Drakes Bay Land Co. v. United States

459 F.2d 504 | Ct. Cl. | 1972

Per Curiam; :

This case was referred to Trial Commissioner Eoald A. Hogenson pursuant to the decision rendered on April 17, 1970, entering judgment for plaintiff with the amount of recovery to 'be determined pursuant to Rule 181 (c)(2). 'On October 15, 1971, the commissioner filed his opinion, findings of fact and recommended conclusion of law in compliance with the court’s decision. Both parties filed exceptions to the commissioner’s opinion, findings of fact and recommended conclusion of law and the case has been submitted to the court on the briefs of the parties and oral argument of counsel.

The court does not accept plaintiff’s claim that it is entitled to recover in this action the sum of $56,000 which it says it expended in attempting unsuccessfully to negotiate with the government exchanges of land for the area involved here. Nor can plaintiff recover the $190,000 for the profits alleged to have been lost through the government’s prevention of the subdividing of the land. Neither of these is an element of the just compensation which is to be awarded in this case.

Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same, together with the foregoing paragraph, as the basis for its judgment in this case. It is therefore concluded that plaintiff is entitled to judgment against defendant for just compensation for the taking by defendant of plaintiff’s land on July 23,1963, in the sum of $631,800, with interest as a part of just compensation at the rate of 4 percent per annum from July 23, 1963, until paid, provided that plaintiff may Obtain payment of such award only upon tender of a deed to such property in such form as the Attorney General may deem necessary to assure the defendant a valid fee simple title. 'It is further concluded that plaintiff is entitled to recover the reasonable attorney, appraisal and engineering fees actually incurred by plaintiff because of the proceedings in this case, with the amount of recovery in this respect to be determined, and with judgment to be entered for plaintiff in this case, in further proceedings pursuant to Buie 131(c).

OPINION OP COMMISSIONER

Hogenson, Commissioner: By its opinion announced April 17, 1970, 191 Ct. Cl. 389, 424 F. 2d 574, this court decided that plaintiff was entitled to just compensation for the taking by defendant of the entire fee in plaintiff’s 468-acre tract of land located within the boundaries of the 53,000-acre Point Beyes National Seashore (Seashore) authorized by Public Law 87-657, approved September 13, 1962, 16 U.S.C. § 459c-l (1964), 76 Stat. 538.

Because there was a taking of the entire fee, the court rejected plaintiff’s theory that defendant had taken a scenic easement, or part interest in the land. In the first trial, testimony and evidence on damages related to the theory of partial taking. Plaintiff then claimed entitlement to the amount of diminution in value of the land, allegedly caused by activities of defendant in the creation and establishment of the Seashore. Such diminution was allegedly the difference between the value of the land at its highest and best use as a subdivision for sale of small lots and the value of such land for agricultural use. Having rejected the theory of partial taking, the court omitted findings of fact concerning diminution of value, holding such were irrelevant, and remanded this case for determination of just compensation on the basis of the value of the entire fee.

At the trial of this case on remand, the parties stipulated at the outset that the date of taking of plaintiff’s land by defendant was July 23,1963, which stipulation was accepted by the trial commissioner, and it was so found. Even though corresponding with the date of acquisition by defendant of the Heims ranch, such date is accepted only as a reasonable time for assessment of value in the determination of just compensation, not as pinpointing a coincidental event as the act of taking in derogation of the court’s opinion.

It is noted that the court stated that a better date than any other is that of the refusal by defendant to purchase plaintiff’s land that followed its success in thwarting plaintiff’s subdivision of its land by acquiring the Heims ranch which lay across the only feasible access. 191 Ct. Cl. at 414,424 F. 2d at 587. The only facts of record concerning defendant’s earliest refusal to purchase following acquisition of the Heims ranch are set forth in the court’s finding of fact No. 88, stating that in the fall of 1963, the Service advised plaintiff that it did not intend to purchase plaintiff’s land at that time and did not know when it would do so. 191 Ct. Cl. at 443.

However, July 23, 1963, was the date when defendant purchased the 1,135-acre Heims ranch for $850,000. No subdivision activities were planned or contemplated on such property. This was the first acquisition by defendant of private land within the Seashore in implementation of the Seashore establishment. In recognition that there can be no condemnation of Federal land, defendant’s early purchase of the Heims ranch was for the primary purpose of preventing condemnation of a right-of-way over such ranch, thereby frustrating permanently plaintiff’s efforts to accomplish a duly approved subdivision of its land for sale in small lots or parcels.

The proposed access road for plaintiff’s planned subdivision extended from plaintiff’s land across intervening lands and through the Heims ranch to the Sir Francis Drake Highway. A local assessment district had been organized on July 31,1962, by local county officials, as authorized by law, on the petition of plaintiff and other landowners in the area. It was organized for the purpose of accomplishment of condemnation of the necessary right-of-way (following the course of an existing road too narrow in width) and for the construction thereon of a road meeting county road standards, as required by county ordinances for access to a subdivision such as proposed by plaintiff. The county officials had previously decided that such an access road would have to be constructed before official approval of plaintiff’s subdivision plans would be allowed. Defendant’s purchase of the Heims ranch permanently foreclosed the possibility of construction of the access road.

Actually plaintiff’s efforts toward subdivision of its land were frustrated to the point of cessation in early November 1962, within 2 months after enactment of the Seashore legislation, when the regional planning officer of the National Park Service (the Service) advised the attorney for the assessment district (appointed by the county officials when they created such district) and plaintiff’s principal officer that the Service had in its possession a quitclaim deed from the owners of the Heims ranch to the United States, covering a 50-foot strip of the Heims ranch along its entire border with Sir Francis Drake Highway. Such deed was exhibited to plaintiff’s representative. It had been executed and delivered by the owners of the Heims ranch to the Service, with the expressed intent that it be used to prevent condemnation of the right-of-way for the proposed access road. The representative of the Park Service threatened to record the deed, if activities continued with respect to the construction of the access road. Plaintiff and the assessment district understood that if such deed were accepted and recorded by defendant, successful condemnation proceedings would have been 'legally impossible. About mid-November 1962, plaintiff’s representative and the attorney for the assessment district conferred and decided that it would be a waste of money to continue the access road project, and such activities were terminated.

Prior to mid-November 1962, and after its creation on July 31,1962, the assessment district by its engineering firm, also appointed by the county officials, had surveyed the pertinent poi'tion of the right-of-way, and by its attorney, the district [had prepared a resolution to be submitted to the county officials preparatory to filing eminent domain proceedings on the section of the proposed road through the Heims ranch.

With respect to plaintiff’s activities for subdivision of its land, it is to be noted that the two organizers of plaintiff corporation were experienced land subdividers. In December 1959, they obtained an option to purchase at $350 per acre a 1,000-acre tract (optioned tract), which included the subject 468 acres. Between the optioned tract and the shore of Drakes Bay lay another 1,000-acre tract (Drakes Beach Bunch) owned by Drakes Beach Estates, Inc., which company had commenced subdivision activities thereon. Such company had pending a law suit with an adjoining property owner concerning access to its tract. Such suit was settled in such a manner that additional access was afforded to the optioned tract which included subject land as a part. The seller then realized the potential of the optioned tract for subdivision, and he 'attempted to withdraw from the option agreement. In the meantime, plaintiff corporation was organized on February 24,1960, and a suit for specific performance of the option agreement was commenced, which resulted in acquisition of the optioned tract by plaintiff on March 30, 1960, in accordance with the option agreement.

