UNITED STATES v. REYNOLDS

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Argument of Shiro Kashiwa

Chief Justice Warren E. Burger: Number 88 United States against Reynolds.

Mr. Kashiwa, you may proceed whenever you're ready.

Mr. Shiro Kashiwa: May it please the Court.

This is a review of a session of the Sixth Circuit relating to the scope of project rule expressed by this Court in the Miller case in 1943, 317 U.S. 369.

Briefly, the factual situation was first of all, this had to do with the Nolin Reservoir Project in Kentucky.

The Reynolds owned a total of 390 acres.

The present case is a case of partial taking of 250 acres out of the 390, in other words after the taking in this case they were a 140 acres remaining.

Out of the 250 acres, 172 acres were for inundation and 78 acres were for recreational purposes and it's the 78 acres which causes the question in this case.

Now, with relation to the project, the project was congressionally authorized way back in 1958 as a flood control plan for the Ohio and Mississippi Rivers.

Incidentally, after 1938, in 1944, congress has passed the special statute authorizing acquisition of recreational areas in conjunction with reservoir projects.

In 1956, planning funds were appropriated for the Nolin project and in July 1958, a general design memoranda was approved.

This design memoranda, contained contemplated recreational areas definitely.

In September 1958, funds were provided by congress for the project and in January 1959, the project was started.

In October 1959, this 78 acres for recreational purpose was specifically set aside in a memo by the United States Engineers.

In April 18th 1962, a suit was filed and declaration of taking filed in the case.

Incidentally going back, the Reynolds's purchased this property in October of 1959, a portion of it in October 59 and the balance of it in 1960, of course before the case was filed.

We have to go into the proceedings in the trial court to fully understand the issues.

In the trial court, the Court held with relation to any enhancement testimony as to the 78 acres, this is a recreation area.

The Court held that it is a question for the trial court to decide and it held that it held that it will not allow any enhancement testimony, this is in the original, the first portion of the trial.

But just before the case went to the jury, the Court changed its mind and said no as to whether the 78 acres was within the scope of the project or not, it will allow the jury to consider and so the owners put on testimony with relation to the 78 acres with and without enhancement.

The case went to the jury and the jury in this case filed that the land was probably within the scope of the project under the instructions of the Court, if that was so then enhancement was not to be allowed.

Therefore, the jury returned a verdict of only $20,000.00.

In the Court of Appeals, the Court also following the trial court held that whether it was in the scope of the project this question was before the jury, but the Appellant Court reversed the case as $20,000.00 verdict because the jury was allowed to consider facts which were not an evidence, it happened in this way.

The Court at first took the scope of the project question and testimony was adduced only before the Court.

But later when it changed its mind, the witnesses testified but government attorney did not cover the testimony as fully as he did just before the Court but he remembered -- but the Court in considering the evidence --- commenting on the evidence went back to the evidence he heard while he was sitting at the Court and in this mix up, the grounds for reversal came up, I will go back to this later.

So the issue -- the first issue in this case is whether the scope of the project question is a determination for the Court or for the jury.

This Court in Miller in the Miller case, a case with substantially similar factual background as in this case held that it was for the trial court to rule upon and not a jury question.

In that case, the respondents, when he tried it to put on evidence with relation to the valuation of the particular parcel and the government attorney objected because whatever he offered included enhancement and the Court took part in the questioning and specifically directed the witness not to include that enhancement in that testimony and this was a direct ruling by the Court on that question.

But in the latter part of the opinion there is a reference to jury instructions given by the Court and with relation to these instructions, the Court commented that these instructions were not wrong.

It's this portion of the -- this Court's decision that has caused much difficulty in the Courts below.

I maintain that the opinion means and it meant that it was a question for the Court.

The later comment in the instruction, it was really not an instruction given the jury any leeway as to deciding one way or the other, it was a comment by the Court that you shall not with relation to this lot consider enhancement.

But that was taken by the Sixth Circuit as well as the trial court to mean, well, there are two portions of this decision and therefore will let the jury we have them.

We contend that that's a wrongful interpretation of what this Court held because the evidence of enhancement was not allowed at all.

How could the jury consider enhancement when it didn't have any evidence of enhancement before it?

So that was a purely warning type of instruction and it's our position that as stated in the Wardy case, at Fifth Circuit Court decision which followed the Miller case as we interpreted.

The Circuit Court in the Fifth Circuit well put it, “the judge decides illegal question which limits the factors to the determination of just compensation.”

