United States v. 180.37 ACRES OF LAND, ETC.

• Decision Date: 31 May 1966
• Docket Number: Civ. A. No. 64-C-56-R.
• Citation: 254 F. Supp. 678
• Court: U.S. District Court — Western District of Virginia
• Parties: UNITED STATES of America, Plaintiff, v. 180.37 ACRES OF LAND, MORE OR LESS, Situate IN DICKENSON COUNTY, COMMONWEALTH OF VIRGINIA, Defendants.

254 F. Supp. 678

UNITED STATES of America, Plaintiff, v. 180.37 ACRES OF LAND, MORE OR LESS, Situate IN DICKENSON COUNTY, COMMONWEALTH OF VIRGINIA, Defendants.

Civ. A. No. 64-C-56-R.

United States District Court W. D. Virginia, Roanoke Division.

May 31, 1966.

John M. Stephens, Stephens, Combs & Page, Pikeville, Ky. and Glyn R. Phillips, Clintwood, Va., for Atomic Fuel Co., Inc.

Thomas B. Mason, U. S. Atty., and James C. Roberson, Asst. U. S. Atty., Roanoke, Va., for the United States.

OPINION

DALTON, District Judge.

This is an action of a civil nature brought by the United States of America at the request of the Secretary of the Army for the taking of property under power of eminent domain in connection with the construction, operation, and maintenance of the John W. Flannagan Dam and Reservoir, Pound River, Dickenson County, Virginia, and for the ascertainment and award of just compensation to the owners and parties in interest.

The complaint was filed on June 4, 1964, together with a declaration of taking and a judgment on declaration of taking vesting title to the estate defined therein in and to the properties described therein in the United States of America on June 4, 1964.

Federal Rule 71A provides that in eminent domain proceedings the court may, in its discretion, order that "* * * because of the character, location, or quantity of the property to be condemned, or for other reasons in the interest of justice, the issue of compensation shall be determined by a commission of three persons appointed by it." If a commission is appointed, its findings and report "shall have the effect, and be dealt with by the court in accordance with the practice, prescribed in paragraph (2) of subdivision (e) of Rule 53." Fed.R.Civ.P. 71A(h). Federal Rule 53(e) (2) provides: "In an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous." Fed.R. Civ.P. 53(e) (2). Because of the special and complex problems involved in this case, this court appointed a commission to determine the amount of just compensation due each of the parties in interest.

The ascertainment of compensation to be awarded in condemnation cases is, as best, not an easy matter, and the case at bar involves a factual situation which presents problems even more difficult than might be normally encountered. It is with such instances in mind that the drafters of the Federal Rules made specific authorization for the appointment of commissioners to value the land taken. Those appointed in this case are men whose individual knowledge of and experience with land and land values (and especially the particular problems raised with reference to coal land) in this area is great. Sitting as a group they are able to pool their individual skill and learning and bring it to bear collectively on the complex problems here involved. It goes without saying that a court will be better able to achieve its goal of affording equal justice to all of the parties involved if it is able to rely on the judgment of experts in a given field. It is for this reason that the drafters of the Federal Rules have specified that the opinions and conclusions of the commissioners, arrived at after a thorough consideration of all the facts and evidence introduced, are not to be disturbed unless "clearly erroneous."

This case involves several different tracts of land and the court will deal with each in turn. Each tract presents its own particular factual problem, but there are certain rules of law which will apply to all as regards the amount of compensation to be awarded.

It seems undisputed that the owner of a parcel of land which is taken under the power of eminent domain is entitled to compensation for the "highest and most profitable use" to which the property is adaptable. See Mitchell v. United States, 267 U.S. 338, 45 S.Ct. 293, 69 L.Ed. 644 (1925); United States v. Wateree Power Co., 220 F.2d 226 (4th Cir. 1955). On the other hand,

* * * Elements affecting value that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable should be excluded from consideration for that would allow mere speculation and conjecture to become a guide for the ascertainment of value * * *. Olson v. United States, 292 U.S. 246, 255, 257, 54 S.Ct. 704, 78 L.Ed. 1236 (1934).

