Under Rule 71A(h) of the Federal Rules of Civil Procedure,
Commissions were appointed by district courts to determine the
issue of just compensation in eminent domain proceedings. Following
hearings, reports were filed by the Commissioners, which the
District Court adopted in each instance, though the reports did not
disclose the basis on which the awards were reached. One Court of
Appeals affirmed, finding the awards well within the range of
conflicting testimony despite a sharp evidentiary conflict as to
the amount of damages. The other Court of Appeals remanded for
resubmission to the Commissioners, since the reports did not
indicate which evidence they credited; the degree to which the
awards were based on the testimony of comparable sales (or whether
the sales were, in fact, comparable); nor to what extent the awards
depended on opinions of nonexpert witnesses.
Held:
1. The basis of ultimate findings of value in an eminent domain
proceeding must be clearly disclosed in the report of a commission
appointed under Rule 71A(h), conclusory findings alone being
insufficient for proper judicial review. Pp.
376 U. S.
193-200.
2. Where a commission is appointed under Rule 71A(h), careful
procedures must be observed to ensure that it acts as a
deliberative body applying constitutional standards. Pp.
376 U. S.
197-200.
(a) The District Court should carefully instruct the
commissioners on the law, qualifications of expert witnesses,
evidence, the manner and method of conducting the hearing, and the
kind of report to be filed. Pp.
376 U. S.
198-199.
(b) The parties should state their objections to the
instructions and to the report in timely and specific form. P.
376 U. S.
199.
Page 376 U. S. 193
(c) The District Court may then adopt the report, modify it on
the basis of the record, reject it in whole or in part, receive
further evidence, or recommit it with instructions, all as provided
in Rule 53(e)(2). Pp.
376 U. S.
199-200.
306 F.2d 39 reversed; 310 F.2d 775 modified and remanded.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
These cases present questions concerning the standards governing
the preparation and review of reports of commissions appointed by
district courts under Rule 71A(h) of the Federal Rules of Civil
Procedure [
Footnote 1] to
determine the
Page 376 U. S. 194
issue of just compensation [
Footnote 2] in eminent domain proceedings. Some of the
property interests taken are fee interests, and some are flowage
easements, road easements, and clearance easements.
Page 376 U. S. 195
In No. 79, the District Court instructed the Commissioners on
the standards of "just compensation," the factors that could be
considered in determining it, the weight to be given the opinion of
competent experts, the burden of proof, the conduct of the hearing
to be held, and the propriety of viewing the lands in question. And
they were instructed to file a written report
"setting forth separately your findings of fact and conclusions
of law and the amount of just compensation to which you think each
property owner or claimant is entitled."
In No. 65, the District Court gave no instructions to the
Commissioners, so far as the record shows.
The hearing in each case was transcribed by a reporter. In each,
both the landowners and the Government produced witnesses. In No.
65, the effect of clearance easements on agricultural uses and on
mineral values was contested. In No. 79, the testimony was widely
at variance on the value of the fees. Severance damages were also
hotly contested. The value of improvements was also at issue as
respects one property.
In No. 65, the Commission filed a report in which it listed each
tract, following which it added a dollar figure for "Damages
Assessed." The Government objected to the adequacy of the report,
as a result of which a supplemental one was filed which described
in greater detail the clearance easements taken and stated that the
highest and best use of the land was for general agricultural
purposes. The supplemental report added that: (1) the United States
was entitled to take the property and the landowners were entitled
to just compensation; (2) just compensation was to be determined by
subtracting the value of the landowners' interests immediately
after the taking from their value immediately before the taking;
(3) the use to which the Government would put the area taken by the
clearance easements was not an issue in the case; and (4) certain
evidence pertaining to
Page 376 U. S. 196
a tract taken in fee simple was stricken, and the Government's
motion to strike the testimony of one witness for the landowners
was overruled.
In No. 79, three reports, one covering each landowner, were
filed. Each report contained capsule resumes of all testimony
heard, and, as findings of fact, set forth a description of the
interests taken, the lands' highest and best use, the acreage
remaining after the taking, and the amount of severance damage to
it, the value of the fees taken and of each easement, and the total
awards. Each report also stated that the United States had the
right to take the land, and that the landowners were entitled to
just compensation, including severance damages. One report stated
that a government objection to certain evidence had been overruled.
The first report, in addition to placing a lump sum value on the
fee interest taken, allowed no severance damage for the "home
place," four miles away, and yet granted $15,785 severance damages
to other portions of the remaining tract without explication, and
in spite of the fact that the landowner's expert fixed severance
damages, apart from the "home place," at $12,435. In the second
report, the landowner's expert witness valued the entire tract at
$52,500, the land taken at $36,125, and improvements at $12,700.
