(dissenting) .
Amplifying the strictures voiced in United States v. Leavell & Ponder, Inc., 5 Cir., 1961, 286 F.2d 398, 409 and echoed more recently in the second appeal in United States v. Buhler, 5 Cir., 1962, 305 F.2d 319, 331, against the use of Commissioners or, for that matter, anything but a jury trial in condemnation cases no matter how complex, the Court’s opinion gives the impression of a runaway Commission indifferent to its duties, oblivious to the law and interested only in granting an award reflecting the exaggerations of self-interested persons posing as experts. Ending as it does with words bearing overtones that “it would be futile for the court simply to direct the commission to reconsider its findings,” added meaning is read into the broadside from Leavell & Ponder which charges the Commissioners with a “failure * to comprehend the true nature of their duties, as evidenced by their departure from known and accepted standards of valuation and their complete failure to recognize and apply rules of evidence1 during the hearing * * 286 F.2d 398, 409.
As unrewarding either to the dissenting Judge, the jurisprudence, or to the losing party as is a dissent in a case of this kind, I feel compelled to register my reasons for my difference with the Court. The record, when properly analyzed will, in my judgment, reveal that this was a proper case for the use of a Commission. The Commission was composed of conscientious citizens, one of whom was a well regarded and competent lawyer of New Orleans. And if — as the Court holds — there were errors, they *712were errors of the distinguished trial Judge, long experienced in this field.
This is important, not as a defense of the integrity of the persons comprising the Commission, but as a strong indication to me that what the Court is doing is retrying a condemnation case. So long as F.R.Civ.P. 52(a) and 53 stand, that is not our function.
THE NEED FOR A COMMISSION.
Within a short time of the filing of the Government’s complaints, 37 lessees had become parties in addition to the Dock Board. On the principles enunciated in the trial Court’s written charge, the Commission’s Report and now in this Court’s opinion, these were in effect 38 separate suits. True, there were some common questions, both of law and fact, but in the final analysis each tenant’s claim stood on its own. And as to the Dock Board each of the 37 leases (plus others) presented facts or circumstances having some bearing on its three claims of (1) reserved rent, (2) value of the occupancy of the unleased portions of the premises and (3) the value of the fee as of December 23, 1952. In addition there was the fourth main claim on behalf of the tenants as to the value of the unexpired leaseholds. That also bore further on the Dock Board’s fee claim since under supplemental instructions, the Commissioners were required to ascertain the adverse effect of outstanding leases as of the date of taking of the fee. Thus by simple arithmetic the tenants’ claims alone presented in excess of one hundred issues.
More important than mere statistics was the subject matter which the Commission necessarily had to deal with as the witnesses undertook to reconstruct a value to supply the fictional test of the willing seller and willing buyer concerning a property which no one would sell and no one would buy. Besides the physical characteristics of the property which in the index to the Report ran the gamut of a description of each of the main buildings, the facilities, the electrical, water, sewerage, railroad system, flying field, parking lots, fuel tanks, wharves, fences, and gates, the condition of the property, the needs for rehabilitation, the Commission had to deal with what it described as the “economic factors and conditions” bearing upon the supply and demand for property of this kind in the New Orleans area. These factors, the Report stated, would “include location of the property, access to transportation facilities, utilities, labor supply, police and fire protection, insurability, availability of comparable property, protection from flood and demand for the industrial property in the New Orleans area.” This went off into interesting, but essential, forays into such things as the intricacies of railroad tariff rates, switching limits, and an involved inquiry into availability and cost of insurance, and the like. The summaries of these factors (other than availability of industrial property) alone takes 20 printed pages in the Commission’s Report. And, of course, all of these were merely subordinate to the principal question of market values.
This multi-party, multi-issue case, which Government counsel estimated would take 6 to 8 months to try, was not one suited for a jury trial. Under F.R.Civ.P. 71A, the Court was authorized to appoint a Commission. We ought not in this way retroactively criticize the Judge for this sensible action.
PROCEEDINGS OF THE COURT AND COMMISSION.
The Court appointed a Commission with a New Orleans attorney as its chairman. Numerous pretrial hearings were held. The Court invited suggested charges to be given by the Court to the Commission. These were the subject of extensive comment, criticism, objection and hearing. As its alpha and omega, as its scriptural guide, these are reprinted in the opening pages of the Commission’s Report. The trial Judge’s order confirming the Report states expressly that “no exceptions were taken to the charges as finally given by the *713Court.”2 The Commission held hearings and took evidence on 70 days. As the Report states, the “record in this matter consists of 7,262 pages of testimony of fifty-one witnesses, some of whom were examined and cross examined for one to fifteen days, consecutively. * * In addition 367 exhibits were received. Testimony of the principal experts for the claimants (Lemarie, Waguespack, Blum, and Carrere) ran in the neighborhood of 700 pages each. That of the Government experts (Aschaffenburg and Johnson) was even longer. Full briefs were filed and extended arguments were heard by the Commission.
The Report of the Commission, prepared without haste, reflected the authorship of its attorney-chairman by a style that would do credit to any lawyer, or for that matter any judge. It covers 250 pages of the printed record. It is a model of detailed, nonargumentative and objectively presented discussion of the evidence pro and con, witness by witness, issue by issue. After giving the parties the better part of a year in which thoroughly to brief the matter, Judge Christenberry heard arguments over several days. He overruled the objections of the Government, sustained the Report of the Commission, and entered a final judgment based thereon. Judge Christenberry’s order expressly made “the report of the commission * * * the findings of fact and conclusions of law of this case.”
