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UNITED STATES v. 116.00 ACRES OF LAND

March 9, 1964

UNITED STATES OF AMERICA, PLAINTIFF,
v.
116.00 ACRES OF LAND, MORE OR LESS, IN BENTON COUNTY, ARKANSAS, AND ELI LEFLAR, ET AL., AND UNKNOWN OWNERS, DEFENDANTS.



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

On August 2, 1962, plaintiff filed its complaint to condemn and acquire title to the following tracts of land:

    The fee simple title to Tract No. 1323, containing
    approximately 25 acres in the NE¼ of the SE¼ of
    Sec. 34, T 19 N, R 29 W, in Benton County,
    Arkansas. Earnest Wiseley and wife, Naomi Wiseley,
    owners.
    The following tracts of land owned by Elzie
  McElhaney and wife, Opal McElhaney:
    The fee simple title to Tract 1324-1, being the SW¼
    of the NW¼ and that part of the NW¼ of the SW¼
    lying north of the bluff, said bluff being on the
    south side of White River, all in Sec. 35, and part
    of the SE¼ of the NE¼ of Sec. 34, T 19 N, R 29 W,
    in Benton County, Arkansas, containing 75.5 acres,
    more or less.
    The fee simple title to Tract 1324-2, being part of
    the NW¼ of the SE¼ of the NE¼ of Sec. 34, T 19 N, R
    29 W, containing 0.94 acre, more or less.

Perpetual flowage easements on:

    Tract No. 1324E-1, containing 1.0 acre, more or
    less.
    Tract No. 1324E-2, containing 0.25 acre, more or
    less.
    Tract No. 1324E-3, containing 0.25 acre, more or
    less.

The declaration of taking was filed August 2, 1962, and on the same date order was entered requiring the owners and all persons in possession or control of the property to surrender possession thereof to the plaintiff within five days from the date of the service of a copy of the order.

On September 17, 1963, Commissioners were appointed as provided by Rule 71A(h), Federal Rules of Civil Procedure.

A pretrial conference was conducted by the Commission at the City Auditorium in Rogers, Arkansas, on October 28, 1963, at which time the landowners and the White River Sand & Gravel Company, Inc., a lessee, appeared in person and by their attorneys. The case was set for hearing November 25, 1963, and continued for three days. During the course of the hearing 19 witnesses testified and 18 exhibits were introduced on behalf of the Government and 20 by the landowners and lessee.

During the course of the hearing it was announced by the parties in interest that the Government and Mr. and Mrs. McElhaney had reached an agreement with respect to the interest acquired in Tracts Nos. 1324-1, 1324-2, 1324E-1, 1324E-2 and 1324E-3, leaving insofar as those tracts were concerned only the question of just compensation of the leasehold estate of the White River Sand & Gravel Company, Inc., in said tracts.

The report of the Commission was filed on December 5, 1963.

White River Sand & Gravel Company, Inc., filed objections to the report on December 14, 1963. Earnest Wiseley filed objections to the report on December 17, 1963, and the plaintiff filed its response to the objections on January 9, 1964.

On December 18, 1963, following the filing of the objections to the report, the court addressed a letter to the attorneys for the landowner, Wiseley, and for the lessee, White River Sand & Gravel Company, Inc. In that letter the court stated:

    "I have not examined the report and have only
  casually read the objections, but I shall give
  consideration to the report and objections as soon as
  the business of the court will permit, unless you
  should desire to procure and submit to me a
  transcript of the testimony taken at the

  hearing. In the event you desire to submit a
  transcript of the testimony for use by me in
  considering the objections and exceptions to the
  report, I shall thank you to advise as soon as you
  may reasonably do so."

On December 23, 1963, the attorneys for Wiseley advised that they were investigating the cost of obtaining a transcript of the testimony and would consult with the attorneys for White River Sand & Gravel Company, Inc., and decide whether to furnish a transcript of the testimony. On January 16, 1964, the attorneys for the White River Sand & Gravel Company, Inc., advised that the parties had been unable to agree to submit to the court a transcript of the testimony. They further stated:

  "* * * We, therefore, request that you give
  consideration to the report and objections thereto in
  your review of ...

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