United States v. 100.01 Acres of Land

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 03-1505
100.01 ACRES OF LAND IN BUCHANAN
COUNTY, VIRGINIA; JIM R. RICE,
Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CA-00-185-1)

Submitted: May 19, 2004

Decided: June 22, 2004

Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

Stanford Thomas Mullins, STREET, STREET, STREET, SCOTT &
BOWMAN, Grundy, Virginia, for Appellants. Thomas L. Sansonetti,
Assistant Attorney General, Robert H. Oakley, John L. Smeltzer,
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
2 UNITED STATES v. 100.01 ACRES OF LAND
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

PER CURIAM:

Appellant landowners James R. Stiltner and Jim R. Rice
("Landowners"), appeal from a final determination of just compensa-
tion in a civil condemnation proceeding affecting property recorded
by deed in the Buchanan County Circuit Court Clerk’s Office, in
Deed Book 488, Page 436, recorded February 26, 1999. On appeal,
Landowners claim: (1) the Government violated the substantive statu-
tory condemnation requirements by failing to adequately describe the
property prior to trial, thereby depriving Landowners of their due pro-
cess rights; (2) the United States Army Corps of Engineers’ Grundy
Non-structural Flood Control Project is substantially the same as the
Virginia Department of Transportation’s U.S. Route 460 Project so as
to affect the determination of the highest and best use of the subject
property; (3) individual items which are inherent in reality should be
disregarded in determining the amount of just compensation for the
property as a whole; and (4) the district court erred when it failed to
order the just compensation of Landowners’ property to include the
costs associated with having the property surveyed. For the reasons
set forth below, we affirm the district court’s order establishing just
compensation.

This court reviews legal questions of due process and statutory
rights de novo. Rusu v. INS, 296 F.3d 316, 320 (4th Cir. 2002). We
will uphold a trial court’s determination of the highest and best use
of a tract of land unless clearly erroneous. United States v. 69.1 Acres
of Land Situated in Platt Springs Township, 942 F.2d 290, 293 (4th
Cir. 1991). We review for abuse of discretion a district court’s exer-
cise of its equitable powers to award a litigant’s costs and expenses.
Davis v. Richmond, Fredericksburg & Potomac R. Co., 803 F.2d
1322, 1328 (4th Cir. 1986).

Landowners first assert that the Government failed to adequately
describe the property prior to trial. The Government is required to
 UNITED STATES v. 100.01 ACRES OF LAND 3
include in its complaint in condemnation and declaration of taking, a
description of the land sufficient to identify the land, see 42 U.S.C.
§ 3114(a)(2); Fed. R. Civ. P. 71A(c)(2), and did so in this case. To
the extent an ambiguity existed in the declaration of taking, which
ambiguity was resolved by the district court in favor of the larger
117.25-acre tract, Landowners cannot demonstrate that they were
denied just compensation, given that the district court awarded Land-
owners an extra $3950 over the Government’s expert’s appraisal fig-
ure to compensate them for the value of the additional 117.25-acre fee
tract. Moreover, Landowners were provided a full and fair opportu-
nity to contest just compensation and to litigate the extent of the tak-
ing, and they prevailed on their claim in the district court with respect
to the extent of the property affected by the proceeding. We find
Landowners’ due process rights were not violated in the proceedings
below.

We find no merit to Landowners’ claim that the district court
clearly erred in its determination of the highest and best use of the
subject property. Just compensation normally is properly measured by
"the market value of the property at the time of the taking." United
States v. 50 Acres of Land, 469 U.S. 24, 29 (1984) (quoting Olson v.
United States, 292 U.S. 246, 255 (1934)). The "best evidence" of such
value is sales of comparable land within a reasonable time before a
taking. United States v. Whitehurst, 337 F.2d 765, 775 (4th Cir.
1964).

In this case, the district court reasonably determined the fair market
value of the subject parcel based on market sales of comparable tim-
ber land in the location of the subject parcel around the time of the
taking. In addition, the district court had evidence before it of the
December 1998 market sale of the subject property itself, which evi-
dence is extremely probative of fair market value. See, e.g., United
States v. 428.02 Acres of Land, More or Less, Situate in Newton &
Searcy Counties, Ark., 687 F.2d 266, 271 (8th Cir. 1982). While
Landowners contend the district court should have adopted an alterna-
tive method of valuation, we find they failed to demonstrate that
either of the methods they suggested was proper, given that the
straightforward market-valuation approach to valuation of the prop-
erty was not difficult to determine and its application did not result
in manifest injustice to the owner or the public. 50 Acres of Land, 469
4 UNITED STATES v. 100.01 ACRES OF LAND
U.S. at 29; see also A.A. Profiles, Inc. v. City of Fort Lauderdale, 253
F.3d 576, 583 & n.8 (11th Cir. 2001).

Landowners next assert the district court clearly erred in failing to
take into account individual items which inhere in the subject prop-
erty when determining the amount of just compensation, specifically
the value of the timber that had been taken from the property. The
appraisal performed by the Government’s expert took into consider-
ation the overall capacity of the land for timber growing and harvest,
and determined the value of the subject parcel based on sales of com-
parable "wooded" parcels. The district court thoroughly questioned
the respective experts as to their valuation of the property, including
the value of the timber standing and not standing, prior to rendering
its valuation. The district court’s reliance on the Government’s
appraisal as more persuasive evidence of fair market value cannot be
said to be clearly erroneous.

The final claim on appeal advanced by Landowners is that the dis-
trict court erred in failing to order the just compensation of Landown-
ers’ property to include the costs associated with having the exact
amount of acreage taken ascertained. Specifically, Landowners claim
the award of just compensation should have included their costs asso-
ciated with having the property surveyed, which survey resulted in the
difference between the 94.12 acres described by the Government in
its initial pleadings, and the 117.25 acres the district court determined
actually was condemned by the Government.

As a preliminary matter, it does not appear that Landowners made
a proper request in the district court for their costs, fees, and expenses
associated with the retention of their surveyor in their efforts to estab-
lish the amount of land subject to the Government’s taking, and the
record does not include evidence of the amount of those costs, fees,
and expenses. Such a claim is deemed waived on appeal. See Muth
v. United States, 1 F.3d 246, 250 (4th Cir. 1993); see also Kellogg Co.
v. Toucan Golf, Inc., 337 F.3d 616, 629 (6th Cir. 2003).

Even if Landowners preserved their right to appeal by virtue of
their pre-trial request for costs and expenses associated in bringing
their motion to dismiss, their claim is without merit. The Supreme
Court has held that just compensation "is for the property, and not to
 UNITED STATES v. 100.01 ACRES OF LAND 5
the owner." United States v. Bodcaw, Co., 440 U.S. 202, 203 (1979)
(quoting Monongahela Navigation Co. v. United States, 148 U.S. 312,
326 (1893)). Absent statutory authorization, litigation costs and
expenses may not be assessed against the United States in federal
condemnation cases, United States v. Worley, 281 U.S. 339, 344
(1930), and indirect costs to the landowner, including attorneys’ fees
and expenses, are not properly considered in ascertaining the measure
of just compensation. Bodcaw, 440 U.S. at 203; see also Hellenic
Center, Inc. v. Washington Metro. Area Transit Auth., 815 F.2d 982,
984 (4th Cir. 1987). We decline to vacate the district court’s judgment
on the ground that it failed to include in the just compensation award
the costs, fees, and expenses associated with Landowners’ surveyor.

Accordingly, we affirm the district court’s final judgment awarding
just compensation in the amount of $69,400. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED