COLUMBIA GAS TRANSMISSION, LLC, Plaintiff-Appellant, v. 76 ACRES, MORE OR LESS, IN BALTIMORE AND HARFORD COUNTIES, MARYLAND; Lambert G. Boyce, Jr.; Ledley Byrd Boyce; Robert E. Boyer, Jr.; Margaret H. Kenney, Defendants-Appellees, and Charles David Cayce, IV; Betty Jane Cayce; William R. Cole; Eduardo Gonzalez; Liliana Gonzalez; Linda A. Guckert; Christopher Guckert; John Herbert Hagan, IV; Robert Herbert Hagan; James A. Quick; Susan W. Quick; John Thomas Reed; Katherine Gayle Reed; Donald J. Rocker; Marital Trust Under Will of Gerald J. Stautberg, c/o Larry Silverstein and James A. Stautberg; Frank A. Tedeschi; Susan M. Tedeschi; Marco Zamora; Maria Guadalupe Zizelman, f/k/a Maria G. Zamora; Joseph Vincent Zito; Klara Zito; Conservation Easement Holder, The Manor Conservancy, Inc; Robert K. De Graw; Deborah De Graw; Wilfred L. Turk; Nancy A. Turk, Defendants. Columbia Gas Transmission, LLC, Plaintiff-Appellee, v. 76 Acres, More or Less, in Baltimore and Harford Counties, Maryland; Lambert G. Boyce, Jr.; Ledley Byrd Boyce; Robert E. Boyer, Jr.; Margaret H. Kenney, Defendants-Appellants, and Charles David Cayce, IV; Betty Jane Cayce; William R. Cole; Eduardo Gonzalez; Liliana Gonzalez; Linda A. Guckert; Christopher Guckert; John Herbert Hagan, IV; Robert Herbert Hagan; James A. Quick; Susan W. Quick; John Thomas Reed; Katherine Gayle Reed; Donald J. Rocker; Marital Trust Under Will of Gerald J. Stautberg, c/o Larry Silverstein and James A. Stautberg; Frank A. Tedeschi; Susan M. Tedeschi; Marco Zamora; Maria Guadalupe Zizelman, f/k/a Maria G. Zamora; Joseph Vincent Zito; Klara Zito; Conservation Easement Holder, The Manor Conservancy, Inc; Robert K. De Graw; Deborah De Graw; Wilfred L. Turk; Nancy A. Turk, Defendants. Columbia Gas Transmission, LLC, Plaintiff-Appellee, v. 76 Acres, More or Less, in Baltimore And Harford Counties, Maryland; Margaret H. Kenney, Defendants-Appellants, and Lambert G. Boyce, Jr.; Ledley Byrd Boyce; Robert E. Boyer, Jr.; Charles David Cayce, Iv; Betty Jane Cayce; William R. Cole; Eduardo Gonzalez; Liliana Gonzalez; Linda A. Guckert; Christopher Guckert; John Herbert Hagan, IV; Robert Herbert Hagan; James A. Quick; Susan W. Quick; John Thomas Reed; Katherine Gayle Reed; Donald J. Rocker; Marital Trust Under Will of Gerald J. Stautberg, c/o Larry Silverstein and James A. Stautberg; Frank A. Tedeschi; Susan M. Tedeschi; Marco Zamora; Maria Guadalupe Zizelman, f/k/a Maria G. Zamora; Joseph Vincent Zito; Klara Zito; Conservation Easement Holder, The Manor Conservancy, Inc; Deborah De Graw; Robert K. De Graw, Defendants.
No. 15-2547, No. 15-2569, No. 16-1017
United States Court of Appeals, Fourth Circuit.
Argued: January 25, 2017 Decided: July 13, 2017
701 Fed. Appx. 221
DISMISSED
Before DUNCAN and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge.
Unpublished opinions are not binding precedent in this circuit.
This appeal arises from a condemnation proceeding commenced by Appellant/Cross-Appellee Columbia Gas Transmission, LLC (“Columbia“). Columbia took by eminent domain certain easements (both permanent and temporary) over the properties of Appellees/Cross-Appellants Lambert and Ledley Boyce, Robert Boyer, and Margaret Kenney (collectively “the Landowners“).1 Following a jury trial, the Landowners were awarded compensation for Columbia‘s taking. Columbia now appeals, principally arguing that the district court erroneously permitted the jury to modify the size of the taking that Columbia sought. Columbia also asserts error in several of the district court‘s evidentiary rulings. The Landowners cross-appeal from a pre-trial decision of the district court granting Columbia immediate possession of the easements.
