*2 CHAMBERS, BONE, Before ORR and Judges. Circuit ORR, Judge. appeals
We for consideration two hearing. consolidated for The cases appeals which the are taken were num- bered 128-98 and 128-100 in court. America,
The United in or- provide space der to for the Hanford project atomic situate the state of Washington, instituted condemnation involving proceedings 204,000 some acres Property private ownership of land. properties appellant well as Rich- District were tаken. Dis- properties trict involved in the are cases now before us. Two declarations of filed. were The declaration May 20, 1944, case was filed on while that case 128-100 was filed on May 23, 1944. Lands taken under 128- acquired by 98 had been through foreclosure actions. Declaration in 128-100 was intended to outstanding take all the titles and in- terests of the compensated taken and private for in suits landowners or in 128-98. In suit 128-98 sitting a trial was had the court before jury, jury having been ex- pressly waived.
In the 128-98 suit thе Court valued together ap- the foreclosed lands purtenant water in the sum of $114,017.72. Subsequently, case 128-100 jury. was tried before a In that suit rejected proof the Court offers of value of the water allocable to irrigation the foreclosed lands District, consisting properties of the ditches, canals, laterals, and diversion Proof of the value of works. the rights appurtenant to the foreclosed lands rejected Loney, for the reason was rights Powell, Moulton, & Gess properly compensated Powell, had been for Kennewick, Wash., L. Charles 128-98; proof the value appellant. Wash., Spokane, existing rejected public properties on the to roads easements for highways, public utilities, com- properties had that the against pri- lines, pipe pensated railroads for in actions and for existing irrigation ditches, canals, in- The trial court *3 vate landowners. by Irriga- in return a laterals the verdict owned the Richland structed to thеory that com- tion sum on District.” This declaration makes a nominal the given specific appurtenant pensation in had been suits mention of water rights. private in 128-98 all owners and case District, property of the and value within taking The declaration of in 128-100 legal interests more than bare that no part declares that of the estate there in 128-100. to be taken remained simple is taken “the fee absolute title to property the described Parcel RD-3.” argues Court the The District part property A valuing described as lands to- in foreclosed erred gether the rights rights Parcel RD-3 “All is: water and appurtenant water appropriations of water from the Yakima in that the declaration 128-98. It insists by River made or taking only, owned the Richland in took the land 128-98 Irrigation District, corporation.” in 128-100 con- while the declaration water; hence, appurtenant water demned position It is the of the District rights in 128- should have been valued Government, by phrasing the the deсlara- separately fur- from the land. It is taking 100 specifically tions so as to men- in the District that the rights ther contended tion water in 128-100 but not in held valuation of the 128-98, event it be that the compensate sep- bound itself to rights appurtenant in was arately water 128-98 for the land in 128-98 and for the placed proper, then thereon the valuation water in 128-100. The trial court grossly inadequate trial court was held that the declaration in 128-98 took support in the evidence. and is rights; appurtenant water argued addition, award- In it is that the that the declaration in 128-100 took damages ing nominal legal of no more than separated bare to title the water irrigation prop- in 128-100 for the any case from beneficial interest. this in- erroneous erties of terpretation we concur. requirement constituted violation Under the law of the state just compensation in contained Washington grant acquisition Fifth Amendment. a full fee ap interest carries with it filing purtenances The оf a declaration express to the land. The taking by apt which particular appur words condemns mention either the immediately property appurtenances gen vests interest tenances involved or erally unnecessary. They to the interest de pass by title Government scribed; thereby implication and the Government with a full fee interest. See obligated pay Zainey Linde, 1925, 121 becomes to the con Wash. 209 proceeding Hence, taking interest demned 1085. P. in 128-98 of simple is described. United States v. “full which it fee the appurtenant title” took also Cemetery Co., Cir., 1942, rights. 132 express Sunset water No rights appears. relies on F.2d The District of such reservation The taking wording of the declarations of in reservation contained in the declaration “ * * -* * * * support to eases 128-98 and 128-100 its of easements existing irrigation the foreclosed lands ditches, canals, contention separately Irriga owned valued from the Richland should laterals rights. appurtenant District” tion refers to easements for carrying purpose of other taking 128-98, The declaration of within District. the various describes tracts of which language taking land held de- The foreclosed 128-100 rights” taken estate is “the. full “all was not clares intended subject, however, simple and could not title thereto take have taken the fee bene- paying discharging in- the bonded ficial water. interest seems part proper of the fee debtedness of the District. were a sufficiently plain declara- to have advised interest taken was not filed before Government that case was stripped separately equitable interests ap- any power than in the and in the take other foreclosed lands legal purtenant water That declara- a bare interest. more took no tion of in 128-100 arguing The District is inconsistent explicit legal is made than by bare title appurtenant the fore- that the water following contained statement closed lands but nоt *4 petition for condemnation the amended private lands valued the should be in 128-100: petition A for condemnation against private in an one of the action property and in- “VI. That the real appears in the record. It landowners paragraph terests therein described language condemn, in almost seeks to operating hereof all of IV constitute the that the of identical to of properties of owned rec- and facilities taking simple in 128-98: “The fеe title Irriga- or ord claimed the Richland existing subject, however, easements to District, municipal corporation of public highways, pub- for roads and Washington. petition- the State of That utilities, railroads, lines, pipe lic er, America, reason of United States existing irrigation ditches, canals, and for ownership property of its of all the real and the Richland Ir- laterals owned lying within the of said Rich- boundaries rigation District.” The declarations Irrigation is in and in truth against private as as the lands well equitable prop- fact the owner of real the any lands the foreclosed omitted erty and interests therein described rights. specific mention of water Yet hereof, subject only Paragraph to IV the the District does not contend that it of lien of bonded indebtedness said the improper private to value the lands Irrigation District, Richland and said irrigated with an assured and lands Irrigation municipal Richland corporation adequate supply, is, water with Washingtоn, of of the State appears why No water reason the legal holds thereto in trust for now title lands foreclosed should be treated differ- petitioner, benefit the use and of United ently private from the lands. of That sum of States America. the consider the con- We now alternative deposited registry $36,020 of this the the trial tention of filing of court with the of declaration of foreclosed lands court’s valuation covering 98, No. the foreclosed together with the water аllocable to them of said Richland Dis- inadequate sup- proper and has no trict, $48,300 deposited and sum of port In 128-98 the in the evidence. registry of this court with the of court found the value the foreclosed filing of declaration of No. 100 appurtenant $51,- water to be lands 912.94, therein, together represent a sum which foreclosed and redemption fund of said with the bond lands without $6,649.60. water be Irrigation District is sufficient Richland fixing However, court, discharge pay and all the bonded lands with water value of the avail- Irriga- Richland indebtedness of said $62,104.78 an allowance for able made paid tion District.” 128-100 the Government discharging purpose petition for con the District’s The amended explicitly indebtedness. Thus states bonded demnation already $114,017.- with water the land at valued the United water was valued equitable interests therein and the at differ- owner deposit $114,017.72 $6,649.60, 128- between and ence described being purpose $107,368.12. made for 100 is or finding implied 4,000 the water of some or more аcres of land. $107,- Necessarily purchase quan- were worth not more than of that tity only 368.12 is said be without substantial water could come from support in the record. The District re- an district from or upon testimony lies company of its of two or from the Reclama- Bureau, any witnesses who as to the value tion showing testified and there isn’t separate if sold from -that there such purchaser ready, willing the land and outside the One District. able and buy. these at witnesses valued thus per 62,000 acre fоot for the acre $3.25 thing, “For another it would be lands, feet allocable to foreclosed necessary apply order approximately $200,000; the other valued pump- water to lands that it those seventy sixty the water “between at height ranging ed for a from 200 acre”, $243,000 dollars an or between feet, just to 300 doesn’t seem $284,000. The Government intro- to me that there has been shown here duced no as to the evidence value of enough qual- difference between the separate from the land if sold out- *5 ity along of the land The Horn and posi- side the The District. District’s Kiona, land in and this the district placing tion is that since witness owned, which the district the 4400 apart lowest value on the water if sold acres, enough that there was differ- from the land testified it was worth somebody buying to warrant ence $200,000, around there was no basis pumping that water and or it two the evidence on which the court could three hundred feet. I don’t think water, impliedly did, as value the it at any there’s еvidence the record to $107,000. around buy pumping show what it costs to argument machinery, buy power, pump overlooks a find- crucial ing height. court, towit, of water at fact made the trial that considerable highest testify I think did Mr. Miller that so “the and best use to which the concerned, portion far as the undiverted of district he the water thought Irrigation feet about 35 was the limit. of the Richland District could of put, application There pumping been evidence here have has been wаs its to the greater heights, we but ownership lands under District for the ir- rigation think of all know and I meaning course of the same.” The may judicial finding court take notice of the of basis this is set forth an entail opinion fact that it does considerable reads, oral of the court which expense pump water two or three part, as follows: apply land, hundred feet and it to “From the evidence in the case raw this land is land and not my highest it is conclusion that the present time, cultivated at so and best use for this land at the time taking all elements con- these into government agri- took it was for sideration, my it view purposes, cultural with the water to highest and best use for the water sep- be used on this land and not govern- and the land taken from and arated it sold elsewhere. irrigation ment was of the land with I have taken into consideration the water, as existed in the dis- might evidence lands here that diverting trict rather than wa- irrigated along with this water separating or ter it from the land Horn, called what has been The using it outside the district.” adjacent to Kiona in and County, Benton place in the first but there The trial court seems to have showing any there was taken the isn’t view that evidence of value quantity separate demand for this of water sold of from the land water, water, water, a block and outside the District should not be irrigate rather, showing sufficient a block considered since there was no
117 argu remaining purpose. The District’s for that purchaser prospective of a 1934, rejecting States, ment is that the Court erred v. United Olson f. C by way prove value, an offer to 704, L.Ed. 78 54 S.Ct. 292 U.S. reproduction irrigation cost, prop proceeding throughout The trial court consisting canals, District, erties of the shown be position if it could took the ditches, laterals, works. and diversion realized greater could rejected offer on separate from selling the water already had assets land, that value would allow he compensated been vаlued and for in the con- highest assets use and best against private actions Such landowners. demned, water. and the land —the ruling required by application however, concluded, that since formula, of the so-called Schwellenbach for the sale could be shown no market approved the use of which was its outside the the water Rapids court in United States v. Priest highest use was on and best Irrigation District, Cir., 1949, F.2d which it constituted the district argument overadequate supply. 524. this branch of its but sufficiеnt urges that United val- that the determination The court’s Rapids District, supra, $114,- Priest the water was ue we be overruled. This decline to do. proper evi- basis in the has a 017.72 dence. The Schwellenbach formula was adopted in order to deal with the un rejection specifiedin the Error is grew precedented situation out relating proof to sales of an offer condemning the Government’s action in *6 of the Federal lands in the Roza Division irrigation pur entire districts. The Project. The offer was for the Yakima pose properly of the al formula was to showing purpose of there existed trial, locate for either in the actions substantial market for lands a against the individual in landowners or Division, buyer paying for the Roza general against irrigation a action obliga assuming itself, an land and also district, the various elements of value forty years repay in in tion by taken the Government when it con terest a then estimated construction cost amounting irrigаtion in demned all the land an dis obliga per acre, $240 trict. In the individual actions land approximate present tion in 1943 had an compensated owners were support per value of acre. In $120 adequate supply as land with an this