We further point to rule 71 (a) (h) adopted in 1951, this is the rule that has to do with eminent domain.

In essence, taken all the portion with relation to jury commissioners and all of that out, as material in this case, it reads, any party may have a trial by jury of the issue of compensation, then it further states, trial of all issues shall otherwise be by the Court.

As I said this rule was adopted after the Miller decision but we contend that the rule is perfectly consistent with our position that legal questions which limit the factors to the determination of just compensation for the trial.

In fact, when we redo, it reads very much in our favor.

We do it admit that it does say, any party may have trial by jury of the issue of compensation.

What our opponents are saying anything that has remotely to do with this compensation should be tried by the jury, we disagree.

For various reasons, we contend that in most of these recreational area cases, there are quite a few of these, the government relies and also the respondent relies on the records of the Engineers and in this case, if looking at both briefs as far as the records of the Engineers there's no dispute as to the fact.

The personnel of the engineer, engineers come and testifies and that's so, that all of this events happen on so and so a day.

Now, some of these facts could become very, very complicated, it's not a simple as in this case.

We have a case called the Crans case from the Eighth Circuit, which not only -- there was a general indication of recreational areas and then the recreational area was determined but they also have public hearings and at the time of this public hearings the public attends and sometimes this areas are changed.

In other words they become very, very complicated and usually as I have said before in the Crans case, the facts, there were no disputes as to the records of the engineer's office.

And so both counsels stipulated, well, that's a question for the Court, there's nothing to argue about this that the Court decided and by a preliminary hearing, a very orderly way to decide a case --

Justice Potter Stewart: Well, isn't the Court decides on these records?

Mr. Shiro Kashiwa: Whether the area in dispute is within the scope of the project in the Reynolds' case.

If it's within the scope of the project then enhancement is not allowed, enhancement by the very general project that matters through.

Now, in the Crans case as I said these engineering -- engineers facts were rather complicated but it was disposed off in that manner and I think very sensibly so and where there isn't much -- there isn't any dispute as to material facts, it should be for the Court and within this -- this preliminary question in the Crans case -- there appeared to subsidiary questions, one question of governmental estoppel because of certain facts, and secondly, authorized or unauthorized act of government officials, these issues aroused.

So, looking at the Crans case you readily realize that these issues could be very, very complicated and it's not the type of thing of question for the jury and especially so where the facts are not disputed.

Another policy reason I'd like to advance is much as possible in this kind of a case, evaluation testimony which is not material should not be allowed to the jury, there maybe abuses.

Now, in the Court below, let's take the trial below to be consistent with relation to the 172 acres which is the inundated area, there's no question about it.

The enhancement is not allowed and of course it wasn't raised but that's the way the testimony is put in and partly, if anybody raises the question the Court will rule, the enhancement will not be allowed.

Now, what about with the 140 acres, which remained under the eminent domain rules that is an after value so the enhancement is added off to the remainder of the problem.

The Judge in this case rule that enhancement will be added on, that was the question for the Judge.

Justice Potter Stewart: I didn't know, you're talking now about what acreage?

Mr. Shiro Kashiwa: The 140 which is the remainder after the 78 and 172 were taken.

Justice Potter Stewart: I see, it's the part not taken at all?

Mr. Shiro Kashiwa: That's right.

The enhancement --

Justice Potter Stewart: Of this -- of this party's land?

Mr. Shiro Kashiwa: Yeah, the enhancement is added on.

In other words, the party does not benefit by the enhanced value.

Now, those were decided as preliminary questions by the Court, so why not with relation to the 78 acres?

Now, if the Court with respect to this question rules that it is a question before the Court because of the peculiar way the verdicts were returned, our position is that the Sixth Circuit must be reversed, its not a question for the jury, the Circuit Court held it was for the jury so it must be reversed with relation to that but our position is that the verdict for $20,000.00 must be sustained because the jury so found that this is the value without the enhancement.

Now, with relation if this Court decides the other way that it is a question for the jury then we had meant that the case must be remanded and a retrial had because facts outside the record were considered by the jury, at least it was allowed to be considered.

Now, the second issue which we present --

Justice Potter Stewart: Is this an argument that more evidence wanting the jury on the -- should have gotten to the jury?

Mr. Shiro Kashiwa: No.

Justice Potter Stewart: The jury found against enhancement?

Mr. Shiro Kashiwa: No, the court in its comment made certain statements what --

Justice Potter Stewart: Yes, but let's assume that same thing is telling the jury that there is the record something that is not at all, is that right?