We conclude that the district court erred by permitting the Boyces to contest the size of the temporary easement on their property, which resulted in a disproportionate damages award for the temporary easement. Accordingly, we vacate the jury‘s award with respect to the temporary easement on the Boyces’ property and remand for a new trial as to that issue only. We otherwise affirm.
I.
Columbia is a natural gas company that was authorized by the Federal Energy Regulatory Commission (“FERC“) to exercise the right of eminent domain in order to construct a natural gas pipeline in Harford and Baltimore Counties, in central
- Boyce permanent easement: 0.68 acres
- Boyce temporary easement: 0.33 acres
- Boyce additional temporary easement: 0.32 acres
- Boyer permanent easement: 0.67 acres
- Boyer access road use: 0.09 acres
- Boyer temporary easement: 0.29 acres
- Boyer additional temporary easement: 0.12 acres
- Kenney permanent easement: 0.9965 acre
- Kenney temporary construction easement: 0.4664 acres
- Kenney temporary construction license: 0.0101 acres
J.A. 565-66.
Columbia moved for partial summary judgment, seeking immediate possession of the easements described in the complaint. The Landowners opposed the motion, arguing that the district court did not have the authority to grant Columbia possession of the easements prior to holding a trial to determine just compensation. The district court granted the motion and (after requiring Columbia to post a bond) issued a preliminary injunction permitting Columbia to take immediate possession of the easements and begin constructing the pipeline. The size and location of the temporary and permanent easements listed in the district court‘s order granting immediate possession were the same as those in the complaint. Thereafter, Columbia began constructing the pipeline across the Landowners’ properties.
Before trial, Columbia filed two motions in limine relevant to this appeal. First, it moved to exclude the testimony of the Landowners’ expert, Jennifer Hanna, arguing that it did not meet the reliability standard established in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The district court denied this motion, finding that because Columbia was challenging Hanna‘s conclusions rather than her qualifications or methodology, a Daubert hearing was not necessary. Second, Columbia sought to exclude claims made by some of the Landowners that the size of the temporary easements that Columbia actually took were larger than the easements described
Trial to determine the just compensation owed to the Landowners for Columbia‘s taking took place after Columbia completed the construction of the pipeline but while it was still restoring some portions of the Landowners’ property. At the conclusion of trial, the jury returned a verdict awarding the Landowners the following damages:
- Boyce permanent easement: $29,216
- Boyce temporary easement: $50,104
- Boyce remainder: $167,011
- Boyer permanent easement: $27,872
- Boyer temporary easement: $6,144
- Boyer remainder: $93,948
- Kenney permanent easement: $43,268
- Kenney temporary easement: $7,639
- Kenney remainder: $130,668
J.A. 2152-53.
After the district court entered judgment in the amounts listed above (less certain amounts that Columbia previously paid to the Landowners), Columbia moved for a new trial. The district court denied that motion, and these timely cross-appeals followed.
II.
A.
Columbia‘s main contention on appeal is that the district court erroneously permitted the Landowners and the jury to modify the size of the taking that Columbia sought, specifically the temporary easements on the Boyces’ (and the now-dismissed Turks‘) properties. Columbia also argues that the district court repeated this error in its charge to the jury and that the jury instructions permitted the Landowners to receive double recovery for certain harms related to the temporary easements. Columbia raises two additional issues: it argues that the district court should have excluded testimony by the Landowners’ expert and that the jury‘s verdict is not supported by sufficient evidence.
The Landowners cross-appeal, arguing that the district court‘s preliminary injunction granting Columbia immediate possession of the easement prior to trial was unconstitutional. Separate from the other Landowners, Kenney also cross-appeals, arguing that the district court erroneously prohibited her from recovering the value of certain trees that Columbia cut down.3 We will consider each issue in turn.
B.
This Court reviews questions of law de novo. Jones v. Southpeak Interactive Corp. of Del., 777 F.3d 658, 668 (4th Cir. 2015). Although “[w]e review challenges to jury instructions for abuse of discretion, bearing in mind that a trial court has broad discretion in framing its instructions to a jury, ... [w]e review de novo whether the district court‘s instructions to the jury were correct statements of law.” Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 233 (4th Cir. 2016) (citation and internal quotation marks omitted). However, even if a jury is erroneously instructed,
1.