contention the District cites United charge. pri at a available certain The Cir., Land, 5139.5 Acres of States v. irrigated vate lands were thus valued as judg in 200 F.2d a case which by in enhanced value assets ment in a condemnation action re directly supplying devoted to partly versed because a failure of By compen the land with water. thus testimony trial court to admit as to sales sating the landowners the Government case, however, In of similar lands. paid irrigation the value of the assets the evidence was excludednot because the by highest as measured their and best in trial court the exercise its discretion use, enhancing namely, of the value sale, testimony found the as to which the compensation lands. Tо allow further dissimilar, offered, in to be fact for these assets as measured their re but because the trial court excluded production cost 128-100 would be testimony erroneously applying the compensation. Moreover, double com hearsay pensation reproduction best evidence rules. based on cost rejected case the offer on the would not measure the real worth of the attempt irrigation facilities, that it was an to show only which had thеy a dissimilar situation and not for' the thereby in that serviced the land showing purpose comparable sales of enhanced its value. The Schwellenbach land. just formula furthered the award of by affording compensation separate a rational solu- determined a suit —Priest problem. Rapids It ato difficult valuation facilities will valued in 128- compensated val- 99 the landowners and Richland in Then 128- 128-100.1 irrigation as measured 99 ue of assets and 128-100 come on for trial. The highest and best use еn- farmers their who owned the districts are told hancing (by land, telling districts) and at the the value of the the court their prevented recovery. a double these same time cases districts take not rights bones”; only valuable but “bare It has been the Dis said that all the value assets was disadvantage by placed trict was at a taken when the farm land was taken to the valuation the foreclosed lands from the individual landowners. ef- The gether everything fect of this is that is taken in that it was maneuvеred out from the district and the landowners and jury a trial on the value permitted is witness to tell and no having stip after jury permitted to hear whether non-jury ulated a good dams owned the district are made no motion to be relieved of its year years. one more or for two hundred stipulation time in either at the the trial It remains a shrouded secret whether the when took of 128-98 the court evidence districts' ditches are infested with ro- value of at or badly they dents and leak or whether are time. The did not other cement lined. The districts had road- deprived complain that was of a ways. they paved they Were or were trial, its motion for new trial in shape Possibly dam, ditch, ? horrible specifications of or briefs before error roadway pump or a has no second hand this court. how are value. But we to know without judgments entered 128- cases evidence? 98 and 128-100 are affirmed. Nevertheless, sought no one certiorari Rapids, So, supra. Priest wondrous Judge CHAMBERS, (dissent- mе, as the Schwellenbach formula is to ing). apply way through I would it all of the *7 First, I I state that were dissent. the this Hanford I condemnation. cannot Schwellenbach formula described here- see one rule one fork the river and fully and more outlined in inabove United another rule for fork another in two Rapids v. Priest Dis- States cases started at the same time. Cir., trict, 9 175 F.2d before us accepting But still the Schwellenbach might Judge time, I concur in
the first Richland, formula for I have trouble in dissent that casе. Denman’s handling with the trial court’s of the case. I so-called Schwellenbach formula It is who thinks Richland was magician. worthy Merlin, jury out is the The maneuvered of a where it was way: grant may works one. formula the cases entitled to We that suffering Washington who are water the individual farmers law holds that water brought on Ordinarily, condemnation are for trial. is to the land. attempt taking show These owners the nature a would take with it the irrigation system my But and value which land’s water. it is belief that un they refused, pleadings are them. This der and serves the declarations of the permitted only they to show are the States herein the val- United defendants were adequate government land with “an think ue of the entitled to the They supply.” are the told value artificial on, of the had chosen to stand district it had chosen to assets will be have the water point 128-98, in the 128 series of At one con 128-99 and 1. 128-100 cases on the proceedings, necessary grant it was interests under demnation district threat judge ing trial tо force the in for the new trials all United of the individual the to file notices farmers’ cases.