What was the comment of the judge?

He said something that the jury about evidence which was not heard by the jury, wasn't that it?

Mr. Shiro Kashiwa: Yes, the witness testified as to the probability of taking for recreational area and this is the area which the judge should not have state --

Justice Potter Stewart: But even though the judge told the jury that, the jury found there was no enhancement, isn't that right?

Mr. Shiro Kashiwa: That is said --

Justice Potter Stewart: $20,000.00 verdict was a verdict based on the finding of no enhancement, was it?

Mr. Shiro Kashiwa: We maintain that this is -- it should not have gone to the jury at all.

Justice Potter Stewart: I appreciate that but how will you have heard by going to the jury if the jury came in with a $20,000.00 verdict on the basis of no enhancement?

Mr. Shiro Kashiwa: Well that's – we are saying that if it's a question for the Court, then the $20,000.00 verdict should be sustained.

But the reasoning of the Court that it should have been a question for the jury -- that portion we want to reverse, that's all we want.

Justice Potter Stewart: That's the first branch of your case that you've been arguing right now?

Mr. Shiro Kashiwa: Right now, because --

Justice Potter Stewart: Do you see in advancing that argument any constitutional difficulties of any kind I'm referring to the Seventh Amendment?

Mr. Shiro Kashiwa: No, I don't -- the constitutional question was if any well, gone into the Miller case, footnotes about the various cases at this stage of the --

Justice Potter Stewart: But I'm talking to the -- about the constitutional right of jury trial.

Mr. Shiro Kashiwa: No, Your Honor, in eminent domain cases they haven't had jury trial.

Justice Potter Stewart: Just as the matter of the statute between the two?

Mr. Shiro Kashiwa: Yes, with the rule, I would say.

Now, we request because of the various rules that have develop under this Miller rule, we would like to have the Court clarified.

The rule and this we asked in our petition that this be done and it was granted by this Court and the Miller rule has been interpreted in the Third Circuit.

The Third Circuit has said that there must be an indication at the outset of the project that a particular track or area will be acquired.

Now, this we contend is a very narrow rule, that's a Third Circuit rule.

In the Eight Circuit, it is sufficient, if it is clear that some land will be taken even though the particular land is not identified, that is the rule in the circuit and the Eight Circuit and that was the rule in the Miller case.

We contend and I call this the Department of Justice rule that the rule should be parted.

The only requirement is that the land was within the general area influenced by the project.

And we maintain that that should be the rule because the basic reason in the as stated in the Miller case was that owners are not to gain by speculating on probable increase in value due to governmental activities.

In other words, the government should not pay for the value it creates.

Another reason why the Third Circuit and the Eight Circuit rules are unduly harsh on the government, if those rules expect -- adopted be very difficult to change projects.

Not the whole project but the scope in lines of the project.

As I stated at the Crans case for example, the public were here -- instead of the recreation area being here, they wanted it over here.

And these changes are made the engineers, but that should not affect the individual owners because it is within the conduct, the recreational areas were contemplated and the fact that we take it shouldn't change the rule.

If the Third Circuit and the Eight Circuit rules are approved, we contend that perhaps government will mark out a very large project as large as it should and then take with it.

This is what the government did in the (Inaudible) case.

Then we also contend that these rules should be consistent with relation to the 140 acres which was not taken; this is at the most -- we talk about enhancement.

We don't have much many strict rules as to that, it will -- if the remaining parcel while the value was enhanced, we added on to that value that's all that's to it.

In other words, it's in the general vicinity and it has been influenced by the state.

Now, what the word scope of the project, we finally contend as used in the Miller case meant under the influence of the project, this is what it really means, and if we adopt this view which is a view broader than the Third Circuit and the Eight Circuit, I think that justice be done in all of these cases and government will not be paying for the value it creates.

This is very, very important for we taxpayers.

Argument of Erwin S. Solomon

Mr. Erwin S. Solomon: If the Court pleases.

Chief Justice Warren E. Burger: Mr. Solomon.

Mr. Erwin S. Solomon: First, I would like to correct that certain statement said, I know were inadvertently inherent.

One, there's a crucial date, I reviewed the dates again because our position is this.

The Miller -- the Miller case and I will go into the factual situation in a minute.

But the Miller case, we say stand for the proposition that if in the original design over project, the land is delineated to be taken or as in the Miller case if it were marked out or designated that it would probably be taken, then there is no enhanced value.