Of course a record of that length inquiring into the multiple issues of this involved case had much conflict in it. The ease ended as it began with the parties in dispute as to the principal question of valuation of the several interests appropriated. This Court’s opinion recognizes as the first element that “(1) * * * the 1,000.22-acre tract with such a tremendous complex including buildings of truly gargantuan size, which must be valued as a whole by determining its fair market value, does not really have any comparables in the market on which expert opinions of valuations can be based.” This is a recognition that if the Fifth Amendment is to have the vitality which courts read into it, the determination of market value inescapably rests upon the expert judgments and opinions of those skilled in the field after the trier of fact makes such modification and adaptation of them as the total record reasonably required.3
A brief consideration of the Report and the record demonstrates, in my opinion, that while the Commission did not accept the contentions of the Government, it did not, as the Court’s opinion charges, ignore these factors as irrelevant, nor was the Commission’s action a departure from accepted principles-.
*714TREATMENT OF UNLEASED SPACE AND VACANT LAND.
The Court’s opinion would lead one to think that the experts for the Dock Board and tenants, as well as the Commission, looked on the case as though the 1,767,000 square feet of unrented space, as well as the 700 acres of vacant land, was actually under lease.4 It also implies that in giving their several opinions, the experts were unaware that despite active solicitation of tenants at the uniform 20 cent rate, substantial areas remained unoccupied. This leads the Court to state that “[w]e think it is equally plain * * * the Commissioners * * * disregarded these same facts and they based their findings of values on hypotheses used by the various appraisal experts which excluded any assumption as to the existence of the [million] square feet of vacant space.” As to the two takings by the Dock Board, the Court then holds that “it was clearly erroneous for the expert witnesses upon whose testimony the Commissioners relied 5 * * * and for the commissioners themselves to disregard the undoubted fact that a hypothetical purchaser * * * ” would make his offer in the light of unoccupied areas of land and buildings.
The whole implication of the Court’s opinion is that both the witnesses and the Commission were indifferent and completely oblivious to the admitted fact of (a) the 20 cent uniform rate, and (b) the existence of a large amount of unleased property. But the Commission’s Report does not bear out this charge. The Report reflects the Commission’s awareness of the problem. It stated: “The Government has contended that because substantial areas, land and buildings, were unrented to January 1959, a lack of demand was thereby indicated and, therefore, at May 1, 1951, the Michoud rentals, conclusively established the fair market rental values at that date. We do not believe this contention tenable in the light of all of the evidence.” The Commission then referred to the uncontradicted testimony that the property actually had been taken off as early as January 1951. But, presumably anticipating the very argument advanced by this Court that the theoretical willing purchaser-seller must look at the property as they found it on May 1, the Commission continued further. Even, “if it had been on the market, we don’t understand that, because it may not have been all or substantially all rented, it would necessarily follow that the existing rentals would be absolutely controlling, in the determination of fair market rent, any more than had it been fully rented or fully unrented. If no portions were rented, we don’t believe that such would render its fair market value nil. The owner, we understand, is entitled to have his property not only considered in the light of its highest and most profitable use, but in the light of all conditions, not alone one, that make the market which determines the value of his property.”
In many other places and ways, the Commission also revealed that its decision was an articulate judgment formed as a result of the study of this whole vast record including the Government’s contention on standard rentals and vacant space. Thus, as to the Dock Board uniform rental contracts, the Commission stated “there is no question that the rents were not arrived at with reference *715to, nor were they intended to coincide with, fair market rental value when established or in the future during the effectiveness of the schedule.” The Dock Board was not in the business of making money out of property rentals. As a public agency it was interested in expanding the economy of the city and port. The payment of rent was secondary. The objective was to attract and hold new and growing industries. “The Michoud rentals,” stated the Commission, “were labeled pioneer, substandard and unrealistic rents by the appraisal witnesses for the Dock Board * * *. And we believe the record herein supports their opinions that these rentals are not indicative of and do not represent the fair market rental value of the property at the critical dates involved here.”
Nor by any stretch of the imagination were the Commissioners freelancing on their own. Judge Christenberry had given precise written instructions with a clarity that could not have been improved on in an oral charge to a weary jury at the end of a 6-months trial. At the Government’s request, he first charged, consistent with its theory then asserted, that the Commission could consider the 1947 price of $9,500,000 on the sale by the Government to the Dock Board. On the other hand, the Court instructed that value was not dependent upon the use to which the property has been devoted but should be “ascertained and fixed on just consideration of all the uses for which the property is suitable * * * ” as to which “evidence as to all such uses may be offered by either side.” 6 But the Judge was even more direct. The Court charged that the experts in reaching opinions and the Commission in determining just compensation “are entitled to consider many factors including, but not necessarily limited to, * * * (a) rentals for comparable property in the New Orleans area.” That instruction went on to make the matter specific. “In considering rentals obtained by the Dock Board for property leased at Michoud facilities, you; are also entitled to give consideration to» the [a] special circumstances affecting this property, such as the [b] availability of comparable space as of the date of the taking, [c] factors which might have influenced the Dock Board in making these leases, [d] which would not be present in the case of other landlords on the open market, and [e] other special circumstances which might pertain.” 7
It bears repeating that the Government acquiesced in this charge. The record shows no objection to it in the trial Court, and the specifications of error here do not attack it.