119 would the belonging de in and that lands” valued 128-98 “foreclosed to the trail for one 128-100. would a verdict in direct valued 128-98 scribed right case, 128-100, jury it dollar in when a had (And Richland I believe up division.) I find verdict came for trial. one dollar accept this artificial would amount while be somewhat than the less in the fact for this credence government $48,300 deposited by wa of mentions in 128-100 taking. rights, 128-99 128-100 with its declaration deсlaration in ter job up day, to clean same filed the It would seem that trial court was Rapids’ assets not Priest all of acting wisely moving of already appurte- farmers, does from taken nance—water—over to 128-98 valua- rights. When mention not along with the foreclosed land to (Richland) 128- 128-100 128-98 belonged, provided which it Richland Rapids) were declarations (Priest lost substantial But then and completed government had filed deprive there the effect Richland purchase taking by all сondemnation of a trial of the of its before Rapids district. It Priest jury. complain did a Richland not then was entitled Richland to me seems complained expressly has not here government lines on battle jury meet that was denied a trial 128-98 alone government drawn—land had lustily for its water. But it has plained com- lands in for 128-98 and water 128-98 way all of the water was jury in a waived Richland 128-100.2 valued 128-98 when it should have It one in 128-100. and asked 128-98 been valued I think I know trial recalled to be why is they complain jury in 128-98. —no began Rapids was Priest on first while easy say, is “If Richland It was dis- appeal. had for less than trial run having jury satisfied with when proceedings day when further were all the trial resumed in it should pending suspended Richland deter as to to be asked relieved of its waiver of Rapids. appeal jury.” Maybe lawyers who, in Priest mination can be found Rapids later, jury, the Priest after of a after the start trial without a Months court, court, would and tell a rise because from this came down decision they unanticipatеd turn, (in of an now middle of want- pretrial conference wonder, But ed a trial. I if 128-98) At conclusion we ask- held. thereof, clearly line, those would ed who do so to form parties were informed many would stand in how on the foreclosed lands the line. $48,300 deposited petition For -what the amended true that 2. It *8 legal Bare titles? 128-100? describes water which ditches, laterals, Richland, canals, ease- day plain- one abortive session the ments, appurtenances and some small only witness, one tiff offered valuation apparently part of the irri- of land tracts gave testimony who as to land with (but system gation the foreclosed right. and without a water The defend- say 128-98) does described lands presented two ant timony witnesses. tes- government claims that reason both of defendant’s witnesses property ownership of all the real its land, seems to be as to of the the value lying Richland Dis- within the irrigable. nonirrigated positive- but One equitable every- owner it was the trict ly the value excluded of water from Ms Maybe thing in 128-100. full described figure and, testimony Ias read the the water on 128-98 to title beneficial other, he did I believe likewise. the land when was taken During this first session the filed, defendant rather stoutly insisting at all district was times judgment final entered. when than should be valued part 128- (128-1 were all a to 128-100 inclining begun trial court originally 100. The to a condemnation overall numbers, view that subdivision should “128” freely later.) also still be valued but But it seems re- Richland came justifiably testimony ceived on the value of the wa- value of the relied being in of 128-98 128- without water. the lands ter for Wouldn’t there be a little reluctance though frailty, judicial test human
may came, when be? the shift When clearly for the first time the issues were (midway say trial), I
delineated mistrial Richland was entitled to a
on the court’s motion. own ago Two weeks Bloch v. United very States, Cir., 221 F.2d picked out an instruction on wil-
fulness, with which the defendant seems satisfied, and used the in-
struction as for reversal. Is it a
less fundamental matter when a defend- midway
ant in trial loses the original
which he was entitled under the
framing of the issues? Is it an answer say defendant, “Yes, you to the com-
plained being the issues were not you thought they going tried where were you tried, but haven’t had the nerve judge
to tell the trial after he ‘shifted longer you him; the field’ wanted
therefore, no harm has been done” ? judgment
I would reverse Marks, Cleveland, Ohio, &Wells Car- Roderick, Akron, Ohio, appel-
son & lant. In the Matter of The CHARLES M. IN- Spilka, Cleveland, Ohio, Gardner & COMPANY, Bankrupt. GERSOLL appellee. Ralph COLEMAN, Trustee, H. SIMONS, Judge, Before Chief Appellant, Judges. MILLER, ALLEN and JOHN DEERE PLOW COMPANY OF PER CURIAM. COLUMBUS, Appellee. upon came This case on to be heard No. 12282. *9 argument record and briefs and oral Appeals
United States Court of counsel; Sixth Circuit. appearing And it the conditional April sales contracts involved reserved title in payment until the seller was made for goods “every delivered; article” to be appearing might And sales ordinary made the dealer “provided retail business course time of sale the Dealer at the obtains full