309 F. Supp. 887 | N.D. Tex. | 1969
MEMORANDUM OPINION AND FINDINGS OF FACT AND CONCLUSIONS OF LAW
Opinion
This suit is one of several brought in this Court to condemn lands in Tarrant and Parker Counties, Texas in connection with the Benbrook Dam and Reservoir Project on the Clear Fork of the Trinity River
The landowner contests the right of the government to condemn the fee simple title to the 647 acres of Tract B-108 above the 697.1 contour line
The landowner has never contested the right to take the fee simple title to the 560 acres below contour line 697.1, or to take a flowage easement in the portion of Tract B-108 above that line. In fact, he has offered and stood ready from the early stages to give the government the 560 acres in fee, a flowage easement in
The government contends that the Benbrook Dam and Reservoir was a project authorized by an Act of Congress; and that since the decisions of the Secretary of the Army as to the subject tract were within the scope of such Act, they are conclusive on the question of the purpose of the taking. The government’s position in that regard has not been consistent at all stages of the case. It has ebbed and flowed from conceding the right of judicial review to the present claim that it should be denied outright. In one place in its briefs,
In reply to the landowner’s other contention, the government denies that the differences in the project as constructed and the one as originally authorized were substantial. It says that they were mere modifications permitted by the Act of Congress creating the project, and that they were at least impliedly authorized by subsequent appropriation acts.
The Court is of the opinion that the landowner’s claims above set out are correct. The Benbrook project was authorized “for navigation, flood control, and allied purposes” by the River and Harbor Act of 1945 approved March 2, 1945 (Public Law 14 — 79th Congress, 59 Stat. 10). The construction, executive and administrative functions of this project have been at all pertinent times vested in the Engineer Corps, United States Army,
The following quotation is taken from a statement made by General Sturgis in 1957 before the Subcommittee last named in footnote 9 in regard to the
“That present practices on the liberal side to help fish and wild life and recreation, could and were being challenged by individuals through the courts with consequent potential and actual embarrassment and resulting adverse publicity. For example, a former Secretary of the Army, Mr. Pace, had been called personally to appear in court to justify certain takings which, under law, he alone was responsible for determining. He managed to avoid appearing in this case until Secretary Stevens replaced him, but it could have been very embarrassing to have justified his certification of the public need of all this particular taking.” (Emphasis added).
“The 1953 policy for land acquisition resulted from the fact that there is no general authority for the Corps of Engineers to acquire land other than for basic project purposes (navigation, flood control, etc.) and access for the public. Yet practice in taking land had, in the interest of recreation and fish and wild life, which Congress had considered only to be incidental, became so extensive as to risk successful challenge by land owners in the courts. In its responsibility to Congress for carrying out the law and in its duty to protect the Secretary of the Army from improper certification of public necessity for taking land for project purposes, the 1953 policy was essential in order to modify current field practices.” (Emphasis added).
In this case, the Corps took the portion of the subject tract in question for purely recreational purposes when that was a use not authorized by law, and for many years did everything in its power to keep the facts from coming to ”ght. Such a taking was in violation of the provision of the Fifth Amendment to the Constitution of the United States that no person shall be deprived of his property without due process of law. A matter of such grave and serious import cannot be given the brush-off treatment insisted upon by the government. The Courts are not powerless to get at the truth and to protect the landowner’s rights in such a situation.
The Benbrook project is part of the flood control system on the Trinity River. The Clear Fork of the Trinity River is the smallest of the three main tributaries which form the Trinity itself. The other two are the West Fork of the Trinity River and the Elm Fork of the Trinity River. The Clear Fork flows into and becomes a part of the West Fork just north of the courthouse in Fort Worth. The West Fork then meets the Elm Fork at Dallas. The stream so formed is the Trinity River from Dallas to its mouth at the Gulf of Mexico near Liberty. The river and all its tributaries lie wholly within Texas. The Ben-brook Dam on the Clear Fork is in Tar-rant County, of which Fort Worth is the county seat. The Clear Fork has its source in the county adjoining Tarrant County on the north, only about fifty miles by direct line from Fort Worth. A navigation system on the Trinity River has been a subject of study by Congress for years, but it has never materialized.
