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UNITED STATES v. 133.79 ACRES OF LAND

June 17, 1964

UNITED STATES OF AMERICA, PLAINTIFF,
v.
133.79 ACRES OF LAND, MORE OR LESS, IN SEBASTIAN COUNTY, ARKANSAS, AND FORT SMITH RIVER DEVELOPMENT CORPORATION, ET AL., AND UNKNOWN OWNERS, DEFENDANTS.



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

On May 1, 1963, the Government filed its complaint and declaration of taking to obtain:

    "A perpetual and assignable right and easement
  to construct, operate, and maintain channel
  improvement works on, over and across Tract No.
  111E-1, including the right to clear, cut, fell,
  remove and dispose of any and all timber, trees,
  underbrush, buildings, improvements and/or other
  obstructions there-from; to excavate, dredge, cut
  away, and remove any or all of said land and to
  place thereon dredge or spoil material; and for
  such other purposes as may be required in
  connection with said work of improvement;
  reserving, however, to the owners, their heirs
  and assigns, all such rights and privileges as
  may be used without interfering with or abridging
  the right and easement herein acquired; subject,
  however to existing easements for public roads
  and highways, public utilities, railroads and
  pipelines."

The Government also sought to obtain a temporary and assignable easement and right of way for a period of five years from the date of possession to construct, operate, or maintain a roadway over and across Tract No. 111E-2.

In the declaration of taking, filed contemporaneously with the complaint, the Secretary of the Army stated:

    "The public uses for which said land is taken
  are as follows: The said land is necessary for
  use in connection with bank stabilization,
  channel rectification, control of

  floods, and navigation on the Arkansas River in
  Sebastian County, Arkansas. The said land has
  been selected by me for acquisition by the United
  States for said project and for such other uses
  as may be authorized by Congress or by Executive
  Order."

Upon the filing of the declaration of taking, estimated just compensation was deposited in the registry of the court, and the court on the same day, May 1, 1963, entered an order requiring all persons in possession or control of the property to surrender possession of the same "to the extent of the estate being condemned." The property was owned by the Fort Smith River Development Corporation, which was the successor in title to certain individuals not necessary to enumerate here. The Government demanded a jury trial on the issue of just compensation, but on April 22, 1964, the date fixed for trial to determine just compensation, the Government, appearing by the United States Attorney, Charles M. Conway, and his assistant, E. A. Riddle, withdrew in open court the request for a trial to a jury, and by agreement of all parties the cause proceeded to trial to the court. At the conclusion of the evidence introduced by the parties, the cause was submitted and taken under advisement by the court, and the parties were directed to submit briefs in support of their respective contentions. The briefs have been received and considered, along with all the evidence, including the various exhibits introduced by the parties, and the question is now ready for determination and adjudication.

The land involved is known as Morris Island. The total acreage of the island at the time of filing the complaint and the declaration of taking was 160.50 acres. The perpetual easement area acquired is 97.35 acres, designated as Tract 111E-1, leaving a remainder of 63.15 acres, on which a five-year temporary easement for a roadway of 0.79 acre was impressed, designated as Tract 111E-2, so that the actual remainder at the time of taking was 62.36 acres.

Morris Island is a strip of land lying adjacent to the right bank of the Arkansas River. The river at that point runs approximately north, and is spanned by U.S. Highway 64 bridge near the south end of the island, and by a Missouri Pacific Railroad bridge located a short distance south and upstream from the highway bridge. The island varies in width east and west, and is approximately 1 1/2 miles long north and south. It is situate in the Fort Smith city limits and in an Industrial (I 3) Zone. The island is adjacent to and riverward of a levee or seawall extending downstream from the U.S. Highway 64 bridge. The east boundary of the island is a slough or shallow waterway, which enters the river near the south end of the island. Access to the island is over a public road which crosses the slough on a causeway or low-water bridge.

The general work of bank stabilization, channel rectification, control of floods, and for the improvement of navigation on the Arkansas River from where it flows into the Mississippi River to near Tulsa, Oklahoma, is divided in sections, or projects. Morris Island is situated in the Shoofly Bend Cut-Off Project, which extends from river mile 361.9 to 356.4.

At the trial the parties agreed that the date of taking was March 26, 1962, although it will be noted that the complaint and declaration of taking were not filed until May 1, 1963. Prior to the actual entry by the Government upon the land, a right of entry was executed by the defendant landowners on January 17, 1962, but the court was not advised of the provisions thereof.

