
    504 F. 2d 1138
    JAMES LEO KING AND LODENA KING, JENNIE FOUTS, PEARL HAWKINS, FRED SHAW AND FAY SHAW, RACHAEL WINTER, WILLIAM F. WAGNER, ADM. ESTATE OF LUCY DAME, J. W. HOLLISTER AND CORA L. HOLLISTER, J. C. KING AND JEAN KING, RUSSEL McCONNAUGHEY, AND MARVIN L. WINTER v. THE UNITED STATES
    
    [No. 138-67.
    Decided October 23, 1974]
    
      
      James N. Jacobi, attorney of record, for plaintiffs. Kurrus and Jacobi, Robert H. Nelson, Darrell D. Kellogg, Kahrs, Nelson, Fanning, Hite da Kellogg, of counsel. -
    
      Nicholas 8. Nadao, with whom was Assistant Attorney General Wallace H. Johnson, for defendant.
    Before CoweN, Chief Judge, and BeNNEtt, Judge.
    
    
      
       Since the decision of the court on June 12, 1970, the plaintiffs George K. Winter and Tom Touts have died and their widows, Rachael Winter and Jennie Touts, remain as surviving joint tenants. Motions to delete the decedents’ name as plaintiffs were allowed on March 13,1973.
    
   Per CuRiAM:

This case comes before the court on defendant’s motion, filed August 12, 1974, for judgment, requesting that the court adopt the recommended decision of Trial Judge C. Murray Bernhardt, filed June 14,1974, as amended, ex parte, on June 26, 1974, as the basis for its judgment in this case, plaintiffs having failed to file a notice of intention to except thereto and the time for so filing pursuant to the Rules of the court having expired. Upon consideration thereof, without oral argument, since the court agrees with the trial judge’s recommended decision, as hereinafter set forth, it hereby grants defendant’s motion and affirms and adopts the said decision as the basis for its judgment in this case. Therefore, plaintiffs are entitled to recover and judgment is entered for them to the extent set forth in the trial judge’s conclusion of law following his opinion and findings of fact.

OPINION OP TRIAL JUDGE

BeeNHARdt, Trial Judge:

Since the decision of the court on June 12, 1970 (192 Ct. Cl. 548, 427 F. 2d 767) holding for fee-owning and tenant plaintiffs on the issue of liability and remanding for damage determination a trial has been held, primarily to adjudge the fair market value of ño wage easements over those portions of plaintiffs’ upriver farmlands exposed to the likelihood of frequent flooding due solely to the backwater effects of the Toronto Dam and its impounded pool in Greenwood County, Kansas, and for secondary purposes of adjudicating claims for damages to crops. At the damage trial the defendant advanced new hydrology studies and, for the first time, contour elevation maps based on a photogrammetric survey conducted between trials under Government contract. The results of the survey bottom the Government’s present contention that flowage easements are applicable to only a scant 35.57 acres out of a total 1,037.24 acres, with the trifling aggregate of $92.74 in easement value, although defendant concedes a nominal value of $200 to each fee-owning plaintiff.

Bearing in mind the court’s earlier conclusion that “* * * those parts of the plaintiffs’ properties lower than 931 feet to 939.5 feet in elevation would be affected in certain parts by flood waters passing them in the river at a water surface elevation of between 931 and 939.5 feet * * *” (finding 8 in first opinion), the preparation and submission by the defendant of extensive hydrology data designed to persuade a contrary belief seems somewhat superfluous at this time and only peripheral to the present inquiry. Betrial of the liability issue is not in order. Finding 7 (b) in the prior decision observes that the isolation of backwater effects involves a value judgment as to which experts might differ, which may account for the Government’s current tack, as well as for the contrast with pre-dam predictions by its then hydrologists that backwater effects would justify the acquisition of partial flowage easements bordering all or most of the river’s route threading through the plaintiffs’ properties. Failure to follow the latter advice led to the present dispute. To adopt the Government’s latest position would offer no greater assurance of accuracy (or mayhap error) than the view announced in the liability opinion to which the court is already committed, a view which is more akin to the Government hydrologists’ very first prognostication as to backwater consequences than that to which the defendant now subscribes.

For these reasons we omit findings rehashing these liability aspects and adhere to those already made on the subject, rightly or wrongly, despite the submission of requests for findings drawn from testimony and exhibits as to liability in the damage trial record. The essential remaining problems are quantity and value.

