U.S. v. 14.38 Acres of Land, More or Less Situated in Leflore County, State of Miss.

• Decision Date: 18 April 1996
• Docket Number: No. 95-60387,95-60387
• Citation: 80 F.3d 1074
• Parties: 44 Fed. R. Evid. Serv. 103 UNITED STATES of America, Plaintiff-Appellee, v. 14.38 ACRES OF LAND, MORE OR LESS SITUATED IN LEFLORE COUNTY, STATE OF MISSISSIPPI, Defendant, and Joseph C. Coker, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1074

80 F.3d 1074

44 Fed. R. Evid. Serv. 103

UNITED STATES of America, Plaintiff-Appellee, v. 14.38 ACRES OF LAND, MORE OR LESS SITUATED IN LEFLORE

COUNTY, STATE OF MISSISSIPPI, Defendant,

and

Joseph C. Coker, III, Defendant-Appellant.

No. 95-60387

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

April 18, 1996.

Jim Ming Greenlee, Assistant U.S. Attorney, Alfred E. Moreton, III, Office of the United States Attorney, Oxford, MS, for plaintiff-appellee.

Timothy L. Waycaster, Waycaster & Warren, Jackson, MS, for defendant-appellant.

Appeal from the United States District Court for the Northern District of Mississippi.

Before WIENER, PARKER and DENNIS, Circuit Judges.

PER CURIAM:

In this eminent domain action, the district court granted the Government's motion in limine to exclude expert testimony regarding severance damages claimed by appellant, Joseph Coker, III, as a result of the Government's taking of an easement over a portion of his property. Having excluded the testimony, the trial court issued a final judgment awarding Coker an amount stipulated to by the parties solely as just compensation for the portion of the property subject to the easement and an uneconomic remnant. Because we find that the trial court abused its discretion in excluding the expert testimony concerning the alleged decrease in value of the remaining property as a result of the Government's taking, we vacate the district court judgment and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

James C. Coker, III, owns approximately 350 acres located along the Yazoo River in Leflore County, Mississippi. The property, part of a tract bought by his family in 1935, contains Coker's residence and out-buildings, and is used for the farming of cotton, soybeans and corn. In 1938, private landowners constructed a levee that protected the majority of Coker's property from rising waters of the Yazoo River. The levee has since been maintained by area landowners and government entities, including the Leflore County Board of Supervisors and the United States Army Corps of Engineers.

In order to build a new levee in connection with the Upper Yazoo Project, the United States, on May 20, 1992, filed a complaint and declaration of taking in the Northern District of Mississippi to condemn 14.38 acres of the Coker property along its western and northern boundaries. The property was taken for the public purpose of providing "flood control in Yazoo River Basin, Mississippi, and for other uses incident thereto, in connection with the construction, operation and maintenance of the Upper Yazoo Project The United States originally deposited with the court the sum of $12,500.00 as just compensation for the easement, an amount subsequently increased by the sum of $3,150.00. Joseph Coker appeared to assert his interest in the determination of just compensation for the taking, contending primarily that the construction of the new levee has decreased the value of his remaining property because the apparent increased likelihood of flooding on the land has lowered its market value.

                as part of the Yazoo Basin Headwater Project, Upper River Basin, Mississippi...."  Record at 2 (Complaint p 3).   The estate taken by the United States is a perpetual and assignable right and easement in the land to construct, maintain, repair, operate, patrol and replace a flood protection levee, public roads and highways, and public utilities, reserving to the owner such rights and privileges in the land as may be used without interfering with such or preexisting easements.   Id. (Complaint p 4).   The location of the new levee places the remainder of Coker's property on the unprotected side of the levee, between the levee and the Yazoo River.   According to Coker, local, state and federal governments will no longer contribute to the upkeep of the old levee, and the cost of maintenance will fall on Coker
                