If it's in the original scope and the original plans, no one has value or as the in the Miller case, where there was a railroad right of way over areas to be flooded and they had marked out amusement, the terminology of the Court in its opinion.

Marked out or designated where this right of way should be that's why they used the words probably would have taken or when the government was committed to it.

And those two instances, we state that there would be no enhancement, however, as in our case where the government in its original desire and then in a later desire did not take in the property, the 78 acres but later did so in a third memo, as we say an after thought then we believe we are entitled to the enhance value of that land.

Chief Justice Warren E. Burger: How about the second stage?

Mr. Erwin S. Solomon: The second stage was eliminated, Your Honor.

Chief Justice Warren E. Burger: But if --

Mr. Erwin S. Solomon: And erroneously, I want to give the date of that in this particular case.

For instance, it was stated that construction funds were appropriate in September, October of 58, construction was started in January 59 and in June 17th of 59, there was a designed memo outlining the recreational areas which did not contain the -- what we call the site of the 78 acres.

It did not contain it.

It did -- in other words, in July 14th, 58, when the government approve the general design memo which contained all phases of the construction and land acquisition, it was in that, the 78 acres was not in there and it was in the memo for recreational areas of June 17, 1959, the government admits this in it's brief.

Chief Justice Warren E. Burger: Did I understand you Mr. Solomon to use the term original design and scope of the project as being synonymous?

Mr. Erwin S. Solomon: No, Sir.

I'm saying that in the Miller case they used it synonymously and I think that's what --

Chief Justice Warren E. Burger: That's right.

Mr. Erwin S. Solomon: If you know the -- if the Court would realize the factual situation in Miller case and then I think the ambiguities of the terminology in the vagueness of the verbiage and phrases in the Miller would be dissipated, knowing the factual situation where in the Miller case, in the original design, they had marked out or designated where they were going to take it right of way.

They didn't take it originally but they had marked it out and designated to be taken, and then they did take it and the Court said if it probably would have been in the scope originally which it was because it was marked out on that map, then it's probably in the scope.

Justice Potter Stewart: Mr. Solomon, where are all these maps filed, where'd you find all of this?

Mr. Erwin S. Solomon: There were no maps filed in this case Your Honor.

Justice Potter Stewart: Well, I mean where is the original design?

Mr. Erwin S. Solomon: The design memo was not filed in this case.

The government did not file it but the testimony of Max Bohr who was a governor -- the government witness refers to these design memos and the dates.

Justice Potter Stewart: You'll have to get the internal records of some government, departments that's condemning the land, is that it?

Discover?

Mr. Erwin S. Solomon: Yes sir and that's why --

Justice Potter Stewart: And how you discovered what originally was contemplated and what was mapped out and drawn out, is that the way it was?

Mr. Erwin S. Solomon: Yes, Sir.

As stated by the government, the justice department, the judge in the -- the trial judge had upheld a hearing out of the presence of the jury, to begin with to see whether as a matter of law, he could determine whether this land was entitled to enhance value or not being whether or not it was in the scope of the project or not and the government called its witness from the core of engineers.

Justice Potter Stewart: Then they introduced the designs and the technology of things, is that it?

Mr. Erwin S. Solomon: Yes sir, yes sir.

Then the other inverting error of the Justice Department was that while that opening statement was being made, not when the Jury was being charged but when the opening statement was being made, the judge called counsel to the bench and said that he was in error in his first finding saying as a matter of law, that no one has or would be allowed.

He said, on further perusing the Miller case while we're making an open statement, he said he found it was a mixed question of law and fact, therefore, it would be submitted to the jury.

It wasn't, it wasn't during opening statement that were made and out of the presence of the jury and then, as I remember the counsel for respondent asked whether he could amend his opening statement and the Court will have him do so.

Chief Justice Warren E. Burger: And if I understand the Miller language, being aside of this specific factual situation in Miller and taking the language, it is that -- if it is land which might or which might not be taken but is ultimately taken, the enhancement of the value by the first stage taking may not be allowed and the jury is to be so instructed, isn't that the Miller held?

Mr. Erwin S. Solomon: Miller has that verbiage Your Honor but then it goes on and says other things that if you're adjacent land owner and this is where you get in trouble for, we're reading the Miller case and I think that's where the trial court reverse itself.

In reading the Miller case, it goes on to say that if it's merely adjacent lands and not originally contemplated in the scope then it shall take the enhanced value.

Chief Justice Warren E. Burger: Well, but certainly at one category in there, there might or might not be taken there.

