, Mr. W.H. Lewis, who very successfully operates a ranch of 7,000 acres in Sebastian County, Arkansas, testified that he has found that clover will do as well as alfalfa and that alfalfa is not essential to the operation of a ranch.

The landowners abandoned all efforts to obtain a source of hay more than a year before the taking by the Government.

The Commission was not convinced that the landowners could not find land upon which to grow the necessary crops for the operation of the Hereford breeding farm in Pope County. However, Mr. Savage testified that hay to meet the requirements of the breeding farm could not be purchased in the vicinity of the Pope County lands where all the necessary structural improvements and pastures were located, and that importing hay from faraway places would be too expensive to make the operation economical. He was supported in that statement by Governor Roy J. Turner of Oklahoma and Mr. Lewis, heretofore referred to, but neither of them professed to have any personal knowledge of the availability of hay on the open market in the vicinity of the lands in Pope County, Arkansas. The Commission found that a supply of hay was not available in the immediate vicinity.

The Commission also found that the improvements on the Pope County lands were proper and adequate for the operation of a registered Hereford breeding farm, but stated in Findings of Fact No. 14 that "the proof fails to show that the same improvements are not proper and necessary for the operation ...

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