Plaintiff acquired such land for the purpose of subdividing and selling it in small lots and parcels. 3h late 1960 or early 1961, the two organizers, Benjamin P. Bonelli and David S. Adams, agreed to a division of the 1,000-acre tract into two tracts, and Adams took title to one tract and relinquished his interest in plaintiff corporation. The tract retained by plaintiff included the 468 acres comprising subject land.

In the spring of 1961, three new shareholders acquired stock in plaintiff corporation, each holding a one-quarter interest, as did Bonelli. Each was a specialist in assessment district financing of subdivision projects, two being heads of the improvement bond departments of different investment companies, and the third being an attorney in a law firm specializing in such matters. Bonelli brought these new stockholders into plaintiff corporation to assist in making arrangements for the financing of subdivisions on plaintiff’s land.

It was not until 1961 that legislation was proposed in Congress that the Seashore comprise the 53,000 acres eventually established as such on September 13, 1962, in the enactment of a bill introduced in 1962. Prior legislative proposals in 1959 and 1960 included only 35,000 acres, with plaintiff’s land outside such area. It was not until January 17,1962, that the Board of Supervisors of Marin County, within which the Seashore is located, voted in favor of enlargement of the Seashore to the 53,000 acres, having previously voted against enlargement beyond an area of 20,000 acres, which did not include plaintiff’s land. Congressman Miller of the congressional district including the Seashore had previously informed the Board that the Seashore bill could not be enacted unless the Board adopted a resolution in favor of the 53,000-acre area. The change in position of the Board followed a recall election in which a Board member opposing enlargement of the Seashore was removed from office, being succeeded by an advocate thereof.

On February 3,1961, almost a year prior to the favorable action of the Marin County officials on the enlargement of the Seashore to the 53,000-acre area, and more than iy2 years before enactment of the Seashore legislation on September 13, 1962, plaintiff filed a subdivision map on subject land entitled “Drakes Bay Pines” and a verified petition with the Marin County Planning Commission, requesting variances from road improvements standards commensurate with the improvements required by Marin County in other subdivisions in the nearby area and in western Marin County up until that time.

Engineering and legal work on subdivision maps had been commenced by plaintiff in 1960 and continued through 1961 and 1962.

In late 1961 and early 1962, Bonelli on behalf of plaintiff conferred with the regional planning officer of the Service, who advised among other matters, that plaintiff’s land would be within the boundaries of the final Seashore bill, and that the Service urgently desired to exchange other Federal land for plaintiff’s land pursuant to Section 8 of the Taylor Grazing Act, indicating that subdivision of plaintiff’s land would scar the hills and partially destroy the scenic value of the area, and would increase land values and make acquisition of the Seashore more difficult for the Service.

In reliance on the good faith of defendant in proposing such a land exchange, plaintiff then withdrew its tentative subdivision map from the Marin Comity Planning Commission, and Bonelli spent considerable time and effort viewing Federal land available for exchange in California, Nevada, and Arizona.

On March 13, 1962, plaintiff filed a subdivision map and verified petition with Marin County, proposing to subdivide 168 acres of its land into 76 lots, and requesting variances as to road standards only on the access roads, not as to roads within the proposed subdivision. Plaintiff filed such subdivision map because no Seashore legislation had been enacted, and because it was experiencing financial difficulties in meeting accrued tax and mortgage liabilities. Approximately 2 years are required for a subdivider to be ready to sell lots after the initial engineering work has been done. Plaintiff was concerned that it would not be in a position to sell lots if the Seashore bill was not enacted in 1962.

In 1962, concurrently with the filing of the second Drakes Bay Pines subdivision map, plaintiff began the construction of dirt roads within the proposed subdivision.

On April 2,1962, a public hearing was held on the pending Drakes Bay Pines subdivision proposal by the Marin County Planning Commission, and the regional planning officer appeared and read the protest of the Service, quoted in the court’s finding of fact No. 22.

On April 30, 1962, a hearing was held before the Marin County Board of Supervisors, at which time Marin County Counsel advised that the Board could require construction of a county-standard access road from the edge of a proposed subdivision to an existing county-standard road as a condition of approval of a subdivision map. Sir Francis Drake Highway was the one county-standard road in existence in the area. There were two routes available for an access road from plaintiff’s proposed subdivision to such highway. One was down the steep easterly slope of Inverness Nidge. The Board reasonably determined that such route was not feasible for construction of a county-standard access road, and on that basis, denied approval of plaintiff’s proposed subdivision on May 29,1962.

However, after consulting with, the Marin County Engineer, the Board then advised plaintiff that the other available route, i.e., along the existing road through the Heims ranch, was the only one over which a county-standard access road could be constructed, to permit plaintiff to subdivide its land. Of course, such route was the one which the assessment district, subsequently created by the Board on July 31, 1962, employed in its unsuccessful efforts to condemn a right-of-way and construct the access road, as described above.

In early 1962, plaintiff took steps to obtain water service from the Inverness Water Company, a public utility, which owned and operated the water system at the town of Inverness, approximately y2 mile from plaintiff’s land. Such company was willing to incorporate plaintiff’s land within its service area. On March 8, 1962, such company filed its application with the California Utilities Commission, requesting issuance of a certificate of convenience and necessity permitting it to provide water service to plaintiff’s land. On May 1, 1962, a public hearing was held on such application before the Utilities Commission, at which the National Park Service appeared as a protestant, and at which the regional planning officer with the approval of the National Director testified in opposition to the application, as related in the court’s finding of fact No. 72.

On September 4,1962, the Utilities Commission denied the application. After enactment of the Seashore bill on September 13, 1962, the water company was unwilling to consider providing water service to plaintiff’s land.

The foregoing facts concerning plaintiff’s subdivision activities have been recited in detail because they bear heavily upon the question of the validity of the appraisal theories of valuation experts whose testimony was presented at the trial on remand. In determining just compensation, however, consideration has been given to all of the court’s findings of fact, 191 Ct. Cl. at 415-44, as well as the supplementary facts found on the testimony and evidence adduced at the remand trial.

As of the date of taking, no physical improvements existed on subject land except a small reservoir, boundary fencing, and a network of narrow and rough-graded dirt roads, described in finding of fact No. 93.

Adequate sources of water exist and have existed on plaintiff’s land to furnish water sufficient for a subdivision of such land into 2-acre lots, or into parcels of 20 acres or more, for recreational homesites.

As of July 23,1963, and for about 3 years prior thereto, the highest and best use of plaintiff’s land was for subdivision into small lots (each about 2 acres in size) for sale for recreational homesites.

Whether subdivided into lots about 2 acres in size, or into parcels of 20 acres or more, subdivision of subject land would have provided lots or parteéis, each of which would have been in or in close proximity to a wooded area. Most of the lots or parcels would have had a view of Drakes Bay and the Pacific Ocean, with those on the skyline of Inverness Nidge having additionally a view of Tómales Bay to the east. Some of the 2-acre lots would have had no view of the ocean or bays, particularly those on the side slopes of the hogback ridge, extending down to the valley boundary lines of subject land. Those in the lower part of the land were open grassland, but had the amenity of proximity to the reservoir.