There is a gray zone between the original plan and the perhaps nearby adjacent property and the government's claim is that this property in question here falls in that gray zone which is the might or might be taken language of Miller?

Mr. Erwin S. Solomon: Well if you -- that's where our argument is, Your Honor that you have to go back in Miller's factual situation, where it was actually laid out in the original design and marked out and that's what they're talking about that the adjacent land and there shall not be a windfall when it was marked out in the original design it was well known, this was not the case here.

Chief Justice Warren E. Burger: Well, the Miller doctrine, the Court goes on to explain that the theory behind that is that the man -- that all of the people should not pay for the value which the taxes of all of the people -- the value which the taxes of all the people have created.

Now, it's essentially it?

Mr. Erwin S. Solomon: Well, that's one view the Third Circuit held differently.

Chief Justice Warren E. Burger: Well, but this is -- I think this is case of this Court, isn't it?

Mr. Erwin S. Solomon: The Miller case is yes Sir but I think this is what -- there is a variance between the different circuits at this point based on calculation.

Chief Justice Warren E. Burger: In its understanding of the Miller --

Mr. Erwin S. Solomon: Misunderstanding of the Miller case.

Justice Potter Stewart: And their understanding of the Miller case?

Mr. Erwin S. Solomon: Yes sir, that's because the vagueness of the language in the Miller case.

Chief Justice Warren E. Burger: But the Attorney Generals arguments is directed to, he wants us to clear that up?

Mr. Erwin S. Solomon: Yes, Sir and we --

Chief Justice Warren E. Burger: And we would like to clear that one way and he wants to clear it up the other way?

Mr. Erwin S. Solomon: But we -- we would like to clear it up this way that we're taking the position that where the original design and that's why we have no quarrel with the acreage that was taken below the 566 foot level of the reservoir which is about 172 acres.

We had no quarrel because that was in the original design.

We say we are not entitled to enhancement but the 78 acres, which was not an original design or in the design of June 17th 59, we say there that we are entitled to the enhancement, we would -- we're requesting respectfully for this Court that the government should not play around with other peoples land and they are here for instance, we take this view, assume one improves his house and land around it, and it raises the value of his neighbor's land, next to it, and his neighbors land comes up for sale, isn't he going to have to pay the enhanced value?

And we say this true whether it's a government or a neighbor or anyone else, that taking of land up, we take the position to begin with as (Inaudible) unless the safeguards are put around the taking.

Chief Justice Warren E. Burger: I supposed theirs a difference in the condemnation under eminent domain and that the money of all the people that's involve, public moneys involved and the one private properties involved in the other?

Mr. Erwin S. Solomon: What is the instruction that was given to the jury on the condemnation cases, a fair market value, a willing buyer who is not forced to buy and a willing seller who is not willing to sale and that determines the fair market value.

The government should not have the edge so to speak, it should be a fair market value based on other values.

Around this lake Your Honor, there is a at least 500 acres.

They have taken eight sites leaving I assumed -- I believe I have -- right about 250 to 300 more acres.

Now, what is the value of the acreage not taken, it is enhanced by the lake value.

Why should the government take land at a lower evaluation if it's not in the original designed memo?

Why shouldn't that man be put on the part of the condemned with another land owner by his side?

We have on this piece of land, there's a man by the name of Slarv, has a land, he has an enhanced value, we don't, why not?

It is because the government is a taker, is that the measure.

We say it should not be.

I'd like to get on the red damage to the residue to show inequity of the government in this case.

There is a residue of a 140 acres.

Now, according to the trial court, the government could show the enhanced value of the damages to the residue.

In other word, they could show how the lake enhanced the value of the 140 acres that was left over and subtract that from any award made by that jury.

Now, where is the equity in that where the government says, we can have be enhance value where the residue is concerned but you can have it, were taking the land and this is in the equities that we run into in this type of cases and I agree that the miller case, in some way as the trial court in page 48-49, of the appendix stated several times that it was a very taxing face to try to govern before the jury.

Now, as far as the rules 71 (a) (h) is concerned and submitting to the jury, the Court, trial court and we think probable -- properly held if these cases are mixed question of law.

In fact, we don't say it is, we think it's a matter of law only, and law our way and that the land was not in the scope or was not in the original design or in a second design memo.

But if it is a question of law in fact, that it should be submitted to the jury because as the Sixth Circuit held in its opinion, compensation and whether there's an enhancement or not, where is a mix question of law, in fact are interrelated and to arrive at a proper evaluation, you must determine whether its enhanced and not to begin with, and that what's the instruction of the Court gave to the jury.