As to quantity the plaintiffs claim 841.44 acres, the Government concedes 35.57, plus another 14.90 tenanted acres. The Government’s figure is somewhat low because it is based on new hydrologic data at odds with the court’s announced finding as described above, and the plaintiffs’ is unrealistically high because it purports to embrace all of their land lying below elevations of 945 feet in the lower tracts and 950 feet in the upper. In the condemnation proceeding prior to building of the dam, the Government bought fees and fiowage easements to properties flanking the river between river mile 271.5 (the dam site) and upriver to mile 292.7, the fees being acquired generally for properties below an elevation of 927 feet, and fiowage easements for properties between 927 feet and 936 feet, plus some easements up to 939.5 feet. Despite the fact that substantial areas of plaintiffs’ farms stretching between river miles 293.5 and 298.1 are shown on the contour elevation maps to be lower than 939.5 feet in elevation, and the further fact that the river bed falls approximately 15 feet in traversing the properties in suit (which would infer a generally corresponding change in elevation in the adjacent lands), the decision was made in the condemnation program to cut off all acquisitions above river mile 292.7, even in the face of hydrological advice that slight backwater effects of the clam extended a bit beyond the upstream limit of the subject properties.

Given the 15-foot decline in the river bed as the stream bisects plaintiffs’ farms en route to the Toronto Dam, and the known elevations at which fees and flowage easements were acquired through condemnation in the downstream approaches to the dam as described above, there might appear to be some rough justice in raising the fee and flowage easement taking elevations in plaintiffs’ farms to graduating levels from 0 to 15 feet higher than those employed in condemnation of the downstream reaches, depending on the decline in streambed elevation and surrounding land as the river progresses downstream past the plaintiffs’ farms, provided of course that the backwater effect persists as disclosed by the hydrologists’ envelope curve. However, finding 8 in the previous decision, which has been quoted above in part, would serve to restrict the easement taking areas to those below an elevation of 939.5 feet. Finding 8, infra, measures this area to be 72.09 acres, of which 67.42 acres lie below the cropline and 4.67 acres above the cropline. Those acres below the crop-line are presumably areas restricted to timbered river banks and sloughs not used for cultivation of crops, while those above the cropline are regularly planted to crops. But in the ultimate valuations arrived at we have given plaintiffs the benefit of the doubt and have considered the easement acreage to be crop land and valued accordingly.

Findings 5 and 6, respectively, describe in detail the appraisal evidence rendered by appraisers for plaintiffs and defendant, and the strengths and weaknesses of their methods will be omitted in this opinion. Whereas plaintiffs’ appraisers advised that the flowage easement value of plaintiffs’ 841.44 affected acres was $147,850, while defendant’s appraiser advised a flowage easement value of $92.75 (voluntarily increased to a nominal $1,400, or $200 per plaintiff) for 35.57 affected acres, we have sifted the record closely and arrive at a figure of $4,361.46 for 72.09 affected acres, which finding 10 allocates among the various plaintiffs.

Findings 11 through. 13 present the evidence of record relating to plaintiffs’ claims for flood damage to crops during the years 1962, 1964, 1965, 1967 — 70 inclusive, and 1972. The plaintiffs, some as land owners and others as tenants under cropsharing agreements, claim a total of $139,278.99 in crop damages for the years in question, of which $76,446.55 represents, according to their contentions, damage to growing crops by floods occurring prior to maturity of the crops, while $62,832:44 is allocated to matured crops which were damaged by floods when they were ready for harvesting. The plaintiffs’ reason for the separation is that, generally speaking, growing crops are considered part of the realty and so their value may be subsumed within the compensation for the flowage easement, while mature though unsevered crops ready for harvesting are considered to be personalty and hence, according to plaintiffs, not included in the flowage easement valuation. In each claim the but-for allegation is that the floods causing the damage were attributable to the Toronto Dam and Reservoir, although the computations are based on the assumption that the crops occupied 856.84 acres which plaintiffs claim were flood prone solely because of the dam and reservoir, while we have substantially reduced this flood prone acreage to 72.09 acres. This sharp reduction would, of course, itself drastically curtail the crop damage claims even if they were reimbursable at all, which they are not.

The existence of flowage easements over the flood prone lands in question running to the Government since September 14, 1961, according to the defendant, or January 1,1962, according to plaintiffs, for which the Government must pay pursuant to this decision, quite clearly precludes the recovery of crop damage in 1962 and subsequent years resulting from exercise of the easement prerogatives. Manifestly it would be improper for the Government to pay twice for the flow-age rights. Compensation for a taking must be determined as of the time and place of taking. Potts v. United States, 130 Ct. Cl. 88, 94, 126 F. Supp. 170, 173 (1954). The time of taking is the date the United States enters into possession. United States v. Dow, 357 U.S. 17 (1958). “* * * [t]he value to be ascertained does not include, and the owner is not entitled to compensation for any element resulting subsequently to or because of the taking.” Olson v. United States, 292 U.S. 246, 256 (1934). As stated in 2 Nichols, Eminent Domain (3d ed.) § 6.21, p. 6-51:

Where a defacto taking is followed some time later by a formal vesting of title under the statutory method, the owner is not entitled to interim damages for the intervening period.