The appraisal witnesses in the trial of this case on remand were Floyd D. Clevenger and Desmond Johnson, called by plaintiff, and William H. Murray and Albert L. Johnson, called by defendant. Each of them had substantial qualifications and experience as a real estate appraiser. Their ultimate opinions as to the market value of plaintiff’s 468-acre tract of land as of July 23,1963, were from the highest to the lowest as follows:

Desmond Johnson_$890,000

Dloyd D. Clevenger-$875,000

Albert L. Johnson_$280,500

William H. Murray-$280,000

In accordance with the admonition of the court in its prior opinion, i.e., that the determination of just compensation in this case should disregard both enhancement and diminution in value resulting from the Seashore project itself, 191 Ct. Cl. at 408, 424 F. 2d at 584, each of such appraisers undertook to investigate as to whether or not any such enhancement or diminution in value occurred. All agreed, and it is so found, that there was no discernible enhancement of land values within or without the Seashore area as a result of the project. All recognized that in general sales of land within the Seashore area were frustrated by the Seashore project, except for the Ottinger sales mentioned in findings 81 and 107 and included in other findings concerning sales data relied upon by the appraisers.

It is undisputed that promotion of the Seashore project by defendant, with 'attendant publicity, virtually eliminated the market for lot sales within the project area months before enactment of the Seashore legislation on September 13,1962.

However, it is concluded from all of the evidence (summarized in the detailed findings of fact herein) that a high level of public interest had existed in sales of small subdivision lots for recreational homesites on Point Beyes Peninsula, both within and without the Seashore boundaries, prior to the development of the Seashore project, which market was destroyed as to land within the Seashore area by promotion of the Seashore.

The wide difference between the market values determined by plaintiff’s appraisers and those decided by defendant’s appraisers was basically and primarily due to their opposing appraisal theories. Plaintiff’s appraisers treated subject land as undeveloped (except for the network of rough dirt roads) to be sold as an entire tract, but in such a state of subdivision planning that official approval of the subdivision was assured. They considered that but for the promotion of the Seashore project, subdivision would have been accomplished and such-land would have been ready for sale in 2-acre lots by the date of taking. Defendant’s appraisers considered subject land as investment property, basically agricultural in nature, to be held for realization of gain from the land value increases to be expected, with only a potential for subdivision use for homesites. These opposing theories cannot reasonably be reconciled, and it is necessary in fixing the amount of just compensation to decide first which theory is valid under the circumstances of this case. Secondly, consideration must be given to what adjustments, if any, should be made to the values determined by the appraisers who used the valid approach in determination of fair market value.

As shown bj the findings of fact herein, plaintiff’s appraisal witnesses used primarily and basically the residual land (or economic analysis) approach in reaching their opinions as to the market value of subject land as a whole. Both of them applied such method in the alternative to a subdivision of subject land into 229 lots of about 2 acres each and to a parcelization of subject land into tracts of 20 acres or more. Each preferred the 229 lot subdivision analysis. Each endeavored to confirm his opinion by use of the comparable sales approach.

As to the 229 lot subdivision analysis, each determined what the gross income would have been from the individual sales of all 229 lots into which subject land would have been subdivided. Such a subdivision map had been prepared by an engineering firm for plaintiff. To arrive at such gross income, each estimated the average sales price at which such lots would have been sold, relying on contemporary sales of lots and small parcel's of land, located either in Paradise Ranch Estates, the subdivision adjacent to subject land on the easterly slope of Inverness Ridge, or in the Ottinger sales area on the Inverness Ridge, northerly of subject land.

From the estimated total receipts from sale of the 229 lots, each appraiser deducted the total costs which would have been incurred to accomplish subdivision of subject land, such as for construction of road improvements, a water system, drainage facilities, and for contingencies relating thereto-. The estimate of such costs was supplied by an engineering firm. Also deducted from the total receipts were the sub-divider’s profit and overhead, interest expense during the period of development and sales, taxes, and promotion and sales expense.

The indicated market value (or residual value) of subject land was thus determined to be the difference between the gross receipts from sale of the 229 lots and the deductions mentioned above.

But for the enactment of the Seashore legislation on September 13, 1962, the activities of the assessment district (created July 31,1962) would have resulted in condemnation of the necessary right-of-way and construction of the required access road so that plaintiff would have obtained approval of its subdivision and been prepared to commence sales of lots on its land by the date of taking, July 23,1963. In accordance with the mandate of the court relating to. assessment of just compensation for the taking of plaintiff’s-land by defendant, i.e., that any detraction from the value of plaintiff’s land by the creation and establishment of the Seashore project and by the interruption of access by defendant’s purchase of the Heims ranch should be disregarded, 191 Ct. Cl. at 414, 424 F. 2d at 588, the appraisal theory of plaintiff’s valuation experts must be basically accepted, subject to whatever adjustments are reasonably required on the basis of the weight to be given to the various factors on which their opinions are based. The appraisal theories of defendant’s appraisers are rejected as contrary to the court’s instructions concerning detraction from value by the creation and establishment of the Seashore.

Defendant’s position is rejected that the residual land approach used by plaintiff’s appraisers is invalid as a matter of law. Adequate authority exists for use of such approach in determining the market value of a tract of land, the highest and best use of which was for subdivision and sale in lots. See Highland Park, Inc. v. United States, 142 Ct. Cl. 269, 274, 161 F. Supp. 597, 600 (1958); United States v. Iriarte, 166 F. 2d 800, 804 (1st Cir.1948), cert. denied, 335 U.S. 816; United States v. Waterhouse, 132 F. 2d 699, 702 (9th Cir.1943), aff'd by equally divided Court, 321 U.S. 743 (1944). Moreover, defendant’s appraisers conceded that the residual land approach would be a proper method of appraisal, recognized and used in the appraisal profession, in the case of determination of the market value of a tract of land concerning which subdivision and readiness for sale of lots were accomplished facts. They considered such method inapplicable to subject land, and confined their appraisal theory to sale of a single tract of land, using comparable sales of basically agricultural lands having only a potential for subdivision, without any substantial activities having occurred with respect to subdivision.

However, upon a review of the entire record in this case, giving consideration to all relevant and material evidence relating to market value, it is my ultimate conclusion that the fair market value of subject laud was less than that decided by plaintiff’s appraisers. Their overall residual land approach is accepted as reasonably based upon sound considerations, except that it is my opinion that they were overly optimistic as to the average sales price at which the planned 229 lots of plaintiff’s subdivision could 'have been sold; that sufficient consideration was not given to the circumstance that there would have been a bulk sale of plaintiff’s land, i.e., a sale of the entire tract to a purchaser who would undertake the accomplishment of the sale of the lots, one by one; and that a willing seller and a willing purchaser would have adjusted the subdivision value of such land downward to reflect the wholesale nature of the transaction, at the same time taking into consideration resulting adjustments of the other factors used in the residual land approach.

After considering all of these matters together with the overall evidence in this case, it is my opinion that the fair market value of plaintiff’s land as of July 23, 1963, was $631,800.

