United States v. 412.93 Acres of Land, in Franklin & Towamensing Townships, Carbon County
United States v. 412.93 Acres of Land, in Franklin & Towamensing Townships, Carbon County
Opinion of the Court
OPINION OF THE COURT
These are appeals from judgments entered in the United States District Court for the Middle District of Pennsylvania from jury verdicts determining just compensation in eminent domain proceedings instituted by the United States.
The Government brought these consolidated condemnation proceedings on behalf of the Corps of Engineers of the Department of the Army to acquire fee simple title to the properties owned by the appellants in connection with the construction of the Beltzville Dam and Reservoir in Carbon County, Pennsylvania.
The Campbell
The McFarquhar
In the third jury trial, which commenced on April 28, 1969 and concluded on April 30, 1969, property owner, Stine
Prior to the trial the landowners moved for individual and separate trials for each tract of condemned land. They also sought to depose the Government’s appraiser and expert witness, Clifford L. Orbaker. Finally, at the trial, the landowners proposed to cross-examine Orbaker as to his employment contract
A summary of the evidence and jury verdicts relative to the properties con-is as follows:
Rule 71A(b), F.R.Civil P., provides that the condemnor may join in the same action “one or more separate pieces of property, whether in the same or different ownership and whether or not sought for the same use.” This rule permits condemnation proceedings against owners of separate parcels which may be consolidated for trial as determined by the trial court in the exercise of its sound discretion.
The three separate jury trials did not present any complex problems. We accept the language used in Appellee’s brief as pertinent.
Appellants’ contention that each of these properties condemned should have been separated for trial is answered in Phelps Dodge Corporation v. Atchison, T. and S. F. R. Co., 400 F.2d 20 (10th Cir. 1968).
“The claim that these eases should have been separated for trial runs contrary to generally accepted procedural practice and thus imposes upon appellants in this court a very heavy burden of persuasion that the trial court clearly abused its discretion in refusing to depart from such practice. We are not so persuaded.” 400 F.2d at 21.
Appellants contend that the trial court’s refusal to allow them to depose Orbaker was substantially prejudicial.
The district court judge was acting within his sound discretion when he granted the Government’s motion to quash the subpoena. The judge determined that the subpoena was “very late” and to permit the taking of the deposition would have unduly delayed the trial.
The owner of property taken for public use must receive just compensation. When we speak of just compensation, we have in mind a dollar figure which will be fair and just, not only to the property owner, but also to the condemning authority. The measure of that compensation is the fair market value as of the date of taking. One of the methods used by experts to determine fair market value is extrapolation from what has been agreeable between a willing seller and a willing buyer in a comparable sale, in which neither party was under any compulsion. These com-parables serve as independent evidence of value. They also can be used to support or challenge the credibility of an expert’s opinion of the value of a particular piece of property.
The jury, which can consider these comparables in evaluating the estimate given by an expert, is under no obligation to accept as completely true the testimony of any expert witness. It may adopt as much of the testimony as appears sound, reject all of it, or adopt all of it. The jury performed that function in these cases.
An examination of the record in this case reveals that the counsel for appellants cross-examined Orbaker at length and had full opportunity to challenge the relevance of the comparables he used in arriving at his estimates of value. Since appellants had previously obtained the list of comparables Orbaker relied upon at trial they were not surprised by his testimony.
The district court judge also exercised sound discretion in refusing to permit into evidence Orbaker’s contract with the Government as an appraiser for the entire Beltzville project. In addition he properly refused appellants’ request to cross-examine Orbaker as to the amount received for the appraisal work. He investigated 300 properties and appraised 187 properties. Appellants argue that they had a right to examine Orbaker as to his compensation for the entire project to show interest or bias. Assuming that the evidence was admissible for the purpose of showing interest or bias of the witness, a trial judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice, will confuse the issues, or mislead the jury. United States v. American Radiator & Standard Sanitary Corp., 433 F.2d 174, 203 (3rd Cir. 1970), cert. denied 401 U.S. 948, 91 S.Ct. 929, 28 L.Ed.2d 231 (1971).
