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:
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
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 ...