Plaintiffs’ reliance on United States v. Twin City Power Co., 248 F. 2d 108 (4th Cir. 1957) is misplaced. Twin Gity simply held that just compensation for the taking of land subject to a flowage easement in another must be apportioned between the owner of the fee and the owner of the easement. Had the damage to crops in the case under consideration occurred at the time of the taking, the compensation paid would require apportionment between the owner of the land and the owner of the mature crops thereon, assuming them to be different entities. But that is not the situation here. Other cases relied on by plaintiffs are not remotely in point.

Plaintiffs are entitled to interest from September 14,1961, the defendant’s selection as the date of taking, as a part of just compensation. The parties stipulated that the interest rate should be commensurate with those rates of interest paid by the Government in the market for its own borrowing purposes. The plaintiffs urge an interest rate of 6 percent, compounded annually from the date of taking, whereas the defendant proposes interest of 4 percent from the date of taking. The court’s award of interest as part of just compensation in taking cases has traditionally been at the rate of 4 percent per annum from the taking date, although in Drakes Bay Land Co. v. United States, 198 Ct. Cl. 506, 459 F. 2d 504 (1972) the court, in awarding interest at 4 percent, did so in the absence of evidence justifying a higher rate, thereby inferring that the 4 percent figure is not sacrosanct and immutable, but flexibly responsive to the ends of justice. In Carlstrom v. United States, 147 Ct. Cl. 297, 177 F. Supp. 245 (1959), the court had occasion to consider a higher rate, but found no special circumstances to justify any more than the customary 4 percent rate.

The special circumstance in the instant case is the stipulation of the parties to rest on the rate at which the Government borrows money. This rate is given in finding 16, infra, which reflects a steadily rising rate of interest for each year from 1962 through 1972 on long-term United States Government bonds, from 3.95 percent in 1962 to 5.70 percent at the end of 1972. This amount contrasts with the Federal Reserve discount rate which varied from 3 to 4 percent in 1960 to 6 percent in March 1970, and with the prime interest rate charged by the majority of commercial banks which increased from 4.5 percent in August 1960 to 5.75-6 percent by the end of 1972. It would seem most logical, in view of the agreement of the parties, to apply in this case the annually fluctuating rate on long-term United States Government bonds as listed in finding 16.

Under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, approved January 2, 1971, 84 Stat. 1906, 42 U.S.C. § 4654(c), the plaintiffs claim reimbursement for their “reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of the condemnation proceedings.” Finding 19 totals these expenses to $10,031.95, including a reasonable fee of $1,090.37 for plaintiffs’ counsel which conforms to counsel’s arrangements with plaintiffs for a 25 percent contingency basis. To this must be added 25 percent of the interest recoverable on the compensation awarded, referred to above. Counsel has worked arduously and skillfully for such a slender reward.

FINDINGS OF FACT

1. At 192 Ct. Cl. 548, 427 F. 2d 767 (1970) the court determined that plaintiffs had a right to recover for the taking of their farm properties by the Government by reason of the backwater effect on the Verdigris River of the Toronto Dam and Reservoir, and remanded the case to the trial judge to determine the amount of damages pursuant to Rule 131(c) (2). A trial was held on the damage issue resulting in the ensuing findings of facts predicated on the trial record and the findings thereon requested by the parties.

2. As an initial erratum the southern extremity of the plaintiffs’ properties is at river mile 293.25 instead of at river mile 292.7 as incorrectly reported in finding 3 of the original findings of fact.

3. The seven fee-owning plaintiffs contend that, of the total of 1,037.24 acres collectively owned by them, 841.44 acres were subject to flooding due to the backwater effect of the Toronto Dam, of which 117 acres were cropland and the balance timberland. The defendant contends that a total of 35.57 acres owned in fee by seven plaintiffs were subject to flooding due to backwater effects of the dam, plus another 14.90 acres occupied by another plaintiff under a cropsharing arrangement.

4. Since the previous trial on the issue of liability, and in preparation for the remaining issue of damages, the defendant had the Corps of Engineers, through a private contractor, conduct a topographical survey of the farms in suit based on aerial photographs, and prepared a series of maps in evidence showing contour elevations and croplines representing conditions existing as of December 30,1971. The maps purport to depict those areas adjacent to the river which were flooded due to the backwater effect of the 1961 flood, including relatively small plots of cropland aggregating 50.47 acres concentrated in the southern end of the total area in suit. These depictions on the maps of backwater effects of the 1961 flood are, however, predicated on defendant’s revised hydrologic charts of backwater effects, and to the extent they differ from previous charts prepared by defendant upon which the court’s recent adjudication of liability is partially based, the revised charts are foreclosed from consideration. For the same reason any depictions of backwater effects of the 1961 flood in the topographic maps which are based upon the revised hy-drologic charts must be ignored to the extent they vary the consequences of prior hydrologic charts upon which the court reached its conclusions in the first decision. Nevertheless, the topographical survey maps are utilized to determine the acreage of land lying below elevation 939.5 feet.