The contract to prepare appraisals for the entire project was not material or relevant to the issue of just compensation for the properties condemned. However, the court did properly permit the introduction of Orbaker’s per diem fee for testifying in order to show his possible bias or interest.
We have examined the entire record and are satisfied that the trial judge did not abuse his discretion.
The judgments are affirmed.
. Appellants in No. 17,730.
. Appellants in No. 17,731.
. Appellants in No. 17,732.
. Appellants in No. 17,733.
. Appellants in No. 18,246.
. Order denying separate trials dated October 28, 1968; Appellants’ App. Vol. 1, P 5(a).
. Under Rule 71A(h) the trial judge has discretion in determining whether the case should be heard by a jury or a commission of three persons. Rule 18 provides for liberal joinder of claims and remedies and is applicable to condemnation procedure. Rule 42 permits consolidation of causes or separate trials depending upon the facts in a given situation.
. “We are at a loss to understand the alleged complexities where experts were
. We do not accept the dictum in United States v. 186.82 Acres, 207 F.Supp. 395, 397 (W.D.Pa. 1962) wherein it is stated that:
“Each of the owners would be entitled to a separate jury trial as to his property if the issue of just compensation were to be decided by a jury.”
Gwathmey v. United States, 215 F.2d 148 (5th Cir. 1954) relied upon by appellants, is inapposite. In Gwathmey there were originally 933 separate tracts and ultimately 236 separate verdicts. This case was tried before one jury. The court stated:
“Whether or not there has been an abuse of discretion, whether or not there has been a denial of due process, are questions which turn on the circumstances of each case.” p. 157.
The very size of the Gwathmey case, the nature of the testimony, and the number of tracts involved created much confusion at trial. This is not the factual situation presented in the instant case.
. The appellants served a subpoena on Mr. Orbaker requiring him to appear for oral deposition. After the Government argued its objections, the court quashed the subpoena and denied appellants the right to depose Orbaker.
. IV App. 81.
. In commenting on the 1970 amendment, one authority has written, “In view of all that can be said, however, for treating expert information like any other information, and the strong trend in this direction, it is surprising that the amendment does not go farther” in expanding discovery of expert information. Wright & Miller, Federal Practice and Procedure: Civil, Vol. 8 § 2029 p. 250. Whether the amended rule will produce a result in future cases which is different from that which we reach here need not be determined at this time.
. The extent to which facts known and opinions held by experts were discoverable under the federal rules was the subject of much discussion and division in
. IV App. 82-83.
. (II App. 159; III App. 39; IV App. 131-132).
. Cf. Russell v. Monongahela Railway Co., 262 F.2d 349, 353 (3rd Cir. 1953).
Reference
- Full Case Name
- United States v. 412.93 ACRES OF LAND, MORE OR LESS, Situate IN FRANKLIN AND TOWAMENSING TOWNSHIPS, CARBON COUNTY, STATE OF PENNSYLVANIA, TRACT NO. 113, Percy and Mabel Campbell, Tract No. 114, George and Anne Schild, Appellants UNITED STATES of America v. 63.85 ACRES OF LAND, MORE OR LESS, Situate IN FRANKLIN AND TOWAMENSING TOWNSHIPS, CARBON COUNTY, STATE OF PENNSYLVANIA, TRACT NO. 618, Hector and Janet McFarquhar, Tract No. 637, Susie E. Lawrence, Appellants UNITED STATES of America v. 195.11 ACRES OF LAND, MORE OR LESS, Situate IN FRANKLIN AND TOWAMENSING TOWNSHIPS, CARBON COUNTY, STATE OF PENNSYLVANIA, TRACT NO. 621, John F., Jr., and Louise S. Stine
- Cited By
- 1 case
- Status
- Published