The opinion of the court was delivered by: HENDERSON
JOHN O. HENDERSON, Chief Judge.
This action in condemnation was instituted on behalf of the government by filing complaints in this court to acquire title to easements and interests in land for use in conjunction with the construction, operation and maintenance of the Allegheny River Reservoir Project. This project, also known as the Kinzua Dam Project, was authorized for the purpose of flood control pursuant to the Flood Control Acts of June 22, 1936 (49 Stat. 1570), June 28, 1938 (52 Stat. 1215) and August 18, 1941 (55 Stat. 638) and affects by taking some 10,000 acres of land in New York State within the Allegany Indian Reservation of the Seneca Nation of Indians. The dam site is located on the Allegheny River in Warren County, Pennsylvania, and the reservoir is located in Warren and McKean Counties, Pennsylvania, and Cattaraugus County, New York. The reservoir, together with the flowage easement areas, extends from the dam site at Kinzua, Pennsylvania, to near Salamanca, New York, a distance of approximately thirty-five miles. This action involves thirty-nine tracts, consisting of less than 1400 acres. An interest was appropriated in the entire tract for twenty-nine tracts, and for the other ten tracts an interest was appropriated in less than the whole.
The court appointed a commission of three men to determine just compensation. The commission spent approximately twenty-six days hearing proof and in excess of 290 exhibits were received in evidence. The transcript of the hearings was taken and comprises approximately 4000 pages in thirty-eight volumes. The report filed by the commission is 228 pages in length and, in addition, in an appendix summarizes the comparable sales considered by the commission in determining value. Pursuant to the instructions of this court in establishing the commission, the report contains two sets of conclusions concerning the value of just compensation for the defendant landowners' interests in lands which were appropriated, that is, one reached without consideration of the tax-exempt status of the land in the hands of the Indians, and the other reached after taking the tax-exempt status into consideration.
The evidence before the commission consisted primarily of expert opinion concerning the value of the subject tracts according to the expert's conclusions regarding the highest and best use of the land appropriated. As could be expected, the valuation of the experts differed sharply. The expert for the defendant landowners, Russell Lane, testified generally that the damages caused by the appropriation of the thirty-nine tracts amounted to $615,000, without consideration of the tax-exempt status, and $1,194,000 considering the tax-exempt status. The government, on the other hand, through its experts, introduced testimony that the total damages were $102,060, and that no consideration should be given to the tax exemption. The commission, threading its way between these extremes, found the actual damages to be $386,825 without considering the tax-exempt status, and $595,690 considering the exemption. That conclusion is approximately 63% of the landowners' expert's testimony without considering the tax-exempt status, and about 50% of the valuation which he gave considering the exemption. The commission's report specifically categorized its findings as to land, dwelling houses, and other improvements. Considering land only, the commission's conclusions amount to an average award of $256 per acre without considering the exemptions and $397 per acre considering the tax-exempt status of the Indians.
The government filed objections to the report filed by the commission. The objections are extensive under nine main headings, with some headings containing many subdivisions and many subdivisions containing a number of sub-subdivisions. On the basis of these objections, the government's prayer is that the court reject the awards in toto, order new trials, and deny the defendants any compensation for tax benefits. The defendants have moved to approve the report of the commission and have petitioned further that the court adopt the commission's findings and consider the taxexempt status of the real property.
The government first alleges that it was error to have referred this matter to a commission. If this be error, the government has made the most of it. The objection, of course, has been previously overruled, and this court has, in the exercise of discretion, referred the issue of just compensation to a commission for reasons set forth in United States v. Hall, 274 F.2d 856 (9th Cir. 1960), cert. denied, 362 U.S. 990, 80 S. Ct. 1077, 4 L. Ed. 2d 1022 (1960), particularly because of the impossibility of trying the issues before one jury and, additionally, because the appointment of a commission would result in more uniformity of awards.
The court, having referred the issue to a commission, is bound to accept the findings of that commission unless clearly erroneous. Federal Rules of Civil Procedure, Rule 71A(h) and Rule 53 (e) (2). Where the findings are based on sharply conflicting evidence, those findings are conclusively binding on a district court and cannot be set aside in whole or in part unless clear error has been made. Wilson v. United States, 350 F.2d 901 (10th Cir. 1965). Here, as outlined above, the commission had before it divergent expert opinion concerning the value of the land. They chose to give greater weight to the expert for the defendants than they did to the government's witnesses. This was entirely within their province in determining the issues presented to them. Stephens v. United States, 235 F.2d 467 (5th Cir. 1956). The court has reviewed the testimony of Russell Lane, including his qualifications, and finds him to be qualified to express expert opinion on the matters which were covered in his testimony regarding these tracts of land.