Study of flood control on the Trinity River in Texas began before 1920. Four preliminary examination reports submitted by the District Engineer to the Chief of Engineers between 1920 and 1935 brought no immediate results. The Flood Control Act approved June 22, 1936 (49 Stat. 1570) contained a provision authorizing and directing the Secretary of War “to cause preliminary examinations and surveys for flood control” (emphasis added) at a number of
“The improvement of the Trinity River and tributaries, Texas, for navigation, flood control, and allied purposes is hereby approved and authorized in accordance with the reports contained in House Document numbered 403, Seventy-seventh Congress.” (Emphasis added).
This legislation contained no authority to take land for recreational purposes.
Funds for the project were appropriated by the following legislation: Act of Congress approved July 31, 1947 (Public Law 296-80th Congress), Act approved June 25, 1948 (Public Law 782-80th Congress), Act approved October 13, 1949 (Public Law 355-81st Congress), and Act approved September 6, 1950 (Public Law 759-81st Congress).
The Benbrook project described in H. D. 403 and authorized by Public Law 14 called for a gated spillway dam to be located on the Clear Fork at river mile 11.3. The storage capacity of the reservoir in acre feet of water was to be dead storage, 603; conservation storage, 30,-603; and controlled (combined conservation and flood control) storage, 208,850. The elevation of the spillway crest was 672 feet and the top of the dam was 702 feet. Approximately 6200 acres would have been required. The estimated cost of the land was $483,000.00 and of the entire project approximately $5,205,502.-CO.
The project as built bore little resemblance to the one authorized by Public Law 14. The dam is located 3.7 miles farther upstream from Fort Worth at river mile 15. It is an uncontrolled spillway type. The notch crest of the spillway is 710 feet, and the main spillway crest is 724 feet. The top of the dam is 747 feet. The storage capacity in acre feet of water stated by the Definite Project Report is dead storage, 17,750; conservation storage, 88,250 (including 15,570 for sedimentation); and controlled storage, 410,013. Over 13,000 acres were acquired at a cost of about $2,500,000.00. The complete cost of the project was well over $14,000,000.-CO.
After the necessary appropriations had been made by Congress, Secretary of the Army Pace signed three letters to the Attorney General in regard to the institution and conduct of condemnation proceedings to acquire land for this project. Those letters were dated July 10, 1950, October 20, 1950 and December 20, 1951, respectively. In each instance, the Secretary had received from the Corps of Engineers a proposed draft of the letter he was to sign and send to the Attorney General and some supporting documents such as maps, ownership lists and descriptions of the lands involved and the estates to be acquired therein. He had no other knowledge or information. His certifications of the purposes and public necessity for taking the lands and estates were not based on reasoned decisions. He merely accepted without question those decisions already made in each instance by the Corps of Engineers, and signed the instruments necessary to make them effective. The persons with the Corps of Engineers who had the most responsibility for making the rec
The office of the Chief of Engineers was in Washington and of the pertinent Division Engineer and District Engineer in Dallas and Galveston, respectively.
Pursuant to the request in the Secretary’s letter of July 10, 1950, the Justice Department instituted the several suits necessary to acquire the estates in the lands described in the documents prepared by the Corps of Engineers which accompanied the letter.
The original complaint in this case, filed on July 28, 1950, stated that the lands described in the exhibit attached thereto were being condemned “pursuant to the provisions of the Act of Congress approved March 2, 1945 (Public Law 14-79th Congress), and other acts of Congress which are declaratory and amendatory”, and that the purpose of the taking was “for use in connection with the construction and operation of the Benbrook Dam on the Clear Fork of the Trinity River.” On the same day the suit was filed, Judge Davidson entered an order granting the United States the right to take immediate possession. On November 17, 1950, the Secretary filed a declaration of taking stating that the land sought to be condemned was “necessary adequately to provide for the construction and operation of Benbrook Dam and Reservoir on the Clear Fork of the Trinity River * * * ” Judgment was entered on the declaration of taking shortly after it was filed decreeing the fee simple title to the lands involved in this case to be vested in the United States, subject to certain then existing easements for public roads, highways, railroads, public utilities and pipelines.
Tract B-108, as described in the original complaint, contained 1452 acres. An amendment to the complaint reduced the acreage to 1207, more or less. 560 of those acres lie below the 697.1 five year flood frequency line. Tract B-108 is carved out of a parent tract of about 2500 acres owned by Richardson at the time this litigation began. Only 48 acres out of the 2500 acres would have been taken under the project as authorized by Public Law 14. At various times after the enactment of that legislation and prior to the beginning of actual construction on the project, the Corps of Engineers had under consideration five different taking areas in the 2500 acre tract, requiring acreage of 1589, 1320, 1460, 1452 and 1207, respectively. Only the last two became involved in this case.