This is the Supreme Court's classic statement of the proposition that values in condemnation proceedings may not be based purely on conjecture. However, this mandate must obviously be read in light of what is reasonable and practical, and should not be carried to illogical extremes. In the case of United States v. Silver Queen Mining Co., 285 F.2d 506 (10th Cir. 1960), the United States Court of Appeals for the Tenth Circuit made the following observation:

Although cash market value may not be proved with certainty the test of just compensation remains the same and the required proof of value need rise no higher than the circumstances permit. Some speculation is inherent in the ascertainment of value of all resource property, be it mineral, oil, gas or otherwise, and if the quality of proof of value follows the custom of the industry, is the best available, and is sufficient to allow the jury or court to make an informed estimate as to the fact of value, such proof is sufficient to meet the burden. 285 F.2d at 510.

In the discussion which follows, then, this court will allow no award which is based merely on conjecture. At the same time, it will recognize that no piece of property, especially if it be mineral land, has a specific and definite value and so, to some degree, "speculation" must be indulged in. It might be well at this point to make a passing reference to another field of the law in order to better understand the problems presented here. Throughout the history of American law it has been said over and over again that specific performance will be granted for a contract to sell realty because of the idea that each piece of property is unique and hence not susceptible to definite valuation. This well established doctrine clearly shows that the courts in this country recognize that each time a piece of realty has a definite value placed upon it, a certain amount of speculation is involved.

It was the duty of the commissioners in this case to place a definite value on each piece of property involved, and the court will now consider their findings.

TRACT NUMBER 1221—39.64 ACRES

This tract consists of "bottom land, crop land, pasture land, woodland and waste land," (See Report of Commissioners, p. 2) and the commission found its total value to be $10,270.90. On pages three and four of their report, the commissioners listed separately the value of each part of the tract which they considered.

There does not seem to be any really serious contention by the government that this figure does not represent just compensation for Tract 1221, although exceptions to the report were filed. This court will affirm the findings of the commission as to this tract, as it cannot say that they are clearly erroneous. The commissioners had the benefit of viewing the land and hearing the testimony of experts as to its value, and they, as knowledgeable men in this field themselves, arrived at the final figure after carefully considering all of the evidence before them (note especially pages 2 and 3 of the Report of the Commissioners).

On page four of the report, the commissioners said:

At the conclusion of the evidence the Government's attorney argued that the property owners had not produced any expert evidence (Ev. 85) and were bound by what we saw and expert evidence. * * * In many kinds of cases there are more than one kind of expert witnesses. Adams v. Ristine, 138 Va. 273, 295 122 S.E. 126, 31 A.L.R. 1413. We conclude the defendants' witnesses were competent. Mont. Rv. v. Warner Warren, 137 U. S. 348 353 11 S.Ct. 96, 34 L.Ed. 181 681; Kerr v. Clinchfield Coal Co., 169 Va. 149 192 S.E. 741, approved 3 Wig.Ev. (3rd) 23.

The court agrees with this conclusion of the commission.

TRACTS NUMBERS 111-1, 111-2, 111-3 and 111E-4—61.38 ACRES

It appears that Ruth Hayter is the fee simple title owner of the surface of all four tracts and, in addition, owns the coal under ten acres of tract 111-1 (Tr. 270). The Pittston Company and Steinman Development Company own the coal under the remainder of the surface, and the Atomic Fuel Company holds an assignment of a purported lease for mining coal which lease was executed by Steinman and the Pound River Coal Company. This assignment embraces a portion of the tracts in question. The Pittston and Steinman companies have made a settlement with the government as to their rights in the land, and the assignment to Atomic was dealt with in a separate opinion. Miss Hayter's interest, then, is the only one which remains to be considered with reference to tracts 111-1, 111-2, 111-3, and 111E-4.

As regards the surface, the declaration of taking values it at about seventy dollars per acre. Miss Hayter places the value at one hundred thirty-five dollars an acre, and her expert witness fixes a fair price at eighty dollars an acre. The commission decided that the value of the entire two hundred twenty acres owned by Miss Hayter was eighty dollars an acre, "but as the portion taken is from the branch up the hillside 600 feet where it is common knowledge the best timber grows, and the Government has made a cut in the hillside almost vertical from 35 to 70 feet high (Ev. 295) which definitely restricts her access to the remainder in accordance with Instruction No. 13, we have fixed the value of 61.38 acres taken at $100.00 per acre * * *" Report of Commissioners, p. 6. Here again, the court cannot say that this value is clearly erroneous, as it was arrived at by men with knowledge of land values in the area involved.

Miss Hayter strongly contends that the coal underlying...