The opinion of the court was delivered by: WILLSON
These cases are before the court on exceptions filed by the United States to an award in plaintiffs' favor in the aggregate sum of $ 33,500 made by three commissioners in land condemnation proceedings. The Commission was appointed by this court under Rule 71A of the Federal Rules of Civil Procedure, 28 U.S.C. The Commission held hearings, took testimony and received other evidence, viewed the condemned property and in due course filed its report containing findings of fact and conclusions of law. The exceptions filed by the United States are timely and will be considered as objections as provided in Rule 53(e)(2). Although six objections were filed, the Government makes three contentions:
1. Plaintiffs' witnesses who testified to value were not qualified to so testify.
2. The Commission's findings as to value are based upon improper and erroneous measures of value.
3. The amount of the award was contrary to and against the weight of the evidence.
The United States requests a new trial or in the alternative that a remittitur be entered reducing the amount of the awards.
At the outset it is noticed that Rule 71A(h) provides that when a Commission is appointed, it shall have the powers of a master as provided in subdivision (c) of Rule 53. Its action and report shall be determined by 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. Rule 53 requires the court to accept the Commissioner's findings of fact unless clearly erroneous. It also provides that 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.
A hearing has been had on the Government's objections, counsel have been heard at oral argument and have filed briefs which have been considered. The court suggested and Government counsel has supplied, as evidence for the record, information as to the time of completion of the dam proper and time of the installation of the top gates of the Conemaugh Dam. This additional evidence in no wise affects the findings or the report of the Commission.
The plaintiffs are the owners of three contiguous tracts of subsurface coal property which were operated by them as a single coal mine, and Sulkosky and his wife own a fourth tract on which he operates a dairy farm. The Government concedes that title to the properties is not in dispute and is in plaintiffs.
The condemnation by the Government is pursuant to various acts of Congress, particularly the Flood Control Act of Congress, approved June 28, 1938, 52 Stat. 1215, 33 U.S.C.A. § 701b et seq., and other acts which authorized the construction, operation and maintenance of the Conemaugh Dam and Reservoir on the Conemaugh River, Pennsylvania, Ohio River Basin. Easements only were taken in these cases. The declaration of taking sets out that the estates taken for public uses are as follows:
'3(a) The perpetual right and easement to flood all the coal and mining rights in the Pittsburgh Vein or Seam in and underlying Tracts T-1605A, T-1605B and T-1605C, Conemaugh River Reservoir Project, as may be necessary and as is affected by and resulting from the construction, operation and maintenance of the Conemaugh River Dam and Reservoir, subject, however, to existing easements for public roads, streets, highways, public utilities, railroads and pipelines.
'Reserving, however, to the owners of said coal and mining rights, their heirs and assigns, all such rights and privileges that may be used and enjoyed in said property, subject, however, to the right of the United States to flood the same as aforesaid.
'(b) The perpetual right and easement to flood tract J-846 as may be necessary by means of the construction, operation and maintenance of the Conemaugh Dam and Reservoir, and to clear by destruction and/or removal of trees, brush, fences, crops, buildings and any other vegetation, structures, or obstacles which may be detrimental to the operation and maintenance of said dam and reservoir, subject, however, (a) to all coal underlying said tract which became vested in the Maher and Graff Coal Company by deed from Thomas Maher et al. dated 5 November 1927 and recorded in the Recorder's office of Westmoreland County, Pennsylvania, in Deed Book Volume 865, page 203; (b) to the outstanding interest of third party lessee in the underlying oil and gas in said tract; and (c) to existing easements for public roads, streets, highways, public utilities, railroads and pipelines.
'Excepting and reserving from the easement herein taken in Tract J-846, all the oil, gas and other minerals underlying said tract;
'Reserving, however, to the owners of said Tract J-846, their heirs and assigns, all such rights and privileges that may be used and enjoyed in said land without interfering with or abridging the rights, privileges and easements acquired by the United States of America in this proceeding; provided, however, that no improvements, structures and obstructions of any kind shall be placed or constructed upon or ...