United States v. 1,129.75 ACRES OF LAND, ETC.

• Decision Date: 15 February 1973
• Docket Number: No. 72-1450.,72-1450.
• Citation: 473 F.2d 996
• Parties: UNITED STATES of America, Appellant, v. 1,129.75 ACRES OF LAND, MORE OR LESS IN CROSS AND POINSETT COUNTIES, Arkansas, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

473 F.2d 996 (1973)

UNITED STATES of America, Appellant, v. 1,129.75 ACRES OF LAND, MORE OR LESS IN CROSS AND POINSETT COUNTIES, Arkansas, Appellee.

No. 72-1450.

United States Court of Appeals, Eighth Circuit.

Submitted January 12, 1973.

Decided February 15, 1973.

Larry G. Gutterridge, Atty., Dept. of Justice, Washington, D. C., for appellant.

J. L. Shaver, Shaver & Shaver, Wynne, Ark., for appellee.

Before MATTHES, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge.^*

MATTHES, Chief Judge.

This is an appeal by the United States from a final judgment rendered pursuant to a jury verdict fixing the amount of just compensation at $22,800 for the taking of a flowage easement in connection with the St. Francis River Basin flood control project.

Condemnation proceedings were instituted against the 391 acre farm owned by appellees, Frances D. Thomas, Charles D. Thomas, and Margrave B. Melhorn, on October 15, 1964, under authority of 33 U.S.C. § 702a et seq., and other miscellaneous statutes. The estate taken was a "perpetual . . . right . . . to occasionally and intermittently overflow, flood and submerge" the land "in connection with the construction, operation and maintenance" of the project. On March 28, 1964, and for three days thereafter, the issue of just compensation was tried before a jury.

The only question presented for decision is whether the district court erred in refusing to permit the government to introduce evidence of comparable sales which occurred after the date of taking in this case. The court, in rejecting the proffered evidence, apparently entertained the view that regardless of the circumstances, evidence of subsequent sales would impose an "impossible condition" upon the general test applicable to ascertaining the fair market value of the property taken.

The government submits that the trial court abused its discretion by adopting a per se rule excluding all comparable sales made subsequent to the date of taking. We agree with the government, but for reasons stated below we nevertheless affirm.

When land is taken by eminent domain, and the title acquired is not a fee, but merely an easement, the proper measure of damages is the difference between the market value of the land free of the easement and the market value as burdened with the easement. Transwestern Pipeline Co. v. O'Brien, 418 F.2d 15, 21 (5th Cir. 1969); United States v. Merz, 306 F.2d 39, 42 (10th Cir. 1962), rev'd on other grounds, 376 U.S. 192, 84 S.Ct. 639, 11 L.Ed.2d 629 (1964); Calvo v. United States, 303 F. 2d 902, 909 (9th Cir. 1962); Karlson v. United States, 82 F.2d 330, 337 (8th Cir. 1936); 4 Nichols, Eminent Domain § 12.41 2, p. 12-455 and n. 14 (collecting cases) (1971 ed.).

Generally, evidence of sales of comparable property is persuasive evidence of market value, either as direct proof or in support of a witness's opinion. United States v. 3,698.63 Acres of Land, 416 F.2d 65, 67 (8th Cir. 1969); United States ex rel. T. V. A. v. Easement and Right of Way, 405 F.2d 305, 308 (6th Cir. 1968); United States v. Sowards, 370 F.2d 87, 89-90 (10th Cir. 1966). The threshold question of admissibility, whether particular sales are sufficiently similar and proximate to the property in litigation to have some bearing on market value, must necessarily rest in the sound discretion of the trial court. United States v. Certain Land in City of Fort Worth, Texas, 414 F.2d 1029, 1031 (5th Cir. 1969); United States v. 55.22 Acres of Land, 411 F.2d 432, 434 (9th Cir. 1969); cf. United States v. Ham, 187 F.2d 265, 270 (8th Cir. 1951).

Courts have been reluctant to admit evidence of subsequent comparable sales to determine market value when (1) the particular sales involved were not sufficiently comparable to the litigated property in character, locality or time, or (2) the subsequent sale price reflected an important enhancement in value because of the project for which the land was taken. See cases collected in Annot., 85 A.L.R.2d 110, 152 (1962). In all of the recorded cases, however, the courts have refrained from adopting a per se exclusionary rule. See, e. g., United States v. 691.81 Acres of Land, 443 F.2d 461, 462-463 (6th Cir. 1971); cf. United States v. 2,187.43 Acres of Land, 461 F. 2d 938, 940 (8th Cir. 1972). Judge Lumbard of the Second Circuit Court of Appeals, in reversing a lower court for excluding evidence of subsequent sales, observed:

"There is no absolute rule which precludes consideration of subsequent sales. The general rule is that evidence of `similar sales in the vicinity made at or about the same time\' is to be the basis for the valuation and evidence of all such sales should generally be admissible . . . including subsequent sales. . . . The generality of this rule is limited however, by the consideration that a condemnation itself may increase prices and the government should not have to pay for such

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