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June 21, 1966


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


The fee simple title to Tract No. 3143, containing 10.50 acres, was acquired by the Government on January 3, 1964, in an eminent domain proceeding in this court. The minerals in and under the land were reserved to the owners but subordinated to the right of the Government to flood. The tract is located on the right bank of the Arkansas River about 4 1/2 miles north of the town of Paris and opposite the western portion of O'Kane Island. It appears to be one-quarter of a mile long east and west and triangular in form. The width gradually narrows from the west boundary line to what appears to be a very few feet in width at the extreme east end. Commissioners were appointed to ascertain just compensation in accordance with Rule 71A(h), Fed.R.Civ.P. A hearing was held on March 3, 1966, at which the landowners appeared in person and by their attorney, Mr. Dale Bumpers of Charleston, Ark. The Government was represented by Assistant U.S. Attorney Robert E. Johnson.

The report of the Commission was filed on March 23, 1966. On March 29, 1966, the landowners gave notice that they desired to file exceptions to the report of the Commission, and on the same date the court granted an additional 30 days in which to file exceptions. Within the time permitted by the order of the court exceptions were filed on April 28, 1966. The landowners have submitted a transcript of the evidence adduced at the hearing before the Commission and excellent briefs in support of their contentions. The Government has submitted brief in opposition thereto. The authorities cited and relied upon by the parties in support of their respective contentions, along with the evidence, have been fully considered by the court.

In paragraph I of the exceptions of the landowners they state:

    "The taking of the above numbered tract should be
  set aside by this court on the grounds that the same
  was not taken for the public use. It was not known by
  these petitioners, and could not have been known
  prior to a trial of this cause before the
  Commissioners, that the said lands will not be
  flooded, used for recreational purposes or for any
  other purpose, and the taking should be set aside as
  not a taking for the public interest."

Subparagraph (b) of paragraph 1 of the Declaration of Taking, filed by Cyrus R. Vance, Secretary of the Army, on January 3, 1964, is as follows:

    "(b) The public uses for which said land is taken
  are as follows: The said land is necessary adequately
  to provide for the construction and operation of a
  flood-control project navigation on the Arkansas
  River and for other uses incident thereto. The said
  land has been selected by me for acquisition by the
  United States for use in connection with the
  Dardanelle Lock and Dam on the Arkansas River, and
  for such other uses as may be authorized by Congress
  or by Executive Order."

The Government in its brief suggests that under Rule 71A, Fed.R.Civ.P., that defendants "have probably waived the judicial determination of the right to take by not contesting the right to take within twenty days from the date of service of notice * * *."

Rule 71A(e), Fed.R.Civ.P., provides:

  "If a defendant has any objection or defense to the
  taking of his property, he shall serve his answer
  within 20 days after the service of notice upon him.
  The answer shall identify the property in which he
  claims to have an interest, state the nature and

  of the interest claimed, and state all his objections
  and defenses to the taking of his property."

In due time the landowners filed their answer, and in paragraphs II and III stated:


    "That the Dardanelle Lock and Dam Project described
  by the plaintiff will not flood the tract aforesaid
  and that the United States should not be allowed to
  take the same in fee.


    "That in the event the United States would flood
  the aforesaid tract of land on infrequent occasions,
  it should be allowed flowage easement over the said
  tract only."

It thus appears that exception I now urged by the landowners is included in the allegations of the answer and entitles the court to determine the contention of ...

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