Columbia argues that the district court erred in permitting the Boyces to challenge the size of the temporary easements on their property, contending that in a condemnation proceeding the size of a taking cannot be modified by a court or jury. Columbia asserts that by permitting the Boyces to testify that the temporary easements Columbia took were larger than the easements described in the order granting immediate possession, the district court rendered the size of the temporary easements a factual question for the jury to decide. In support, Columbia draws our attention to the damages awarded for the temporary easement on the Boyces’ property—which was much larger relative to the jury‘s other damages awards—attributing this discrepancy to the district court‘s decision to permit the jury to determine the size of the temporary easement.
Although district courts are called upon to decide many factual issues in condemnation proceedings, some issues are left to the discretion of the condemning authority. “[T]he general rule is that the extent of the take is a discretionary decision for the condemning authority which may not be modified by the judiciary“; as long as the condemnor “acts within the scope of its authority, it cannot be compelled to take other than that which it has determined is needed.” United States v. 21.54 Acres of Land, More or Less, in Marshall Cty., State of W. Va., 491 F.2d 301, 304 (4th Cir. 1973); see also United States v. 300 Units of Rentable Hous., Located on Approximately 57.81 Acres of Eielson Air Force Base, 668 F.3d 1119, 1124 (9th Cir. 2012) (stating that a “district court lacks jurisdiction to expand the scope of the eminent domain action beyond that expressed in the declaration of taking“). If the condemnor “has taken more than it has formally condemned and paid for, the landowner may recover under the Tucker Act for the additional take.” 21.54 Acres of Land, 491 F.2d at 304 (collecting cases); see also 300 Units of Rentable Hous., 668 F.3d at 1124 (stating that a landowner may bring suit “to recover damages for the actual taking of property which is not included in the declaration of taking, but the award may not be made in a condemnation suit under the theory of damages to the remainder” and instead “must be done in a separate proceeding under the Tucker Act in the Court of Claims“).
In this action, the district court repeatedly ruled that the size of the temporary easements were properly a determination for the jury. Columbia correctly
Columbia had the discretion to determine the size of the temporary easements it needed to take, and neither the district court nor the jury could modify that decision. See 21.54 Acres of Land, 491 F.2d at 304. If Columbia in fact took property outside of the bounds described in the district court‘s order, the Boyces may be entitled to compensation, but they must bring suit separately rather than assert such collateral claims within a condemnation proceeding. See id. The district court therefore erred when it decided that the size of the temporary easements was a disputed factual issue that could be resolved by the jury deciding the issue of just compensation.4
Our conclusion that the district court erred does not entirely resolve the question presented, however, because, according to the Landowners, Columbia is mischaracterizing the Boyces’ claim. The Landowners deny that the Boyces challenged the size of the temporary easement on their property. Rather, the Landowners argue that the Boyces were seeking temporary severance damages for the loss of use to the remainder of their property caused by the temporary easements.
To understand the Landowners’ argument, we begin by discussing the measure of damages for different types of takings. When a condemning authority “takes all of an owner‘s property, the formulation of damages is basic: the owner is entitled to the value of the land taken.” United States v. 97.19 Acres of Land, More or Less, in Montgomery, Washington & Alleghany Ctys., Md., 582 F.2d 878, 880 (4th Cir. 1978). In contrast, if the land taken is less than the full extent of the property, either in terms of duration or size, then the measure of damages changes. Where a taking is temporary in duration rather than permanent, then the condemning authority “essentially takes a leasehold in the property,” and “the value of the taking is what rental the marketplace would have yielded for the property taken.” United States v. Banisadr Bldg. Joint Venture, 65 F.3d 374, 378 (4th Cir. 1995).
A special rule applies to permanent partial takings. If only part of a landowner‘s property is taken “the owner is not con-
At trial, the Boyces testified that Columbia‘s taking damaged property that was outside of the bounds delineated by the district court‘s order granting immediate possession. The Boyces, who used their property as a horse farm, were forced to fence in their horses as Columbia constructed its pipeline, which damaged some of the fields and fences on the Boyces’ property. This damage prevented the Boyces from using their fields to feed and ride their horses. Ledley Boyce, in describing the damage to her fields and fences caused by Columbia‘s construction—which although temporary had not been ameliorated by the time of trial—testified that “it‘s not like it‘s just the easement and the permanent and temporary easement that they‘ve taken.” J.A. 1071. Rather, Mrs. Boyce claimed that Columbia had temporarily taken her “entire smaller field ... and the larger field.” Id.; see also J.A. 1072 (“[T]hey took all my ground from me.“). Lambert Boyce testified that given the damage to the Boyces’ fields, the jury‘s award for the temporary easement should include the cost of boarding and feeding the Boyces’ horses until their fields were repaired. By including these costs, Mr. Boyce estimated that the value of the temporary easement was $182,500.
