U.S. v. 33.5 Acres of Land, More or Less, Okanogan County, State of Wash.

• Decision Date: 19 May 1986
• Docket Number: No. 85-3631,85-3631
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. 33.5 ACRES OF LAND, MORE OR LESS, in the COUNTY OF OKANOGAN, STATE OF WASHINGTON, Defendant, and David S. Smith and Janet G. Smith, husband and wife, et al., Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. 25.7 ACRES OF LAND, MORE OR LESS, in the COUNTY OF OKANOGAN, STATE OF WASHINGTON, Defendant, and David S. Smith and Janet G. Smith, husband and wife, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1396

789 F.2d 1396

UNITED STATES of America, Plaintiff-Appellant, v. 33.5 ACRES OF LAND, MORE OR LESS, in the COUNTY OF OKANOGAN, STATE OF WASHINGTON, Defendant, and David S. Smith and Janet G. Smith, husband and wife, et al.,

Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellant, v. 25.7 ACRES OF LAND, MORE OR LESS, in the COUNTY OF OKANOGAN, STATE OF WASHINGTON, Defendant, and David S. Smith and Janet G. Smith, husband and wife, et al.,

Defendants-Appellees.

No. 85-3631.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 9, 1986.

Decided May 19, 1986.

Robert M. Sweeney, Asst. U.S. Atty., Spokane, Wash., Robert L. Klarquist, Jacques B. Gelin, Dept. of Justice, Appellate Section, Land & Natural Resources Div., Washington, D.C., for plaintiff-appellant.

Richard B. Price, Omark, Wash., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington.

Before GOODWIN, HALL and THOMPSON, Circuit Judges.

GOODWIN, Circuit Judge.

The United States appeals the judgment following a jury trial in which David and Janet Smith were awarded severance damages arising from the condemnation of a parcel of the Smiths' ranch.

In 1981 the United States, on behalf of the Bonneville Power Administration ("BPA"), initiated condemnation proceedings to acquire a power line easement across the Smiths' ranch in eastern Washington. The court granted possession on August 15, 1981. BPA then installed the 230-kilovolt transmission line facilities. About fifty-nine acres were taken, most of which were grazing lands. The ranch consists of about 6,200 acres.

When the condemnation action came to trial, the government sought in a motion in limine to exclude evidence of the infestation of diffuse knapweed, a persistent and noxious weed which has invaded large areas of western rangeland, including, since 1981, the Smiths' ranch. The trial court denied the motion so that the Smiths could show whether the BPA's proposed use of the condemned land would have affected the market for the rest of their rangeland in August 1981 because of potential knapweed damage.

At trial, the landowners offered testimony from several knapweed experts on how knapweed is introduced in an area, how it spreads, what was known about its control in 1981, its effect on rangeland productivity, and the effect that it would have had on any bargained price of the property in 1981 had there been a negotiated sale in the local market.

The government's appraiser estimated just compensation to be $15,800. The Smiths' appraiser testified that the landowner's compensation should be $223,225. About $141,500 of this amount was based on his estimate that the weed problem lowered the value of 5,659 acres of rangeland by $25 per acre.

The jury awarded the landowner $187,000.

When the government takes only part of a person's property, and when the value of the remainder depreciates because of the proposed use on the condemned parcel, the owner is entitled to compensation both for that which is physically appropriated and for the diminution in value to the non-condemned property. United States v. Dickinson, 331 U.S. 745, 750-51, 67 S.Ct. 1382, 1385-86, 91 L.Ed. 1789 (1947); United States v. Miller, 317 U.S. 369, 376, 63 S.Ct. 276, 281, 87 L.Ed. 336 (1943). This latter amount "is often, though somewhat loosely, spoken of as severance damage." Miller, 317 U.S. at 376, 63 S.Ct. at 281.

"Severance damages are compensable only if the landowner incurs a direct loss reflected in the marketplace that results from the taking.... [T]he landowner must demonstrate that the taking caused the severance damages." United States v. 760.807 Acres of Land, 731 F.2d 1443, 1448 (9th Cir.1984) (citations omitted). Any loss in value to the remainder is thus measured as of the filing of the declaration of taking. United States v. 50 Acres of Land, 469 U.S. 24, 105 S.Ct. 451, 453 n. 3, 83 L.Ed.2d 376 (1984).

Anticipated damage which may or may not be incurred is recoverable as severance damages if fear of that damage "would affect the price a knowledgeable and prudent buyer would pay to a similarly well-informed seller ...." 760.807 Acres of Land, 731 F.2d at 1447.

The government here argues that the knapweed evidence the Smiths offered does not support a severance damage claim, but rather a contract claim under the Tucker Act, 28 U.S.C. Sec. 1491 (1982), or a tort claim under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b) (1982), and thus the weed damage claim cannot be heard in this condemnation proceeding. Its theory is that the knapweed evidence was irrelevant to proving severance damages because any losses to the Smiths' ranch due to the knapweed occurred only after the taking occurred, when the weed actually invaded the land.

The government's contention is inconsistent with the theory on which the case was tried. The Smiths sought money not as damages for the actual invasion of knapweed, but for the threatened invasion of knapweed that reduced the value of their land.

First, the extensive knapweed testimony adduced at trial indicates that the ranch's value was adversely affected by the taking itself. Several experts testified about the perceived effect of knapweed on the value of ranch land. That testimony indicated that road construction and traffic, which the government acknowledged would accompany its construction activities, are primarily responsible for introducing knapweed to a pristine area. Dr. Ben Roche, professor of range management at Washington State University, testified that road traffic is "the most significant factor" in introducing the weed; the government's appraiser called the roads built when large ranches are subdivided "the breeders of knapweed." Dr. Elvin Kulp, an area agronomist for Grant County through Washington State University's Cooperative Extension program, explained that the weed is spread by animals, wind, and man, "especially vehicles." Others explained that knapweed is impossible to eradicate and can be contained only through use of an expensive and toxic herbicide. The weed crowds out those plants which livestock eat and becomes dominant if not treated. Accordingly, rangeland free of knapweed and of those conditions likely to promote its introduction is more valuable than infested land. This testimony indicates that the apprehension of knapweed infestation on the part of a knowledgeable buyer of eastern Washington rangeland in 1981 would not have been "based wholly on speculation and conjecture," 760.807 Acres, 731 F.2d at 1447, but on substantial data then available on conditions favoring introduction of the weed and on the lack of adequate controls.

The testimony was correctly limited to the consideration of the effect on the value of the land from the prospective invasion. This is not a case in which the party whose land was condemned is seeking recovery for a physical invasion of the remainder after the filing of the declaration of taking. See United States v. 101.88 Acres of Land, 616 F.2d 762, 767-72 (5th Cir.1980) (damages from dumping of spoil on remainder not compensable as severance damage); United States v. 3,317.39 Acres of Land, 443 F.2d 104, 106 (8th Cir.1971) (damage from flooding beyond that described in declaration of taking not compensable as severance damage). The Smiths' appraiser, in estimating the weed's effect on the ranch's value, explicitly limited his assessment to the time of the taking and to the response of a knowledgeable buyer on learning of the condemnation and the proposed uses of the land. ¹

Finally, the jury instructions, not even challenged here, support the Smiths' position that their claim is properly recoverable as severance damages. The court...