5. Plaintiffs’ appraisal procedure and results:

(a) In general the plaintiffs’ method of determining a fair market value for the flowage easements imposed on their farms by the Toronto Dam and Eeservoir was to deduct the 1970 improved value of each farm with easement (based on comparable sales) from the 1970 value without easement, deduct the value of improvements, and then reduce the resultant 1970 values of the easements to their January 1962 values (the taking date per plaintiffs) by retrospective application of a formula based on a Department of Agriculture publication reflecting rising values of farm properties in Kansas over the intervening years. Wherever in the following findings the terms flood prone or flood free are employed they shall connote those parts of the properties in suit which are, or are not as the case may be, subject to flooding due solely to the influence of the Toronto Dam and Reservoir.

(b) As their first step in the valuation process the plaintiffs determined the quantity of flood prone acreage by staking out perimeters on the ground. The staked areas were considered by plaintiffs to represent the average flooding which has occurred since 1961, where the floodwaters remain on the land for a longer period now than before the dam existed. They were intended by the plaintiffs to represent less than the extent of major floods since completion of the dam in 1960, principally the floods of 1961 and 1972. No effort was made to segregate those areas subject to normal flooding without presence of the dam, from those areas whose flooding was the proximate cause of the dam, although the low-lying terrain in its relationship to the river has his-storically been subject to flooding in many places long before the dam was completed. Thus the total flood prone acres .reported by plaintiffs inevitably include many whose flooding is not attributable to the dam and Eeservoir, but to normal causes. At the time the staking was done no topographic map showing contour elevations was available, although such a map prepared since then by the Corps of Engineers is now in evidence. The staked areas are said by plaintiffs to conform roughly to an elevation of 945 feet in the southern half and 950 feet in the northern half of the total area in suit. A surveyor hired by plaintiffs determined the flood prone acreage within the staked perimeters by subtracting from the known total acreage of each farm the measured acreage beyond the staked perimeters.

(c)In this manner the seven fee-holding plaintiffs determined the following flood prone and flood free acreage in each of their farms-:

Owner Flood prone acreage Flood free acreage Totals
Fouts_ 161. 74 53. 46 215. 20
Hawkins_ 100. 84 19. 16 Í20. 00
Hollister_ 51. 89 28. 34 80. 23
J. L. King- 77. 67 26. 33 104 00
Shaw_ 193. 82 8. 95 202. 77
Dame_ 79. 55 19. 45 99. 00
Winter- 175. 93 40. 11. 216. 04
• Total_ 841. 44 195. 80 1, 037. 24

Thus collectively the fee-holding plaintiffs claim that 81 percent of their aggregate 1,037.24 acres are flood prone.

(d) The plaintiffs’ surveyor also separated the flood prone and flood free parts of each farm by acreage into types of soil, i.e., timbered or open pasture, Class I and II bottomland, upland, roads, meadow, and farmstead (a term not defined but presumably comprising the land immediately adjacent to the farmhouse and supporting structures).

(e) With the foregoing data supplied them, plaintiffs’ appraisers determined a 1970 fair market value for each farm by fixing a value per acre to each of the land types enumerated in the preceding finding and multiplying the unit value by the number of acres of each type present in the particular farm, segregating the flood prone and flood free property valuations.

(f) The 1970 unit values applied by plaintiffs’ appraisers to reach the total for each farm were derived from three allegedly comparable sales of farms in 1969, 1966, and 1968 involving properties 1,11 and 19 miles distant, respectively, from those in suit. The average prices per acre of the comparable sale properties, without improvements, were $191, $207, and $358, respectively, or a collective average of $252 per acre, in contrast to the 1970 values per unimproved acre of the properties in suit which, according to plaintiffs’ appraisers, averaged $211, ranging from $192 to $230. Only one of the three sales involved property subject to a flowage easement. The sale which averaged $358 per unimproved acre was of a property bordered by two paved roads, near a town, and with commercial potential, which factors increased its value and lessened its comparability to the farms in suit. The sale most comparable f&r se to the farms under consideration averaged $191 per unimproved acre. It was subject to a flow-age easement which was not valued by plaintiffs’ appraisers. As to each comparable sale a general statement was made in the appraisers’ reports as to soil type, but no acreage was specified as to each type, i.e., Class I and II bottomland, upland, timbered and open pasture, and no effort made to allocate the sale prices to types of acreage although there is necessarily a wide variance in price between, for instance, bottomland and pasture.

(g) In some unexplained and therefore unpersuasive maimer the plaintiffs’ appraisers derived from the three comparable sales of 1969, 1966 and 1968 the 1970 fair market values per acre per soil type, applied these unit values to each of the farms in suit to arrive at a 1970 improved value for each of the farms in suit with and without the flowage easement, and then declared the remainder to be the 1970 fair market value of the flowage easement. The 1970 fair market value of the flowage easement as to each farm was reduced to its 1960 value by applying a discount of 32 percent. The 32 percent discount was based on a table published in September 1970 by the Economic Eesearch Service of the Department of Agriculture showing, inter alia, that from 1960 to 1970 the average price per acre of farm pi’operty in Kansas advanced $56 from $108 to $164. The 1970 figure of $164 is 84 percent (not 32 percent as plaintiffs compute) more than the 1960 figure of $108, or an average annual increase of 3.4 percent.

