West Virginia Pulp & Paper Co. v. United States

• Decision Date: 10 November 1952
• Docket Number: No. 6439.,6439.
• Citation: 200 F.2d 100
• Parties: WEST VIRGINIA PULP & PAPER CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

200 F.2d 100 (1952)

WEST VIRGINIA PULP & PAPER CO. v. UNITED STATES.

No. 6439.

United States Court of Appeals Fourth Circuit.

Argued October 10, 1952.

Decided November 10, 1952.

COPYRIGHT MATERIAL OMITTED

Charles W. Waring, Charleston, S. C. (Waring & Brockinton, Charleston, S. C., on brief), for appellant.

Ben Scott Whaley, U. S. Atty., Charleston, S. C. (James M. McInerney, Asst. Atty. Gen., James B. Heyward, Sp. Asst. to U. S. Atty., Charleston, S. C., Roger P. Marquis and S. Billingsley Hill, Attorneys, Department of Justice, Washington, D. C., on brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal by a land owner from a judgment fixing compensation in a condemnation proceeding. The property involved is 44 acres of land belonging to the West Virginia Pulp & Paper Company which was taken to provide a site for storage of gasoline for the Air Force. It is a part of a 154 acre tract acquired by the company in 1936 and combined with adjacent tracts into one of approximately 413 acres, which was being held as a site for a pulp dissolving mill that the company was preparing to build near its plant on the Cooper River above Charleston, S. C. The jury fixed the value of the 44 acres condemned, together with all damages incident to the taking thereof, at $44,000; and, from judgment in accordance with the verdict, the company has appealed.

The 44 acres was taken, as stated, to provide storage for gasoline, and the company proposed to show that following its taking the government constructed thereon large storage tanks with a capacity of 80,000 barrels each and an over-all capacity of 23,500,000 gallons. It further proposed to show that the hazards incident to this use of the property taken greatly depreciated the value of the remainder of the tract for industrial purposes. The trial judge excluded this evidence and refused to instruct the jury that it might include this depreciation in its award of damages. In this we think there was error. It is well settled that "Whenever there has been an actual physical taking of a part of a distinct tract of land, the compensation to be awarded includes not only the market value of that part of the tract appropriated, but the damage to the remainder resulting from that taking, embracing, of course, injury due to the use to which the part appropriated is to be devoted". United States v. Grizzard, 219 U.S. 180, 31 S.Ct. 162, 163, 55 L.Ed. 165; Bauman v. Ross, 167 U.S. 548, 17 S.Ct. 966, 42 L.Ed. 270; United States v. Dickinson, 4 Cir., 152 F.2d 865, affirmed 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789; Raleigh, etc., R. Co. v. Mecklenburg Mfg. Co., 169 N.C. 156, 85 S.E. 390, L.R.A. 1916A, 1090; 18 Am.Jur. pp. 905-909.

In Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, 116, 48 L.Ed. 211, where an entire tract of land was taken, it was held that there might be no recovery on account of depreciation in the value of other lands of the owner resulting from the taking, but the court was at pains to distinguish that case from one where there was damage to the remainder of a tract from the use made of the part taken, and in the course of its opinion used the following language:

"The owner offered to prove the probable use the government would make of the land for military purposes for which it was taken; also, that the use of the land for such military purposes would damage and depreciate the remaining and adjoining land; also, that if the land to be taken was used by the government for military purposes it would endanger the adjoining land of the owner for a long distance and make the removal of his buildings necessary. These offers were rejected, and the court held that the jury should not take into account prospective damages to the remaining and adjoining land of the owner, arising from the future use of the land sought to be taken from him for military purposes * * *.

"The important question is as to the admissibility of evidence of damages to the remaining lands of the owner which would probably flow from any particular and probable use by the government of the land to be taken. It is said by the plaintiff in error that just compensation consists not only in an award of the value of the lands which are taken, but also of any damage that may result to the portion of the tract which remains, on account of such taking and on account of the uses to which the land taken may, or probably will, be put, and he cites many cases to show the correctness of the rule which he asserts.

"Its correctness may be conceded, but what we have to decide is whether the facts in this case bring it within the rule itself. We must see, therefore, what those facts are in order to intelligently determine the applicability of the rule asserted by the plaintiff in error.

* * * * * *

"Upon the facts which we have detailed, we think the plaintiff in error was not entitled to recover damages to the land not taken because of the probable use to which the government would put the land it proposed to take. If the remaining land had been part of the same tract which the government seeks to condemn, then the damage to the remaining portion of the tract taken, arising from the probable use thereof by the government, would be a proper subject of award in these condemnation proceedings. But the government takes the whole of one tract. If the evidence were such as to leave it a matter of some doubt whether the land owned by the plaintiff in error were one tract or separated into three separate and distinct tracts, it would be proper to leave that question to the jury, with the instruction that if they found that it was one tract, then damages might be awarded, and refused if they were separate and independent tracts."

The case here is to be distinguished from such cases as Campbell v. United States, 266 U.S. 368, 45 S.Ct. 115, 69 L.Ed. 328, and Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088, which hold that there can be no award of compensation on account of use of lands taken from others. In this case, however,...