In his Exhibit and Witness List, Coker listed himself, Rip Walker, James Hooper, Rogers Varner and Bill Roberts as his anticipated or possible witnesses at trial. R. at 263-64. Prior to the trial of this matter, however, the Government filed a motion in limine to exclude expert testimony by Rogers Varner and Rip Walker, Coker's engineering and real estate appraisal experts, respectively. Varner is a civil engineer who received a Bachelor of Science degree in Civil Engineering from the University of Mississippi and a Masters of Engineering from Tulane University and who previously worked as a civil engineer for the United States Army Corps of Engineers. He stated in his expert report that based on his review of United States Geological Survey maps, data from the Corps of Engineers regarding past flood events, and aerial photographs, Coker's property, located entirely on the unprotected side of the new levee, was more likely to be damaged in a major flood than in pre-project conditions, and that his inspection of the old levee revealed that it was in a state of failure in parts and that it could not be repaired. In the event a flood breached the failing old levee, Varner opined that the new levee system would insure that water would pond and stand on Coker's property. Walker, who is licensed as a real estate broker in Mississippi, certified as a real estate appraiser in Mississippi and Tennessee, and is a member of the Appraisal Institute, explained in his report that a potential buyer of Coker's property would immediately note its location on the unprotected side of the levee, as well as the fact of the levee's construction, and would perceive that the property was likely to flood, despite the Corps of Engineer's position that its channelization of the river would reduce the water level in the river and thus decrease the likelihood of flooding. Because of this perceived risk of flooding, Walker concluded that the property's market value had decreased as a result of the taking. Based largely on his analysis of sales of agricultural land on protected and unprotected sides of levees, as well as discussions with other appraisers, brokers and lenders, Walker concluded, in part, that the lands used for cotton farming would now be marketable as less valuable soybean-farming property, and that the risk of flooding would decrease the value of the residence by approximately $20 per square foot or require the construction of a ring levee around the house costing approximately $60,000.

The district court granted the Government's motion in limine. The court concluded that the expert opinions of Varner and Walker lacked sufficient foundation under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), finding that these expert opinions "are speculative and not based on reliable foundations and thus would be of no aid to the finder of fact in determining just compensation in this case." 884 F.Supp. 224, 227 (N.D.Miss.1995). In reaching this determination, the lower court appears to have focussed on the uncertainty that both experts expressed about the extent of flooding on Coker's property in the event of heavy rainfall.

                Id.  Having excluded expert testimony on the value of Coker's property, the district court concluded that no competent evidence remained to be considered and therefore Coker could not meet his evidentiary burden in demonstrating a diminution in the value of his property. 1  Id. at 228.   The court consequently entered judgment in favor of Coker for $17,134.00, an amount stipulated to by the parties as just compensation for actual damages for the land taken and an uneconomic remnant. 2
                

DISCUSSION

Under the Fifth Amendment's takings clause, private property may not be taken for a public purpose without "just compensation." U.S. Const. amend. V. Just compensation, as defined by the Supreme Court, "includes all elements of value that inhere in the property, but it does not exceed market value fairly determined." Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78 L.Ed. 1236 (1934). In this case, a partial taking has occurred, as the Government has acquired an easement over a portion of Coker's property. When the Government has physically acquired through its eminent domain powers a portion of a distinct tract of property, "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, 183, 31 S.Ct. 162, 163, 55 L.Ed. 165 (1911). The proper measure of damages in such a case is the difference between the value of the parent tract before the taking and its value after the taking. United States v. 8.41 Acres of Land, Situated in Orange County, State of Texas, 680 F.2d 388 (5th Cir.1982).

The district court acknowledged these basic legal precepts, but concluded that the expert testimony proposed to be introduced by the appellant was so lacking in reliability that it should be excluded from evidence. Although a trial court is accorded a wide berth to determine the admissibility of expert testimony, Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109 (5th Cir.1991) (en banc ) (per curiam ), cert. denied, 503 U.S. 912, 112 S.Ct. 1280, 117 L.Ed.2d 506 (1992), we conclude that in this case the district court abused its discretion in excluding the testimony.

Under the Federal Rules of Evidence, a qualified expert witness may testify "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue...." FED.R.EVID. 702. The trial court is charged with making initial determinations as to the admissibility of evidence. FED.R.EVID. 104(a). However, in determining the admissibility of expert testimony, the district court should approach its task ...