United States of America v. 74.57 Acres of Land, more or less, Located in Evergreen, Conecuh County, Alabama et al

Filing 114

Order denying the defendants' request for appointment of a three-person commission to hear the evidence & assess just compensation. Unless defendants withdraw their jury demand by 11/21/2014, the issue of just compensation will be submitted to a jury trial. If the jury demand is withdrawn, all issues will be decided by the Court via bench trial. Signed by Chief Judge William H. Steele on 10/22/2014. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
v.
)
)
74.57 ACRES OF LAND, MORE OR
)
LESS, LOCATED IN EVERGREEN,
)
CONECUH COUNTY, STATE OF
)
ALABAMA; SUE S. CRAMER; STOWERS )
TIMBERLANDS, L.L.C., et al.,
)
)
Defendants.
)

CIVIL ACTION 12-0239-WS-N

ORDER
This matter comes before the Court on the parties’ respective position memoranda (docs.
108 & 109) concerning the manner in which just compensation should be determined at trial.
In this federal condemnation case, Magistrate Judge Nelson entered a Scheduling Order
(doc. 71) fixing a deadline of September 26, 2014 for the parties “to file pleadings setting forth
their positions on how compensation should be determined.” (Doc. 71, ¶ 2.) In so doing, Judge
Nelson observed that, back on May 15, 2012, defendants Sue S. Cramer and Stowers
Timberlands, LLC, had filed a document in which they “demand a trial by jury on the issue of
just compensation in this condemnation case.” (Doc. 18.) She also noted that Rule 71.1(h) of
the Federal Rules of Civil Procedure creates an alternative mechanism, under which just
compensation may be determined via a three-person land commission. With the February 2015
trial setting fast approaching, and with the parties apparently unable or unwilling to agree as to
who the arbiter of just compensation should be at trial, Judge Nelson prudently brought the issue
to the forefront by having the parties submit dueling briefs on the subject.
The Government’s Position is that “[t]he most efficient option in this case for trial is a
bench trial” (doc. 108, at 7), but that this option is unavailable unless defendants withdraw their
timely jury demand. The Government further states its view that “trial by land commission
would not be appropriate under the circumstances of this case.” (Id. at 1.) By contrast,

defendants’ Position does not hold out even a glimmer of hope that defendants might withdraw
their jury demand, but instead asserts that “there exist[s] just reason for the court to appoint a
three-person commission to hear the evidence and assess just compensation.” (Doc. 109, at 2.)
This question is governed by Rule 71.1, which provides that, “[i]n an action involving
eminent domain under federal law, the court tries all issues, including compensation, except
when compensation must be determined … by a jury when a party demands one within the time
to answer …, unless the court appoints a commission.” Rule 71.1(h)(1)(B), Fed.R.Civ.P.
Regarding the appointment of a commission, the rule elaborates that “[i]f a party has demanded a
jury, the court may instead appoint a three-person commission to determine compensation
because of the character, location, or quantity of the property to be condemned or for other just
reasons.” Rule 71.1(h)(2)(A). Because defendants have made a timely jury demand that they
have shown no inclination to withdraw, the option of a bench trial is unavailable here; therefore,
the only remaining decision is whether just compensation will be determined by a jury or by a
three-person land commission.1
On its face, Rule 71.1 provides that even where a party has demanded a jury, the court
may appoint a land commission to make the just compensation determination “because of the
character, location, or quantity of the property to be condemned or for other just reasons.” Rule
71.1(h)(2)(A). The Eleventh Circuit has explained that “[t]he Federal Rules of Civil Procedure
specifically provide for the appointment of commissioners in lieu of a jury … in condemnation
actions in which the district court determines that the ends of justice best would be served by
foregoing trial by jury.” Alabama Power Co. v. 1354.02 Acres, More or Less, of Land in
Randolph County, Ala., 709 F.2d 666, 666-67 (11th Cir. 1983). Whether to appoint a
commission or to allow compensation to be determined by a jury is left to the district court’s
sound discretion. See, e.g., Georgia Power Co. v. 138.30 Acres of Land, 596 F.2d 644, 647 (5th
1

It is well settled that there is “no constitutional right to a jury in an eminent
domain action.” Alabama Power Co. v. 1354.02 Acres, More or Less, of Land in Randolph
County, Ala., 709 F.2d 666, 667 (11th Cir. 1983). Nonetheless, in a straightforward application
of Rule 71.1(h)(1)(B), the Court agrees with the Government that, in light of defendants’ timely
demand for jury trial, “defendants would have to withdraw the demand in order for this case to
be tried to the Court.” (Doc. 108, at 2.) Defendants have not withdrawn that jury demand, and
have provided no indication that they would consider doing so. Accordingly, the option of
having this Court fix the amount of just compensation at trial appears to be off the table.

