UNITED STATES v. WALLACE et al., 201 F.2d 65

PHILLIPS, Chief Judge. On June 28, 1951, the United States brought this action to condemn an 80 acre tract of land situated in Alfalfa County, Oklahoma, about nine miles northeasterly of the town of Cherokee. Following the Oklahoma state procedure, which was applicable at the time, the court, on July 19, 1951, appointed Clarence Bassett, Carl Dunnington and J. Robert Reneau, all residents of Cherokee, as commissioners to appraise and fix the value of the land and to determine the amount of compensation to which the owners were entitled.

On July 24, 1951, the -court entered an order adjudging the title to the land to be in Bruce E. Wallace and P.. R. Barita. On August 13, 1951, tlie commissioners filed their report, in which they fixed the fair market value of the land and the amount of the award to the owners at $10,000. Rule 71A of the Federal Rules of Civil Procedure, 28 U.S.C., relating to condemnation proceedings, became effective August 1, 1951. On August 15, 1951, the United States filed a notice demanding a trial by jury, under such rule. A pre-trial conference on this demand was had on October 18, 1951.

Thereafter, the court made an order, dated October 18, 1951, but not filed until January 21, 1952, which recites: “ * * * the court being fully advised finds that in the interest of justice the issues of compensation as to the tract of land hereinafter described and involved in this proceeding shall best 'be determined by a Commission .of three (3) persons appointed by this Court.” The order appointed Bassett, Dunnington and Reneau as the comriiissioners to determine the issue of just compensation.

Counsel for the United States approved the order as to form and made no objection to the appointment of such persons'as commissioners. The matter -came on for hearing before the commissioners on March 4, 1952, at Cherokee, Oklahoma. At the commencement of the hearing, counsel for the United States interposed an objection to the commissioners acting in the proceeding, for the reason that they had already viewed the property, made an appraisal thereof, and filed a report pursuant to the order of August 1, 1951. The commissioners proceeded with the hearing.

The landowners appeared 'as witnesses in their own behalf and called as witnesses four persons who were residents of Alfalfa County,and lived in the vicinity of the land. The United States called three witnesses who lived in the vicinity of the land. Other than the landowners, only one witness was called who did not live in the vicinity of the land. On April 2, 1952, the commissioners filed a report in which they fixed the fair cash market value of the land at $11,000 and recommended that judgment for that amount be entered in favor of the landowners.

Rule 71A, supra, in part provides: “If the action involves the exercise of the power of eminent domain under the law of the United States, any tribunal specially constituted by

an Act of Congress governing the case for the trial of the issue of just compensation shall be the tribunal for the determination of that issue; but if there is no such specially constituted tribunal any party may have a trial by jury of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix, unless the court in its discretion orders that, because of the character, location, or quantity of the property to be condemned, or for other reasons in the interest of justice, the issue of compensation shall be determined by a commission of three persons appointed by it.” The nearest Federal court towns to the land are Enid, Oklahoma, and Oklahoma City.- The tract of land is situated approximately 60 miles west of Enid.

The distance from Enid to Oklahoma City is approximately 90 miles. The tract of land was of unusual character, in that it was valuable for hunting and fishing. All but one of the witnesses, other than the landowners, lived in the vicinity of the land. We think the instant case is distinguishable on the facts from United States v. Theimer, 10 Cir., 199 F.2d 501. Here, the land was situated a long distance from a Federal court town. It would have been expensive to have taken a jury from the court town to view the land.

It would have been inconvenient for the local witnesses who resided in the vicinity of the land to travel to a Federal court town to give their evidence. The land was of a peculiar nature in that it had a value for hunting and fishing. Only one 80 acre tract of land was involved. In view of those facts, we are of the opinion that the trial court, in the exercise of a sound discretion, was justified in ordering that the issue of just compensation foe determined by a commission appointed by it. Under the Federal rule the commissioners, in a large measure, serve the function of a jury.

The proceeding before the commission is quasi-judicial in character. We do not think it was appropriate to appoint as commissioners, under the Federal rule, persons who had theretofore viewed the land, arrived at an opinion as to its value, and formally expressed that opinion in their report to the court. A juror who has formed and expressed an opinion about the issues in a case is ordinarily regarded as disqualified.

However, when the order was presented to counsel for the United States, he made no objection to' the personnel of the commission and waited until the matter came on for hearing before the commissioners to interpose his objection. Such objection should have been addressed to the court and not to the commissioners. We think the objection was waived. Affirmed. . The pre-trial conference proceedings are not included in the record on appeal.