Plaintiff claims as a part of just compensation entitlement to interest on the market value of its land at the rate of 6 percent per annum from the date of taking. The only evidence of record concerning this issue is the stipulated fact that defendant has paid 6 percent interest on judgments entered in the Federal District Court in condemnation actions brought by defendant involving lands located within the Point Beyes National Seashore. Of course, this was interest on judgments, not interest as a part of just compensation. Plaintiff adduced no proof in either of the trials in this case in the way of statistical data, testimony, or other relevant or material evidence concerning the question as to whether this court in an inverse condemnation case should award as a part of just compensation interest at a rate greater than the 4 percent rate which has been allowed by this court on any such taking since January 1,1934. On the basis of recent authority, which is considered controlling, it is my conclusion that plaintiff is entitled to interest as a part of just compensation only at a rate of 4 percent per annum on the market value of its land from the date of taking, July 23, 1963, until paid. Confederated Salish & Kootenai Tribes v. United States, 193 Ct. Cl. 801, 805, 437 F. 2d 458, 460 (1971).

Plaintiff claims entitlement to recovery of its reasonable costs in the way of attorney, appraisal and engineering fees incurred in the prosecution of this case. Public Law 91-646, the Uniform Relocation Assistance and Land Acquisition Policies Act of 1970, approved January 2,1971,84 Stat. 1894, provides in section 304(c) as follows:

(c) The court rendering a judgment for the plaintiff in a proceeding brought under section 1346(a)(2) or 1491 of title 28, United States Code, awarding compensation for the taking of property by a Federal agency, or the Attorney General effecting a settlement of any such proceeding, shall determine and award or allow to such plaintiff, as a part of such judgment or settlement, such sum as will in the opinion of the court or the Attorney General reimburse such plaintiff for his reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of such proceeding.

Since such legislation had been so recently enacted, plaintiff by the time of the trial on remand in February 1971 had had no reasonable opportunity to amend its pleadings and present testimony and evidence concerning the amounts and reasonableness of its expenses in the way of attorney, appraisal and engineering fees.

It was stipulated at the remand trial that plaintiff actually incurred attorney and appraisal fees. Plaintiff proved that it had actually incurred engineering fees in the prosecution of this case.

The parties then stipulated that the trial of such claim for fees be limited to the issues of law relating to the right of plaintiff to recover on such claim, reserving the determination of the amount of recovery, if any, on such claim for further proceedings. Defendant advised that it desired to research the question as to whether or not it was the intent of Congress that the above-quoted provision would apply to a proceeding in the current status of subject case, i.e., having been commenced prior to the enactment of such law, with judgment not having been entered as to the amount of just compensation recoverable.

In its brief to the trial commissioner, defendant concedes that plaintiff is entitled to recover in this case reasonable attorney, appraisal, and engineering fees actually incurred because of the proceedings in this case.

It is so held, with the amount of recovery in this respect to be determined in further proceedings, if the parties are unable to stipulate the amounts of the items involved.

FINDINGS or Fact

The following findings of fact are made in supplementation of the court’s findings of fact Nos. 1 through 91, 191 Ct. Cl. at 415-44, made and entered when the court announced its prior opinion in this case:

92. As stipulated by the parties at the trial of this case on remand, the date of taking of plaintiff’s land by defendant Was July 23,1963.

93. No physical improvements existed on subject land except a small reservoir, boundary fencing, and a network of dirt roads previously mentioned in the court’s finding of fact No. 20. The roads were narrow and rough-graded. This road network consisted of one extending along the skyline of Inverness Kidge near the easterly boundary of subject land; one extending downgrade from the skyline along the crest of a hogback ridge, which comprises the bulk of subject land, to the opposite end off the land, where the reservoir is located; and two other roads extending upgrade from the reservoir along opposite edges of the land to Inverness Kidge, each lying in the ascending valley on either side of the hogback ridge.

94. Adequate sources of water exist and have existed on plaintiff’s land to furnish Water sufficient for a subdivision of such land into 2-acre lots, or into parcels of 20 acres or more, for recreational homesites.

95. As of July 23,1963, and for about 3 years prior thereto, the highest and best use of plaintiff’s land was for subdivision into small lots (each about 2 acres in size) for sale for recreational homesites.

Whether subdivided into lots about 2 acres in size, or into parcels of 20 acres or more, subdivision of subject land would have provided lots or parcels, each of which would have been in or in close proximity to a wooded area. Most of the lots or parcels would have had a view of Drakes Bay and the Pacific Ocean, with those on the skyline of Inverness Bidge having additionally a view of Tómales Bay to the east. Some of the 2-acre lots would have had no view of the ocean or bays, particularly those on the side slopes of the hogback ridge, extending down to the valley boundary lines of subject land. Those in the lower part of the land were open grassland, but had the amenity of proximity to the reservoir.

96. Subdivision development of the Point Beyes Peninsula on the east side of Inverness Bidge, in the area of the peninsula not included within the boundaries of the Point Beyes National Seashore (Seashore), began in the early 1950’s as shown by the records of the California Division of Beal Estate. Paradise Banch Estates, previously mentioned in the court’s finding of fact No. 8, was an active subdivision development by March 1953, as was Drakes Highlands, adjacent to the town of Inverness Park, by October 1955.

97. The first subdivision activity west of the Inverness Bidge, within the area covered by the Seashore, commenced in September 1957, when David S. Adams bought a one-half interest from Leland S. Murphy in the 1,000-acre Drakes Beach Banch. The contract of sale provided that the land was to be subdivided and sold in small parcels, and a land release clause was included so that lots or small parcels could be released from the lien of the deed of trust as they were sold. Adams and others, including Benjamin P. Bonelli, then organized a land development company to subdivide such land, that company being Drakes Beach Estates, Inc., previously mentioned in the court’s finding of fact No. 7.

98. Subdivision of the Drakes Beach Banch was delayed by an access problem, which was solved by settlement of a law suit pending between the owner of such ranch and an adjoining property owner.

99. The settlement of such lawsuit conferred benefit on subject land. As previously mentioned in the court’s finding of fact No. 2, plaintiff’s organizers (Adams and Bonelli) in December 1959 had obtained an option to purchase the 1,000-acre tract (optioned tract) of which subject land was a part. Between such optioned tract and the shore of Drakes Bay lay the land comprising Drakes Beach Ranch. The settlement of the Drakes Beach Ranch law suit afforded additional access to the optioned tract and to subject tract as a part thereof. The seller of the optioned tract then realized the potential of such tract for subdivision and he attempted to withdraw from the option agreement. A specific performance law suit resulted in acquisition by plaintiff of the optioned tract (including subject land) on March 30,1960, as related in the court’s findings of fact 2 and 3.

100. Regarding subdivision activities on the Drakes Beach Ranch, Adams commenced showing the property to prospective lot buyers in 1958 and compiled a list of prospective buyers. A contract was executed with an engineering company in 1959 for the preparation of subdivision maps and for field work. The first lots were sold in 1960.

Several other properties within other parts of the overall Seashore area were sold for subdivision and development in 1959 and 1960.