(h) As a check against the correctness of their appraisals of the farms in suit by a market value approach as described above, the plaintiffs’ appraisers capitalized at 5 percent the annual estimated net crop income from each farm, obtaining results corroborating their market value method. No records of plaintiffs’ crop income were available, and the appraisers based their estimates on published average income and expenses for specified acreages in Kansas of typical crops. Under these circumstances the appraisals via net crop income capitalization have no probative value.

(i) Since plaintiffs have selected January 1962 as the date of taking controlling the fair market value of the flowage easements, plaintiffs’ counsel has adjusted downward the 1970 value supplied by plaintiffs’ appraisers (see para, (g) of this finding) by 25 percent to reflect the January 1962 value, although to be consistent with the Department of Agriculture statistics upon which plaintiffs rely the appropriate reduction of 1970 values to reach 1962 values would theoretically be 27.2 percent (3.4 percent X 8 years). This assumes, of course, the validity of the procedure. The consequences of these disparate adjustments of the 1970 fair market value of flowage easements to reach the 1962 value are shown in the following table:

Owner 25 percent 27.2 percent
Fouts_ $26, 925 $26, 135
Hawkins_ 15, 300 14, 851
Hollister_ 10, 125 9, 828
J. L. King_ 16, 800 16, 307
Shaw_ 29, 400 28, 538
Dame_ 12, 675 12, 303
Winter_ 32, 625 31, 668
Total. $143, 850 $139, 630

Thus, even accepting the plaintiffs’ theory of determining the January 1962 fair market value of the flowage easements for the seven fee-owned farms, the total should be $139,630 or $4,220 less than the plaintiffs’ figure of $143,850.

(j) Substantial errors and misconceptions occur in the plaintiffs’ appraisal reports prepared in the manner described in previous paragraphs of this finding:

(1) The appraisers reduce in value not only the flood prone areas of the farms in suit but in many cases the flood free areas as well, without apparent recognition of the anomaly and without explaining the reason, if there is a reason. This error causes a substantial increase in the values assigned to flowage easements for which recovery is sought.

(2) Plaintiffs’ appraisers do not use consistent values per acre for the different soil categories. Thus the 1970 value of upland is given as $225 per acre in the Touts appraisal report, and as $150 per acre in the J. L. King report. Similarly, the 1970 value of roads is given as- $150 per acre for plaintiff Fouts, but $100 for other plaintiffs. No explanation or basis for the distinctions is given.

(3) Plaintiffs’ appraisers do not use a consistent discount factor representing the loss in value of flood prone land, nor explain how they determined the discount. Overall the flow-age easement discount factor used varies from 0 to 80 percent. -In land categories, the plaintiffs’ appraisers are inconsistent in their choice of discount factors, using both 57 percent and 64 percent for Class I bottomland, both 58 percent and 57 percent for Class II bottomland, both 0 and 80 percent for farmstead land and both 0 and 33 percent for roads. Presumably a flowage easement discount factor should be standard in the normal case. If not, then variations should be explained and supported.

(4) In arriving at the 1970 easement value by deducting from the 1970 value of land and improvements without the easement the 1970 value of the land and improvements with the easement, the plaintiffs’ appraisers, wherever there was an improvement involved, used a larger figure for the value of improvements in the minuend than the figure in the subtrahend. This serves to distort the result by showing a larger reduction in the 1970 value of land alone, and this error was perpetuated in arriving at the 1962 value of the easement by discounting the 1970 value of the improvement by 25 percent. Plaintiffs’ appraisal reports treat the improvements as not being subject to flowage easements, yet they diminish the 1970 values of the improvements nonetheless in the course of their arithmetic.

(5) Plaintiff Shaw’s Class II bottomland is given a larger per acre value in 1970 with the flowage easement ($100) than without it ($50). Obviously there has been an oversight or transposition.

