VAN OOSTERHOUT, Circuit Judge.
These five cases are before us upon appeals taken by the United States from final judgments entered in each case awarding claimants compensation for land taken by the United States by condemnation for the Oahe Reservoir. Condemnation complaint was filed June 16, 1965. The right of condemnation is not disputed. The Government took possession of the condemned land by order dated June 28, 1965, and has remained in possession ever since.
The final judgments awarding compensation, based on trial and jury verdicts,
Such judgments aggregated approximately $450,000. Timely appeals were taken by the United States from each of such judgments. The trial court found that the State of North Dakota had no interest in the condemned land. The State of North Dakota has taken no appeal. The cases have been consolidated upon appeal. Common questions of fact and law are presented.
The issues presented by this appeal as stated by the United States are:
The land owners awarded the judgments here involved assert that the issues presented by the United States are not properly before this court for the following reasons:
1. The title issue was resolved by judgment of the trial court filed November 13, 1968. That no timely appeal was taken from such judgment and thus the court has no jurisdiction on the title issues.
2. The United States is bound by its stipulation made at the damage stage of the trial that the land owners owned the condemned land claimed by them and that no title issue was involved.
3. The title issues the United States is now raising were not raised nor considered in the trial court and thus cannot be considered upon appeal as a basis for reversal.
Consideration will first be given to the contentions made by the land owner claimants. The United States, the land owners involved in this appeal and the State of North Dakota are the parties involved in this litigation. The State of North Dakota by its failure to appeal has no further interest in this litigation. After a lengthy title trial, the title issue was resolved in favor of the present land owner claimants and against the United States and the State of North Dakota by a judgment entered on November 13, 1968. The basis of such judgment is set out in a well-considered memorandum opinion, not reported, filed on October 17, 1968. The memorandum opinion includes a statement, not here challenged, as to the procedure to be followed in adjudicating issues presented by the condemnation, which reads:
During the course of the title trial, Mr. Garaas, representing the Government, requested the landowners to state what portion of the land in controversy each claimed. Mr. Sperry, representing the landowners, stated:
The record also shows the following:
Thus it would clearly appear that the November 13, 1968, judgment entry rejecting the Government's title claims was not a final judgment disposing of the litigation. Rule 54(b), Fed.R.Civ.P., provides that where multiple claims or multiple parties are involved the court may direct entry of final judgment as to one or more but fewer than all of the claims or parties "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." No such 54(b) determination was made by the court. In such situation, the applicable part of the rule reads:
We find that no foundation for an interlocutory appeal was laid under 28 U.S.C.A. § 1292(b). The appeals from final judgment bring before us for review the determinations made by the trial court in the title judgment dated November 13, 1968. See Garrett v. United States, 8 Cir., 407 F.2d 146, particularly footnotes 2 and 5; Bynum v. Liberty National Bank & Trust Co., 10 Cir., 338 F.2d 412, 413.
Subsequent to the title trial all disputes among the land owners with respect to title as between themselves were resolved. A stipulation was signed by the United States and the claimant landowners and filed on May 21, 1969, which reads:
Case No. 20095 involving tracts 3518 and 3518E claimed by Homer G. Woodland was reached for trial on the compensation issue before a jury on May 26,
The remaining cases before us were reached for trial jointly on June 23, 1969. The record shows that prior to the selection of a jury a record was made which reads:
(Mr. Scalzo and Mr. Anthony represented the United States. Mr. Sperry represented the landowner claimants.)
It was further stipulated that tracts 3508 and 3508E not covered in the filed stipulation consisted of 774.14 acres and 10 acres respectively owned by Laurence Woodland.
The court in the judgment entry in each case found on the basis of the stipulations made the amount of land owned by each claimant and that the named landowner is entitled to compensation for the taking of the land.
It is well settled that stipulations of fact fairly entered into are controlling and conclusive and courts are bound to enforce them. Fenix v. Finch, 8 Cir., 436 F.2d 831 (January 19, 1971); Furniture Forwarders of St. Louis v. Chicago, R. I. & P. R. Co., 8 Cir., 393 F.2d 537, 539; Osborne v. United States, 8 Cir., 351 F.2d 111, 120.
As well stated by Judge Mehaffy in Fenix, supra:
The stipulation made in our cases was clear and unambiguous. The stipulation was relied upon by the parties, by the jury and the trial court. No effort was made at any time in the trial court to obtain relief from the stipulation. At we pointed out in Osborne, relief from a stipulation should first be sought in the trial court. We find no exceptional circumstances nor any basis for granting United States relief from the stipulation.
We set out the background upon which the stipulation was made. The issue tried in the title suit is thus stated by the trial court:
The court's findings upon such issue are:
We are completely satisfied that the trial court's fact findings, to the effect that the 1907-1911 avulsion alleged and relied upon by the Government did not occur, are supported by overwhelming evidence and that such findings and the conclusion based thereon are not clearly erroneous. We have no doubt that Government counsel at the time of the stipulations realized that an appeal on the title issue which it raised would be futile. Counsel for the Government on oral argument expressly conceded that its appeal is not based upon the intervening avulsion theory decided adversely to it by the trial court.
More than sixty days after the November 13, 1968, judgment the Clerk of the District Court by letter advised the parties (erroneously) that since the time for appeals had expired he was returning the exhibits. He requested and obtained receipts for the exhibits from the parties.
It was in this setting that the stipulations hereinabove set out were made. The stipulations were made deliberately, voluntarily and without any fraud or coercion. United States at no state of the compensation phase of the trial questioned the titles of the landowner claimants to the condemned land. No attempt was made in the trial court to repudiate, modify or qualify the stipulations made.
After the condemnation money awards were made, the Government took the pending appeals and urged as a basis for reversal the grounds stated at the beginning of this opinion. We are convinced that litigation on such issues or any other title claims the Government might urge are waived, abandoned and foreclosed by the stipulations to the effect that no question of title remained in the case and that the claimant landowners were owners of the stipulated acreages.
We are of the view that there is considerable merit to the landowners' third contention to the effect that the Government did not fairly raise the issues which it is here asserting in the trial court and that such issues were not considered by the trial court and hence cannot be considered upon appeal. See Zunamon v. Brown, 8 Cir., 418 F.2d 883, 888; City of North Kansas City, Missouri v. Sharp, 8 Cir., 414 F.2d 359, 364; United States v. City of Jacksonville, Arkansas, 8 Cir., 257 F.2d 330, 333.
Since our holding on the stipulation issue is dispositive of these appeals, we find it unnecessary to consider in detail whether the asserted issues were properly raised. The legal effect of the stipulations was to waive and abandon any right of appeal on any claim of the Government to title to the land here involved.
The judgments are affirmed.
"Finds that these proceedings have been conducted according to law and the Court has jurisdiction of the parties and the subject matter; that it was stipulated in open Court by and between the parties that the total acreage taken in fee simple for Tract No. 3518 was 2000.38 acres and that Tract No. 3518E upon which a flowage easement was taken consisted of 21.90 acres, and it was further stipulated by and between the parties that the date of taking of said tracts was June 16, 1965, and that Homer G. Woodland is the owner thereof and entitled to compensation for said tracts of land."
Similar findings based on the stipulations are found in the other judgment entries.