The Government's experts did not value improvements separately, but
assessed the fee interest taken at $34,000. The Commission, without
any findings concerning improvements, awarded $52,950 -- a sum in
excess of the valuation placed on the full 400 acres by the
landowner's expert -- as compensation for taking about 330 acres.
And it awarded $3,500 for severance damages, though the highest
estimate was $1,275. The third report valued lands at $105,080
while the landowner's own expert valued them at $93,693. The
Commission also awarded severance damages without any indication as
to the basis for them.
Page 376 U. S. 197
In both No. 65 and No. 79, the District Courts adopted the
Commissions' reports, setting forth no additional or supplementary
grounds of decision nor taking further evidence to resolve any of
the objections tendered by the Government. In No. 65, the Court of
Appeals affirmed, stating that, although there was a sharp conflict
in the evidence as to the amount of the damages, the awards were
well within the range of the conflicting testimony. 306 F.2d 39,
42. In No. 79, the Court of Appeals remanded for resubmission to
the Commissioners, saying that the reports did not indicate which
evidence the Commission credited and which it discredited, the
degree to which the awards were based on the testimony of
comparable sales, whether the sales were in fact comparable, and to
what extent the awards depended on the opinions of nonexpert
witnesses. 310 F.2d 775, 777, 779. The cases are here on writs of
certiorari. 372 U.S. 974, 975.
The use of a commission to resolve the issue of just
compensation is justified by the facility with which commissioners
may inspect the property and a likelihood that uniformity of awards
may be realized expeditiously. At the same time, there is danger
that commissioners, unlike juries, may use their own expertise, and
not act as a deliberative body applying constitutional standards. A
jury, until it retires, sits under the direct supervision of the
judge, who rules on the admissibility of evidence, who sees that
witnesses are properly qualified as experts, and who polices the
entire hearing, keeping it within bounds. Then, in due course, the
judge instructs the jury on the law, answering any inquiries its
members may have on the law. The jury is under surveillance from
start to finish, and subject to judicial control. Hence, its
general verdict that the land is worth so many dollars is not
overturned for lack of particularized findings.
Page 376 U. S. 198
The judge who uses commissioners, however, establishes a
tribunal that may become free-wheeling, taking the law from itself,
unless subject to close supervision. The first responsibility of
the District Court, apart from the selection of responsible
commissioners, is careful instruction of them on the law. That was
done in one of the present cases. But the instructions should
explain with some particularity the qualifications of expert
witnesses, the weight to be given other opinion evidence, competent
evidence of value, the best evidence of value, illustrative
examples of severance damages, and the like. The commissioners
should be instructed as to the manner of the hearing and the method
of conducting it, of the right to view the property, and of the
limited purpose of viewing. They should be instructed on the kind
of evidence that is inadmissible, and the manner of ruling on
it.
The commissioners should also be instructed as to the kind of
report to be filed. Since, by Rule 71A(h), the report has the
effect of a master's findings of fact under Rule 53(e)(2), the
commission should be instructed as to what kind of findings should
be included. Conclusory findings are alone not sufficient, for the
commission's findings shall be accepted by the court "unless
clearly erroneous"; and conclusory findings as made in these cases
are normally not reviewable by that standard, even when the
District Court reads the record, for it will have no way of knowing
what path the commissioners took through the maze of conflicting
evidence.
See United States v. Lewis, 308 F.2d 453, 458.
The commissioners need not make detailed findings such as judges do
who try a case without a jury. Commissioners, we assume, will
normally be laymen, inexperienced in the law. But laymen can be
instructed to reveal the reasoning they use in deciding on a
particular award, what standard they try to follow, which line of
testimony they adopt, what measure of severance damages they use,
and so on. We do
Page 376 U. S. 199
not say that every contested issue raised on the record before
the commission must be resolved by a separate finding of fact. We
do not say that there must be an array of findings of subsidiary
facts to demonstrate that the ultimate finding of value is soundly
and legally based. The path followed by the commissioners in
reaching the amount of the award can, however, be distinctly
marked. Such a requirement is within the competence of laymen, and
laymen, like judges, [
Footnote
3] will give more careful consideration to the problem if they
are required to state not only the end result of their inquiry, but
the process by which they reached it. [
Footnote 4]
Moreover, the litigants have a responsibility to assist the
process by specifying their objections to instructions, by offering
alternate ones, and by making their timely objections to the report
in specific, rather than in generalized form, as required by equity
practice.
See Sheffield & Birmingham Coal, Iron & R.
Co. v. Gordon, 151 U. S. 285,
151 U. S.
290-291.