6. Defendant’s appraisal procedure and results:

(a) The general procedure followed by defendant’s appraiser in determining the diminution in value of plaintiffs’ farms as of September 14, 1961, was to analyze six comparable sales close in time (2 years), in distance to the farms in suit (within 2 miles in all but one instance), and in type of land, allocate the purchase prices to consistent values per acre of different land and soil types (homesite — $150; cropland — $100 to $150 depending on quality; meadow — $75; river and woods — $5; mineral rights — $5 to $10 depending on presence of oil producing wells), and then by applying these values to the quantities of comparable land and soil types of the fee-owned properties in suit derive a total value for each farm without the burden of flowage easements. He then computed the flowage easement discount (cropland— 33% percent; river and wood — 50 percent), and applied the reduced values to 35.57 acres which defendant’s hydrologist, by a planimetric analysis of the available data, deemed were the only areas of flood prone land in the farms in suit held by fee-owning plaintiffs. In allocating the purchase price of the selected comparable sales to soil types and categories described above, defendant’s appraiser consulted the seller and/or purchaser in each case. The allocations ' of values per acre per soil type to the farms in suit appear to be fairly within the range of those in comparable sales. The flowage easement discount factors of 33% percent for cropland and 50 percent for river and woods are based on the appraiser’s “rule of thumb” experience and are factually supported only by reference to one analyzed comparable sale which was subject to a flowage easement. The sales selected by defendant’s appraiser for purposes of comparison with plaintiffs’ farms were close enough in locations, types and times to be suitably comparable, and were markedly superior to the three comparable sales relied on by plaintiffs’ appraisers. Plaintiffs’ comparable sales were not only distant in locations and dates of sale to the plaintiffs’ farms and the valuation date, but were also not analyzed in a way permitting an intelligent interpretation of the data for application to the task of evaluating plaintiffs’ farms.

(b) From this procedure the defendant submits that the following table represents as to each fee-owning plaintiff the flood easement value as of September 14, 1961, confined to the small areas indicated:

Owner Affected acreage Type Damage
Fouts.. 1.9 River and Woods... $4.75
Hawkins.. 3.45.do. 8.63
Hollister.. 8.20.do. 20.50
Do.. .17 Cropland___ 8.50 - 29.00
J. L. King.. 5.35 River and Woods_ 13.37
Sliaw.. 9.9 .do. 24.75
Dame.. 2.5 .do. 6.25
Winter... 2.4 .do. 6.00
Totals. 35.57 $92.75

Apparently as a consolation defendant has assigned a nominal value of $200 in damages to each of the plaintiffs listed above in place of the much smaller computed damages. Thus the defendant concedes damages of $1,400 in the aggregate to the seven fee-owning plaintiffs.

7. The following comparative table presents as to each fee-owning plaintiff the average value per acre, without improvements, of his farmland, according to the respective appraisers for the parties, as of the date of taking (either January 1962 per plaintiffs, or September 1961 per defendant). The column representing plaintiffs’ appraisers’ opinion provides the average values with and without the flowage easement, but the defendant’s appraiser’s column does not because, due to the small quantity of land deemed by him to be flood prone, the average value per acre is approximately unchanged with the easement value subtracted.

Plaintiffs' Appraisers

Without With Defendant's Owner easement easement Appraiser

Fouts_ $193 $92 $111

Hawkins_ 222 96 130

Hollister_ 205 91 119

J. L. King_ 195 87 110 Shaw_ 217 72 123

Dame__ 230 101 132

Winter_ 214 91 125

Averages_ $211 $90 $121

The figures in the foregoing table representing the defendant’s appraiser’s opinion include as to each plaintiff an item for mineral rights which were attached to each acre at the rate of $5 per acre generally, and at $10 per acre if the farm contained producing oil wells. Plaintiffs’ appraisers did not include mineral rights in their appraisals. Since the appraisers for each party attached varying values to acreage of varying utility bottomland being more valuable than pasture, as an example), and the proportions of each type varied in each farm and in the view of each appraiser, the averaging of values per acre is not an accurate method of comparison. However, it does suffice to illustrate that the appraisers are far apart in their estimates, with the plaintiffs’ appraisers fixing an average unimproved value per acre of $211 versus $121 for the defendant’s appraiser. Because of the several errors and weaknesses in the reports of the plaintiffs’ appraisers described in finding 5(j), supra, compared to the relatively orthodox and better-supported methods used by defendant’s appraiser, the latter’s opinion as to average market value per acre is more acceptable.

8. By planimetric techniques utilizing hydrographic maps the defendant’s hydrologist computed that the acreage in ■each farm lying below an elevation of 939.5 feet is as follows:

Owner Acreage below 989.6feet gg * Below cropline
9.64 Fouts_ 9. 64
7.90 Hawkins_ 7.98 CO
16.94 Hollister. 19. 98
6. 06 J. L. King. 6.05
17.24 Shaw_ 17. 79 Ol
3.00 Dame_ 3.00
7. Winter_ 7. 65
Totals... 72.09 4.67 67.42

There is no way on the existing record to determine, as to the 72.09 acres of land which in the aggregate lie below the elevation of 939.5 feet, the proportions thereof which are classifiable as to types, i.e., bottomland, pasture, etc., so as to permit a valuation thereof by application of varying values for each type per acre.