Within a short time after the suit was filed, the landowner received information that the taking of part of his land was for recreational purposes, and discovery proceedings were begun to get the proof. In order to avoid the effect of the decision in United States v. Meyer, 7 Cir., 113 F.2d 387 (1940), cert. den. 311 U.S. 706, 61 S.Ct. 174, 85 L.Ed. 459, the landowner had to show that the person who actually made the decisions relating to the taking was the Secretary himself, or some person or persons under him who were acting as his alter ego in the matter. Notice was given to take the deposition of the Secretary and interrogatories calculated to get all information and documents of the Department regarding the taking and the purpose thereof were served upon counsel for the government. No objection was made to such discovery at first. By asking for time to search for and get all the documents together, it was indicated that the government would comply with discovery. Government counsel did in
“ * * * ii [ihg order 0f June 30, 1952] simply withdrew and suspended the judicial assistance which petitioner had invoked ex parte against appellee. Its purpose was to stay the proceeding until appellant complies with the discovery process, as it had expressly agreed to do on February 11, 1952, when it invited the court to enter the order of February 28, 1952. * * * ” 204 F.2d, at 555.
« * * * The court in the exercise of its inherent powers and in an effort to insure that appellee be not denied due process merely granted a stay of proceedings the overall effect of which was to condition appellant’s right to proceed on compliance with the discovery process. * * * ” 204 F.2d, at 556.
“ * * * The appellant contends that if a writ is not granted it is left without a remedy and that the power of review will be defeated. Further that the order for examination constituted not only an abuse of discretion but an error as to the scope of the court’s authority under the rules. These contentions are clearly without merit because the alleged unfortunate predicament of appellant is of its own making and the effect of the stay order requiring compliance with the discovery process can be subsequently determined on appeal in the final judgment dispositive of the whole cause. We purposely refrain from expressing our opinion on the merits of the orders of the district court and are content to say that if the judge did commit error it was invited error. This record affirmatively shows that the petitioner induced the court below to make each of the successive orders which culminated in the order of June 30, 1952, on the representation that by pursuing the suggested course appellee would be entitled to receive the information he was seeking, and it follows that the petitioner may not now challenge the trial court’s authority. * * * ” 204 F.2d, at 556.
After the case had remained dormant under the stay order for ten more years following the decision of the Court of Appeals, time had wrought enough changes to bring it back to life. The cf. ficials who would have suffered embar
The matters relating to the discovery problems are reviewed only for the value they have on the issue of the purpose of the taking.
The facts developed by discovery show what General Sturgis meant in his statement to the congressional committee when he referred to “field practices” of the Corps of Engineers which brought about “improper certification of public necessity for taking land for project purposes.” Almost simultaneously with the authorization in 1945 of the project which had been recommended by the Corps as more than adequate for navigation, flood control and allied purposes, the Corps, in line with its “practices on the liberal side to help * * * recreation”, was preparing plans to take more than twice as much land as had been authorized, and much of that excess was for purely recreational purposes. Those plans contemplated construction of parks, permanent recreation facilities for daytime use and for camps, of cottages and tourist accommodations, and of concessions to be leased out. Elaborate maps were prepared showing the proposed location of these facilities. The portion of Tract B-108 in question was recognized as being ideally suited for recreational purposes. It was hilly almost from the edge of the lake, and the high bluffs overlooking the water were ideal building sites. A substantial part of the planned recreational facilities were intended to be on the excess land in Tract B-108 above the five year flood frequency line. The final recreation plans for the project were in the form of Appendix VIII E to the Definite Project Report prepared after the passage of Public Law 14.
The survey report of the Corps of Engineers which appears in H.D. 403 states that relatively very low rates of discharge per square mile obtain along the Trinity River throughout its entire course from Fort Worth to Galveston Bay, due in part to the shape and slope of the watershed and to climatological conditions which do not favor concentrated rainfalls over extensive areas on the watershed. The Clear Fork has a particularly small watershed of only 508 square miles. The stream itself is short, and there is not much dráinage area on either side of it. Since it is only about 50 miles long, a watershed averaging about 10 miles in width would account for the entire 508 square miles.
A United States Weather Bureau was first established in Fort Worth in 1898, and records of precipitation in the Fort Worth area
Less than one month after the Ben-brook project was authorized, the Corps of Engineers began assembling data for the hypothetical storm it used for determining the spillway height and the taking line for the project as later built. It considered a number of storms 150 to 200 miles nearer the Gulf of Mexico,
The particular storm used as a basis for the hypothetical spillway design storm was the one which occurred along the Balcones Escarpment near Thrall, Texas in September, 1921. Thrall is about 30 miles northeast of Austin, and around 130 miles from the Gulf. It is over 150 miles from Benbrook. The amount of rain which fell there is uncertain, as it has been increased substantially in recent years on the basis of unofficial observations. In all probability, it was about 18 or 19 inches over a period of three days. Based upon rainstorms in areas distant from Fort Worth, much nearer the Gulf, and having orographic barriers non-existent in the Benbrook watershed and entirely different climatological conditions, the Corps came v. with this hypothetical storm of 28.2 inches of rain over a 60 hour period. It was transported to the Benbrook watershed for spillway design purposes, even though the greatest storm of record there had been 12.57 inches over a 57 hour period and the entire average rainfall for a whole year was only 31.3 inches.
The Division Engineer of the Corps, whose headquarters at Dallas were only 40 miles east of Benbrook, was highly critical of this hypothetical storm criteria in his comments to the Chief of Engineers. He pointed out that the volume of .rainfall during the Thrall storm had been greatly increased on the basis of unofficial information gathered years after it occurred, and that the revised rainfall estimate exceeded the world record for precipitation for periods of 2 to 18 hours. He pointed out that Thrall was 150 miles nearer the Gulf than Fort Worth and was on the Balcones Escarpment. He commented that the hydrological study was very theoretical, and that care should be taken about transposing it to the Benbrook watershed. He concluded that “it is believed that this storm should be materially reduced if used as a basis for spillway design in the upper Trinity River basin * * * where storms would not be affected by topographic features such as the Balcones Escarpment.”
The policy group in the Corps ignored the Division Engineer’s advice and proceeded with the hypothetical 28.2 inch storm. Even that, however, record breaking as it was, did not justify the height of the spillway necessary to get the land the Corps wanted for recreational purposes. That shortcoming was met by assuming that the reservoir was filled to capacity, when the 28.2 inch storm began, on account of another big storm and their inability to open the dam gates.
That the land was never necessary for the project is shown by the fact that the witnesses from the Corps of Engineers admitted in their testimony that the possession and control of it by the landowner since the order of June 30, 1952, has not hampered or interfered with the operation of the dam or reservoir.
The landowner has had the title to 647 acres of land taken away from him as the result of two unauthorized actions of the Corps of Engineers and either one them, standing alone, is sufficient basis for invalidating the taking.
The Court has been unable to find any case where land has been wrongfully taken as a result of radical, unauthorized changes in a project. It is fundamental, however, that a condemning agency can take a person’s land only when it has legal authority to do so. The project as built was entirely different from the one which was authorized by Public Law 14. The modifications were too significant and radical to come within the authority granted by the Statute. The following is quoted from 33 U.S.C.A., Sec. 701b-8:
“It is declared to be the policy of the Congress that the following provisions shall be observed:
“No project or any modification not authorized, of a project for flood control or rivers and harbors, shall be authorized by the Congress unless a report for such project or modification has been previously submitted by the Chief of Engineers, United States Army, in conformity with existing law.” (Emphasis added).
33 U.S.C.A., Sec. 701m provides that the Chief of Engineers is “authorized in his discretion to modify the plan for any dam or other work heretofore or hereafter authorized so that such dam or work will be smaller than originally planned with a view to completing a useful improvement within an authorization * * Congress has some protection in that kind of modification, but it is difficult to see how a much larger dam could be completed within an authorization. The statute also imposes the further restriction that the modified dam “shall be located on the chosen site.” The one in this case was almost four miles from the authorized site. This is answer enough to the government’s claim that the subsequent granting of appropriations for the project impliedly authorized the project as built, but there is more. The various appropriations acts heretofore cited provide that the money granted is for projects “heretofore authorized”, and expressly state that “no part of this appropriation shall be expended for any preliminary examination survey, project or estimate not authorized by law.” Exhibits offered in evidence, as well as the testimony of the government’s witness, Gurnee, of the Corps of Engineers, show that it was not the intention of the Corps to direct the attention of Congress to the modifications. If Congress had considered that it was being properly advised on the way the Corps was handling these projects, there would have been no occasion for the proceeding known as, “Investigation of the Corps of Engineers Civil Works Program by a Sub-committee of the Committee on Appropriations, House of Representatives, 82d Congress, First Session.” One of the fundamental purposes of that investigation was to determine why the cost of the projects was always so much greater than the estimate given to get authority for the project.
