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March 2, 1966

UNITED STATES of America, Plaintiff,
205.03 ACRES OF LAND, MORE OR LESS, Situate IN WARREN COUNTY, STATE OF PENNSYLVANIA, and Clifford Halftown et al., Defendants. UNITED STATES of America, Plaintiff, v. 266.13 ACRES OF LAND, MORE OR LESS, Situate IN WARREN COUNTY, STATE OF PENNSYLVANIA, and James G. Pierce et al., Defendants. UNITED STATES of America, Plaintiff, v. 268.17 ACRES OF LAND, MORE OR LESS, Situate IN WARREN COUNTY, STATE OF PENNSYLVANIA, and Norma Patterson et al., Defendants

The opinion of the court was delivered by: WILLSON

 These several tracts of land were condemned by the United States as needed in the construction of the Allegheny River Reservoir, commonly known as the Kinzua Dam. These lands are a portion of what is known as the Cornplanter Grant. The Indians owning these lands are members of the Seneca Nation but heirs of Cornplanter, a Seneca Chief during his lifetime. The lands were granted to Cornplanter by the Commonwealth of Pennsylvania in recognition for his services during and after the Revolutionary War. Lands of the Seneca Nation have also been condemned for use in this reservoir project. But it is to be noticed that they are reservation or Indian lands held in common by the Tribe. The United States Courts have upheld the right of the Government to condemn Indian lands for the construction of this and other projects. See United States v. 21,250 Acres of Land etc., 161 F. Supp. 376 (D.C.1957); Seneca Nation of Indians v. United States, 338 F.2d 55, (2 Cir. 1964); and Federal Power Comm. v. Tuscarora Indian Nation, 362 U.S. 99, 80 S. Ct. 543, 4 L. Ed. 2d 584 (1960). But the issue before this Court in the instant motion takes a different slant because the sole issue now is the amount of just compensation to be awarded the Indian owners of these private lands. Attached hereto for explanatory purposes is Appendix 1 - an excerpt from a History of Northwestern Pennsylvania, Vol. I, by Joseph Riesenman, Jr., and published by Lewis Historical Publishing Co., Inc. Appendix 2 is a copy of a statute enacted by the General Assembly of Pennsylvania, approved May 16, 1871, P.L. 879. It is this statute and the effect thereof which gives rise to the present controversy. The issue of just compensation as to these several tracts of Cornplanter land privately owned by individual Indians - heirs of Chief Cornplanter - came on for jury trial at the November Session 1965 in Erie. The only trial issue of any consequence was whether the Jury should consider these lands as held by the Indians in their tax free status but subject to the restriction as to alienation - both of which are provided for in the Pennsylvania 1871 statute. At the trial the Government strongly contended that the issue as to just compensation was to be determined as it is in other land cases, that is - the evidence was to be restricted to that of fair market value - no consideration being given to the tax free status, because the Government urged that is an incident peculiar to the owner - not to the land.

 Counsel for the Indian owners, of course, naturally took a contrary position. The Court permitted the statute to be introduced and charged the Jury to consider the tax free status of the land as mentioned in the statute, but at the same time directed the Jury's attention to Section 3 of the Statute which prohibits alienation to anyone but descendants of Cornplanter or members of the Seneca Nation of Indians. The testimony taken from the Indian rolls was that there were some 4,700 living Indians who would qualify as possible purchasers of these lands, as being members of the Seneca Nation of Indians or Cornplanter heirs.

 The judgments on the Jury verdicts in these cases were entered by the Clerk on November 26, 1965. The instant motion for new trial in these three civil actions, that is - 1137, 1138, and 1139 - was filed on December 1, 1965. It is urged that the verdicts of the Jury did not conform to the legal standard of just compensation due to the charge of the Court that the tax exempt status was an element of value to be considered by the Jury. It is said also that the testimony of one Russell R. Lane was improperly admitted, as there was no support for his opinion of the fair market value as he included in his value consideration of the tax exempt status; and finally the Government says that the verdicts were excessive.

 The United States Attorney on February 11, 1966, filed a supplemental motion for new trial. This motion mentions several other matters which this Court regards as of no consequence, but in any event it was filed more than 60 days after the 10 day period provided in Rule 59 for the service of the motion for new trial. The additional grounds for this motion need not be considered. See Greenwood v. Greenwood, 224 F.2d 318 (3rd Cir. 1955); Baird v. Aluminum Seal Co., 149 F. Supp. 874 (W.D.Pa.1956); and Marks v. Philadelphia Wholesale Drug Company, 125 F. Supp. 369 (E.D.Pa.1954).

"It may be that, if the County had proved the worth in money terms of the use as a park site, it would be entitled to compensation therefor."