This testimony supports Columbia‘s position that the Boyces contested the size of the temporary easement by claiming that Columbia took land that was outside of the bounds described in the district court‘s order. The Boyces did not just testify that they were unable to use their remaining property as a horse farm. Rather, they claimed that Columbia temporarily took additional property from them and that this additional taking should be included in the damages awarded for the temporary easement. Ledley Boyce explicitly described the damage to her fields as a taking. Lambert Boyce testified that the horse-boarding costs should be included in the award for the temporary easement not as compensation for the Boyces’ loss of use of their horses (the Boyces did not in fact board their horses) but as a way to value and compensate for the damage to the Boyces’ fields caused by the construction of the pipeline. See J.A. 1142 (“[I]f I had board, ... I wouldn‘t have had the degradation of the property.“). While the Boyces may recover compensation for these damages in a separate action, such an “award may not be made in a condemnation suit under the theory of damages to the remainder.” See 300 Units of Rentable Hous., 668 F.3d at 1124.
The district court therefore erroneously permitted the Boyces to contest the size of the temporary easement on their property. The impact of this error can be seen in the jury‘s award. The Boyces received much more in compensation for the temporary
2.
Columbia mounts a similar challenge to the district court‘s jury instructions regarding the valuation of the temporary easement. Columbia argues that the district court erroneously instructed the jury that it could award damages for property outside of the temporary easements, and that the jury should assume that Columbia would restore this same property to its prior condition. According to Columbia, this allowed the jury to expand the size of the temporary easements and to award double recovery for injuries that Columbia was required repair. As discussed above, we agree that the district court erred in permitting the jury to award temporary easement damages for property that was outside of the bounds described in the district court‘s order granting immediate possession. Because we vacate the jury‘s damages award for the temporary easement on the Boyces’ property, we need not further consider this argument.
3.
Columbia next argues that the district court‘s refusal to exclude testimony from the Landowners’ expert witness, Jennifer Hanna, was an abuse of discretion. Columbia takes issue with the paired-sales analysis that Hanna used to determine the damages to the remainder of the Landowners’ properties, arguing that Hanna did not compare properties that were sufficiently alike and ignored Columbia‘s contrary evidence.
This Court rejected a similar argument in E. Tenn. Nat. Gas Co. v. 7.74 Acres in Wythe Cty., Va., 228 Fed.Appx. 323 (4th Cir. 2007), which also involved a gas company‘s taking of easements in order to build a pipeline. The gas company in 7.74 Acres in Wythe Cty., Va. argued that the testimony of the landowners’ expert witnesses—who conducted an analysis like Hanna‘s paired-sales analysis—should have been excluded because the experts did not analyze “truly comparable” property sales and made “drastic” adjustments to the sales prices. Id. at 327 (internal quotation marks omitted). We held that the district court did not abuse its discretion in admitting the testimony, and concluded that the gas company was not making a “true Daubert challenge” and instead was challenging the weight of the evidence. Id. at 329 (quoting TFWS, Inc. v. Schaefer, 325 F.3d 234, 240 (4th Cir. 2003)). The gas company failed to present evidence that the experts’ analysis “ha[d] not been tested, ha[d] not been subject to peer review, ha[d] not been accepted by the appraisal community, or ha[d] a known rate of error.” Id. at 328. Moreover, the district court was not required to determine whether the comparable sales on which the experts relied “were certainly correct measurements.” Id. Finally, we noted that the gas company had the opportunity to
Columbia is similarly attacking the weight of Hanna‘s testimony rather than mounting a “true” Daubert challenge. Columbia, for example, has not argued that Hanna‘s “methods have not been tested, have not withstood peer review and publication, have excessive rates of error, have no standards for their application, or have not been accepted in their field.” See TFWS, 325 F.3d at 240. Contrary to Columbia‘s contention, Hanna explained that she did not rely on Columbia‘s evidence because it was based on “studies from another state,” which in her opinion were less relevant than the “local market data” on which her paired-sales analysis was based. J.A. 984. Moreover, as in 7.74 Acres in Wythe Cty., Va., Columbia had the opportunity to—and, in fact, did—cross-examine Hanna and present its own expert witness to contradict Hanna‘s testimony. Accordingly, the district court did not abuse its discretion in admitting the testimony.