The cases on this matter of implied authority are scarce, probably because so few people would have a right to bring a judicial action raising the question. Maiatico v. United States, 112 U.S.App. D.C. 295, 302 F.2d 880 (1962), is most nearly in point. In that case, the government sought to condemn certain property in the District of Columbia. The Administrator of General Services was the administrative officer who made the determination for the necessity of taking and who filed the declaration of taking. The landowner successfully contested the condemnation on the ground that the necessary authority for the taking did not exist. The government argued that it had express authority, and in the alternative that authority had been impliedly given under the act making appropriations for the General Services Administration. In rejecting such contentions, the Court of Appeals said at pp. 885-886:
“The Government would have v. say that the general provision of the Second Supplemental Appropriation Act supplants the limitations of the Public Buildings Act of 1959 and the Appropriation Act which had so carefully been linked to the former. Carried to its logical conclusion, the Government’s construction would sweep away all preexisting requirements. Any such inversion of the purpose of Congress would be in direct conflict with the governing principle to be applied here. ‘However inclusive may be the general language of a statute, it “will not be held to apply to a matter specifically dealt with in another part of the same enactment. * * * Specific terms prevail over the general in the same or another statute which otherwise might be controlling”. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208 [52 S.Ct. 322, 76 L.Ed. 704].’”
Since the project as built was so grossly beyond the limits of the project created by Public Law 14, there was no authority to acquire the land sought to satisfy the radically excessive modifications.
The 48 acres of Richardson land required by the project created by Public Law 12 do not lie within the 647 acres of Tract B-108 now in question. The claimed necessity for the taking of such 647 acres arose from the construction of a project so totally different from the one contemplated by the statute that it amounted to an unauthorized project. The taking of the portion of Tract B-108 here in question was therefore invalid for lack of authority. Mariatico v. United States, supra.
The government’s fears of dire results generally from such a holding are not justified. It will not have to abandon the project and return all heretofore acquired land to the former owners. Nichols on Eminent Domain, 2d Ed. sec. 35.
“The exact effect of these provisions is not entirely clear. But we find nothing in the statute to indicate that Congress intended to deprive the owner of all opportunity to challenge the validity of the taking for departure from statutory limits. * * * ”
324 U.S., at 240, 65 S.Ct., at 637.
“We think the purpose was to leave intact the owner’s remedy existing before the statute was adopted * * * ” 324 U.S., at 240, 65 S.Ct., at 637.
“While the language and the wording of the act are not wholly free from doubt, we see no necessary inconsistency between the provisions for transfer of title upon filing of the declaration and making of the deposit and at the same time preserving the owner’s preexisting right to question the validity of the taking as not being for a purpose authorized by the statute under which the main proceeding is brought. That result may be reached if the statute is construed to confer upon the Government, upon occurrence of the events specified, only a defeasible title in cases where an issue concerning the validity of the taking arises. * * * The alternature construction, that title passes irrevocably, leaving the owner no opportunity to question the taking’s validity or one for which the only remedy would be to accept the compensation which would be just if the taking were valid, would raise serious question concerning the statute’s validity. * * * ” 324 U.S., at 241, 65 S.Ct., at 637.
In the Maiatico case, the Court said 302 F.2d at p. 886:
“Nothing we have said is in derogation of the vast and admitted power of the Government for its own sovereign purposes to appropriate private property, so long as the owner is awarded ‘that just compensation which the Constitution requires.’ Despite appellants’ allegations that the taking is unnecessary, it is not for v. to determine whether or not a particular project be desirable. That is within the power of the Congress, however, subject to the right of the owners ‘to challenge the validity of the taking for departure from the statutory limits.’ ”
The government makes no argument against the rule that a landowner can challenge the validity of a taking “for departure from the statutory limits.” The Catlin case is cited with no indication of disapproval in Berman v. Parker, 348 U.S. 26, 36, 75 S.Ct. 98, 99 L.Ed. 27 (1954), the authority most heavily relied' upon by the government. The question here is whether the courts have the power to get at the truth if the administrative office making the determination does not admit that the taking is for a purpose beyond statutory limits. The government argues that the administrative officer’s statement of the purpose of the taking is conclusive on the landowner, regardless of what the truth is.
