The opinion of the court was delivered by: SCHOONMAKER
This proceeding arises out of a land condemnation case wherein the United States condemned certain lands for the purpose of erecting and maintaining the Loyalhanna Creek Flood Control Dam in this District.
In the course of these proceedings, the United States acquired title by condemnation proceedings of approximately one hundred and four acres of land belonging to the estate of Wilbur P. Graff, of which land approximately fifty-six acres were underlaid with coal. The land so taken was a part of a larger tract of four hundred and ninety acres owned in fee by the Graff Estate, and approximately thirty-five hundred acres of land in which the Graff Estate owned the coal-mining rights.
The Graff Estate moved for a new trial, assigning eleven reasons therefor; but on the argument of the motion, counsel for the Graff Estate urged only the following five reasons therefor:
1. The verdict is against the overwhelming weight of the evidence.
2. The jury disregarded the instruction of the court in rendering an arbitrary verdict inconsistent with the evidence.
3. The court erred in excluding testimony of water hazard as affecting the fair market value of the Graff Estate properties.
4. The court erred in overruling plaintiff's objections as to the cross-examination of witnesses as to their testimony before the Board of Viewers.
5. Under the record generally the plaintiff is entitled to a new trial.
As to points 1 and 2, we cannot say that the verdict is overwhelmingly against the weight of the evidence and the instructions of the court, leading us to grant a new trial in this case. There is evidence that will sustain the verdict. The mere fact that the verdict might be against a preponderance of the evidence is not a sufficient ground for granting a new trial. Weed v. Lyons Petroleum Co., D.C., 294 F. 725, 732 (Morris, D.J.), affirmed, 3 Cir., 300 F. 1005, on opinion of court below.
In addition to the testimony given in court, we have the fact that the jury in this case went out to view the premises, and could exercise its own judgment derived from that view, as well as from the evidence given in court. This is pointed out by Mr. Justice Lurton in Columbia Heights Realty Company v. Rudolph, 217 U.S. 547, on page 560, 30 S. Ct. 581, on page 586, 54 L. Ed. 877, 1. Ann.Cas. 854, as follows: "The power of the court to review the award by such a jury must, in the very nature of the matter, be limited to plain errors of law, misconduct, or grave error of fact indicating plain partiality or corruption. The jury saw and heard the witnesses; the court did not. The jury went upon and viewed the premises; the court did not. The duty to review did not involve mere error in judgment as to the extent of enhancement in value, for the judgment of the jury manifestly rested upon much which could not be brought before the court. The jury was expected to exercise its own judgment, derived from personal knowledge from a view of the premises, as well as from the opinion evidence which might be brought before them. Shoemaker v. United States, 147 U.S. 282, 13 S. Ct. 361, 37 L. Ed. 170. See also Murray v. United States, 76 U.S.App.D.C. 179, 130 F.2d 442; Willis v. United States, 69 App.D.C. 129, 99 F.2d 362, 365.
In this case, there was a sharp issue of fact as to whether or not the Government, in taking the land it did take for this floodcontrol dam, deprived the Graff Estate of the most possible entry into the coal underlying the lands adjacent to the dam site. The Graff Estate contended that the only feasible method of mining the coal vein here involved, was by drift entry, and that the only available place therefor was on the particular lands taken by the Government for the dam site. On the other hand, the Government contended that the balance of the coal field owned by the Graff Estate was not affected by the construction of this dam at all, because there was approximately two thousand feet of out-crop coal remaining in the area not taken by the Government, with proper tipple height, sufficient waste area, where a drift entry could be made into this coal at some distance below the dam site, and near to the center of the coal field. In addition to that, there was evidence offered by the Government that the method of drift mining is not the only way of getting this coal out of the ground, that a shaft entry into this coal at a point on Girty's Run might be made, through which this coal might be mined to better advantage than by a drift opening. In addition to this, there was evidence that the location of the dam neither contributed to, or detracted from, the value of the Graff Estate coal lands, and would have no effect on the mining of the coal lands remaining in the Graff Estate.