US v. 215.7 Acres of Land in Kent County, Del., Civ. A. No. 87-173-JLL.

• Decision Date: 01 August 1989
• Docket Number: Civ. A. No. 87-173-JLL.
• Parties: UNITED STATES of America, Plaintiff, v. 215.7 ACRES OF LAND, MORE or LESS, situate in KENT COUNTY, STATE of DELAWARE, and Francis Bergold and Margaret Bergold, Husband and Wife, Defendants.
• Court: U.S. District Court — District of Delaware

719 F. Supp. 273

UNITED STATES of America, Plaintiff, v. 215.7 ACRES OF LAND, MORE or LESS, situate in KENT COUNTY, STATE of DELAWARE, and Francis Bergold and Margaret Bergold, Husband and Wife, Defendants.

Civ. A. No. 87-173-JLL.

United States District Court, D. Delaware.

August 1, 1989.

COPYRIGHT MATERIAL OMITTED

William C. Carpenter, Jr., U.S. Atty., and Kent A. Jordan, Asst. U.S. Atty., Wilmington, Del., for plaintiff.

Clark W. Furlow and Anne Bookout Horgan of Lassen, Smith, Katzenstein & Furlow, Wilmington, Del., and Dennis J. Riley, Joseph A. Artabane and Lisa Smith Sanders of Spriggs & Hollingsworth, Washington, D.C., of counsel, for defendants.

MEMORANDUM OPINION

LATCHUM, Senior District Judge.

I. INTRODUCTION

This case arises out of the condemnation by the United States (the "Government") of property near Dover, Delaware, for expansion of the Dover Air Force Base.¹ At issue is some 217.5 acres of property which was owned by Francis and Margaret Bergold. The Bergolds lived on part of the property for some thirty-five years, and operated it as a farm. They have requested a jury trial to determine the compensation they are entitled to for the taking.

Presently there are two motions before the Court. The Government has moved for a ruling in limine forbidding certain testimony by the Bergolds at trial regarding the value of the property. (Docket Item "D.I." 51.) The Bergolds have moved to compel the Government's response to certain discovery requests. (D.I. at 53.) After considering the written submissions of the parties and having held and considered oral argument, the Court will address the motions separately below.

II. THE GOVERNMENT'S MOTION IN LIMINE

Counsel for the Government has submitted an affidavit stating the following. The Government took the depositions of both Mr. and Mrs. Bergold. (D.I. 52, Exh. A, ¶ 2.) In the course of her deposition, Mrs. Bergold "became visibly upset and tearful in discussing her family's feelings for and emotional attachment to the ... property." (Id. at ¶ 3.) "She also expressed frustration about the manner in which employees of the United States Army Corps of Engineers had dealt with her and her family in the course of the taking." (Id.) Mr. Bergold "indicated that his estimation of the worth of his property is 3.5 million dollars." (Id. at ¶ 4.) "This estimation is apparently based in part upon Mr. Bergold's estimation of the particular value which the property has for his personal use and business interests and the costs to recreate his farming business at a new location." (Id.)

The Government seeks an order that will forbid presentation to the jury of "any evidence which does not deal solely with the issue of the fair market value of the ... property as of the date of the taking," and specifically "the sentimental attachment" the Bergolds may have to the property, "the emotional distress" they may have experienced as a consequence of the taking, and "the consequential damages, such as loss of business or relocation expenses" they may have incurred or may incur because of the taking. (D.I. 52, Exh. B, ¶¶ 1-2.)

On July 25, 1989, while these motions were before the Court, Mrs. Bergold died. However, the Court will continue to refer to the "Bergolds" as parties to this suit. As discussed infra, Mrs. Bergold's death is material to the Court's disposition of the Government's motion for a ruling in limine.

The Federal Rules of Evidence do not explicitly authorize in limine rulings. Rather, the Court may make such rulings pursuant to its inherent authority to manage the course of trials. See Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 463 n. 4, 83 L.Ed.2d 443 (1984); see also United States v. Romano, 849 F.2d 812, 815 (3d Cir.1988).

First, the Government contends that the Bergolds "have made plain in discovery the strong feelings they have for their property and the distress ... the taking has caused them." (D.I. 52 at 7.) This, the Government argues, is "irrelevant" to the issue of just compensation and will have an "unfair prejudicial impact." (Id. at 7-8.)

The issue for trial is the determination of "just compensation" for the taking. U.S. Const. amend. 5; see also United States v. 50 Acres of Land, 469 U.S. 24, 25-26, 105 S.Ct. 451, 452-453, 83 L.Ed.2d 376 (1984); Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 3 and 9, 104 S.Ct. 2187, 2190 and 2193, 81 L.Ed.2d 1 (1984); United States v. Commodities Trading Corp., 339 U.S. 121, 123, 70 S.Ct. 547, 549, 94 L.Ed. 707 (1930). The principle underlying just compensation is that the condemnee "is entitled to be put in as good a position pecuniarily as if his property had not been taken." Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78 L.Ed. 1236 (1934). The measure of compensation is the "value" of the condemned property at the time of the "taking." United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 280, 87 L.Ed. 336 (1943); see also United States v. 13.98 Acres of Land, 702 F.Supp. 1113, 1116 (D.Del.1988).