The general rule is that the declaration of taking of the proper administrative officer is not subject to judicial review. City of Oakland v. United States, 9 Cir., 124 F.2d 959 (1942), cert. den. 316 U.S. 679, 62 S.Ct. 1106, 86 L.Ed. 1753; United States v. 243.22 Acres of Land, 2 Cir., 129 F.2d 678 (1942), cert. den. 317 U.S. 698, 63 S.Ct. 441, 87 L.Ed. 558; United States v. Montana, 9 Cir., 134 F.2d 194 (1943), cert. den. 319 U.S. 772, 63 S.Ct. 1438, 87 L.Ed. 1720. There are, however, a number of cases, state and federal, which recognize that while the scope of review is limited, it exists where the action of the official issuing the declaration acted arbitrarily, capriciously or fraudulently.
The Fifth Amendment to the Constitution of the United States guarantees that “No person shall be * * * deprived of life, liberty, or property, without due process of law * * Under that guaranty, the land here in issue was Richardson’s to enjoy until he chose to dispose of it voluntarily or until he was divested of it for a purpose and in the manner provided by law. The unauthorized taking of his property was a violation of his rights under this due process clause. United States v. Car-mack, supra;
The rule announced in the eases cited severely restricting inquiry into the administrative officer’s determination of the purpose of a taking do not reach the question at issue here. They do not say that an inquiry cannot be made as to the correctness of the certification of the purpose. The effect of the holdings in those cases is that where the actual purpose of the taking is correctly certified, and the purpose is one authorized by law, the determination to take cannot be challenged. That is not the case here. The Secretary certified that the land was being taken for the basic project purposes of floor control and navigation, when the real purpose was recreation. Even though the Secretary made the erroneous certification innocently, it was tainted by
After the hearing above mentioned, Congress passed legislation authorizing the return to the owners involved in the Benbrook project of all lands taken above elevation 697.1, subject to a perpetual flowage easement and other restrictions. Many owners got such a return; but, as would be expected, Richardson was not one of them. He had instigated some of the investigation. The excess in Tract B-108 above elevation 697.1, which was tagged during the recreational planning stages as being ideally suited for building sites on account of its being on the “high bluffs”, became most essential for basic project purposes. In their efforts to support such necessity, the Corps at one time suggested that it was needed as a site for burning brush — more than a section of land of this type for brush burning!
Since the early stages, the landowner has waived his right to question the taking as to the 560 acres, more or less, in Tract B-108 below elevation 697.1, as he had a right to do. See quotation from Nichols on Eminent Domain in footnote 16. The unconstitutional taking of the 647 acres, more or less, in such tract above elevation 697.1 vested in the United States with only a defeasible fee. Catlin v. United States and Maiatico v. United States, both supra. The title to such 647 acres should be divested out of
The government claims that none of the statements or actions of its officials offered in evidence is binding on it. The Court considers that evidence as to things said or done in the planning and formulation of the project is admissible on the ground, among others, that they were res gestae of the project itself. Aside from matters of that kind, the Court’s findings and conclusions would be the same without the evidence questioned by the government.
Judgment will be entered in accordance with the Court’s findings and conclusions.
. This is the name used in the Act of Congress authorizing the project. “Ben-brook”, “reservoir" and “project” will be used herein at times for brevity. The reservoir resulting from the dam is called “Benbrook Lake”.
. S. W. Richardson, the owner of the subject tract (B-108) at the time this suit was filed, has died and his executors have been made parties defendant in his stead.
. References of this kind are to the ground elevation in feet above mean sea level. 697.1 is the five year flood frequency line.
. Memorandum in Opposition to Defendant’s Motion Reurging Dismissal.
. Same memorandum as in footnote 4. One wonders where the feeling of security in this case comes from when he reads the statement of General Sturgis, Chief of Engineers, quoted shortly hereafter, about how embarrassing it would have been for the Secretary to have had to justify his certification of the public need for this taking.
. Same memorandum as in footnote 4.
. Government’s Memorandum in Support of Findings of Fact and Conclusions of Law.
. Hereinafter referred to as Corps of Engineers.
. The Chief of Engineers called this a “field practice”, and said it became “so extensive as to risk successful challenge by landowners in the courts.”
. This policy was exposed in Investigation of the Corps of Engineers Civil Works Program by a Subcommittee of the Committee on Appropriations, House of Representatives, 82d Congress, First Session (1951), and in Hearings before a Subcommittee of the Committee on Government Operations, House of Representatives, Eighty-fifth Congress, First Session, on Army-Interior Reservoir Land Acquisition Policy (1957).
. By way of example only, the following is quoted from a letter of October 19, 1953 from Robert T. Stevens, the then Secretary of the Ax-my, to the lawyer who was representing Richardson at that time, to show the effect of the application of such policy to Tract B-108:
“Upon application of the policy to the taking of the Richardson land, it has been determined necessary to acquire fee title to approximately 560 acres lying below contour elevation 697.1. The remaining 38 acres is that land along the shore of the conservation pool which is subject to inixndation at least once in each 5 years on the average. A flowage easement will be adequate in the remaining 597 acres of land lying between elevations’ 697.1 and 741.0. To operate the project for flood control, it will at times be necessary to store floodwaters in the easement area provided. Consequently, it is necessax'y that structures for human habitation be prohibited in the easement area. It is not px'oposed to acquire any interest in the land above contour elevation 741. Since the land bordering the conservation pool is extensive, it will be necessary that the Government acquire a right-of-way for road purposes across the easement area in order to perform necessary operation and mainteance activities in the fee area. This right-of-way, I am sure, can be one that will be mutually agi'eeable.
“It is very gratifying to me that the new policy reduces the amount of land required from Mr. Richardson to 560 aci’es from the 1,460 aci'es originally recommended. In my opinion, the 560 acres, computed on the criteria of the new policy, will serve the needs of the Government and at the same time permit Mr. Richardson to retain control of 900 acres originally proposed for condemnation.
“I sincerely hope that yoxx and Mr. Richardson will feel that I have made not only a conscientious but also a wise determination of policy in regard to real-estate acquisition. If so, I hope that the Richardson litigation may now be settled.
I have no fear that the landowner’s title and rights will be described so clearly that they will not be subject to some other interpretation in the future by the Corps of Engineers. I will welcome your reaction to this letter and the policy enclosed herewith.”
(Hearings before a Subcommittee of the Committee on Government Operations, House of Representatives, Eighty-fifth Congress, First Session, on Army-Interior Reservoir Land Acquisition Policy, page 446.)
. Some of these matters are stated from the Court's judicial knowledge of the geographical features of the State. Granville-Smith v. Granville-Smith, 349 U.S. 1, 75 S.Ct. 553, 99 L.Ed. 773; Hoefs v. Short, 114 Tex. 501, 273 S.W. 785, 40 A.L.R. 833; Humphreys-Mexia Co. v. Arseneaux, 116 Tex. 603, 297 S.W. 225, 53 A.L.R. 1147.
. There are much more important matters to be determined now than fixing the blame for the delay. While in the natural course of things the case would have been disposed of years ago if it had not been for the thirteen year impasse reulting from the government’s refusal to submit to discovery, there has been delay since the government’s change of position that cannot be charged to it. At one time it appeared that negotiations for settlement would bring the case to a close. Then followed a long period of illness of leading counsel for the landowner which turned out to be terminal. After his death, time had to be granted new counsel to become familiar with the case. Discovery took longer on account of the passage of time. Finally, a substantial delay has been due to a docket which has prevented the Court from taking out the several weeks necessary to study the voluminous record, including congressional proceedings of which the government has asked it to take judicial notice, and the authorities on the difficult legal questions here involved, and then to organize the ease in such fashion that it could be put on paper within reasonable limits.
. Withholding or failure to produce important evidence within the peculiar control of a party raises the inference that such evidence would be unfavorable to that party's cause. Kirby v. Tallmadge, 160 U.S. 379, 383, 16 S.Ct. 349, 40 L.Ed. 463 (1895); Foust v. Munson S. S. Lines, 299 U.S. 77, 86, 57 S.Ct. 90, 81 L.Ed. 49 (1936); Interstate Circuit v. United States, 306 U.S. 208, 226, 59 S.Ct. 467, 83 L.Ed. 610 (1939); Ford v. United States, 5 Cir., 210 F.2d 313, 317 (1954); United States v. Johnson, 5 Cir., 288 F.2d 40, 45 (1961).
. References of this kind to the “Fort Worth area” will include the Clear Fork watershed, as it is in the immediate vicinity of Fort Worth and has substantially the same precipitation.