101. The subdivisions on the Point Reyes Peninsula, both within and without the area which became the Seashore, were not related to or inspired by the Seashore project. They were concurrent with and part of the massive recreational land boom in California which commenced in the late 1950’s and early 1960’s. Such land boom included areas such as the Saltón Sea, Lake Tahoe, the Sierra foothills, Clear Lake, and the northern coast of California. In the latter area, coastal subdivisions included Point Reyes, Timber Cove, Sea Ranch, Irish Beach, and Shelter Cove.

102. The acquisition by plaintiff’s organizers of an option to purchase subject land in 1959 was not related to or inspired by the Seashore proposal, nor were the subsequent activities of plaintiff to accomplish a subdivision of subject land.

103. The high level of interest of the public in buying recreational homesites on the Point Reyes Peninsula was evidenced by the subdivision activities on Drakes Beach Estates, part of the Drakes Beach Ranch, and particularly by the compilation of a list of prospective lot buyers in 1958 before a subdivision map had been filed, and after the filing of such map, by sale of 101 lots in 13 months commencing in 1960. There is no substantial evidence, however, that any ranch, large or small parcel of land, or subdivided lot was purchased in anticipation of any advantages to be derived from the proposed Seashore, or in speculation that appreciation in value of land would result from the proposed Seashore, whether located within or without the Seashore boundaries.

104. The testimony of each of the four appraisal witnesses at the trial on remand was that he carefully considered and investigated as to whether or not there was enhancement in value of subject land and comparable tracts used in the appraisal on account of the proposed Seashore, and in conformity with the agreed conclusion of all four of them, it is found that there was not 'any discernible enhancement of land values either inside or outside the Seashore as a result of the project.

105. The promotion of the Seashore project by defendant with attendant publicity, virtually eliminated the market for lot sales within the project area months before enactment of the Seashore legislation on September 13,1962. Sales of subdivision lots in Drakes Beach Estates declined markedly during 1961 and ceased completely in March 1962. Sales of other tracts within the project were frustrated by the project after mid-1961.

106. The lead time required to acquire land, plan its development, obtain necessary Government approvals, finance and install improvements and commence a sales program, involves several years.

107. Other than the Drakes Beach Estates subdivision, the only other sales of subdivided land made in 1961 or 1962 in the overall central area of the Seashore yet to be established were those made by Millard E. Ottingar, whose pertinent land holdings lay astride the crest of Inverness Eidge, some distance northerly of subject tract. His sales were of parcels larger than lot size, and he had provided improvements only in the way of rough-graded roads to parcels of his land. He continued making sales of parcels of 'his land within the Seashore area after enactment of the Seashore legislation, under the circumstances related in the court’s finding of fact No. 81.

No other tract of land within the overall central part of the Point Eeyes Peninsula, thereafter included in the Seashore, was in the process of subdivision, except plaintiff’s land. No subdivision activities were planned or contemplated on the Heims ranch.

108. But for the enactment of the Seashore legislation on September 13, 1963, the activities of the assessment district (created by the Marin County officials on July 31, 1963) would have resulted in condemnation of the necessary right-of-way and construction of the required access road so that plaintiff could have obtained approval of its subdivision and been prepared to commence sales of lots on its land by the date of taking, July 23,1963.

It is concluded that the entire project of approximately 229 lots on subject land would have been sold within 2 years after lot sales commenced.

109. The appraisal witnesses in the trial of this case on remand were Floyd D. Clevenger and Desmond Johnson, called by plaintiff, and William H. Murray and Albert L. Johnson, called by defendant. Each prepared a substantial appraisal report, plaintiff’s exhibit 506 being the Clevenger report, plaintiff’s exhibit 507 being the Desmond Johnson report, defendant’s exhibit 503 being the Murray report, and defendant’s exhibit 507 being the Albert L. Johnson report.

The ultimate opinions of these witnesses as to the market value of plaintiff’s 468-acre tract off land as of July 23,1963, were from the highest to lowest as follows:

¿Desmond Johnson_$890, 000

EUoyd D. Clevenger-$875,000

Albert L. Johnson_$280, 500

William H. Murray_$280,000

110. Each of the four appraisers had substantial qualifications and experience as a real estate appraiser.

111. In accordance with the admonition of the court in its prior opinion, i.e., that the determination of just compensation should disregard both enhancement and diminution in this case resulting from the Seashore project itself, 191 Ct. Cl. at 408, 424 F. 2d at 584, each of such appraisers undertook to investigate as to whether or not any such enhancement or diminution in value occurred. All agreed, and it is so found, that there was no discernible enhancement of land values within or without the Seashore area as a result of the project. All recognized that in general sales of land within the Seashore area were frustrated by the Seashore project, except for the Ottinger sales mentioned in findings of fact Nos. 81 and 107 and in other findings concerning sales data relied upon by the appraisers.

Floyd D. Clevenger Appraisal

112. Floyd D. Clevenger, an experienced and qualified real estate appraiser, was employed by plaintiff in August 1970 to make an appraisal of the market value of subject land as of July 23,1963. He accepted the court’s findings of fact, and visited and investigated subject land and the other lands in the general area, and particularly those which he considered to be comparable in nature to subject land. He used three appraisal methods, i.e., two being the land residual or economic analysis approach, as applied in the alternative to subdivision of subject land into 229 lots, each about 2 acres in size, or subdivision into 20 parcels, each 20 acres or more in size, and the third approach being consideration of sales of comparable tracts of land.

113. Clevenger’s opinion, as shown by his appraisal report in evidence and by his testimony at the trial on remand in February 1971, was that the fair market value of subj eet land as of July 23, 1963, was $875,000.

His opinion was that the indicated market values were $880,000 for sale of subject land as a whole as a 2-acre lot subdivision, $782,500 for sale of such land as a whole divided into 20-acre parcels, and $865,800 on the basis of consideration of sales of other tracts of land, deemed comparable to subject land.

114. Clevenger used primarily and basically the land residual method in reaching his conclusion that subject land had a fair market value of $875,000. However, the indicated value of $880,000 from the land residual approach was reduced by him, because he felt that the sum of $875,000 would have been a compromise amount reached by the seller and buyer between his indicated value of $880,000 on the 2-acre lot subdivision analysis and the $865,800 amount reached by him in his comparable sales approach.

115. Clevenger treated subject land as undeveloped (except for tbe network of rough dirt roads) to be sold as an entire tract, but in such a state of subdivision planning that official approval of the subdivision was assured. He considered that but for the promotion of the Seashore project, subdivision would have been accomplished and such land would have been ready for sale in 2-acre lots by the date of taking.

116. In connection with his land residual approach, both with respect to the 2-acre lot subdivision and also the 20-acre parcel subdivision, Clevenger used subdivision maps which had been prepared for plaintiff by an engineering firm experienced in such work.

117. Clevenger concluded that the highest and best use of subject land was for development into recreational home-sites of 1 to 5 acres.

118. In his 2-acre lot subdivision analysis, Clevenger first determined what the gross income would have been from the individual sales of all 229 lots into which subject land would have ¡been subdivided. To arrive at such gross income, he estimated the average sales price at which such lots would have been sold. He determined such average price by consideration of contemporary sales of lots or small parcels of land, located either in Paradise Banch Estates, the subdivision ad j acent to sub j ect land on the easterly slope of Inverness Bidge, or in the Ottinger sales area on the Inverness Bidge, northerly of subject land.