We came out on the short if but if it's a proper question of law in fact, it should be submitted to the jury so that the proper compensation can be given to the land owner.

Unknown Speaker: I gather in this case, even if we disagree with you and agree with --

Mr. Erwin S. Solomon: Yes sir.

Unknown Speaker: -- the government that enhancements initiating for the judge to decide, there is still has to be a new trial on this case though?

Mr. Erwin S. Solomon: Yes sir because the jury and advertently the trial Court --

Unknown Speaker: It just means that when you go to trial the second time if you must, you may get something less than $20,000.00, in any event nothing more, is that it?

Well, you don't know what a second jury will give you.

Mr. Erwin S. Solomon: You don't know what a second jury would give?

Unknown Speaker: No, but you -- it will -- whatever they -- it gives you, it will have to be without enhancement if this case goes against you here.

Mr. Erwin S. Solomon: It depends --

Unknown Speaker: Not necessarily, you might be able to convince the judge and you might never convince the jury?

Mr. Erwin S. Solomon: Exact words.

Unknown Speaker: I mean the judge may decide against the government?

Mr. Erwin S. Solomon: Yes sir.

Unknown Speaker: On whether these lands are within the scope of the project?

Mr. Erwin S. Solomon: Yes sir, exactly and it depends upon which fact if you're going to take.

Does the government have to give -- have lands in the original design member?

Unknown Speaker: And now, what -- to all -- the government not going to -- if the government prevails here is not going to escape a new trial.

There's still going to have to be new trials, isn't it?

Mr. Erwin S. Solomon: Yes sir.

Unknown Speaker: And then they may have in the second trial twice as much damages or word against him?

Mr. Erwin S. Solomon: Yes sir.

Unknown Speaker: And they may lose on the scope the project question to?

Mr. Erwin S. Solomon: Yes sir.

Unknown Speaker: Before the judge?

Mr. Erwin S. Solomon: Yes sir.

It depends on what this Court enunciates as its rule.

Chief Justice Warren E. Burger: As I read Judge Swinford's comments in the record Mr. Solomon, there seems to be a little bit more than a feeling of ambiguity about the Miller opinion, he said the Miller opinion is controlling and that he questioned the soundness of the Miller opinion and it seems to have been influence to go off on his own because of that, he said “I question the solemnest of the rule with all due respect to the Supreme Court”.

Mr. Erwin S. Solomon: However, he made through it if you -- through out the record, it's before the Court and all justice -- justice, to justice Swinford, he said that Miller case would be controlling and he tried to control it under that case even though he did not.

He said that it led to ambiguities.

In page 49, it says now that -- that is why I'm going to have to instruct the jury under this Miller case very frankly.

As I said, I think the rule might be somewhat modified.

I think it should be but I'm bound by it, I can't modify it.

And he goes on to another place to say it's not up to his Court to modify it and he was going to be bound by it but he makes remarks throughout that it's a -- in this particular factual situation that we had, it was hard to apply and he -- the reason that he inadvertently in summing up to the jury exposed what went on when the jury was exploited was because he tried to explain the Miller case to the jury in layman's language and got involved, but he did try to abide by the Miller case but the factual situation as I said before in that Miller case, it rarely explains the Miller case, its when the Miller case is taken out of context without realizing what the factual situation was, I think that's where the Courts are getting in trouble and are misconstruing.

The Miller case uses fake language.

It uses language like probability of the scope of the project.

The -- what is a contemplated taking of the government?

Well, who knows what the contemplated taking at that time of the original design would be?

These all lead to uncertainties, something that a good practitioner tries to avoid in the will or deed and yet here in this case in trying to fix compensation, the uncertainties and I agreed with the Justice Department, it should be cleared up but we feel that it should be cleared up our way.

The government's position is they want to enlarge the Miller case and said that if the land is in the general area influenced by the project, there shall be no enhancement.

Now, I say if they would prevail, you get into another ambiguity.

You're leaving it to the lower court again to determine what might be in the general area.

And we say it's the original design memo, let the core of engineers take in what they will.

In my section of country they have.

We're building a gap right now and they have taken all the land around it.

If they want to take it all in, let them do original.

Chief Justice Warren E. Burger: Well then, as a practical matter, I'm not sure about this but as a practical matter, if your review of the rule were to be adopted as the standard, wouldn't that leave the engineers to pick the largest possible area for the project and then not worry about whether they took it all or not?