. None of the hypothetical storm spillway design criteria made any allowance for the well established reservoir management practice of lowering the level of the
. The subcommittee found that one of the reasons flood control projects had been costing so much more than anticipated by Congress was that the reports of the Corps of Engineers to the Appropriations Committee after the projects were once authorized were inadequate to keep the Appropriations Committee informed. The importance of having the full information
“Even worse from the national standpoint is the fact that the $800 million increase, if known to Congress in whole or in part when initial constructions funds were appropriated, would have weighed heavily in the action which Congress took then. That was the hour of decision. At that time the economic justification for many projects hung in delicate balance. Any reported cost increase would have had a profound effect on the crucial congressional decision of whether to initiate construction. Undoubtedly, some of the 182 projects would not be under construction today if Congress had had reliable information from the Corps of Engineers, developed by competent engineering planning."
. The following is quoted from the text cited:
“The constitutional provisions which affect the exercise of the power of eminent*900 domain are not intended as abstract limitations upon tho power of the government so that any statute which violates such provisions is necessarily and for all purposes void, and the acts of any public officials thereunder are necessarily illegal. On the contrary, the provisions were intended solely for the protection of the individual property owner from the aggressions of the government in concrete cases. It necessarily follows that, so far as the limitations upon the power of eminent domain are concerned, no one but the owner of property whose constitutional rights are violated can object to the validity of a statute on the grounds that it authorizes the exercise of eminant domain in a manner forbidden by the constitution, and if, when property in taken under an unconstitutional statute, the owner sees fit to waive his right to object, no one else has any ground, to complain, and the taking is as effective to pass the title to the property as if all the requirements of the constitution had been complied with. Such waiver may be by parol, or it may be implied from the owner’s acceptance of the compensation. However, an owner, by merely filing a claim for damages is not estopped from contesting the constitutionality of the taking.”
. The government has devoted a good portion of its briefs to the discussion of whether the Court has to find that the parties making the decisions in this case were guilty of fraud. The Court deems it unnecessary to decide whether the officials acted maliciously. It could be that subjectively they had what they considered lofty motives in taking the excess Richardson land for recreational use by the public, just as a policeman might consider that his search for the truth would justify coercion from an accused in his custody. Regardless of what their motives were, they were taking private property from people for purposes they knew were not authorized by law. In so doing, they were violating their constitutional rights under the Fifth Amendment.
. Federal cases control in condemnation suits in the federal courts. The state cases are cited to show the widespread recognition of the exception to the general rule that administrative determinations on taking are not subject to judicial review.
. “ * * * The Fifth Amendment, in turn, provides him with important protection against abuse of the power of eminent domain by the Federal Government.” 329 U.S., at 236-237, 67 S.Ct., at 255, 91 L.Ed., at 214.
. "Conference with Secretary Stevens in early May 1953; I was called to Secretary Stevens’ office around May 5, 1953, and found with him a Mr. Johnson, attorney to (sic) Mr. Sid Richardson. After introducing Mr. Johnson, Mr. Stevens reminded me of his responsibility under the law for final certification of necessity in the public interest for the taking of land for project purposes, and that he was troubled by the general extent of the dissatisfaction he was aware of throughout the country by individuals who had been deprived of their property adjacent to our reservoirs, which property lay clearly outside the flowage line, sometimes as much as a mile away, this property being taken under the guise of public access, block-out, severance and similar reasons that were in reality subterfuges for extending legal authority for acquiring land for recreation and other purposes that would, and were, not supportable by the courts in interpreting the law.
“Therefore, the responsible authority charged by Congress for the certification of every taking, Mr. Stevens said he was deeply troubled by the Chief of Engineers' application of the various flood-control laws over recent years. He said that he -was not personally against recreation for the public or the acquisition of land for fish and wildlife, or any other purpose for the public good; but it such purposes were the intent of Congress, Congress should so express itself by general authorizing legislation. He supported this by asking me if there had not been cases of individual projects where Congress specified such purposes in the legislation authorizing such projects to which I answered affirmatively that there were; but a very few.
“Mr. Stevens then said that while he was not familiar in detail with acquisition determinations and actions in the case of Benbrook Reservoir, he was sufficiently informed to conclude that this was a particularly flagrant case of the general observation he had just cited, and he asked me to hear what Mr. Johnson had to say generally about the acquisition policy there and specifically as to the case of his client, Mr. Richardson.” (All emphasis added) (page 423).
