United States v. Mattox, 10849.

• Decision Date: 08 March 1967
• Docket Number: No. 10849.,10849.
• Citation: 375 F.2d 461
• Parties: UNITED STATES of America, Appellee, v. William R. MATTOX, Appellant. In the Matter of UNITED STATES of America v. 28.91 ACRES OF LAND, MORE OR LESS, Situate in BRAXTON COUNTY, WEST VIRGINIA, and William R. Mattox et al., and unknown others.
• Court: U.S. Court of Appeals — Fourth Circuit

375 F.2d 461 (1967)

UNITED STATES of America, Appellee, v. William R. MATTOX, Appellant.

In the Matter of UNITED STATES of America v. 28.91 ACRES OF LAND, MORE OR LESS, Situate in BRAXTON COUNTY, WEST VIRGINIA, and William R. Mattox et al., and unknown others.

No. 10849.

United States Court of Appeals Fourth Circuit.

Argued February 8, 1967.

Decided March 8, 1967.

R. J. Thrift, Jr., Fayetteville, W. Va. (Mahan, Higgins, Thrift & Graney, Fayetteville, W. Va., on brief), for appellant.

George R. Hyde, Atty., Dept. of Justice (Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis, Atty., Dept. of Justice, Milton J. Ferguson, U. S. Atty., and Charles M. Love, III, Asst. U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and J. SPENCER BELL and WINTER, Circuit Judges.

J. SPENCER BELL, Circuit Judge:

The defendant, Mattox, appeals from a condemnation proceeding judgment which limited his recovery to the value of the property taken and denied severance damages.

The United States took by condemnation a tract of 28.91 acres owned by Mattox in Braxton County, West Virginia. This was one of several tracts totalling 7211.14 acres conveyed to him in fee by deed dated November 21, 1957. By another deed of the same date, Mattox obtained a lease for 90 years for timber rights and rights of way across another tract of 2046.878 acres which lay between the 28.91-acre tract and the remainder of the 7211.14 acres described in the first deed. For convenience, we shall refer to the 28.91 acres as the condemned tract, the remainder of the 7211.14 acres as the fee tract, and the 2046.878 acres as the leased tract. The condemned tract is flat bottom land lying along the Elk River. Both the fee and the timber tracts consist of wild mountain lands covered by a substantial growth of marketable timber which constitutes the chief value of the property.

At the pretrial hearing, the defendant announced that he would offer evidence showing severance damage to the fee tract. The court in a letter opinion advised that it was "* * * of the opinion that evidence of the mere frustration of plans for the use of the residue of the 7211.14 acres of timberland would * * * be inadmissible." When the case came on for jury trial the parties stipulated that the value of the condemned tract was $12,350.00, and this is not in issue. It was also agreed that Mattox was not, under the law, entitled to any compensation for severance damage to his leased tract, and that point too is not in issue. Mattox was then allowed to make a proffer of evidence to show severance damages to the fee tract, the Government objected, and the court sustained the objection. Counsel for Mattox then read into the record what his evidence would show. There being no remaining issue of fact, the jury was dismissed and the court entered a judgment for the stipulated amount for the condemned tract, from which judgment Mattox appeals in order to bring the issue of severance damages to this court.

Mattox's proffer of evidence was substantially as follows. His witnesses would have testified that the fee tract was worth from four to five dollars an acre devoid of the timber and approximately $54.00 to $55.00 an acre with the timber on it. That the condemned tract had been used for a mill site some forty or fifty years before during a "timber boom" in West Virginia. That the only other reasonably adaptable mill site was some sixteen miles away. That the Government's taking deprived the owner of the only available mill site within sixteen miles and that this deprivation diminished the fair market value of the fee tract by $150,000.00 at the least, from $378,000.00 to $228,000.00.

We now turn to the facts which are accepted by the parties as being the record upon which the judge's decision below was based. These facts were taken from maps, plats, depositions, public records, memoranda of counsel which were on file in the proceeding, and statements made in open court. The defendant makes no objection to the manner in which the issue is raised on this appeal.

The Sutton Dam and Reservoir Project on the Elk River in West Virginia was initiated under authority of the Flood Control Act of June 22, 1936, 49 Stat. 1570, 33 U.S.C. § 701a (1964), and the Flood Control Act of June 28, 1938, 52 Stat. 1215, as amended, 33 U.S.C. § 701b (1964).

In August 1949 acquisition of land necessary in constructing the dam was begun. In August 1950 acquisition of the land required for area of the reservoir was commenced.

The actual construction of the Sutton Dam was begun in November of 1956 and completed in June of 1960.

On November 21, 1957, the defendant's deeds to all three tracts here involved were recorded. For the lease tract, the consideration was $30,000.00. For the fee tract including the 28.91 acres which were condemned, the defendant paid $45,000.00

In 1950, the relocation of a spur line of the Baltimore and Ohio Railroad which had formerly passed through the reservoir area including the area of the condemned tract was begun. Condemnation proceedings were instituted to acquire the necessary land for the relocation of the right of way. This work was interrupted by the Korean War but was resumed in 1955 and completed in 1958. The new right of way was at a substantially higher level and the tracks laid thereon did not connect with the old right of way which passed through the condemned tract. The old track, which ran through the condemned tract, had last been used in 1942. As early as 1949 the rails had sunk below the level of the ground, erosion and slides had damaged much of the road bed, and floods had removed most of the bridges, including one railroad bridge at the entrance to the condemned tract.¹

The crux of the defendant's argument is contained in this quotation from his brief: "The property taken has been and was contemplated as a mill site for the production of timber and by virtue of its very existence and ownership by the same individual gave to the remaining portion of this timber land an additional value. * * * The purpose for which all of this property was acquired was an integrated purpose whereby each segment of the property would contribute to the value of the whole. Holding this property for the advent of an advantageous sale or development was just as much a use as though timbering operations had been conducted thereon." In support of his contentions the defendant relies upon Baetjer v. United States, 143 F.2d 391 (1 Cir.), cert. denied, 323 U.S. 772, 65 S.Ct. 131, 89 L.Ed. 618 (1944).

We can agree that the physical proximity and the possibility of an integrated use of two separate tracts would give rise to an additional economic value to each, but it does not follow that the mere proximity or possibility of the integrated use will confer upon the owner a right to severance damages. Nor does the holding of such advantageously situated property for sale automatically entitle the owner to...