This is аn appeal by the United States from a final judgment rendered pursuant to a jury verdict fixing the amount of just compensation at $22,800 for thе taking of a flowage easement in connection with the St. Francis River Basin flood control project.
Condemnation prоceedings were instituted against the 391 acre farm owned by appellees, Frances D. Thomas, Charles D. Thomas, and Margrave B. Mеlhorn, on October 15, 1964, under authority of 33 U.S.C. § 702a et seq., and *998 other miscellaneous statutes. The estate taken was a “perpetual . . . right to occasionally and intermittently overflow, flood and submerge” the land “in connection with the construction, operatiоn and maintenance” of the project. On March 28, 1964, and for three days thereafter, the issue of just compensation was tried bеfore a jury.
The only question presented for decision is whether the district court erred in refusing to permit the government to introduce evidence of comparable sales which occurred after the date of taking in this case. The court, in rejecting the proffered evidence, apparently entertained the view that regardless of the circumstances, evidence оf subsequent sales would impose an “impossible condition” upon the general test applicable to ascertaining the fair market value of the property taken.
The government submits that the trial court abused its discretion by adopting a per se rule еxcluding all comparable sales made subsequent to the date of taking. We agree with the government, but for reasons stated bеlow we nevertheless affirm.
When land is taken by eminent domain, and the title acquired is not a fee, but merely an easement, the proper measure of damages is the difference between the market value of the land free of the easement and the market value as burdened with the easement. Transwestern Pipeline Co. v. O’Brien,
Generally, evidence of sales of comparable property is persuasive evidence of market value, either as direct proof or in support of a witness’s opinion. United States v. 3,698.63 Acres of Land,
Courts have been reluctant to admit evidence of subsequent comparable sales to dеtermine market value when (1) the particular sales involved were not sufficiently comparable to the litigated property in character, locality or time, or (2) the subsequent sale price reflected an important enhancement in value bеcause of the project for which the land was taken.
See
cases collected in Annot.,
“There is no absolute rule which precludes consideration of subsequent sales. The general rule is that evidence of ‘similar sales in the vicinity made at or about the same time’ is to be the basis for the valuation and evidence of all such sales should generally be admissible . . . including subsequent sales. . . . The generality of this rule is limited howevеr, by the consideration that a condemnation itself may increase prices and the government should not have *999 to pay for such artificially inflated values. . . . But that possibility does not produce a hard and fast exclusionary rule. In every case it is a question of judgment as to the extent of this danger and, particularly where a judge is sitting without a jury, it would seem the better practice to admit the evidence and then to weigh it having due regard for the danger of artificial inflation.”
United States v. 63.04 Acres of Land,
Our disagreement with the trial judge in the instant case flоws from the erroneous premise upon which he bottomed his ruling, to wit, that evidence of subsequent sales is never proper for сonsideration in arriving at fair market value. Stated differently, the trial judge failed to exercise his discretion. The law of evidence in federal courts favors a broad rule of admissibility and is designed to permit the admission of all evidence which is relevant and material to the issues in controversy, unless there is a sound and practical reason for excluding it. Rule 43(a), Fed.R.Civ.Proc.;
1
United States v. So-wards,
supra,
Having determined that the trial court erred in adopting an exclusionary rule with respеct to any and all subsequent comparable sales, nevertheless we affirm the judgment on the ground that the error was harmless. The subsеquent comparable sales excluded from evidence in this case were offered not as direct evidence of the after-value of the property in question but rather as a basis for the opinion of a government witness. Evidence of one subsequent comparable sale had already been admitted for this purpose, 2 and numerous prior sales were also in evidеnce. Two government appraisers testified to a decrease in value of $6,540 and $7,480, respectively. The landowners’ experts, on the other hand, estimated just compensation at $32,000 and $33,050. The jury verdict' of $22,800 lay well within these limits.
Affirmed.
Notes
. See Buies 402 and 403, Fed.R.Evid., effective July 1, 1973.
. Á sеcond case with a later date of taking was consolidated with this case for trial helow. The comparable sale admitted into evidence occurred subsequent to the date of taking in this case, but prior to that in the second case. The government’s offer of proof rejected by the trial court included four comparable sales, all subsequent to both dates of taking.