. 9. It is reasonable to conclude that as to the seven fee-owning plaintiffs, the acreages and their values with and without flowage easements due to the dam as of the date of taking are as shown in the following table, including the final column which by subtraction represents the fair market value of the flowage easements, recoverable in this action:

Value Without Value With Value of Owner Acreage Easement ' Easement Easement
Fonts_^_ 9. 64 $1, 166. 44 $583. 22 $583. 22
HawMns_ 7. 98 965. 58 482. 79 482. 79
Hollister_ 19. 98 2, 417. 58 1, 208. 79 1, 208. 79
J. L. King_ 6. 05 732. 05 366. 03 366. 03
Shaw_ 17. 79 2, 152. 59 1, 076. 30 1, 076. 30
Dame_ 3. 00 363. 00 181. 50 181. 50
Winter_ 7. 65 925. 65 462. 83 462. 83
Totals. — '_._ 72.09 $8,722.89 $4,361.46 $< 361. 46

The flowage easement factor of 50 percent of fee value, employed in the foregoing schedule, is on the high side of the range of factors advanced by the defendant.

10. The flowage easement acreages and values established by the previous finding compare with those requested by plaintiffs and defendant, and those found .by the court, as follows:

Flood prone Acreage Easement Values
Owner Plaintiffs Defendant Court Plaintiffs Defendant Court
Routs.J. ' Í61.74 ' 1.9 9.64 $26,925 $4.75 $588.22
HawMns... 100.84 3.45 7.98 15.300 8.63 482.79
Hollister..- 51.89 8.37 19.98 10,125 29.00 1,208.79
J. L. King. 77.67 5.35 6.05 16,800 13.37 366.03
Shaw. 193.82 9.9 17.79 29,400 24.75 1,076.30
Dame — . 79.55 2.5 3.00 12,675 6.25 181.50
Winter- — .— 175.93 2.4 7.65 36,625 6.00 462.83
Totals. 841.44 35.57 72.09 $147,850 $92.75 $4,361.46

Crop Damage Findings

11. Some plaintiffs claim damage solely to their fee interest-as owners of farms. Certain of these claim in addition damage to their crops in toto, or to their share of the crops under crop-sharing agreements with other plaintiffs. Still others claim crop damage to their tenant’s interest as sharecroppers. The following schedule defines the precise interests claimed by the several claimants for crop damage:

Plaintiff’s name Nature of interest Percent of interest in crops
Fouts_ Owner_ all
Hawkins_ Owner_ X
Hollister,_ Owner_ X
Leo King_ Owner_ all
Leo King_ Tenant_
Shaw_ Owner_ all
Dame_ Owner_ X
R. Winter_ Owner_ %
M. Winter_ Tenant_ %
J. C. King_ Tenant_ Ys in part, and 34 in part

Of the foregoing, M. Winter has a tenant’s % interest in the farm of R. Winter. J. C. King has a tenant’s % interest in' the Hollister farm. Leo King has a tenant’s % interest in the Hawkins and Dame farms, in addition to a full interest as to the crop damage on his own farm.

12. Largely from their own collective recollection the parties compiled a summary of data concerning the average yields of corn, wheat, milo, beans and alfalfa on their respective farms over the 10-year period 1955-65, the average price, the cost to plant, and the cost to harvest. They also assembled data as to the months of the growing season during which particular crops were most vulnerable to flood damage, the latest dates for planting particular crops, and the years from 1962 to 1972 when particular crops were flooded in specified years after crop maturity. In compiling the crop data the plaintiffs had no planting, harvesting, or financial records (which, if they were ever maintained, were not produced at trial), but depended principally on their recollection and knowledge of these facts, aided to an unknown extent by official averages and making allowance for the fact that their bottomland was more productive in quality than the land upon which they assume the official averages were based. Their income tax returns were not in the record, and had they been they may have revealed the gross income received and expenses incurred in connection with crops in each year, but would not have revealed the value of crops which were lost due to floods. So far as appears, no effort was made to confine the crop losses to those parts of their farms which were flooded solely due to the Toronto Dam, so that apparently the estimates embrace inter alia ci’op losses attributable to flood damage not consequential to the influence of the Toronto Dam.

13.Plaintiffs have separated their net crop damage (i.e., income less expenses) over the 10-year period 1962-72 into two elements: those damages occurring prior to crop maturity and those after maturity, according to the following schedule:

Plaintiff Damage before Damage after
Fouts_ $18, 571. 0D $17,158. 75
Hawkins_ 2, 316. 00 2, 790. 82
Hollister_ 372. 75 300. 70
J. Leo King_ 6, 186. 17 12, 192. 35
Shaw_ 549. 00 325. 00
Dame_ 145. 83 1, 356. 33
R. Winter_ 3, 962. 42 1, 709. 50
M. Winter_ 946. 63 433. 30
J. C. King_ 1, 396. 75 1, 565. 69
Totals $76, 446. 55 $62, 832. 44

Interest

14. The parties have agreed that plaintiffs are entitled to a reasonable interest rate on their recovery commensurate with those rates of interest paid by the Government in the market for its own borrowing purposes.