Reliance on his testimony cannot be fashioned as clear error. The commission's findings, made in reliance upon the testimony both as to the highest and best use of land and to the market value of such land considering the highest and best use, are supported by substantial evidence, and the court accepts those findings. United States v. Benning, 330 F.2d 527, 531-533 (9th Cir. 1964). The objections raised by the government concerning these matters are attempts to relitigate in this court factual questions which have been determined by the commission who saw and heard the witnesses and are in the best position to determine issues of credibility and the weight to be accorded to testimony.
The report of the commission in general made specific findings as to each tract, the proof presented on each side concerning that tract, the findings as to the highest and best use, the evidence it was relying upon in reaching those findings, and recited specific figures as to fair market value before the taking, after the taking, and the amount proportioned to land, dwelling houses, or other improvements. The commission also specifically found the values, considering the tax-exempt status, by a capitalization method which the commission thought accurately reflected in dollars the value of the property to a tax-exempt owner, by adding to the market value the equivalent financial return to him.
In so doing, the commission clearly marked the path they followed in reaching their determinations, as they are required to do, United States v. Merz, 376 U.S. 192, 84 S. Ct. 639, 11 L. Ed. 2d 629 (1964) and, because the path is marked, the report is not inadequate for judicial review as is claimed by the government.
The commission's findings in almost all instances are within the middle ground between the opinions rendered by the experts for each side. In those cases where the after values of the property are not within the range of opinions received in testimony, the discrepancy can be explained by noting that the commission viewed the property in question and may have arrived at higher after values on the basis of their personal observations, or on the location of the property geographically as indicated by the maps which were received in evidence. A commission or court is not bound to make findings only within the area outlined by the testimony, but may find the facts to be otherwise if persuaded by the evidence. In certain instances, the commission did so. It was not necessary to detail extensively their reasons for arriving at that conclusion.
The findings of the commission as to the value of the land are not excessive as claimed by the government. Considering the tax-free status, the average value per acre is $397, and this is comparable to the results reached in United States v. 205.03 Acres of Land, etc. (Cornplanter case), 251 F. Supp. 858 (W.D. Pa. 1966) which involved the taking of four parcels of Indian property which was also tax exempt. The case was tried before a jury whose verdict awarded lower damages per acre for two of the parcels and higher damages than here for the remaining two parcels. The awards in the Cornplanter case were approximately five times the damage testified to by the government's expert witness. The awards here are 5.84 times the government's expert testimony, considering the tax-exempt status.
The court has attempted to answer the main thrust of the objections made by the government to the commission's report. Other objections, in the main, result from a firmly held view on behalf of the government that the commission erred in considering the testimony of the defendant landowners' witness, and consequently that the facts as the commission found them to be are erroneous. No matter how firm the government may be in that belief and irrespective of the fact that it may be held in the utmost good faith, the disagreement with the factual conclusions of the commission does not furnish a legal basis for setting aside the commission's report. Such factual opinions were resolved before the commission and cannot be reconsidered here.
The court must now turn to the question of the consideration which should be given to the tax-exempt status of the land while the title thereto remained in the hands of the Indians. As long as they held the land, they were not required to pay real property taxes. New York Indian Law, McKinney's Consol. Laws, c. 26, § 6, New York Real Property Tax Law, McKinney's Consol. Laws, c. 50-A, § 454. This tax-exempt feature remained even where the land was leased to non-Indians. Consequently, if leased, the Indian lessor would receive the rent without the expense of real property taxes. The court's instructions to the commission on the question of the tax-exempt status provided:
"In determining fair market value, you are to consider the extent to which the property, including improvements, is exempt from taxation. Your award of just compensation should consider the additional fair market value of the property above the fair market value such property would have had if subjected to taxation. However, to the extent that your award may include an amount of money attrubutable to such tax-exempt status, that amount shall be segregated and labeled as such. In other words, your award will reflect both (1) market value of the property without consideration of the tax-exempt status and (2) the market value of the property taking into consideration the tax-exempt status."
In reliance upon and in conformity with these instructions, the commission found two values for each tract. The government urges (1) that the tax-exempt status should not be considered and (2) even if it is considered, this was not properly done by the commission because they did not take into consideration the restraint upon alienation which goes hand in hand with the tax-exempt status of the land held by the Indians. New York Indian Law § 6. The government relies on certain language set forth in St. Lawrence ...