If those procedures are followed and the District Court adopts
the report, as it may under Rule 53(e)(2), the Court of Appeals
will have some guidelines to help it determine whether the report
is "clearly erroneous" within the meaning of Rule 53(e)(2). If the
use of those guidelines by the District Court leaves it in doubt,
there are alternatives. It may "modify" the report on the basis of
the record made before the commissioners,
Page 376 U. S. 200
or it "may reject it in whole or in part or may receive further
evidence or may recommit it with instructions" -- all as provided
in Rule 53(e)(2). We think the District Court in each of these
cases should have the opportunity under Rule 53(e)(2) to make its
decision afresh, in light of this opinion. We write on a clean
slate against a background of a contrariety of views among the
circuits. The reports in each of these cases leave much to be
desired, measured by the standards we have suggested. None of the
reports should have been adopted without more by the District
Court. On remand, its informed discretion will be used to determine
whether the matters should be resubmitted in whole or in part to
the respective commissioners or whether, in light of the exigencies
of the particular case, the court should itself resolve the
disputes on the existing records (
see United States v. 44.00
Acres of Land, 234 F.2d 410, 414;
United States v. Twin
City Power Co., 248 F.2d 108, 112;
United States v.
Certain Interests in Property, 296 F.2d 264, 268;
United
States v. Carroll, 304 F.2d 300, 303-304), or on those records
as supplemented by further evidence.
See United States v.
Carroll, supra, 304 F.2d 303-304.
The judgment in No. 65 is reversed, and the judgments in No. 79
are modified, and each is remanded to the District Court for
proceedings in conformity with this opinion. It is so ordered.
Reversed in part, modified in part, and remanded.
* Together with No. 79,
2,872.88 Acres of Land et al. v.
United States, on certiorari to the United States Court of
Appeals for the Fifth Circuit, argued January 14, 1964.
[
Footnote 1]
Rule 71A(h) provides:
"(h) Trial."
"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. If a commission is appointed, it shall
have the powers of a master provided in subdivision (c) of Rule 53,
and proceedings before it shall be governed by the provisions of
paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action
and report shall be determined by a majority, and its findings and
report shall have the effect, and be dealt with by the court in
accordance with the practice, prescribed in paragraph (2) of
subdivision (e) of Rule 53. Trial of all issues shall otherwise be
by the court."
Rule 53 provides in relevant part:
"(e) Report."
"
* * * *"
"(2)
In Non-Jury Actions. In an action to be tried
without a jury, the court shall accept the master's findings of
fact unless clearly erroneous. Within 10 days after being served
with notice of the filing of the report, any party may serve
written objections thereto upon the other parties. Application to
the court for action upon the report and upon objections thereto
shall be by motion and upon notice as prescribed in Rule 6(d). The
court after hearing may adopt the report or may modify it or may
reject it in whole or in part or may receive further evidence or
may recommit it with instructions."
As to the history of Rule 71A(h),
see 7 Moore, Federal
Practice (2d ed. 1955), pp. 2709-2712; Nealy, Rule 71A(h) in
Federal Condemnation Proceedings, 23 Fed.Bar Jour. 45 (1963);
H.R.Rep. No. 739, 82d Cong., 1st Sess.; S.Rep. No. 502, 82d Cong.,
1st Sess.; S.Rep. No. 112, 83d Cong., 1st Sess.; Preliminary Draft
of Proposed Rule to Govern Condemnation Cases, Advisory Committee
on Rules for Civil Procedure, June 1947.
For the Rule in operation,
see Annual Report, Judicial
Conference of the United States, 1961, pp. 17, 106, 254; Annual
Report, Judicial Conference of the United States, 1962, pp. 30,
212-214; H.R.Rep. No. 1467, 86th Cong., 2d Sess., p. 11.
[
Footnote 2]
No question is presented concerning the right to jury trial
notwithstanding Rule 71A(h). While the Government asked for a jury
trial in both cases, the question was not preserved, nor brought
here.
[
Footnote 3]
See Burlington Truck Lines, Inc., v. United States,
371 U. S. 156,
371 U. S.
167-168;
United States v. Forness, 125 F.2d
928, 942-943;
United States v. Lewis, 308 F.2d 453,
456.
[
Footnote 4]
The Hague Convention of October 18, 1907, by Article 79,
provided that an arbitration award "must give the reasons on which
it is based." Chief Justice Hughes -- then Secretary of State --
said in a case involving that provision: it
"does not mean that the statement of reasons must be cast in any
artificial form, much less that the reasons given should be those
which the defeated party would recognize as adequate."
The Secretary of State to President Harding, Jan. 11, 1923, II
Foreign Relations of the United States, 1923, pp. 617, 620.