U.S. v. 97.19 Acres of Land, More or Less, in Montgomery, Washington and Alleghany Counties, Md.

• Decision Date: 19 September 1978
• Docket Number: No. 76-2030,76-2030
• Citation: 582 F.2d 878
• Parties: UNITED STATES of America, Appellee, v. 97.19 ACRES OF LAND, MORE OR LESS, located IN MONTGOMERY, WASHINGTON AND ALLEGHANY COUNTIES, MARYLAND, Hollis E. Hopkins, et al., and unknown owners, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 878

582 F.2d 878

UNITED STATES of America, Appellee, v. 97.19 ACRES OF LAND, MORE OR LESS, located IN MONTGOMERY WASHINGTON AND ALLEGHANY COUNTIES, MARYLAND Hollis E. Hopkins, et al., and unknown owners, Appellants.

No. 76-2030.

United States Court of Appeals Fourth Circuit.

Argued Nov. 10, 1977.

Decided Sept. 19, 1978.

Rex L. Sturm, Rockville, Md. (Brown & Sturm, Rockville, Md., on brief), for appellant.

Eva R. Datz, Atty., Dept., of Justice, Washington, D. C. (Peter R. Taft, Asst. Atty. Gen., Frank S. Craig, III, H. David Barr, Edmund B. Clark and Jacques B. Gelin, Attys., Dept. of Justice, Washington, D. C., on brief), for appellee.

Before RUSSELL, Circuit Judge, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge.

WIDENER, Circuit Judge:

This is an appeal from the award of damages in a condemnation suit. As we are of opinion the district court erred in the evidence it did not permit the jury to consider in ascertaining the award attributable to the taking, we vacate and remand for a new trial.

The land in question is a 6.16 acre tract of a 151.86 acre farm located in Montgomery County, Maryland and is being condemned by the government for inclusion in the Chesapeake and Ohio Canal National Historic Park. The parcel lies along two roads: on its west side, Whites Ferry Road, a macadam road, and, on its south side, River Road, which is dirt. Except a small additional amount of frontage on Whites Ferry Road, variously described as from 60 to 130 feet, in the northwest portion of the farm, the condemnation would take all of the farm's frontage on the macadam surface road. ¹

The farm's driveway comes out near the intersection of Whites Ferry Road and River Road. Although the driveway was originally a part of the property being taken, the government amended its complaint so as to reserve to the owners an easement of ingress and egress over the driveway. ²

At trial, when the landowner attempted to prove the value of the 6.16 acre parcel, the district court excluded that evidence. It limited the proof of damages to evidence of the difference between the value of the entire farm before the taking and the value of the remainder after the taking. In so doing, the court excluded various items of evidence, such as the sales price of comparable small parcels. Because we believe the district court erroneously restricted the evidence of damages presented to the jury, the judgment entered on the jury's verdict must be set aside and the case remanded for a new trial.

When the government takes all of an owner's property, the formulation of damages is basic: the owner is entitled to the value of the land taken. However, when, as here, the government does not take an entire tract of land, but only a portion thereof, the problem becomes more complex in that the owner also is entitled to compensation for such damages to the part he retains as are consequential to the taking. See Miller v. United States, 317 U.S. 369, 376, 63 S.Ct. 276, 87 L.Ed. 336 (1942); 4A Nichols, The Law of Eminent Domain § 14.1 (Rev.3d Ed.) (hereafter Nichols ).

Hence, "where part of an owner's tract is taken by an exercise of the power of eminent domain, the owner is not confined to recover for the part taken only, but is entitled to recover also for the damages thereby visited upon the area remaining in his title, possession and use." 4A Nichols § 14.2.

The difficulty which has arisen in this case relates to the manner in which the damages, actual and consequential, are computed. The Nichols treatise notes at least two methods by which the award may be ascertained. One formula states that the compensation to which the landowner is entitled equals the value of the land taken plus the diminution in the value of the remaining land. 4A Nichols § 14.23. In contrast, the other method computes damages to be the difference in the value of the entire tract before the taking and the value of the portion remaining after the taking. Id. The landowner here attempted to present evidence to the jury consistent with the first theory by proving the value of the parcel actually taken; however, the district court refused to allow the introduction of evidence of the separate value of the parcel condemned, restricting the evidence as well as the theory of the case to the before and after rule as applied to the whole tract before and the remaining land after the taking, the government's theory of damages, and the whole case.

Thus, while the government was allowed to go forward and present evidence as to its theory of recovery, the landowner was precluded from presenting to the jury her evidence as to her theory of compensation. We believe that, under West Virginia Pulp & Paper v. United States, 200 F.2d 100 (4th Cir. 1952), and other cases, the landowner was entitled to prove the value of the parcel actually taken, plus the severance damages to the residue.

While we note that the Nichols treatise, after discussing the alternate methods for formulating damages in the case of a partial taking, prefers the before and after rule as the better formula because of simplicity of application, Nichols § 14.232(1), more importantly we observe that this court has considered the issue and has reached a different conclusion. As stated by the court in West Virginia Pulp & Paper Co. v. United States, 200 F.2d 100 (4th Cir. 1952), the "compensation to be awarded" in a partial taking is "the value of the land taken plus the depreciation in the market value of the remainder." 200 F.2d at p. 104. Thus, this circuit measures damages as the fair market value of the parcel actually taken plus the severance damages, if any, to the portion of the tract retained by the landowner, ". . . the difference in market value of the residue before and after taking" ordinarily being a "fair measure of severance damages." United States v. The Board of Education of the County of Mineral, 253 F.2d 760, at p. 763 (4th Cir. 1958). It follows then that the landowner must be allowed to prove the value of the part taken, and then to prove whatever damage might accrue to the remainder as a result of the taking. The rule approved by this court necessarily contemplates permitting the introduction of evidence which may include the separate valuation of the parcel actually taken and the residue. United States v. Wateree Power Co., 220 F.2d 226 (4th Cir. 1955); see also United States v. Mattox, 375 F.2d 461 (4th Cir. 1967).

The southern boundary of the property condemned, as well as that of the remaining part of the farm, lies along River Road, with the road to the south of the property. Along River Road is a ditch of some consequence, as well as creeks, which must be bridged to provide ready vehicular access to the southern part of the farm. The district court excluded all evidence of the cost of building new access on the ground that the access after the taking was the same as that before the taking. We are of opinion the access before and after the taking was not the same. Before the taking, the farm had as its principal access more than 100 feet in fee simple ownership along hard surfaced Whites Ferry Road to the west of the property and at the southwest corner of the farm. After the taking, the farm was left with no fee simple access to Whites Ferry Road at that point, rather merely a 20 foot right of way, not even owned in fee simple, and on...