If this instruction was erroneous, then we ought not to criticize the Commissioners for a breach of their duty. And before Judge Christenberry can be put in error, there must be some objection properly made prior to the commencement of a long and involved and expensive hearing.8
The rules are changed after the game is over. Instead of Judge Christenberry’s declaration that the Commission was “entitled to give consideration to the special circumstances affecting this property, such as the availability of comparable space * * * ” etc., this Court now holds that as to the Dock Board takings “it was clearly erroneous * * * for the commissioners themselves to disregard the undoubted fact that a hypothetical purchaser * * * would have made his offer for the property in light of the fact that he would be buying 1,000.22 acres of land and buildings having 1,767,000 square feet of rentable property, which up until 3 months previously had not appealed to *716the prospective users of such space at a rate of a little more than 20 cents a square foot.” Likewise, instead of declaring that the trier of fact should give some consideration to this, the Court goes on as a mandate to hold that “[s]uch rental price would therefore be the best proof of the going market value as of the time the last leases were made in January.” 9
Of course the difficulty in working with the Court’s opinion is that it is dif=ficult to ascertain when we are declaring law and when we have taken on the role ■of persons skilled in the sale, lease, rental, disposition and management of large industrial properties in a major port. Thus, to the argument that the “ * * * Dock Board stresses strongly the testimony * * * that the 20+ cent rental rate * * * was a ‘sub-standard,’ a ‘bargain’, a ‘ridiculously low’ rate for the space” since “ * * the Dock Board did not need to make the kind of profit * * * that a private investor would,” the Court responds with this absolute. “This, of course, has no relevance * * * because, no matter how ‘ridiculously low’ the price for the space was, it was not being rented by the public even at that low price. It makes no difference what it was that caused the Dock Board to price the property under the market if, in fact, it did so and the property remained vacant. When it became apparent that such large quantities of the property would not move at that sub-standard price, then that price obviously was the most that could be obtained for it at the time.”
There are only two things wrong with that statement. First, as I read the cases, it is not correct as a matter of law. Second, it is hardly true as a matter of economics.
As to the economics, it asserts that unless a major piece of property forming an industrial or business complex is fully rented at the rate being offered, it proves that the market demand is less than the rate being offered. If that were so, a major modern office building, if condemned shortly after completion, would have no value on capitalized rents. Nor would a major shopping center which takes time to fully lease. In this respect, there is, of course, a significant difference between the Dock Board’s claim for (a) the value of occupancy from May 1, 1951 to December 23, 1952, and (b) the value of the fee on December 23, 1952. The former is essentially a problem of making good to the property owner the income which he would have earned during that brief period of occupancy. Unless in reasonable likelihood all of it would have been leased for the indicated rental value, the Court, on familiar principles of damages, could not make an award for 100% occupancy.10 The fee claim, however, does not rest upon the immediate earnings of the property as of the date of taking. The property owner is being permanently deprived of his ownership. He is being deprived of the opportunity to receive income in the future. That future is here not less than the agreed expectancy of 33 years for the useful life of the buildings. True, the future must be a foreseeable one. But for properties of such vast proportions as this Michoud facility, its rental capability in an area and era of increasing property values and business expansion can hardly be fixed by ordaining as a matter of law that rental rates offered *717nearly two years before (January 10, 1951 versus December 23, 1952) are of dominant, controlling significance.
The Court’s approach is, to me, also faulty on the law. For under the law value on a capitalization formula is not determined by improvident or unusual leases which, in the credited judgment of qualified competent experts, do not actually reflect going market conditions. “Where property in condemnation has been leased for a particular use, evidence of what the owner can fairly and reasonably receive as rental return for such use, even though this amount differs from the rental fixed in the existing lease, is proper as a possible capitalization factor to assist in the determination of actual market value. For capitalization purposes, neither the condemnee nor the condemnor should be bound by the rental of an unreasonable or improvident lease.” Chicago, B & Q R.R. v. North Kansas City Development Co., 8 Cir., 1943, 134 F.2d 142, 152. See also Westchester County Park Commission v. United States, 2 Cir., 1944, 143 F.2d 688, 693; Sifuentes v. United States, 1 Cir., 1948, 168 F.2d 264, 266; 1 Orgel, Valuation Under Eminent Domain § 179, p. 704, § 182, p. 708; 5 Nichols, Eminent Domain, § 19.2, p. 215.
The Commission, from the running, ceaseless advocacy of the parties, the examination, re-examination, cross examination, recross examination and swabbing of all of the witnesses through hours and days of endless testimony, was thoroughly familiar with the Government’s main theme. The Commission did not “ignore” it. It was weighed and found wanting.
I for one do not claim to know enough about New Orleans industrial property to declare, with the full weight of law behind it, that no reasonable person could have so concluded.
GOVERNMENT’S EXPERTS ASCRIBE RENTAL VALUE IN EXCESS OF DOCK BOARD UNIFORM RATES.
