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,
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
Tract No. 1324E-2, containing 0.25 acre, more or
Tract No. 1324E-3, containing 0.25 acre, more or
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:
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 ...