United States v. 4.27 Acres of Land

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 26, 2008

No. 07-40563 Charles R. Fulbruge III
Summary Calendar Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee
v.

4.27 ACRES OF LAND, Etc.; ET AL

Defendants

JACK HEMMENWAY; BRAD HEMMENWAY

Claimants-Appellants

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:05CV735

Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
PER CURIAM:*
In this condemnation action, Jack and Brad Hemmenway appeal the
district court’s delivery of a utility and roadway easement on Tract No. 1006E-7
to the United States Government. Appellants also argue that in calculating
compensation for the taking, the court erred by refusing to exclude the testimony

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
 No. 07-40563

of the Government’s expert, by finding that the roadway was not a separate
economic unit, and by denying their motion for reconsideration. We AFFIRM.
As an initial matter, Appellants fault the magistrate judge, before whom
the case was tried by consent, for ordering “possession” of the property when the
Government’s notice and motion sought to take an easement, which is a non-
possessory interest. However, the court’s use of the word “possession” to
describe the easement is without consequence. The Order for Delivery, signed
on December 9, 2005, granted possession “to the extent of the property described
in the [Government’s] motion.” The Government’s motion described a perpetual
road and utility easement. Appellants were therefore ordered to surrender the
easement the Government requested, and nothing more.
Appellants also contend that the court abused its discretion by admitting
the testimony of the Government’s land-value expert, Burnell Cook. Appellants
assert that Cook’s testimony is unreliable because Cook calculated the value and
determined the highest and best use of the entire parcel of land on which the
roadway is located, as opposed to separately evaluating the roadway. The
normal procedure for awarding compensation for an easement is to determine
the highest and best use of the entire acreage within the property lines of the
parent tract and then to calculate the difference between the market value of the
tract before and after the taking. United States v. 8.41 Acres of Land, 680 F.2d
388, 391 (5th Cir. 1982). Cook’s analysis is consistent with this approach.
Appellants assert, however, that an exception to this general method of
calculating compensation applies in this case because the gravel roadway is a
“separate economic unit.” See id. at 393 (discussing separate economic units).
Three factors are particularly helpful in ascertaining whether property taken is

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part of a single larger tract: physical contiguity, unity of ownership, and unity
of use. Id.
In this case, the district court carefully examined the three factors and
concluded that the tract at issue was not separate from the parent tract. See id.
The issue of unity or separateness of a tract is a question of fact, which this court
will reverse only for clear error. See id. at 393. After reviewing the record and
considering the parties’ arguments, we conclude that this factual finding is not
clearly erroneous. Because the expert’s calculations complied with the normal
procedure for calculating damages and the district court did not clearly err in
finding that the exception for separate tracts is inapplicable, it was not an abuse
of discretion for the court to admit the testimony of the Government’s expert.1
Finally, Appellants argue that the court “continued to ignore the evidence
and refused to vacate its erroneous findings of fact” when it denied their
objections to the decision and their motion for reconsideration. We disagree.
The court’s four-page order carefully addresses the parties’ arguments and
reexamines the evidence. Moreover, the findings of fact the court declined to
vacate are not clearly erroneous.
The judgment of the district court is AFFIRMED.

1
Appellants also argue that Cook’s testimony is unreliable because he failed to
appraise the property as of the date of the taking. Because this basis for objection is different
from the theory raised at trial, “plain error” is the standard of review. See United States v.
Jimenez, 256 F.3d 330, 340 (5th Cir. 2001) (holding that “where the theory underlying the
basis for an appeal is different from the one raised in the lower court, ‘plain error’ should be
the standard of review”); Crawford v. Falcon Drilling Co., 131 F.3d 1120, 1123 (5th Cir. 1997)
(reviewing unpreserved error in a civil case using the plain-error standard). To prevail under
plain error review, Appellants must demonstrate that the admission of Cook’s testimony
affected their substantial rights or “seriously affected the fairness, integrity, or public
reputation of the judicial proceeding.”See United States v. Longoria, 298 F.3d 367, 371 (5th Cir.
2002). Because Appellants have shown neither, we reject this argument.

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