His conclusion was that the average sales price of the 229 lots would have-been $10,000, and thus that the gross receipts would have been $2,290,000.

From such total receipts, Clevenger deducted the total costs which would have been incurred to accomplish subdivision development of subject land, such as for construction of road improvements, a water system, drainage facilities, and for contingencies relating thereto. Such costs totaled $509,800, which was an estimate prepared by an engineering firm.

Also deducted from total receipts were the subdivision developer’s profit and overhead ($572,500), interest expense during the period of his holding of the subdivision property ($181,000), taxes and miscellaneous expenses ($10,000), and promotion and sales expense ($187,400).

Clevenger’s indicated market value (or residual land value) was tlms determined ito be $880,000, tbe rounded difference between total receipts ($2,290,000) and the total deductions mentioned above ($1,410,700).

119. Although he considered other sales in determining the average price at which the lots on plaintiff’s land would have sold, Clevenger deemed the following sales to be representative of the indicated market value of the lots on subject land:

The first six of these tracts are located in the so-called Ottinger sales area on Inverness Nidge northerly of subject land. The last three are located in Paradise Ranch Estates subdivision.

120. With respect to his use of the land residual approach on the basis of subdivision of subject land into 20 parcels of 20 or more acres each, Clevenger used a subdivision map which had been prepared by an engineering firm for such a parcelization of the land. By use of contemporary sales of parcels of land of comparable size, located either in the Ottinger sales area of Inverness Nidge or otherwise relatively close to subject land, he concluded that such parcels on subject land would have sold for $2,500 per acre and that the total receipts would thus have been $1,170,000.

He ^assumed that other than the existing road system, no onsite improvements would have been required to accomplish sale of such 20-acre parcels. Marin County zoning ordinances permitted such a parcelization without improvements and individual sales of sizable parts of a large tract. However, he did deduct as development costs from the estimated total receipts of $1,170,000 the sum of $7,800, which related to expense which plaintiff would have incurred in connection with the planned construction through the local assessment district created by the Marin County officials of the county-standard access road between plaintiff’s land through, the Heims ranch to the Sir Francis Drake Highway. Also deducted from total receipts were the subdivider’s profit and overhead ($175,500), taxes and interest ($134,000), and sales and promotion expense ($70,200).

For the land residual approach for 20-acre parcels, Clev-enger’s indicated market value for subject land undeveloped was thus determined to be $782,500, the difference between total receipts ($1,170,000) and the total deductions mentioned above ($387,500).

121. Although he considered other sales in determining the price at which the 20-acre parcels of plaintiff’s land would have sold, Clevenger deemed the following sales to be representative of the indicated market value of such parcels on subject land:

The first four of these tracts are located on Inverness Ridge northerly of subject land. The fifth is located on an inlet bay from Drakes Bay. The sixth is adjacent to subject land in the direction toward the Drakes Beach Ranch properties.

122. With respect to his use of the market data or comparable sales approach to appraisal of the fair market value of subject land, Clevenger investigated a substantial number of contemporary sales in the general area of subject land. He relied principally on the following sales:

On the basis of his comparable sales approach, Clevenger’s opinion was that the indicated market value of subject land was $865,000, or $1,850 per acre.

The first five sales above were negotiated acquisitions by defendant as a part of its implementation of the establishment of the Seashore. Even though they were purchased by a buyer having the power of eminent domain, Clevenger considered them because he was correctly advised that defendant had conceded in the prior trial of this case that they were arm’s-length transactions. Even disregarding such sales, he was still of the opinion on the basis of the other contemporary sales that subject land had a fair market value of $1,850 per acre.

The first two sales above were actually the subject matter of an agreement conditioned on the sale of the total of 899 acres of the two tracts. The total of the sales prices averaged $2,280 per acre. These two tracts were adjacent, with the larger having ocean frontage directly on Drakes Bay, and the smaller having frontage on an inlet bay with direct ocean view. Of the 899 acres, there were about 204 acres on which subdivision had been approved, of which about 39 acres had accomplished lot improvement, but no lot sales had occurred.

The third sale above involved a tract of land at or near the Pacific Ocean on the Point Eeyes Peninsula in the southern part of the overall area of the Seashore. Access was via a 5-mile dirt road, and the tract had no street improvements and no lots thereon had been sold, although a subdivision map had been approved in 1961.

The fourth sale involved a tract of land on which subdivision activity was in progress in 1965, but not completed.

The fifth sale was of land adjacent to the Noren Estates subdivision on which the map had been approved in 1958 and recorded in 1960.

The land in the sixth sale had frontage on Tómales Bay in the area of Point Eeyes Peninsula outside the Seashore, near the town of Inverness.

The seventh sale involved land fronting on Bodega Bay of the Pacific Ocean, located across such bay from the northernmost point of the Point Eeyes Peninsula.

Desmond Johnson Appraisal

123. Desmond Johnson, an experienced and qualified real estate appraiser, was employed by plaintiff in August 1970 to make an appraisal of the market value of subject land as of July 23, 1963. He accepted the court’s findings of fact as binding, and visited and investigated subject land and other lands in the general area, and particularly those which he considered to be comparable in nature to subject land. He used the same three appraisal methods employed by Mr. Clevenger.

124. Desmond Johnson’s opinion, as shown by his appraisal report in evidence and by his testimony at the trial on remand, was that the fair market value of subject land as of July 23,1963, was $890,000.

TTis three analyses were that the indicated market values were $904,275 for Sale of subject land as a whole as a 2-acre lot subdivision, $805,450 for sale of such land as a whole divided into 20-acre parcels, and that consideration of contemporary sales of other lands deemed comparable to subject land would tend to support a valuation of subject land between $1,800 'and $2,000 per acre, or a total value of between $842,000 and $936,000.

125. While his appraisal report states that both the land residual and market data approaches indicate that the range of value of subject land was between $1,800 and $2,000 per acre, it is obvious from his testimony that he relied primarily and basically on the land residual method as applied to a 229-lot subdivision of subject land in reaching his ultimate opinion as to market value. He commented in his testimony that market data was quite limited to fit the circumstances of subdivision development of subject land under the orders of this court.

126. Desmond Johnson treated subject land as undeveloped (except for the network of rough dirt roads) to be sold as an entire tract, but in such a state of subdivision that official approval of the subdivision was assured. He considered that but for the promotion of the Seashore project, subdivision would have been accomplished and such land would have been ready for sale in 2-acre lots by the date of taking.

127. Desmond Johnson concluded that the highest and best use of subject land was for subdivision into recreational-type residential property in roughly 2-acre parcels.

128. With respect to his residual land approaches on both the 229-lot subdivision and the 20-acre parcelization, Desmond Johnson used the same maps as did Mr. Clevenger, and also the same engineering firm estimates of costs of development of a 229-lot subdivision. Their conclusions varied with respect to other figures used, but their residual land approaches were basically the same.

129. Desmond Johnson’s conclusion was that the average sales price of the 229 lots would have been $9,500, and thus that the gross receipts would have been $2,175,500. From such gross receipts, he deducted the development costs ($509,800), and the developer’s indirect cost and profit ($761,425), and thus arrived at a residual land value for subject land of $904,275.

130. As did Mr. Clevenger, Desmond Johnson relied principally upon contemporary sales of lots in Paradise Eanch Estates subdivision and of small parcels in the so-called Ottinger sales area on the Inverness Eidge. He relied upon the first, second, fifth and seventh sales listed in the schedule set forth in finding of fact No. 119, and in addition relied upon the following sales of lots located in Paradise Eanch Estates:

131. With respect to his use of the land residual approach on the basis of parcelization of subject land into 20 pieces of 20 or more acres each, Desmond Johnson concluded that the average sales price would have been $2,500 per acre, and thus that the gross receipts from the sale of such parcels would have been $1,170,000. From such gross receipts, he deducted the cost of a survey map ($5,750), expense for the offsite access road ($7,800), and the developer’s indirect cost and profit ($351,000), and thus arrived at a residual land value for subject land of $805,450.

132. Desmond Johnson relied principally upon contemporary sales of parcels of land in the so-called Ottinger sales area on the Inverness Eidge in reaching his conclusion concerning what would have been average sales price of 20-acre parcels of subject land. Those sales included the first, second, third and fourth of those listed in the schedule in finding of fact No. 121, and in addition the following:

133. With respect to his use of the comparable sales approach, Desmond Johnson relied principally upon the first through the sixth sales listed in the schedule in finding of fact No. 122, and in addition upon the following:

The first of these two sales was the transaction by which plaintiff obtained title to subject tract, with the 1,000 acres being divided between plaintiff and David S. Adams as related in the court’s findings of fact Nos. 2 and 3. The value of such land was substantially greater than its sales price because of obtaining of additional access as related in finding of fact No. 99. The second of the above-listed sales is also set forth in the schedule in finding of fact No. 132.

Desmond Johnson selected transactions as comparable sales which involved lands on which either subdivision maps had been filed or which were adjacent to other land which h'ad been subdivided.

Of the 8 sales mentioned in this finding of fact, five of them were purchases by the defendant in the implementation of the establishment of the Seashore. Desmond Johnson testified that if he disregarded such sales, considering only the other three, his opinion of market value would have been the same.

Desmond Johnson investigated Sales of lands east of Tómales Bay, but rejected them as comparable to subject land. Insufficient water resources existed for subdivision development and such lands were barren of trees and lacked the amenities for subdivision into recreational homesites.

William 3. Murray Appraisal

134. William H. Murray, an experienced and qualified appraiser, was employed by defendant to make an appraisal of the market value of subject land as of July 23,1963. He is the same William H. Murray who served as an appraisal witness for defendant in the prior trial of this case. He visited subject land again and also the general area of the Point Beyes Peninsula, and particularly the lands which were the subject matter of his comparable sales. He used the market data or comparable sales approach.

135. Murray’s opinion, as shown by his appraisal report in evidence and by his testimony at the trial on remand, was that the fair market value of subject land as of July 23,1963, was $280,000.

136. Murray considered that as of July 23,1963, the highest and best use of subject land was as an investment property with perhaps an occasional or eventual sale of portions of the property in small acreage parcels. In his appraisal report, he commented that land uses 'in the 'area were chiefly pasturage for the raising of dairy cattle or beef cattle.

137. Although he investigated and considered a substantial number of sales of land in the general area, Murray relied on the following 10 sales as being most indicative of the market value of subject land as of July 23,1963:

The first through the seventh of such sales were of lands within the Seashore, except that the fifth was not entirely so. These seven sales all occurred in 1960 and 1961. Murray’s explanation for confining his appraisal to such years as to land transactions within the Seashore was that there was insufficient data available for the year 1963.

Except for the fifth sale, none of these 10 sales involved land on which he considered that there had been any degree of subdivision planning or development at the time of the transaction. The fifth sale involved land on which a subdivision map had been approved and recorded.

In Ms appraisal of subject land as of the date of taking, Murray gave no consideration to plaintiff’s activities and planning for development of a subdivision on such land, stating that the only real development was rough-grading of roads. He considered that subject land was only slightly more valuable because of preliminary subdivision work done, such as preparation of a map and some surveying and engineering.

Murray conceded that had plaintiff’s subdivision been approved and sale of lots commenced, he would have given consideration to use of the land residual approach to market value. He had previously used such approach on lands on wMch final maps had been filed and subdivision was in progress. His conclusion was that subject land would have sold as speculative property wMch perhaps would have been developed into a subdivision, either in small lots or larger parcels.

138. The first of Murray’s sales on the list above was the conveyance to plaintiff of the 1,000-acre tract of which subject land is a part. It was a forced conveyance at a prior option price which the seller resisted due to the circumstances related in finding of fact No. 99.

The second of such sales was the conveyance by the 'individual land subdividers to their corporate subdivider of the Drakes Beach Itanch, previously mentioned in finding of fact No. 97. The bulk of this tract, 800 acres, was acquired by defendant in 1963, being the first of the sales listed in finding of fact No. 122. Murray used the 1960 sale of the 1,000-acre tract because at that time it was undeveloped land, whereas in 1963 defendant acquired the 800-acre part as a subdivision.

The third sale involves the same tract of land acquired by defendant in 1963, wMch acquisition by defendant is listed and described in finding of fact No. 122.

The fourth sale involves land purchased for and thereafter used as a Christmas tree farm. Such land had frontage on an inlet bay from Drakes Bay.

The fifth sale involves land located southwest of the southern end of Tórnales Bay, with no marine view, on which accomplished subdivision development consisted only of construction of a rough-graded road.

The sixth sale involves land located northwesterly of subject land about one mile, quite Comparable to subject land in an undeveloped state, with less trees and more grassland, and on which there had been no subdivision planning or mapping.

The seventh sale involves a very large tract of land with Pacific Ocean frontage, located in the southerly part of the Seashore area, with timber cutting rights reserved, with no subdivision mapping or planning involved. It was located about 10 miles southerly of subject land.

The eighth and ninth sales concerned tráete of land located on or in close proximity to the eastern shore of Tómales Bay, across the bay from the Point Reyes Peninsula. There was no subdivision activity in progress or contemplated. Insufficient water existed for subdivision.

The tenth sale concerned a large tract of land north of Dillon Beach, fronting on the Pacific Ocean at Bodega Bay, somewhat northerly of the northernmost part of the Point Reyes Peninsula. With respect to this tract, and also his eighth and ninth sales, Murray commented that such lands are generally sold as speculating property, held for several yearn and resold at a profit.

Albert L. Johnson Appraisal

139. Albert L. Johnson, an experienced and qualified appraiser, Was employed by defendant in early September 1970 to mate an appraisal of the market value of subject land as of July 23,1963. He had not previously appraised land in Marin County, but he toured the Point Reyes Peninsula extensively and 'also nearby areas, and reviewed sales data provided by the National Park Service concerning sales of land in and about the Point Reyes Peninsula. He inspected and investigated subject land and other lands in the general area, and particularly those which he considered to be comparable in nature to subject land.

In his appraisal of subject land, he used the market data or comparable sales approach.

140. Albert Johnson’s opinion, as shown by his appraisal report in evidence and by his testimony at the trial on remand, was that the fair market value of subject land as of July 23, 1963, was $280,500.

141. Regarding the highest and best use of subject land as of the date of taking, Albert Johnson stated that while subject land had advantages not possessed by Point Reyes Peninsula lands in general, there was an abundance of wooded lands and open grasslands and ocean front beach lands which would have offered strong competition to subject land in a sale for subdivision purposes. He stated that the terrain of subject land suggested development in relatively large parcels, with a minimum of development expense, such as occurred in the Ottinger sales area, but that subject land was in competition with other lands in this respect.

Pie stated that there were many land ownerships held along the California coast for investment purposes, with interim income from either grazing or pasture leases, and that such uses are speculative land investment. He stated that subject property could have continued in this category and would have been attractive to many investors.

He considered that subject property had three categories for use: (1) Subdivision into lots averaging 2 acres per lot; (2) division into 20-acre parcels; and (3) investment holding, where there is no actual use except having cattle grazing thereon, waiting for land appreciation as the community around subject land would be developed if there were no Seashore.

Pie stated that he considered the value of subject land the same for all three purposes, reasoning that while a purchaser would make more money by subdividing it, such purchaser would buy such land at its competitive value in the open market as a piece of vacant land.

It is obvious from Iris overall testimony that Albert Johnson considered that due to competitive factors subject land would have sold as of the date of taking as undeveloped investment property, basically agricultural in nature, to be held for realization of gain from the land value increases to be expected, with only a potential for subdivision use for homesites or parcelization. He considered his market data or comparable sales on that basis.

Albert Johnson testified that he had used the land residual approach in a few cases involving small tracts of land, not on large properties, and he conceded that if land was partially subdivided and developed, he would consider the retail value of the lots discounted because of the wholesale nature of the sale of the entire tract. He obviously did not deem the land residual approach applicable to subject tract.

142. Among the many sales of land considered by him, Albert Johnson concluded that 23 sales were the best indicators of land values in the area, particularly for land which was undeveloped or in the initial stages of being processed for subdivision purposes. He considered these sales in various categories to assist him in determining sales price trends in various parts of the overall area in which all 23 sales were located. These area categories were sales on the Point Beyes Peninsula, both with and without ocean front influence; the Dillon Beach area, with ocean frontage, located just north of the Point Beyes Peninsula; the Tómales Bay area, with sales at or near the shore of either side of such bay; and the inland area, being sales located outside the Seashore, but near its east boundary, south of Tómales Bay. The data on the 23 sales is summarized as follows:

Also considered by Albert Johnson were resales of two of these 23 tracts. The land involved in the third sale listed above in the Dillon Beach area category resold on March 2, 1964, for $450 per acre. The land involved in the third sale listed above in the Tómales Bay area category resold on March 9, 1966, for $1,335 per acre. He considered ¡these resales, however, primarily from the standpoint of determining trends in the appreciation of land values in the area.

143. Albert Johnson considered his 23 sales most indicative of the market value of subject land because of the size of the tracts involved. He stated that one cannot make a direct measurement of value of a 468-acre tract from a 20-acre sale, because small parcels are available to a greater number of buyers, are bought for purposes different than a large tract, and bring higher prices.

144. Albert Johnson concluded that his Tómales Bay sales on the east side (the third through the fifth listed under the Tómales Bay area above) were not greatly divergent in unit price from some of the sales on the Peninsula, although such Tómales Bay lands had different characteristics and difference in availability of water. Their values were influenced by the excellent access afforded by Highway 1, and by developments along that highway. He considered such sales primarily to determine value trends in the general area.

145. The range of prices on all of the 25 sales (including the two resales) was from $148 to $1,335 per acre.

With respect to his category of sales in the Peninsula area without ocean frontage, the range was from $148 to $800, and Albert Johnson considered the typical prices to be from $250 to $350 per acre.

With respect to sales on the Peninsula with ocean frontage, the range was from $500 to $1,000, and he considered the typical prices to be from $665 to $900 per acre.

With respect to the Dillon Beach area with ocean frontage, the range was from $184 to $490, and he considered the typical prices to be from $425 to $490.

With respect to the sales in the Tómales Bay area, the range was from $288 to $1,335, and he considered the typical price to be $500 per acre.

With respect to the Inland area, the range was from $371 to $750, and he considered this range the typical prices in that area.

146. Albert Johnson treated subject land as being within the Peninsula area without ocean frontage, but having ocean influence, being 2% miles from the ocean.

147- Albert Johnson concluded that the first sale listed above in finding of fact No. 142, being the sale by Ottinger to plaintiff at $350 per acre of the 1,000-acre tract of which subject land is a part, was the most indicative of the fair market value of subject land. He knew that such sale was the subject of an option agreement in late 1959, completed in 1960, and concluded that he had to make adjustments for circumstances and events occurring thereafter until the date of valuation 3 years later. From his appraisal study, he concluded that the trend of increase in values of lands in the general area was 15 percent per year, or about $50 per acre for subject land, and he adjusted the price of subject land by about $150 per acre since 3 years had elapsed. On account of the improved access to subject land resulting from road improvements leading to the Drakes Beach Estates developments at Drakes Bay, he allowed an increase in value of subject land in the amount of $100 per acre. He also took into consideration the engineering work which plaintiff had already accomplished toward subdivision development of subject land, and also that a feasible way of providing a public access road to subject tract had been found through the local assessment district, and that while such project was not accomplished in fact, it would have been pursued beyond a doubt, but for the pendency and enactment of legislation creating the Seashore. He considered, however, that such a road would have opened up substantial areas for subdivision development, and that such competition would have had a stabilizing effect on land values, and that there would not have been any magic increase in the value of subject land.

Although he considered the transaction involving the land of which subject land is a part as the most indicative, he also considered all of the other sales listed above.

148. Albert Johnson, as did all of the other three appraisers, endeavored in conformity with principles of appraising, to make adjustments in consideration of sales of other land deemed comparable to subject land to allow for differences in Size, location, terrain, accessibility, water conditions, and dates of sales, which latter factor concerns trends in land values in the general 'area.

149. In the prosecution of subject case, plaintiff incurred expenses in the way of attorney’s fees, appraisal fees, and engineering fees.

Upon the stipulation of the parties at the trial on remand, which stipulation was approved by the trial commissioner, such trial was limited as to plaintiff’s claim for recovery of such attorney, appraisal and engineering fees, to the issues of law relating to the right of plaintiff to recover on such claim, reserving the determination of the amount of recovery, if any, on such claim for further proceedings.

Ultimate FINDING oe Fact

150. The fair market value of subject land as of July 23, 1963, was $631,800.

CONCLUSION OE LAW

Based upon the foregoing findings of fact and opinion, which 'are adopted by the court and made a part of the judgment 'herein, the court concludes as a matter of law that plaintiff is entitled to judgment against defendant for just compensation for the taking by defendant of plaintiff’s land on July 23, 1963, in the sum of six hundred thirty-one thousand eight 'hundred dollars ($631,800) with interest as a part of just compensation at the rate of 4 percent per annum from July 23, 1963, until paid, provided that plaintiff may obtain payment of such award only upon tender of a deed to such property in such form as the Attorney General may deem necessary to assure the defendant a valid fee simple title. The court further concludes that plaintiff is entitled to recover the reasonable attorney, appraisal, and engineering fees actually incurred by plaintiff because of the proceedings in this case, with the amount of recovery in this respect to be determined in further proceedings pursuant to Buie 131(c).