Experts proffered by the condemnees were not the sole source of facts showing a value in excess of Dock Board rates. The Government expert Aschaffenburg repeatedly asserted that between the period May 1, 1951-December 23, 1952, there had been an increase of approximately 12 to 15 percent in the level of industrial rents. Likewise the Government expert Johnson asserted that there had been an increase in excess of 50 percent over the Dock Board contract rates in the same period of time.11 Since the Court holds that the Dock Board contract rates were theoretically available on May 1, it is evident that there must be a comparable increase if they are to be used in capitalizing value as of December 1952. Yet Government counsel are indifferent to that here.
Moreover, as to individual leaseholds the Government experts gave sworn opinions substantially in excess of the contract rate. For example as to the Laclede lease in the Hammer Building where Lemarie stated a rental value of 75 cents per square foot (which was accepted by the Commissioners), Government expert Nichols gave it a value of 40 cents and Johnson 30 cents per square foot. Similarly, Johnson asserting that a substitute property on Gentilly Road was comparable to that formerly occupied by Cloar Glass Company, Inc., in effect placed a 49.8 cent value on Cloar’s lease. For other leases, Aschaffenburg fixed the value of 40 cents per square foot for floor space in the main manufacturing building and 50 cents per square foot in the Dry Kiln Building.
*718The Government offered each of these two witnesses. Despite this and now, without objection to the charge given to the Commission, it now feels free to assert, as it does, that the value of this leasehold could not exceed the 20 cent published rate.
The fact that some of these figures were testified to in connection with the claims of the tenants for the value of the unexpired leaseholds is of no significance. If the leaseholds on the critical date had that value to the lessee, it is because the leases had a free market value in that amount. To determine the value of the fee on that same date through the capitalization process, the same market value would have to be applied.
These few instances picked at random out of this vast record illustrate why in this hypothetical process of treating with a buyer and seller who never in fact existed, it is the informed judgment of those having extensive practical dealings with properties of this kind which finally prevails. Where such witnesses for both sides advance, as they did here, substantial and detailed reasons why the Dock Board published rates were not indicative, it was permissible for the Commission to credit these explanations and determine that the published rate was not a reliable guide of real worth.
VALUATION OF THE VACANT LAND.
As to the valuation of the vacant land areas, the decree of Judge Christenberry expressly adopting the findings of the Commission is swept aside with the pronouncement that “we * * * conclude * * * that the Dock Board did not carry its burden of establishing what the true value is.” In reaching this conclusion several errors are specified. The first, as in the case of unleased portions of the buildings, was the lack of any “basis in the evidence to warrant the Commissioners disregarding the rental rates which had been widely offered * * * ” for the unimproved land. Second, sales of property on the Harvey Canal are the sole basis for acreage values in the neighborhood of $8,000 and as a matter of law this is not a comparable. Third, values of buildings and values of vacant land ought not to have been separately ascertained and then aggregated. And related to this, there is no evidence on the aggregate value of the entire properties to a willing, single purchaser.
We deal first with the Harvey Canal matter. The Court first states there is “[n]o reasonable hypothesis * * * stated by any of the witnesses to support their opinions of an acreage value in excess of $8,000 per acre * * * other than comparisons with small tracts * * * on the Harvey Canal.” Later on, after pointing out what no one can deny that there was simply no instance of the sale of land approximating 707 acres, whether considered separately or as a part of an improved tract of 1,000 acres, the Court reached this conclusion. “We think it is apparent from the statement of the Commissioners that the only conceivable basis for their valuation was that propounded by the witness, Lemarie, who stated that he was basing it on comparisons with property sold on the Harvey Industrial Canal.” This leads the Court to declare the rule, recast by me in affirmative terms, that an appellate court “may * * * reverse a finding of value which it finds to have been based on a comparison of the condemned property with other tracts which neither by location nor quantity of land involved or other characteristics bear any resemblance to each other in the market.”
With all deference, these conclusions are not supported by the record, and the legal declaration is in error. In condemnation cases evidence of sales of other properties is admissible for either one or both of two purposes: (1) to establish an actual going market for sales of like property which then becomes the best (if not the only) measure of just compensation; (2) as tangible evidence of one of the many factors leading a skilled expert to reach a conclusion on value where there is no going market. The distinction is vital as this Court has
*719pointed out. “When the effort is not to show the sale of other property * * * as a standard of value, but these are referred to by a witness experienced in dealing with such properties in the neighborhood and qualified to have an opinion on values, merely as things in his knowledge which contributed to the opinion which as an experienced man he holds, his opinion ought not to be rejected from evidence, but ought to go to the jury for their consideration of its reliability * * Atlantic Coast Line R.R. Co. v. United States, 5 Cir., 1943, 132 F.2d 959, 963. As we more recently stated in approving this case, the “experts must base their opinions on such information in the art that accounts for their becoming experts.” And, not surprisingly, that means that even “a certain amount of hearsay is a necessary ingredient of the opinion * * International Paper Co. v. United States, 5 Cir., 1955, 227 F.2d 201, 208. What was said by the Ninth Circuit in United States v. Johnson, 9 Cir., 1960, 285 F.2d 35, 39, n. 2, properly characterizes the evidence in this record as to Harvey Canal sales. “Furthermore, such evidence was not offered or received as the measure of value of the property on the date of taking but was merely one approach used by all the experts, including the one who testified for the government, in arriving at their opinions as to the value of the property and as a check on such opinions.” That Court then proceeds to maintain the distinction as to the legal admissibility and treatment such evidence is to receive. “Quite obviously when evidence of the price for which similar property has been sold is offered as substantive proof of the value of the property under consideration, a foundation should be laid showing that the other property was sufficiently near that in question, and that it was sufficiently like the property in question as to character, situation, usability and improvements to make it clear that the two tracts were comparable in value. However, where evidence of sales of similar property is offered not as substantive proof of value, but merely in support of, and as background for, the opinion of an expert as to the value of the land in question, the requirement of such foundation is not so strict.” 285 F.2d 35, 41. Continuing on and quoting from Chief Judge Parker, the Court then points out that the expert’s opinion is to be tested through cross examination which was, of course, done at great lengths here.
As we pointed out in Atlantic Coast Line R.R. Co. v. United States, supra, any other rule would effectually deny Fifth Amendment protection to large or unusual properties especially in an era and area of an expanding economy in which no comparable sales could be cited or pointed out. It is uncontradicted, as the Commission’s Report found, that “all experts agreed that there were no tracts of industrial properties available which were situated on a tidewater channel in or around New Orleans * * * which was similar in size, character and condition as the Michoud land.” The Commission was not, as this Court’s opinion implies, misled into believing that Harvey and Michoud were comparable.12 The Commission under the heading of “Comparable Sales” extensively analyzed the testimony of the competing experts. It pointed out that the Dock Board’s appraisal witnesses “in reaching their conclusions of value” either “relied on or attached considerable weight” to sales at Harvey as all thought it “was the most comparable * * * because it was located on the same tidewater canal.” In the same discussion the Report pointed out that the “Government appraisers cited none of the sales at Harvey, assigning generally as the reason the fact that they considered the property at Harvey not comparable to the Michoud land be*720cause of the smaller size of the former * * -X- » Following this the Commission then discussed at greater length the sale of the 140 acres of raw land adjoining Michoud purchased by the New Orleans Public Service in August 1952.13 In using this as a basis for value both sets of experts had to make numerous adjustments because of the difference in elevation, the expenses to raise that land to the elevation of the improved Michoud land, etc. But this was not all. The Commission followed this by an even more extended discussion of the value of various leases cited as comparables. After all of this information — Harvey Canal, Public Service, leases, etc. — had been weighed and analyzed, the Commission recorded its conclusions. In so doing the Commission expressly disclosed that its valuations were not the product of any erroneous use of asserted com-parables.14
Though this fact is not mentioned in the Court’s opinion, this Court was the target of petty garbling which, even within the limits of strong advocacy, hardly does credit to the sovereign. The impression which the Government sought to create is that these opinions of Mr. Lemarie, seriously considered by the Commission, were mere exaggerations in behalf of interests served by him for a fee. Thus the Government urged the Court to reject, as it does, Mr. Lemarie’s valuation of $12,000 per acre for waterfront property at Michoud because he got the figure “out of my head.”
I resist the temptation to embellish it, for the record, as it continues is more than sufficient refutation:
“A. Out of my head.
“Q. In other words, you had nothing to rely on as a comparable to give you a figure of 30 cents per square foot?
“A. Mr. Wisdom [Government counsel], I think the formulas that I used are means of checking. But I think that reasonable judgment is expected of me as a witness that has been in the business for as many years as I have been to apply that reasonable judgment to the figure that I have compiled. I have compiled a lot of figures here, but when I get right down to it, I use what I consider is reasonable judgment to determine the value of the property.
“Q. I can understand, Mr. Lemarie, your stating that 30 cents was the figure per square foot that you assigned as the value of the property at Michoud, and that if you say so, that that was a matter of judgment, but what I want to make certain is that there were no comparable properties that you examined that led you to that conclusion?
“A. I didn’t take any particular property into consideration. I know that property in the heart of the city sells for $1.50 to $2.00 a square foot. I know that property sells in other areas for 50 cents a square foot. I *721know that property has sold on the Harvey Canal for 40, 50 and 60 cents a square foot. I know that property down in the downtown area here along the river front has sold for $1.00 and $1.25 a square foot. I put all of that together and I used my experience that I have had, and reasonable judgment in determining ‘If I know all of this, what is this worth’ and I say it is worth 27 to 30 cents a square foot.”
That Lemarie and the Commission were on sound ground, the Government expert, Johnson, makes clear. After first testifying that he investigated sales of other properties which he thought to be as comparable as possible, Johnson in response to this question: “What did you do in order to help you reach your conclusions as to the values you placed on the open land * * gave this answer :
“A. * * * But in the final analysis I used my judgment based on my years of experience and knowledge of industrial property in this vicinity.”
And then, breathing life into recognized works on real estate appraisal,15 Mr. Johnson stated that “I thoroughly subscribe” to Hart’s text that “after the appraiser has applied all the theory and has analyzed all of the data, and has come up with his conclusions, he should walk him across the street and put it on the curbstone and say to himself, ‘Now, what can I peddle it for?’ And if the answer doesn’t coincide with the answer determined by the study of all of the data, then they ought to go out the window and the common sense figure should be the conclusion.” Elaborating on this he concluded :
“A. I thoroughly subscribe to it. I think about 25 percent of the appraisal business is experience and 25 percent theory and 50 percent of it common sense, maybe 51 percent of it common sense.”
Perhaps stated in more traditional language that is precisely what the Sixth Circuit is saying in Knollman v. United States, 6 Cir., 1954, 214 F.2d 106, 108-109.
I have dwelt on this at length because to me it demonstrates that no matter how much we sugarcoat it, in this reversal this Court is engaging in the process of fact finding. In our remote positions whether in the Courthouse at New Orleans or from our various home environs, we are undertaking to declare as a matter of law that in these opinions these working New Orleans real estate experts 16 simply do not know what they are talking about. To reverse the judgment, we are saying as Judges that no reasonable man could find that waterfront property of the kind available at Michoud does not have the value placed on it by Lemarie or the others.17 When Courts make such statements, it inevitably means that Judges are here testifying from their own or collective experience. In order for us to say that no reasonable man could hold, we must first know the facts. If that is so, then I am unaware of the moment it came to me that waterfront properties do not reflect their extraordinary value as deep as 1,000 feet. If in that process my own experience *722counts for anything, I have difficulty in excluding rather intimate knowledge gained by going into, around and through numerous docks, terminals, shipyards, and the like throughout ports in the Gulf Coast.
The next error specified is that the Commission valued the vacant land and the building areas (leased and unleased) separately and added the two together. This is another instance of the Court’s preoccupation with the hypothetical willing seller-purchaser of the entire property as a whole. Granted that this is the ultimate aim in the evaluation process, there is nothing in the law, and certainly nothing in the experience of businessmen and economics, which would commit either the Commission or the experts to the artificial process of giving one single value one time and without any elaboration as a breakdown.
In evaluating an office building in a modern city, for example, any real estate man in his right mind would certainly differentiate between the rents obtainable for ground floor space, that in subbasements, that in exterior office space and that for interior spaces near corridors, elevators, service areas and the like. Likewise, the so-called theoretical investor about ready to purchase properties as complex as Michoud would necessarily arm himself with a staff of inspectors, surveyors and appraisers by which to determine the reasonable value of the identifiable component parts of the complex. True, in that process one cannot add 2 and 2 and get more than 4. But unless 2 and 2 are first identified and then added, the so-called expert would indeed lay himself open to the charge urged by the Government against Lemarie that his opinion would be “out of my head” and nothing more.
Certainly nothing in United States v. Buhler, 5 Cir., 1962, 305 F.2d 319, 325, or the earlier case so often miscited by the Government in these appeals, United States v. Certain Parcels of Land in Rapides Parish, 5 Cir., 1945, 149 F.2d 81, forbids the proper use of an articulate breakdown of component values so long as the evidence shows that separate values are tentatively determined in the course of ascertaining the economic value for the theoretical sale of the whole. Any other rule would produce absurdities both in economics and judicial administration. Thus, applying it literally, an expert put on the stand, after first testifying as to his general qualifications, could be asked but two questions: (1) do you have an opinion? (2) what is your opinion as to the total value of the entire property if sold to a single purchaser? It takes no great prescience to predict that any such procedure would be severely condemned. And if — as the Court implies — the expert is not permitted to elucidate on the breakdown of constituent values in the course of his direct examination, he certainly would not be permitted to go into it on cross examination. The trier of fact would then have a bald, naked opinion, nothing more, nothing less.
The quest for the hypothetical seller meeting the hypothetical buyer negotiating on a hypothetical sale which would never in fact be made has not yet reduced the Fifth Amendment to any such absurdity.
Moreover, this case was not tried before the Commission under any artificial procedural shackle by which one and only one figure could ever be stated. In the first place the Court’s charge (XXIV) stated that value “is to be ascertained and fixed on just consideration of all the uses for which the property is suitable, and evidence as to all such uses may be offered by either side.”18 The Commission “concluded that the weight of the evidence establishes that single occupancy of the plant is indicated as its highest and best use * * It fully understood what that meant. In the light of its holding that “ * * * the property in suit, taken as a whole, had no counterpart in New Orleans or surrounding area,” the Report stated the *723pj-oblem in traditional terms. “The appraisal of the fair market value must be made considering the informed willing hypothetical seller and purchaser * * * ” of the whole.
Equally important the Government through the questions propounded by its advocate and responses made by its experts followed exactly that same method. In detailing the evidence from Government expert Aschaifenburg (covering pages 415-447 of the Report), the first 11 pages reflect his analysis and methods employed in valuing vacant acreage (not including acreage attributable to buildings). His testimony and the Commission’s analysis of it demonstrates further that the single-shot method envisaged by the Court’s opinion never would work. For in his judgment the raw acreage had to be further divided into several subcategories such as submerged, batture land, etc. In other testimony, he then elaborately evaluated the buildings from a rental standpoint for purposes of capitalization. And Chart No. 3 annexed as a part of the Commission Report reflects that while his figures were different, he, as did the Dock Board experts, attributed separate dollar values to (a) land attributed to buildings, (b) the value of buildings thereon, (c) the value of open land and (d) the deductions from value on account of existing long term leases. The same was true of Government expert Johnson (pages 447-474).19 Moreover, Johnson’s testimony (as the Commission’s detailed analysis of it reflects) illustrates the very process through which intelligent, conscientious, experienced, competent real estate experts go in arriving at some idea of value where, as here, there is and can be no real comparable.20 Thus the Government’s own expert valued vacant land, not on the basis of the Dock Board rental rates of $200 to $350 per acre which this Court lays down as the imperative standard,21 but rather upon a reconstruction based upon his entire judgment and experience. That professional opinion, as with that of others, was a matter for the triers of fact to weigh in the light of all other evidence.
For similar reasons I think there is no basis for the Court’s criticism that fixing rental values for vacant land by a specified return on stated land values “is the reverse of the usual process of ascertaining the value of land by capitalizing its rental potential.” A consideration of the detailed Report shows that all of the experts — recognizing that in the final analysis it was a matter of informed judgment — used various methods to test the result. In such testing, an element which is proved by one approach is assumed to be established in determining another.22
*724THE LESSEES’ INTERESTS.
If I can understand what the Court says, the Lessees for all practical purposes are the real victims of a fiction. In the Court’s preoccupation with the hypothetical ideal of a single seller and a single purchaser of property that never was nor would be sold, the Lessees with valuable advantageous leaseholds are caught between two fictions.
The Court reasons that the leaseholds had no extraordinary value because theoretically on May 1, 1951 — the instant before condemnation — they could have obtained like space from the unleased portions of Michoud itself. And as to those few leases which the Court seems to recognize might have some extraordinary advantage, the loss sustained by the Lessees is not recoverable because the cost to them of replacement space was brought about by the Government taking of Michoud itself.
Thus what has no value suddenly becomes irreplaceable. I do not think that the Fifth Amendment has yet become so fictionalized by United States v. Cors, 1949, 337 U.S. 325, 69 S.Ct. 1086, 93 L.Ed. 1392.
The record and the Commission’s findings show the existence of a real economic value in favorable leases. The loss of the Lessees is the loss sustained by having that valuable interest taken away. The loss does not come from the increased costs by virtue of the Government condemnation.
DISPOSITION ON REMAND.
I have two principal concerns as to the Court's proposed disposition on remand. The first is that I am baffled by the outlined disposition on remand. I try to put myself in the position of the District Judge. Just what is he to do? What fact findings are to be respected ? Where is he to find the subordinate facts upon which presumably he is to make some more of his own ?
The second is that while it does not mandatorily order a retrial before a jury, the Court’s comments, quotations and directions add up to another stricture against the use of Commissioners under any circumstance. The case began as a complicated one. It is still complicated. We have merely added to its complications.
The presence of a Judge on the bench in the presence of 12 jurors is not going to change it. Except as to cost of reproduction (which the Commissioners rejected), not a single thing we have had to deal with turns upon the admissibility of evidence as such. The hope expressed therefore in United States v. Leavell & Ponder, Inc., 5 Cir., 286 F.2d 398, 409,23 will not invest us or the trial Judge with the power of an alchemist: we cannot make simple that which is complex.
I only know one thing: this case will be back with us years and thousands and thousands of pages later.
It has been tried on legal principles to which there was no timely objection registered or preserved. It was certainly the kind of case making a jury trial unsuited. F.R.Civ.P. 71A(h). Fact findings have been made by the body constituted under the rules to determine such a case. There, in the main, it should end. For that is the meaning of clearly erroneous even in condemnation cases.24
. The Government assigns only one error as to receipt of evidence — testimony on reproduction cost which was rejected by the Commission.
. Of the seven numbered specifications of errors, plus those running from 2(n) through (y), the Government complains of none save the instruction on original and reproduction costs. This is a matter of no consequence since the Commission’s Report expressly rejects this as a basis for the award.
. The Supreme Court has many times pointed out the elusive nature of this problem especially where large or unusual properties having no market currency are involved. See, e. g., Mississippi & Rum River Boom Co. v. Patterson, 1879, 98 U.S. 403, 25 L.Ed. 206; Olson v. United States, 1934, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236; see also United States v. Wateree Power Co., 4 Cir., 1955, 220 F.2d 226. The concurring opinion of Mr. Justice Frankfurter in United States v. Toronto, Hamilton & Buffalo Navigation Co., 1949, 338 U.S. 396, 407, 70 S.Ct. 217, 94 L.Ed. 195, dispels the easy myth that all becomes simple by exchanging the term “just compensation” for “market value.” He states: “Resort to the conventional formulas for ascertaining just compensation for the taking of property rarely bought and sold, and having therefore no recognized market value, does not yield fruitful results. The variables are too many to permit of anything except an informed judgment. Everything, therefore, turns on the process of judgment to the end that judgment be not based on standards too difficult of application or evidence too tenuous for solid inference.”
. The Court states that these experts “ignored or undertook to explain as irrelevant” or “discarded as irrelevant” the fact of the large amount of space available at the low rate of 20 cents per square foot.
. Just how a witness can be “clearly erroneous” is not clear. The evidence was obviously admissible. Whether the asserted omission of this factor deprived it of any significance goes to its weight. In any case no objection by the Government is shown to the admissibility of the testimony and no error is assigned for its receipt. Even in the ideal of the jury trial epitomized in Leavell & Ponder, 286 F.2d 398, 409, which is supposed to make a complex case simple, the Judge by the so-called prompt rulings on admissibility of this kind of evidence would be engaging in dangerous business as an intrusion on the fact finding function of the jury.
. Instruction XXIV, see also substantially repeated in XXVI.
. Letters in brackets [ ] added.
. The record shows that when the Judge finished reading the corrected charge to the Commissioners be invited written exceptions and objections. The record is silent as to any objection concerning tbis one.
. Only slightly watered down is the Court’s further declaration in disavowing a holding that the 20 cent lease rate must be accepted “as a matter of law.” The Court does not stop there. The Court goes on to hold that the Commissioners •erred in not considering “as one of the most important elements * * * the fact * * * ” that the purchaser and seller would be “largely controlled by the faet that the purchasers’ return * * * would depend on Ms being able to rent it on a market which, less than two years previously, had been unable to absorb a large part of it at a rental of approximately 20 cents per square foot.”
. Except to illustrate the vital difference between the two claims, I do not presently intimate any view as to the element of the award for occupancy of $2,364,940.48.
. This is a moderate summary of their testimony as the Report reflects: “However, * * * Mr. Aschaffenburg and Mr. Johnson, in their conclusions of the fair market value of the property, predicated their estimates of the expected income, in their capitalization approaches, on increases of 33%% to 100% in the square foot rates of particular areas, and a weighted average increase computed by us at 70% to 80%, in the case of Aschaffenburg, and 50% in the case of Johnson, in the fair rental values, per square foot, of the buildings at Michoud at December 23, 1952, over May 1, 1951.”
. The many differences were recognized. For example, the Commission found “there were available for industrial use larger acreages in surrounding parishes, some of which had Mississippi River frontages only and some without any kind of water frontage. Likewise, there was some acreage on the industrial canal at Harvey, Louisiana, but filling and improvement were required.”
. This was cited as significant by all of the experts.
. The Report stated: “Because of the nature, character and size of the property in suit and the non-existence of any other property in the area bearing greater likeness or similarity to that in suit than those involved in the cited sales and leases of other properties, it is understandable that the appraisers had to resort to the cited sales and leases for market data. They have undoubtedly produced what their judgment dictated was the best data available under the circumstances which, we believe, demanded that greater latitude, than normally allowed, be permitted in the introduction of such market data.
“Needless to say, we cannot and do not predicate any findings or conclusions of value, or awards of just compensation solely on any individual sale or lease cited. We do not regard the evidence of market data conclusive or in itself determinative of the issues of value herein. Such evidence of that data as we have given weight, viewed in the light of the whole body of the evidence, has, however, furnished us with some indication of the values to be determined.”
. See Porter, Evaluating Industrial Real Estate, pp. 132-133 (1953); McMichels Appraising Manual, p. 307 (4th ed. 1951).
. One of the Government experts stated that these four handled more industrial property in New Orleans than all other brokers combined.
. I am unable to understand the Court’s criticism directed at the Commissioners for accepting a figure based upon square footage. I would doubt that one as seasoned as Judge Christenberry was misled by the glittering magnitude of 30,000,000 square feet. He, as must be so as to the Commissioners and the real estate experts who made a living at tbeir trade, is presumably able to translate 43,560 square feet into the total amount to ascertain the price per acre. Moreover, there is positive testimony that “ * * * industrial property is sold on a square foot basis” in New Orleans. Cargo shipped by air is rated by pounds, by rail, hundred weights, by, ship, tons. But businessmen somehow handle the arithmetic.
. If this was an error, the Government did not object below and it asserts none here.
. He treated vacant land in four main categories, attributing a separate per acre dollar value to each to produce a total value of $2,305,697.00 for the open land.
The report then discusses in detail his calculations on a capitalization method for jjroducing the effective value of the buildings and land thereunder. Chart No. 3 reflects this value separately stated at $3,705,555.
. Thus, for example, his estimate of $4,000 per acre for land in category “G” — (Protected by Levee — was referable to throe cited sales. Starting with an adjusted cost of raw land at Michoud of $1,455 he then added increments such as the following to reflect advantages of the Michoud property over the cited sales:
For sewerage facilities $500 per acre For drainage 500 per acre
Michoud cleared, leveled and graded 300 per acre
Michoud waterfrontage greater 400 per acre
Location of Michoud somewhat better 500 per acre
These or similar adjustments produced Michoud values of $3,655 to $4,244 which he rounded off at $4,000.
. The Court states on vacant land values: “We think it is plain that in the absence of any substantial evidence to the contrary, it must be taken * * * that the rental rates for the land * * * in effect as of January 10, 1951, must be deemed to be the rents to be used for the valuing of the taking * * * May 1, 1951.”
. The law is not above such circular reasoning. Compare the test for granting *724an instructed verdict with that for granting j. n. o. v.
. “A jury trial at which the trial judge promptly rules on the admissibility of proper testimony and then narrows the issue by appropriate charge to the jury may, indeed, frequently simplify even what appears to be a complex valuation problem.”
. United States v. Tampa Bay Garden Apartments, Inc., 5 Cir., 1961, 294 F.2d 598; Parks v. United States, 5 Cir., 1961, 293 F.2d 482; United States v. Twin City Power Co., 5 Cir., 1958, 253 F.2d 197; Stephens v. United States, 5 Cir., 1956, 235 F.2d 467.