 In this Court's opinion that is exactly what was done in these Cornplanter cases. The Jury had the proof of the value of the lands as Indian-held lands. The market value test is not applied in all cases. This has been recognized by the Supreme Court in many instances, notably - Montana Railway Co. v. Warren, 137 U.S. 348, 11 S. Ct. 96, 34 L. Ed. 681 (1890), and reiterated again in a full discussion of the subject in United States v. Miller, 317 U.S. 369, 63 S. Ct. 276, 87 L. Ed. 336 (1943). These lands had no market in the usual sense and, therefore, resort to the best data available to ascertain just compensation was used. This is permissible under the Miller decision, and see also Hanson Lumber Co. v. United States, 261 U.S. 581, 43 S. Ct. 442, 67 L. Ed. 809 (1923); and Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463 (1893). Thus, as this Court often says in instructing a Jury, the right of just compensation is never disputed, but the method of arriving at the amount thereof and the testimony as to what it is worth in the terms of money is always relevant in a condemnation case. In this case it seems to me that the Indians are entitled to have the land considered by the Jury with all its benefits and all its restrictions. It is land like no other land privately owned so far as this Court is able to determine. But for the Kinzua Dam the Indians owning this property would own it in perpetuity free from taxation. This status was granted by the State of Pennsylvania. Although these are private lands, the Indian owners are wards of the nation and not of the states, but the federal government has never relinquished its suzerainty over them. See Tuscarora Nation of Indians v. Power Authority, 257 F.2d 885 (2 Cir.) The tax exemption covenant on the Cornplanter lands given by Pennsylvania is the same status enjoyed by Indians in other parts of the nation as evidenced by the Federal Government's refusal to permit states to tax Indian properties. See Mahnomen County v. United States, 319 U.S. 474, 63 S. Ct. 1254, 87 L. Ed. 1527 (1943); and United States v. Rickert, 188 U.S. 432, 23 S. Ct. 478, 47 L. Ed. 532 (1903). There are exceptions, but those are few in number. It is to be noticed in the statute exempting the land from taxation that the language does not refer to the owner - which is the Government's contention - but says:

"* * * nor shall such lands, which held by the descendants of Corn Planter, or members of the Seneca nation of Indians, be liable to taxation, * * *"

 Thus, the tax exempt status is in the nature of a covenant running with the land, and like most covenants it has its advantages and disadvantages. See 20 Am.Jur.2d, Covenants, § 30, p. 600. The land is tax free, but the alienation is restricted. It is this status with regard to the instant land that has a significant application in the instant cases. For instance, in Tracts 2321 and 2321-E, the deposit by the Government - based on its valuation apparently without regard to the tax free status - was $1425.00, whereas the Jury verdict was $3731.75. In Tract 3304, the deposit by the Government - $1200.00, whereas the Jury verdict was $5022.50. In Tract 3308, the deposit by the Government - $5250.00, whereas the Jury verdict was $30,436.00. In Tracts 3334 and 3334-E, the deposit by the Government - $5500.00, whereas the Jury verdict was $31,426.50. But my recollection is that the last two cases of land were river bottom soil and were well timbered. The point is that on these tracts - Tract 2321 (8.55 acres), Tract 2321-E (.47 acres), Tract 3304 (14.35 acres), Tract 3308 (89.96 acres), Tract 3334 (64.05 acres), and Tract 3334-E (1.84 acres) - there were no habitations and very little farming.

 It appears from the briefs of counsel and their research on this subject that but little authority has been uncovered, but what has been cited seems to favor the ruling made during the course of these trials. For instance, 4 Nichols, Eminent Domain § 12.32, p. 224, states that the owner is entitled to the added value which the tax exempt status gives to his property. To the same effect is Orsel, Valuation Under the Law of Eminent Domain, (1953), § 45, p. 215. Both the textbook writers seem to base their authority on the Massachusetts decision - Old South Association v. City of Boston, which holds that the tax exempt status of the land adds to the value thereof. This decision was handed down in 1912 by the Supreme Court of Massachusetts, 212 Mass. 299, 99 N.E. 235.

 The complaint is made in the second paragraph of the motion for new trial that the Court denied Government counsel's motion to strike the testimony of Russell R. Lane, expert witness for the landowners. As I examine the record, this motion appears on page 164 and was renewed on page 177 of the transcript. However, a careful reading of the testimony as transcribed indicated that Mr. Lane had support for his conclusions as to just compensation in these cases. The qualifications of the witnesses were for the Court. See United States v. 2,872.88 Acres of Land etc., 310 F.2d 775, (5 Cir. 1962). Mr. Lane for the landowners, as well as Messrs. Victor H. Samuelson and Leonard P. Kane for the Government, were all duly qualified as expert witnesses and permitted to give their opinions. These men had been qualified by this particular Trial Judge on several of the other just compensation trials for taking of lands for the Kinzua Dam. It seemed to the Court that Mr. McKenna for the Government in this instance was attempting to pin Mr. Lane down to one so-called approach - the market value approach - as the basis for his testimony. Mr. Lane had vast experience, as had the Government witnesses Samuelson and Kane. It is doubtful in the Court's mind whether experts of the caliber of these men could or should be tied down to one particular method of reaching an opinion on value. In any event, Mr. Lane took in many factors in reaching his opinion as did the other witnesses. As experienced witnesses, none of them put themselves in the position of relying upon one method or approach as the sole basis for their testimony. As Mr. Lane was qualified, the weight of his testimony was for the Jury, and a careful reading of the transcript will support the ruling of the Court.

 The Jury which sat in these cases saw the charts and maps of the lands and their location on the Allegheny River. The Jury heard the lands fully and carefully described. In my opinion the Jury fully understood all the issues it had to determine. In these cases we are discussing wards of the nation and their property. Just compensation has been determined by a Jury of 12 citizens of the United States in a fair trial. As Trial Judge I believe that the United States Government should accept the findings of the 12 citizens who sat on the Juries in these cases. The Government says these verdicts were excessive. I do not agree. These Jurors may have brought in verdicts on the generous or high side, but still in my opinion they are just verdicts. This Court has in mind the statement of Judge Hastie in Lebeck v. William A. Jarvis, Inc., 250 F.2d 285, 288 (3 Cir. 1957), where he says in discussing verdicts that are excessive -

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