Prior to the beginning of the project, Tip Island had formed in the channel of the river west of Morris Island. On February 8, 1963, the Government filed a condemnation proceeding, Civil Action No. 1699, to obtain a perpetual casement to construct, operate and maintain channel improvement works on Tip Island. The ownership of Tip Island was in dispute, and when the condemnation suit was filed by the Government, various claimants filed answers claiming to be the owners. Among the claimants were the defendants in the instant case, the then owners of Morris Island. After a full hearing, the court resolved the question of ownership, and in an opinion filed on January 2, 1964 (not published), the court said:

    "The court is of the opinion that Tip Island
  originally emerged from approximately the middle
  of the river, and as the current moved against
  the island, it began forming sand bars on the
  lower or north end of it, which sand bars
  gradually increased in size, and this made it
  necessary for the U.S. Army Engineer Corps in
  1962 to rectify the channel. This was done by the
  construction of the spur dikes, and since the
  river was caving badly on the west or Oklahoma
  side, they constructed the dikes from the
  Oklahoma bank to Tip Island and the sand bars
  formed by it. No doubt this did tend to divert
  the current more or less to the east side of Tip
  Island, because the same Exhibit, Y-1, which
  shows the spur dikes also shows that the U.S.
  Army Engineer Corps constructed a revetment
  extending on the Arkansas side and along the west
  bank of Morris Island from the Missouri Pacific
  bridge south of the island to a distance north of
  the island, so that there is no doubt that in a
  few years the main channel of the river will be
  between Tip Island and Morris Island, but Tip
  Island was not formed by accretions from Morris
  Island nor by reliction. Often the terms
  `accretion' and `reliction' are used
  interchangeably, and the law relating to
  accretions applies in all its features to
  relictions, but there was no reliction, that is,
  there was no recession of the current from the
  west side of Morris Island, which resulted in
  connecting Tip Island to Morris Island."

The above finding in Civil No. 1699 has been set forth to illustrate the extent of the work that the Government under-took in the section of the project in which Morris Island is situated. Prior to March 26, 1962, when the Government asked the owners of Morris Island for permission to enter thereon, it appears that the plans for the work in the section described as the Shoofly Bend Cut-Off Project had not crystalized, except to the extent that the Corps of Engineers desired to remove islands and other obstructions to navigation in the section. When possession of Tract 111E-1 was obtained, the Government proceeded to cut a trench 8,400 feet long through the tract from the south to the north end, of such depth and width as to enable it to construct a rock revetment, in an effort to stabilize the right or east bank of the river when it had succeeded in diverting the main current of the river from the west or left bank of the river. The trench that was cut through Tract 111E-1 left 36.86 acres of the easement area riverward of the trench and between the revetment and the then east or right bank of the river. This area of 36.86 acres was deliberately left to the ravages of the current, which, it was hoped, would remove the 36.86 acres and further aid in establishing the east or right bank at the line of the revetment.

After casting into the river the 36.86 acres of Tract 111E-1, there was left approximately 60.49 acres of the easement area, which, of course, included the area upon which the revetment was built. The testimony did not definitely establish the distance of the taking line of the easement east of the revetment, but one witness, a Government employee, said that the line was between 250 and 300 feet east of the revetment. Immediately east of the east-taking line of Tract 111E-1 is the remainder of approximately 62.36 acres left to the defendants and not within the area of either of the easement tracts.

    "Defendants contend that Taylor was correct in
  his appraisal in assuming for all practical
  purposes that the land described in the easement
  was, by the very nature of the easement, forever
  taken from the owners, and that they could never
  put the same to its highest and best use because
  of the restrictive and drastic nature of the
  easement, giving, as it does, to the United
  States the right at any time hereafter to do
  anything it may choose upon the property within
  the easement, even to the point of completely
  excavating it or cutting it away or removing all
  or any part of it, or placing thereon any dredge
  or spoil material. It may well be that the United
  States will never exercise all of the rights
  acquired in the easement, but that they will not
  do so is a matter purely of conjecture because
  the right to do so will continue to exist
  perpetually. This was reluctantly admitted by the
  witness Shelton, Chief of the River Development
  Section for the Corps of Engineers, and by the
  witness Klein, appraiser for the Corps of
  Engineers."

In its brief, the Government undertakes to analyze the testimony of the witness Taylor, and argues that his testimony does not form a sufficient base for evaluating or determining just compensation. Following the discussion of the testimony, the Government contends that the statute, 33 U.S.C. § 595, applies, and that in awarding just compensation or assessing the damages, the court shall take into consideration, by way of reducing the amount of compensation or damages, any special and direct benefits to the remainder arising from the improvement. It thus argues that the remainder of the defendants' land has received special benefits which reduce the just compensation to a sum not in excess of $7,500.

In the reply brief of the landowners, the learned attorney for the landowners at page 1 stated:

    "Apart from an effort to ridicule the witness
  Taylor and to belittle his credibility, the
  plaintiff's brief would appear to narrow ...

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