In most cases just compensation can be determined by the property's "fair market value." United States v. 564.54 Acres of Land, 441 U.S. 506, 511, 99 S.Ct. 1854, 1857, 60 L.Ed.2d 435 (1979); see also 50 Acres of Land, 469 U.S. at 25, 105 S.Ct. at 452; Kirby, 467 U.S. at 10, 104 S.Ct. at 2194.² That is, "what a willing buyer would pay in cash to a willing seller." Miller, 317 U.S. at 374, 63 S.Ct. at 280; see also Kirby, 467 U.S. at 10, 104 S.Ct. at 2194. This measure accounts for "the highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future ... to the full extent that the prospect of demand for such use affects the market value while the property is privately held." Olson, 292 U.S. at 255, 54 S.Ct. at 708.

The Bergolds do not contend that just compensation should be measured by something other than fair market value. In fact, they concede that this is the proper measure. (See, e.g., D.I. 55 at 4, 8.) Rather, they argue that they are entitled to testify and "to introduce all evidence that may affect a willing buyer-willing seller transaction," and that if either of them gets emotional on the witness stand, "demeanor" is for the jury to weigh and is not a basis for excluding their testimony. (Id. at 5-7.)

Landowners are qualified to testify on the value of the taking. Kinter v. United States, 156 F.2d 5, 7 (3d Cir.1946); see also United States v. 79.20 Acres of Land, 710 F.2d 1352, 1357 (8th Cir.1983); United States v. 3,698.63 Acres of Land, 416 F.2d 65, 67 (8th Cir.1969); United States v. 1,516.90 Acres of Land, 405 F.2d 913, 914-15 (6th Cir.1968), cert. denied, 395 U.S. 909, 89 S.Ct. 1752, 23 L.Ed.2d 222 (1969); United States ex. rel. TVA v. Easement and Right of Way, 405 F.2d 305, 307 (6th Cir.1968); United States v. Sowards, 370 F.2d 87, 92 (10th Cir.1966); United States v. 60.14 Acres of Land, 362 F.2d 660, 667-69 (3d Cir.1966); Love v. United States, 141 F.2d 981, 983-84 (8th Cir.1944). But, the Government apparently is concerned that the Bergold's testimony will be nothing more than their own emotion-filled version of "The Grapes of Wrath," and an account of their sentimental attachment to the property. On this point the Bergolds concede that "sentimental and other emotional ties to the property do not constitute a factor of fair market value." (D.I. 55 at 4.) Moreover, it appears that the Government's concern in this regard was primarily with the prospect of Mrs. Bergold's testimony. Of course, with Mrs. Bergold's death, there will be no live testimony by her at trial. Therefore, the Court concludes that a ruling in limine is neither necessary nor prudent at this point in order to manage these proceedings. The Court trusts that counsel will present evidence of value mindful of the Rules of Evidence as well as any foreseeable departures from propriety. If counsel ignores this guidance or there are unforeseeable departures at trial, the Court can then employ other means available for managing the proceedings.

Second, the Government contends that Mr. Bergold has stated the property was worth 3.5 million dollars "to him" based, apparently, on the cost "which he perceives will be required to establish an agricultural business comparable to the one he now operates." (D.I. 52 at 9.) The Government argues that "the business value of property is not recoverable in a condemnation suit." (Id.)

On this point, the Bergolds argue that "such factors as site preparation and equipment and plant facilities in use may be best measured by the cost to reproduce these efforts or items," and that "the productivity of the farm obviously would influence the fair market value." (D.I. 55 at 15.) "Therefore," they argue, "consideration of the business value of the farm in determining ... its fair market value ... is proper." (Id. at 15-16.)

There are two issues mired in these arguments, that of "replacement cost" and of "business value." With respect to the former, as the Court noted, supra, the measure of just compensation is fair market value of the property as taken. The measure is not replacement cost of the property or any part of it. See 564.54 Acres of Land, 441 U.S. at 515-16, 99 S.Ct. at 1859-60. Fair market value is just compensation for those who must replace condemned property, even with more expensive substitutes. 50 Acres of Land, 469 U.S. at 33, 105 S.Ct. at 456. This does not mean, however, that evidence of replacement or reproduction cost may not be admitted on the issue of fair market value. See 50 Acres of Land, 469 U.S. at 36 n. 24, 105 S.Ct. at 458 n. 24. But, the admissibility of any such evidence, like any other, is subject to the Rules of Evidence. Id.³ The admissibility of particular evidence is not before the Court today.

With respect to "business value," the jury may consider the property's "adaptability for use in a particular business" in determining fair market...