-2-

Cir. 1979) (“Subdivision (h) of Rule [71.1] … gives the court discretion … to order the use of a
commission to determine the compensation due.”).2
For purposes of exercising that discretion, the rule provides guidance that appointment of
a commission may be appropriate “because of the character, location, or quantity of the property
to be condemned or for other just reasons.” Rule 71.1(h)(2)(A). Applying this rule, the Eleventh
Circuit observed that an eminent domain case involving “over 500 tracts of property spread over
seven counties and 122 miles, is precisely what the drafters … had in mind in listing exemplary
reasons for denying jury trials (character, location, and quantity).” Southern Natural Gas Co. v.
Land, Cullman County, 197 F.3d 1368, 1373 (11th Cir. 1999); see also United States v. 320.0
Acres of Land, More or Less in Monroe County, State of Fla., 605 F.2d 762, 828 (5th Cir. 1979)
(“In light of the number of parcels involved in these condemnation proceedings, the remoteness
of these parcels from any federal courthouse in which a jury trial might be conducted, and the
complexity of the issues, this certainly is one of those exceptional cases in which trial by a
commission is not only appropriate, but is required in the interest of justice.”) (internal quotation
marks omitted). Consistent with these authorities and the text of the rule, commentators have
opined that the practice that is and should be followed “is for the district judges to make
reference to a commission in any case in which they believe there is reason for preferring that
method to a jury trial.” Wright, Miller & Marcus, 12 Federal Practice & Procedure: Civil 2d §
3051 (citation omitted).3
2

See also Southern Natural Gas Co. v. Land, Cullman County, 197 F.3d 1368,
1373 (11 Cir. 1999) (“The plain language of Rule [71.1] grants the district court broad
discretion.”); Sykes v. United States, 392 F.2d 735, 740 (8th Cir. 1968) (recognizing committee’s
intent for “a broad discretion to be vested in the District Court to choose between the use of
juries or of commissioners in the condemnation cases brought before them”) (citation omitted);
National Railroad Passenger Corp. v. Catalina Enterprises, Inc. Pension Trust, 147 Fed.Appx.
378, 381 (4th Cir. Sept. 30, 2005) (finding that district court properly exercised discretion in
determining that just compensation should be decided by land commissioners based on certain
enumerated considerations); Questar Southern Trails Pipeline Co. v. 4.26 Acres of Land, 194 F.
Supp.2d 1192, 1193 (D.N.M. 2002) (indicating that the rule “provides the Court discretionary
power, in the delineated circumstances, to appoint commissioners”).
th

3

The Advisory Committee’s Supplemental Report as to Rule 71.1(h) identifies
certain circumstances in which such a belief might be appropriate: (i) need for uniformity of
awards in cases involving numerous parcels (“The jury system tends to lack of uniformity. Once
a reasonable and uniform standard of values for the area has been settled by a commission,
(Continued)
-3-

The straightforward question presented, then, is whether there is reason in this case for
preferring the three-person commission method of determining just compensation over the jury
method. Defendants, as the parties requesting appointment of a commission, cite generically to
“the character, location and quantity of the property to be condemned as well as the nature and
quantity of the property being affected by this condemnation.” (Doc. 109, ¶ 4 (internal quotation
marks omitted).) However, they do not elaborate or explain what aspect of the character,
location and quantity of the subject property being condemned in this case favors appointment of
a three-person commission. The information before the Court is that this action involves a
singular, 74.57-acre strip of land that is part of a single tract owned by a single set of defendants
in Evergreen, Alabama. This case does not involve numerous tracts of land scattered over a wide
geographic area and encompassing numerous landowners at an inordinate distance from the
federal courthouse. The parties have not identified any particular complexities unique to
valuation in this case (such that there might be a benefit to leveraging the special experience and
expertise of a three-person commission), or any other reasons why the interests of justice would
favor appointment of a commission. In short, the Court lacks any specific information from
which to conclude that utilization of a land commission to determine just compensation in this
case would produce a fairer, faster, more efficient, or more just result than a jury would. Left
with no case-specific basis for determining that the interests of justice would be better served by
appointment of a land commission rather than a trial by jury, the Court will exercise its
discretion not to appoint such a commission.4

litigation ends and settlements result.”); (ii) “[w]here large areas are involved many small
landowners reside at great distances from the place where a court sits,” creating hardships that
may be alleviated via a travelling commission; (iii) where juries would have to travel “long
distances to view the premises;” or (iv) when a jury trial would impose an excessive “burden on
the time of the courts.” Rule 71.1(h), Advisory Committee Supplemental Report.
4

In so concluding, the Court is cognizant of the potential that “among other things
a reference to a commission tends unduly to prolong the proceedings, thereby causing vexation
to all concerned and additional expense.” United States v. Delaware, L. & W.R. Co., 264 F.2d
112, 115 (3rd Cir. 1959); Advisory Committee Notes to Rule 71.1, General Statement 3
(“Experience with the commission on a nationwide basis … has been that the commission is time
consuming and expensive. … [S]ince the jury is a traditional tribunal for the determination of
questions of value, and since experience with juries has proved satisfactory to both government
and land owner, the right to jury trial is adopted as the general rule.”).

-4-

For all of the foregoing reasons, defendants’ request for appointment of a three-person
commission to hear the evidence and assess just compensation in this condemnation case is
denied. Defendants’ exercise of their right to jury trial pursuant to Rule 71.1(h)(1)(B) will be
honored, subject to their right to withdraw such a jury demand. Accordingly, unless defendants
withdraw their jury demand via court filing on or before November 21, 2014, the issue of just
compensation will be submitted to a jury at trial, with all other issues being for the Court to
decide, pursuant to Rule 71.1(h)(1). If defendants timely withdraw their jury demand, then all
issues (including just compensation) will be decided by the Court via bench trial.
DONE and ORDERED this 22nd day of October, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

-5-