15. Interest rates on U.S. Government securities during September 1961 were as follows:

Type: Interest
3-month bills_ 2. 28
6-month bills_ 2. 68
1-year bills_ 2. 88
3-5 issues_ 3. 77
Long-term bonds (10-year maturity or longer)_ 4. 02

16.Interest on long-term U.S. Government bonds ranged from 3.95 percent in 1962 to 5.70 percent by the end of 1972, according to the following schedule:

Year: interest
1962_____ 3.95
1963___ 4. 00
1964_ 4. 15
1965_ 4. 21
1966_ 4. 66
1967.__ 4. 85
1968_____ 5. 25
1969___ 6. 10
1970_ 6. 59
1971_ 5. 74
1972 (year end)_ 5. 70

17. The Federal Reserve discount rate varied from 3 to 4 percent in 1960 and thereafter steadily increased in stages to 6 percent by March 1970.

18. The prime interest rate charged by the majority of commercial banks per annum increased from 4.5 percent in August 1960 to 5.75-6 percent by the end of 1972.

Litigation Expenses

19.(a) The parties stipulated that plaintiff’s costs of litigation paid or incurred to time of trial were as follows:

Surveyor’s fees_$1, 322. 14
Appraisers’ fees_ 3, 000. 00
Hydrologist’s fees_ 1, 9011 06
Court reporting fees_ 682. 20
Other expenses_ 2, 670. 65
Total____$9, 576. 05

(b) Plaintiffs have also incurred an expense of $300 for trial attendance of appraiser Galemore, but a similar obligation for appraiser Sears is not in evidence.

(c) Plaintiffs have also incurred an expense of $155.90 to their surveyor for his attendance at trial, including his travel expense.

(d) In addition plaintiffs’ counsel have a contingent fee agreement with their clients whereimder attorneys’ fees of 25 percent of the first $10,000 recovered as to real property and 15 percent beyond that will be paid, plus 33% percent of amounts recovered for taking of personal property. Twenty-five percent (25%) of $4,361.46, the flowage easement valúation for real property found by the court (finding 10, supra) is $1,090.37. No reimbursable crop damage has been found.

’ CONCLUSION OE LAAV

Upon the. foregoing findings of fact and conclusions of law,-which are-made a part of the judgment herein, judgment is entered for plaintiffs ás follows:

1. 'For the taking of -flowage easements' over plaintiffs’ .-properties the total sum of $4,3,61.46, to be distributed among the individual plaintiffs..as specified in the last column of the schedule in finding 10.

. 2. Interest, thereon as-part of just compensation at the rates specified in finding 16, including interest at the-rate of 3.95 percent from September .14, 1961, and interest at the rate of 5.70 for 1973 and subsequent years until the date of payment.

; , 3. Attorneys’ fees allowed at 25 percent of the principal and interest awarded in paragraphs 1 and 2 of this order.-

4. The following expenses of litigation totalling $10,031.35, to' be divided among the individual plaintiffs in accordance with their contributions or commitments: surveyor’s fees and ■expenses ($1,478.04); appraisers’ fees and expenses.($3,300).; hydrologist’s fees and expenses ($1,901.06); court reporting 'fees ($682;20); miscellaneous expenses ($2,670.05).

'5. In all other respects plaintiffs’ petition is dismissed.

In accordance with the opinion of the court, a memorandum report of the trial judge and the stipulation of the parties as tp the amount due plaintiff, it was ordered on December 13j 1974- that .judgment for .plaintiff be entered for $6,883.58, plus statutory interest as provided by law. 
      
       As to fee-owning plaintiffs. Another 14.90 acres conceded by the defendant to be subject to flowage easements relate to the claim of a tenant plaintiff.
     
      
       Plaintiffs’ arithmetic is conflicting. See fn. 1 to finding 3, infra.
      
     
      
       Erroneously (but harmlessly) reported as 292.7 in the first opinion.
     
      
       These figures are based on arithmetical correction of those In the tabulation In plaintiffs’ requested finding B-ll, which are patently faulty and do not add up.
     
      
       Defendant selects September 14, 1961, the height of the 1961 flood, as the date of taldng rather than the plaintiffs’ date of January 1962. For practical purposes of valuation the two dates are not so far apart as to warrant different valuation conclusions.
     
      
      The cropline appearing on the hydrographic maps divides the land that Is cultivated with crops from that which Is not, according to defendant’s evidence.
     
      
       According to defendant’s appraiser. Defendant’s finding gives this erroneously as $10.25.
     
      
       Defendant concedes a nominal flowage easement value of $200 for each plaintiff, for a total of $1,400 for the seven plaintiffs.
     
      
      It is not clear whether this figure Includes reporting fees through the final trial on damages.
     
      
      Advanced by counsel and recorded In counsel’s bookkeeping records placed In evidence.
     