4.
The last issue that Columbia raises on appeal is the sufficiency of the evidence supporting the jury‘s award. Columbia contends that a new trial is necessary because some of the damages awarded were not supported by the evidence produced at trial. Two of the arguments that Columbia raises go to the same award—the Boyces’ temporary easement damages—and therefore were addressed above. We need not further address those contentions as a matter of evidentiary sufficiency.
Columbia‘s final challenge is to the evidence Kenney introduced at trial regarding damages to Lot 3 (her second property). Both Kenney and her husband, Michael Kenney, testified regarding the diminution in Lot 3‘s value. Margaret Kenney testified that Lot 3 was “no longer of any use,” J.A. 1182, while Michael Kenney accepted a seventy percent reduction in Lot 3‘s value. According to Columbia, neither of the Kenneys was qualified to testify as they did because they were not qualified as experts.
Columbia‘s argument is meritless. Property owners are presumed to be “competent to testify on the value of [their] own property.” Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 542 (4th Cir. 2007). Moreover, the advisory committee note to
5.
Having considered Columbia‘s appeal, we turn to the Landowners’ cross-appeal. The Landowners take issue with the district court‘s preliminary injunction granting Columbia immediate possession of the easements before the trial to determine the Landowners’ just compensation had taken place. The Landowners contend
In E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808 (4th Cir. 2004), we held that although the Natural Gas Act does not provide for immediate possession, a “district court can use its equitable power to order immediate possession in a condemnation case.” Id. at 820, 828. We explained that once a district court has found that a condemnor has a substantive right under the Natural Gas Act to an easement over a landowner‘s property, the district court can award a preliminary injunction granting immediate possession of that easement. Id. at 824. Here, after determining that Columbia had a substantive right to the easements it sought, the district court relied on Sage in granting the preliminary injunction.
As Columbia correctly argues, the Landowners’ cross-appeal opposing the grant of immediate possession is moot because a trial for just compensation has since occurred.6 Rather than request a concrete remedy, the Landowners in effect seek an advisory opinion stating the district court‘s action was unconstitutional, which, of course, we cannot issue. See Am. Whitewater v. Tidwell, 770 F.3d 1108, 1120 (4th Cir. 2014).
Nor does this issue fall within the capable of repetition, yet evading review exception to the mootness doctrine. The exception has two elements: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Stop Reckless Econ. Instability Caused by Democrats v. Fed. Election Comm‘n, 814 F.3d 221, 229 (4th Cir. 2016), cert. denied, — U.S. —, 137 S.Ct. 374, 196 L.Ed.2d 292 (2016). The Landowners have not shown (and cannot feasibly show) that there is a reasonable expectation that Columbia will again seek immediate possession of the Landowners’ property. See id. at 231-32 (holding that the capable of repetition, yet evading review exception did not apply because the plaintiff was unable to “satisfy the same-complaining-party requirement“). Accordingly, the Landowners’ cross-appeal is dismissed as moot.7
6.
Kenney separately cross-appeals the district court‘s decision that she could not recover the cost of replacing trees that Columbia cut down on her property. Kenney contends that the cost of replacing the
At trial, William Kenney testified that the value of the temporary easement should include the cost of replanting certain trees that Columbia cut down. At closing, Kenney‘s counsel attempted to argue that because the trees had been permanently removed, the cost of replanting them should be included in the damages awarded for the temporary easement. Columbia objected, and the district court sustained the objection, ruling that Kenney could not recover the cost of the trees. During its charge, the district court instructed the jury that it should take into account the loss of trees when determining the diminished market value and rental value of the Landowners’ properties. However, the court also instructed the jury that it was not to compensate the Landowners for “the value of a particular tree.” J.A. 1939.
By instructing the jury to consider whether the loss of trees diminished the value of the Landowners’ properties, the district court‘s charge captured the value of the trees. The court warned only against valuing the trees as independent “fixtures” that required compensation above any effect their removal may have had on the value of the Landowners’ properties. The district court did not err in concluding that instructing the jury to focus on the diminution in value of the Landowners’ properties would fully compensate the Landowners. See United States v. 2.33 Acres of Land, more or less, Situate in Wake Cty., State of N.C., 704 F.2d 728, 730 (4th Cir. 1983) (stating that the measure of damages caused by a partial taking is the diminution in value of the property).
III.
For the reasons set forth above, the judgment is affirmed in part, vacated in part, and the case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED