United States v. Board of Education, 7548.

• Decision Date: 27 February 1958
• Docket Number: No. 7548.,7548.
• Citation: 253 F.2d 760
• Parties: UNITED STATES of America, Appellant, v. The BOARD OF EDUCATION OF THE COUNTY OF MINERAL, Appellee. In the Matter of UNITED STATES of America, Plaintiff, v. 3.99 ACRES OF LAND, MORE OR LESS, situate in MINERAL COUNTY, WEST VIRGINIA, The Board of Education of the County of Mineral, etc., Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

253 F.2d 760 (1958)

UNITED STATES of America, Appellant, v. The BOARD OF EDUCATION OF THE COUNTY OF MINERAL, Appellee.

In the Matter of UNITED STATES of America, Plaintiff, v. 3.99 ACRES OF LAND, MORE OR LESS, situate in MINERAL COUNTY, WEST VIRGINIA, The Board of Education of the County of Mineral, etc., Defendants.

No. 7548.

United States Court of Appeals Fourth Circuit.

Argued January 6, 1958.

Decided February 27, 1958.

Harold S. Harrison, Atty., Dept. of Justice, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., Albert M. Morgan, U. S. Atty., Robert J. Schleuss, Asst. U. S. Atty., Fairmont, W. Va., and Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellant.

Clarence E. Martin, Jr., Martinsburg, W. Va., and Donald C. Hott, Keyser, W. Va., for appellee.

Thomas B. Finan, City Sol., Cumberland, Md., for the Mayor and City Council of Cumberland, a municipal corporation, as amicus curiae.

Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit Judges.

PARKER, Chief Judge.

This is an appeal by the United States from a judgment on a jury verdict awarding damages to the Board of Education of Mineral County, West Virginia, for the taking of a portion of the property of the Ridgely, West Virginia, high school in connection with a flood control project on the Potomac River. In the condemnation proceeding the United States acquired fee simple title to 3.42 acres of the high school property and a temporary easement over 0.57 of an acre. The high school property prior to the taking embraced approximately eight acres and the evidence was that the high school could not be properly operated with less acreage than that. There was evidence to the effect that the high school property was worth approximately $400,000, that it would not be feasible to move the high school and that the value of adjacent property to take the place of the lands condemned was approximately $200,000. The case was submitted to the jury with instructions that its award embrace the value of the property taken plus damages to the residue less any benefits which might accrue to the residue as the result of the construction of the project, with the further instruction that, if the jury should find that the property taken had no market value, it might consider the cost of acquiring adjacent property in substitution for the property taken. The jury returned a verdict for $97,500 and from judgment in accordance therewith the government brings this appeal.

The complaint of the government is that the Board was allowed to introduce evidence of the value of the adjacent property which it would have to acquire if the acreage taken by the government was to be replaced and that the jury was allowed to consider this in arriving at a verdict, the contention of the government being that only market value could be considered in awarding damages. The portion of the charge to which exception was taken is as follows:

"We now turn to the formula which the courts have devised if you should find, from a preponderance of the evidence, that the property taken had no market value at the time of taking.

"The courts have said that where a portion of a tract of land is taken, and the land so taken has no market value at the time of taking, replacement cost or substitution cost is appropriate for consideration in reaching a judgment concerning the value which is just compensation. Under this formula, it appears that the defendant would be entitled to have the lands taken substituted, by replacement with lands with the same proximity if reasonably possible, and if the Board of Education is required to continue to provide the same facilities for its education, athletic and recreational program being conducted at the time of taking by the government. The cost in money of providing such replacement and such substitution facilities or land would then be just compensation to the Board of Education. Under this formula, one of the most important questions for you to decide is whether or not the Board of Education is so required to continue in effect the same educational, athletic and recreational program which was conducted on these high school lands of the Board of Education at the time of the taking by the government. You may reach the conclusion that it is not necessary for the Board of Education to so continue, and if you should so conclude, you should consider whatever is necessary, as shown by a preponderance of the evidence to be necessary, in order to determine what is the proper equivalent or substitute for the lands taken herein; in other words, how much loss will be suffered by the Board of Education by reason of the taking of a portion of its property.

"In applying the rule of ascertaining just compensation on the basis of cost of replacement or substitution, if you should find, from a preponderance of the evidence, that such is necessary, again you could take into consideration any peculiar or special benefits, which are shown by a preponderance of the evidence, that have been or will be derived by the Board of Education to its remaining building and lands from the construction of the flood wall, if such benefits are capable of reasonable present estimate and computation.

"It would be incumbent upon the Board of Education to put to the very highest, best and fullest utilitarian use all lands which it has remaining surrounding the school building, if it finds that it is either necessary or desirable to continue in every detail the athletic, recreational and physical education program conducted before the taking of the lands by the government. If the Board of Education is not obligated or required to conduct such a program but only deems it advisable to do so, it would be incumbent upon it to use the remaining existing facilities to their fullest extent, even though the rescheduling of curricular activities might result in inconvenience but not in pecuniary loss.

"You have a right to consider the uses to which the Board of Education was putting all of its lands at the time of the taking on the 30th day of April, 1956, and the uses which may have been wholly or partially destroyed as a result of the taking, and to fix and determine, from a preponderance of the evidence, a just compensation for the damages suffered by the defendant in restoring itself to the full utilitarian and equivalent use it enjoyed before the taking by the government. There is testimony before you as to other lands and properties, improved and unimproved, in close proximity to the remaining lands of the Board of Education, some to the south and some to the north of the high school building. The appraised value of these adjoining properties is stated by the witnesses for the Board of Education to be in the neighborhood of $200,000. You may ask yourselves whether or not a reasonably prudent and careful man, or group of men, would consider acquiring sixteen parcels of land, improved and unimproved, which are valued at approximately $200,000, as a substitute for the 3.422 acres of land taken by the government. The government is required to pay just compensation for the lands taken, but no more than necessary to indemnify the Board of

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