And we -- one way of treating them -- meeting the problem --

Mr. Erwin S. Solomon: That might be one way.

I'm assuming the Court of engineers are pretty well qualified and they could do better than take a shotgun approach to taking.

Chief Justice Warren E. Burger: Wouldn't it be normal and reasonable to resolve all the doubts in favor of having the largest possible areas as to avoid this enhancement you call?

Mr. Erwin S. Solomon: That's one way they could get around it but if Your Honor pleases, at what point is adjacent land owner allowed to develop his land under the present rule?

How do you know that the government won't come in two years later and say this was within the scope of the original plan, there's the uncertainty right there?

Chief Justice Warren E. Burger: I supposed the answer to that issue don't and your camp know?

Mr. Erwin S. Solomon: The --

Chief Justice Warren E. Burger: And many times for these improvements, the government, all governments, local, states and federal make it a point to keep this a very great secret so that they don't encourage speculators, isn't that a practical fact of life?

Mr. Erwin S. Solomon: I agree but I see nothing wrong with speculating.

Chief Justice Warren E. Burger: I suppose the public policy is not to let speculators speculate at the expense of the taxpayers?

Mr. Erwin S. Solomon: Right sir, but there's different type of speculation.

I'm saying that after the government takes and assumed that that lake is there for five years and then the government comes and said that was in the scope of our original plan or is it just a part would have the Court that this is in the general areas.

And supposed roads have been put in at that time, things of that sort, it would go back to the un-enhanced value.

Unknown Speaker: Well, we don't have that case before us today though, do we?

Mr. Erwin S. Solomon: But this no sir.

But this is on a 140 acres, if they come to take it, roads were put in there.

Yes sir that would happen in this case if they went and condemned the residue that is a fact of life in the residue of this property right now.

So it does this theoretically or even practically it could happen on this piece of land belonging to the Reynolds.

They have roads and have in the enjoining acres or the residue.

Thank you sir.

Chief Justice Warren E. Burger: Thank you Mr. Solomon.

You would have --

Unknown Speaker: I am right in this issue that this case has to go back for re-determination of compensation?

Rebuttal of Shiro Kashiwa

Mr. Shiro Kashiwa: No.

Unknown Speaker: No.

Mr. Shiro Kashiwa: We maintained that it should go back to the Circuit Court --

Unknown Speaker: Yeah.

Mr. Shiro Kashiwa: -- and the --

Unknown Speaker: Now, you didn't take the case to the Circuit Court, did you?

Mr. Shiro Kashiwa: They took the case --

Unknown Speaker: That's right.

They didn't like -- they thought they got enough for $20,000.00?

Mr. Shiro Kashiwa: That's right, alright.

Unknown Speaker: Right.

Mr. Shiro Kashiwa: But I -- if it's sent back because it was a question for the Court, that's the alternative I'm speaking of, right.

I supposed --

Unknown Speaker: Yes.

Well, that's possible.

I supposed we agree with you that's for the Court, then what happens in this then?

Mr. Shiro Kashiwa: Then the jury found without an enhancement is $20,000.00 and we maintain that under the facts they don't argue any about the facts as produced by the engineer and --

Unknown Speaker: Well, it's in the government's position that if you prevail here, you're entitled to reinstatement of the $20,000.00 verdict?

Mr. Shiro Kashiwa: No, not unless the trial judge himself decides that this land was good in the scope of the project.

Unknown Speaker: No you're wrong because we maintain as a matter of that with all of the facts as agreed upon even in their brief I say these are the facts.

Unknown Speaker: Well, that isn't what you asked for in the brief.

All you've asked for in the brief, your conclusion is that that we direct the District Court on remand to determine itself whether the condemned lands were within the scope of the project.

You didn't say anything about reinstating the $20,000.00 verdict.

Under any circumstances that's what your brief says.

Unknown Speaker: And you never asked this and you never ask the Court of Appeals as ordered a new trial based on some comments, improper comments with the judge.

Mr. Shiro Kashiwa: We didn't appeal the--

Unknown Speaker: I know, I know you didn't but the Court of Appeals has ordered a new trial based on -- and you didn't -- you up here have not said the Court of Appeal was wrong in ordering a new trial on that basis.

Mr. Shiro Kashiwa: That is on the other -- other alternative.

Unknown Speaker: Now, the thing comes down to this, if the issue you brought to us is whether enhancement should have been determined by the Court or by they jury.

And if you prevail as I see it from what you've asked, the relief you've asked.

You're not calling with the order that you have to have a new trial?

Mr. Shiro Kashiwa: Yes Your Honor but --

Unknown Speaker: And there have to be a brand new determination of compensation after the judge if you prevail here, determines whether this was within the scope of the project?

Mr. Shiro Kashiwa: We --

Unknown Speaker: And you may really get a sucking this time.

Mr. Shiro Kashiwa: We maintained that, it's for the Court to determine and the appellant Court on directive could say that on these facts under the case, the Miller case has nothing to decide and so there no enhancement to be given so the verdict is $20,000.00.

Unknown Speaker: And what if the judge, what if we follow that request in your brief that the very least that I would suppose the case to go back with the District Courts like you say into it and the judge --

Mr. Shiro Kashiwa: No, I'm saying that it should terminate in the Circuit Court.

Unknown Speaker: That isn't what you say.

You say that the decision of the Court of Appeals should be modified with instruction to direct the District Court on remand to determine itself whether the condemned land were within the scope of the project under a clarified standards set fort by the Court, that's what you've asked for.

Unknown Speaker: An order -- the trial judge then determines that these lands were not within the scope of the project, then there would have to be a re-determination of compensation?

Mr. Shiro Kashiwa: That is correct.

Unknown Speaker: But are you suggesting the Court of Appeals should as a matter of law, determines whether this land was within the scope of the project?

Mr. Shiro Kashiwa: Of course, there's no issue as in facts.

The facts are just about stipulating.

Unknown Speaker: You want us to decide it here?

Unknown Speaker: Why don't you ask us to decide thing?

Why don't you asked us to decide as to --

Unknown Speaker: You want to give us all those records and drawings and designs and all the rest of us and help us to --

Mr. Shiro Kashiwa: No Your Honor.

Unknown Speaker: Well then, why would you have the Court of Appeals do it?

Mr. Shiro Kashiwa: You don't have to add, I maintain that the -- as far as the Court of Appeals, they don't have to have all of these maps, this could be testified to and this is what happened in the trial Court.

Justice Thurgood Marshall: Isn't because this land is close by or what?

The 142 acres, it's because it's close by, it was a part of the original land owned, what is the reason that we don't need any other information?

Mr. Shiro Kashiwa: With relation to the 100 and?

Justice Thurgood Marshall: 42.

Mr. Shiro Kashiwa: 40?

Justice Thurgood Marshall: Whatever it is.

Mr. Shiro Kashiwa: Well, we have a 140 acre track.

Justice Thurgood Marshall: Well, I'm talking about the track that we're not talking about, I don't know how many acres it were.

Mr. Shiro Kashiwa: 78 acres.

Unknown Speaker: Yes, 78.

Justice Thurgood Marshall: The one we're talking about?

Mr. Shiro Kashiwa: Yes.

Justice Thurgood Marshall: Why is it that you say that we don't need any more facts, this Court or the Court of Appeals or the District Court to say that no enhancement is possible as a matter of all?

Mr. Shiro Kashiwa: Because all of the material facts, there's no dispute and they can see that, a material facts to decide this question.

Justice Thurgood Marshall: Which is it's near the lake, its close by the lake, it was in the original map or what?

It wasn't in the original map, right?

Mr. Shiro Kashiwa: No, but --

Justice Thurgood Marshall: Wasn't in the original plan?

Mr. Shiro Kashiwa: The -- Your Honor, the 172 acres were no question in the original files, that's the inundated area.

The 78 acres was in this twilight area where it maybe taken or it may not be taken because recreational areas were authorized to be taken in reservoir projects and --

Justice Thurgood Marshall: If it's in the gray area automatically, that's enough, is that your position?

Mr. Shiro Kashiwa: That is our position and that is the holding in the Miller case, that's the exact holding in the Miller case and this case came exactly within the Miller case.

Now, counsel mentioned about the nothing being marked out but in this Miller case, it says, they're talking about the railroad right away.

Ultimate routes were surveyed and state that end of all of 100 feet.

In other words, there are various alternatives according to the engineering plan.

It's not marked out in the sense that this is it.

When this --

Chief Justice Warren E. Burger: I think your time is up now when you finished -- when you present your answer to Justice Marshall.

Mr. Shiro Kashiwa: We submit sir.

Chief Justice Warren E. Burger: Thank you.

You have -- yes.

We are submitted, thank you gentleman.